THE INDUSTRIAL TRIBUNALS

CASE REF:    2750/10

CLAIMANT:	Jenna Greer

RESPONDENT:	Heather Coulter (trading as Alphreso Café)  

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and discriminated against on account of her age, compensation is awarded as set out in the Schedule hereto.

Constitution of Tribunal:

Chairman:		Mr S M P Cross

Panel Members:		Mr P Killen
		Mr D Atcheson

Appearances:

The claimant appeared in person and was not represented.

The respondent did not appear and was not represented.

1.	At the outset of the case the claimant informed the tribunal that the respondent’s name was Heather Coulter.  The title of the case was changed to add the full name of the respondent.

FINDINGS OF FACT

2.	The claimant who was born on 6 October 1992, commenced employment for the respondent on 4 October 2008 and was dismissed on 11 October 2010.  She was employed as a dishwasher in the respondent’s cafe at Abbey Centre, Newtownabbey, the respondent also operated a café under the same name at 
335 Antrim Road, Glengormley.  The claimant worked 8 hours per week.

3.	The claimant was to become 18 years of age on 6 October 2010 and so informed the respondent on 5 October, so that the respondent would know that she would have to increase the claimant’s wages as she was entitled to be paid the minimum wage for a person aged over 18 years.  This would amount to £4.92 per hour.  Up until that time the claimant was paid £4.00 per hour.  The claimant was away for a few days leave and on her return; on Sunday, 11 October she telephoned to the respondent to find out her shift hours for the following week.  The respondent said that she had no further shifts for her as she, the claimant, had been cheeky with her on 5 October.

4.	The claimant wrote to the respondent asking if she had been dismissed or whether she was to get more shifts and received no reply to her letter.  She wrote again on 22 October referring to her letter of the 11th to which she received no reply.  The claimant said that she must assume that she had been dismissed and that she felt that she had been dismissed because of her request to be paid the minimum wage.  She asked for a grievance to be considered and to appeal the dismissal.  The claimant received no reply to this letter and has heard nothing from the respondent. The Antrim Road shop closed at the end of the year about 10 weeks after her dismissal, although the other shop remains in operation.

5.	The claimant commenced these proceedings in the tribunal but the respondent has not made any response to the claim.

THE LAW

6.	The claimant claims that she was unfairly dismissed.  Under the provisions of Article 126 of The Employment Rights (Northern Ireland) Order 1996 (the 1996 Order).  “An employee has a right not to be unfairly dismissed by his employer.” Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question.  Another reason that is considered unfair is set out in Article 135A of the 1996 Order, where an employee asserts a right under the National Minimum Wage Act 1998, (“the 1998 Act”).

7.	Certain dismissals are declared by Statute to be automatically unfair.  One such is where the employer fails to comply with the terms of Article 130A of the 1996 Order.  This states that a dismissal is to be regarded as unfair, if one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the employer/respondent.  The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter.  The meeting must take place before the action of dismissal is implemented and if the employee is still intent on dismissing the employee it must give the employee a right of appeal. If it fails to carry out this procedure then the subsequent dismissal is automatically unfair.  This is known as a failure to follow the statutory dismissal procedure.

8.	If the tribunal is satisfied that the claimant has been unfairly dismissed, it can award the claimant compensation, payable by the respondent.  The tribunal, if the statutory procedures are not complied with, must increase the award of compensation that it makes by 10%, (Article 17 of the 2003 Order).  The tribunal also has power, under the same Article, to increase the award by a further percentage, up to 50%, if the tribunal considers it just and equitable so to do.  Furthermore, the tribunal must award the claimant a sum equal to 4 weeks salary as the basic award, if the respondent has failed to implement the statutory dismissal procedure, unless the tribunal decides that it would  be unjust and inequitable to so award.  (Article 146 of the 1996 Order).

9.	Part 2 of The Employment Equality (Age) Regulations (Northern Ireland) 2006, (hereinafter “the Age Regulations”), makes it unlawful for an employer to discriminate against a person, on account of that person’s age, by, inter alia, dismissing that person or subjecting her to any other detriment.  See Regulation 7(2) (d).  A tribunal can award compensation for such discrimination, although in this case compensation is awarded under the unfair dismissal head and so it is only compensation for injury to feelings that is awarded.

DECISION

10.	In this case the claimant was dismissed in the most callous way.  She was left to find out that her job had gone in the café in which she worked.  She had to telephone to the respondent to find out, over the telephone, that she was dismissed.  This tribunal recognises that trading conditions are difficult in the retail sector but it is hard to find an excuse for the respondent, to justify such treatment of an employee.  The respondent did not respond in writing to the claimant’s letters or to the tribunal.  She has not appeared before the tribunal to give an explanation as to the situation.  The claimant was given no notice of dismissal and so the tribunal award 2 weeks wages under this head.

11.	It is clear to the tribunal that the respondent did not wish to pay the increased minimum wage to the claimant and therefore dismissed her without further communication.  This is an unfair dismissal under Articles 130, 130A and 135A of the 1996 Order.  This is an automatically unfair dismissal and the tribunal hold that the claimant is entitled to the basic award of 4 weeks pay, as set out in the schedule hereto, together with a compensatory award, also referred to in the schedule.  The compensatory award is based on 10 weeks pay from the end of her 2 weeks notice on 24 October 2010.  The claimant was not able to obtain alternative employment despite her efforts to find it.  The tribunal increases the award under Article 17 of the 2003 Order by 50% to reflect the gravity of the respondent’s disregard of the claimant’s rights.

12.	The tribunal also find that the respondent discriminated against the claimant on the grounds of her age, in that as soon as the claimant notified the respondent that she was about to become 18 years of age the respondent dismissed her rather than have to pay the increased wage laid down under the law.  This was a most upsetting turn of events for a young person beginning her working life and the tribunal award the claimant £500.00 for injury to her feelings as a consequence of this discrimination.

13.	The claimant did not seek Jobseekers Allowance and has not been able to obtain alternative employment.

14.	Although the tribunal find that the claimant was discriminated against on account of her age, there was no evidence of discrimination against her on any other ground.

15.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

SCHEDULE

2 weeks notice pay:		  £78.72

Unfair dismissal 

Basic Award 4 weeks wages @£4.92 per hour
 for 8 hours per week		£157.44

Compensatory award 10 weeks pay:	£393.60

Increased by 50%:	£196.80

			£590.40

Compensation for Age Discrimination:		£500.00
		________
Total:		£1,329.56

Chairman:

Date and place of hearing:       8 August 2011, Belfast.

Date decision recorded in register and issued to parties: