Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 313/03FET

CLAIMANT: Yvonne Marrie Bell

RESPONDENT: South & East Belfast Health & Social Services Trust

DECISION

The unanimous decision of the Tribunal is that the claimant's claims of religious and political discrimination are dismissed.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Ms G Savage

Mr J Barbour

Appearances:

The claimant appeared in person.

The respondent was represented by Mr Crothers of Brangam Bagnall & Co., Solicitors.

1. The Issue

The issue to be determined by the Tribunal is whether the claimant was unlawfully discriminated against by the respondents on grounds of religious belief or political opinion in their having given her an unsatisfactory reference that had the effect of preventing her being appointed to the permanent post of Personal Secretary in Trust Headquarters.

2. The Claim and the Defence

The claimant is a Protestant woman who alleged that she had been given a poor reference because she had witnessed racial and sectarian harassment in the office where she worked and had written to the Director of the Trust asking to speak to him about problems at work.

The respondents' defence was that the reference was an objective reference and was not tainted by religious or political discrimination, and that all appropriate procedures were carried out correctly.

3. Sources Of Evidence

The Tribunal heard evidence from the claimant and from Mrs Belle Armstrong on her behalf. The Tribunal heard evidence from Mr. Norman Carson, Director of Finance of the respondent Trust, Mrs Marion Rowan, Mrs McAroe and Mrs Crutchley from the Respondent Trust's Personnel Department.

The Tribunal also had regard to a bundle of documents provided by the claimant and to other documents provided by the respondents throughout the hearing.

4. Amendment to Claim

(i) At the outset of the hearing the claimant stated that she believed that she would not have been treated in the way she had been treated if she had been a Catholic.

(ii) The claimant accepted that her claim would need to be amended to reflect this, if she was now indicating that she had been directly discriminated against. The respondent indicated that they would object to such an amendment.

(iii) The Tribunal considered the claimant's submissions to assess whether the claimant was in fact making an additional claim. The claimant made it clear that she believed that she had been treated in this way, i.e. that she had been given an unsatisfactory reference, because the referee believed that the claimant intended to report problems at work with the Finance Director or at Trust Headquarters. The claimant did not indicate any comparator she would be relying on to establish any direct discrimination claim. The claimant's submissions were unclear and contradicted her initial statement. At no time during her submissions on this point at the hearing did the claimant allege that her Catholic manager had given her a bad reference simply because she, the claimant, was a Protestant. However the claimant consistently stated in her submissions that what had happened to her was "not discrimination", that she had not suffered direct discrimination.

(iv) The Tribunal also considered the claimant's claim form. The claim set out therein did not refer to the claimant's having received the bad reference from the manager on the basis that the manager was of a different religion to her.

(v) The Tribunal also considered the record of proceedings of the Case Management Discussion in the case. This record indicated that the issue in the case was: -

"… whether the claimant was unlawfully discriminated against on grounds of religious belief or political opinion by the respondents in their having given her a poor reference that had the effect of preventing her being appointed to the permanent post of Personal Secretary in Trust Headquarters".

(vi) The Tribunal concluded that the claimant was not seeking to amend her claim. The Tribunal allowed the case to continue to consider the issue and the issue was not pursued further by the claimant.

5. The Applicable Law

1. Article 3(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 defines discrimination as

(a) discrimination on the ground of religious belief or political opinion; or

(b) discrimination by way of victimisation.

Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if: -

(a) on either of these grounds he treats that other less favourably than he treats or would treat other persons;…

Article 3(3) provides that a comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

Article 3(4) of the Order defines discrimination by way of victimisation in any circumstances relevant for the purposes of the Order as being less favourable treatment by one person ("A") of another ("B") in those circumstances and for a reason mentioned in paragraph (5) of the same Article.

In Article 3(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.

If a person does any act under Article 3(5)(a) or is known or suspected by A of having done any such act the Order confers on B a "protected status", who will enjoy the protection of the Order.

The Lord Chief Justice has set out the legal test for victimisation in straightforward terms in an unreported case, McNally-v-Limavady Borough Council, [2005] NICA 46. To paraphrase it the test for victimisation is threefold; the person alleged to be victimised must have protected status. Secondly, the person must have been treated less favourable than other persons in the same circumstances and, thirdly, the less favourably treatment must have occurred because the victimised person has committed a protected act under the Order.

6. The Burden of Proof Regulations

(32.1) Article 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 states:-

"63A(2) Where, on the hearing of a complaint, the complainant proves facts from

which the tribunal could, apart from this Article, conclude in the absence

of an adequate explanation that the respondent:-

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III; or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant;

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act".

The Tribunal also considered the guidance on these Regulations in the leading cases Barton -v- Investec Henderson Crosthwaite Securities Ltd and Igen -v- Wong [2005] IRLR 258. In the Igen case, a sex discrimination case, the Court of Appeal set out the guidance to be used in applying the Regulations, see below. This guidance also applies to cases under the Fair Employment and Treatment Order.

(i) Pursuant to Section 63A of the 1975 Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These facts are referred to below as "such facts".

(ii) If the claimant does not prove such facts he or she will fail.

(iii) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of {sex} discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that " he or she would not have fitted in".

(iv) In deciding whether the claimant proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from facts found by the tribunal.

(v) It is important to note the word "could" in Section 63A(20). At this stage the tribunal does not have to reach a definitive determination that such facts would lead to the conclusion that there was an act of unlawful discrimination. At this stage the tribunal is looking at the primary facts before it to see where inferences of secondary fact could be drawn from them.

(vi) In considering what inferences or conclusions can be drawn from the primary facts. The tribunal must assume that there is no adequate explanation for those facts.

(vii) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(20(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

(viii) Likewise, the tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

(ix) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(x) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(xi) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(xii) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(xiii) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

7. The Relevant Findings of Fact

On the basis of the oral and documentary evidence before it, the Tribunal made the findings of primary facts set out below. In respect of any conflicts in the evidence, the Tribunal resolved any such conflicts in the making of the following findings, on the balance of probabilities:-

8. Lodging the Claim

(1) The claimant left the Trust in May 2003 and found a variety of other temporary posts. She took up such employment with the Probation Board and its proximity to the Office of Industrial Tribunals prompted the claimant to investigate the possibility of lodging a claim about what had happened to her at the respondent Trust.

(2) The claimant spoke to the Equality Commission who advised her to lodge immediately, given that the three-month time limit would shortly expire. The claimant indicated that the Commission advised her to lodge her claim in wide terms and that the Office would sort it out by category afterwards.

(3) The claim form set out the claimant's belief that she had been given the bad reference because the respondents believed that she had been about to report instances of religious/sectarian/political and sexual harassment, religious discrimination and other unlawful inappropriate behaviours in her workplace. The claim form detailed some of these behaviours.

(4) The claim form did not indicate why the claimant was of the view that the respondent Trust or anyone in the respondent Trust believed that she had been about to report any of this. The claim form did not make any specific allegations against Mrs. Rowan.

(5) In their response the respondents denied that the claimant had been discriminated as alleged or at all. The respondents also indicated that they intended to investigate the allegations of harassment and inappropriate behaviours, which they subsequently did.

9. Was the Claimant Less Favourably Treated

1. Getting the Unsatisfactory Reference

The claimant's claim for victimisation was that she had been unnecessarily required to obtain a second satisfactory reference to be able to take up a permanent appointment to the post of personal secretary at the Trust's Headquarters. In having had to provide this second satisfactory reference the claimant believed that the Trust, through their senior manager Mrs. Rowan had victimised her by giving her an unsatisfactory reference because Mrs. Rowan believed that the claimant would tell people at Trust Headquarters about the harassment and other inappropriate behaviours that were happening in the Finance Department.

2. The claimant was employed by the respondents on a fixed term temporary contract as a Higher Clerical Officer in the Finance Department. This was located in Derg Villa at the respondents' headquarters at Knockbracken Healthcare Park. Her employment commenced on the 14th May 2002 and ended on the 13th May 2003.

3. On the 28th March 2003 the claimant applied for the permanent post of personal secretary at the Respondents' Trust Headquarters. A requirement for appointment to this post was the production of two satisfactory references.

4. On the 2nd May 2003 the claimant received a telephone call from the respondent Trust's Personnel and was advised that although there were two references for her on file at Personnel one of these was out of date and that she needed to produce another current reference in order to be able to be offered the post. Personnel did advise the claimant that the job was hers if she could secure a second referee. Personnel asked the claimant to identify a suitable referee and the claimant told Personnel to contact her senior manager, Mrs. Marion Rowan, directly themselves.

5. Personnel subsequently notified the claimant that she had not been appointed to the post because the reference provided to the panel by Mrs. Rowan was unsatisfactory.

6. The Chair of the interview panel spoke to the claimant on the 8th May 2003 and advised her that Mrs. Rowan had said that the claimant did not get on with people. By letter dated the 9th of May 2003 the claimant was advised by Personnel that they were unable to interfere with the decision of the interview panel.

7. The claimant stated that she believed that there was more to this than "doesn't get on with people" and she wanted to know what it was. The claimant urged Personnel to make contact with someone else in the Finance Department who would vouch for her. The respondent Trust investigated the matter.

Investigation into the circumstances around the Unsatisfactory Reference

8. The Tribunal found that the Respondents had a policy that "satisfactory" reference included the requirement to be "current", i.e. one that was less than 12 months old. The Trust policy on references also included a stipulation that current or former NHS or HPSS employees should provide one such reference from a manager who has knowledge of the candidate's most recent work in NHS or HPSS.

9. It was accepted that this requirement to produce two satisfactory, i.e. good and current, references was not stated in the job documentation and that the claimant only became aware of it when Personnel rang her to say that she had completed the interview successfully but that she could not yet be offered the job as one of her references on file was out of date.

10. The Tribunal found that the claimant had two references on file. However, one of these, from a previous employer, a Mr. Mc Millan, was no longer current.

11. There was no evidence that the respondent Trust had ever allowed a candidate to take up a post without there being two satisfactory and current references available.

12. Personnel asked the claimant to set out her concerns about the reference in full. The claimant told Personnel that she had raised problems concerning issues of Health and Safety, including excessive workloads and staff not being trained properly to cope with the work or workloads and that she had raised these issues at staff meetings in the Finance Department, with Mrs. Rowan, with the Financial Controller George Ong (who was senior to Mrs. Rowan) and had tried to raise these concerns directly with the Director of Finance, Mr Norman Carson.

13. The claimant advised Personnel that she believed that Mrs. Rowan had not recommended her for another position because she had raised these problems, both on her own behalf and on behalf of other staff members. The claimant also told Personnel that she had told Mrs. Rowan of difficulties she had had in her previous experience with the Trust in a former position.

14. The Tribunal found that at no time during the course of this investigation did the claimant refer to any harassment or other inappropriate behaviours of a religious, political or sexual nature that were happening in the Finance Department. During this investigation into the circumstances around the unsatisfactory reference the claimant was given several opportunities to set out her concerns in full. The claimant co-operated fully in this investigation by stating and writing out her concerns. However although the claimant did tell Personnel that she had been given the unsatisfactory reference because she had made complaints and raised concerns about Health and Safety workload issues and because Mrs. Rowan was aware of previous difficulties the claimant had had with the Trust, it was accepted that at no stage did the claimant suggest to or tell Personnel that she had been given the unsatisfactory reference because she had been about to tell someone at Trust Headquarters about the inappropriate behaviours.

The Unsatisfactory Reference

15. The reference was a single sheet, with boxes on it for the referee to indicate on a graduated scale the candidate's performance rating. It also had an area for the referee's comments, if required. The referee indicated that the claimant's ability to work unsupervised exceeded job requirement; that her ability to co-operate with others met job requirements; that in relation to the volume of work completed and the quality of work performance these both exceeded job requirements.

16. In only one work related area, the ability to be flexible and adaptable in attitude to work, did the reference suggest by a tick mark that covered both grades that while this met job requirements there was also a need for some improvement. In that part of the reference form where the referees are asked for other comments the claimant's referee, Mrs. Rowan, stated "Yvonne's work is excellent".

17. The reference form also required comment from the referee in relation to the candidate's health and levels of responsibility and then to indicate, by ticking the appropriate box, whether they would be willing to re-employ the candidate. The answer in relation to the claimant's general health being satisfactory, although factually disputed by the claimant, did not raise any cause for concern on the reference. However, in reply to the question asking, "would you be willing to re-employ the candidate" the "No" box was ticked.

18. As the investigation revealed, on receipt of this reference the Chair of the interview panel, Mr. Billy Jones, rang Mrs. Rowan on the 7^th May 2003. The Chair noted the conversation he had with Mrs. Rowan on the back of the reference form. This note recorded that Mrs. Rowan told Mr. Jones that although the claimant was a good worker she did not want to re-employ the claimant because she was not a good team worker, that she had a disruptive influence on others, was aggressive by nature, could not co-operate with other members of staff, was a very difficult person to deal with and was the most unsuitable person for the post in question.

19. When Personnel advised the claimant that she required another current reference they offered to contact the claimant's referee, Mr. McMillan. The claimant agreed but Personnel were unable to contact him. Personnel again contacted the claimant and asked her for the name of another referee of her choice. The claimant gave them the name of her senior manager, Mrs. Marion Rowan and told them to contact her directly. The claimant did not contact Mrs. Rowan herself either to ask her if she would be willing to give her a reference or to check if Mrs. Rowan felt that she could give the claimant a good reference.

20. The Tribunal found that the claimant expected that Mrs Rowan would give her a reference and had no anxiety that it would not be a good reference. In her conversation with Mrs Rowan later that day, when the claimant made a joke that she hoped that Mrs. Rowan had "lied for her" in the reference, the claimant clearly believed that Mrs. Rowan would have given her a good reference.

21. When the claimant spoke to her senior manager later that day Mrs. Rowan confirmed that she had completed a reference for the claimant. At that stage Mrs. Rowan did not indicate that she had completed an unsatisfactory reference for the claimant.

22. At the end of the investigation into the circumstances around the unsatisfactory reference the respondent Trust's Chief Executive wrote to the claimant advising her that she had not been appointed to the post because the person she had named to be a second referee had not provided a satisfactory reference.

Did the Claimant have Protected Status?

23. The claimant's claim for victimisation was that she had received an unsatisfactory reference from Mrs. Rowan to prevent her from getting the job at Trust Headquarters. This was because the claimant believed that Mrs. Rowan knew or suspected that the claimant would tell people at Trust Headquarters about the inappropriate behaviours in the Finance Department. The claimant relied on a number of examples of how she raised issues and concerns she had in the workplace and how she was prepared to by-pass line management structures and take matters to the higher ranks of senior management to illustrate how Mrs. Rowan would have come to the view that the claimant would have reported the inappropriate behaviours.

24. The claimant also cited these events and incidents to demonstrate that the reasons given by Mrs. Rowan to support the reference not to re-employ her were inaccurate and untrue. By reference to these events the claimant sought to demonstrate that she was not disruptive and that she was a good team player. These events related to workload issues, comments about the staff member's car accident and the claimant's alleged disregard for the line management reporting structures.

25. The respondent Trust stated that the reference was an objective one and was based on Mrs. Rowan's view that the claimant was interfering and disruptive and caused upset amongst staff. The Trust stated that Mrs Rowan had given the claimant the unsatisfactory reference on the basis of her experience of her and in particular with reference to two specific instances re Mrs. Angela Kelly and Mrs. Valerie Allister.

26. It was the respondent Trust's case that the events and incidents relied on by the claimant bore out the comments made in the reference that the claimant was disruptive, aggressive by nature and could not co-operate with other members of staff with a disregard for line management structures.

27. It was agreed between the parties that the claimant was a person who raised issues and complaints in the workplace: indeed the claimant was happy to agree that she was a "complainer", that she was happy to raise issues of difficulty and concern in the workplace on her own behalf and on behalf of others. The claimant described herself as "a crying baby". She defended her stance, stating that she was happy to be a complainer and to draw attention to problems and that she had complained where she thought it relevant to do so, and in terms of Health and Safety issues in particular.

28. The Tribunal heard evidence in respect of these incidents and found the following facts in respect of them

Being A Good Team Player/Disregard for Line Management Structures

29. Complaints at Staff Meeting, October 2002.

The claimant referred to an occasion when, at a staff meeting a colleague of hers, Mr. Ferris stated that he could not cope with his workload and made an emotional speech to this effect. Mr. Ferris had been complaining about this for some time and had raised his difficulties with a number of managers. At that staff meeting, in October 2002, the claimant's senior managers Mrs. Rowan, and Mrs. Rowan's senior manager George Ong, were present.

The claimant sought to support Mr. Ferris's claim by speaking up on his behalf and agreeing that she too felt that the workload was excessive.

30. The claimant suggested to Mr. Ong that more staff and training were needed to alleviate the pressure. Mr. Ong advised that staffing levels were the responsibility of the Finance Director, Mr. Norman Carson and that more staff would not be a likely option.

31. The claimant then asked if she could speak to Mr. Carson and explain the position, as this might help. Mr. Ong spoke to the claimant the following week and told her that he had contacted Mr. Carson to tell him that she had wanted to see him but he had not been available and that he would continue to pursue it with him. However neither Mr. Ong nor Mr. Carson contacted the claimant thereafter.

32. The claimant stated that she was aware that Mrs. Rowan thought that she had been forward and cheeky to speak up and to make the suggestion that she would speak to Mr. Carson.

Approach to Financial Director

33. The claimant stated that Mrs. Rowan had written her an unsatisfactory reference to stop her getting a post in Trust Headquarters because Mrs. Rowan knew that the claimant was capable of approaching the Chief Executive and reporting her concerns to him directly. The claimant agreed that she felt that she was entitled freely to approach senior management and that she had sought to do so on a number of occasions.

34. The claimant attended an induction/training day in June 2002. The Chief Executive and the Finance Director were there. They spoke about the ethos of the respondent Trust and according to the claimant emphasised that all complaints and comments should be welcomed. The claimant did acknowledge that these comments referred to complaints and comments from the respondent Trust's users and clients but the claimant explained that it was in this context that she felt that she could approach the Finance Director directly.

35. The claimant wrote a note to the Finance Director in January 2003 on the back of the induction/training day power point notes she had been given back in June 2002, and gave it to the Director in an envelope. The Tribunal did not see the note but in it the claimant referred to the request she had made to meet him in October 2002 (through George Ong at the staff meeting) and stated that she wanted to discuss issues with him.

36. The Finance Director replied by letter dated the 14^th February 2003. This reply indicated that the Director was shocked to receive such a note. The reply also advised the claimant that she had already been told that a meeting with him would be inappropriate, as recommendations regarding operational office procedures would be considered within the office.

37. The Director's reply also indicated that the claimant's request to see him in October 2002 may have been overlooked but went on to advise the claimant that she should raise any concerns she had with her line manager.

38. The claimant returned the Director's letter to him, with a With Compliments slip attached to it. On the slip the claimant told the Director that his reply was incorrect in that she had not been so informed that a meeting with him would be inappropriate and she went on to invite him to hear what she had to say before her contract ran out in a couple of months, or she would write to him after she had left. The claimant did not write to Mr. Carson again either before or after she had left the Trust.

39. The Tribunal found that the claimant did not attempt to make any complaint directly to her line manager Mrs. Kelly, to Mrs. Rowan or to George Ong, other than speaking up at the staff meeting nor did she put any complaint in writing to any one of these managers. Although in the earlier instance when the claimant had been vocal in the general office about excessive workloads and ineffective management she did not make any specific complaints in relation to these to Mrs. Rowan, on that date or at any time before the staff meeting in October 2002.

40. In seeking to speak directly to Mr. Carson the claimant sought to by-pass her own line manager, and Mrs. Rowan and Mrs. Rowan's line manager, Mr. Ong, because she believed that if she spoke to the Finance Director then the workload situation would improve.

41. The Director's reply in February 2003 also made it clear that he had made inquiries about her note before replying to the claimant. It was at this point that the claimant indicated to the Tribunal that she believed that her "cover was blown" and that from this point Mrs. Rowan would have become aware that that the claimant was trying to discuss with Mr. Carson the issues she had raised regarding the Health and Safety issues of excessive workloads, poor training and no staff support.

42. However the Tribunal noted that Mrs. Rowan had been present at the staff meeting in October 2002 when the claimant had first signalled her request to speak directly to Mr. Carson about her complaints and would have become aware of the claimant's intention to speak to Mr. Carson about these matters from that point.

43. The Tribunal found that the complaints that the claimant made at the staff meeting related to excessive workloads and insufficient staffing levels. The Tribunal found that there was no evidence to suggest that the claimant was seeking to report to Mr. Carson, or to anyone else, any concerns she had about inappropriate behaviours in the Finance Department.

Increments

44. When she was appointed to her post the claimant discovered that she ought to have been given credit in her salary for her previous similar experience. The claimant raised this matter with Mrs. Rowan. Mrs. Rowan secured increments for the claimant. Mrs. Rowan spoke to the claimant in the car park and confirmed that she had done so. The claimant advised Mrs. Rowan that she would consider the increments being offered and added that if she were not satisfied with them she would go straight to the Chief Executive.

45. The Tribunal found that Mrs. Rowan had been properly active in securing the increments for the claimant. The Tribunal noted that Mrs. Rowan had made the correct recommendations to the Financial Director based not only on the claimant's previous experience but also on its relevance to the post she was doing at the respondent Trust.

46. The Tribunal found that the claimant's remark that she would approach the Chief Executive was at best undermining Mrs. Rowan and clearly demonstrated a lack of respect and a disregard for senior line management structure in that the claimant was indicating that she could and would by-pass all appropriate ranks and go straight to the Chief Executive herself, if she wanted to.

47. The Tribunal found that these incidents and events did demonstrate the claimant's disregard for the line management structures that were in place in the department.

Being a Team Player/Causing Upset and Being Disruptive

Re Angela Kelly

48. The Tribunal heard evidence from the claimant that she had spoken up on a number of occasions about what she considered were the excessive workloads in the department.

49. One such occasion was when the claimant had been in post for approximately three weeks. The claimant told the Tribunal that she had spoken to her line manager, Mrs. Kelly, and had advised her that she the claimant thought she had an excessive workload. The claimant had become alerted to this because of the very untidy state of Mrs. Kelly's desk. The claimant approached Mrs. Kelly and commented on the state of the desk and went on to add that it was understandably in that state because of the pressure of her excessive workload. The claimant told Mrs. Kelly that she believed that senior management was responsible for the excessive workloads in the department. Mrs. Kelly became distressed and upset during this conversation. The claimant maintained that she was being supportive towards Mrs. Kelly and anxious about how the workload could impact on her health.

50. The Tribunal did not hear from Mrs. Kelly but heard from Mrs. Rowan. It was not challenged that Mrs. Rowan had worked well with Mrs. Kelly for over 20 years and they had a good working and personal relationship.

51. Mrs. Rowan had overheard the claimant on this occasion from her office beside the main office and she formed the view that the claimant was "holding court" and causing upset. Mrs. Rowan checked with a staff member who had been in the main office and on verifying the situation Mrs. Rowan called the claimant into her office to speak to her about the incident.

52. There was much dispute about this meeting. The claimant stated that she had made an approach to Mrs. Rowan about salary increments and that they had discussed the incident at a later point in the meeting. The claimant accepted that there had been a discussion about Mrs. Kelly and that she had told Mrs. Rowan that she believed that Mrs. Kelly was under pressure, as the state of her desk clearly demonstrated, and that she offered the claimant no training support or help as her line manager.

53. However the claimant could not remember how the subject of the incident had come up and suggested that it might have arisen because Mrs. Rowan had a form to complete about how the claimant was settling in to her new post and wanted her views on the department.

54. The Tribunal accepted the version of this event from Mrs Rowan, for these reasons; Mrs. Rowan's recollection about having asked the claimant to come to her office in this regard was clear. The Tribunal accepted that Mrs. Rowan was shocked that an employee as new to the department as the claimant then was could make such ill-informed judgements and comments about the way in which the department worked and that she felt the need to speak to the claimant about the incident. The Tribunal also accepted that Mrs. Rowan believed that the claimant had caused upset to her valued colleague and that she wanted to restrain the claimant from making further comments to Mrs Kelly or about the state of Mrs. Kelly's health and other matters that were of no concern to her.

Re Valerie Allister

55. The Tribunal heard evidence from both parties in relation to a car accident that had happened in the staff car park. A staff member in the Finance Department, Mrs. Allister, had been involved in a collision and was very upset the next day when she was relating the details of it to her colleagues. The claimant told the staff member that she should get her eyes tested and get anti-glare glasses but stressed that in so doing she was being helpful and supportive.

56. The Tribunal heard that the staff member had gone to Mrs. Rowan and reported how these comments of the claimant's had caused her even more distress and upset.

57. The Tribunal found that the claimant had caused the staff member distress and upset by her remarks and that the remarks had not been made in order to be helpful and supportive.

58. The Tribunal heard evidence from Mrs. Rowan. The Tribunal accepted that Mrs. Rowan had completed the reference honestly and recorded accurately her view of the claimant as a worker. The Tribunal also accepted that Mrs. Rowan had genuinely felt that the claimant was not suitable for re-employment with the Trust and that this genuinely held view was based on her experience of the claimant.

Health

59. The claimant stated that one of the reasons she spoke out about the Health and Safety issue of excessive workload was that she was concerned for her own health.

60. The claimant experienced health difficulties shortly after she began working for the respondent Trust and the claimant blamed these health difficulties on her workload. However although the claimant indicated that her health was a reason that motivated her to speak out, there was no evidence that she ever mentioned, complained or otherwise raised her concern that her health was being affected by the workload.

61. The Tribunal saw the claimant's medical records and found that there was no indication in them that the claimant had reported to her doctor any connection between her health difficulties and her work. Nor was there any reference to any stress-related cause for the claimant's health difficulties.

The Investigation into the Allegations on the Claim Form

62. The Trust set up an investigation to look into the allegations in the claimant's claim form. The investigation was also based on complaints raised by two other staff members in the same workplace in relation to harassment and arrangements within the division.

63. The terms of reference for this investigation were broad and the investigating panel was asked in the context of these complaints, to assess the total systems in operation for Finance to determine how those complaints came to be made and whether they had any foundation in fact. The investigating panel were directed to assess

Recruitment and Selection arrangements within the division

The processes for training professionals within the division

Communications within the division

Management of the division

Culture and ethos of the division

Relationships between staff and the rest of the team

Relationships within the Senior Team and the overall line management

Relationships between the different departments within Finance

To deal with any other issues of concern arising from the investigation

To recommend what action, if any, should be taken in relation to matters investigated.

64. The Tribunal saw the executive summary of the report that was made at the conclusion of the investigation and an extract from the report where it touched on the complaints made by the claimant.

65. The respondent Trust contacted the claimant to ask her to speak to them in relation to the allegations contained in her claim form. The claimant met one of the investigating panel members in October 2003. At that first interview the claimant made it clear that she was complaining on her own behalf only and that her main complaint was that Mrs. Rowan had given her an unsatisfactory reference to prevent the claimant taking up a post in the respondent Trust's Headquarters and tell every one there what was going on in the Finance Department.

66. The claimant then told the investigating panel that people were misbehaving in the Finance Department because they were not being managed properly. The claimant blamed Mr. Carson for not giving a damn about the department as long as it was running smoothly. The claimant complained that Mr. Ong was too busy to manage the Department. The claimant complained that although there was a line management structure in place none of the managers took any responsibility and used Mr. Carson as an excuse for not doing anything, like getting in additional staffing, saying that he would not approve. The claimant stated that as she had been leaving anyway because of her health she had tried to go directly to Mr. Carson.

67. The claimant stated that another senior manager, Siobhan Barronwell, sent her "rejects" to the Finance department and that Mr. Carson approved of this, as Ms. Barronwell was seen as being close to Mr. Carson.

68. The claimant stated that Mr. Carson's reply to her (as referred to at paragraph 36 above) had angered her. The claimant also expressed her annoyance that Mr. Carson had failed to notice the tri-coloured rubbers that were on display in the office. The claimant stated to the investigating panel on this occasion that her complaint was a general one and if the panel wanted more information about the harassment of another staff member for supporting a "coloured girl" in the department and who had been ostracised for doing so that they should approach that staff member directly.

69. At that first interview the claimant had stated that "There was supposed to be equality in the office but Mrs. Rowan is a Catholic and I am a Protestant. I feel I would have been treated differently and got a better reference if I had been a Catholic. It will be for the courts to decide if Mrs Rowan was right in thinking I did not get on with people".

70. The claimant was sent a copy of the statement she made at that meeting and inserted an amendment to that sentence so that it read "I feel I would have been treated differently and got a better reference if I had been a Catholic…but I can't decide until I see all the facts of what exactly was said" (amendment in italics).

71. The investigation panel interviewed the claimant again. The panel sought greater details about the allegations of misbehaviour made by the claimant. The claimant gave these details but did so reluctantly and stated that she had not given names previously as she feared intimidation from workers in the department known as "The Castlewellan Mafia", a group headed up by a woman in a senior grade 5 post, equivalent to the claimant's own line manager. The claimant stated that the term "Castlewellan Mafia" was not referred to in a religious/political way, "… it was about how a group from a country area looked out for each other."

72. The claimant made a number of allegations about inappropriate behaviour, of sexual and religious harassment and of bullying. The claimant stated that while others were offended by the sexually provocative behaviour of Yvonne Mc Clean she was not, that she saw the behaviour as people under pressure letting off steam.

73. The claimant became aware of the bullying of a colleague, Mrs. Belle Armstrong, because Mrs. Armstrong told the claimant about it. Mrs. Armstrong had not taken part in the ostracising of another person, Carletta Blythe, and she herself was cold-shouldered. Carletta had not got a promotion post and had complained about it. A Catholic got the post, a woman who was part of the Castlewellan Mafia. The post had to be re-advertised. Mrs Armstrong was reluctant to complain about this and the claimant told her that she would raise it on her behalf after she had left the Trust.

74. The claimant stated to the Tribunal that she had told Mrs. Armstrong that she would raise the issue of the harassment of her discreetly once she had left the Trust. However the Tribunal found that the claimant was reluctant to report any details to the investigators beyond making her own case that she had received the unsatisfactory reference because Mrs. Rowan knew or suspected that the claimant was about to report the inappropriate behaviours. The claimant's "reporting" of this was to try to resist giving details about the matter and to invite the investigators to ask Mrs. Armstrong herself for the details. The Tribunal found this to be inconsistent with the claimant's statement that she had promised Mrs. Armstrong that she would raise the matter, implicit in which was the promise that in so doing Mrs. Armstrong would be thus protected from any consequences of having to do so herself.

75. The claimant stated that religion was not kept low key, that the Protestants felt very much in the minority as if the whole building was Catholic. However the claimant went on to state that, for her, this was not the issue

"...I was given a bad reference because I stood up for things. I was too afraid to bring up more serious issues openly, I tried to speak to the Director, All I know is I was told about the Castlewellan Mafia and saw that Catholics were very comfortable in their positions. I saw Catholics getting promoted. I accepted it and in terms of everyday interaction I wouldn't have minded being the only Protestant but other people told me how the place worked. I also observed it happening. I did nothing until Belle and Carletta suffered. Tricolours can seem innocent until you need to complain about something then you start to realise what they symbolise." This was a reference to the tricolour rubbers.

76. The claimant also reported that Yvonne McClean told jokes and had conversations of a sometimes-shocking sexual nature. The claimant did not object to this humour herself but asked another colleague to try and get it stopped because it offended Fred Ferris but stated that supervisors who were higher up than Ms. McClean did nothing to stop her behaviour.

77. The claimant also referred to a perception she had that the Finance Director favoured Ms. Barronwell but while she had no specific information on any close relationship they might have she said that this would remain as a perception of favouritism.

78. The claimant also stated in her second statement that it had not been her intention to assist the Trust in targeting anyone when her problem was with Management who did not manage. The claimant stated that she had only

supplied details because she was asked to do so and that "...there is a reference about me written by Marion Rowan and in trying to show why she wrote it I have had to co-operate".

Investigations Findings

79. The investigating panel investigated eight complaints raised by the complainant, based on her statements and made findings in respect of each of them. These are as follows

Reference from Mrs. Rowan received because claimant was a Protestant;

Harassment following non-promotion of Carletta Blythe;

Display of tricolour rubbers

Finance Director failed to speak directly to claimant

Bullying

Inappropriate language used by Yvonne Mc Clean

Ineffective Management

Favouritism

80. The investigation upheld four of these complaints, namely, Display of the tricolour rubbers, Bullying, Inappropriate language used by Yvonne Mc Clean and Ineffective Management. The investigating panel made specific recommendations for follow-up action based on their findings. The investigation rejected the other complaints made by the claimant.

81. The investigating panel based their conclusions on interviews they had with other members of staff. The claimant had referred the investigating panel to the harassment of Belle Armstrong for her support of Carletta Blythe but although Mrs Armstrong's statement did disclose other severe harassment of her she did not mention in it this particular piece of harassment. Mrs. Armstrong in her evidence to the Tribunal agreed that she had not mentioned this to the investigating panel.

82. The Tribunal noted that the investigating panel found that management action was inefficient and that there was an absence of effective management control with the Finance Department at the time the inappropriate behaviours occurred.

83. The Tribunal found that this ineffective management control related to the management of Mrs. McClean in July/August 2002 and in December 2002. At this stage Mrs. Rowan had moved out of her own post and was away from the Finance Department office. Mrs. Mc Clean was acting grade 6 and George Ong was her line manager. However he worked out of another building. In July 2002 when details of her behaviour came to Mr. Carson's attention he brought her over into his office to speak to her about it. Mr. Carson had cause to speak to Mrs. Mc Clean again in December 2002 about her use of foul language. Accordingly the Tribunal found that Mr. Carson was aware of some of the inappropriate behaviour in the Finance Department before the claimant wrote to him in February 2003.

The Tribunal's Conclusions

10. From the primary facts found and in applying the applicable law to those findings of fact, the Tribunal concluded that the claimant had not been less favourably treated on the grounds of her religion or politics by reason of victimisation, for the following reasons;
11. The claimant's case of victimisation was that she had been required to obtain the new second reference so that an unsatisfactory reference could be given and that the unsatisfactory reference was given to her to prevent her getting the post in question so that she would not be in a position to tell anyone in Trust HQ about the inappropriate behaviour going on in the Finance Department.
12. The Tribunal concludes that the respondent Trust's requirement that the claimant obtain a new second reference was not a means by which a second but unsatisfactory reference could be obtained and thus prevent the claimant from getting the permanent post. While it may have been unfortunate that candidates were not made aware of this requirement in the job documentation the fact of the policy was not such a fact from which an inference of discrimination could be drawn. The Tribunal is influenced in reaching this decision by the finding that the respondent Trust had not misapplied this policy or that the policy had ever been waived for other candidates.
13. The Tribunal is also influenced in reaching this conclusion by the steps taken by Personnel to allow the claimant to correct the situation. Although the claimant may have been at a disadvantage in that she was under pressure to produce the second reference in a tight time scale nevertheless it is clear that Personnel offered the claimant the opportunity not only of securing a second reference but also made efforts to secure that second reference on the claimant's behalf.
14. The Tribunal is also influenced by the fact that Personnel also sought, on the claimant's behalf, to secure the requisite second reference from the claimant's own previous referee, Mr. McMillan. The Tribunal is also influenced by the fact that when that attempt failed the claimant herself suggested Mrs. Rowan as her referee, declined Personnel's suggestion that she approach Mrs. Rowan herself first and told Personnel to ring Mrs. Rowan directly. The Tribunal is also influenced by the fact that the claimant had every expectation that Mrs. Rowan would give her a reference and that the claimant had no anxieties that it would not be a good reference.
15. The Tribunal concludes that the claimant has not made out her case that she was victimised by Mrs. Rowan in being given an unsatisfactory reference. This claim is predicated on Mrs. Rowan either knowing or suspecting that the claimant had or was about to do a protected act, in this case to report the incidents of religious/political and racial inappropriate behaviours in the Finance Department. However the Tribunal concludes that Mrs. Rowan did not know or suspect that the claimant had or was about to carry out any such protected act.
16. The Tribunal's conclusion is based on the findings of fact in this regard. These include the finding that, although the claimant was a person who spoke up about and complained about matters that ranged from issues like the size of workloads to the driving competence of one of her colleagues, the claimant did not at any stage raise any complaint whatsoever to anyone during her employment, or even after her employment before she lodged her claim, about the inappropriate behaviours that were subsequently proven to be rife in the Finance Department.
17. The Tribunal is further supported in this view by its findings in relation to the investigation into claimant's allegations on her claim form. This clearly demonstrates the claimant's singular complaint throughout was about what she believed to be ineffective management and this was consistent with the complaints the claimant made during her employment.
18. The investigation further revealed that the claimant had been aware of the inappropriate behaviours but, with reference to the sexually explicit joke telling and horseplay, had not found it objectionable nor did she feel intimidated by the inappropriate religious and political behaviours around her. The Tribunal concluded from these findings that the claimant did not make any complaints to senior management about the inappropriate behaviours because she did not find them objectionable or feel the need to complain about them.
19. The Tribunal noted that the claimant had an opportunity to report the inappropriate behaviours at the time when Personnel asked her to set out in full her concerns about her getting the unsatisfactory reference when the claimant herself said that "there was more to this than meets the eye" but the claimant failed to make any reference to her belief that Mrs Rowan knew or believed that the claimant would report at Headquarters details of the inappropriate behaviours going on in the Finance Department. If the claimant had believed that she had been discriminated on the grounds of her religious or political belief by way of victimisation in that the respondent Trust knew or suspected her of being about to carry out a protected act then this was the very moment when that victimisation occurred and the claimant was given an immediate opportunity to uncover it. The claimant was being given an opportunity to "retrieve the situation".
20. This is particularly critical when what was at stake for the claimant was a permanent post. This was the time for the claimant to put forward all the reasons she thought were behind the unsatisfactory reference. The claimant sent Personnel a list of the reasons she believed Mrs. Rowan had given her the unsatisfactory reference but it did not include in it any reference to her belief that she had been victimised. The Tribunal does not accept that the claimant would not have mentioned her concerns about being suspected of being about to spill the beans if she had truly thought that this was the case.
21. The Tribunal did not accept the claimant's claim, stated at the hearing, that the reason she had not raised the more serious concerns about the inappropriate behaviours while still in employment was that she afraid to do so. The Tribunal noted that the claimant prided herself on complaining and raising issues. It was accepted by the claimant that she was a complainer and that she was not afraid to speak up or raise issues. She demonstrated fearlessness and even a determination to report concerns she did have to the highest authority. The Tribunal noted that the claimant's

personal approach to the Finance Director when she gave him her note; the Tribunal noted the tone and contents of the claimant's response to his reply to her and in all of these perceived no fear or anxiety.

22. The Tribunal also noted the fact that the claimant felt no threat working in a predominantly Catholic workplace. The Tribunal also noted the claimant's reluctance to give details at the investigation stages, which would have been a time when the claimant could have given the details with no fear of consequences. On the basis of these facts the Tribunal did not accept the claimant's evidence that she was afraid to complain about the inappropriate behaviours.
23. Accordingly the Tribunal found that there was no evidence from which to draw an inference or on which to conclude that Mrs. Rowan knew or believed that the claimant had or was about to complain to the respondent Trust's Headquarters about any inappropriate behaviours in the Finance Department. The Tribunal concluded that if the claimant had been about to report these matters Mrs. Rowan would have become aware of the claimant's concerns about them in the same way as she had become aware of the claimant's other concerns.
24. The Tribunal is also influenced by the facts, which indicate that the claimant was well known to Mrs. Rowan from the outset as an employee who was vocal in her views about issues in the workplace. At the outset of her employment the claimant made known openly to the office her views on the inadequacy of management in managing staff workloads, in failing to provide proper staff training, and in failing to secure additional staffing. Mrs. Rowan was also left in no doubt by the claimant that she would be prepared to raise these issues with the most senior personnel in the respondent Trust. The claimant spoke up at the staff meeting about these same issues when senior managers were present and indicated her willingness to speak directly to Mr. Carson about them, to see if she could succeed where they had failed in addressing the issues. The claimant indicated to Mrs. Rowan on another occasion that she could and would go directly to the Chief Executive if the increments Mrs. Rowan had secured for the claimant were not satisfactory to her.
25. However in spite of these indications of the claimant's preparedness to speak out there was no evidence to suggest that Mrs. Rowan was concerned or fearful about this preparedness to speak to higher authorities about her complaints. There was no evidence that Mrs Rowan sought to restrain or silence the claimant or to prevent her from reporting anything to any senior manager. There was no finding that Mrs.Rowan resented or was fearful of the claimant approaching the Chief Executive or that she sought to prevent her doing so in relation to the increments she had secured for the claimant, or in relation to any other matter.
26. The Tribunal noted that on the occasions when Mrs. Rowan did speak to the claimant about her being vocal and interfering her concern was to reproach the claimant for the expressing of ill-informed views and causing distress to Mrs. Rowan's staff members. There were no findings in relation to these incidents to suggest that Mrs. Rowan was fearful of or anxious to restrain the claimant's complaining behaviour except where Mrs. Rowan felt that this was having a deleterious effect on her staff.
27. These facts supported the Tribunal's conclusion that Mrs. Rowan did not give the claimant an unsatisfactory reference because she wanted to prevent her from reporting inappropriate behaviours at Trust Headquarters, that Mrs. Rowan genuinely believed that the claimant should not be re-employed with the Trust and that she had formed her view on the basis of her experience of her. In view of the Tribunal's findings in relation to each of the basis of fact in relation to this view the Tribunal accepts that this was the reason for the unsatisfactory reference.

Comparator

28. The claimant did not indicate any actual comparator who had been more favourably treated in the same circumstances or in circumstances not materially different to her own. However the Tribunal considered whether a hypothetical comparator would have been treated more favourably and concluded, in the light of its findings, that anyone in the same or not materially different circumstances as the claimant would not have been treated more favourably than the claimant.
29. Accordingly the Tribunal's conclusion is that the claimant's claims are dismissed.

Chairman:

Date and place of hearing: 24-28 October 2005 and

23-25 November 2005, Belfast.

Date decision recorded in register and issued to parties: