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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Smyth v Department of Agriculture [2002] NIFET 185_98 (20 December 2002)
URL: http://www.bailii.org/nie/cases/NIFET/2002/185_98.html
Cite as: [2002] NIFET 185_98
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- The applicant is, and was, at all material times employed by the Department of Agriculture (the respondent) as a Senior Veterinary Research Officer. In or about 1997, staff were informed that an organisational review of the management structure of the Veterinary Sciences Department was to be conducted by the Business Development Service. Staff, including the applicant, were interviewed as part of the exercise.
- On 15 January 1998, the Chief Scientific Officer, Dr Cecil McMurray, presented the findings of the review and recommendations. Staff were informed that they had two weeks within which to raise problems or concerns. Subsequently, a written copy of the report was provided to all Grade 7 officers including the applicant.
- The applicant was not content with the recommendations. In summary, she was not satisfied that there was a genuine business need for some of the proposals, and she was extremely concerned that the effect of the proposals discriminated against Catholics and women in general, and her in particular in terms of career opportunities.
- The applicant spoke of her concerns in general terms, without reference to allegations of discrimination, on various occasions during meetings with Professor Ellis, the acting Director of Department, in the two-week consultation period. In particular, the applicant advocated the creation of a dedicated poultry unit to service the specific needs of the poultry industry. She had been the liaison officer with the poultry industry for a period of time, and was aware that members of the industry held strong views that the Department should create such a unit, similar to that which existed to service the needs of the small fish industry. It was her view also that a dedicated unit should be created. The Review proposals did not include the creation of a specialised poultry unit. Professor Ellis' view, and the view of senior members of the Department was that budgeting constraints mitigated against the creation of such a unit. In addition, there were difficulties in allowing small units of specialisation to develop which relied on the expertise of one or very few individuals. In the small fish unit for example, serious problems had arisen when the senior person had taken a career break. The applicant did not accept the Department's view with regard to a proposed poultry unit.
- On 27 January 1998, the applicant committed her concerns to writing, addressed to the Chief Scientific Officer Dr McMurray and copied to Professor Ellis and members of Human Resources. The Tribunal accepts the applicant's evidence that this was the first time she had highlighted issues of discrimination arising out of the Review Proposals. The relevant portions are as follows:
- The applicant's complaint arises out of an incident which occurred a few days after she had expressed her views in the memo of 27 January 1998. On 2 February, Professor Ellis burst into her office with Dr David Bryson, her line manager in tow and made a number of serious accusations against her in what is accepted was a hostile, aggressive and inappropriate manner. Professor Ellis accused her of having lobbied the poultry industry for her preferred option of creating a dedicated poultry unit. He further accused her of having leaked the confidential proposals of the BDS Review to a member of the poultry industry, namely Mr Alcorn, who was a vet employed by O'Kane's Poultry. He told her that the Permanent Secretary was furious, the Chief Scientific Officer was furious, and she may be subject to disciplinary action.
- Professor Ellis referred to a previous incident which had occurred at the Omagh laboratory, where a member of staff was disciplined for allegedly leaking confidential information. The Tribunal accepts the applicant's evidence that Professor Ellis indicated that although the Department had saved that member of staff, there may be no attempt to save her.
- The Tribunal accepts that the applicant was utterly shocked at being the subject of accusations which she knew to be untrue, and that she was extremely concerned and anxious as to the potential damage to her reputation and career.
- Dr Bryson said nothing during this outburst and the Tribunal accepts that he had had no foreknowledge of the accusations which Professor Ellis intended to make. Later that morning he returned to the applicant's office and advised her to go and see Professor Ellis and re-emphasize that the allegations were wholly untrue. Although she was initially reluctant, she decided to take this course. She gathered together a file indicating the professional reasons she had met with Mr Alcorn and went to Professor Ellis' office.
- The Tribunal is satisfied that Professor Ellis was still extremely angry and aggressive and told the applicant he was not interested in the contents of her file. It was only when the applicant decided to leave, that Professor Ellis asked her a series of questions concerning the allegations which resulted in his acceptance that the accusations were unjustified.
- The respondent's case is that although the accusations were untrue, the basis for suspecting the applicant was both genuine and reasonable. The facts which Professor Ellis states gave rise to the suspicion were as follows:
- Having accepted the applicant's assurances that she had not lobbied any member of the poultry industry, nor disclosed confidential information, Professor Ellis "apologised unreservedly" on a number of occasions. He did point out to the applicant however that in his view he was justified in jumping to the conclusion which he had, given the timing of the incidents referred to at paragraph 11, albeit that the conclusion was wrong. The applicant did not accept that he was entitled to jump to that conclusion without having spoken to her first.
- The parties then engaged in a lengthy discussion in the course of which Professor Ellis raised the allegations of discrimination in her memo of 27 January. The Tribunal accepts the applicant's evidence that Professor Ellis asked her why she had not made such allegations before, since he believed she had been discriminated against in the past. The Tribunal further accepts that Professor Ellis told her that he had discussed this matter with her at the time, however the Tribunal accepts that no such conversation had ever taken place.
- It is also accepted that Professor Ellis told the applicant that most of the responses to the BDS Review were not worth "diddly squat" but that her response was one of only two responses of which it was worth taking note.
- It is accepted that during this meeting Professor Ellis apologised for his behaviour that morning on a number of occasions.
- The applicant's case is that Professor Ellis' behaviour on the morning of 2 February amounted to unlawful discrimination by way of victimisation.
- Article 3(4) of the Fair Employment And Treatment (NI) Order 1998 states as follows:-
- The respondent conceded that Article 3(6) is not applicable to this case.
- It is clear from the House of Lords decision in Shamoon –v- Chief Constable of the Royal Ulster Constabulary [2003] UKHL that "in the case of victimisation, the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act "(per Lord Nicholls of Birkenhead). Secondly, the legislation "requires proof that the treatment complained of was "by reason of" a protected act" (per Lord Hope of Craighead).
- The Tribunal also considered the decision of the House of Lords in Nagarajan v- London Regional Transport 1999 IRLR 572. In that case, which concerned an allegation of racial discrimination, Lord Steyn said "It is sufficient for a claimant … to establish that the principal or an important cause of the less favourable treatment was the fact that the victimised person had done a protected act". Lord Nicholls also stated "discrimination may be on racial grounds even though it is not the sole ground for the decision. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out".
- Mr Grant on behalf of the respondent submitted that the applicant could not rely on the protection given by Article 3(4) of the Fair Employment And Treatment (Northern Ireland) Order. He submitted that because the complaint contained in her memo of 27 January related to "proposals" rather than an act which had been done, the applicant was not protected by Article 3(5)(iii).
- The Tribunal is therefore satisfied that the applicant had done a protected act in that she had alleged that members of the Department of Agriculture had contravened the Order in the past.
- The applicant points to the following matters which she contends indicate that Professor Ellis' behaviour on 2 February was significantly influenced by the allegations of discrimination contained in her memo of 27 January:-
- Professor Ellis made no attempt to excuse his behaviour on the morning of 2 February, although he adamantly maintained that he genuinely jumped to the conclusion that the applicant had been lobbying the industry because of the coincidences which the Tribunal has already set out at paragraph (11) above. His explanation may be summed up in the applicant's own notes of a meeting which she had with him on 12 February 1998.
- In evidence, he further indicated that he was under considerable pressure at the time, both personally and professionally. On a professional level, he was acting Director in the absence of Professor McNulty who was off on stress-related sick leave, and he had been given instructions to get the BDS Recommendations pushed through as quickly as possible and take as much pressure off Professor McNulty on his return as possible. As he had indicated to the applicant on 2 February 1998 "he had had his ass kicked" that morning by the Chief Scientific Officer who told him he had a credibility problem in his department.
- Professor Ellis insisted that he had informed Dr Bryson on 2 February that he had apologised to the applicant for his behaviour. He also said that Dr Bryson had spoken to him after his first meeting with the applicant and before his second meeting. Dr Bryson had indicated in clear terms to him that he believed the applicant had been treated unfairly. Professor Ellis stated that later that week he spoke to the Chief Scientific Officer Dr McMurray and informed him that he had spoken to the applicant and the conclusion which had been reached from those discussions.
- In relation to his amendments to the applicant's memo of 12 February which she had wished to send to the Chief Scientific Officer, Professor Ellis was adamant that the purpose was to assist her, rather than hinder her. Firstly he said, there was nothing unusual in his editing letters from the applicant, and he had done it on a number of occasions previously. That evidence was not challenged.
- As regards the three written apologises to the applicant, he insisted that none of them were qualified in any way, and clearly state that his apology was unreserved. He gave evidence that the fact that he would not remove the reference to the reason he had jumped to the wrong conclusion, in no way changed the fact that he accepted he had made a mistake. He insisted that he had included the reference to the coincidences which had caused him to jump to the wrong conclusions, because it was the truthful explanation for his behaviour.
- In relation to the comment to the applicant's union representative, Professor Ellis explained that he was trying to make the point that he had to make decisions based on business needs, and could not be seen to favour any particular section of the community. The Department employs people from a variety of ethnic and racial backgrounds, and if it was perceived to be promoting more favourably from one particular section, the union could just as easily be raising complaints on behalf of employees of different sex, race, religion etc.
- The respondent points to the following matters which he contends indicate a non-discriminatory reason for Professor Ellis' behaviour on the morning of 2 February:-
- The Tribunal has enormous sympathy for the applicant who is an internationally recognised expert in her field, and who was accused of very serious allegations which the respondent accepts were untrue. Had those allegations not been retracted, they no doubt would have cast a shadow over her future career. The Tribunal is not satisfied however that Professor Ellis' behaviour was influenced or caused by the applicant's allegations of discrimination in her memo of 27 January 1998.
- The Tribunal accepts that the letter from the Northern Ireland Poultry Federation is on its face relatively mild, and in normal circumstances would not necessarily suggest that information had been leaked or that lobbying had occurred. However, the Department of Agriculture, and in particular the Veterinary Sciences Division, had been through a very difficult situation in the recent past, when information had been leaked for the purposes of forming a pressure group, and the Minister's decision had been labelled as "wrong" by an employee of the Department. The Tribunal is satisfied that as a result of this incident in Omagh, the Department was highly sensitive to any suggestion that confidential matters had been leaked, and that consequently the Permanent Secretary and the Chief Scientific Officer over-reacted to the letter from the Poultry Federation.
- The Tribunal accepts that Professor Ellis came under enormous pressure from the Chief Scientific Officer as a result of this "over-reaction", and we accept that he was extremely annoyed because "he had had his ass kicked" and he had been told that "he had a credibility problem in this department".
- The Tribunal acknowledges that proper enquiries should have been made before jumping to such serious conclusions. However we are satisfied that they reached those conclusions for honest and genuine reasons, albeit that those conclusions were wrong. We repeat those reasons as follows:-
- The Tribunal accepts the applicant's evidence that on the afternoon of 2 February Professor Ellis had a frank and honest discussion with her about discrimination which had occurred in the department. The fact that he was prepared to acknowledge her concerns and to some extent support them, does not suggest to us that his angry behaviour on 2 February was caused or significantly influenced by the fact that she had raised allegations of discrimination in her letter of 27 January.
- Furthermore, if Professor Ellis' behaviour had been influenced by those allegations he could have instigated a formal investigation with the threat of disciplinary action. Although the applicant dismisses this suggestion by saying there were no grounds for doing such a thing, the fact remains that he could have done so, and the applicant would have been subjected to a great deal more anxiety and stress even if ultimately she had been exonerated of guilt.
- The Tribunal takes account of the fact that not only did Professor Ellis "apologise unreservedly" on "numerous" occasions on the afternoon of 2 February, but he also gave a full explanation for his appalling conduct that day, and he did so at a time when he could not have contemplated that his behaviour would result in proceedings before a tribunal. In our view, the fact that he did so suggested that he was telling the applicant the truth. The Tribunal also takes account of the fact that the applicant concedes Professor Ellis is not known for his tact or diplomacy.
- The Tribunal considers that although the applicant had invited comments from Professor Ellis in her memo of 12 February, it would have been better in these circumstances, if he had not amended it at all. We take the view however that his attempts to dissuade the applicant from sending the memo, were borne out of a desire to bring an end to the whole incident rather than cause a disadvantage to the applicant. Whilst it may be said the memo could have resulted in further enquiries being made of the applicant, that would also no doubt have drawn attention to Professor Ellis' unprofessional conduct on 2 February, which we are satisfied he regretted.
- The Tribunal also considers that Professor Ellis' remark to the applicant that her memo of 27 January was one of only two responses which were worth noting does not suggest that his angry behaviour earlier that day was because of the contents of that memo. We think that it is inconsistent that he would "go off the deep end" because of her allegations of discrimination, whilst at the same time regarding the contents as exceptionally noteworthy.
- We were also influenced by the fact that Dr Bryson was not called to give evidence to corroborate the applicant's case that Professor Ellis had not informed him of his apology to the applicant on 2 February. This was a substantial part of the applicant's case, and was a matter in dispute between the parties. Although it was open to either side to call Dr Bryson, the onus is on the applicant to prove discrimination on a balance of probabilities.
- In relation to Professor Ellis' comment on the morning of 2 February that although the employee from the Omagh laboratory had not been dismissed "there may be no attempt to save her", the Tribunal is not satisfied that this remark had anything to do with the fact that she had made complaints of discrimination. Although Professor Ellis did not accept that he expressed himself in such extreme terms, he did agree that he may have said "it may be more difficult to protect her". The Tribunal accepts his explanation that if the allegations concerning the leaking of sensitive information had been correct, the Department may well have taken a different view regarding how this matter should be dealt with, since it would have been the second occasion on which it had occurred.
- The Tribunal does not accept that the three written apologies did not constitute a genuine and complete retraction of the allegations. We accept that it was as important to Professor Ellis to record why he had jumped to the conclusions, as it was to the applicant to record that those conclusions were wrong. The fact that Professor Ellis attempted on three occasions to agree terms of apology, suggests to us a genuine desire to apologise for his bad behaviour on the morning of 2 February. In the final draft dated 20 March 1998, Professor Ellis makes it clear that both Dr Bryson and Dr McMurray had been informed that he fully accepted that the applicant had not leaked the BDS document or lobbied the poultry industry and that he would ensure that Dr McMurray informed the Permanent Secretary. In our view, this should have brought closure to a very regrettable incident.
- The Tribunal considers that Professor Ellis is an honest witness, who gave a truthful explanation for what he acknowledges was appalling conduct on his part. For the reasons already set out, therefore, we dismiss the applicant's complaint.
CASE REF: 00185/98FET
01419/98SD
APPLICANT: Dr Joan A Smyth
RESPONDENT: Department of Agriculture
The unanimous decision of the Tribunal is that the applicant was not unlawfully discriminated against by way of victimisation
Appearances:
The applicant was represented by Mr Grainger, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.
The respondent was represented by Mr Grant, Barrister-at-Law, instructed by the Departmental Solicitor's Office.
"… The proposals clearly constitute serious inequality of opportunity for me and the question must be asked why. As the justification for these proposals are very contentious in the first place, the only apparent explanation is the fact that I am a female and all the others who may benefit career-wise are male. Furthermore, I have raised concerns several times before, about the fact that I was the only SVROII without a non-service unit. Various reasons have been offered as to why this situation could not be rectified, to give me equal opportunity. I now believe these "reasons" were in fact just excuses. There has never been a better time to give equality of opportunity to me. It has not been done, is clearly not on the agenda and I can only conclude now, particularly when I consider the historical facts that it never has been. …
Executive Management Group
It is proposed to create a new Executive Management Group on the basis of the preferred departmental structure. I have outlined earlier why I think that some of the proposed new departmental structure is very questionable on the basis of business needs. Furthermore, on the basis of grade/merit, the proposed group is anomalous, in that members of the current group who would be excluded from the new group are all at a higher or analogous grade to those within it, and all are at a higher grade than the proposed VRO member. The question must therefore be asked, is this an attempt to exclude all the senior members of one community background from the group, because that would be the outcome. It seems all the more so given the reasons offered for disbanding the current senior management group. This also raises the question, is my community background also contributing to the earlier outlined inequality of opportunity for me. The fact that those who would appear to be gaining the best opportunities in the proposed plan are all from a different community background to me, would support such an analysis.
In conclusion, I believe that the structure you propose to implement is flawed both in terms of business needs and seriously so, with respect to creating equality of opportunity and that I am being and have been in the past (emphasis added) treated less favourably than my male colleagues, particularly those from a different community background."
(a) The Permanent Secretary had received a letter from Mr Billy O'Kane, Chairman of the Northern Ireland Poultry Federation dated 28 January 1998 on the last day on which responses to the BDS Report were to be received from staff.
(b) The letter indicated that the Federation was aware that the organisation of the Veterinary Services Department was under review.
(c) The Federation wished to re-emphasise to the respondent that "the department is in need of a section whose role is to co-ordinate the service provided to the poultry industry. …"
(d) Professor Ellis had seen the applicant and Mr O'Kane's Vet, Mr Alcorn, talking together the previous week.
(e) The applicant was the poultry liaison officer.
(f) As already stated, the applicant was known to share the views expressed by Mr O'Kane with regard to the creation of a dedicated poultry unit.
(g) The applicant had made it clear in discussions with Professor Ellis in the previous two weeks that she firmly believed a dedicated poultry unit should be included in the proposals, and did not accept the reasons given by Professor Ellis why such a unit was not feasible.
The Law
"3(4) A person ("A") discriminates by way of victimisation against another person ("B") in any circumstances relevant for the purposes of this Order if -
(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and
(b) he does so for a reason mentioned in paragraph (5).
(5) The reasons are that –
(a) B has –
(i) brought proceedings against A or any other person under this Order; or
(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or
(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or
(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or
(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do any of those things.
(6) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
The Sex Discrimination (Northern Ireland) Order 1976 contains similar provisions.
It is also clear, from that decision, that conscious motivation is not required in order to find a person liable for unlawful victimisation.
However, as Mr Grainger pointed out, the memo did not just allege discrimination in the proposals for the restructuring of the management of the Veterinary Services Division. The memo clearly alleged that the applicant had been discriminated against in the past also in the following passages:
"… furthermore, I have raised concerns several times before, about the fact that I was the only SVROII without a non-service unit. Various reasons have been offered as to why this situation could not be rectified, to give me equal opportunity. I now believe these "reasons" were in fact, just excuses. There has never been a better time to give equality of opportunity to me. It has not been done, is clearly not on the agenda and I can only conclude now, particularly when I consider the historical facts, that it never has been.
….. In conclusion, I believe that the structure you propose to implement is flawed …. and that I am being and have been in the past, treated less favourably than my male colleagues, particularly those from a different community background." (emphasis added).
(a) The close proximity in time between her memo of 27 January and the incident of 2 February.
(b) The letter from Mr O'Kane on behalf of the poultry industry was a relatively mild, non-confrontational letter. She submits that there is nothing on the face of the letter which could justify such an intense angry reaction either from Professor Ellis, the Permanent Secretary or the Chief Scientific Officer.
(c) In any event, the poultry industry had lobbied for a dedicated unit on other occasions, in similar terms. There was nothing new therefore in its request to the Department.
(d) Mr Alcorn and indeed the poultry industry would have been aware of the BDS Review. The Review proposals could have been leaked by anyone.
(e) The applicant had known Professor Ellis all her professional life and she had never been subjected to such a ferocious verbal attack by him in that time, nor had she ever heard of such a thing.
(f) The applicant contended that even though Professor Ellis apologised on several occasions during the meeting on the afternoon of 2 February, he did not inform Dr Bryson that he had apologised and that he accepted her assurances unreservedly. This was a matter in dispute between the parties. Dr Bryson was not called to give evidence.
(g) The applicant alleged that because she was anxious to ensure that all relevant parties had been fully appraised of Professor Ellis' apology to her, and his acceptance of her innocence, she decided to commit the matter to paper for the attention of the Chief Scientific Officer on the advice of Dr Bryson.
She submitted the letter to Professor Ellis under a cover note which read
"Bill, attached is the memo I told you about yesterday. As I indicated the copies will not be sent until late today or tomorrow morning to give you an opportunity to comment first if you wish to do so."
On 12 February, Professor Ellis returned the memo to her with substantial amendments. The Tribunal accepts that Professor Ellis advised her not to send the memo, and that if she did so, she would get a letter back asking her to explain the series of coincidences which had given rise to the suspicion that she had lobbied the poultry industry. The applicant alleged that she felt threatened and intimidated by his behaviour.
(h) The applicant pointed to three written apologies which Professor Ellis wrote to her, each amended after discussion (on 5th March, 13th March and 20th March) but not amended sufficiently in her view so as to provide a fulsome retraction of the allegations.
(i) The applicant suggested that Professor Ellis was angry because he was under pressure to push through the BDS proposals, and her allegations of discrimination would have been an obstacle to the achievement of that end.
(j) Finally the applicant referred to a meeting which took place between Professor Ellis, the Chief Scientific Officer, herself and her union representative in which Professor Ellis made a remark to her representative to the effect "tomorrow you could be representing a Black or a Protestant". The applicant took grave exception to this remark.
"[He] said he regretted last Monday. Said he'd come in in a foul humour, Cecil [the Chief Scientific Officer] had got him and he was just in such a bad mood. Did I never have mornings like that where I was just in a bad mood. Said he had handled it badly and he thought he'd lost esteem, in my eyes, in David B's eyes and he regretted having brought [David Bryson] into the thing. (He said also with a view to my letter that probably Cecil would have expected him to handle it differently.)"
Professor Ellis indicated that there was considerable sensitivity over alleged leaks of confidential information since the incident in Omagh, which as already stated resulted in the disciplining of a member of staff in the Department. He stated that is why the letter from the Poultry Federation provoked such a strong reaction.
He also contended that he was frustrated that the applicant could not see why it was not feasible to have a specialised poultry unit.
On a personal level, his own health was not good, and he has a daughter who was due to have her annual review of a serious health problem, namely Potts Syndrome. She is a surviving twin.
Secondly, he explained that the procedure in the Civil Service is that once matters are formalized, they are dealt with by all parties formally, and a "paper trail" starts. He said that this is why he advised her that the response to her memo would be a formal letter back asking her to explain the series of coincidences.
Finally, he said that he had recognised that the accusations had been wrong, and he wanted closure on the whole issue.
(a) The fact that the applicant and Professor Ellis had worked together over a great many years and that throughout that time their working relationship had been good. The applicant could not point to anything discriminatory which Professor Ellis had said or done in the past other than her complaint about the proposals for the Department. They had worked closely and successfully together on papers and research.
(b) The fact that there was a delay of several days between the receipt of the memo of 27 January and Professor Ellis' angry behaviour on the morning of 2 February. Mr Grant suggested that if the reason for his behaviour was the fact that the applicant had alleged discrimination, one would have expected him to have reacted immediately.
(c) Mr Grant pointed to the fact that the applicant accepted that the previous incident in Omagh where confidential information had been leaked because an employee did not accept the Department's decision had caused very serious trouble within the Department. There was good reason therefore why the Permanent Secretary, and the Chief Scientific Officer would have been so annoyed having received the letter from the Poultry Federation. Their response was to tell Professor Ellis in no uncertain terms that he needed to sort out his Department. When one adds the additional factor that Professor Ellis had seen the applicant and Mr Alcorn, the secretary of the Federation's vet talking together in the week previously, Mr Grant submitted that it would be a normal reaction to be extremely cross and to feel extremely let down in the circumstances.
(d) Mr Grant also pointed to the fact that Professor Ellis was so angry on 2 February that he did not even stop to tell Dr Bryson why he was going to talk to the applicant. If his reaction was due to the applicant's memo, rather than the circumstances alleged by Professor Ellis, the last thing one would expect Professor Ellis to do would be to bring a witness along who is a friend of the applicant.
(e) Having spoken to Dr Bryson and the applicant on the very afternoon of his outburst, he apologised "unreservedly" for the accusations and his behaviour. Mr Grant points out that Professor Ellis did not have to apologise. He could have made life difficult by not accepting her explanation for talking to Mr Alcorn the previous week. He also could have allowed a disciplinary process to begin which would have been very unpleasant whatever the outcome. The applicant accepts that although she denied discussing the BDS Report with anyone from the poultry industry, she did admit to Professor Ellis on the afternoon of 2 February that she had discussed the Report with someone, although she did not indicate the identity, and Professor Ellis did not pursue the matter. In evidence she said that she had spoken to the Equal Opportunities Commission and her husband about the Report. The fact that Professor Ellis did not pursue this issue once he was satisfied that the poultry industry had not been lobbied is a point in his favour, argues Mr Grant.
(f) Mr Grant points to the fact that on the afternoon of 2 February, Professor Ellis spoke to the applicant in sympathetic terms about treatment which could be perceived as having been discriminatory. Although he argued that Professor Ellis' words could not be construed as giving encouragement, they did give her support.
(g) Mr Grant submits that Professor Ellis did everything that he could to make up for what he agreed was inappropriate behaviour. He apologised on numerous occasions and drafted three written apologises in an attempt to bring closure to the whole incident. He points to Professor Ellis' evidence that he did advise the applicant not to pursue the matter further by sending her memo, because he believed that the best way of dealing with the whole issue was to draw a line under it, rather that setting off a formal Civil Service paper trail.
(h) In relation to Mr Stewart's evidence that Professor Ellis had made a remark to the effect that "tomorrow, he could be representing a Black or a Protestant", Mr Grant argues that this remark should be seen in the context in which it was made. Professor Ellis was clearly trying to explain that decisions must only be made on business grounds, and not be influenced by matters such as religion or racial background. If Mr Stewart was genuinely appalled by the remarks, why does it not even appear in the minutes of the meeting?
The Tribunal's Decision
The Tribunal's Reasons
(a) The Permanent Secretary had received a letter from Mr Billy O'Kane, Chairman of the Northern Ireland Poultry Federation dated 28 January 1998 on the last day on which responses to the BDS Report were to be received from staff.
(b) The letter indicated that the Federation was aware that the organisation of the Veterinary Services Department was under review.
(c) Federation wished to re-emphasise to the respondent that "the department is in need of a section whose role is to co-ordinate the service provided to the poultry industry. …"
(d) Professor Ellis had seen the applicant and Mr O'Kane's Vet, Mr Alcorn, talking together the previous week.
(e) The applicant was the poultry liaison officer.
(f) As already stated, the applicant was known to share the views expressed by Mr O'Kane with regard to the creation of a dedicated poultry unit.
(g) The applicant had made it clear in discussions with Professor Ellis in the previous two weeks that she firmly believed a dedicated poultry unit should be included in the proposals, and did not accept the reasons given by Professor Ellis why such a unit was not feasible.
Chairman:
Date and place of hearing: 16- 20 December 2002 and 11-12 February 2003, Belfast
Date decision recorded in register and issued to parties: