McIlveen on Employment- February 2022


“Learn as much as you can from those who know more than you do, who do better that you, who see more clearly than you.”
Dwight Eisenhower 34th US President.


This month, I was pleased to deliver a webinar for Legal Island looking at the most interesting cases in the NI Tribunals over the last year. 

I discussed the following cases with Scott Alexander: 

  • Wahab v Four Seasons (No.7) Limited (unfair dismissal; unlawful deductions from wages; race discrimination)
  • Campbell v Lisburn & Castlereagh City Council (Religious belief/political opinion discrimination; agency worker)
  • Anonymised Claimant v Anonymised Respondent (Sexual harassment and assault in the workplace)
  • McNicholl v Bank of Ireland & Cummins (Sexual harassment and joint and several liability)
  • Nevin McEldowney v Randox Farming Limited trading as Cherryvalley Farms (Unfair dismissal; Reasonable Adjustments; Registered Intermediary)
  • Byrne v Aware Defeat Depression Ltd (Disability Discrimination; Constructive Dismissal)

Read the webinar paper here

View the video recording and full transcript here

Bronagh Murray v Ministry of Defence 2/18FET and 40/18IT

The claimant Bronagh Murray, was employed by the Ministry of Defence for nineteen years as an administrative officer. Her claim to the Industrial and Fair Employment tribunal was for sexual and religious discrimination. 

The claimant’s complaint centred on comments made by a captain in charge of her section at Thiepval Barracks over a period of five months in 2017.

She complained of being subjected to repeated references to her religion in the presence of her office colleagues.
Such comments were alleged to include:

“I bet you have tried to steal a cone, that is the Catholic coming out in you” and “I need back up, I have an Irish Catholic girl armed and dangerous, come quick, need help”

She also claimed sexual discrimination when she alleged that she was referred to as “the big cougar”

The parties agreed on liability in  respect of both of  the Claimant’s claims. £16,420.97 was agreed for loss of earnings for the period from 9th August 2019 to 16th January 2019. The Tribunal found that the claimant had not failed to mitigate her loss and did not reduce the agreed figure.

The Tribunal also concluded that the claimant should be awarded £20,000 for injury to feelings, £20,000 for psychiatric injury, plus total interest of £13,786.23.

Actuarial loss, associated with the claimant’s pension is still to be finalised at a further remedy hearing. Press speculation and the claimant’s own solicitor estimate total monies to be in the region of £560,000 but this has yet to be confirmed.

A full statement of reasons is to be published in due course.

Read the judgment here.

Maxi Fleming v Cuchulainn Teamware Ltd NIIT 26179/20

The Claimant was employed as a machinist in the Respondent’s embroidery business She ceased attending work on 19th March 2020 as a result of the pandemic when the demand for embroidered work wear dried up. A claim for furlough payments was made by the Respondent employer in accordance with the newly devised Coronavirus Job Retention Scheme. The respondent wrote to the claimant on 14th May 2020 announcing that they were letting staff go but giving them the option to carry on receiving furlough payments until the scheme expired. This was offered on the condition that employees provide an undated letter of resignation and confirmation that they would seek no recourse from the company when the furlough scheme came to an end.  The claimant was informed that if she set up her own business (as she had previously indicated she might) during that time, she would inform the employer, and furlough payments would cease.

The Claimant returned an undated resignation letter as requested and confirmed her understanding of the effect of any self-employment.

The respondent activated the resignation letter on 31st July 2020 on the belief that the Claimant was operating as a self-employed machinist.

The Claimant brought a claim for unfair dismissal asserting that the dismissal was automatically unfair for failure to comply with the statutory process and also substantively unfair. She also pleaded constructive dismissal, failure to provide particulars; and unauthorised deduction of wages in respect of notice and holiday pay.

The Claimant’s case that this was a situation that should have been a redundancy, whilst the respondent stated that it was a consensual agreement to terminate her employment when she became self-employed.

In the process of deciding whether there had been a dismissal or a resignation, the tribunal found both parties to be lacking in credibility with inaccurate and untruthful accounts of events. Ultimately, it found that the Respondent had terminated the contract of employment and dismissed the Claimant because it was the Respondent that initiated, prepared and furnished the resignation letter to the Claimant. The Claimant did not offer resignation freely and the date of termination was left blank by the Claimant and decided by the Respondent without consultation. The absence of a date on the purported letter of resignation from the Claimant rendered it void. The onus remained on the Respondent to prove that the dismissal was fair, and it had failed to do so. There had been no semblance of a process of redundancy consultation or investigation and disciplinary process and the dismissal was unfair.

Not withstanding the Respondent’s denial that this was a redundancy situation the tribunal found that were it not for the furlough scheme the Claimant would have been dismissed as the Respondent had no work for the claimant as a result of the pandemic, nor did she have sufficient qualifying service for a redundancy payment. The tribunal was also disbelieving of the Claimant’s denials that she had started her own embroidery business. Nonetheless, the Claimant was awarded a 4 week gross pay basic award, loss of statutory rights, holiday pay, and a compensatory award of £1101. It also awarded a 10% uplift in recognition that Respondent had access to advice from an accountant and ought to have followed statutory procedure.

Read the full judgment here.


Seamus Burton v Doosan Babcock Limited the NIIT 8160/20

The claimant claimed that he could not undertake overtime at weekends due to his caring responsibilities to his disabled wife and that this had led to his dismissal. The overtime issue came to a head when the claimant refused to work overtime for the respondent’s client, AES, to deal with  a power outage at the Ballylumford power station. This led to a refusal of the client to admit the claimant to its sites in the future.

The tribunal rejected the claimant’s case that weekend overtime could not be undertaken by reason of his wife’s condition as this was not supported by any evidence. It found that the claimant had no difficulty undertaking overtime during the week and that the claimant had not provided the tribunal with an explanation as to why his wife’s condition had no impact on his ability to undertake weekday overtime at short notice yet prevented him from undertaking weekend overtime with notice. It was the tribunal’s conclusion, that the claimant voluntarily chose not to make himself available for overtime  in the knowledge that he was required to undertake overtime as per his contract.

The tribunal was satisfied that the respondent’s decision to dismiss the claimant for “some other substantial reason” was genuine and based on the decision of its client’s decision to refuse the claimant entry to its sites as a result of his refusal to perform weekend overtime at an essential time.

The claimant had identified colleagues as comparators in his claim for associative discrimination but failed to show that their circumstances were not materially different. Although overtime had been a historical issue with them too they had since made themselves available and not received the same complaint from the client. In the Tribunal’s view, less favourable treatment could therefore not be established. The tribunal also determined, that had another employee without a disabled dependent failed to make themselves available for overtime during the Ballylumford outage, and had had their pass revoked by AES, their employment would have been terminated on the same grounds for the same reasons.

The Tribunal found that:

1. The claimant had not discharged the burden of proof and proved facts upon which the tribunal could conclude that the claimant was directly discriminated against by reason of his wife’s disability. 
2. The reason for the dismissal was the request of the respondent’s client to remove the claimant from its sites, for lack of overtime working and not because the claimant’s wife had a disability.

Read the full judgment here


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This bulletin is published by Emma McIlveen, Barrister at Law. Please note that the information and any commentary on the law contained in this bulletin is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author or the publisher.

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