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Jessica Murray brought four claims against Fine Foods (Lisburn Road) Limited, trading as Shu Restaurant; Julian Henry (Restaurant Manager at Shu); and Brian McCann (Head Chef at Shu).

The claims were heard by a 3-member Industrial Tribunal, and Ms Murray alleged that:

(1) she had been unlawfully discriminated against on the grounds of age and gender, contrary to the Sex Discrimination (Northern Ireland) Order 1976 and the Employment Equality (Age) Regulations (Northern Ireland) Regulations 2006;

(2) after raising a grievance in relation to the above matters, she had been unlawfully victimised contrary to the both the 1976 Order and the 2006 Regulations;

(3) she had been constructively and unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1976; and

(4) she had not received a written statement of terms and conditions of employment contrary to Articles 27, 33 and 36 of the Employment (Northern Ireland) Order 2003.

Discrimination

The tribunal stated that the “proper approach… when assessing whether discrimination has occurred” had been discussed several times in case law such as; Nelson v Newry & Mourne District Council NICA -3; S Deman v Commission for Equality and Human Rights & Others EWCA Civ 1279; and Madarassy v Nomura International PLC IRLR 247.

Concerning the allegation of sex discrimination, the Tribunal referred to Articles 6, 8, 63, and 63A of the Sex Discrimination (Northern Ireland) Order 1976.

In relation to the allegation of age discrimination, the tribunal referred to regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) Regulations 2006

The Tribunal found that the “incidents alleged by the claimant, taken individually or culminatively” did not raise a prima facie case of unlawful discrimination.

Victimisation

Turning to the claim of unlawful victimisation, the Tribunal stated that it was for Ms Murray “to point to a prima facie case of unlawful victimisation”, but that she had failed to do so.

The tribunal concluded that the claim of unlawful victimisation did “not even get to the stage where the burden of proof would have shifted to the respondents”, and therefore had failed.

Constructive unfair dismissal

Firstly, the Tribunal referred to London Borough of Waltham Forest v Omilaju IRLR 35, which “set out the basic propositions of law relating to constructive dismissal”.

In Brown v Merchant Ferries Ltd IRLR 682, the NI Court of Appeal said that “although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract”.

Pursuant to Article 130 of the Employment Rights (Northern Ireland) Order 1996, to ground a successful claim, a constructive dismissal must also be unfair.

To conclude that Ms Murray had been constructively and unfairly dismissed, the tribunal stated that it “would have to conclude, on the balance of probabilities, that the claimant’s employer had repudiated the contract of employment by a fundamental breach of that contract… and that the claimant had resigned because of that breach and not for any other reason”. The tribunal would also have to conclude that she had not affirmed the breach in the contract through delay or by any other means.

In Ms Murray’s case the employer had “failed to properly respond to the claimant’s first grievance even though the employer, Mr Reid, had concluded that there had been inappropriate behaviour” on the part of Mr Henry and Mr McCann in their management roles.

While the tribunal concluded that it was likely Ms Murray had “already obtained some form of assurance of further employment” in another restaurant before tendering her resignation – this in itself was “not fatal to a claim for constructive unfair dismissal”.

The tribunal concluded that although Ms Murray had contributed significantly, she had been subjected over a lengthy period to inappropriate management conduct throughout the latter stages of her employment that continued beyond the submission of her first grievance. Her employer “had not informed her of his clear conclusion that there had been an inappropriate management conduct” and had not taken the basic steps of warning Mr Henry and Mr McCann, or the equally basic steps of warning Ms Murray.

This amounted to a fundamental breach of contract, and the Tribunal was satisfied that she had been constructively and unfairly dismissed.

Constructive unfair dismissal compensation

In calculating the compensation for unfair dismissal, the Tribunal referred to case law such as Lifeguard Assurance v Zadrozny IRLR 56, and Dunnachie v Kingston-upon-Hull City Council IRLR 727. The Tribunal also cited Employment Tribunal Remedies (Korn & Sethi 4th Edition).

According to the NIRC the component parts of appropriate compensation are separated into four headings: (1) immediate loss of wages; (2) manner of dismissal; (3) future loss of wages; and (4) loss of protection in respect of unfair dismissal or dismissal by reason of redundancy.

Decision

In a unanimous decision, the tribunal dismissed the claim of unlawful discrimination on the grounds of age and gender, and the claim of unlawful victimisation.

The tribunal upheld the claim of constructive and unfair dismissal, and awarded Ms Murray £5,942.38 (comprising £1,014.12 basic award and £4,928.26 compensatory award). In respect of the company’s failure to provide any statement of terms and conditions of service, Ms Murray was also awarded £1,014.12, being four weeks’ gross pay.

The total amount awarded to Ms Murray was £6,956.50.