FAIR EMPLOYMENT TRIBUNAL

CASE REF:   90/02 FET

CLAIMANT:		Leontia Kennedy

RESPONDENTS:		1.	Down Lisburn Trust
2.	Alan Finn
3.	Eileen Harvey

CASE REFS:   60/02 FET
318/02

CLAIMANT:		Jim Smyth

RESPONDENT:		Down Lisburn Trust

DECISION

The unanimous decision of the Tribunal is as follows:-

(i)	in Case Reference No: 90/02 FET, that the respondents unlawfully discriminated against the claimant, Leontia Kennedy, on the ground of her religious belief;

(ii)	in Case Reference No: 90/02 FET, that the third-named respondent unlawfully discriminated against the claimant, Leontia Kennedy, on the ground of her religious belief in:-

(a)	failing to provide book allowances; and

(b)	in failing to authorise 100% funding for a post-graduate diploma course;

(iii)	in Case Reference No: 60/02 FET, that the respondent Trust unlawfully discriminated against the claimant, Jim Smyth, on the ground of his religious belief;

(iv)	in Case Reference No: 318/02, that the respondent Trust unlawfully discriminated against the claimant, Jim Smyth, on the ground of his sex.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Mrs M Heaney
			Mr G Jones

Appearances:
The claimants were represented by Ms S Bradley, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.
The respondents were represented by Mr J Park, Barrister-at-Law, instructed by Carson McDowell, Solicitors.

1.	The claims brought by Ms Kennedy and Mr Smyth were consolidated by Order of the Tribunal made on 18 March 2004, with the consent of the parties.

2.	(i)	The claimants, who at the time of the events giving rise to their claims were employees of the respondent Down Lisburn Trust, make various allegations against the named respondents.	
			
	(ii)	The claimant, Leontia Kennedy, by an application presented to the Fair Employment Tribunal on 26 February 2002 alleged:-	

(a)	less favourable treatment by the respondents, Down Lisburn Trust and Alan Finn, on the ground of religious belief, in relation to the arrangements whereby her identified comparator, Eileen Harvey, a Protestant came to fill the post of Clinical Services Manager, Mental Health;

(b)	discrimination by Eileen Harvey on the grounds of religious belief in respect of failing to permit the claimant acting-up opportunities, failure to provide cover for the claimant while she was undertaking a practice teaching award course, failure to authorise appropriate funding for a post-graduate course attended by the claimant, failure to process book allowances, and failure to forward the claimant’s name as a member of a Crisis Support Team.

	(iii)	The claimant, Mr Smyth, by an application presented to the Fair Employment Tribunal on 28 January 2002 makes a similar allegation to Ms Kennedy as at (ii) (a) above.  He also alleges that he suffered discrimination on the ground of sex in relation to Eileen Harvey’s post of Clinical Services Manager (Mental Health).

He additionally alleges that in relation to the post of Clinical Services Manager, Head of Occupational Therapy, which was filled by a Roman Catholic female, Maria McManus, that he was subjected to unlawful discrimination on the ground of sex.	

3.	In order to determine these matters, the Tribunal heard evidence from both claimants, and from the following witnesses on behalf of the respondents -            Mr Alan Finn, who was Director of Mental Health Services and Nursing with the respondent Trust from September 1996 to March 2002; Mr Desi Bannon, the Trust’s Commissioning and Performance Manager at the relevant time; Mrs Eileen Harvey, Clinical Services Manager (Mental Health); and Mrs Noeleen McCreanor, Human Resources Manager, Down Lisburn Trust.  The Tribunal also considered documentary evidence – in excess of 650 pages - submitted by the parties.  The Tribunal has had regard to that documentary evidence in its entirety, and reference will be made to certain specific documents in the course of this decision.

4.	The Tribunal finds the facts set out in the following paragraphs in relation to the claimants’ complaints in respect of the posts of Clinical Services Manager, Mental Health, and Clinical Services Manager/Head of OT.

5.	(i)	The claimant, Ms Kennedy, a Roman Catholic, commenced work with the respondent Trust in 1990 as a social worker with the Community Mental Health team in Lisburn.  She held various posts and secondments within the Trust at other locations including that of Project Manager for Information Technology at Mental Health Services.  By March 2001 she had returned to Lisburn as community mental health social worker, on a protected senior social worker salary.	
			
	(ii)	The claimant, Mr Smyth, who is also a Roman Catholic, started work with Down Lisburn Trust in February 1980 as a social worker.  From June of that year until the date of his application to the Tribunal he held the post of Senior Social Worker/Team Leader.  From January 2004 he has been the Senior Social Worker for the Down Sector of the respondent Trust’s operations.

In fulfilling these roles, Mr Smyth has had wide management and professional responsibility.

In addition to being a qualified and approved social worker, Mr Smyth also has two nursing qualifications, that of Registered Mental Nurse (RMN) and that of State Registered Nurse (SRN).	
			
6.	(i)	Towards the end of 2001 (November in the case of Mr Smyth and 3 December in the case of Ms Kennedy) the claimants became aware that two Clinical Services Manager posts within the respondent Trust had been filled by two other employees.

An Organisational Management Structure chart, dated November 2001, relating to the Directorate of Mental Health showed Eileen Harvey, a Protestant, as ‘Clinical Services Manager, Community Health Services/ Down Lead Social Worker’ and Maria McManus, a Roman Catholic, as ‘Clinical Services Manager, Head OT (Occupational Therapy) Resource Centres and Vocational Rehab/Lead OT’.	
			
	(ii)	There was no recruitment exercise as such when Eileen Harvey and Maria McManus were re-designated as Clinical Services Managers, or slotted into the posts, according to the perspectives of the claimants and respondents respectively.	
			
	(iii)	In the period from 1999 – 2000 three Clinical Services Managers (Maura Milligan, Hazel Rice, and Frances Gibson) had left the Trust, and a previous organisation chart, dated May 2001, in relation to the Directorate of Mental Health, had shown two Clinical Services Managers posts as vacant.  These posts existed until September 2001, when, according to the respondents’ witnesses, the Chief Executive of the Trust decided that there were insufficient resources to fill them.  There are, however, no minutes relating to the taking of any such decision, and the Chief Executive was not called by the respondents to give evidence.	
			
7.	(i)	Eileen Harvey, who became Clinical Services Manager, Mental Health, had joined Down Lisburn Trust in 1989 after graduating from the Queen’s University of Belfast.  By 1998 she was a Senior Social Worker with Community Services.	
			
	(ii)	In 1999, she applied, successfully, for a post of Project Manager.  This post was trawled internally in May 1999.  Mrs Harvey was the only applicant for the post and was appointed at spine point 20.  The post was trawled as a time limited secondment, from 19 July 1999 to 18 January 2001.  There was no indication in the trawl notice that the post holder would be a member of the Mental Health Senior Management Team, and no requirement of managerial experience was stipulated.	
			
	(iii)	The appointment procedure for the post breached the Trust’s procedures for selection and recruitment.  The Board for the post should have consisted of the Chief Executive and two others of director status.  Hazel Gibson, who had manager status, was a member of the Board. She was a Protestant.  There was provision to vary the composition of the panel, but there was no record of this being done.  The respondents attribute it to human error.  The claimants pointed to this as indication of a shortage of Protestants and females at the appropriate grade, and suggest that Eileen Harvey’s appointment was an attempt to redress the balance.

We find the evidence on this point inconclusive.  While some of the figures made available to us might suggest an under-representation of Protestants and females at senior levels, there is no evidence that it caused any problems in assembling interview panels, for these could be drawn from other Directorates within the Trust.	
			
	(iv)	Ms Kennedy and Mr Smyth did not apply for the Project Manager post.  Because it was time limited, neither saw it as enhancing his or her career prospects.	

	(v)	The largest part of the project, which related to the closure of a hospital ward in the Downshire Hospital, Downpatrick, and the re-settling of dementia patients into a new hospital extended over a period of 15 months, was discontinued pending a review of hospital services by the Department of Health.	
			
	(vi)	When the period of secondment came to an end in January 2001, it was extended to 19 June 2001, and then again to 18 September 2001.  These extensions were made by Alan Finn, and there are no records of any consultations or discussions relating to them.	
			
	(vii)	Mrs Harvey’s post as Project Manager did include other tasks in addition to those mentioned above.  She was to act as Lead Social Worker for Mental Health Services, as Lead Approved Social Worker in Down Lisburn Trust, and to be responsible for setting up Rehabilitation Services in the Down Sector.

It is also clear that when the main tasks were terminated, she was afterwards given additional tasks.  According to the respondents, extensions were made to Eileen Harvey’s periods of secondment to enable her to continue to assist the Senior Management Team, who were under pressure, to carry out existing tasks.  However, on the evidence of Mrs Harvey, it appears that she was asked by Alan Finn if she would take on management responsibility for the community health team in June 2001.  This was after her initial period of secondment had expired.	
			
8.	(i)	In October 2001, after a period of two years and three months as Project Manager she was confirmed in her post, which was, according to the respondents’ witnesses, re-designated and renamed as a Clinical Services Manager post.

The Trust’s case was that they took this step, ‘enhancing’ and ‘reconfiguring’ her duties because ongoing financial pressures left them with no option to do otherwise.	
			
	(ii)	In confirming Eileen Harvey in her post, with the title of Community Services Manager to reflect her broadened role, the Trust purported to rely on the Down Lisburn Trust Joint Council Agreement of 28 March 2000.  In the minutes of this meeting under the heading ‘Secondment and Acting-up’ it is stated:-	

“[I]t was agreed that staff who have been seconded to posts or who are subject to any ‘Acting-up’ arrangement which has been extended beyond two years should with the agreement of the staff member concerned and subject to confirmation that no other person held a contract for the post, be offered their current post on a substantive basis.”

	(iii)	There is, however, a further memo from Alan Best, the Trust’s Director of Human Resources, dated 11 April 2000.  This was headed ‘Secondment and Acting-up arrangements’, and was sent to all Human Resources Managers within the Trust.  After referring to the minute of the meeting of 28 March 2000, it goes on to point out that it was also agreed that all possible efforts should be made to restrict any future secondment or acting-up arrangements to a period not exceeding 12 months and that every attempt would be made to introduce such temporary arrangements for a shorter period’.  It continued:-	

“I have asked the Human Resources Manager, by copy of this memo, to take the necessary action to identify the staff concerned, and with your agreement, offer a revised contract.  There may be circumstances either where a secondment was intended to be time limited and is drawing to an end or where the post covered by secondment or an acting-up arrangement is held on a substantive basis by another member of staff.  In such circumstances I have asked the Human Resources Manager concerned to review the particular case with me.”

	(iv)	This memo written by Mr Best was not made available to the claimants despite requests, and Orders for Discovery.  Although it loomed large in these proceedings, and was of significance to them, no satisfactory explanation has been provided for the failure to produce it.

Alan Best, the memo’s author, was not called to give evidence as to the application of the Joint Council Agreement in circumstances where the parties differed on its interpretation.  For our part we have difficulty in accepting that Eileen Harvey’s re-designation as Clinical Services Manager was confirmation in her ‘current’ post.	
			
	(v)	The respondents contend that a review of Eileen Harvey’s position was carried out by Alan Best, in accordance with the Joint Council Agreement.  However, there are no minutes or records of any such review taking place, and Alan Best was not called to give evidence in relation to this matter.	
			
9.	(i)	There were differences between Eileen Harvey’s post as Clinical Services Manager and that of Project Manager.

This is evidenced by the different job descriptions and personnel specifications.  While we incline to the view that the claimants have tended to underestimate the role and responsibilities of Project Manager, we nonetheless accept that it was not on a par with the post of Clinical Services Manager.

There is a difference, not only between the parties, but between the claimants as to whether the post of Project Manager was part of the Senior Management Team.  There is some indication from trawl notices, job descriptions and personnel specifications, and organisational chart that it was not.  However, notwithstanding this, it seems to us in any event the post of Clinical Services Manager was seen as a more important post, and as having greater status.	
			
	(ii)	On 15 November 2001, after being confirmed in post as Clinical Services Manager, Ms Harvey was issued with a new contract of employment.  This included a requirement to undergo a six month probationary period.  This is not consistent with her doing the same job as she had been doing for a period in excess of two years.  Although the document has the appearance of a standard form document, it is specifically adapted to Eileen Harvey’s situation, and includes a form of acceptance, dated 26 November 2001 and refers to an agreed job description.  Although the respondents’ witnesses gave evidence that these documents were draft documents, and had not been finalised, it is clear they were issued to Mrs Harvey.	
			
	(iii)	In effect, Eileen Harvey was slotted into a new post without it being trawled or advertised in any way, or without any proper recruitment exercise being undertaken.  Had the post been trawled, we consider that either of the claimants would have stood a chance of success.  We are satisfied having regard to the respective qualifications and experience that both were arguably better qualified.

Mrs Harvey had no management experience when appointed Project Manager.  Ms Kennedy had a management qualification, the Diploma in Supervisory Management, and did have management experience, albeit geared to an IT project in 1992.

Mr Smyth, it is clear, had long and wide-ranging management experience.	

10.	(i)	In relation to the post of Clinical Services Manager/Head OT, which came to be occupied by Maria McManus, the situation is similar.  Again, there was no internal trawl or any recruitment exercise and Mr Smyth, who complains in this case, did not have the opportunity to apply for it.  In this instance, the Trust’s case is again that the financial pressures already referred to came into play.	
			
	(ii)	Ms McManus had been appointed Head of Occupational Therapy in October 1998, and she took on additional responsibilities in November 2001, and was given her new designation in the Organisation Structure Management Chart of that date.

A post with that designation had not previously existed.	
			
	(iii)	Again, we find that this was a totally different post from Maria McManus’s previous post of Head OT.  Significant additional duties were added, and a new job description was drafted.

If it had merely been a case of adding new tasks to an existing post, it seems to us that it would have been unusual to change the job title.  Indeed Ms McManus could have been asked to take an additional duties without appointing her Clinical Services Manager.	
			
	(iv)	The post of Clinical Services Manager/Head OT was described in the job description as part of the Senior Management Team, whereas this was not the case with the Head of Occupational Therapy.

The job description for the post, albeit in draft form, made it clear that the post holder headed up an interdisciplinary team.  The post holder would have major responsibilities outside Occupational Therapy including supervision of nurses and social workers.	
			
11.	(i)	The failure to trawl the post and invite applications in an open competition again meant that, in this case also, Mr Smyth did not have the opportunity to apply.	
			
	(ii)	We are satisfied that his qualifications and, in particular, his wide management experience are superior to those of Maria McManus.  He had both nursing and social work qualifications (the former appear to be dormant, but we are satisfied that it was a technical matter to revive them and be restored to the appropriate register).  He did not, of course, have an Occupational Therapy qualification, but he could have managed the Occupational Therapy staff operationally, as it appears to have been contemplated that Maria McManus, an Occupational Therapist, with no nursing or social work qualifications, could have done with nurses and social workers.	
			
12.	(i)	The relevant law in relation to these claims is to be found in Article 19(1)(a) and (b) of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 and in Article 8(1) and (2) of the Sex Discrimination (Northern Ireland) Order 1976, as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001.

These provisions deal with discrimination in the employment field, and make it unlawful to discriminate on the grounds of religious belief or sex respectively.	
			
	(ii)	Regulations 24 of the 2003 Regulations inserts a new Section 38A in the 1998 Order.  It deals with the burden of proof and provides:-	

“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	has committed an act of unlawful discrimination or unlawful harassment against the complainant; or

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant;

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act.”

		Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 (as substituted by the 2001 Regulations) makes similar provision.	
			
	(iii)	Article 44(2)(b) of the 1998 Order and Article 72(2)(b) of the 1976 Order are in similar terms, and make provision for a statutory questionnaire procedure to help claimants in discrimination cases obtain information.  The former provision provides:-	

“[I]f it appears to … the Tribunal that the respondent deliberately and without reasonable cause committed to reply within a reasonable period or that his reply is evasive or equivocal, … the Tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he had committed an unlawful act.”

13.	(i)	In Igen Ltd (formerly Leeds Careers Guidance) and Others  v  Wong; Chamberlain Solicitors and Another  v  Emokpae; and Brunel   University  v  Webster [2005] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination (it is not disputed by either party that this guidance is also applicable to Fair Employment cases).  It considered, and approved with some revision earlier guidance given by the Employment Appeal Tribunal in Barton  v  Investec Henderson Crosthwaite Securities Ltd.  This guidance is now set  out at an Annex to the judgment in the Igen case, op cit pp 269, 270.  Consequently, we do not set it out, but we have taken it fully into account.	
			
	(ii)	In short, the claimant must prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination.  The Tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found.  Such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant code of practice, or from failure to discover documents or call an essential witness.

If the claimant does prove facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent.  To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed grounds (here religion and sex) for no discrimination whatsoever is compatible with the Burden of Proof Directive.  The Tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex (or religious belief) was not a ground for the treatment in question.  Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, it will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or the relevant Code of Practice.	
			
14.	(i)	Having considered the evidence and the relevant law in this case and having regard to the helpful submissions of counsel, the Tribunal now reaches the following conclusions.	
			
	(ii)	At the outset of his submissions, Mr Park BL for the respondents, pointed out each claimant was required to select a suitable comparator.  Both claimants selected Mrs Harvey insofar as their allegations of discrimination on the ground of religious belief are concerned, and Mr Smyth selected Maria McManus in respect of his claim that he was discriminated against on the ground of his sex.  Mr Park went on to point out that in recent cases the courts had adopted a more stringent approach to the issue of comparators, and submitted that the comparators relied on by the claimants were not appropriate.

However, we accept the submission by Ms Bradley BL, for the claimants, that the comparators identified are appropriate comparators in those respects which are relevant.  These cases relate, in part, to the arrangements made by the respondent employer for the purposes of determining who should be offered employment.  In these circumstances there will never be an exact comparator, in the sense that two or more people applying for a post will never have actually the same attributes in terms of qualifications, experience, personal skills.

Some of the differences alluded to between Eileen Harvey and Maria McManus, on the one hand, and the claimants on the other hand, are explicable by the fact that they were acquired by the former in their new posts.

What is relevant here are the facts that the claimants were employees within the Trust, who would have applied for the posts had they been trawled, and all of whom, we are satisfied, were qualified for the posts.	
			
	(iii)	The respondents also contend that no issue of less favourable treatment arises because, although it was open to them to do so, neither claimant applied for the post of Project Manager, when it was originally trawled in May 1999.

However, although the appointment of Eileen Harvey, to the Project Manager’s post was the starting point for the chain of events which led to these claims, the complaint of the claimants is in respect of less favourable treatment in relation to the Community Service Manager posts.	
			
15.	(i)	We are satisfied in this case that the claimants have proved, on the balance of probabilities, facts from which the Tribunal could conclude in the absence of adequate explanations from the respondents, that the latter have committed acts of discrimination.

We are satisfied that there were two vacant posts in the Trust.  These were filled without any recruitment competition, and that the claimants did not have the opportunity to apply for, and be considered, for those posts, with the result that they were disadvantaged.

We draw inferences of discrimination from the following matters:-	

(a)	The respondents failed to take into account the provision of the relevant Code of Practice:-

Section 4.7 of the Equality Commission’s Code of Practice states as follows:-

“[I]t is recommended that longer term temporary vacancies should be advertised in accordance with the general guidance contained in this Code … These vacancies should be filled in accordance with the principle of equality of opportunity and in a manner consistent in the Code.  Temporary vacancies may provide opportunities for secondment or acting-up, which could be part of a positive action strategy.  It is important that the principle of equality of opportunity is adhered to in providing this type of career development.”

Section 4.10 of the Code recommends that emergency vacancies should be filled by way of contact with the widest pool of applicants and cautions against the pitfalls of informal methods of recruitment.  The Fair Employment Code of Practice, at paragraph 5.5 states that the use of applications for one job for the purpose of filling another is to be avoided.

(b)	The respondents’ failure to call Alan Best, Director of Human Resources to explain the circumstances surrounding the decision not to fill the vacant Clinical Services Manager posts.  

It was the respondents’ case that at a meeting on 23 September 2001, of which there are no minutes, a decision was taken by the Chief Executive not to fill these posts because of financial pressures.  This was a matter of crucial importance in the case.  In Lynch  v  Ministry of Defence [1983] NI 216 it was held that if a party to proceedings failed to call a witness who might have been expected to have been called and whose evidence might have been available to the court or Tribunal, then the Tribunal is entitled to draw an inference of discrimination.

(c)	The failure to discover to the claimants, despite requests and Orders for Discovery, the memo of 11 April 2000 from Alan Best to all Human Resources Managers.  

No satisfactory explanation has been given as to why it was not discovered.  Nor, again, has any documentation been produced nor has Alan Best been called in relation to the review of Eileen Harvey’s time-limited secondment which the respondents claim took place.

(d)	The respondents’ failure to provide a satisfactory explanation for the non-discovery of minutes of the Senior Management Team between 1 January and 24 September 2001, and the incomplete discovery of Mental Health Management Team meetings between those dates.

	(ii)	In the circumstances set out above, the Tribunal is satisfied from the facts proved and the inferences which it has drawn from those facts that the claimants have proved, on the balance of probabilities, and in relation to each of their claims such facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondents had committed acts of discrimination against the claimants.  This being so the burden of proof shifts to the respondents under Regulation 24 of the 2003 Regulations and Article 63A of the 1976 Order to satisfy the Tribunal that discrimination on the grounds of religious belief or sex were not the reasons for the treatment afforded to the claimants.  The Tribunal has therefore had regard to the explanations advanced by the respondents.	
			
	(iii)	Essentially, the reason put forward by the respondents is that the financial pressures on the respondent Trust were such as prevented it from advertising the vacant posts, and that in order to carry out its tasks properly it therefore became necessary to allocate some of them to Eileen Harvey and Maria McManus.  According to the respondents’ witnesses this was an ‘enrichment’ or ‘enhancement’ of their roles.	
			
	(iv)	It cannot be denied that the Trust was in financial difficulties at the relevant time – indeed the claimants accepted this.  However, the Tribunal, looking at the Trust’s explanation, is not satisfied that the failure to hold a recruitment exercise for the posts is adequate or satisfactory.  Indeed, we consider that there is an element of rationalisation after the event.  No other alternatives appear to have been seriously considered, for example, making Mrs Harvey permanent in her post as Project Manager and confirming additional duties on her, as was permitted by her job description.  Similar considerations apply to the Clinical Services Manager/Head of OT post occupied by Maria McManus.	
			
	(v)	In these circumstances, the Tribunal is not satisfied that the respondents have discharged the burden of proof placed upon them, and concludes that the respondents have subjected the claimants to unlawful discrimination.

We find that the respondents unlawfully discriminated against the claimant, Leontia Kennedy, on the ground of her religious belief in relation to the post of Clinical Services Manager (Mental Health); that they unlawfully discriminated against Mr Smyth on the grounds of his religious belief and his sex in relation to that post; and that they unlawfully discriminated against Mr Smyth on the ground of his sex in relation to the post of Clinical Services Manager/Head OT.	

16.	We now deal with the various allegations of unlawful discrimination on the ground of religious belief by Leontia Kennedy against Eileen Harvey.  In approaching these matters we have applied the relevant law as set out at Paragraphs 12. and 13. above.

(i)	Failure by Mrs Harvey to allow Ms Kennedy the opportunity to act-up, thereby giving the opportunity to gain additional management experience:-

In August 1999 a Review of Social Work in the Mental Health Directorate, which had been undertaken by Eileen Harvey as Project Manager, recommended that there should be an immediate trawl for a Senior Social Worker in Lisburn.  The post could not be advertised because of financial pressures.  Ms Kennedy alleged that it was common practice to ask the most senior member of the team to act-up until funding was secured, and the post advertised.  She was the most senior member of the team, she had previous management experience, and there would have been no additional cost to the respondent Trust because she was on a protected salary.  She alleged that Mrs Harvey did not ask her to act-up because, firstly, it would have increased her management experience and, secondly, Mrs Harvey was grooming her friend, Susan Ritchie, for the post of Senior Social Worker.

However, in cross-examination, Ms Kennedy accepted that the allegation that Mrs Harvey was grooming Susan Ritchie was speculative.

We accept Mrs Harvey’s evidence that she was not ‘grooming’ Susan Ritchie.  Mrs Harvey believed that Susan Ritchie saw her future elsewhere and would be a candidate for the Senior Social Worker post.  In any event Mrs Harvey, did not have the authority to ask Ms Kennedy to     act-up.

We therefore make no finding of unlawful discrimination in regard to this allegation.

(ii)	Failure by Eileen Harvey to provide additional cover for the claimant while she was undertaking her practice teaching course:-

The claimant undertook this course in the year 1999/2000. 

She requested cover for her block attendance on a course of three days per month, and to ease the extra work resulting from taking on a student to supervise as part of her award.  She conceded that some ad hoc arrangements had been made, but alleged they were not sufficient, in that they were not comparable to employing an additional member of staff to offer regular assistance.

She contended that this was less favourable treatment compared to Susan Ritchie, when a temporary social worker was employed in 2001 when Ms Ritchie was studying the same course.

The claimant had already been accepted for this course when Eileen Harvey took up her post.  We find that she tried to make the necessary arrangements, but because of changes in the organisation, the social worker she had asked to provide cover for Leontia Kennedy ceased to be under her management and the arrangement would not be continued.

When cover was provided for Susan Ritchie, it was provided for Kathleen O’Neill, a Roman Catholic.  As both their courses were running simultaneously, the Trust was able to provide a full-time temporary social worker for a period of three months.

We do not accept Ms Kennedy’s allegation that this temporary appointment was to provide cover for Susan Ritchie, and that the fact that Kathleen O’Neill also had cover was incidental.

In respect of this allegation, we find that the claimant was not unlawfully discriminated against on the ground of her religious belief.

(iii)	Failure to provide book allowances:

Eileen Harvey failed to process book allowances submitted by Leontia Kennedy in respect of books for the Practice Teaching Award Course.  In the Autumn of 1999, the claimant submitted receipts totalling £110.00 – the allowance was around £30.00.

She also submitted reminders.

Mrs Harvey can provide no explanation for this, other than to say that she has no recollection of the matter, nor has she any copies of the reminders.

In these circumstances we find that the claimant was unlawfully discriminated against on account of her religious belief.

(iv)	Failure to authorise 100% funding for a post-graduate diploma course:

The claimant funded 75% for this course.  When she queried this, she was told by Eileen Harvey that 75% funding was in line with Trust Policy.

The claimant was the only one of a group of 12 persons not to receive 100% funding.

We are satisfied from the relevant criteria that she was entitled to 100% funding for the course, and in the absence of a satisfactory explanation, we find in respect of this allegation that the claimant suffered unlawful discrimination on account of her religious belief.

(v)	Failure to put the claimant’s name forward as a member of the Crisis Support Team:

Eileen Harvey accepts that she did not put Ms Kennedy’s name forward.  She did, however, refer the matter to another colleague, Alan Chard, who was to come back to her.  He did not do so.

It appears that it was Mr Chard who had the responsibility of getting the Crisis Support Team up and running.

In respect of this allegation, there are no facts from which we can infer discrimination.

(vi)	Generally in respect of Ms Kennedy’s allegations the respondents rely on the fact that Ms Kennedy, when applying for another post, had asked Ms Harvey for a reference.  They suggest that it is unlikely that someone would ask another for a reference when there are allegations that the latter has acted in a discriminatory way towards the former.  Ms Kennedy had applied for a social work post.  She expected Mrs Harvey to give her a reference based on her professional work as a social worker.  We accept that from Ms Kennedy’s point of view, it would have looked strange to a prospective employer if she had given a reference from someone other than her social work line manager.  We also accept that although Ms Kennedy did not raise a formal grievance – because she had seen the operation of the grievance procedure previously and had no confidence in it – she did mention her complaints on an informal basis with Jim Smyth.  We reject the respondents’ contention that her allegations against Mrs Harvey were not made in good faith but rather in what Mr Park, for the respondents, described in his submissions as a dishonest attempt to provide ‘filling’ for her other allegations.

17.	It was agreed that the matter of remedy will be dealt with at a further hearing, if required.

Chairman:

Date and place of hearing:	27 – 30 June 2005; 24 October 2005; 30 January 2006; 24, 25, 27 and 28 April 2006; 2 and 26 May 2006; 26 and 27 June 2006, Belfast

Date decision recorded in register and issued to parties: