Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00110/99FET

APPLICANT: Briege Mack

RESPONDENTS: 1. Belfast City Council

2. Norma Beggs

DECISION

The unanimous decision of the Tribunal is that most of the applicant's complaints of victimisation are outside the statutory time limits for presentation of the claims and the claim which is in time has not been proved on a balance of probabilities to be religious discrimination by way of victimisation and the claim is dismissed.

APPEARANCES:

APPLICANT: Mr P Boomer of NIPSA.

RESPONDENTS: Mr P Ferrity, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.

1. The applicant is employed by the first-named respondent and during the time at which she was making these complaints she was employed in the payroll department as was the second-named respondent who was the payroll manager.
2. The Tribunal accept that the applicant and the second-named respondent did not get on. The Tribunal also accept that the applicant made a complaint in September 1995 when she failed to be appointed to the job that the second-named respondent had vacated. The second-named respondent was on the interview panel. Having considered all the evidence we have heard we accept that the second-named respondent was aware of the applicant's complaint and there were a number of incidents which took place after the Tribunal proceedings had been initiated which were capable of being viewed as victimisation of the applicant, namely that she was less favourably treated because she had initiated a complaint which involved the two respondents.
3. The applicant, in reply to an Order for Further Particulars, set out matters of which she was complaining and a record of these complaints is annexed to the decision. At the outset of the hearing counsel for the respondents submitted the majority of these claims were outside the time limits provided. The Tribunal decided to hear evidence in relation to them and to consider all relevant evidence before coming to a decision on the time points. The Tribunal is satisfied that each of the matters complained about by the applicant from the period of 29 November 1995 until December 1998 was a separate incident. Certainly there were a series of incidents which took place in the period of 1996 and there were two incidents in 1997. The applicant complained to the Council about her treatment by means of a grievance. She brought this grievance with Robert Grills and Ricky Lyons who were of a different religion to the applicant. Their grievance against the management style of the payroll manager was upheld for all three employees. The other two did not present claims to a tribunal. The applicant and Mr Grills also raised a grievance over their job evaluations and again this was an ongoing lack of management ability.
4. The applicant presented a claim to the Tribunal on 4 March 1999. Under Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1999 -

"the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of the end of the period of three months beginning with the day on which the complainant first had knowledge or might reasonably be expected first to have had knowledge of the act complained of".

The Tribunal looked at the acts which took place on or about 4 December 1998 to see what was actually in time. The applicant made a complaint about an incident which happened on 7 December 1998 when the payroll manager (the second respondent) instructed Mr Lyons that the applicant was to be discouraged from having visitors during core working hours. The applicant agreed she was talking to another employee from the client services department who was a friend, but she objected to the second respondent reprimanding her in this fashion. The Tribunal considered this incident carefully and does not find that it amounts to victimisation of the applicant. The payroll manager had a duty to manage her department and at this stage it would appear her relations with many people in the payroll department were not good and it does not amount to victimisation of the applicant.

5. The difficulty in this case is that a number of the incidents relating back to 1996 and 1997 could be viewed, and in fact the Tribunal does view them, as incidents of victimisation. However they are single acts and as such the applicant should have complained about them at the time. We are aware that she has been supported throughout her period from 1999 by her Union and by Mr Boomer, her representative. There have been numerous meetings with the respondent and she has also been to the Fair Employment Commission for advice. The applicant is an intelligent person who was obviously feeling very aggrieved by her treatment and relationship at work with the payroll manager. Mr Boomer has urged us to consider that this was a course of conduct instigated throughout by the second-named respondent. However, the time period does not back that up. The most serious incidents of victimisation appear to have taken place in 1996 and it was quite feasible for the applicant to have presented a claim at any time during that year. There were two incidents of which she complains in 1997 and two incidents in 1998 before she submitted a claim in March 1999. Simply to say that there have been a number of incidents does not give rise to a continuing policy such as is envisaged in Harvey Volume 2 L para 557 and is considered in the case of Barclays Bank plc -v- Kapur 1991 ICR 208 and in Owuso -v- London Fire and Civil Defence Authority 1995 IRLR 574. At paragraph 557.04 the commentator in Harvey states that "certain types of discriminatory insults for example will, by their nature, indicate that they have a continuing effect and are properly seen as a general regime of discrimination. So too, discriminatory acts by a person in a position of authority may be more likely to create a regime of discrimination than similar conduct by a person of lower authority within an organisation." This would have appeared to be the position in relation to those claims which were made in 1996.

In 1997 there was one incident, on 18 July, when the applicant was excluded from a business meeting. She alleged on 16 October 1998 that the payroll manager had instructed the security man at the back gate not to allow her access to the car park. The Tribunal considered this allegation in detail and do not find that it was well founded. We do not find that the payroll manager/second respondent had any input into this decision. The first respondent was aware that there were problems in the payroll department, they also investigated a grievance brought by the applicant and two others and they upheld the grievance in favour of the three persons. This in itself does not mean that the applicant was victimised. The Tribunal is satisfied that it was the management style of the second respondent which gave rise to all the trouble in this department and three people of different religions were concerned about her management, or lack of it, and brought a grievance to the Council which was resolved in their favour by Mr Maguire. The over-riding problem seems to have been lack of communication between the second respondent and her subordinates. The Council tried to rectify this but was not successful and it appears that the solution was to move the second respondent to another area in 1999. We have looked carefully at the actions of the first respondent and do not find that they were caused by the applicant bringing a claim against Belfast City Council. The City Council has numerous employees and many of those have in the past or in the present brought claims against the City Council. There is nothing from the evidence in this case to show that the actions of the City Council in this matter were motivated by the presentation of a claim in 1995 which was subsequently withdrawn in 1998. We are satisfied that the actions of the City Council were done in an effort to resolve what was a workplace dispute between the applicant and two other persons who were subordinate to the second respondent.

6. We have looked at the question of whether we should extend the time limits to allow the applicant to present her claims relating back to the period of 1996 and 1997. Taking into account the fact that she had representation throughout and that she had brought a claim to the Tribunal in 1995 with the assistance of the Fair Employment Commission and been represented throughout by her union representative, the Tribunal do not consider that it would be just and equitable to extend the time to allow her to present the claims in relation to earlier incidents. As already stated the incident in December 1998 which was within time does not amount to a finding of victimisation. Accordingly her application to this Tribunal is dismissed.

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M P PRICE

Vice President

Date and place of hearing: 4-7 February, 20 March 2002, Belfast

Date decision recorded in register and issued to parties: 21 May 2002