THE FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 00190/01FET & 01746/01
CLAIMANT: Ms M M T O’Hare
RESPONDENTS: 1. Queen’s University of Belfast
2. Professor R W Stout
3. Doctor McCluskey
4. Professor B G McClure
DECISION ON REMEDY
The unanimous decision of the Tribunal is that the first respondent (QUB) pay to the claimant compensation which the Tribunal assesses at £101,556.60 made up as follows;-
1. £2,875.00 as a basic award for unfair dismissal.
2. £59,481.60 as compensatory award for discrimination.
3. £39,200.00 for injury to feelings.
Constitution of Tribunal
Chairman: Mr B Greene
Member: Mrs S Butcher
The claimant was represented by Mr M Potter, of counsel, instructed by Savage & Company, Solicitors.
The respondent was represented by Mr F O’Reilly, of counsel, instructed by Elliott Duffy & Garrett, Solicitors.
On 23, 24, 25, 26, 27, 31 January; 1, 2, 3 February; 10, 13, 15, 16 March; and 4, 6, 7, 10 April; 19, 20, 21, 22, 23, 26, 27, 28, 30 June; 15, 16, 22, 23, 24, 29, 30 August; 18 September 2006 a claim for unfair dismissal, breach of contract and discrimination on the grounds of sex and religious belief or political opinion against the respondents was heard on liability only.
The Fair Employment Tribunal determined that the claimant had suffered discrimination on the grounds of her sex and religion, her contract of employment had been breached and that she had been unfairly constructively dismissed.
The Tribunal’s decision on liability was issued on 31 August 2007. A hearing on remedy was listed on 31 October 2008.
Sources of Evidence
The Tribunal heard evidence from the claimant and received, by agreement, an Assessment of Pension Loss prepared by ASM Horwath of 12 September 2006. The Tribunal also had regard to evidence about remedy, heard during the liability hearing on 15 March 2006, and submissions on remedy heard on 18 September 2006.
Claim and Defence
5. The claimant claimed compensation for injury to feelings arising from the discrimination she suffered; a basic award arising from the unfair dismissal; and a compensatory award to include loss of pension contributions.
The respondents accepted that the claimant was entitled to compensation arising from the discrimination suffered for injury to feelings, which they submitted was modest, and to a basic award arising from the finding of unfair dismissal. The respondents denied that the claimant was entitled to a compensatory award as she had failed to mitigate her loss. The respondents also argued that as the claimant was not entitled to a compensatory award she was not entitled to any compensation for loss of pension contributions or rights.
6. The following issues arose for determination;-
(1) What is the appropriate amount of compensation for the discrimination suffered by the claimant, including injury to feelings?
(2) What is the appropriate amount of compensation for the unfair dismissal suffered by the claimant?
Findings of Fact
7. (1) The claimant was born on 18 September 1954. She was employed by the first respondent (QUB) from September 1990 until 3 January 2001 when her employment terminated.
(2) The first respondent (QUB) paid the claimant until the 31 January 2001. Her net monthly salary was £1,798.
(3) Following the termination of her employment the claimant concluded that she had made a very bad career choice. She was upset that she had been portrayed as a troublemaker and an incompetent one as well. The claimant was not able to do anything for 2½ months following the termination of her employment. She said that the worst thing was that her confidence had gone.
The claimant has not pursued her career as a research scientist. She informed the Tribunal that there are not many jobs as a research scientist advertised in Northern Ireland and those that are advertised are for junior positions. This evidence was not challenged and the Tribunal accepts the claimant’s evidence as being correct.
She obtained an information pack about a lectureship advertised in University of Ulster but she did not apply as she considered herself over-qualified for the job as a person with two or three years post doctoral experience was being sought.
(5) Scientific posts in the National Health Service are different to university posts. They are generally filled by recruiting junior scientists and training them up.
(6) Posts equivalent to the claimant’s post in the private sector probably paid a higher salary than that earned by the claimant with the first respondent (QUB).
(7) The claimant considered herself too senior in age for a lectureship position in university.
(8) She decided to take up something different like history or genealogy. She has not undertaken paid employment since 3 January 2001.
(9) The claimant did not produce any medical evidence in support of her claim for injury to feelings. Apart from a visit to her GP in November/December 1998 the claimant has not visited her GP arising from the circumstances of this claim. Nor has the claimant attended counselling nor availed of the occupational health services of the first respondent (QUB) nor has she been self-medicating.
(10) In September 2001 the claimant’s brother died and she took on the responsibility for two teenage children. The claimant did this until the children were 18.
(11) The parties agreed that under the unfair dismissal law the claimant was entitled to a basic award of £2,875.
As appears from the Tribunal’s decision on liability the discrimination on the grounds of sex and religion suffered by the claimant began in 1996.
8. (1) Where a Tribunal finds a complaint of sex discrimination well-founded and it considers it just and equitable it shall require the respondent to pay to the complainant such compensation as a county court would order to be paid had the claim been brought in the county court (Article 65 of the Sex Discrimination (Northern Ireland) Order 1976).
Compensation for sex discrimination may include damages for injury to feelings (Article 66(4) of the Sex Discrimination (Northern Ireland) Order 1976).
Where a Tribunal finds a complaint of religious discrimination well-founded and it considers it just and equitable it shall require the respondent to pay to the complainant such compensation as a county court would order to be paid had the claim been brought in the county court (Article 39 of The Fair Employment and Treatment (Northern Ireland) Order 1998).
Compensation for religious discrimination may include damages for injury to feelings (Article 39(4) of The Fair Employment & Treatment (Northern Ireland) Order 1998).
(5) Where a Tribunal finds a complaint of unfair dismissal well-founded it shall require the respondent to pay to the complainant compensation (Article 146 of The Employment Rights (Northern Ireland) Order 1996).
(6) An order for compensation for unfair dismissal shall comprise a basic award and a compensatory award (Article 152 of The Employment Rights (Northern Ireland) Order 1996).
(7) Arising from an unfair dismissal the amount of the compensatory award shall be such as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee in consequence of the dismissal (Article 157(1) of The Employment Rights (Northern Ireland) Order 1996).
(8) In assessing compensation where the employee has been unfairly dismissed and has suffered an unlawful discrimination the Tribunal has the choice of making an unfair dismissal compensatory award or a discrimination compensatory award. In general a claimant is likely to be better off if the award is made wholly on the basis of the discrimination, and this consideration may weigh with Tribunals faced with a choice (Harvey on Industrial Relations and Employment Law L ).
(9) Compensation for injury to feelings falls into three broad bands; the top band ranges between £15,000 and £25,000 and is for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment; the middle band between £5,000 and £15,000 for serious cases that do not merit an award in the highest band; and the lower band between £500 and £5,000 for less serious cases such as where the act of discrimination is an isolated or one-off occurrence (Vento v Chief Constable of West Yorkshire Police (No.2)  IRLR 102 CA).
In Miles v Gilbank  ICR 12 EAT at paragraph 12 Judge Pugsley stated;-
“We make the point, if we may, that actually the Vento case is now three years old and that is a point which is of relevance because, whilst we do not have raging inflation which has been known in various stages of the country’s history, we nevertheless do have quiet inflation which devalues monetary values.”
On appeal the Court of Appeal affirmed the decision of the employment Tribunal and the EAT. It made no adverse comment about the EAT’s comments about inflation. Arden LJ stated at paragraph 41;-
“… The guidance laid down by this court in Vento was not intended to be applied like rules of law.”
In Northern Ireland an Industrial Tribunal has followed the approach set out in Miles v Gilbank in the case of Pauline Girvin v Carrickfergus Borough Council – Support Services – CASE REF: 1696/07. The Tribunal stated at paragraph 48;-
“During the five years since the determination in Vento, the retail price index has increased by approximately 9%. On that basis, the middle band should now be from £5,500 to £16,000 approximately.”
(11) Where more than one form of discrimination arises out of the same facts a composite award may be appropriate (Harvey on Industrial Relations and Employment Law L  and Al Jumard v Clywd Leisure Ltd  IRLR 345 EAT).
(12) Aggravated damages are available for an act of discrimination. Malice or other bad intention on the part of the respondents is a reason for making an award of aggravated damages as is the lenient or favourable way in which the employer has treated the perpetrators of the discrimination or where the victim, in consequence of the unlawful act, suffers injury to feelings as a result of actions taken by the employer even where those actions are not in themselves discriminatory (Harvey on Industrial Relations and Employment Law L  and British Telecommunications plc v Reid  IRLR 327 CA).
In the Northern Ireland Court of Appeal case of McConnell v Police Authority for Northern Ireland  NI 244 at 255 g Carswell LCJ declared;
“… an award of aggravated damages should not be an extra sum over and above the sum which the Tribunal of fact considers appropriate compensation for the injury to the claimant’s feelings. An element of aggravation ought to be taken into account in reckoning the extent of the injury to feelings, for it is part of the cause of that injury. It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour.”
(13) In ascertaining the loss suffered by the employee the Tribunal shall apply the same duty to mitigate the loss as applies to damages recoverable under the common law of Northern Ireland.
(14) The method of assessing compensation when there has been a failure to mitigate is to assess when the employee should have been able to obtain fresh employment. It has to be shown that if the employee had taken a particular step, after a particular time then, on a balance of probabilities he would have gained employment. From that date the loss is extinguished or reduced by the income from the other source. Therefore the Tribunal must identify what step the employee should have taken, the date on which that step would have produced an alternative income and thereafter to reduce compensation by alternative income which would have been earned. It is entirely wrong to deal with a failure to mitigate on the basis of a percentage reduction (Butterworths Employment Law Guide 4th edition 2005 paragraph 19.578 and Gardiner-Hill v Roland Berger Technics Limited  IRLR 498 EAT).
(15) Under Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 No. 581 a Tribunal may include simple interest on an award made and shall consider whether to do so without the need for any application from the parties.
(16) Under Regulation 3(1) of the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995 No. 240 a Fair Employment Tribunal may include simple interest on an award made and shall consider whether to do so without the need for any application from the parties.
(17) Any interest awarded under the discrimination legislation shall be awarded, for injury to feelings, from the date on which the discrimination began. In relation to other sums of damages or compensation interest shall be awarded from the mid-point between the date on which the discrimination began and the calculation date (Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 No. 581 Regulation 7(1) and Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995 No. 240 Regulation 7(1)).
(18) The practice of employment tribunals since 1975 confirms that in almost every case it will be unnecessary to make a joint and several award of compensation in a discrimination case. The present practice of apportioning liability (where appropriate) between individual employees and employers works well in practice and does justice to the individual case (Harvey on Industrial Relations and Employment Law L [513.02]).
9. Application of the Law and the Findings of Fact to the Issues
(1) The claimant is entitled to a basic award of:-
£230 x 12.5 (5 x 1.5 weeks + 5 x 1 week) = £2,875.00
(2) Under the unfair dismissal legislation the claimant is entitled to a compensatory award. This is subject to an upper limit. However where an employee has suffered an unfair dismissal and unlawful discrimination the Tribunal may make the compensatory award under the discrimination cause of action. The Tribunal proposes to follow that approach and sets out the compensatory award below.
(3) Although the Tribunal has found that the respondents discriminated against the claimant on the grounds of religion and sex it is appropriate to make a composite award as both types of discrimination arise from the same facts.
(4) The claimant, apart from obtaining a job information pack for a position as lecturer in the University of Ulster, did not take any steps to mitigate her loss. In such circumstances the proper approach is for the Tribunal to consider when the employee would have found work and to take into account any income that the employee would have received from such work. In considering this matter the Tribunal had regard to the following matters;-
(a) It would not be reasonable to expect the claimant to return to work with the first respondent (QUB) in light of the treatment she received which constituted unlawful discrimination and constructive unfair dismissal.
(b) Alternative posts in scientific research within the university environment are very limited in Northern Ireland.
(c) Lectureship positions within the university environment tend to be for persons much junior to the claimant and with two or three years post doctoral experience.
(d) Scientific research posts within the National Health Service tend also to be for junior scientists whom the National Health Service intended to train.
(e) The number of positions in the private sector in Northern Ireland comparable to the work carried out by the claimant, was small.
(f) It would be reasonable for the claimant to wait for a period of time before considering applying for positions for which she was over-qualified and too senior.
(g) In the absence of comparable posts to that formerly held by the claimant between six and nine months after her constructive dismissal the claimant should have been applying for other positions, such as more junior lectureship posts or junior research posts within the National Health Service or industry or in teaching.
(h) Consonant with the submission on behalf of the claimant and in the absence of any submission on behalf of the respondents for an alternative period within which the claimant should have obtained alternative employment the Tribunal considers that the claimant should have been able to obtain employment after 12 months from the date of termination that would have yielded her a net monthly income of £1,000.
(i) Similarly the Tribunal further considers that due to the claimant’s qualifications, abilities and experience she should have been able to secure other employment or promotion which would have provided her with a net monthly salary of £1,798 within two years of her termination.
(j) The Tribunal does not consider that the claimant would have had a continuing loss after 2 January 2003.
(k) The claimant was paid until 31 January 2001 and did not sustain a loss of earnings until 1 February 2001. In the absence of any evidence to the contrary the Tribunal assumes the claimant’s pension contributions were paid up to 31 January 2001.
(l) In assessing the claimant’s loss of pension contributions the Tribunal followed the approach set out in Compensation for Loss of Pension Rights Employment Tribunals Third Edition.
The Tribunal considered that the substantial loss approach was the appropriate approach in this claim.
(n) The Tribunal had regard to the calculations prepared for the hearing by Messrs ASM Howath of 12 September 2006.
(o) In having regard to the calculations provided by Messrs ASM Howath the Tribunal chose Scenario B i.e. not allowing for promotion as there was not any evidence before the Tribunal on that point and because of the short length of the period to be allowed for pension loss.
The Tribunal finds that the appropriate period for pension loss should be restricted to two years from the date of her constructive dismissal. The Tribunal assumes that the claimant will have achieved a pension provision comparable to what she would have had by 3 January 2003. It allows 11 months at full pension loss and one year with a pension based on her net income of £1000 from 3 January 2002. In calculating the pension loss for that later period the Tribunal uses the same proportion as that between the respective incomes i.e. 1000/1798 (0.56).
(q) In assessing the value of the loss of pension rights for one year and eleven months the Tribunal applied the multiplier set out in Table 6.4 of Compensation for Loss of Pension Rights Employment Tribunals Third Edition. It calculated the multiplier at 0.57 (11.82 ÷ 228 months) x 11 months) for the first 11 months at full pension loss and 0.62 for 12 months for the second year but with a multiplicand of 0.56 of the full pension loss.
(r) Given the length of time that has passed since these events the Tribunal considers that it is appropriate to award simple interest at the rate of 8% per annum on the compensatory award from the mid-point between the date when the discrimination began, 1996, and the calculation date, 2009.
Loss of earnings from 1 February 2001 to 2 January 2002.
£1,798 x 11 = £19,778.00
Loss of earnings from 3 January 2002 to 2 January 2003
£798 x 12 = £9,576.00
Total loss of earnings = £29,354.00
£139,661 ÷ 11.82 = £11,815.65 x 0.57 = £ 6,734.92
£11,812.65 x 0.56 = £6,615.08 x 0.62 = £ 4,101.35
Total pension loss = £10,836.27
Total compensatory award = £40,190.27
Interest on compensatory award for 6 years = £19,291.33
Injury to Feelings
(5) In assessing the appropriate level of compensation due to the claimant by way of injury to feelings the Tribunal had regard to the following matters;-
(a) Arising from the Tribunal’s findings and conclusions on the liability issue it is clear to the Tribunal that the discrimination from which the claimant suffered can be appropriately described as a most serious case where there has been a lengthy campaign of discriminatory harassment on the grounds of sex and religion.
(b) The Tribunal is satisfied that the claimant was greatly upset arising from the discriminatory treatment to which she was subjected.
As the claimant gave evidence about these events five years later she was visibly upset and at times tearful. This contrasted to her otherwise calmness during testing cross-examination.
The Tribunal is satisfied that the claimant felt that the respondents have portrayed her up to and during the hearing as a troublemaker.
The Tribunal is further satisfied that the claimant felt that the respondents have portrayed her up to and during the hearing as incompetent.
The Tribunal is satisfied that the claimant lost her confidence.
The Tribunal is also satisfied that the claimant had concluded, after 20 years work as a research scientist, that she had made a wrong career choice.
The Tribunal is also satisfied that in considering future employment the claimant’s injury to feelings was such that she decided to seek employment in history or genealogy, completely different to her qualifications, experience and working history.
The appropriate Vento band is the top band i.e. between £15,000 and £25,000.
The Tribunal in applying the Vento band allowed for inflation of 9% since the determination of Vento. The Tribunal believes that interest should be added to the sum for injury to feelings.
(j) In assessing how the discriminatory treatment affected the claimant the Tribunal had the benefit of having seen and heard the claimant in the course of her evidence over a long period of time.
It is satisfied that there has been an element of aggravation to the injury to feelings. The aggravating factors are set out in detail in the Tribunal’s decision on liability and in particular at paragraph 6(11). The aggravating factors include the exclusion of the claimant from discussions concerning her and her work on matters that impacted on her work; exaggerating complaints about the claimant; purporting to administer a disciplinary warning against her; and erroneously alleging she was in breach of the first respondent’s (QUB) sickness policy. Following the decision of the Court of Appeal in McConnell the aggravating element should be taken into account in assessing the injury to feelings.
(k) This is an appropriate case where interest of 8% per annum should be added to the award for injury to feelings pursuant to Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex Discrimination Cases) Regulations (Northern Ireland) 1996 No. 581 and Regulation 3(1) of the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995 No. 240. Interest should be payable from 1996 to 3 January 2009.
(l) The Tribunal awards £20,000 for injury to feelings. It also awards simple interest of £19,200 making a total award for injury to feelings of £39,200.
Apportionment of Compensation
(6) The Tribunal orders that the compensation be paid by the first respondent (QUB). In so concluding the Tribunal had regard to the following matters;-
(a) Any compensation payable to the claimant by reason of the finding of unfair dismissal is the responsibility of the first respondent (QUB) as it was the claimant’s employer.
(b) In relation to compensation payable by reason of the finding of unlawful discrimination there was not any application before the Tribunal that there should be an apportionment between the respondents or that the award should be made on a joint and several basis.
(c) The second (Professor Stout), third (Dr McCluskey) and fourth (Professor McClure) respondents were employees of the first respondent (QUB) which is vicariously liable for their acts of discrimination.
(7) This is a relevant decision for the purposes of the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995.
Date and place of hearing: 31 October 2008, Belfast.
Date decision recorded in register and issued to parties: