Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REF:  116/08 FET

 

 

CLAIMANT:              Eveline Fleeton    

 

 

RESPONDENT:        South Eastern Health and Social Care Trust

 

                               

 

DECISION

 

 

It is the unanimous decision of the Tribunal that the claimant was not victimised by the respondent, pursuant to Article 3 (4) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998. 

 

 

Constitution of Tribunal:

Chairman:    Ms W A Crooke               

Members:     Mrs C Lewis

                      Mr B McGuire                         

 

Appearances:

The claimant was represented by Mr Philip Boomer of NIPSA.

The respondent was represented by Mr Mark McEvoy Barrister-at-Law instructed by Carson McDowell Solicitors.

 

 

Sources of Evidence

 

1.               The claimant gave evidence on her own behalf.  Mr Hugh McPoland, Ms Irene Lowe, Mr Gerry Killen, Mr Eamon Malloy, Miss Jennifer Buchanan and Mr Martin O’Toole gave evidence on behalf of the respondent.

 

2.               In addition, the Tribunal had a number of books of documents before it.

 

 

 

The Claim and the Defence

 

3.               The claimant claimed that she had been victimised by the respondent in connection with bringing case reference numbers 136/05 FET and 948/05 FET against the respondent’s predecessor.  The respondent denied that they in any way discriminated against the claimant on the grounds of her religion or by way of victimisation as alleged.

 

The Relevant Law

 

4.               The relevant law is found in Article 3(4) and (5) of the Fair Employment and Treatment (Northern Ireland) Order 1998 which states as follows:-

 

(4)      A person (“A”) discriminates by way of victimisation against another person

           (“B”) in any circumstances relevant for the purposes of this Order if –

(a)  he treats B less favourably than he treats or would treat other persons in those circumstances; and

(b)  He does so for a reason mentioned in Paragraph (5).

(5)            The reasons are that

(a)            B has

(i)         brought proceedings against A or any other person under this Order; or

(ii)        given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or

(iii)       alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

(iv)      otherwise done anything under or by reference to this Order in relation to A or any other person; or

(b)            A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

 

 

 

 

Findings of Fact

 

5.               The claimant was employed by the respondent initially as a social work assistant but eventually, and for the purposes of these proceedings, as a Data Protection Project Manager.  She was appointed to this post on a permanent basis in April 2000.  The claimant was seconded to another post subsequently.  For a period of approximately 8 months the claimant’s time was shared between her seconded post and her substantive post.

 

6.               There was an evaluation of the claimant’s post in February 2002.  This did not result in a change of grading for the claimant.

 

7.               The claimant’s post was regraded in July 2003 from Grade 5 to Grade 6.  The claimant remained dissatisfied with her grading under the Job Evaluation Scheme and she lodged Fair Employment Proceedings on 21 June 2005 under record numbers 136/05 FET and 948/05FET.

 

8.               The claimant’s post was recategorised some time thereafter as a senior manager post graded at scale point 29.  However, the claimant continued with her Fair Employment Tribunal Proceedings.

 

9.               Her cases numbers 136/05 FET and 948/05FET were eventually settled by a Conciliated Settlement dated 8 April 2008.  The substantive requirement of this settlement was to put the claimant on scale point 25 with effect from 21 June 2004.  There was a delay in reaching this position, but the Tribunal has not made any findings of fact about matters relating to events or negotiations in the previous proceedings as it considered that its jurisdiction had been ousted by the Conciliated Settlement dated 8 April 2008.

 

10.           The claimant’s cases were going on against a background of an ongoing restructuring of the respondent.  This meant that Down and Lisburn Trust and Ulster Community Hospitals’ Trust were to merge to become South Eastern Health and Social Care Trust.  The process by which this occurred which we describe in paragraphs 11-18 and paragraph 26 eventually resulted in the claimant losing her job as Data Production Project Manager.

 

11.           This had human resources and financial implications.  In the summer of 2007, Mr McPoland (then acting Director for Human Resources and Corporate Affairs) gave Ms Irene Lowe, the Assistant Director in Risk Management and Governance, the task of drawing up a staffing structure for the new Risk Management and Governance Directorate which was to be created out of the two Trusts, and in so doing she had to achieve 25% savings.

 

12.           Between August and December 2007 draft structures and costings were prepared and discussed with Mr McPoland and Mr Gerry Killen the Emergency Planning and Information Governance Manager.  These structures were eventually approved by Mr Eamon Malloy the Director of Human Resources and Corporate Affairs, in and around mid-December 2007.

 

13.           Prior to final agreement being reached with Mr Malloy, a variation to the procedure had been agreed for the 5^th level posts and below.  This meant that:-

 

(a)            Where the number of people equalled the number of people in the relevant pool staff would be allocated on a post matching their grading and subject to having the relevant skills;

(b)            Where the numbers of posts were greater than the number of people, staff would be allocated and where possible the remaining posts would be used as suitable alternative employment to avoid redundancy.

(c)            Where numbers of posts were less than the numbers of people, a restricted trawl would be organised and informal selection processes would be conducted to decide who should be allocated to the posts.

 

14.           Miss Lowe prepared the first draft of her allocation proposals once Mr Malloy had approved the structure.  These were sent on 21 December 2007 to Mr McPoland, and issued to the Trade Unions on 2 January 2008 with a 2 week response deadline.  A second copy of the updated set of proposals was sent to the trade unions in or around June 2008.  It was not clear if the proposed structures were approved by all the recognised trade unions.

 

15.           The claimant had expressed a without prejudice interest in considering voluntary early retirement or voluntary redundancy.  There was a divergence in the evidence between the versions given by both sides.  The Tribunal does not consider it necessary to make a formal finding of fact on this issue as the claimant eventually did not proceed any further with either of these procedures.

 

16.           Mr Killen met with the claimant on 3 January 2008 on her return to the respondent from her secondment and he shared a copy of the proposed structure with her.  At this time, the claimant was seconded part-time until September 2008 to complete the project to which she was assigned and was working additionally part-time in her substantive post.  The claimant expressed concerns about the structure.  Her existing post had disappeared, a new post called Information and Records Management had been created, and another employee called Linda McAree had been notionally allocated to this post.  However in the proposed allocation document, this post had been marked “leave pending at present”.

 

17.           The claimant at this time, was graded as a Grade 6 (Band 6) although she was later to appeal her grading.  Ms McAree was thought initially to be of a band 7 grade, which is why she was allocated to the post.  Mrs Fleeton was allocated to the new Band 5 post of Emergency Planning.  This was in reliance on the procedure we set out in paragraph 13.

 

18.           Subsequently Ms McAree was graded as a Grade 6.  As both persons were of the same status and as the claimant did not proceed with her initial enquiry concerning voluntary redundancy/voluntary retirement the respondent decided to hold an interview process for the new post of Information Governance and Records Management Officer.

 

19.           In or around 13 May 2008, the claimant was not invited by Mr D Killen to a meeting of the Departmental Senior Managers’ Operational Team.  At the meeting, Mr Killen recorded her absence as an apology but later explained in his evidence to the Tribunal that this failure to invite her was an oversight on his part.  There were various explanations advanced as to why this had happened some of which were in conflict each with the others.  As the claimant was invited to subsequent meetings the tribunal finds that this failure to invite her to this meeting was simply an oversight.  An employee called Graeme Peters had been seconded to the Directorate in which the claimant was employed, to carry out a particular project regarding outside data storage on a short term basis.  This project was of six weeks duration.  This secondment was extended but it is due to expire a short time after the hearing of these proceedings.  Mr Peters was not included in the pool to be interviewed as the candidate for the job of Information Governance and Record Officer, as he was from another Directorate, so in paragraph 31 of this decision we discount him as a comparator to the claimant.

 

20.           At a staff meeting on 18 February 2008, the question of who was to be allocated to the new post was discussed.  The claimant alleged that Mr Killen had said that Ms McAree was to be appointed to the post.  Mr Killen denied this.  It appeared to the Tribunal that the basis on which the claimant advanced this contention was that she had been told by work colleagues that Ms McAree would get the post without recruitment procedures. We find that work place gossip is not a satisfactory basis upon which to find the claimant’s evidence to be of sufficient weight in this point.  We prefer Mr Killen’s direct evidence that the claimant was not told by him that Ms McAree was to be appointed to the post.

 

21.           The claimant lodged a grievance about matters relating to her employment on

6 March 2008, and Mr Eamon Malloy responded in writing to it by a letter

dated 28 April 2008.  No hearing was arranged initially because Mr Malloy took it from Mr Boomer’s letter of 6 March 2008 that a grievance was yet to be lodged as a result of the final words of the letter:-

 

“…… otherwise she will have no option but to pursue these matters as a formal grievance” (a grievance hearing therein was eventually arranged for 16 October 2008).

 

22.           The claimant was informed in late May 2008 that arrears in salary arising from the settled tribunal cases would be paid.  Although the Conciliated Settlement of 8 April 2008 provided that the claimant was to be moved on to scale point 25, it did not say at which point she was to enter scale point 25.

 

23.           On 4 June 2008 the claimant required confirmation from the Payroll Manager that she had been placed on scale point 25.  She was informed that her post had been graded at band 6 of “Agenda for Change”, an ongoing process in this industry and the settlement had been superseded by this process.  “Agenda for Change” involved a review of jobs in the health service and employees had to fill questionnaires about their jobs to facilitate a grading assessment for their posts.  Jobs would then be evaluated.  There were 2 areas of difficulty in relation to the failure to pay what the claimant thought was due to her:

 

(a)  The claimant was treated as if the move from scale point 29 to scale point 25 was a promotion, whereby she was moved to the bottom of the scale point 25.  The claimant considered that she should have been “assimilated” to scale point 25 meaning that she would have been transferred to the same point on scale point 25 as the point she had achieved on scale point 29.  The difference in financial terms that this made to the claimant was significant. 

 

(b)  The “Agenda for Change” process impact was not considered in reaching the settlement.  Mr Boomer sought to place responsibility for this on the respondent. 

 

24.           The claimant objected to how the “Agenda for Change” job evaluation had been carried out.  She did not accept that the correct personnel had been involved as the staff side advisors in the process.  She objected to the questionnaire information provided by her line management.  Although she thought it had been completed by Mr McBrearty, it appeared to the Tribunal from the evidence before it that it had been completed by Mr Livingstone.  Both of these persons were involved in the claimant’s previous cases.  At the hearing of these proceedings there was evidence that the proper staff side advisors were involved in the process, but the claimant had not identified them as acting staff side advisors.  We find that staff side advisors were involved.  We note that there were inaccuracies about the information used for the matching process but as proper staff side advisers were involved this is a safeguard to the claimant’s interest.  The claimant applied for a review of the outcome of her “Agenda for Change” process by letter dated 11 July 2008.  The outcome of this process was not known to the tribunal at the time of hearing, so the Tribunal does not consider it to be appropriate to make any findings about how this process was carried out without the outcome being available to the Tribunal.  We do not consider that we can simply isolate the “matching process” as Mr Boomer submitted.  We consider the process of Agenda for Change should be considered as a whole.

 

25.           The claimant presented victimisation proceedings to the Fair Employment Tribunal in or around 26 June 2008.

 

26.           For the sake of completeness, the Tribunal has noted that the claimant wrote to Mr Eamon Malloy before her interview for the Information, Governance and Records Management post in or around 10 December 2008, stating that the respondent should not seek to include on its interview panel persons about whom she had complained in her previous proceedings, saying that they should not be in a position to make decisions regarding her future employment.  The claimant was invited for an interview on 16 December 2008 for the Information Governance and Records Management post.  Two persons involved in her previous cases sat on the panel, and she was unsuccessful in her application.  At the time of hearing she was regarded by the respondent as being “displaced”.  If it was the case, as argued by the respondent, that no one other than the disputed persons could sit on the panel for interview, it would have been much better industrial practice for the claimant to be told this rather than her correspondence being ignored, making her feel that her complaint was not taken seriously and fuelling her feeling of victimisation.

 

27.           The claimant did not seek to amend her claim to make any complaint about her non appointment to the Information Governance and Records Management post.

 

28.           Subsequently any complaint about the claimant’s alleged exclusion from the publication scheme was withdrawn.

 

29.           Neither side sought to impugn the validity of the Conciliated Settlement of 

8 April 2008 and in paragraph 20 of her witness statement the claimant    acknowledged that the County Court was the correct jurisdiction to enforce the Conciliated Settlement terms.

 

Conclusions

 

30.           To bring a claim for victimisation the claimant must have done a “protected act” and have suffered less favourable treatment on the ground of having done that act.  A “protected act” had been done by the claimant in accordance with Article 3 (4) and (5) of the Fair Employment and Treatment (NI) Order 1998.  The claimant’s first complaint in terms of time was in relation to the previous cases no 136/05FET and 948/05FET and the respondent’s behaviour in and around the conduct of those proceedings and the subsequent negotiations thereafter which led to the Conciliated Settlement of the 8 April 2008.  The Tribunal finds that it does not have any jurisdiction to consider these matters as its jurisdiction was ousted by the Conciliated Settlement of 8 April 2008.  Furthermore the Tribunal did not consider that it could in any way divide up these cases in line with the settlements (interim and otherwise) that occurred before the final Conciliated Settlement of 8 April 2008.  The Tribunal does not consider that it is helpful or possible to consider the “interim settlements” of 16 April 2007 and 28 August 2007, as it considers that they are staging posts in the journey that culminated in the Conciliated Settlement of 8 April 2008, and it would be artificial to divorce them from the Conciliated Settlement.  The Tribunal considers that any remedy for the claimant in connection with matters arising from the proceedings which ended in the Conciliated Settlement of 8 April 2008 lies in the County Court.

 

31.           Was it less favourable treatment to allocate Ms McAree to the post rather than Ms McAree and the claimant together?  We consider that the allocation document was a proposed allocation only.  The Tribunal has been mindful of the fact that the process was a general process undertaken as a result of the amalgamation of two trusts and the need to make savings.  This was not something that was put in place by the respondent specifically with a view to disadvantaging the claimant.    In the case of Chief Constable of West Yorkshire police and others –v- Khan [2001] ICR 1065, the House of Lords held that the comparison to be made was simply between the treatment afforded to the complainant who had done the “protected act” and the treatment that had or would have been afforded to the employees who had not done it.  The claimant identified Linda McAree and Graeme Peters as proper comparators.  Graeme Peters was an individual seconded to a directorate in which the claimant was employed for the purposes of a particular project and the Tribunal has not seen any evidence to suggest that he was in anyway considered in the allocation process let alone interviewed for the job eventually given to Linda McAree.  The Tribunal does not regard bundle 2 section f pages 1-4 as being probative of Mr Peters being allocated to the EDRMS post in the proposal.  No names appear on this document.  Even if it was probative, it is a proposed allocation only and subject to the same comments that we make in relation to the “allocation” of Linda McAree.  It also concerned a different job.  We do not accept that Graeme Peters is an appropriate comparator.   He was employed for a particular project and his situation is materially different.

 

32.           Linda McAree was “allocated” to the new post in the restructuring.  This proved not to mean that she received the job as of right.  Her name was put against it as a person to be considered.  What is more relevant is that once the claimant was found to be of the same rank as Linda McAree she was given the chance to compete for the job alongside her.  This being the case, we do not consider that simply putting Linda McAree’s name against the new job in the allocation process, which was a proposal only, is sufficient of itself to entitle the claimant to say she was  less favourably treated than Linda McAree.  There was without doubt considerable confusion about the status and grading of the claimant which was subject to appeal by the claimant and which must have been deeply frustrating for her.  However in the last analysis she competed for the job alongside Linda McAree and was not excluded from doing so.  This being the case we do not think the claimant was less favourably treated by the respondent as a result of only Ms Mc Aree’s name appearing in the proposed allocation document.  It was a proposal and what finally took place was an interview process in which both candidates were interviewed. 

 

33.           Did the respondent fail to correctly assess the value of the claimant’s post and her duties under the Agenda for Change job evaluation criteria in order to further victimise her by suppressing the grading of her post?  The Tribunal does not consider that it has sufficient evidence before it upon which to make a finding that the respondent failed to correctly assess the value of the claimant’s post under the Agenda for Change criteria.  One of the claimant’s complaints was that there were not proper staff side advisors involved in the process.  The Tribunal accepts the evidence of the respondent that there were staff side advisors involved in the process, even though the claimant did not identify them as such.  The claimant also objected about the questionnaire filled in about her job by Mr Livingstone, and it was apparent to the tribunal that this Mr Livingstone, on the claimant’s case, was one of the persons about whom the claimant complained in her previous proceedings.  Plainly, the claimant was making the case that Mr Livingstone knew about her previous cases and was trying to victimise her by the way in which he filled in the questionnaire.  There are undoubtedly areas in which the questionnaire was less than satisfactorily completed, but the Tribunal does not consider that it has sufficient evidence to draw an inference that this was done either consciously or unconsciously with the objective of victimising the claimant.   While Mr Boomer said Mr McBrearty and Mr Livingstone should have been called to give evidence and an inference of discrimination can be drawn because they were not, the tribunal declined to do so.  It was also open to Mr Boomer to call these witnesses, hostile though they may have been.  However, the claimant did have the right to appeal this process and availed herself of that right.

 

34.           Was the claimant treated less favourably by the treatment afforded to her from January 2008 onward?  The claimant was informed by Mr Killen about how the new structure was going to affect her job.  The Tribunal does not consider that could have been avoided, and does not regard this by itself as being any evidence of less favourable treatment.  Secondly, Mr Killen’s failure to invite the claimant to the initial meeting of the new Directorate on 13 February 2008 was unfortunate, and there was a variety of explanations put forward on behalf of the respondent in relation to this matter.  However, the Tribunal does not consider that this can be taken as satisfactory evidence of the claimant being victimised on account of her previous proceedings, and is supported in its view by the fact that the claimant was subsequently invited to other meetings.  It was a very busy time for this new directorate and the Tribunal considers that this embarrassing lapse was due to inadvertence on the part of Mr Killen, rather than any desire to victimise the claimant. Certainly the claimant has not explained why in her witness statement, how and why Mr Killen should have any reason to victimise her.

 

35.           Was the failure to pay the sums due to the claimant under the settlement of

8 April 2008 evidence of victimisation?  The reason given was that the Agenda for Change process overtook the settlement.  On the one hand the respondent indicated that it implemented the settlement and on the other hand the claimant claimed that it failed to do so.  Again in essence the Tribunal considers that the claimant’s remedy would lie with the County Court when what she is complaining about is an alleged failure to properly implement a Conciliated Settlement.  However the Tribunal does acknowledge that a failure to implement a Conciliated Settlement could, depending on the circumstances, amount to victimisation, but in this case the Tribunal could find no evidence upon which to base such a finding, that consciously or unconsciously this treatment could be characterised as being caused by the “protected act” of the claimant.  The respondent did comply with the letter of the settlement.  The claimant was put on scale point 25.  The Agenda for Change process is one that has been ongoing in the healthcare industry for some years.  The Tribunal does not see any basis for inferring discrimination purely from the respondent implementing the letter of the settlement and the fact that it was at this point in time that the Agenda for Change outcome was available for the claimant.  Mr Boomer sought to lay the responsibility for the failure to implement the Conciliated Settlement at the door of the respondent.  He considered that the respondent should have implied terms into the settlement to benefit the claimant and that the respondent should have foreseen the outcome of the Agenda for Change process having an impact in the settlement process.  He considered that the respondent should have gone back to the claimant and effectively rewritten the Conciliated Settlement if there were doubts about how to implement it.  These matters could have and perhaps should have been covered by the Conciliated Settlement.  Again the view of the Tribunal is that if the claimant has difficulties with the way in which the respondent implemented the Conciliated Settlement she has her remedy in the County Court, which indeed the claimant has already accepted in her witness statement.

 

36.           Was the response in writing dated 28 April 2008 to Mr Boomer’s letter of

6 March 2008 rather than fixing a hearing, evidence of victimisation?  We find that the failure to fix the hearing was inadvertence on the part of the respondent and largely caused by the closing words of Mr Boomer’s letter.  Again, and for the sake of completeness, we note in so far as it is necessary for us to comment on the course of dealing that concludes after the date of the claimant’s claim, that this failure was subsequently corrected by a meeting convened for 16 October 2008.

 

37.           Was the respondent dishonest about the claimant’s redeployment and was there an  endeavour to force her to accept redundancy?  The Tribunal did not find any evidence at all that the claimant was being forced to do anything.  In matching her to the Grade 5 post, the Tribunal found that the respondent was acting in accordance with the variation to the procedure set out in paragraph 13 herein.  However, this was an interim matter only, and eventually the

 

claimant was interviewed for the Information, Governance and Record Management post and not in any way required to accept the Grade 5 Emergency Planning post.  Furthermore there was no evidence at all to suggest that the respondent tried to compel the redundancy of the claimant.

 

38.           In general the Tribunal did not find any evidence at all to suggest that the actions of the respondent witnesses were motivated by a desire to victimise her for bringing her previous Fair Employment Tribunal proceedings.  There was simply no evidence upon which the Tribunal could make sufficient findings of primary fact, upon which to draw inferences of victimisation.  There was a reliance on a settlement agreement reached and a number of instances of inadvertence from a respondent in an ongoing reorganisation situation, but no conscious, or anything, that amounted to unconscious motivation to victimise.  Consequently we dismiss the claimant’s claim of victimisation.

 

 

 

Chairman:

 

 

Date and place of hearing:  2-12 March 2009, Belfast

 

 

Date decision recorded in register and issued to parties: