FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00115/00FET

CLAIMANT:			Claire Nellis                                                                                    		

RESPONDENT:		South East Belfast H&SS Trust                                                       

DECISION
The unanimous decision of the Tribunal is that the claim is dismissed.

Constitution of Tribunal:

Chairman:		Mrs Watson

Members:		Mrs Adams
			Mr Barbour

Appearances:

The claimant was represented by Ms Sally Greene of NIPSA

The respondent was represented by Mr Alistair Devlin Barrister-at-Law, instructed by Brangam and Bagnall, Solicitors.

Issues for determination

1.	There had been three Case Management Discussions in this claim which had been lodged on 3 March 2000, over six years ago.  These were on 6 July 2005, 16 August 2005 and 23 September 2005. The issues eventually identified were;

(i)	Whether the claimant was less favourably treated than Grade 5s, whether temporarily promoted or substantive, by the failure of the respondent to offer the claimant the opportunity to apply for a Grade 5 position of Personnel Officer, Grade 5, Continuous Improvement and Equality Schemes, and

(ii)	Whether the claimant was less favourably treated than Barbara Cuthbertson in not being offered the post.

2.	At the Case Management Discussion on 23 September 2005, the President had Ordered, inter alia, that an agreed bundle of all documents to be relied on at the hearing was to be lodged at the Office of the Tribunals by Friday 17 February 2006. The hearing was delayed for some time because the respondent objected to the inclusion of several items in the proposed bundle and also wanted other documents to be included. The tribunal was informed that the respondent had only received a copy of the proposed bundle on 25 August 2006, a few days before the hearing, giving no proper prior opportunity for agreement as Ordered.

3.	The President had also Ordered that witness statements were to be complete statements of evidence to be given at the tribunal. Witnesses would not be permitted to add any evidence without consent of the tribunal which was only to be given ‘where there is good reason for doing so’.

4.	Before the hearing could begin, Mr Devlin raised a concern he had that the claimant intended to raise another issue of indirect discrimination. The claimant’s representative, Ms Greene confirmed that the evidence to be relied on related to the religious composition of staff who had been emailed with information relating to the vacancy in question and that she had referred to the case of McCausland -v- Dungannon District Council, an indirect discrimination claim, in her bundle, because of the religious imbalance in the respondent’s workforce. The tribunal made it clear that the papers to date had related to a claim of direct discrimination and that the respondent would only have to meet a claim on the above agreed issues. 

5.	In her oral evidence, the claimant referred to an e-mail which had been sent to several persons to whom the claimant compared herself. The tribunal asked for the details of the religious affiliation of these comparators. Despite her claim that this information had been asked for three times without response, it became clear that this information had not been sought from the respondent by Ms Greene.

6.	On behalf of the respondent,  Mr Devlin claimed that no information relating to the religious affiliation of the comparators had ever been sought and there was a as a result, a deficiency in the basic, fundamental element of proof required in a direct discrimination claim, i.e. the difference in religious affiliation between this claimant and her comparators. He submitted that the claimant could not even approach making the case that unlawful discrimination ‘could’ have taken place as required by the guidelines in the case of Igen -v- Wong [2005] IRLR 514. In such a situation, according to Mr Devlin, the claim must fail. It was not for the respondent to adduce such fundamental proofs and he did not propose to do so. 

7.	Ms Greene was given time to produce the documentation relating to the three occasions she said this information had been requested. The papers provided for the tribunal referred to the ‘…statistical breakdown of community background’ of the staff of the respondent. The only request for religious affiliation of those identified as comparators was in a letter from the Equality Commission to assist them in their consideration of an application for assistance. This request had not been repeated in the questions procedure or any other requests for information or indeed at any of the Case Management Discussions.  

8.	Ms Greene sought assistance from the tribunal in requesting the information but Mr Devlin made it clear that he would object to being required to produce such a basic element of proof in the case when no effort had been made in the past 6 years to do so. Taking into account the President’s Order of 23 September 2005 at Paragraph 1 (d) that further evidence would be permitted only where there was good reason for doing so, the tribunal declined to Order the respondent to provide the information requested by Ms Greene. 

9.	The tribunal concluded that there was no evidence before us from which the religious affiliation of the comparators could be ascertained. As a result, no prima facie case of direct religious discrimination could be made out. The tribunal therefore dismissed the claim. 

	

Chairman:

Date and place of hearing:	29 August 2006, Belfast.   

Date decision recorded in register and issued to parties: