Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 259/02 FET

1358/02

CLAIMANT: Rosaleen Carlin

RESPONDENT: Social Security Agency

DECISION

The unanimous decision of the Tribunal is that the claimant's claims are not well-founded. Accordingly, all of those claims are dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mr B Schofield

Mrs A Gribben

Appearances:

The claimant was represented by Mr P Moore.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

REASONS

1. The claimant was a Northern Ireland civil servant for many years. Latterly, she was employed as the Department for Social Development ('the DSD') Establishment Officer. (That post is referred to below as 'the relevant post'.) She was still employed in that post when she retired from the Civil Service. She retired in May 2006 because of ill-health.
2. The respondent to these proceedings, the Social Security Agency ('the Agency') is the body tasked with administering most Northern Ireland social security benefits. The Agency is a constituent part of the DSD ('the Department') which is a Northern Ireland Government Department. All relevant staff within the Agency are, by virtue of their status as staff of the Agency, staff of the Department. However, for administrative purposes, the Agency is treated by the Department as though it was a separate entity.

The previous proceedings

3. The claimant has previously brought discrimination proceedings against the Agency on two separate occasions.
4. In May 1999, she commenced a sex discrimination claim, in which she alleged that she had been subjected to sex discrimination because Mr Pat Magee (a witness in the present proceedings) was successful in an application for a Grade 7 Civil Service appointment for which the claimant had also applied.
5. In June 1999, the claimant brought proceedings in the Fair Employment Tribunal alleging that she had been subjected to religious discrimination by reason of the fact that Ms Elaine Mawhinney (now Elaine Wilkinson) had been selected to fill a post in which the claimant was interested. (Ms Wilkinson was a witness in the present proceedings.)

The victimisation discrimination legislation

6. Article 8 of the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order') makes it unlawful for an employer to discriminate (within the meaning of the 1976 Order) against an employee:-

" … by dismissing her, or subjecting her to any other detriment."

7. For the purposes of the 1976 Order, 'discrimination' includes victimisation discrimination, which is defined in Article 6 of that Order. According to Article 6, a person discriminates against another person ('the person victimised') in any relevant circumstances if he treats the person victimised less favourably than in those circumstances he would treat other persons, and does so by reason that the person victimised has carried out a protected act. (It is agreed between the parties that, for the purposes of Article 6, the claimant did carry out a protected act by making the sex discrimination claim in respect of the Magee appointment.)
8. Article 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ('the 1998 Order') makes it unlawful for an employer to discriminate against an employee:-

" … by dismissing [her] or by subjecting [her] to any other detriment."

9. In the context of Article 19, 'discrimination' includes victimisation discrimination, which is defined, for the purposes of the 1998 Order, at Article 3 of that Order. That definition makes it clear that a person ('A') discriminates by way of victimisation (for the purposes of the 1998 Order) against another person ('B') in any relevant circumstances if he treats B less favourably than he treats or would treat other persons in those circumstances and he does so for a reason mentioned in paragraph (5) of Article 3. The carrying out of a protected act is a reason which falls within the scope of Article 3(5) list. (It is agreed between the parties that, by making the Fair Employment Tribunal claim mentioned above, the claimant carried out a protected act for the purposes of the Article 3 definition.)

The claims

10. The claims, as specified in the claim form, were as follows. The claimant claims that the Agency (through the actions of individual perpetrators) mistreated the claimant in the following aspects:-

(1) According to the claimant, she should have been recognised as being a member of staff of the core Department (as distinct from being treated as a member of staff of the Agency) as soon as she was appointed to the relevant post. Alternatively, the Agency and the Department should have decided, as a matter of policy, to treat her as a member of staff of the core Department relatively soon thereafter. (According to the claimant, the relevant perpetrators in respect of that act of mistreatment were Mr Frank Duffy (a witness in these proceedings), Ms Wilkinson, Mr Magee and Mr Malcolm Beattie. (Mr Beattie was also a witness in the present proceedings.) In this Decision, we refer to this allegation as 'the location allegation'.

(2) When the claimant complained of the behaviour of Mr Beattie in connection with incidents which occurred in October 2001, the reaction of Mr Magee was unsatisfactory. The response was unsatisfactory because Mr Magee should either have begun disciplinary action against Mr Beattie or, alternatively, he should have frankly and unequivocally acknowledged to the claimant that what Mr Beattie had done was wrong. (Mr Magee is the person mentioned as the perpetrator in respect of this act of alleged mistreatment.) In this Decision we refer to this allegation as 'the Beattie allegation'.

(3) When a civil servant (who we will call 'X') refused to transfer to the core Department in early 2002, Mr Magee did not force him to do so. (Mr Magee was the perpetrator in respect of this alleged act of mistreatment.) In this Decision, we refer to this allegation as 'the X allegation'.

11. The Agency accepts, in relation to each act of alleged mistreatment, that if that act did indeed constitute mistreatment, the relevant mistreatment amounted to subjecting the claimant to 'any other detriment' for the purposes of Article 8 of the 1976 Order and for the purposes of Article 19 of the 1998 Order. (Both parties are mindful of the principle that an unjustified sense of grievance cannot amount to a 'detriment' for the purposes of the relevant employment discrimination provisions: (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 1 ICR 337, 349, at paragraph 35.)
12. The 1976 Order and the 1998 Order both provide a potential defence for an employer, who can escape liability, for the discriminatory acts of any work colleague of the victim, by proving:-

" … that he took such steps as were reasonably practicable to prevent [the perpetrator] from doing that act, or from doing in the course of his employment acts of that description".

The Agency does not invoke the reasonable practicability defence in this case.

13. The claimant does not cite any actual statutory comparators. Instead, in the context of these claims, she relies upon hypothetical statutory comparators.
14. In replies to an Order for Particulars ('the Replies'), the claimant has amplified the allegations of mistreatment in the following respects.
15. She amplified and commented upon the organisational location allegation of mistreatment in the following terms:-

"(a) Failing to locate [the claimant] within the core business area of the Department of Social Development (DSD), namely DSD(HQ), contrary to the terms of her appointment to the post of DSD Establishment Officer, on promotion to Grade 7 in July 2000, and NICS-wide custom and practice.

(b) Alleging inaccurately that [the claimant] was a member of Social Security Agency (SSA) staff, contrary to the terms of her appointment to the post of DSD Establishment Officer, on promotion to Grade 7 in July 2000, and NICS-wide custom and practice.

(c) Unilaterally varying the terms of [the claimant's] appointment to the post of DSD Establishment Officer, following her promotion to Grade 7 in July 2000, in locating her in the SSA.

(d) Applying differential standards to [the claimant] by refusing to locate her, like other Grade 7s in the Department, within the business area of the Department to which she provided a dedicated service, following her appointment as DSD Establishment Officer.

(e) Arbitrarily excluding [the claimant] from plans to relocate to Churchill House in August 2000.

…

(g) Failing to resolve the concerns and queries raised by [the claimant] about the improper location of her post as DSD Establishment Officer in the SSA.

…

(l) Failing to resolve the on-going concerns and queries raised by [the claimant] about the improper location of her post, as DSD Establishment Officer, in the SSA, following the departmental review of support services in January 2001.

…

(p) Applying differential standards to [the claimant], as a SSA Grade 7, in that unlike SSA Grade 7s she was not ultimately accountable to the SSA Chief Executive, the head of the organisation in which her post was located.

(q) Applying differential standards to [the claimant] as Departmental Establishment Officer in that, unlike other Departmental Establishment Officers in the NICS, she was not a standing member of the Service-wide Establishment Officer forum, contrary to NICS-wide custom and practice from June 2001.

…

(z) Failing to resolve the long running issue of [the claimant's] location within the Department following responses from Directors within DSD(HQ) on the matter.

(aa) Failing to advise [the claimant], before March 2002, that she should be properly located within the core business area of the Department, namely DSD(HQ)."

16. In the same Replies, the claimant amplified and explained the allegation of mistreatment in connection with the Beattie allegation, in the following terms:-

"(s) Unjustifiably withholding from [the claimant], certain work-related information concerning the health and well-being of a member of her staff in a managing attendance case/grievance case, contrary to custom and practice and agreed managing attendance and grievance procedures in September 2001.

(t) Failing to organise a case conference about the managing attendance case concerned, having given [the claimant] an undertaking to do so in October 2001.

(u) Exerting undue pressure on [the claimant] to release the staff member involved in the managing attendance case.

(w) Alleging that certain work-related issues were profoundly distressing the staff member involved in the managing attendance case, contrary to advice given to [the claimant] by the Director of the Occupational Health Service.

…

(a) Failing to conduct a full and properly fact-finding investigation into [Mr Beattie's] conduct in an absence management case, involving a member of the [claimant's] staff, having given the [claimant] an undertaking to do so.

(b) Failing to provide answers to certain questions about [Mr Beattie's] conduct in the case in question, having asked the Applicant to identify those certain questions.

(c) Failing to resolve the concerns and queries raised by [the claimant] about [Mr Beattie's] conduct in the case in question."

17. In the same Replies, the claimant explained and amplified the X allegation of mistreatment in the following terms:-

"(a) Unilaterally withdrawing from a longstanding agreement with [the claimant] concerning a job posting in DSD(HQ), as a direct result of an alleged grievance lodged against [the claimant] about an accommodation issue.

(b) Failing to deal with [X's] unreasonable behaviour following resolution of the accommodation issue.

(c) Exerting undue pressure on [the claimant] to accept the breached agreement about the job posting."

18. Apart from the allegations quoted above, the Replies contained a significant number of additional allegations. Those additional allegations were included in a largely unsuccessful application to leave to amend the claim form, which was made during the course of this hearing. (See below, at paragraphs 60 – 77.)

The sources of evidence

19. Oral testimony on behalf of the claimant was received from the claimant herself and from Mr Richard Consiglio. The claimant had been Mr Consiglio's direct line manager; he had been one of the claimant's 'direct reports' when she had been working in the relevant post.
20. We received oral testimony, which was given on behalf of the respondent, from the following:-

(1) Mr Magee;

(2) Mr Frank Duffy, who was the claimant's immediate line manager from the time she was appointed to the relevant post until the end of December 2001;

(3) Ms Elaine Wilkinson;

(4) Mr Beattie;

(5) Mr Tommy O'Reilly (who was the claimant's line manager, in respect of the relevant post, from January 2002 onwards); and

(6) Ms Pauline Shannon.

21. We also saw the contents of three large bound bundles of documents. We told the parties that we would only have regard to any document within any bundle if our attention was specifically drawn to that particular document.

The arguments

22. The main arguments on behalf of the claimant can be summarised as follows. The treatment complained of all happened in the manner alleged by the claimant. All of that treatment constituted mistreatment. Mr Duffy was one of the people who was accused of sex discrimination by the claimant in the 1999 proceedings. That circumstance enhanced the plausibility of the allegations of victimisation discrimination against him. Mr Magee was the successful candidate whose appointment had prompted the 1999 sex discrimination complaint. That circumstance enhanced the plausibility of the allegation of victimisation discrimination against Mr Magee. It was the appointment of Ms Wilkinson which was the subject-matter of the claimant's 1999 Fair Employment Tribunal complaint. That enhanced the plausibility of the allegation that Ms Wilkinson had victimised the claimant.
23. The evidence into the case had shown an appalling catalogue of mistreatment, on the part of various officials within the Department, and within the Agency, against the claimant. When one looked at that pattern of mistreatment, less favourable treatment on the relevant prohibited ground was the most likely explanation. The documentation in respect of the claimant's appointment to the relevant post indicated that the post was always intended to be located organisationally within the DSD core Department. Mr Beattie had seriously misbehaved in respect of the Beattie incident. Yet Mr Magee had never acknowledged that fact. Any reasonable employer would have required X to transfer to the core Department; this was a transfer to which X had already committed himself. The various perpetrators had carried out the relevant acts of victimisation at a conscious level; sub-conscious or unconscious discrimination was not being alleged in this case.
24. The main arguments on behalf of the Agency can be summarised as follows. The respondent's witnesses were all honest witnesses. The people accused of being perpetrators were high-ranking civil servants who had no incentive to discriminate: They will have known, at all material times, that any act of unlawful discrimination would have serious repercussions for their careers. It was fanciful to suggest that Mr Magee had a reason to discriminate against the claimant merely because Mr Magee's appointment had prompted the claimant to begin her 1999 sex discrimination complaint. Similarly, it was fanciful to suggest that Ms Wilkinson would have a bias against the claimant merely because Ms Wilkinson's appointment had been the cause of the 1999 Fair Employment Tribunal complaint. The contemporaneous documentation shows that it had already been decided (in the course of a March 2000 meeting), before the claimant's appointment to the relevant post, that the relevant post would be organisationally located within the Agency. That was strong evidence that a relevant prohibited ground was not a factor in the decision as to the post's initial location. Thereafter, the review of the location of the post was carried out at a reasonable pace, when due regard is had to all the competing priorities which the Department and the Agency had to address. Mr Magee had produced voluminous contemporaneous documentation in connection with the Beattie allegation and in connection with the X allegation. That documentation tended to show that Mr Magee was thorough and meticulous and conscientious in relation to these matters; those features of the case were strong indicators against any conclusion that the relevant treatment was affected by a prohibited ground. The respondent's treatment of the claimant, in connection with the Beattie and X allegations, was fair and reasonable.
25. We drew the attention of the parties to the decision in Serplus v Belfast Institute of Further & Higher Education [Case Reference No: 1941/04, decision promulgated on 18 January 2007]. Both parties accepted the accuracy of the legal propositions set out in that decision.
26. The parties were in dispute on the question of whether or not the complaint in respect of organisational location had been brought in a timely manner. According to the respondent, the claim ought to have been brought, at the very latest, by December 2001. It was not in fact brought until May 2002. Therefore, it was outside the primary time-limit of three months.
27. For the claimant, Mr Moore countered the time-limit arguments mainly on the following basis. The claimant had been affected by psychological ill-health during the relevant period of delay. In respect of the organisational location, allegation the cogency of evidence was in no way affected by the delay. For those reasons, the Tribunal should exercise its power to grant an extension to the time-limit, on just and equitable grounds.
28. According to the respondent, it was not just and equitable to extend the time-limit. Although the cogency of evidence would not be affected by the delay, claims were meant to be brought in a timely manner. No adequate explanation for the delay had been put forward. The assertion that the claimant's relevant delay was caused by ill-health was not supported by her sickness absence record.

The facts

29. We now set out findings of fact which are relevant to the liability issues:-

(1) The Social Security Agency (referred to above and below as 'the Agency') is an executive (or 'next steps') agency within a central Northern Ireland Government Department. Staff in 'next steps' agencies continue to be civil servants. The relevant agency continues to be an integral part of the relevant Government Department. However, for administrative and management purposes, such an agency is treated as being distinct from the relevant Department; it is headed by its own chief executive.

(2) The Agency's main task is to administer social security benefits in Northern Ireland.

(3) Until 1999, the Agency was an executive agency within the former Department of Health & Social Services ('DHSS'). In 1999, there was a general restructuring of Northern Ireland Government Departments. As a result of that restructuring, the Department for Social Development (referred to above and below as 'the Department') was formed and the Agency became an executive agency within that Department.

(4) The Department is managed by a Management Board, headed by the Permanent Secretary. The Chief Executive of the Agency is a member of that Management Board.

(5) The Agency has its own Board of Directors, who are headed by the Agency's Chief Executive.

(6) From 2000 to 2006, that Board of Directors included a Director of Personnel, Planning and Information. From October 1998 until December 2001, that post was held by Mr Duffy. (Mr Duffy was accused by the claimant of being the perpetrator in the context of the organisational location allegation). He was a witness in these proceedings. With effect from January 2002, Mr Duffy was replaced in his Agency post by Mr Tommy O'Reilly. From 2000 until 2006, the claimant, as the holder of the Departmental Establishment Officer post (referred to above and below as 'the relevant post') was the immediate subordinate of Mr Duffy and of his successor.

(7) The Department comprises three main elements:-

(a) the 'core' Department;

(b) the Agency; and

(c) another next steps agency, the Child Support Agency.

During the relevant period, the great majority of the Departmental staff were located in one or other of the agencies. Most of them were located in the Social Security Agency.

(8) In 1998 and 1999, the claimant's substantive post was that of Deputy Principal, which was one grade down from the Grade 7 grade. (The relevant post was a Grade 7 post.)

(9) In June 1999, Ms Elaine Mawhinney (now Ms Elaine Wilkinson), who was a witness in the present proceedings, was transferred to the Grade 7 post of Personnel Manager within the Agency's Personnel Branch. In the Fair Employment Tribunal proceedings which have been already referred to above, the claimant made a claim of religious and political discrimination against the Agency arising out of that transfer. At the time of the transfer, Mr Duffy was the Personnel Director of the Agency and a member of its Management Board.

(10) In March 1999 there was a vacancy for the post of Manager of Human Resource Policy and Development at the Agency. The claimant was an unsuccessful candidate for that post. The successful candidate was Mr Pat Magee, a witness in these proceedings, and an individual who has been accused by the claimant of being the perpetrator in respect of the claims of discrimination which the Tribunal has had to decide in the course of the present proceedings. The claimant's sex discrimination claims (which have already been referred to above) were brought in respect of the recruitment competition which led to the appointment of Mr Magee. The selection panel on that occasion was a three member panel. One of the members of that panel was Mr Duffy.

(11) At all material times, the Agency has had a Personnel Branch, which carries out a comprehensive range of personnel functions in respect of the staff of the Agency.

(12) When the Department was formed in 1999, interim arrangements were put in place in relation to the provision of personnel services in respect of staff of the core Department.

(13) By March 2000, the future arrangements regarding the provision of personnel services in respect of such staff were relatively clear. It had been decided that personnel services of an operational nature (such as pay, attendance, welfare, etc) in respect of core staff would be provided by the Personnel Branch of the Agency. It was also agreed that other personnel functions in respect of core staff (mainly functions of a policy-making nature) would be entrusted to a different team, which would be headed by the holder of a newly created post, which would be graded at Grade 7. Initially, it was anticipated that this separate team would be organisationally located within the core Department, reporting to Mr Brian Davis, who was the Corporate Services Director of the Department.

(14) However, at a meeting which was held on 14 March 2000, relevant issues were discussed. The following day, Mr Cliff Radcliffe, the Deputy Secretary of the Department with responsibility for personnel functions, decided that the new Grade 7's team should be located within the Agency, but on the understanding that Mr Duffy would be responsible to Mr Radcliffe in respect of the work of that team, as distinct from being accountable to the Chief Executive of the Agency.

(15) At that point, the vacancy for the relevant post had not even been advertised. Therefore, at that point, nobody knew that the claimant would become the post-holder of the relevant post.

(16) The claimant asserts that she has been subjected to detrimental discrimination (which takes the form of victimisation discrimination) because the respondent did not recognise her entitlement to be treated as a member of staff within the core Department from the outset of her appointment. However, that aspect of the case fails at the first hurdle, because we are satisfied that, at the outset, the terms of the claimant's appointment to the relevant post were terms which made her a member of staff of the Agency (as distinct from making her a member of staff of the core Department).

(17) We accept that on many occasions, when the Agency is advertising for a member of staff to carry out tasks within the Agency, the Agency is clearly mentioned, in the relevant job vacancy advertisement, as being the location of the appointment. However, the relevant post was a very unusual job, in that it involved the post holder in dealing entirely with staff who were themselves located outside the Agency.

(18) Of all the documents which are relevant to the present issue, the Vacancy Notice is the key document. That notice describes the relevant 'Department' as 'Department for Social Development'. However, it goes on to describe that Department as comprising the Department core, the Social Security Agency and the Child Support Agency. The Vacancy Notice makes it clear that, apart from managing her own team, the post-holder will be responsible only for providing services in respect of core Department posts. That dedication, in terms of the responsibility of services, to core staff issues, is a logical explanation for the name of the relevant post, which is 'Department for Social Development Establishment Officer'.

(19) In our view, the organisational location of the post is made clear because of two aspects of the Notice:-

(a) The post itself is described in the Notice in the following terms:-

"DSD Establishment Officer, DSD Personnel Unit, Social Security Agency Personnel Branch."

We read that phrase as implying that the post itself is that of DSD Establishment Officer, that it is located within a unit which is called the 'DSD Personnel Unit', and that this unit is located within the 'Social Security Agency Personnel Branch'.

(b) The Notice makes it clear that the post holder is to report directly to the SSA's Director of Personnel and Planning (instead of specifying that the post holder is to report to Mr Duffy in his capacity as Director of Personnel of the Department as a whole).

(c) The Notice also makes it clear that Mr Duffy's SSA Personnel and Planning Directorate includes the Agency Personnel Branch and that the unit which the relevant post holder will head 'is a new branch within [the Agency] Personnel Branch …".

(20) Accordingly, we are satisfied that, in purporting to locate the claimant within the Agency from the outset, the respondent was acting entirely in line with the claimant's entitlements.

(21) The claimant made it clear that she wanted to be located within the core Department. The Department ultimately acceded to that demand, but only with effect from April 2003. The claimant asserts that Mr Duffy delayed, during this time as Director, in agreeing to her organisational relocation and that this delay constituted less favourable treatment (within the meanings of the relevant victimisation discrimination definitions) and that this treatment was accorded to her 'by reason that' she had asserted her rights (through the instigation of the 1999 sex discrimination and fair employment proceedings).

(22) Mr Duffy was in the job as Director only for approximately 18 months after the claimant's appointment. By the time he left the post (in December 2001), the claimant had still not been transferred to the core Department. Was this delay Mr Duffy's fault and, if so, was any relevant act or omission (on the part of Mr Duffy) affected to any extent by a relevant prohibited ground?

(23) The claimant was not very long in the relevant post before she made it clear that she expected to be located within the core Department. However, by the Autumn of 2000, it was known that there was to be an Efficiency Unit report, to the Department's Permanent Secretary, on the organisational, and other, arrangements in respect of the delivery of personnel and finance services within the Department as a whole (in other words, within the core Department and within the Agency). Against that background, it was reasonable for nothing to be done until the Unit reported. The Unit did report in January 2001.

(24) Subsequently, Mr Duffy wrote to various Directors, within the core Department, at the end of June 2001. Those respondents who bothered to respond were generally either supportive of the proposal to transfer the claimant, or were neutral on the matter.

(25) However, by the time Mr Duffy left his post in December 2001, the claimant had not been transferred. This was a lengthy delay. However, this clearly was not, intrinsically, a high priority issue. It made little or no practical difference. The claimant's terms and conditions were going to remain the same. Her salary was going to remain the same. Her annual appraisals were going to be countersigned by Mr Radcliffe (in the core Department) as before, even if she was transferred to the core Department. Her day-to-day work was going to continue to be mainly concerned with the provision of services in respect of core Department staff.

(26) Nevertheless, we consider that there was unwarranted delay on the part of Mr Duffy in pursuing this matter. It was important to the claimant that she be transferred. On the other hand, a transfer would make no practical difference to Mr Duffy, who would continue to be her line manager (in his capacity as the Director of Personnel of the Department). He took the view that he could not make a change without the approval of the Department's Management Board. However, he could have sought that approval at any time.

(27) Ultimately we have been fully satisfied, on the balance of probabilities, that Mr Duffy's actions and omissions in this connection were in no way affected by any relevant prohibited ground. We are so satisfied for the following reasons and against the following background.

(28) Mr Duffy testified, in evidence to this Tribunal, that no relevant actions and omissions were affected by any relevant prohibited ground. We believed that evidence. In considering that evidence, we paid careful regard to the following matters. First, we noted the demeanour of Mr Duffy and his manner of giving evidence. Secondly, we noticed that the relevant evidence was internally consistent and that it was not inconsistent with relevant evidence of other witnesses. The claimant had already shown, by launching the two sets of 1999 proceedings, that she would not be slow to assert her rights. Therefore, Mr Duffy had no incentive to disadvantage her and had every incentive not to disadvantage her (because any allegation of discrimination, even if untrue, was likely to have the potential to be a negative factor in connection with his career development). Finally, we took account of the fact that it would be quite understandable if a matter such as the claimant's transfer were to be regarded as being of relatively low urgency (given the lack of practical effects for the claimant and the lack of broader practical effects).

(29) The claimant asserts that she was arbitrarily excluded from plans to relocate to Churchill House in August 2000. However, we accept the veracity of the evidence which Ms Wilkinson has given to us in respect of that matter. At that time, the Department had to make difficult choices in relation to the accommodation needs of various units. It made reasonable choices, in that connection, at that time.

(30) Although the claimant was a member of staff of the Agency, her appraisals were countersigned by Mr Radcliffe (in the latter's role as Personnel and Finance Officer for the whole Department) which implied that she was ultimately accountable to him rather than being accountable to the Chief Executive of the Agency. However, that was a reflection of the fact that the work which she did was mainly for the staff of the core Department (as distinct from being work for staff of the Agency).

(31) The claimant complains of the fact that, although she was Departmental Establishment Officer of the DSD she was not a standing member of the Civil Service-wide Establishment Officer forum.

(32) We accept the truthfulness of the evidence of Mr Duffy and of Ms Wilkinson in this connection. The forum mainly dealt with operational issues. The Department was under pressure from external sources to reduce the number of its representatives on the forum. It had to choose between Ms Wilkinson and the claimant. It chose Ms Wilkinson because she provided services in respect of a much larger number of staff than those in respect of whom the claimant provided services. That was a reasonable choice in the circumstances.

(33) The claimant is right in her contention that she was excluded from the process of business planning within the Agency. However, that was because of the fact that she was, in the main, not providing services in respect of Agency staff.

(34) The claimant is correct in her contention that she was excluded from the Agency training and development process in 2001. However, that was because of the fact that, in the main, the claimant was not providing services in respect of Agency staff.

(35) The claimant is correct in her contention that she was excluded from a Grade 7 Agency conference in 2001. However, that was because, in the main, she was not providing services in respect of Agency staff.

(36) The claimant is correct in her contention that she was excluded from an Agency Staff Attitude Survey in 2001. However, that was because, in the main, she was not concerned with the provision of services to Agency staff, and was mainly interacting with core Department staff.

(37) In her replies, dated January 2005, the claimant named Ms Wilkinson, Mr Magee and Mr Beattie (alongside Mr Duffy) as perpetrators in respect of the organisational location allegation. However, on the basis of evidence from the respondent which has been uncontroverted, we are convinced that Ms Wilkinson, Mr Magee and Mr Beattie had no responsibility in respect of the delay in agreeing to the claimant's request for a transfer of the organisational location of her post.

(38) In a letter to Ms Wilkinson dated 2 July 2000, Mr Duffy formally notified her (as the person responsible for implementation) of the claimant's promotion to the relevant post. His e-mail stated that the claimant:-

" … will take up post as G7 Establishment Officer for the Department for Social Development on 3 July 2000. [Emphasis added]."

(39) In response to that e-mail, Ms Wilkinson provided Mr Duffy with a draft letter, which he sent on 10 July 2000 to the claimant. The opening paragraph of that letter was as follows:-

"I have pleasure in informing you that it has been decided to promote you to Grade 7 with effect from 3 July 2000; this promotion will involve you transferring to Department for Social Development, Personnel Branch, Annex C, Dundonald House, Stormont Estate, Belfast.

Details of allowable expenses for permanent transfers within Northern Ireland can be found in the Pay and Conditions of Service Code … [Emphasis added]."

(40) In evidence to us, Ms Mawhinney informed us that the letter of 10 July 2000 was a standard form letter. We note that, on 10 July 2000, the claimant was already physically located within Annex C in Dundonald House. Therefore, details of allowable expenses for transfers were obviously superfluous. Against that background, we accept that the reference to 'transferring to Department for Social Development' in that letter cannot counteract the effect of the clear words of the Vacancy Notice. The clear words of that Notice are indeed confirmed by the terms of Mr Duffy's personal e-mail of 2 July 2000 to Ms Wilkinson, where he refers to the claimant as being the Establishment Officer for the Department, as distinct from being the Establishment Officer of the Department or in the Department.

(41) The Beattie allegation is the second of the discrimination allegations which we have to consider in these proceedings. That allegation can be summarised as follows. According to the claimant, Mr Beattie (a witness in these proceedings) was guilty of misconduct in relation to his handling of the case of a female civil servant who we will call 'Y', who was employed within the Unit which was headed by the claimant. The gist of the allegation is as follows. According to the claimant, Mr Magee should have reacted to that (alleged) misconduct either by commencing disciplinary proceedings against Mr Beattie in respect of that misconduct, or (alternatively) clearly and unequivocally stating that the relevant conduct was inappropriate and unacceptable. Mr Magee did not react in any of those two ways. By failing to do so, Mr Magee, according to the claimant, subjected her to discriminatory detrimental treatment (the discrimination taking the form of victimisation discrimination). According to the claimant, the relevant victimisation discrimination consisted of less favourable treatment than would have been accorded to an appropriate statutory comparator and this less favourable treatment was accorded to her because of the fact that she had asserted rights by taking the 1999 sex discrimination proceedings and fair employment discrimination proceedings.

(42) At the time the controversy arose in relation to Y, Mr Beattie was employed as a Deputy Principal within the Personnel Branch of the Agency. In that capacity, his immediate line manager was Mr Magee. Mr Beattie's functions included responsibility for absence management, conduct and discipline, staff care (welfare) services, and for certain grievance and performance management appeals. It must be noted that he was not responsible for personally providing welfare services. Instead, those services were mainly to be provided by direct or indirect subordinates of his.

(43) In September 2001, he was approached by Ms Pauline Shannon, a member of the staff of the Personnel Branch of the Agency. She asked to discuss a situation in which an unnamed friend of hers was involved. She told Mr Beattie that the unnamed friend (who of course was Y) was very seriously distressed about her work situation and, because of that, the friend's health had deteriorated. According to Ms Shannon, there had been a difference in understanding between the friend and a senior officer in the friend's unit and she felt in a position of being unable to convince the relevant Grade 7 of her view on events.

(44) In response, Mr Beattie advised Ms Shannon about options, including the grievance procedure, the making of an equal opportunities complaint, the option of writing to the relevant Grade 5 asking for an interview, and the option of seeking help from the Staff Care Unit. He also offered the facility of meeting with the 'friend' to offer support and advice on a face-to-face basis.

(45) He did meet with Y on 17 September. At that meeting, he formed the view that she was suffering from serious psychological ill-health. She told him her view of the situation. According to Y, she was now at the point that she could not get her mind around going back to work in the claimant's unit, but had been given to understand that the claimant was unwilling to facilitate a transfer unless and until Y was back at work. She felt that an impasse had been reached. She made it clear that she felt that resignation was her only solution to this impasse.

(46) Mr Beattie then discussed with her various options which he considered to be available to her. Those included:-

(a) awaiting the outcome of a referral to the Occupational Health Service in the hope that the OHS would support her in her desire to get a transfer;

(b) raising a grievance or an equal opportunities complaint; or

(c) approaching Mr Duffy (the relevant Grade 5) directly.

(47) According to the claimant, Mr Magee subsequently unjustifiably withheld from the claimant certain work-related information concerning the health and wellbeing of Y, contrary to custom and practice and agreed managing attendance and grievance procedures. We are satisfied that any information which was withheld from the claimant was withheld on the basis of appropriate confidentiality and privacy concerns.

(48) The claimant asserts that Mr Magee failed to organise a case conference about the case of Y, having given the claimant an undertaking to do so (in October 2001). In our view, Mr Magee was very patient in dealing with the claimant's various demands for information in this connection. Those demands were excessive and were couched in confrontational terms.

(49) According to the claimant, Mr Magee exerted undue pressure on the claimant to 'release' Y. In our view, any influence exerted by Mr Magee was not unwarranted. Instead, in all the circumstances of the case, it was appropriate for Y to be released.

(50) Contrary to the claimant's contentions, Mr Magee organised a very extensive examination of the context and substance of Mr Beattie's relevant intervention. It would, however, have been better if Mr Magee had officially and unequivocally stated, at an early stage, that what Mr Beattie had done (although well-motivated) was wrong.

(51) In oral testimony in these proceedings, Mr Magee told us that, in connection with all his actions and omissions in respect of the Beattie allegation, he was in no way motivated by considerations relating to the claimant's previous assertion (through the instigation of the sex discrimination and fair employment discrimination claims) of her discrimination law rights. In accepting the truthfulness of this aspect of Mr Magee's testimony, we took particular account of the following matters. First, we had regard to Mr Magee's demeanour and manner of giving evidence. Secondly, his evidence was internally consistent and it was not inconsistent with other known facts. Thirdly, the claimant had shown (through the two sets of 1999 proceedings) that she would not be slow to assert her rights if she considered them to have been infringed. Therefore, there was no incentive for Mr Magee to discriminate against the claimant, because any victimisation discrimination allegations were likely to be potentially unhelpful in the context of any hopes that Mr Magee might have had in respect of future personal career development. Fourthly, it is a fact of life that line managers often tend to be reluctant to commit themselves to explicit criticism, on a serious issue, in a relatively public context, of any individual who directly reports to that manager.

(52) We now come to the third and last of the complaints of discriminatory detrimental treatment which have to be resolved by this Tribunal. We have described this third complaint as the 'X' complaint. The background to that complaint is as follows. Mr X was a member of staff of Personnel Branch of the Agency and had been for a considerable period. During the year 2001, he had been successful in being promoted to Deputy Principal level. Normally, when people are promoted to Deputy Principal level, the promotion does not actually take affect unless and until they have been offered and have accepted a specific Deputy Principal post, which can often involve a transfer to a new location. However, in the case of X, it had been arranged that he would continue doing the job which he had previously been doing, but would thenceforth carry out that job at substantive Deputy Principal level. This was on the clear understanding that, when his current tasks (which had to do with promotion boards) came to their natural conclusion, he would be transferred to a specific post (which had already been identified) within the core Department. That situation was agreeable to Mr Magee, it was agreeable to X and it was also agreeable to the claimant.

(53) From December 2001 to March 2002, the claimant and X became embroiled in a dispute, about accommodation, which became acrimonious. Both the claimant and X pursued that dispute with great vigour. It was a somewhat petty squabble. Their respective interventions in the dispute reflect little credit upon either the claimant or upon X. In the early Spring of 2002, the dispute was resolved, through the patient efforts of Mr Magee.

(54) In March 2002, X made it clear that, because of the dispute, he no longer wanted to transfer to the core Department. He was not entitled to renege on the understanding which he shared with Mr Magee and with the claimant. He had no good reason for not transferring to the core Department because he would not be managed (whether directly or indirectly) by the claimant in his core Department post. Mr X's refusal to transfer to the core Department seems to have involved a significant element of petulance. Instead of transferring to the core Department, he now wanted to transfer to a different Department, which was keen to have him.

(55) In that situation, the claimant held the moral high ground. Mr X had committed himself to a transfer to the core Department. He ought to have honoured his side of the bargain. Yet, he was now very reluctant to transfer to the relevant post in the core Department. On the other hand, he was keen to transfer to an alternative post in another Government Department and that other Department was happy to welcome him to that other post.

(56) Against that background, Mr Magee was not disposed to force X to go to the relevant core DSD post and so X was permitted to take up the alternative post in the other Department.

(57) In oral testimony in these proceedings, Mr Magee told us that, in allowing X to go to the other Department, he was in no way motivated by considerations relating to the claimant's previous assertion (through the instigation of the sex discrimination and fair employment discrimination claims) of her discrimination law rights. He told us that he was mainly concerned to avoid a situation in which X would proceed with a grievance which X had instigated in respect of the accommodation dispute. In accepting the truthfulness of this aspect of Mr Magee's testimony, we took particular account of the following matters. First, we had regard to Mr Magee's demeanour and manner of giving evidence. Secondly, his evidence was internally consistent and it was not inconsistent with other known facts. Thirdly, the claimant had shown (through the two sets of 1999 proceedings) that she would not be slow to assert her rights if she considered them to have been infringed. Therefore, there was no incentive for Mr Magee to discriminate against the claimant, because any victimisation discrimination allegations were likely to be potentially unhelpful in the context of any hopes that Mr Magee might have had in respect of future personal career development. Fourthly, whatever the rights and wrongs of the situation, it made no practical sense to force an individual to go to a job to which he did not want to go, when there was another job, in the same singular Civil Service, to which he did want to go, and which was readily available for him.

(58) We wish however to make it clear that we have not lost sight of the fact X did behave in an inappropriate manner and that the claimant was right to be upset about X's petulant behaviour in connection with the transfer discussions.

(59) We also note that there was apparently a degree of sympathy (on the part of Mr Magee and on the part of Mr O'Reilly, the new Agency Director of Personnel) for the stance which Mr X was taking in relation to the transfer discussions. The claimant obviously was annoyed about that apparent sympathy and, in our view, understandably so; as already noted above, we do not think that X had any adequate reason for objecting to a transfer to the core Department.

(60) The claimant asserts that undue pressure was exerted upon her 'to accept the breached agreement about the job-posting'. We cannot agree with her view on this aspect of the matter. Mr Magee was keen that she should agree that she was content with the revised arrangements. However, no undue pressure was imposed by him, or by anybody else, to seek to coerce her in that connection.

The law

30. These discrimination claims are brought under the 1976 Order and under the 1998 Order.
31. In respect of actions carried out prior to 2003, the 1998 Order did not have a European dimension. However, in respect of all relevant actions, the 1976 Order does have to be construed in light of the requirements of the Equal Treatment Directive 1976 ('the Directive'), as interpreted by the European Court of Justice.
32. Nevertheless, the parties are agreed that, in the context of the present case, it is appropriate to construe the two sets of victimisation discrimination provisions, in the 1976 Order and in the 1998 Order, as having (for practical purposes) an identical scope.
33. We have already referred to the relevant statutory definitions of victimisation discrimination. (See paragraphs 6 - 9 above.)
34. The ordinary dictionary definition of victimisation implies persecution or hounding or some targeted bad treatment. However, in the contexts of the 1976 Order and of the 1998 Order, in order to meet the requirements of the definitions of victimisation discrimination, only two requirements are necessary. First, the victim must have been treated by the perpetrator less favourably than the perpetrator treats, or would treat, an appropriate statutory comparator. Secondly, the perpetrator must have done so because the claimant had carried out a protected act.
35. Victimisation discrimination can be carried out at a subconscious or unconscious level. However, we are not concerned with that kind of victimisation discrimination here. In this case, throughout the proceedings, the claimant has claimed only that the relevant acts of victimisation discrimination were carried out at a conscious level.
36. The 'by reason that' requirement (the requirement that the relevant less favourable treatment has been accorded by reason that the claimant carried out a protected act) will be satisfied even if the fact that the claimant has carried out a protected act was not the main reason for the treatment complained of, if it was an important, or significant, reason for the treatment. (See Igen Ltd v Wong [2005] IRLR 258, at paragraphs 35 and 37 of the judgment.)
37. As Mr Wolfe has correctly pointed out on behalf of the claimant, in the context of the relevant definitions of victimisation discrimination, the phrase 'by reason that' means, in effect, 'because'. (See, mostly recently, paragraph 76 of the House of Lords decision in St Helens MBC v Derbyshire and Others [2007] IRLR 540.)
38. Mr Wolfe has also argued, and we accept, that the 'by reason of' element of the definition of victimisation is significantly different from a causation question. As Lord Nicholls pointed out in West Yorkshire Police v Khan [2001] ICR 1065, 1072, at paragraph 29 of the decision:-

"Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise.

…

The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

39. Article 63A of the 1976 Order was enacted for the purpose of complying with the requirements of the EU Burden of Proof Directive of 15 December 1997. According to article 4.1 of the 1997 Directive:-

"1. Member States shall take such measures as are necessary, in accordance with their national jurisdictional systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

40. Article 63A of the 1976 Order is in the following terms:-

"(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(2) Where, on the hearing of the 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 or harassment 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 or harassment 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 employment provisions of the 1976 Order are contained within Part III.

41. A new Article 38A was inserted into the 1998 Order (by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003), for the purpose of ensuring compliance with requirements of the EU Framework Employment Directive. (The latter requirements are equivalent to those which were imposed by article 4.1 of the 1997 Burden of Proof Directive.) For practical purposes, the provisions of Article 38A are identical to the provisions of Article 63A of the 1976 Order.
42. The English equivalent of Article 63A was considered by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. At the end of Igen, the courts set out what is known as 'the revised Barton guidance'. That guidance envisaged a two-stage process for addressing the burden of proof, under Section 63A of the Sex Discrimination Act 1975 (which corresponds to Article 63A of the 1976 Order). We have paid careful regard to that guidance in deciding the issues in this case.
43. The guidance contains 13 numbered paragraphs. We consider that it would be useful to highlight paragraphs (1) and (9) – (11) of the guidance at this juncture:-

(1) Pursuant to section 63A of the SDA, 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 respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

…

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

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

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

In paragraph (1) of the guidance, the phrase ' … the Tribunal could conclude … means "a reasonable Tribunal could properly conclude", (see Madarassy v Nomura International plc [2007] IRLR 246, at paragraph 57 of the judgment).

44. In cases (like the present case) in which hypothetical comparators are cited, it is appropriate, in the context of each allegation of victimisation discrimination, for a tribunal to construct a picture of how a hypothetical comparator would have been treated in comparable surrounding circumstances. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases have been treated in relation to other individual cases. (See Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, 336, at paragraph 81 of the decision.)
45. The judgments in the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, 342, highlight the fact that, when a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment. As Lord Nicholls commented, at paragraph 11 of Shamoon:-

"This analysis seems to me to point to the conclusion that employment tribunal may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."

46. The House of Lords decision in Zafar v Glasgow City Council is reported at [1998] IRLR 36. When Zafar was being decided at Court of Session level, Lord Morison commented as follows:-

"The requirement necessary to establish less favourable treatment … is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which has been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."

When Zafar reached the House of Lords, the House endorsed the reasoning of Lord Morison, as quoted above. In Zafar, the courts were dealing with a claim of direct racial discrimination. However, it seems to be clear that the general thrust of Lord Morison's comments is equally applicable to victimisation discrimination.

47. Nevertheless, the unreasonableness of the treatment complained of is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was accorded on a proscribed ground, or for a proscribed reason. See Bahl v Law Society [2004] IRLR 799, especially at paragraph 101 of the judgment. See also paragraph 51 of the judgment in Igen (where the Court of Appeal accepted that a tribunal could decide that there was a prima facie case of unlawful discrimination mainly on the basis of that tribunal's finding that there was unexplained unreasonable conduct on the part of the employer.
48. In our view, the Vacancy Notice in respect of the recruitment competition for the relevant post and the correspondence which was produced in the course of the recruitment process in respect of that post, are all documents which can be regarded as 'commercial' documents). The courts have given guidance as to the way in which such documents should be interpreted. That guidance is discussed in Serplus. (See above, at paragraph 25.) In our view, the legal propositions set out in that decision are applicable in the context of the commercial documents which are of importance in the present case.
49. In particular, in ascertaining the intention of the people who drafted a particular document, the question is not what one or more individuals meant or understood by the words used in that document. Instead, the focus is on the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to all concerned, in the situation in which they were in at the time when the relevant document was finalised. The cardinal presumption is that the draughtsman had intended what has in fact been said, so that the words must be construed as they stand. That is to say, the meaning of the document, or of a particular part of it, is to be sought in the document itself. However, the meaning of the words in such a document need not be ascertained by reference to the words of the document alone. Instead, all the circumstances surrounding the making of the document, which would assist in determining how the language of the document would have been understood by a reasonable person, have to be taken into account. So the words of the relevant document are of primary importance. However, those words can and must be construed in the light of the circumstances, because the relevant tribunal has to place itself in the same 'factual matrix' as that in which relevant persons were situated at the time when any relevant document was finalised. (See Serplus, especially at paragraphs 55 and 56.)
50. The time-limit provisions in the 1976 Order and in the 1998 Order can be treated, in the present context at least, as being, for practical purposes, identical. Both consist of a primary time-limit which can be extended if a tribunal considers it to be just and equitable to do so. (See Article 76(5) of the 1976 Order and Article 46(5) of the 1998 Order.)
51. At paragraphs 69 - 73 below, we discuss the legal framework within which time-limit extension issues have to be resolved.

Conclusions

52. We decided that it would be just and equitable to extend the relevant time-limits, so as to bring the location allegation within the relevant time-limits. In arriving at that determination, we took account in particular of the following factors:-

(1) The legislator has specified relatively short primary time-limits under the relevant discrimination legislation. That is an indicator of a legislative policy that discrimination cases should be brought promptly.

(2) As Mr Wolfe frankly conceded, the evidence adduced or likely to be adduced by the claimant or by the respondent was not likely to be less cogent than if the primary time-limit had been met.

53. We are satisfied that, in the context of the location allegation, the key commercial documents are the vacancy notice and the 'transfer' notice (which Ms Wilkinson sent to the claimant in July 2000). Although, strictly speaking, the interpretation of such documents may be an issue of law (as distinct from an issue of fact), we have set out our conclusions on that aspect of the matter above, in the course of setting out findings of relevant facts. As noted at paragraph 29(16) above, we have concluded that the implications of the relevant documents, considered together, is that the claimant's proper organisational location, at the time of her appointment, was within the Agency (as distinct from being part of the human stock of the core Department). Therefore, we consider that the respondents did not subject the claimant to detrimental treatment (within the meaning of Article 8 of the 1976 Order, or within the meaning of Article 19 of the 1998 Order) by deciding to locate her, upon appointment to the relevant post, within the staffing structure of the Agency. (See paragraph 11 above.)
54. In any event, that decision was not made 'by reason that' the claimant had carried out a protected act. We arrive at the latter conclusion, for two reasons. First, Mr Duffy denied that the relevant decision was affected by a prohibited ground and we accepted the truth of his evidence in that connection. Secondly, we accept that the decision that the relevant post holder would be located within the Agency was a decision which was made in March 2000, at a time when nobody knew that the claimant would end up being the post-holder.
55. Because we are satisfied, on the balance of probabilities, that the initial decision to locate the post within the Agency was a decision which was unaffected by either of the relevant prohibited grounds, we must dismiss both of the relevant complaints of victimisation discrimination.
56. The Department was slow to decide to relocate the relevant post. However, the Department was under no moral or legal obligation to do so. We are satisfied that the lack of speed in this connection was unaffected by either of the relevant prohibited grounds.
57. Against that background, and for those reasons, the complaints of victimisation discrimination in respect of all aspects of the organisational location allegation have to be dismissed.
58. We accept Mr Magee's evidence that, in relation to his actions and omissions in connection with the Beattie allegation, he was not consciously affected by any prohibited ground. That conclusion is fatal to the claims of detrimental victimisation discrimination which are based on the Beattie allegation.
59. We accept Mr Magee's evidence that, in connection with the actions and omissions which were criticised by the claimant in connection with the X allegation, he was in no way consciously affected by the fact that the claimant had previously asserted her rights under discrimination legislation. Therefore, those allegations of unlawful victimisation discrimination also have to be dismissed.
60. In respect of all of the allegations, the respondent has proven (mainly through the evidence of Mr Duffy and Mr Magee) that the relevant treatment was 'in no sense whatsoever' affected by a relevant prohibited ground. (See paragraph 43 above.)

The application for leave to amend

61. The effect of Rules 9(1) and 9(2)(p) of the Fair Employment Tribunal Rules of Procedure 2005 is that this Tribunal has power to give leave to the claimant to amend her claim.
62. Leave to amend was sought in respect of the amendments which are listed in paragraph 63 below. The respondent opposed that application. We refused leave in respect of all the proposed paragraph 63 amendments, for reasons which are set out below.
63. The relevant proposed amendments consisted of the following:-

"(2)(f) Unjustifiably excluding the claimant from a departmental review of support services, that included the personnel function, in August/September 2000.

(2)(h) Failing to formalise the [claimant's] posting in the SSA following her appointment as DSD Establishment Officer, having told her she was a member of SSA, and not DSD(HQ) staff.

(2)(i) Failing to update personnel records to reflect the [claimant's] promotion to Grade 7 and transfer to DSD Personnel Branch, contrary to established personnel custom and practice.

(2)(j) Failing to resolve the concerns and queries raised by the [claimant] about the failure to update personnel records.

(2)(k) Applying differential standards to the [claimant], as a SSA Grade 7, in excluding her from the SSA business planning process.

(2)(m) Applying differential standards to the [claimant], as a SSA Grade 7, in excluding her from the SSA Training and Development Plan in February 2001.

(2)(n) Applying differential standards to the [claimant], as a SSA Grade 7, in excluding her from the SSA Staff Attitude Survey in May 2001.

(2)(o) Applying differential standards to the [claimant], as a SSA Grade 7, in excluding her from the SSA Senior Managers' Conference in June 2001.

(2)(x) Unjustifiably withholding from the [claimant] correspondence sent to Directors in DSD(HQ) about her location within the Department in June 2001.

(2)(y) Unjustifiably withholding from the [claimant] responses from Directors in DSD(HQ) about the [claimant's] location within the Department in June 2001.

64. The present proceedings were begun in May 2002. The claims which have been quoted in the last paragraph were not identified as potential claims against the respondent until they were mentioned, as part of the 'Replies' (which we have already referred to above at paragraph 14) which were sent by the claimant to the respondent's solicitors in February 2005. The actual application for leave to amend the claim (so as to include the paragraph 63 claims) was made in November 2007.
65. As already noted above, from 2001 to 2006, the claimant was a senior personnel professional, holding an important Civil Service post.
66. Unfortunately, the claimant has suffered psychological ill-health in recent years. However, we are not satisfied that she suffered from ill-health of that nature at any time during 2003. (Her only absences from work during that year was a two-day absence at the very beginning of October 2003 for 'flu' and a 33-day absence beginning on 3 October 2003 because of 'chest infection'. The claimant did suffer prolonged and serious psychological ill-health in the Spring and Summer of 2002. (She was absent from work because of 'anxiety symptoms' from 8 April 2002 until 26 June 2002.)
67. The arguments of the parties on these amendment issues can be summarised as follows. For the claimant, Mr Moore argued that the time-limit should be extended because the delay in seeking to add the relevant claims was attributable to the claimant's ignorance of legal matters. Furthermore, the claimant suffered ill-health, which was the cause, or a contributory factor, in respect of the delay. The proposed additional claims were matters about which the claimant felt strongly. There was no good reason for not allowing her to pursue those claims.
68. The arguments on the behalf of the respondent can be summarised as follows. First, the claimant was a well-experienced personnel professional, who knew, or ought to have known, exactly what was required in respect of time-limits. Secondly, during the claimant's period of delay, she enjoyed lengthy periods of good health. Thirdly, the delay was very lengthy and the relevant legislative policy is that discrimination claims should be brought speedily. Fourthly, the cogency of the available evidence would be affected by the delay.
69. 'Harvey on Industrial Relations and Employment Law' ('Harvey') at paragraphs 311 to 312.06 of Division T, deals with amendments to claims, and categorises relevant amendments as follows:-

(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of, the same facts as the original claim; and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

70. Selkent Bus Company v Moore [1996] IRLR 661 is clearly a case of central importance in the present context. In Selkent, Mummery LJ emphasised that, in refusing or granting an amendment, the paramount considerations are the relative injustice and hardship involved for each party.
71. If any of the paragraph 63 amendments could properly be treated as a 'category (iii)' amendment, an important question, in the context of the application for leave to amend so as to add that claim, would be the question of whether or not it would be appropriate to extend the time-limit if the relevant amendment was being pursued by way of fresh proceedings.
72. According to settled case law, it is clear that, in considering whether to allow a 'just and equitable' extension to a discrimination case time-limit, it is appropriate to consider the criteria which are applied in the context of deciding upon extensions of time in respect of personal injury cases.
73. Those criteria are set out in Section 33 of the Limitation Act 1980 (which applies in England and Wales). Subsection (3) of Section 33 provides as follows:-

"(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the [primary time-limit];

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

74. We consider that the relevant proposed amendments (the proposed amendments which are set out at paragraph 63 above) have to be categorised as 'category (iii)' amendments. In arriving at that conclusion, we have not lost sight of the fact that the paragraph 63 claims, like the location claim, like the Beattie claim and like the X claim, are all claims of detrimental treatment. Furthermore, the claimant would no doubt wish the Tribunal also to take account of the factual basis of the existing claims, in deciding whether or not the treatment which formed the basis for each proposed additional claim was, or was not, accorded on a relevant prohibited ground. However, we were nonetheless satisfied that each of the proposed new claims is, to a large extent, based on its own distinctive facts.
75. The focus therefore shifts to the issues which commonly arise in a case in which there is a question as to whether or not a discrimination law primary time-limit should be extended.
76. We decided that the time-limit ought not to be extended, in respect of any of the additional claims which are mentioned at paragraph 63, against the following background and for the following reasons:-

(1) Because of the claimant's role as a senior personnel professional, she knew, or ought to have known, of the need to comply with relatively short discrimination law time-limits.

(2) During the period of delay, the claimant enjoyed lengthy periods of good health.

(3) We considered that all of the paragraph 63 proposed amendments are 'fact-sensitive'. Against that background, we considered that the lengthy delay was likely to significantly affect the cogency of the evidence which would be likely to be adduced in connection with the paragraph 63 claims.

(4) We took account of the consideration that the short primary time-limits, which are set out in the two relevant discrimination enactments, are indicative of a legislative policy that discrimination claims are to be brought promptly. In this instance, the relevant period of delay was very lengthy.

77. If, contrary to the views expressed above, any paragraph 63 proposed amendment is, in reality, a 'category (ii)' claim, the considerations set out in the last paragraph above continue to be significant factors, in the context of deciding whether to grant the amendment (in light of the duty to have regard to the relative injustice and hardship involved for each party). Because of those factors, we would still have refused leave to amend (so as to add the paragraph 63 claims) even if we have concluded that one or more or all of the paragraph 63 claims should be classified as a category (ii) claim.

General comments

78. The claimant appeared to us to be a person of considerable intelligence, who had clearly pursued her chosen career path with dedication and enthusiasm, over lengthy periods of her working life. She had the potential to make a valuable contribution to the Northern Ireland public service. Unfortunately, her career has been cut short because of ill-health. However, we cannot allow any sympathy which we might feel, in relation to the personal circumstances of the claimant, to deflect us from our duty, which is to impartially apply the relevant legal principles to the facts which we have found.

Chairman:

Date and place of hearing: 26 – 27 November 2007, 29 – 30 November 2007,

19 December 2007, 14 – 17 January 2008, Belfast

Date decision recorded in register and issued to parties: