Fair Employment Tribunal Northern Ireland Decisions

 


Woods v McCartney & Anor (Political Opinion Discrimination) [2002] NIFET 287_00 (10 December 2002)

THE FAIR EMPLOYMENT TRIBUNAL

CASE REF NOS: 00287/00FET

01272/00

APPLICANT: Mrs Freda Woods

RESPONDENTS: 1. Robert McCartney QC

2. UK Unionist Party Assembly Group

DECISION

The unanimous decision of the Tribunal is that the complaints are dismissed.

APPEARANCES:

APPLICANT: Mr K Denvir, Barrister-at-Law, for the applicant instructed by Campbell Stafford.

RESPONDENT: Mr McCartney appeared on his own behalf.

1. The applicant was employed by the United Kingdom Unionist Party Assembly Group from 17 August 1998 until 31 May 2000 when she was dismissed (allegedly) by reason of redundancy. She was employed to provide the UKUP Assembly members with a shorthand/typing service and administrative support with 15 itemised main duties. The leader of the UKUP at all material times was the first-named respondent. At the time of the applicant's appointment there were 4 other members of the UKUP in the Assembly. Those four members resigned from the UKUP in December 1998 to form their own party leaving the first respondent as the only member of the UKUP Assembly group - the applicant's employer. The Assembly itself was suspended on 11 February 2000. The applicant was given notice on 30 March 2000 to end on 30 April 2000 but, following a meeting between her and the first respondent, her notice period was extended to end on 31 May 2000. The Assembly reconvened on 30 May 2000.
2. By letter dated 2 March 2000 TS, a member of the UKUP, wrote to the Bangor Spectator attacking the Democratic Unionist Party on the basis that -

(a) they were elected as an anti-Belfast Agreement party to oppose the Assembly and the whole process (of the Agreement).

(b) they were not elected to follow the Ulster Unionists into a government with a fully armed and active Sinn Fein IRA, and

(c) by their actions they gave support to a system exclusively contrived to destroy the Britishness of the Unionist majority.

3. In a letter published in the Bangor Spectator on 9 March 2000, the Deputy Leader of the Democratic Unionist Party responded to the letter from TS. Inter alia, he suggested to TS, whose pro UKUP views he alleged to appear frequently in print, that attempting to cause dissension in the ranks of anti-Agreement Unionists was not a profitable activity. He urged TS to follow Mr McCartney's (the first respondent's) lead in this matter. It was alleged by the first respondent, and not disputed by the applicant, that he shared the view expressed by the deputy leader of the Democratic Unionist Party in relation to the dissension amongst anti-Agreement parties.
4. On 16 March 2000 MWW - husband of the applicant - wrote to the Spectator. In his letter, MWW -

(a) agreed that TS was attempting to cause dissension between those parties who are united in opposition to the Belfast Agreement.

(b) recorded the united efforts of the DUP and the UKUP in North Down in particular to oppose the Agreement for the benefit of the 'No' campaign.

(c) criticised TS, and

(d) recorded his experience that members of the UKUP were in agreement that a strong united cross-party approach was required to be maintained in opposing violent political terrorism and its spurious place within the governance of Northern Ireland.

He signed his letter 'former Chairman North Down UKUP Constituency Association'.

5. The UKUP held its annual conference on 18 March 2000. When going into the conference, the first respondent told MWW that he could write whatever letter to newspapers he liked but he should not associate the UKUP with his views. It was not disputed by the applicant that the first respondent, in passing this message to MWW, did so without verbal altercation or other unpleasantness. During the conference, the issue raised by the letter writing manifested itself in that there appeared to be two distinct camps distancing themselves from the mainstream audience and the first respondent, as party leader, was unhappy and concerned at this manifestation. During an address by the Deputy Leader, V, on the topic of parties with parliamentary links participating in Government, a reference was made to DUP policies. Mr McCartney, the first respondent, saw the applicant and her husband, MWW, walk out. Towards the end of the conference, the first respondent saw TS surrounded by a number of people. He was quite cross with them because what had been a minor matter in the press had become a party division at conference. He told them, in a different tone from that used earlier to MWW, to stop the letter writing and stirring which was destroying the leader's credibility as leader of a united party. Mr McCartney conceded he was very angry.
6. On or after 31 March 2000, Mr McCartney was informed that TS (and others) had sent in letters of resignation to the party. TS, in his letter, alleged that he had been forced to resign because of the letter by MWW to the press. In his letter TS wrote of his 'shock' and 'disappointment' at the actions of Bob McCartney who had advised him that no action would be taken against MWW. TS found it highly despicable that someone like MWW who openly criticised him in the press and brought the party into disrepute was able to find protection from Mr McCartney.
7. The applicant's post was funded by the Assembly and this funding was not affected by either the resignations of four members of the Assembly Party group or by the suspension of the Assembly. The dismissal of the applicant was not caused by the withdrawal of funding or the threat of withdrawal. At all material times, the first respondent, as well as being MLA and leader of UKUP, was Member of Parliament for North Down at Westminster. As such he employed his own secretary, M, a constituency office manager, S, and a political researcher, C. All of these posts were funded by Westminster. M and S were based at the constituency office in Bangor but C worked from the same office as the applicant and the applicant had no complaint to make about C. Prior to 30 March 2000, she had no complaint to make against the first respondent - indeed she described herself as his greatest fan.
8. The applicant did not accept that she was dismissed by reason of redundancy and denied that her workload had diminished. She believed that because there was no redundancy situation she was unfairly dismissed. But she alleged also that Mr McCartney perceived that her husband's (MWW) political views and her own political views were the same on the issue about which he wrote to the newspaper and that Mr McCartney saw her political views as being different from his own and that this was the main reason why she was dismissed.
9. In evidence to this Tribunal, the applicant identified the political opinion which allegedly led to her dismissal as the opinion expressed by her husband through his letters to the press which Mr McCartney perceived the applicant to share. Whether the allegation is that the applicant was dismissed because of her husband's political opinion or because of her perceived political opinion, it is clear that the opinion in issue is one which both she and her husband shared with Mr McCartney. It is possible that one person could discriminate against another person on the basis of a political opinion which they both shared in the same way as it is possible for a person sharing a religious belief to discriminate against another holding that belief. No evidence was placed before us however even to suggest a basis upon which Mr McCartney did discriminate against the applicant on the ground of this shared opinion. Indeed there was undisputed evidence from the resignation of TS that TS believed that Mr McCartney was protecting MWW. It is clear that Mr McCartney took no action against MWW. There is not a scintilla of evidence - direct or indirect, oral or written - that Mr McCartney disagreed with the political opinion expressed by MWW.
10. It is possible that it was the action of MWW in writing to the newspaper to convey his belief which so annoyed Mr McCartney that he dismissed the applicant on this account or made him decide to implement a redundancy at that time. Mr McCartney admitted that the effect of this letter writing and the consequences which it produced at the conference made him very cross. If it has been suggested by the applicant - and it was not suggested despite a number of questions as to the political opinion relied upon by her - that some such opinion as it 'not being in the best interests of party unity to write letters attacking/supporting a united approach by non-agreement parties' was a political opinion such a suggestion would not find support in the judgement of the Court of Appeal in Gill -v- Northern Ireland Council for Ethnic Minorities [2002] IRLR 74 at page 79/33 -

"It seems to us that the type of political opinion envisaged by the fair employment legislation is that which relates to one of the opposing ways of conducting the government of the state which may be that of Northern Ireland but is not confined to that political entity. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology and which may predispose the discriminator against him. For this reason we consider that the type of political opinion in question must be one relating to the conduct of government of the state or matters of public policy."

This type of opinion is about tactics within a political party and not about the future government of Northern Ireland or matters of public policy. On the latter, the applicant, her husband and the first respondent are all agreed. We therefore reject the allegation that the respondent unlawfully discriminated against the applicant on the basis of political opinion and dismiss that complaint.

11. The applicant complains also of unfair dismissal and in particular she complains that -

(a) there was no redundancy situation.

(b) her husband's letter writing, the effect which this had upon the party at conference and on TS and others in particular and the association by Mr McCartney of her with her husband's letter was the cause of her dismissal - whether or not any of these matters constituted a political opinion.

(c) there was no consultation or warning of her dismissal.

(d) there was no consideration of alternative employment.

(e) her treatment by officers of the party, M & W, when giving her notice of dismissal on 30 March 2000, and

(f) her treatment by Mr McCartney, particularly in failing to afford her an appeal against dismissal, in the context especially of the Assembly reconvening before her notice of dismissal actually expired.

12. Both applicant and respondent agreed that -

(a) the applicant was employed by UK Unionist Assembly Party.

(b) at the time of employment in August 1998 there were five members of that group.

(c) in December 1998 four of those members resigned.

(d) the first respondent was the only remaining member and he had his own secretary of many years standing, a constituency office manager and a political researcher all paid out of funds available to him as a Westminster MP.

(e) the applicant was employed as secretary to the members of UKUP Assembly group - her job title - and her task was to provide the members with a shorthand/typing service and administrative support.

(f) there were no other employees of the UKUP Assembly group.

From those facts alone it must be incontrovertible that the requirements of the UKUP Assembly group for employees to carry out work of a particular kind - secretary and administrative support to the members of the group - had diminished between the time of her engagement and the time of her dismissal. To argue otherwise is to deny both the stated job title and purpose. Any office anywhere, whilst it remains open, does require someone to attend and it is clear, from the evidence, that the applicant carried out duties which helped to keep the office open. We have to say however, in relation to the 15 specified main duties in the job description, that the applicant carried out markedly less extensive duties than those contemplated. Given the limited period in which the five members of the Assembly group of the UKUP operated and the fact that the Assembly itself was in its infancy, it is clear that the applicant did not become fully operational doing the specified duties before the four members' resignation. If she had been dismissed then, there can be no doubt that she was dismissed by reason of redundancy. We do not believe that the fact that she carried on doing lesser duties for some months in itself means that she was not redundant when she was dismissed.

13. Mr McCartney alleges that the event which precipitated the dismissal of the applicant was the suspension of the Assembly on 11 February 2000. Whilst he had been prepared, allegedly, to put up with a lower level of activity by the applicant following the resignations of the rest of the Assembly group because of the personal difficulties of the applicant, suspension turned Stormont into a 'morgue'. Members of the party queried what duties were being carried out by the applicant and as a result he directed two party officers to call upon the applicant and give her one month's notice of termination.
14. We, unanimously, after considering the evidence placed before us, believe that at the time Mr McCartney decided to dismiss the applicant, his requirements, as an employer, for an employee to carry out the work which the applicant was employed to do had considerably diminished. Likewise unanimously, we are of the opinion that the respondent's acceptance of a performance of reduced duties for a period of some 15 months would not alter that diminution in the circumstances of this case, ie. one employee, one person employer, and a delicate and novel political situation where the funding of the office was not an issue. There was no alternative contract proposed after the resignations nor was there any acceptance of new terms and conditions of employment. In somewhat unusual circumstances, this situation was allowed to drift without any discussion between the parties as to the precise contractual position. But even if we are wrong in that conclusion, we believe that following the suspension of the Assembly the applicant's duties must have diminished from the duties she was carrying out before suspension. In other words we are satisfied on the evidence that, if redundancy was the principal reason for dismissal by the respondents, the redundancy situation existed.

15. It is not for this Tribunal to question the managerial merits of a decision by an employer to dismiss an employee as redundant. We are concerned about the genuineness of that decision and though an employee may have been technically in a redundancy situation, it does not necessarily follow that redundancy was the reason or the principal reason for dismissal. And where a redundancy situation has been tolerated for some time it may be easier to draw an inference that some other reason was the real or main reason. On the evidence, there are a number of matters which could afford an alternative reason for dismissal - taken either separately or together. These are -

(1) The effect on the first respondent of

(a) the applicant's husband writing to the press using his former office in the party.

(b) the dissention at conference and in the party.

(2) the perception that in one way or another the applicant was associated with these events, and

(3) the fact that the applicant walked out of the conference with MWW.

16. We discount (3) immediately because the applicant made no issue of it. And we have to ask, on the evidence, what it was which would drive the party leader to penalise an employee with whom until then he had an excellent relationship because her husband had written a letter to the press using his former party title. Even allowing for the anger of Mr McCartney at the manifestation of this dispute amongst the letter writers at conference, the Tribunal is asked to draw an inference of an alternative reason for dismissal from the mere facts that -

(a) there was letter writing which led to a dispute at conference and resignations from the party.

(b) the applicant's husband was involved but the political views which he expressed in his letter accorded with the views of Mr McCartney and no attempt was made to take any action against him.

(c) Mr McCartney got angry, and

(d) the applicant was dismissed.

In the face of our acceptance that a true redundancy situation existed which was made worse by the suspension of the Assembly, we believe that it would be total speculation on our part to draw such an inference and we conclude that the reason for dismissal or the main reason for dismissal was redundancy.

17. There was no dispute that the applicant was not consulted or warned about her dismissal before the decision was taken. We believe that the respondent believed that the Assembly Group (himself) could maintain an office at the Assembly without the need for employees. We shall return to these matters later.
18. The applicant complained to us in her evidence about the conduct of the two party officers who came to her on 30 March 2000 to terminate her employment. She laid considerable stress on the effect which these officers had upon her health and her ability to carry out her duties in her notice period. No allegation was made by the applicant that she believed her treatment at the hands of these officers was on the grounds of political opinion so the context in which this matter falls to be considered is that set out in Article 130(4) of the Employment Rights (NI) Order 1996 which states -

'the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably in treating (redundancy) as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.'

Clearly therefore the Tribunal is concerned with one question - did the employer act reasonably in treating redundancy as a sufficient reason for dismissing the employee. The manner in which notice of dismissal is delivered by the employer to the employee does not affect the question of the sufficiency of the reason. In considering the fairness of the dismissal, we do not need to consider the manner in which notice was given - indeed it would be quite wrong for us to take it into account in considering the sufficiency of the reason for the dismissal unless evidentially it reflected in some way upon that sufficiency. We do not believe that the manner in which S and M conveyed notice of dismissal to the applicant has any relevance to the action of the first respondent in considering redundancy as a sufficient reason for dismissal of the applicant.

19. If the first respondent was influenced in deciding to dismiss the applicant for redundancy by the fact of her husband's involvement in letter writing to the press or the applicant's association with that letter writing or the effects of that letter writing, such influence would be clearly relevant to the first respondent's consideration of redundancy as sufficient reason for dismissal. The applicant suggests that it was responsible for the decision or the timing of the decision. We have carefully considered this aspect in a context where -

(a) a redundancy situation persisted for some time before the decision to dismiss was taken.

(b) the Assembly was continuing to fund the post without threat of withdrawal.

(c) no alternative ways of spending this funding were suggested.

(d) there is no evidence of any other administrative/secretarial staff being dismissed as redundant by other parties.

(e) Mr McCartney was angry at the effect which the letter writing was having, and

(f) there was no bad feeling between the first respondent and the applicant heretofore.

The applicant gave evidence of two conversations with the first respondent in which he allegedly displayed animosity/vindictiveness against her post letter writing - the first was on the Monday after the conference and the second in a subsequent telephone conversation. C, the first respondent's researcher, was present at the time of the first conversation but his evidence supported the first respondent in his denial of any such display of vindictiveness or animosity. There were no witnesses to the second conversation though it was closely followed by a letter from the first respondent to the applicant. The contents of that letter (of 17 April 2000) would not support such an allegation of animosity/vindictiveness. The applicant agreed but stresses the difference in tone between conversation and letter and suggested that the letter was written as it was because the respondent felt guilty.

20. We do have concerns about the credibility of the applicant. Those concerns flow mainly but not entirely from the medical report and medical records of the applicant provided by her GP which reflect the information provided by the applicant after she was given notice. We shall not dwell on those concerns beyond saying that in a conflict of evidence situation, we prefer the account given of those two conversations by the first respondent. We are unable to draw the inference from the known facts that the applicant's dismissal was linked to the letter writing by her husband.
21. The respondent neither warned nor consulted with the applicant before taking the decision to dismiss her. As is set out at D1/1704 of Volume 1 of Harvey on Industrial Relations and Employment Law, consultation is one of the basic tenets of good industrial relations practice. Consultation with individuals 'will generally arise once they have been at least provisionally selected and will be for the purpose of explaining their own personal situations or to give them an opportunity to comment on their assessments'. The House of Lords in Polkey -v- A E Dayton Services Ltd [1987] IRLR 503 stressed the importance of consultation and subsequent cases have held that the importance of consultation cannot be over emphasised. It has been held also that the size of a company did not excuse the failure to consult though it might affect the nature or formality of the consultation process. The Employment Appeal Tribunal has refused to accept that a failure to consult the individual whom it was proposed to dismiss was justified by the employer's belief that the employee was the only person who could be made redundant. The Tribunal pointed out that even in an apparently clear case there may be factors known to the employee but unknown to the employer which could cause the employer to change his mind, ie. the fact that the employee is willing to accept a lower paid job or a more junior post. The position is that a dismissal by reason of redundancy will normally be unfair unless the Tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case.
22. On the facts of this case the applicant, a sole employee, was employed by Mr McCartney, the sole remaining member of the original five members of the Assembly Party. There was no question of unfair selection to be considered. There was no question of redeployment for we are satisfied that the employer's need for employees to do the work (a) contracted for, or (b) being done had diminished and no other employment existed. At the time the dismissal decision was taken it was the view of Mr McCartney that the Assembly was doomed. The only conceivable matter for consultation appears to be whether some form of part-time employment or reduced hours of employment was an option always remembering that (1) the funding for the employment was not an issue, and (2) the employment was about manning an office.
23. In paragraph 15 above, we noted that it was not for this Tribunal to question the merits of a decision by an employer to dismiss an employee as redundant. In the context of there being only one employee and only one job to be considered, we believe that it is not open to us to say that this employee should not have been made redundant but should have been considered for some form of part-time work when the respondent had clearly decided he would run the office without this employee. And of course the post which the applicant was employed to do had largely gone so that reduced hours would have to be considered for a quite different post. The respondent claimed not to need such a new post and the office at the Assembly continued - until Mr McCartney lost his seat at Westminster in May 2001 - to be staffed solely by C, his political researcher, paid for by Westminster. We therefore conclude that consultation in the meaningful sense would have been futile - though good industrial relations practice would have required it. The circumstances of this case are however quite unique and we believe that the first respondent saw only one possible result.
24. Finally the applicant alleges that her dismissal was unfair because she was denied an appeal. We do not agree. In the first place her employer was one man, Mr McCartney. There was no administrative structure to this employment and there were no other employees. He had reached a decision. It is difficult to see how in such circumstances no reasonable employer would have done what Mr McCartney did, ie. on 22 May 2000 he wrote -

"In relation to your request for an appeal, I do not understand what it is that you intend to appeal against. Your contract provides both a disciplinary procedure and a right of appeal against any disciplinary penalty. These procedures seem entirely inappropriate in your case as you have never been the subject of any disciplinary action. If there is any other appeal to your contract, perhaps you would set these out in writing with copies of the contract's terms."

The applicant did not reply. And in the context of the first respondent's evidence, the suspension of the Assembly precipitated the dismissal which was caused by the resignations of the four Assembly members from the party. We accept that evidence.

25. It is the applicant's case that her dismissal was an act of vindictiveness by the respondent arising out of controversy in which her husband was involved and not because she was redundant. The respondent must take some of the blame for his lack of warning and consultation with the applicant before a decision was taken to terminate. But the reality is that we could draw such an inference only from the fact that the letter writing, dissention within and resignations from the UKUP coincided with the giving of notice to the applicant. We are asked to draw this inference where the respondent took no action within the party and, in particular, no action against MWW. On the other hand, not even the applicant can deny that she did not do the job she was employed to do because of the resignations from the Assembly group. And she must accept that the suspension of the Assembly must have resulted in less work when she already was not doing the work she was originally employed to do. And she cannot ignore the fact that she was the sole employee in these circumstances. The respondent did not intend to replace her.

In these circumstances we dismiss the applications.

____________________________________

J E MAGUIRE

President

Date and place of hearing: 19, 20, 21 November 2002

5, 6, 9, 10 December 2002

Date decision recorded in register and issued to parties: