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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Megahey v Action Cancer [2007] NIIT 961_05 (4 April 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/961_05.html Cite as: [2007] NIIT 961_5, [2007] NIIT 961_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 961/05

CLAIMANT: Catherine Anne Megahey

RESPONDENT: Action Cancer

DECISION

The majority decision of the tribunal is that the claimant was unfairly dismissed from her employment and it is the unanimous decision of the tribunal that she was unlawfully discriminated against, on the ground of her sex, in the recruitment to the position of Retail Manager. The total amount awarded to her, including interest on the sex discrimination aspect of her claim, is £30,892.00.

Constitution of Tribunal:

Chairman: Mr Palmer

Members: Mr Boyd

Mrs Ley

Appearances:

The claimant was represented by Mr McKee, Barrister at Law, instructed by McCartan, Turkington and Breen, Solicitors.

The respondent was represented by Mr Hamill, Barrister at Law, instructed by Worthingtons, Solicitors.

THE LAW RELEVANT TO THIS CASE Unfair Dismissal	THE LAW RELEVANT TO THIS CASE Unfair Dismissal
1.	Article 140(1) of the Order provides that Article 126 does not apply to the dismissal of an employee unless the employee has been employed for a period of not less than one year, ending with the effective date of termination of the contract of employment.
2.	Article 130(1) of the Order provides that in determining whether a dismissal is fair or unfair, it is for the employer to show the reason (or, if more than one, the principle reason) for the dismissal and that it is a reason falling within paragraph (2) of Article 130. One of the reasons contained within paragraph (2) of Article 130 is redundancy.
3.	Article 174(1)(b)(i) of the Order provides that, for the purposes of the Order, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the requirements of the business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.
4.	Article 174(5) of the Order provides that "cease" and "diminish" mean cease and diminish either permanently or temporarily and for any reason.
5.	Article 130(4) of the Order provides that where the employer has fulfilled the requirements of paragraph (1) of Article 130 (for example, showing redundancy) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administration resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.
6.	In Polkey v AE Dayton Services Ltd [1987] IRLR 503, Lord Bridge stated, at paragraph numbered 28,
	"Employers contesting a claim of unfair dismissal commonly advance as their reason one of the reasons specifically recognised as valid by [Article 130 of the Order]. These, put shortly, are; (a) that the employee could not do his job properly; (b) that he has been guilty of misconduct; (c) that he was redundant. But an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as "procedural", which are necessary in the circumstances of the case to justify that course of action. Thus in the case of………..redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation."
7.	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 (the Order) provides that an employee has the right not to be unfairly dismissed by his/her employer.
Sex Discrimination	Sex Discrimination
8.	Article 8, paragraphs (1) and (2), of the Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) provide:-
	"(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman-
	(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or
	(b) in the terms on which he offers that employment, or
	(c) by refusing or deliberately omitting to offer her that employment.
	(2) it is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her-
	(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting her access to them, or
	(b) by dismissing her, or subjecting her to any other detriment."
9.	Article 3(2)(a) of the 1976 Order provides that a person discriminates against a woman if, on the ground of her sex, he treats her less favourably than he treats or would treat a man.
10.	Article 63A of the 1976 Order provided at the relevant time:
	"(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
	(2) where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this article, conclude in the absence of an adequate explanation that the respondent-
	(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 111, or
	(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the claimant,
	The tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."
11.	Article 7 of the 1976 Order provides;
	"A comparison of the cases of persons of different sex or marital status under Article 3(1) or (2) or 5(1), or a comparison of the cases of persons required for the purposes of Article 4A, must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
12.	In Igen v Wong [2005] IRLR 258 (A decision of the England Court of Appeal in England and Wales) Lord Justice Peter Gibson, who delivered the judgment of the court, stated, at paragraph 17 on page 262, referring to the equivalent provision to Article 63A in Great Britain:
	"The statutory amendments clearly require the [industrial tribunal] to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld."
13.	The court in Igen gave the following guidance in respect of the two-stage process, and annexed to it the judgment:
	Annex
	(1) Pursuant to s63A of the SDA] it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s41 or s42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
	(2) If the claimant does not prove such facts he or she will fail.
	(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
	(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
	(5) It is important to note the word 'could' in s.63A (2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
	(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
	(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.
	(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A (10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
	(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
	Chairman: Dates and place of hearing: 20, 21, 22, 23 and 24 November 2006, 20 and 22 December 2006, 14, 16 and 17 January 2007, 9 February 2007, 12, 13, 14, 15 and 16 March 2007,and 2, 3 and 4 April 2007 Date decision recorded in register and issued to parties