THE INDUSTRIAL TRIBUNALS

CASE REF:	  1293/13

CLAIMANT:			Glenn Sharkey

RESPONDENT:		GarCel NI Ltd

DECISION

The unanimous decision of the tribunal is that:-

(1)	The claimant was unfairly constructively dismissed and automatically unfairly dismissed contrary to Article 103A of the Employment Regulations (Northern Ireland) Order 1996 by the respondent and we order the respondent to pay the claimant the sum of £1,184.35.

(2)	The claimant suffered detriment as a result of having made a protected disclosure under the public interest disclosure legislation and we order the respondent to pay the claimant the sum of £1,000.00 in respect of injury to feelings.

(3)	The claimant was not discriminated against on grounds of his age and this element of his claim is dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge McCaffrey

Members:	Mr J Kinnear
	Mr A Crawford

Appearances:

The claimant was represented by Mr Gerard O’Neill

The respondent was represented by Mr Teddy Martin

1.	ISSUES

1.1	The issues raised in relation to this case were threefold:-

	(1)	Unfair constructive dismissal following the claimant having sought holiday pay from his employers.

	(2)	The claimant claimed he had suffered detriment as a result of having made a public interest disclosure (i.e., having claimed that the respondent was failing to comply with its legal obligation to pay the claimant holiday pay) and that he had been automatically unfairly dismissed contrary to Article 103A of the Employment Rights (NI) Order 1996 (“the 1996 Order”).

	(3)	Indirect age discrimination in that the respondent had a policy of not paying holiday pay to its student employees.

The second and third claims were added to the initial claim by order of Employment Judge Buggy on 8 January 2014.  The respondent contested all of these claims.

2.	THE FACTS

2.1	We heard evidence from the claimant, from his girlfriend, Ashleigh McManus, the claimant’s mother Tracey Sharkey, Darren Byrne (the respondent’s Assistant Manager) and Áine Burns.  We also heard evidence from Barry Morris (the Manager of the respondent’s store), Celine McDonald (Office Manager and Director of the respondent company), and Gary McDonald (Director of the respondent company).  There was also an unsworn statement of Miss Kirsty Dobbin which was submitted to the panel by agreement.  Miss Dobbin was unable to attend the tribunal as she is pregnant and suffering from high blood pressure; a medical certificate was submitted to confirm this.

2.2	In addition, numerous documents and the transcripts of a number of recordings made by the claimant of meetings which occurred between him and the number of the respondent’s witnesses were submitted to us.  At the outset of the hearing the respondent sought to have the transcripts of these recordings excluded on the grounds that they had been tampered with.  The respondent called an expert witness who had examined the recordings.  He was unable to say that the actual content of the recordings had been altered or tampered with in any way, only that the titles of the recordings had been amended.  Although these recordings had been made without the respondent’s knowledge, we could see no good reason to exclude the recordings given that they were relevant to the issues in the case and these were admitted in evidence.  The respondent made no other objection to their admission and specifically did not challenge the accuracy of the transcripts.  Given that there was a dispute between the parties as to what had actually occurred, we believed it was relevant to consider the transcripts.

2.3	This is a case where we found that there were question marks over evidence given by a number of the witnesses:  for example, we did not find the claimant, Mr Morris or Mr McDonald convincing on some aspects of their evidence, as appears below.  We had occasion to stop the claimant’s representative from introducing irrelevant evidence regarding claims which were not before the tribunal.  We also had to rule against him adducing evidence in relation to the character of one witness; evidence which it transpired was completely unfounded in any event.  On the basis of the evidence received, we make the following findings of relevant facts.

2.4	The claimant worked as a shop assistant for the respondent company from 6 February 2010 until 10 May 2013, when he resigned, claiming that he could no longer continue working for the respondent.  The respondent’s business was a supermarket in Lurgan, Co. Armagh.

2.5	The claimant was a full-time student in Belfast and so he usually worked at weekends, normally four hours on Saturday and four hours on Sunday, although the hours varied from time to time.  During holiday periods the claimant and some other students worked additional days too, as they were then were more available.  The work rota was usually put up on a Tuesday for the following week but the claimant only saw it when he was in work at the weekend.  There were a number of issues which arose in the final year of the claimant’s employment and for convenience we deal with these under separate headings.

2.6	Uniform

	The respondent had employed a new manager from November 2012 and he decided to enforce the uniform policy more strictly.  It was not disputed that he had put a uniform notice on the notice board, giving people three weeks to comply with the policy and then further enforced the policy.  The uniform consisted of black trousers, a company t-shirt, company fleece, and name badges.  Mr Morris (the manager) had to speak to the claimant on a number of occasions in January 2013 because he was wearing jeans, baseball shoes and a leather jacket to work.  No formal disciplinary action was taken in relation to this matter.

2.7	Punctuality

	The claimant was late for work on a number of occasions between December 2012 and February 2013.  This ranged from being late by a few minutes to being over half an hour late and 45 mins late on a couple of different occasions.  There was a dispute between the claimant and Mr Morris as to the action taken in relation to this matter.  It was the respondent’s case that the claimant had received a verbal warning in relation to the issue of his lateness, but the claimant indicated that he had “not accepted” a verbal warning, although he agreed he had been spoken to about his lateness.  There was a conflict of evidence in relation to this and Mr Morris indicated that he had noted in a work diary that he had given the claimant a verbal warning.  The respondent produced a form relating to a verbal warning, which Mr Morris said he had completed when the verbal warning was given in February, but it had not been properly completed and it was not clear when it was completed.  However, what is clear in relation to this issue is that Mr Morris had not followed the correct three-step procedure in relation to the verbal warning, in that the claimant was not notified in writing of the alleged misconduct, invited to a meeting at which he was entitled to be accompanied and then given an opportunity to appeal the warning.  The verbal warning was never confirmed to the claimant in writing.

2.8	Request for Holiday Pay

	There was a conflict of evidence between the claimant and Mr Gary McDonald as to whether the claimant had requested holiday pay in February 2013.  Towards the end of April 2013, after various other matters had unfolded in relation to the claimant’s absence from work and disciplinary proceedings, the claimant wrote a letter dated 19 April 2013 to Mr McDonald, referring to their conversation in February, and indicating that he was seeking payment for holidays which he had previously taken.  The respondent agreed that the claimant had raised the issue of holidays by letter in April 2013, but not that this issue had been raised in February.  The respondent did however provide the claimant with a written contract of employment, including a grievance procedure in mid-February 2013.  The contract also sets out the position in relation to holidays and confirms that the claimant is entitled to paid holidays.  It is our finding, having heard the evidence from both the claimant and Mr McDonald, that on this point we prefer the claimant’s evidence.  We believe that the written contract was produced as a result of the claimant raising the matter with Mr McDonald.  We are satisfied that the claimant did raise the issue of paid holidays with the respondent in February 2013 and that the respondent indicated that he could not afford to pay everyone in the store holiday pay.  The claimant indicated that he had been advised by the Citizens Advice Bureau that he could raise a grievance in relation to payment for his holidays but also said that he had been advised by the CAB that it was likely that he would be dismissed by his employer if he did so.  If this was the advice given by the CAB, then this advice was clearly defective, as the representative from the CAB had no way of knowing what the outcome of the grievance might be.  We accept however that the claimant was initially reluctant to pursue the matter with the respondent.  It was clear that the claimant subsequently raised the issue of paid holidays in a letter of 19 April 2013 in which the claimant stated that his annual entitlement was at least 5.6 weeks per calendar year.  His letter does not take account of the fact that he worked on a part-time basis, usually around eight hours per week.  The letter did however clearly say that he was requesting his holiday pay to be back paid.  We deal with this issue further below.

2.9	Unauthorised Absence and Disciplinary Procedures

	It was the claimant’s evidence and that of his girlfriend, Ashleigh McManus, that they had completed holiday forms in August 2012 and handed them to the then Manager (David Mitchell).  Mr Byrne (the Assistant Manager) confirmed that he had given holiday request forms to the claimant and Miss McManus but had no further involvement in the matter.  They asked for holidays in the first week in April 2013 as they had booked tickets to go to London, to see a One Direction concert.  The claimant knew that the procedure was for him to fill out a holiday form and that Mr Mitchell would then put this in the staff diary.  Mr Mitchell left the respondent’s employment in the autumn of 2012 and Mr Morris was then appointed as Manager.  On Saturday, 30 March 2013, the claimant noticed that he was on the rota for 2 and 4 April 2013, which was just after Easter and fell within the period he was to be in London.  It was the claimant’s evidence that he had approached Mr Morris about this on 30 March 2013 and again there was a conflict of evidence.  Mr Morris pointed out that the rota was now up and it was too late to change it.  The claimant’s evidence was that this was “left as is, so Barry was fully aware that I would be absent from work on the specified dates”.  It is our finding on the basis of the unchallenged evidence of the claimant that he and Miss McManus had booked the holiday with Mr Mitchell.  We accept however that there was no note in the holiday diary in respect of this matter and this appears to have been a misunderstanding.  On 30 March, the situation appears to have been left unclear.  The claimant was of the view that he had spoken to Mr Morris and made him aware that the holiday was booked, whereas Mr Morris seemed to be under the impression that he had refused the claimant and Miss McManus the holiday on the basis that the holidays had not been agreed with him.  They also requested holidays on 6 and 7 April 2013 (a Saturday and Sunday, which they would usually have worked) and which Mr Morris refused on the basis that the request had been made too late.  The existence of two separate holiday requests seems to have contributed to the misunderstanding.

2.10	On their return from London, the claimant came back to work on 6 April 2013, as did Miss McManus.  Mr Morris asked to speak to them and brought them to his office.  On the way to the office the claimant switched on a recording device on his mobile telephone.  Mr Morris then had a discussion with them in relation to him being absent from work on Easter Monday and Tuesday (the days at issue).  There appeared to have been some confusion as to whether the conversation Mr Morris had previously had with them on 30 March 2013 related to Easter Monday and Tuesday or the weekend of 6 and 7 April 2013.  Mr Morris made it clear to them that the holiday request for 2 and 4 April 2013 had not gone through him and that Mr McDonald had been upset that they had not come to work.  The claimant was unclear in his evidence that he had definitely mentioned Monday and Tuesday to Mr Morris in that conversation but the transcript of the recording shows that he definitely mentioned the Monday (which was 1 April 2013).  There was a lengthy conversation where Mr Morris indicated that this matter would have to be discussed further and made it clear that Mr McDonald was unhappy.  From the transcript it is clear that Mr Morris was agitated in the course of this conversation: he made the comment on a number of occasions that if they did not want to work there, they would be sidelined.  He indicated that there were application forms which would come in and that he would make sure there was good cover in the shop and “people who really wanted to be there”.  He did indicate that both the claimant and Miss McManus were nice people and good workers but he was concerned about this issue of absence.

2.11	On 9 April 2013, the claimant had a discussion with Gary McDonald which he also recorded without asking Mr McDonald’s permission.  After some discussion, Mr McDonald indicated that the claimant was to meet with Celine McDonald (his wife) in relation to the matter.  The transcript of the recorded conversation shows Mr McDonald pointed out to the claimant that if the rota was put up in advance the claimant had notice of it.  In the course of that conversation, Mr McDonald made the comment that he did not like the claimant’s attitude, “and if I’d my way, I’d put you out the door but that’s only my opinion and that’s how I would run a business.  So if you can work with him (Barry Morris) fine, come in and do your job.  But you would need to lift your level as far as I’m concerned.”

2.12	Following this, there was an investigation meeting between the claimant and Mr Morris on 13 April 2013 when they went through previous leave requests.  No approved holiday forms for the holidays on 2 and 4 April 2013 were found in the respondent’s records.  As a result of that meeting, the matter was referred to Mrs Celine McDonald for a disciplinary meeting.  Prior to the disciplinary meeting, Mrs McDonald wrote to the claimant on 15 April 2013, indicating that disciplinary action was being considered in relation to unauthorised leave and late timekeeping.  She indicated that this may be considered an act of gross misconduct and that if founded, it may result in the claimant’s dismissal.  He was advised of the right to be accompanied by a work colleague, and was invited to a disciplinary meeting at 5.00 pm on Friday, 19 April 2013.

2.13	The disciplinary meeting took place on 19 April as planned.  Mrs McDonald asked the claimant for his mobile telephone at the outset of the meeting and so there was no recording made.  There were notes prepared at the meeting by Kirsty Dobbin, who was in attendance.  We are aware these notes were not formally proved in evidence as Mr Dobbin was not present, but their content was not disputed by the claimant.  The claimant indicated that he did not want anyone present to accompany him.  It was noted that the respondent had not been able to find any holiday request form for the first week of April.  The claimant told Mrs McDonald during that meeting that he had thought that a problem would arise which was why he had taken a photograph of the rota on his telephone.  Mrs McDonald asked why the claimant had not queried the matter with Mr Morris when he was clearly on the rota.  The claimant’s response was that he had spoken to Barry McDonald about holidays, but that he had read management’s decision was final.  He also told Mrs McDonald he had booked off 1-5 April, but as he normally didn’t work through the week, she found this strange. Mrs McDonald indicated that she would consider the matter carefully and would contact the claimant to organise another meeting when she had reached a decision.  The claimant had asked her what was happening following the meeting and the minutes show that he said he would not be back until this matter was sorted out.  The claimant alleged that he had been suspended from work pending the outcome of the disciplinary action.  We can see no evidence of this and there is certainly no letter of suspension amongst the documentation.  The transcripts of the tape recordings are inconclusive in relation to this, but do appear to bear out that the claimant did not want to come back to work while this issue was outstanding.  The transcript of the discussion on 25 April 2013, when the claimant was advised of the outcome of the disciplinary meeting, indicates that he had been rostered to work that week but that he indicated then that he wished to appeal and was going to hold off returning to work until the outcome of the appeal was known.  We therefore find that the claimant was not suspended by the respondent during this disciplinary procedure.

2.14	On 25 April 2013, the claimant was invited to a further meeting by Mrs McDonald to hear the outcome of the disciplinary procedure.  At that meeting, he handed in a letter dated 19 April and addressed to Gary McDonald, which raised again the issue of his holiday pay.  (See para 2.9 above).

2.15	At the meeting on 25 April, the claimant was given a letter dated 22 April which indicated that he was to receive a written warning for unauthorised absence and lateness.  There was some confusion as Mrs McDonald initially referred to this at the meeting as a final written warning, but subsequently corrected herself.  The letter which she had prepared indicated that the claimant was to receive a written warning for a period of six months.  The reason given for the disciplinary action was unauthorised leave and late timekeeping.  She also indicated to the claimant that they would change his shifts to evening shifts at weekends to try and improve the issue of the claimant turning up late for work on Saturday and Sunday mornings.

2.16	The claimant indicated that he did not accept the decision to give him a written warning because he had not first received a verbal warning.  There was then some discussion and toing and froing about the production of the verbal warning in relation to lateness which Mr Morris said he had given the claimant in February.  The minutes note that the claimant advised he had been spoken to but did not get a verbal warning and did not sign anything.  Both Mr Morris and Mrs McDonald advised that a verbal warning was a verbal warning and he did not need to sign it, although the respondents produced to the tribunal a form for a verbal warning which was to be countersigned by the employee, acknowledging receipt of a copy of the warning.  The only documentary evidence of the verbal warning produced was record of a verbal warning dated 23 February 2013, signed by Barry Morris, but not acknowledged by the claimant, and not appealed by the claimant.  We are not satisfied, as we have set out above that the correct procedure was followed in relation to the verbal warning, or that the claimant received written confirmation of it.

2.17	The claimant subsequently wrote a letter of appeal to Gary McDonald on 29 April 2013.  This focussed mainly on the issue of unauthorised absence and indicated how he felt he had been “victimised and bullied” by Barry Morris.  This letter also stated, 

		“I do feel that McDonald’s Supervalu had been progressively forcing me out 	of employment ever since I had a short discussion with you over my statutory 	holiday pay and how I have never received it.  You did outline that you 	understood it is illegal not to pay me statutory holiday pay and that you 	simply could not afford to pay me holiday pay.  Yet it has come to my 	understanding that some past and current part-time/casual workers have and 	do receive their statutory holiday pay which I believe is unfair.”

2.18	Following this, the claimant met Mr McDonald for his appeal meeting on 2 May 2013.  The transcript of that appeal was opened to us.  Mr McDonald made it clear that he was dealing only with the issue of the alleged unauthorised absence.  Reading that transcript it is clear that the person who spoke most during the meeting was Mr McDonald.  The claimant’s evidence was that he felt he was not given the chance to put his point across.  Certainly Mr McDonald makes it clear that he was not going to change the decision in relation to the claimant having a written warning.  It was the claimant’s case that he took an anxiety attack in the middle of this meeting.  Mr McDonald indicated that he had not seen any sign of the claimant having an anxiety attack, but the claimant said that at a certain point in the meeting he asked for a copy of some of the documentation including the written warning and said, “Can I have a copy of these and then I’ll go...”  It was his case that he “could not wait to get out of there” and that he was suffering from anxiety at this stage.  There were however a further five pages of transcript after this and a number of fairly forthright exchanges between the claimant and Mr McDonald, including the claimant making the allegation that, “nobody else has the balls to stand up for themselves basically”.  On the face of it, this does not appear to us to be the behaviour of someone suffering from an anxiety attack, and we are not satisfied that he was suffering from an anxiety attack at this time.

2.19	On 2 May 2013, a letter was issued to the claimant by Celine McDonald confirming the decision of Gary McDonald, that the decision to issue a written warning stands.

2.20	In the meantime, on 25 April 2013 Barry Morris had written to the claimant in relation to the question of holiday pay raised in the claimant’s letter of 19 April 2013.  In that letter he said that after discussion with Gary McDonald, Mr Donald denied any discussions with the claimant in February 2013 and was “unaware of your issue”.  Mr Morris set out the procedure in relation to applying for holiday and indicated that “as you have not worked from April 2014 you have no holiday entitlement”.  He went on to say he would discuss the matter further with the claimant on his own return from holiday.

2.21	The claimant’s resignation

	On 10 May 2013, the claimant wrote a letter of resignation to Gary and Celine McDonald.  The reasons for his resignation were that he felt he had been severely mistreated by management.  He said he could not handle “the constant fake allegations that are and had been made against me by the management” and the abusive language he received from Barry Morris and aggressive behaviour over a recent telephone call from Celine McDonald.  He also referred to a breakdown in communication and misunderstanding in relation to holiday request forms, management correcting statements from past meetings, “threats, etc”.

2.22	He asked for copies of all documentation in relation to his employment with the respondent.  He did not specifically raise the issue of payment for holidays taken during the previous three years.  He did not either mention the conduct of the appeal or his conversations with Mr McDonald.

2.23	Celine McDonald agreed that she had had a telephone call with the claimant on 8 May 2013.  She disagreed that this had been an aggressive phone call on her part.  The claimant indicated that Mrs McDonald had been aggressive to him on the telephone and then when he came off the telephone he was upset and distressed.  His mother attended to give evidence that she could hear Mrs McDonald’s voice over the telephone and believed it was aggressive in tone, but, she was not aware of what Mrs McDonald was saying, although she heard the claimant’s side of the conversation.  Celine McDonald indicated that the claimant had telephoned the office to ask if he was to come back to work or not; she discussed his rota with him and told him that he was on the rota for Saturday, 11 May 2013 from 6.00 pm to 10.00 pm.  She also discussed with him that he had previously been rota’ed for 27 April and she had only taken him off the rota at that stage because he said he would not be in.  There followed an exchange where the claimant said he had proof that Mrs McDonald had said that he would be suspended.  Mrs McDonald’s evidence was that the claimant indicated that Barry Morris was “a liar” and said that Mrs McDonald was becoming nasty.  She said that she apologised to him if that was the way he was interpreting her and that she was not being nasty.  The conversation finished when the claimant confirmed that he would be in on Saturday, 11 May, but in the event he submitted his resignation before that date.  It is our finding that the conversation took place.  The only record of it made close to the time is Celine McDonald’s note of the conversation and we accept that she did not set out to be confrontational with the claimant.  We also accept that the claimant challenged Mrs McDonald, in relation to the issue of suspension and Mr Morris’ behaviour, so that there was a dispute between them.

2.24	Following the claimant’s resignation he found new work with O2 on a part-time basis commencing on 2 September 2013.  The claimant works more hours with O2 and is paid at a higher hourly rate, so he has not suffered any further loss in earnings since that date.

2.25	It was the claimant’s case that shortly after the investigation and disciplinary matters commenced in April 2013, he suffered from anxiety which he said was the result of the severity of extreme stress and pressure caused by his employers.  He described symptoms of severe heart palpitations, lump in the throat, changes of blood pressure, dizziness, aches and pains and loss of sleep.  His evidence to the tribunal was that after a few days of experiencing these symptoms he went to his General Practitioner, concerned that he had heart problems.  However the report from his GP which was produced to the tribunal shows that the claimant first attended the Health Centre on 13 May 2014 i.e. after he resigned from his post.  The GP’s letter indicates that one of the main areas of dispute between the claimant and his employer was his working hours.  He had assignments which were due to be handed in, in connection with his course at that time.  His doctor prescribed him with a course of 10 mg beta blockers which lasted three weeks.  The claimant only visited his GP again on 30 September 2013 with a recurrence of his stress and anxiety and according to the GP’s letter he had not been back to see his GP since that date.  In September he was given a further three week course of tablets.

3.	THE RELEVANT LAW

3.1	We received submissions from both parties but have relied to a large extent on our own research in relation to these issues.  The right not to be unfairly dismissed is set out in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

3.2	In relation to constructive dismissal, which is pleaded in this case, the legislation is set out in Article 127 which provides as follows:-

	“127(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) –

	... (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate without notice by reason of the employer’s conduct.”

3.3	Harvey on Industrial Relations and Employment Law states that Division D1, Paragraph 403 as follows:

		“In order for the employee to be able to claim constructive dismissal four conditions must be met:-

(1)	There must be breach of contract by the employer.  This may be either an actual breach or an anticipatory breach.

(2)	That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.  A genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3)	The employee must leave in response to the breach not for some other, unconnected, reason.

(4)	He must not delay too long in terminating the contract in the response to the employer’s breach, otherwise he will be deemed to have waived the breach and agreed to vary the contract.”

3.4	If a tribunal reaches a finding that the claimant has been constructively dismissed it must then go on to consider whether the dismissal was fair or unfair.  It is important that a tribunal should first examine the contract of employment to see whether there has been a breach of an express term of the contract, whether written or oral.  An example of a breach upon which a claim of constructive dismissal might be founded includes a reduction in pay, a change in the nature of the job, a failure to follow the prescribed disciplinary procedure or an act of sex discrimination.  Implied terms of contract, including the term of the duty of implied trust and confidence, should only come into play (per Underhill J) in the event where there is no express term of the contract which has been breached.

3.5	The breach of contract must be repudiatory in nature to be sufficient to ground a claim of constructive dismissal, i.e. it must go to the heart of the contractual relationship between the parties.  Harvey comments that where the alleged breach of contract constitutes a series of acts, the cumulative effect of which amounts to the breach, the final act complained of must in some way contribute to the breach of contract.

3.6	In this particular case we have to consider whether, as the claimant asserted, he was constructively dismissed because of a breach of the duty of trust and confidence which should have existed between an employer and employee.  The claimant’s case as set out in his claim form was that the disciplinary procedure was stressful and that there was a breakdown in trust and confidence.  His letter of resignation to the respondents asserts that he resigned because of the fact that he had been “severely mistreated” by the management.  He refers to “constant fake accusations that are and have been made against me by management” but does not clarify exactly what these were and did not clarify this at tribunal either.  He refers then to the abusive language he received from Barry Morris and aggressive behaviour in a telephone call from Celine McDonald.  He also refers to a breakdown in communication and misunderstanding in relation to holiday request forms, management correcting statements from past meetings, “threats, etc”.  

3.7	Having heard the evidence in this case we are of the view that there was a fundamental breach of contract on the part of the employer in the case but we believe it was initially an express rather than an implied term of contract which was broken, i.e. that the employer had not paid the claimant for holidays at this time and had indeed refused to pay him for holidays.  We accept the claimant’s evidence that he had raised this issue with the employer in February 2013.  It certainly was raised again in the claimant’s letter of 19 April by the claimant to Gary McDonald.  The reply to that letter which was sent by Barry Morris to the claimant rejected the idea that there had been any discussions in February and set out the procedure for seeking holidays, rather than clarifying that the claimant was entitled paid holiday.  As the right to paid holidays is a statutory entitlement, this was effectively a refusal on the part of the employer to give the claimant a statutory entitlement and is therefore an express breach of contract.

3.8	In late February 2013 there was also the issue of the claimant’s lateness for work and the disciplinary procedure which was followed in relation to that.  The procedure that was followed did not comply with the statutory disciplinary and dismissal procedures set out in Schedule 2 to The Employment (Northern Ireland) Order 2003 in it that it did not comprise the proper three step procedure of a letter setting out the alleged misconduct, a disciplinary meeting and then an appeal.  Again we find that this is a breach of an express term of the contract of employment.

3.9	In relation to the disciplinary procedure which was followed over the claimant’s alleged unauthorised absence in April 2013, that procedure also appears to have been questionable.  While the three elements of the procedure required under the statutory disciplinary and dismissal procedures were certainly present, it is clear that the investigatory meeting which the claimant had with Barry Morris was somewhat aggressive in tone from Mr Morris’ point of view.  It is also clear to us from reading the transcript of the appeal meeting, that the appeal was not a proper or fair appeal because Mr McDonald had no intention from the outset of giving the claimant an open and fair hearing.  

3.10	At the appeal meeting Mr McDonald first of all made it clear that he was only dealing with the appeal in relation to the written warning for poor timekeeping and the unauthorised absence and not the other issues which the claimant had raised in his letter.  Mr McDonald effectively went through what had been already covered by Mr Morris and Mrs McDonald and reiterated the facts already found, the lack of a holiday request form from the claimant and the procedure in relation to the various warnings.  In the course of that meeting Mr McDonald actually noted that the claimant had got a verbal warning for being late on a number of occasions and was given a written warning for not attending his work.  The claimant at that point said he was still not accepting any of them to which Mr McDonald replied, “That is fine if you want to live in this bubble where you don’t accept things, that’s fine but I am telling you, you have a written warning and you have a verbal warning and after considering this you may have a final written warning.”  It therefore appears to us that Mr McDonald was in fact threatening to increase the penalty already imposed by Mrs McDonald.  There was clearly a vigorous discussion between the claimant and Mr McDonald.  The claimant appears to have misunderstood the position in relation to warnings and appears to have understood that he had to “accept” a warning, which is clearly not the case.  From the exchanges in the transcript it appears this was a rather aggressive discussion on the part of both parties.  We note also that the claimant’s demeanour and comments were not typical of what one might expect from a young man at a disciplinary appeal in that he said to Mr McDonald that “nobody else had the balls to stand up for themselves,” which was hardly diplomatic in the circumstances.

3.11	We are of the view in this case that Mr McDonald did not approach the appeal with an open mind, but that he was in fact determined that he would simply reinforce the penalty already imposed by his wife Celine McDonald.  We do not accept, from our reading of the transcript, that the claimant was given a proper opportunity to put forward his arguments in relation to his appeal.  We believe that the appeal was not a valid appeal in that Mr McDonald’s demeanour throughout shows a complete lack of openness to any possibility that the decision to impose a written warning might be reviewed, except to impose a heavier penalty.  We are also of the view that the claimant did not particularly help his own case in that he was clearly argumentative and put forward points in relation to Mr McDonald’s grammar and the disciplinary procedure, including asserting that he could not receive a written warning if he had not received a verbal warning, which is clearly not correct.

3.12	We are satisfied that the claimant’s resignation on 10 May 2013 was as a result of a series of events.  First, there was the respondent’s refusal to pay the claimant holiday pay and subsequently, there was the “lateness” disciplinary procedure, which did not follow the statutory minimum requirements.  Both of these matters are express breaches of contract.  These two matters, coupled with the misunderstanding over leave in April and the subsequent disciplinary procedure, led to the situation where the relationship between the claimant and the respondent had broken down.  We are satisfied that the claimant resigned in response to a chain of events, which started with the respondent’s failure to pay holiday pay, and that this issue coloured the relationship from February 2013 onwards.  We believe that the misunderstanding over leave in April 2013 was seized upon by the respondent as a way of trying to bring the claimant back into line.  That said, the respondent gave the claimant a written warning, which was not the most severe penalty it might have imposed for an unauthorised absence.  However, the language and conduct of, in particular, Mr Morris and Mr McDonald towards the claimant fell well short of appropriate conduct.  In particular, the comments from Mr Morris that he had plenty of applications for jobs and could get people in who wanted to work, could be seen as a veiled threat against the claimant.  Mr McDonald’s comments to the claimant prior to the appeal that “If I had my way, I’d put you out the door....”, coupled with his demeanour and comments to the claimant at the appeal, would give the clear impression that the relationship between the claimant and him had broken down badly.  In light of the respondent’s attitude, we can appreciate that any employee, particularly one who is young and inexperienced, could have felt vulnerable.  The claimant clearly reacted badly to that disciplinary procedure and ultimately resigned in relation to it.

3.13	We believe there are steps the claimant could have taken to clarify the position in relation to his leave in April, particularly as he was well aware that a new manager had come into post in late 2012.  The claimant never at any time in the course of the disciplinary procedure showed the respondent documents which were produced to the tribunal, namely airline tickets and a bank statement showing payment for the concert tickets.  It appears to us also that the claimant’s demeanour and attitude to his employers in relation to whether or not he would “accept” a warning was inappropriate and probably compounded the situation from their point of view.  However, on the balance of probabilities we are satisfied that the respondent’s failure to pay holiday pay and to follow the correct procedures in relation to the statutory disciplinary and dismissal procedure in February 2013, coupled with the stringent line taken by the employer in relation to the claimant’s absence in early April 2014 and its conduct of the disciplinary procedure which followed constituted a course of conduct which was a fundamental breach of the contract.  We are satisfied that failure to pay holiday pay and failure to follow the disciplinary procedure in February 2013 regarding the timekeeping issue were breaches of express terms and conditions of the claimant’s employment.  The manner of conducting the investigation by Mr Morris, and appeal in early May by Mr McDonald were, we believe, a breach of the duty of implied trust and confidence.  We are satisfied that all these acts contributed something to the repudiatory breach of contract and that, viewed objectively, they are capable cumulatively of being a fundamental and repudiatory breach of contract (Omilaju  v  Waltham Forest LBC [2005] EWCA Civ 1493).  The question remains as to whether the claimant resigned in response to these breaches and whether he delayed in resigning.

3.14	We are satisfied on the balance of probabilities that the claimant did resign in response to a series of events, starting with the refusal to pay him holiday pay and ending with the statutory dismissal procedures in May 2013.  We are conscious in this regard of the decision in Wright  v  North Ayrshire Council [2014] IRLR 4 where the Employment Appeal Tribunal indicated that where there was more than one reason why an employee left a job in a constructive dismissal case, the correct approach which was to examine whether any of them was a response to the breach and not to see which amongst them was the sole effective cause; the issue was whether the breach played a part in the resignation.  In this situation we are satisfied that all the breaches of contract set out above did play a part in the resignation.  Although the claimant did not specifically refer to the refusal of holiday pay in his resignation letter he did refer to a number of other issues, including the attitude of management and the “false accusations” made against him.  We are also satisfied that the claimant did not delay in resigning, in that he resigned on 9 May 2013, within a couple of weeks of the disciplinary procedure for unauthorised absence.  We are satisfied that the conduct of the disciplinary procedure contributed towards the repudiatory conduct of the respondent.

3.15	The question remains to whether or not the dismissal was fair or unfair.  In this situation the respondent has not argued that the dismissal was fair and no evidence has been adduced by them in this regard, they have simply argued that there was no breach of contract on their part.  Accordingly, it is our finding that the claimant’s constructive dismissal was unfair.

Public Interest Disclosure

3.16	The relevant law in relation to public interest disclosures is to be found in Article 67A and following of the 1996 Order.  The disclosures qualifying for protection are defined in Article 67B as follows:-

		“67B	(1)	In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following  -...

				(b)	that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject...

		67C	(1)	A qualifying disclosure is made in accordance with this article if the worker makes a disclosure in good faith  -

				(a)	to his employer; or

				(b)	where the worker reasonably believes that the relevant failure relates solely or mainly to  -

					(i)	conduct of a person other than his employer; or

					(ii)	any other matter for which a person other than his employer has legal responsibility, to that other person.”

3.17	The claimant alleged that he had been subjected to a detriment contrary to Article 70B of the 1996 Order on the grounds that he had made a protected disclosure namely, that he had requested paid holidays, to which he is entitled under the Working Time Regulations 1998 (as amended) (“the disclosure”).  He also alleged that he had been automatically unfairly dismissed contrary to Article 134A which provides that a dismissal is automatically unfair if the reason or, if more than one, the principal reason for the dismissal is that the employee made a protected disclosure.  This complex area of the law is dynamic, and we have derived much assistance from “Whistleblowing Law and Practice” (2nd Edition) by Bowers and Others (OUP, 2012) to which we refer below.  Article 70B provides as follows:-

		“70B	(1)	A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer on the ground that the worker has made a protected disclosure.

			(2)	...This article does not apply where

				(a)	the worker is an employee, and

				(b)	the detriment in question amounts to a dismissal (within the meaning of Part XI)...”

3.18	The claimant had made a protected disclosure under Article 67B(b) in that the claimant made an assertion to his employer that the respondent was failing to pay the claimant holiday pay to which he was entitled.  We are satisfied that this disclosure was information rather than a mere allegation.  (Cavendish Munro Risks Management Ltd  v  Geduld [2010] IRLR 325.)

3.19	We are conscious of the guidance given by Underhill P in London Borough of Harrow  v  Knight [2003] IRLR 140 and also the EAT in Blackbay Ventures Ltd  v  Gahir (UKEAT/0449/12/JOJ) in considering whether a protected disclosure has been made.  We are satisfied that the request for holiday pay by the claimant was an assertion of the fact that he had not been paid previously and that it was made in good faith, on the basis of information the claimant had obtained from the Citizens Advice Bureau.  We are also satisfied that the claimant reasonably believed the information to be true, as required by Article 67G of the 1996 Order.  Article 67G(1)(c) requires that the worker must, in addition, not make the disclosure for purposes of personal gain.  We are satisfied that the disclosure made by the claimant was not done for the purpose of personal gain, given that the payment sought was one to which he was entitled by law.

3.20	Article 67G(1)(d) requires that one of the conditions in Article 67G(2) is met.  In this case the most applicable condition is that set out in Article 67G(2)(a), namely:-

		“that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with Art 67F;”

3.21	The case put forward by the claimant in this respect was that he believed that if he raised a grievance in relation to his holiday pay his employer was likely to sack him.  He modified this in cross-examination to say that the CAB had told him to lodge a grievance in respect of Gary McDonald’s refusal to pay him holiday pay in February 2013 and had advised him that the employer “could try to get rid of me”.  The claimant could not recall if the CAB had advised him he might take action against the employer in this situation.

3.22	Automatically unfair dismissal under Article 134A of the 1996 Order

	The case was also put forward by the claimant that he was automatically unfairly dismissed contrary to Article 134A in that the principal reason for his dismissal was that he made the disclosure (see paragraph 3.20 above).  Bowers addresses the issue of dismissal for making a protected disclosure at Chapter 8.  The authors deal specifically with constructive dismissal at paragraph 8.15 and following.  Once the dismissal is established, it remains necessary to establish the reason for the dismissal and specifically, the reason for the conduct which the employee has shown amounted to a repudiatory breach of contract.  (Berriman  v  Delabole Slate Limited [1985] ICR 546 (A)).  Bowers notes:-

		“Again, it may be important to consider whether the conduct was by reason of the protected disclosure rather than merely related to it .... where an employee resigns in response to a failure to deal adequately with a protected disclosure, even if the employer’s failures give rise to a constructive dismissal claim, that is insufficient to establish an S.103A [the GB equivalent of Article 130A] claim unless it can also be established that the failures were by reason of the protected disclosures ....”

		“Following Berriman, the important question was not simply why the employee resigned but, crucially, what was the reason for the conduct in response to which (s)he resigned.”

3.23	Bowers also recognises that an additional potential complication in constructive dismissal cases is identifying the principal reason for dismissal where there are competing influences:-

		“....what if the employee establishes that s/he terminated the contract because of a series of acts and omissions of the employer which cumulatively was such as to lead to a breach of the implied terms of trust and confidence in the employer?  Do all of those acts or omissions have to be done for the reason or principal  reason that the employee made a protected disclosure? ....  Is it sufficient to ground a case of constructive dismissal contrary to [Art. 103A] that the last “relatively insignificant” act by the employer was a response to or by reason of the protected disclosure having been made when the rest of the chain of events upon which the employee relies had nothing to do with it, indeed perhaps preceded it having been made?”  (Bowers paragraph 8.17)

3.24	Bowers notes that this is a distinct question from the issue of whether the repudiatory breach is the cause of the employee leaving (see paragraph 3.14 above).  He states:-

		“Ultimately it will be a matter for the tribunal, as a question of fact, to assess whether the protected disclosure(s) was/were the principal reason.”

3.25	In the context of an Article 103A claim, we must therefore consider not just whether the claimant in this case was constructively dismissed, but whether the employer’s conduct was in response to or by reason of the protected disclosure and whether the principal reason for this behaviour was the claimant having made the disclosure.  We have referred above (paragraphs 3.7-3.12) to the course of events which occurred in this case and the three significant incidents which formed the chain of events leading to the claimant’s constructive dismissal, the first of which was the disclosure.  We therefore have to consider whether the conduct of the respondent towards the claimant was done for the principal reason that the claimant had made the disclosure.  The respondent conceded that its policy was not to pay holiday pay to student employees so the claimant did not get paid holidays.  The respondent did not specifically respond to that complaint, and this is in our view a breach of an express term of the claimant’s contract of employment.

3.26	The next issue which arose was the “disciplinary” in relation to the claimant’s lateness.  The reason for this was the claimant’s unpunctuality, of which a number of examples were quoted to us.  We have found that that disciplinary procedure was a breach of the statutory disciplinary and divisional procedure for the reasons set out at paragraph 3 above.  We believe however that this breach was caused entirely by the respondent’s ineptitude and was not a response to the disclosure.  We have also considered whether the decision to initiate a disciplinary procedure for the punctuality issue was because of the disclosure:  on balance, we do not believe that it was, principally because the claimant was late on a number of occasions and the disciplinary sanction imposed (a verbal warning) was not disproportionate.

3.27	The more complicated situation is that of the claimant’s “unauthorised absence” in early April 2013 and the disciplinary procedure which followed.  The conversation between Barry Morris and the claimant on 30 March 2013 in relation to the rota appears to have been confused on both sides, (see paragraph 2.19 above).  We note that in early April 2013 the respondent had no record of a holiday request for 2 and 4 April from the claimant and that the conversation of 30 March 2013 between the claimant and Barry Morris was unclear in its conclusions.  In the circumstances, we can appreciate why an investigation and subsequently, disciplinary proceedings were started, and we do not believe that the principal reason this occurred was because of the disclosure, but was because there had been what appeared to be an unauthorised absence.  However, as we have set out above, the manner of conducting this disciplinary procedure and in particular the attitude of Gary McDonald towards the claimant on 9 April 2013 and at the appeal on 2 May 2013 display a completely closed mind towards the claimant.  We believe that Mr McDonald’s language and attitude to the claimant were completely inappropriate (see paragraphs 2.12-2.20 and 3.9, 3.10 above), such as to breach the implied term of trust and confidence between employer and employee.  It is our view, further, that the principal reason for Mr McDonald’s demeanour towards the claimant was the disclosure, in that, as we have set out above at paragraph 3.11, we believed it coloured their relationship from February 2013 onwards.  On balance therefore, although there was a fair reason for commencing the disciplinary procedure in April 2013 because the confusion over leave was genuine, the manner in which the claimant was dealt with by Gary McDonald (including threats on 9 April that “If I’d my way, I’d put you out the door” and on 2 May to increase the written warning to a final written warning) demonstrate a negative attitude to the claimant which we believe stemmed from the disclosure.  We are satisfied that the principal reason for the respondent’s attitude to the claimant was the disclosure regarding holiday pay and accordingly that his dismissal was automatically unfair under Article 103A of the 1996 Order.

4.	COMPENSATION

4.1	Unfair Dismissal

	In light of our finding that the claimant has been unfairly constructively dismissed, we order the respondent to pay the claimant compensation in this regard.  As stated above, (paragraph 2.13) we are not satisfied that the claimant was suspended prior to his resignation.  We accept that it was his decision not to come back to work until the matter was resolved.  We are also aware that the claimant found another job in September 2013 working increased hours and being paid at a higher hourly rate than he was paid while working for the respondent.

4.2	We therefore award the claimant compensation for unfair dismissal as follows.  The claimant’s wage while working for the respondent was £4.98 per hour and he worked an average of 9 hours per week.  Accordingly his weekly wage was £44.82.

4.3	The claimant was employed by the respondent for three complete years prior to his dismissal.  We therefore order the respondent to pay to the claimant the following amounts:-

4.4	
1.	Basic Award			
				
	The claimant was aged 19 at the date of dismissal and therefore is entitled to ½ a week’s pay for each complete year’s service.  The calculation is therefore as follows:-			
				
	£44.82  x  ½  x  3  =  £67.23		£67.23	

2.	Loss of earnings from 10 May 2013 to 2 September 2013
i.e. 16 weeks  x  44.82  =  £717.12		£717.12	

3.	Loss of statutory rights  -  £400.00		£400.00	

			£1,184.35	

4.5	The schedule of loss prepared by the claimant includes a claim for failure to provide written terms and conditions of employment, but it is clear on the claimant’s own evidence that written terms and conditions were provided to the claimant in February 2013.  This case originally included a claim for payment for holiday pay which we were advised had been dealt with prior to the commencement of the case.

4.6	Detriment regarding Public Interest Disclosure

	The claimant has made a claim of detriment for damages for injury to feelings in relation to detriment he alleges he suffered under Article 70B of the Public Interest Disclosure section of the 1996 Order.

4.7	Detriment is not defined in the Employment Rights (NI) Order 1996, but on the basis of the established case law, there now seems to be consensus that there must be a disadvantage to the employee which has arisen within the employment field.  This may be a disadvantage in the circumstances in which the employee had thereafter to work following the alleged act or failure to act by his employer.  In DeSouza  v  Automobile Association [1986] ICR 514 the Court of Appeal held that there would only be a detriment if the employee was, and a reasonable employee would be, disadvantaged.  This approach was adopted by the Employment Appeal Tribunal in Tapere  v  South London and Maudsley NHS Trust [2009] ICR 1563.  The detriment must have been suffered “on the ground that” the worker made a protected disclosure which involves identifying the reason or reasons for the act or deliberate failure to act on the part of the employer.  The test we should apply is whether the protected disclosure was a significant influence on the act or deliberate failure to act (NHS Manchester  v  Fecitt and Others [2011] EWCA Civ 1190).  The focus is on the mental processes, conscious or subconscious of the person whose act or deliberate failure to act is in question and as such it is to be distinguished from test of causation which focuses on the consequences attributable to an act or failure to act.

4.8	There is an issue as to whether the claimant in this case may claim for injury to feelings in respect of detriment where we have already made a finding that he has been automatically unfairly dismissed.  In Dunnachie  v  Kingston-upon-Hull City Council [2004] IRLR 272 the House of Lords again confirmed that tribunals may not make awards for compensation for injury to feelings in unfair dismissal cases.  However, in this case, as in many similar claims, the dividing line between detriment and dismissal is a narrow one.  As Bowers recognises, because there can only be an injury to feelings award for detriment claims, it becomes important to identify what is regarded as a part of the dismissal claim and what constitutes detriment short of dismissal (see paragraph 9.46).  In a constructive dismissal claim, such as the current case, the issue arises as to whether the repudiatory conduct of the employer can lead to an Article 70B detriment claim or it is only part of the dismissal and so only compensatable under the unfair dismissal rules.  In Melia  v  Magna Kansei [2006] IRLR 117, it was clarified that in both of these instances a claim can proceed as a detriment claim, alongside a claim for unfair dismissal for losses arising out of the dismissal itself.  The Court of Appeal found that if the detriment could not be compensated under the unfair dismissal proceedings principles, because it was not a loss sustained in consequence of the dismissal, then there was nothing to take it out of the ambit of Article 70B and the relevant provisions in Article 72 of the 1996 Order apply.  In Melia the Court of Appeal found that Mr Melia was entitled to claim for injury to feelings right up to the date of his resignation in November 2001.

4.9	In relation to the detriment suffered by the claimant, Mr O’Neill made a number of assertions of detriment allegedly caused to the claimant.  First of all, he asserted that the claimant was “picked on” in relation to uniform policy because he asked for holiday pay, but this is clearly incorrect as the claimant was queried about his uniform in January and did not raise the issue of holiday pay until February.  Mr O’Neill also raised some points which were not adduced in evidence (eg, the claimant being told not to wear a leather jacket as it was not part of uniform when he had to work outside in February) and a number of matters where Mr O’Neill suggests the respondent acted “maliciously” in “fabricating” evidence.  We did not see evidence of this, apart from some question over the verbal warning document produced by the respondent and when it was actually completed.

4.10	There was clearly confusion in relation to the claimant’s leave in April and we can see that, in the absence of holiday request forms, it appeared to be an unauthorised absence, so that the respondent was entitled to deal with it as a disciplinary matter.  Our issue in relation to that disciplinary process is not the decision to take it, or even the penalty (see paragraphs 3.12, 3.13 and 3.27 above), but the conduct of the investigation and the appeal, which in our view was not an open and fair appeal.  While we accept that the claimant felt vulnerable after the appeal and some of his other conversations with Mr Morris and Mr McDonald, we do not accept that the claimant felt threatened and bullied by Mr Morris and Mr McDonald to the extent he claims:  his part in the meetings with these gentlemen is recorded in the transcripts and it is clear that the claimant was well able to assert himself.  We agree however that Mr Morris and Mr McDonald both spoke to the claimant in an completely inappropriate way which is not conducive to good industrial relations.  While the claimant’s attitude was not perfect by any means, we believe there is a responsibility on the part of an employer, whether personally or through his manager, to act reasonably and in particular not to make unfounded hints or threats about getting rid of staff.  We can understand that this left the claimant feeling anxious about the future of his job.  Mr O’Neill also asserted the claimant suffered detriment by being suspended.  As found above (paragraph 2.16) we are not satisfied that the claimant was suspended, and so we find he did not suffer detriment in this respect.

4.11	We were not satisfied from the evidence given by the claimant and from his GP report that the claimant suffered the severe type of upset and anxiety which he claimed because of his experiences with his employer.  At the time the claimant was in the process of going through assessments and exams and this seems to have been a large part of what he recounted to his doctor.  The claimant claimed he had suffered an anxiety attack during a meeting with Gary McDonald, but the transcript of the conversation indicates that the claimant showed little signs of an anxiety attack in that he was well able to stand up for himself and be quite vociferous and outspoken in the comments that he made.  We also note that the claimant did not attend his GP until 13 May, some days after he resigned.  We are satisfied that an award for injury to feelings is appropriate because of the inappropriate way the claimant was dealt with by Messrs Morris and McDonald  but that any award for injury to feelings should be at the lower end of the Vento scale, and accordingly we order the respondent to pay to the claimant the sum of £1,000.00 in respect of injury to feelings.

Unlawful Indirect Age Discrimination

4.12	The legislation in relation to indirect age discrimination is to be found in Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 and provides as follows:-

		“3	(1)	For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if:-

			(a)	on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons; or

			(b)	A applies to B a provision criterion or practice which he applies or would apply equally to persons not of the same age group as B, but:-

			(i)	which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons; and

			(ii)	which puts B at that disadvantage,

				and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

			(c)	comparison at B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

			(3)	In this regulation:-

				“Age group” means group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and (b) the reference in paragraph (1)(a) to B’s age, includes B’s apparent age.”

4.13	It was the claimant’s case that the respondent applied to him a provision criterion or practice, namely, that they had a practice of not paying holiday pay to students, and it was the claimant’s case that this was discrimination on grounds of age.  However, in neither of the statements put forward by the claimant did he spell out how he believed he had been discriminated against on grounds of age or that the policy of not paying holiday pay applied to people of all ages but had disparate impact on the claimant or on people of his age group, as required by Regulation 3.

4.14	We were advised that it was conceded by the respondent at a Case Management Discussion that they did not pay holiday pay to students but no evidence to this effect was given to the tribunal.  No concession to this effect was made to this effect before the tribunal although it was referred to by Mr Martin in his submissions for the respondent.  However, the only evidence to which Mr O’Neill referred in his submissions was the evidence given by Áine Burns that she had not been paid holiday pay by the claimant.  She appeared to be of a similar age to the claimant when she attended to give evidence, but her age was not actually stated in her witness statement.  Nor did she suggest that she was a student.  Her witness statement effectively said that she was not paid for holiday pay while working for Supervalu and that although she requested holidays she was never granted them.  This is effectively the height of the claimant’s case in relation to the evidence adduced.  No evidence was produced to us in relation to the breakdown of age range of other staff, nor was any evidence was produced to show that other staff were paid holiday pay while the claimant or people of a similar age group to him were not.  It is therefore our finding that we do not have sufficient evidence before us on which to make any finding in this matter.  We are aware that it is for the claimant to establish his case.  The burden of proof is set out in Regulation 42 of the 2006 Regulations.  The claimant is required to prove facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent has committed an act of unlawful age discrimination against the respondent.  In this case, we do not have any evidence before us which would justify such a finding and accordingly the claim of unlawful age discrimination is dismissed.

4.15	In summary therefore we make the following findings:-

	(1)	The claimant was unfairly constructively dismissed by the respondent and we order the respondent to pay the claimant the sum of £1,184.35.

	(2)	The claimant’s dismissal was automatically unfair contrary to Article 103A of the 1996 Order for which he will be compensated by our order in the preceding paragraph.

	(3)	The claimant suffered detriment as a result of having made a protected disclosure to the respondent under the public interest disclosure legislation and we order the respondent to pay to the claimant the sum of £1,000.00 in respect of injury to feelings.
	
	(4)	The claimant was not discriminated against on grounds of his age and this element of his claim is dismissed.

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

Employment Judge:       

Date and place of hearing:  19, 20, 21 May 2014 and 6 June 2014, Belfast.

Date decision recorded in register and issued to parties: