Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 37/03FET

305/03

CLAIMANT: Mary Grew

RESPONDENT: Thomas Gilpin t/a Gilfresh Produce

DECISION

The unanimous decision of the Tribunal is as follows:-

(a) The claim in respect of constructive dismissal is dismissed.

(b) The claim in respect of religious discrimination is dismissed.

(c) In respect of the claim for sex discrimination the tribunal finds that the respondent unlawfully discriminated against the claimant and awards the claimant the sum of £1,500.00 for injury to feelings together with interest of £361.00.

(d) The claim in respect of victimisation is dismissed.

Appearances:

The claimant was represented by Mr M. McEvoy, Barrister-at-Law, instructed by J P Hagan & Co., Solicitors.

The respondent was represented by Mr G Howard of Peninsula Business Services Limited.

The Constructive Dismissal Claim

1. The claimant alleged that she was constructively dismissed by the respondent. It was conceded that the claimant's employment, which commenced in February 2002, ended with her resignation on 23 October 2002 with effect from 30 October 2002 and therefore did not meet the one year qualifying period set out in Article 140(1) of the Employment Rights Order (Northern Ireland) 1996 ("the Order"). The claimant's case was that as she resigned due to stress this constituted a breach of health and safety and therefore fell within the exceptions to the qualifying period set out in Article 132(1) of the Order.
2. The central issue which the claimant relied on the establish her case of constructive dismissal related to events which took place in the canteen during her employment. The tribunal found that the claimant was employed to work on the production lines of the respondent's vegetable growing and packing business. When she was initially employed there were two other female operatives both of whom left during the course of the claimant's employment. The last one being Teresa Scott who left on 6 October 2002. Miss Scott left the respondent's employment after disciplinary action was taken against her and two other members of staff for fighting at work. The claimant had been involved in making a statement on Miss Scott's behalf to the respondent which was later circulated to members of the work force. The claimant's case was that her intervention in Miss Scott's case led to the treatment which she received by the respondent during the remainder of her employment. After Miss Scott's departure the claimant was left as the sole female operative in the canteen and she was unhappy about the conduct of some of the male operatives and asked that some Polish female workers, who had their own canteen, be directed to go to the canteen with her so that she would not be alone. The claimant complained to management about the fact that she was the only female operative in the canteen and she met Mr Gilpin on 14 September 2002 and following this she had a meeting with Mr Johnston, the Factory Manager, on 16 September 2002, and informed Mr Johnston that bad language and sexual discussions were making her feel uncomfortable in the canteen. Mr Johnston wrote to the claimant on 19 September 2002 asking her to identify the perpetrators of this bad language and on 23 September 2002 the claimant went on sick leave with stress. Further correspondence took place between the respondent and the claimant and she refused to name the people who were using the bad language in the canteen. Mr Johnston stated that he could take no action unless they were identified. He did re-issue the Equal Opportunities Policy of the Company and issued a memo to staff regarding this behaviour but no further action in relation to this was taken. The claimant did not find this sufficient action to deal with her concerns about female company in the canteen and she submitted her resignation on 23 October 2002 having remained absent from work during this period.
3. The tribunal considered whether the events which took place entitled the claimant to resign on the basis of Article 140(3)(c) of the Order which states where a dismissal is by reason of a health and safety issue the qualifying period does not apply as the dismissal is automatically unfair. It was argued for the claimant that as she went off work in September 2002 suffering from stress due to the situation regarding the canteen, this situation was potentially harmful to her and was a risk to her mental health.
4. The tribunal find that the claimant had complained about the situation where she found herself to be the only female in a canteen where bad language and sexual talk took place. We noted that she went off work when the respondent failed to deal with this situation and after meeting Mr Johnston on 16 September 2002. However, we were not provided with any supporting medical evidence regarding this extent of the claimant's illness. We were aware that she was certified as unfit for work due to stress.
5. The tribunal considered the definition of Article 2 of the Health & Safety At Work (Northern Ireland) Order 1978 which defines personal injury as:

"Any disease and any impairment of a person's physical or mental condition".

The tribunal considered this definition to assist us in considering whether the claimant should be entitled to consider herself automatically unfairly dismissed by reason of a health and safety issue.

The tribunal were not satisfied that the evidence before us was sufficient to establish a disease or impairment of her mental condition, while stress may be regarded as an impairment or mental condition there was no medical evidence of the level of stress, its impact on the claimant or any treatment required. The tribunal found that for such a case to be established detailed evidence would be required as a case which is normally brought under this heading would relate to situations where an employee was in some way in imminent danger either due to the conditions of the work place or the conduct of another employee. The tribunal found that the causal link in the situation was not established to a sufficient degree to entitle the claimant to claim that she was unfairly constructively dismissed. While we accept that she was unhappy about the issue of being alone in the canteen and was also unhappy about management's handling of the situation we did not find that in the absence of more detailed evidence its impact upon her could be relied upon in this situation.

The Religious Discrimination Claim

6. (a) The claim in respect of religious discrimination was based on Article 3(2) of

the Fair Employment and Treatment Order (Northern Ireland) 1998 in respect of religious harassment.

It was conceded on the claimant's behalf that no claim of discrimination on the basis of political opinion or religious belief was raised with the respondent and did not relate to the claimant wishing to have female company in the canteen. It was also conceded that when the claimant alleged that a remark was made to her about St. Patrick's Day by Johnny Walker this was not seen as a direct allegation of religious discrimination. It was noted by the tribunal that evidence was subsequently presented of clock cards which showed that Mr Walker was not at work on the relevant day and the remark could not have been made as alleged in any event.

The claimant's claim in respect of religious discrimination related to an alleged atmosphere of religious comments being made in the canteen which were ignored by the respondent.

(b) The tribunal considered the issue of religious harassment and the evidence relied upon by the claimant to establish religious harassment. The claimant's evidence related to the activities in the canteen where staff members drummed on tables, referred to attendance at loyalist band parades and the alleged rumour that the claimant had stated that two other staff members were involved in the LVF. It was argued that the atmosphere in the work place amounted to harassment contrary to the 1998 Order.

(c) The tribunal considered the evidence presented by the parties in respect of this issue against the background of the correspondence which took place between the claimant and management at the relevant time. The witnesses for the respondent denied that any of the conduct alleged by the claimant took place. The tribunal found that it was significant that in the meeting of 16 September 2002 between Mr Johnston and the claimant there was no mention of activities of a sectarian kind in the canteen while the claimant did refer to bad language being used and her complaints regarding that. She also referred to previous incidents of bad language from two members of staff who had not used this language since she had spoken to them. Mr Johnston's letter to the claimant of 19 September 2002 also specifically referred to bad language being bad language of a sexual nature. In a detailed letter to Mr Gilpin of 24 September 2002 while the claimant refers at paragraph three to a previous incident there is no reference to any ongoing religious harassment. The claimant's letter of 30 September 2002 to Mr Gilpin again relates to her requiring female company in the canteen. The tribunal therefore finds that at the time of the complaint the claimant was not concerned about religious harassment. We did not accept that this was an issue for her at that time and all her energies were clearly directed to complaints about the sexual language which was taking place. The tribunal found that had the claimant suffered religious harassment in the canteen she would have raised it either verbally with Mr Johnston at the meeting on 16 September 2002 or in her subsequent letters to Mr Gilpin. The tribunal were mindful that there was a background to the complaints relating to Teresa Scott's leaving the company and subsequently taking an industrial tribunal case against the respondent. However, the tribunal having considered all the relevant evidence and taking into account the oral evidence of the claimant did not find that she established religious harassment against the respondent. The claimant failed to convince the tribunal that any actions of the respondent either violated her dignity or created an intimidatory, hostile or degrading and humiliating or offensive environment for her and this application is therefore dismissed.

The Sex Discrimination Claim

7. (a) The claimant's case is that the conduct which she was subjected to in the

middle canteen amounted to sexual harassment especially after she became the sole female employee when Teresa Scott left in August 2002. The tribunal having heard evidence by and on behalf of the claimant and the respondent's witnesses found that there was a culture in the canteen of loutish behaviour. We accepted the claimant's evidence that this behaviour became worse after Miss Scott left and that she was subjected to having tabloid newspapers paraded in front of her and being subjected to lewd sexual discussion between her co-workers in her presence. We were satisfied that this conduct took place on a ongoing basis and we found that while the claimant had other female company she was able to distance herself from this conduct by sitting with and talking to her female companions. We were satisfied that after Miss Scott left the conduct was more pointedly directed towards the claimant. The tribunal further found that the claimant attended her place of work on Saturday 14 September 2002 to speak to Mr Gilpin about this and we did not accept his evidence that she

wished to discuss labels with him. We did not believe that an employee would attend her work place out of hours to discuss something as mundane as labelling of goods. We found that the memo of the meeting of 16 September 2002 with Mr Johnston highlighted the claimant's concerns which as we have stated related to her desire for female company in the canteen. The tribunal were entirely satisfied that the activities alleged by the claimant and which are clearly set out in the correspondence between the parties did take place.

(b) The tribunal having heard the allegations made by the claimant then considered the respondent's explanations in accordance with the Sex Discrimination Indirect Discrimination and Burden of Proof Regulations (Northern Ireland) 2001. The respondent's witnesses all denied that such activity took place at all. The tribunal noted in particular that throughout the relevant period the claimant complained of this conduct. She gave graphic and detailed evidence to the tribunal of the language which she was subjected to. The tribunal did not accept the evidence of the respondent's witnesses in this regard and were satisfied that the conduct did take place. The tribunal also looked at the conduct of the respondent when alerted to this by the claimant. The claimant was asked to identify the perpetrators of this conduct before the respondent could take action and correspondence took place between the parties regarding this. The claimant was reluctant to identify the perpetrators because of the events surrounding Miss Scott's departure when her previous statement had become public knowledge in the work place. The tribunal accepted the claimant's reluctance was genuine and found that it should not have prevented the respondent taking firm and decisive steps to deal with the issue. It was argued that the respondent re-issued the Equal Opportunities Policy and wrote to staff reminding them of it. There was no staff meeting which would not have been difficult to organise as they were only approximately sixteen staff in the canteen. No other steps were taken to assist the claimant who wished to have female company in the canteen to support her. The respondent did not take any action to assist her in this regard. The tribunal found that the respondent's actions were not reasonable faced with a complaint of ongoing sexual harassment by an employee.

(c) It was argued with the respondent that the claimant's issues in this regard arose after Miss Scott left on 6 August 2002 and that she had two weeks holiday followed by a period of sick leave until she resigned in October 2002. The tribunal found that the period under consideration is not long, however, we are satisfied that during the period from August 2002 until the claimant went on sick leave she was subjected to harassment by the other staff in the canteen while the respondent did not take adequate steps to resolve this situation. The tribunal found that the claimant suffered injury to her feelings as a result of being subjected to this behaviour and found that it was appropriate to award £1,500.00 compensation in respect of this. The tribunal found that the relevant dates for the assessment of compensation are 14 September 2002 which is the date when the issue was first raised with the respondent until 17 September 2005 a period of 157 weeks (1,099 days) @ 8% making interest of £361.00.

The Victimisation Claim

8. The claimant's case is that she was victimised contrary to the provisions of Article 6 of the Sex Discrimination (Northern Ireland) Order 1976.

The claimant's allegations are threefold:-

(a) relating to sexual harassment in the canteen;

(b) isolation from her friends in the work force;

(c) refusal by the respondent to provide female company in the canteen.

(a) The claimant's case in relation to the activities which took place in the canteen. It was argued that the sexual discrimination which the claimant was subjected to also took the form of sexual harassment. The claimant's case was that as a result of the Scott affair, she was subjected to intimidation in the canteen because the male work force resented her involvement in that case. In support of this the claimant gave evidence of a remark attributed to a Jeffrey Callaghan stating that if the claimant was hit workers would face the sack. This comment was alleged to relate back to the Scott affair when Miss Scott had been hit by other workers. The tribunal considered all the evidence in respect of this and we have accepted that sexual remarks were made and found that when the claimant was alone this became more obvious to her because she no longer had female company and was more aware of the male conversation. The claimant only cited one comment made by Jeffrey Callaghan directly in support of this and the tribunal found that her evidence contradicted the interview which she had with Mr Johnston on 16 September 2002 when she was asked by Mr Johnston if the sexual remarks were directed at her and she had replied "No". The tribunal found that while it was unsatisfactory that such sexual remarks should have been made in the claimant's presence and that this must have resulted in an unpleasant environment for her to be placed in alone without other female company we did not accept that the claimant established a case of victimisation in this regard. The tribunal found that having assessed all the evidence presented the claimant was maximising her allegations against the respondent and we were not satisfied that while the atmosphere of sexual conduct in the canteen did exist that it was regularly addressed at the claimant specifically and certainly not to the degree that she was subjected to any victimisation as a result of it.

(b) The claimant's second claim was that of David West being disciplined for communicating with her and being told to stop talking to her after Miss Scott's departure. One of the claimant's witnesses Miss Colton Brown gave evidence that she raised these issues with management who were "paranoid about claims because of the industrial tribunal proceedings brought by Miss Scott". The claimant gave evidence that she was put on lines with non-English speakers because of this. While much of the evidence of the respondent's witnesses was unreliable the tribunal did not accept that the claimant was put on non-English speaking lines but found that all the workers were placed amongst each other and that the lines were in fact mixed. Also the lines were not long enough that any worker would feel isolated. We did not

accept this aspect of her evidence. We also did not find that the claimant was being cut off from Mr West and were not satisfied that she established victimisation in this aspect of her claim.

(c) The claimant argued that she was victimised because the respondent had stated that she did not raise the request for female company with Mr Gilpin on 14 September 2002 only the issue of labelling. The tribunal was satisfied that Mr Gilpin's evidence in this regard was false and that on 14 September 2002 the claimant did raise the issue of female company in the canteen with him. However, we did not accept that this established a claim of victimisation but rather assisted in establishing the claimant's claim of sexual discrimination. We do not find that the failure of the respondent to allow Polish workers into the middle canteen related to the claimant's previous involvement with Scott. We found that this was management failure as they did not appreciate the strength of feeling which the claimant had in relation to this matter. We did not accept that the claimant established that this failure was other than inept management and did not find that any victimisation was established in respect of it. We did not accept that Mr Gilpin's actions related to the claimant's involvement with Miss Scott in any way and for these reasons the victimisation claim is dismissed.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest on Awards in Sex Discrimination Cases) Regulations (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 19-22 October 2004, 28 February 2005 and

1 March 2005, Belfast.

Date decision recorded in register and issued to parties: