IN THE JERSEY EMPLOYMENT
AND DISCRIMINATION TRIBUNAL
BETWEEN
|
|
JOSH LEE
MCGURTY
|
CLAIMANT
|
|
|
AND
|
|
|
|
GMK CONSTRUCTION
|
RESPONDENT
|
TRIBUNAL JUDGMENT
Reference: [2023] TRE 65
Date of hearing: 27 September 2023
Before: Advocate Ian C Jones
Roisin Pitman, panel member
Sue Pallot, panel member
Appearance:
For the Claimant: In person
For the Respondent: In person / assisted by Seamus Freel
1.
INTRODUCTION
/ ISSUES
1.1.
The
Claimant made a claim for: (i) unfair dismissal; (ii) unpaid holiday pay; (iii)
compensation in relation to not receiving his written terms of employment; (iv)
flexible working; and (v) unpaid parental leave. At the hearing the Claimant
clarified / confirmed that he was not pursuing claims (iv) and (v). As had been
canvassed with the Claimant at an earlier date he accepted he had made no
application (as understood by the 2003 Law for either flexible working or parental
leave).
1.2.
The
Claimant also sought to advance a discrimination in relation to his partner’s
pregnancy. As detailed below, it was common ground that the Claimant had not
been employed for long enough to avail himself of the unfair dismissal
protections found in the 2003 Law but as detailed in his claim form: (i) his
case was that it was his partner’s pregnancy along with the fact that he wanted
to take paternity leave which as the principle (and on his case the only)
reason for his dismissal (per Article 67 of the 2003 Law; and (ii) he was
advancing a distinct discrimination claim in relation to the protected
characteristic of pregnancy.
1.3.
The
headline issues in the case for the Tribunal essentially coalesced at a single
point: what was the reason for the Claimant’s dismissal? Was it because of the quality
of his work or was it because the Respondent did not want to pay the Claimant
for paternity leave?
1.4.
The
Claimant alleged that he was dismissed on 3rd February when the
Respondent informed him that his employment would no longer be continuing and
that he should consider himself to have been given two weeks’ notice pursuant
to his employment contract. The Claimant alleged that this happened less than
an hour after the Respondent had seen (and liked) a Facebook post (put up by
the Respondent’s partner) seeking information about how an employee should go
about seeking paid paternity leave.
1.5.
The
Claimant’s case was that this was why the Respondent gave him his notice; the
allegation being that the Respondent did not want to have to pay him for
paternity leave and was motivated to avoid having to pay his employees if they
were not working. The Claimant argued that there was essentially no other
explanation.
1.6.
Conversely,
the Respondent’s case was that the Claimant was not a particularly good or
indeed experienced plasterer and that on more than one occasion – particularly
in relation to a high value project – the Claimant had badly let him down as
the standard of his work and attitude was poor. The Respondent’s case was
simple: the standard of the Claimant’s work was well below par and that it was
reasonable to dismiss him when he did.
1.7.
One
additional issue which arose was whether or not it was open to the Claimant to
pursue a discrimination claim on the basis of his partner’s pregnancy. While it
may seem counter-intuitive the Tribunal’s view was that there was not reason
the Claimant (as an employee) could not pursue a discrimination claim against
his employer on the basis that he (as the employee) had been
discriminated against on account of a protected characteristic of another
person – who was not the employee and had no other relationship with (in a
legal sense) with the employer.
1.8.
Article
6(1) of the Discrimination (Jersey) Law 2013 (the “Discrimination Law”) states
as follows:
“A person discriminates against
another person (the “subject”) if, because of a protected
characteristic, the person treats the subject less favourably than the person
treats or would treat others.” [emphasis added]
Article 6(8) of
the Discrimination Law states:
“In relation
to the protected characteristics of pregnancy, maternity and sex … and where
the subject is not a woman, no account is to be taken of special treatment
afforded to a woman in connection with pregnancy or childbirth.”
1.9.
In
the view of the Tribunal two aspects arise from these extracts: (i) Article
6(1) does not specify that the protected characteristic forming the basis of
the alleged discrimination must be a characteristic of the ‘subject’ – i.e. the
Claimant. Rather it states ‘because of ‘a’ protected characteristic; and
(ii) Article 6(8) plainly contemplates a circumstance or possibility that the
subject of a discrimination claim predicated on the protected characteristic of
either maternity or pregnancy could be a man.
1.10.
It
seems to the Tribunal that while it may be the more difficult to prove that one
has been discriminated against because of a protected characteristic that someone
else has it is still a dynamic or a possibility that is contemplated and / or
envisioned by the Discrimination Law. – even if that protected characteristic
is, as in this case, pregnancy and the subject of the discrimination claim is
the same.
2.
THE
FACTS / EVIDENCE
2.1.
The
Tribunal heard evidence from both the Claimant and Mr Greg Kelly who is the
owner and Director of GMK Construction Limited – the Respondent. The Claimant
gave evidence that he started working for the Respondent on 17th
October 2022. His evidence was that he worked largely without incident or
complaint from the Respondent until 3rd February 2023. The Claimant
explained that everything was essentially fine until his partner put a post
onto Facebook seeking advice and input as to how the Claimant should go about
claiming for paternity leave and what the Claimant’s rights were in this
regard.
2.2.
The
Claimant explained in his evidence that as far as he was concerned the
Respondent had seen the post. He based that on the fact that the Claimant had
‘liked’ it. The evidence given was that this message was ‘liked’ at some point
after 2036hrs on 3rd February 2024 but before 2128hrs. At 2128hrs on
3rd February the Respondent sent a message to the Claimant which
said: “Please accept this [message] as written notification of your
two week’s notice.” [BUNDLE PAGE 217]
2.3.
There
was a wider context to this exchange as earlier that day at 1708hrs [BUNDLE
PAGE 214] the Respondent messaged the Claimant asking him to work the next day:
“Could be doing with you in tomorrow lad’.” There are then a number of
messages exchanged in which the Claimant asks the Respondent for an increase to
his hourly rate [BUNDLE PAGES 214-216] which leads the Respondent to ultimately
provide notice to the Claimant as detailed above.
2.4.
Interspersed
with these messages is of course the Facebook post (described above) which the
Claimant alleges is what ultimately motivated the Respondent to terminate his
employment. Also interspersed with these messages is one timed at 1956 hours [BUNDLE
PAGE 216]in which he says this to the Respondent: “… this isn’t me giving in
my notice I’m just letting you know that I will start looking elsewhere in the
near future if my pay isn’t going to improve”.
2.5.
The
further context to these messages is that the Respondent made a number of
references and complaints about some work the Claimant had completed the
previous December in relation to a project called ‘Glenroyd’. The Respondent states
that he is “still not over the way Glenroyd was left”. This is in
reference to an exchange that the Claimant and Respondent had had the previous
December.
2.6.
The
Respondent gave evidence that the position was in reality very simple: the
Claimant was in truth not a very good plasterer and that because of his lack of
ability (and to a lesser extent his attitude) he was justified in giving him
his 2 weeks’ notice. The Respondent did not deny knowing about the Facebook post
but gave evidence to the effect that it had no impact and / or played no part
in his decision to dismiss the Claimant. His position was that he had given
other employees paternity leave previously and had even given other employees
bonuses related to them having children. It was not clear to the Tribunal
whether such bonuses were in lieu of paying paternity leave or in addition to
it but the importance of this evidence – if it were to be accepted – was that the
fact either that the Claimant was about to have a child with his partner and /
or wanted to take paternity leave would never give rise to an adverse reaction
on the part of Mr Kelly. Indeed, other employees in similar situations had been
financially rewarded.
3.
DISCUSSION
3.1.
As
ever, the Tribunal had the benefit of seeing and hearing both the Claimant and
the Respondent give evidence. The Tribunal unhesitatingly concluded that it
preferred the evidence of the Claimant who was calm and poised when giving
evidence and being questioned. By contrast the Respondent often became
flustered when giving evidence, sometimes appeared to contradict himself and
was often quite difficult to follow.
3.2.
The
real difficulty faced by the Respondent however was not his presentation but
rather that his account did not really make any sense to the Tribunal. If for
example he truly decided to dismiss the Claimant on the basis of the quality of
his work he would surely have done so shortly after the Glenroyd project. In
the view of the Tribunal it was even less likely that the Respondent would have
asked the Claimant to work on the day he decided to dismiss him if the reason
for the dismissal was truly the standard or the quality of the Claimant’s work.
3.3.
The
Tribunal found that as at 1708hrs on 3rd February the Respondent in
fact had no difficulty with the quality of the Claimant’s work. If he did then
it was not enough of a difficulty to prevent him asking the Claimant to take on
additional work; evidently he viewed him as a resource which he was happy to
make use of. The Tribunal also considers it significant that at 1956hrs on 3rd
February, notwithstanding the discussions and exchanges, the Claimant was
explicitly clear that he was not resigning his position.
3.4.
From
the perspective of the Tribunal this had a particular significance as if
the Respondent truly wanted to dismiss the Claimant he would surely have done
so at this point in the exchange. To the extent there was any confusion as to
whether or not the Claimant was resigning – which is not a point that the
Respondent relied on – it was clear that he was not from 1956hrs.
3.5.
In
the view of the Tribunal the position was this: as at 1956hrs on 3rd
February 2023 the Respondent was either satisfied with the quality of the
Claimant’s work, or not so dissatisfied that he was motivated to dismiss him.
The source of the alleged dissatisfaction was the Glenroyd project and events
which had occurred in December of the previous year. The Tribunal was not
persuaded that dissatisfaction stemming from that project was the reason behind
the dismissal; in the simplest of terms, if it was then the Claimant would have
been dismissed long before 3rd February. Not only that it is implausible
that the Respondent would have been asking the Claimant to work on 3rd
February 2003. The Tribunal did not accept that the reason for the dismissal of
the Claimant was his capability or the quality of his work. The Tribunal found
that the Respondent did not discharge its burden in this regard.
3.6.
The
question for the Tribunal then becomes the following: what happened between
1956hrs and 2128hrs on 3rd February which led to or resulted in the
Respondent dismissing the Claimant? On the basis of the evidence presented the
Tribunal was satisfied the reason the Respondent decided to give the Claimant
his notice (as he did, explicitly at 2128hrs on 3rd February) was
that he had seen and thought about the post put up on Facebook at 2036hrs.
3.7.
The
Tribunal could not be sure as to precisely when the Respondent saw this post
but considered that it was more likely than not that he saw it before he
decided to dismiss the Claimant. In the view of the Tribunal there was no other
explanation for what was otherwise an arbitrary and inexplicable volte-face
on the part of the Respondent. At 1708hrs
on 3rd February the Respondent wanted the Claimant to work over the
weekend. By 2128hrs the Respondent had dismissed the Claimant and according to
his evidence before the Tribunal that decision was made on the basis of the
quality of the Claimant’s work. For the reasons set out above, the Tribunal did
consider that to be a credible explanation of the sequence of the events.
3.8.
The
Tribunal considered that it was more likely than not that the Facebook post and
the Respondent seeing it was what motivated Mr Kelly to give notice to the
Claimant. What flows from that finding is that the reason for the dismissal was
ultimately the pregnancy of the Claimant’s girlfriend; the concern of the
Respondent being that the Claimant was intending to (or might try to) take and
be paid for paternity leave. Coupled with unchallenged evidence from the
Respondent that he had given other employees bonuses when they had children the
Tribunal was more than satisfied that dismissing an employee in circumstances
where the reason for that dismissal was the fact that their partner was
pregnant and that that employee wanted to take paternity leave amounted to
direct discrimination. Pursuant to Article 6(1) it seemed clear to the Tribunal
that the Claimant was being treated less favourably on account of his partner
being pregnant which is a protected characteristic.
3.9.
The
Tribunal also took note of Article 67(1)(d) which makes it clear that
dismissing someone from seeking to take paternity leave is ‘unfair’ as a matter
of law pursuant to the 2003 Law. While the Tribunal accepts that the Claimant
did not in fact seek to take paternity it is also correct to note that the
reason why he did not seek to take paternity leave was because his employment
was terminated before he could. The key aspect here from the perspective of the
Tribunal is that it was the Facebook post which raised the prospect that the
Claimant would be seeking to take paternity leave and it is as a result of
seeing that post that the Respondent decided to give the Claimant his notice.
3.10.
The
Tribunal therefore found that on account of the discriminatory conduct pursuant
to Article 6(1) of the Discrimination Law the Claimant was unfairly dismissed
by the Respondent and his claims for both unfair dismissal (on an automatic
basis) and direct discrimination therefore succeed. In relation to the
finding of unfair dismissal the Claimant is awarded the equivalent of 4 weeks’
pay. In relation to the successful claim for direct discrimination the Tribunal
considers this discriminatory act to be toward the lower end of the scale in
terms of its seriousness and impact and awards the Claimant £1,000 as
compensation for hurt and distress.
3.11.
There
was in truth no dispute that the Claimant was not provided with any written
terms of employment within the relevant mandatory period (per Article 3(1) of
the 2003 Law) and pursuant to Article 8 of the 2003 Law the Tribunal awards the
Claimant the equivalent of one weeks’ pay. There was no good or other reason
not to provide the Claimant with his terms of employment but it was not clear
to the Tribunal that this failure was systemic in any way and the Claimant was
not able (and in truth did not really attempt) to show that he had been
adversely impacted by the failure.
3.12.
Finally
as to the claim for holiday pay, the Respondent explained that a 6% uplift in
salary was included for all employees to account for statutory holiday pay. The
Tribunal notes that this was borne out by the terms of employment and the
Tribunal was unable therefore, on the basis of the evidence, to find that
holiday pay had not been paid.
4.
SUMMARY
OF AWARDS
(i)
Unfair
dismissal: 4 weeks’ pay or £2,322.00
(ii)
Direct
discrimination: £1,000 (no separate award for financial loss) and
(iii)
Failure
to provide written employment terms: 1 weeks’ pay or £580.50
4.1.
Regrettably
there was no agreement between the parties as to the daily or weekly rate of
the Claimant’s pay and so the Tribunal has had reference to the payslips
provided by the parties. Those payslips [PAGES 40-58] detail that the Claimant
was paid a total of £9868.50 (gross) during his employment. We also know that
the Claimant worked for a total of 17 weeks. The simple arithmetic of this
means that on average over the period of employment – including holiday pay –
the Claimant earned £580.50 per week.
4.2.
The
Tribunal has also had reference to the provision of the schedules to the 2003
Law and in particular Article 6 of schedule 1 which deals with situations where
an employee does not have an employment period of greater than 52 weeks. In the
absence of any other evidence and the payslips seeming to the Tribunal to be
conclusive the Tribunal calculates the awards above on the basis of the
Claimant being paid £580.50 per week.
ORDERS ACCORDINGLY
Advocate Ian C Jones, Deputy Chair Dated: 4
November 2024
Paragraph 3.10 has been amended under article
40(6) of the Employment and Discrimination Tribunal (Procedure)(Jersey) Order
2016