Fair Employment Tribunal Northern Ireland Decisions

You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Badger v Southern Regional College Governing Body Southern Region... Southern Regional College Governing Body Southern Region... Governing Body Southern Region... Angela Coffey Southern Regional College Governing Body Southern Region... Southern Regional College Governing Body Southern Region... Governing Body Southern Region... Angela Coffey [2012] NIFET 00076_10FET (27 January 2012)
URL: http://www.bailii.org/nie/cases/NIFET/2012/00076_10FET.html
Cite as: [2012] NIFET 76_10FET, [2012] NIFET 00076_10FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 76/10 FET

1587/10

143/10 FET

2383/10

162/10 FET

2802/10

CLAIMANT: Elizabeth Badger

RESPONDENTS: 1. Southern Regional College

2. Governing Body Southern Regional College

3. Raymond Sloan

4. Brian Doran

5. Neil Bodger

6. Angela Coffey

DECISION

The unanimous decision of the Tribunal is that:-

(1) The claimant was not discriminated against on the grounds of religious belief and/or political opinion and/or sex by the first, second and fourth respondents and/or was not discriminated by way of victimisation by the first, second, third, fourth, fifth and sixth respondents and/or harassed on grounds of religious belief and/or political opinion and/or on grounds of sex by the first, second, fifth and/or sixth respondents, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 and/or the Sex Discrimination (Northern Ireland) Order 1976; and the said claims of the claimant are therefore dismissed.

(2) The claimant’s claims of discrimination on the grounds of religious belief and/or political opinion and/or sex, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 and/or the Sex Discrimination (Northern Ireland) Order 1976 by the fifth and sixth respondents, having been withdrawn orally by the claimant during the course of the hearing, were dismissed, following such withdrawal without objection by the said respondents.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr P Archer

Mrs T Hughes

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by Ms J Blair, Solicitor, of J Blair Employment Law Solicitors.

Reasons

1.1 The claimant presented to the Tribunal a series of claims, commencing on 14 June 2010, which were given the Case Reference Numbers set out above, to which claims the respondents presented responses denying liability. In the said claims the claimant made claims of discrimination on the grounds of religious belief and/or political opinion and/or sex and/or discrimination by way of victimisation and/or harassment on the grounds of religious belief and/or political opinion and/or on grounds of sex, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’) and/or the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) by the respondents and each of them. It will be necessary to consider in more detail the specific claims made by the claimant against each respondent elsewhere in this decision.

1.2 At a Case Management Discussion on 12 October 2010, as set out in the Record of Proceedings dated 15 October 2010, in relation to the claims of unlawful discrimination brought by the claimant, and given the Case Reference Nos: 76/10 FET and 1587/10, the following alleged acts, were identified by the claimant, without objection by the respondents, as the subject-matter of her said claims, namely:-

Case Reference No: 76/10 FET and 1587/10

“ …

2(a) The act of the Chief Executive Mr Doran querying the claimant’s appointment in December 2008 as Secretary to the Governing Body of the South Regional College.

(b) The allegation that Mr Doran enforced the assimilation and the evaluation process between December 2008 and July 2009. It is the claimant’s contention that this process was not necessary because the claimant had already been appointed to the post.

(c) Following a job evaluation by a panel on behalf of the Governing Body the claimant’s band was to change from Band 7 to Band 9. The consequent increase in pay, however, did not take place.

(d) Mr Doran interfered with other evaluations of the claimant’s post during the period December 2008 to September 2009. He did so without authority.

3. The claimant relies on the following comparators:-

Tony McConville;

Raymond Sloan; and

Brendan O’Brien.

4. The above acts are alleged to be acts of sex discrimination and discrimination on the grounds of religious belief and political opinion.”

1.3 At a Case Management Discussion on 27 January 2011, as set out in the Record of Proceedings dated 31 January 2011, the following alleged acts were identified by the claimant, without objection by the respondents, to be the subject-matter of the claimant’s remaining claims:-

Case Reference Nos: 143/10 FET and 2383/10; 162/10 FET and 2082/10

“ … Case Reference Nos: 143/10 FET and 2383/10

(1) That she suffered discrimination by the Governing Body following the lodgement of her first claim to the Tribunal and following a protected disclosure made in January 2008 about the former chairman of the Governing Body, Mr Rowntree.

(2) Mr Bodger and Ms Coffey were on the panel dealing with the claimant’s grievance in 2010 and they treated the claimant unfairly by victimising and harassing her. The adverse treatment related to the lodgement of the first Tribunal claim and the protected disclosure in 2008.

(3) In 2008, the claimant alleged that Mr Rowntree did something untoward in the recruitment process of the director of the College. Mr Bodger was on the panel involved in that recruitment process and the claimant’s allegation is that Mr Bodger would therefore not have been objective when dealing with her grievance.

(4) Ms Coffey is alleged to have had a family connection with Mr Rowntree and is alleged to be currently employed as a board member reporting to Mr Rowntree. The allegation therefore is that Ms Coffey was not objective in dealing with the claimant’s grievance.

(5) That Mr Doran was present at the meeting that set up the panel to hear the grievance against him, so he was part of the decision-making process and was part and parcel of the adverse treatment of the claimant.

(6) That there was a five week delay from the original date when the grievance outcome should have been sent to the claimant.

(7) That the grievance outcome letter threatened disciplinary proceedings against the claimant.

(8) That Mr Sloan treated the claimant unprofessionally by sending internal mail addressed : ‘Beth Badger!’.

Case Reference Nos: 162/10 FET and 2802/10

(9) The claimant confirmed that this claim comprises an allegation of victimisation on grounds of sex, religion, political opinion and the protected disclosure in 2008.

(10) The allegations relate to the following instances:-

(i) E-mails sent by Mr Bodger on 8, 9, 17 September 2010.

(ii) At a meeting on 22 September 2010 the claimant was put on extended leave which amounted to a suspension; and, secondly, an inappropriate proposal was put to her that she transfer to be under the responsibility of Mr Doran.

(iii) The claimant confirmed that her perceived religious affiliation is Protestant and her political opinion is Unionist.

… .”

1.4 At the commencement of the hearing, the following further issues were identified, by counsel, for the respondent, without objection by the claimant, which were also required to be determined by the Tribunal, insofar as these had not already been identified, at the previous Case Management Discussions:-

(1) Did the GLPC Job Evaluation Scheme apply to the claimant under the terms and conditions of her employment?

(2) If so, which, if any, of the job evaluations of the claimant’s post between December 2008 and March 2010 were valid within the agreed GLPC Job Evaluation Scheme?

(3) Was the Chairman of the Governing Body, Mr Hatch, acting outside the agreed GLPC Job Evaluation Scheme and his authority as Chairman in seeking to have further job evaluations carried out after the claimant abandoned the appeal mechanism within the GLPC Job Evaluation Scheme in relation to the job evaluation exercise performed in October/November 2009?

(4) If so, who had the authority to carry out the process of evaluation for the post of Secretary to the Governing Body?

(5) Was the Chairman, Mr Hatch, acting outside the agreed Standing Orders, Department Guidance and GLPC Job Evaluation Scheme and his authority as Chairman in seeking to have further job evaluations carried out after the claimant raised a grievance regarding management interference in relation to the job evaluation exercise performed in October/November 2009?

(6) Was the Chief Executive, Mr Doran, acting outside the agreed authority set in the Standing Orders and his contractual responsibilities in having evaluations carried out by management within the College?

At the commencement of the hearing the Tribunal confirmed with the claimant and the representative of the respondents that these were the issues to be determined, insofar as necessary and appropriate, by the Tribunal in relation to these proceedings.

1.5 By a decision of the Tribunal, dated 14 March 2011, the claims brought by the claimant in Case Reference Nos: 143/10 FET and 2383/10 against the Department for Employment & Learning and Mr Alan Shannon, were dismissed, following their withdrawal by the claimant.

Subject to the foregoing, the claimant’s remaining claims were ordered by the Tribunal, by Order dated 3 February 2011, to be considered and heard together and were also the subject of a direction pursuant to Article 85 of the 1998 Order, dated 2 February 2011.

1.6 During the course of the substantive hearing of these claims by the claimant, the claimant orally withdrew her claims of discrimination of the grounds of religious belief and/or political opinion and/or sex, pursuant to the 1998 Order and/or the 1996 Order against the fifth and sixth respondents; but not her claims of discrimination by way of victimisation against the fifth and sixth respondents. The Tribunal dismissed the claims so withdrawn, without objection by the said respondents.

1.7 Despite the case-management directions/orders of the Tribunal, and, in particular, those referred to in Paragraph 5 of the Record of Proceedings dated 22 March 2011, in relation to the hearing on 16 March 2011, an agreement by the parties to liaise and only to provide to the Tribunal a core bundle of documents and relevant extracts from documents [Tribunal’s emphasis], the Tribunal was faced with four Lever Arch files, together with a file of witness statements. During the course of the hearing, only a very small proportion of the documents, spread across the four Lever Arch files, were referred to by either party; and, in the circumstances, a large number of the documents contained in the bundles were clearly not relevant to the determination of the issues before the Tribunal; but yet were contained in the so-called agreed trial bundle provided by the parties to the Tribunal. The Tribunal has no doubt that, by the proper application of the terms of the overriding objective and in line with the agreement set out above at the hearing on 16 March 2011, all relevant documents, namely the ‘core’ documents, could have been contained in, at most, two Lever Arch files. If this had been done, the Tribunal has no doubt that considerable expense/inconvenience, but also time, could have been saved, not only for the parties but also for the Tribunal (see further Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, approving the judgment of Girvan LJ in Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49).

The Tribunal would also draw the attention of the parties to the judgment of the Court of Appeal in England and Wales in the case of Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66, referred to with approval by McCloskey J in the judicial review in the case of In Re: Loreto Grammar Schools Application [2011] NIQB 30, where Lord Justice Toulson stated:-

“ … The case was a grotesque example of a tendency to burden the court with documents of grossly proportionate quality and length. It was a practice which has to stop … ”.

This dicta, in the judgment of the Tribunal, has particular relevance to the provision of trial bundles to the Tribunal in this matter, in the circumstances set out above.

2.1 At the outset, the Tribunal had particular concern about the issue of victimisation claimed by the claimant and identified as set out above. The claimant fairly and properly acknowledged that, in her said claims, (Case Reference Nos: 143/10 FET, 2383/10, 162/10 FET and 2082/10) she had expressly made a claim of discrimination by way of victimisation, pursuant to the 1998 Order and the 1976 Order. She further acknowledged, in this context, she was relying on, as ‘protected acts’ under the said legislation, not only the presentation of her first claim to the Tribunal (Case Reference Nos: 76/10 FET and 1587/10) but also her allegation of protected disclosure made in or about January 2008. It will be necessary elsewhere in this decision to set out the relevant legislative provisions relating to discrimination by way of victimisation under the 1976 Order and the 1998 Order (see further Paragraph 4. of this decision); but the Tribunal was satisfied, having heard submissions by the claimant and representatives of the respondents, that an act of protected disclosure was not a ‘protected act’ which could be relied upon by a claimant when bringing a claim of discrimination by way of victimisation under the 1976 Order and 1998 Order. However, the claimant, as she was not legally represented, was given a further opportunity by the Tribunal to consider the relevant terms of the legislation, accepted that her allegations of protected disclosure could not be a ‘protected act’ for the purposes of a claim of discrimination by way of victimisation under the 1976 Order and the 1998 Order.

2.2 The Tribunal, in the circumstances, therefore concluded that the claimant was not entitled to pursue her claims for discrimination by way of victimisation under the 1998 Order and the 1976 Order, based on the alleged acts of protected disclosure. The claimant, who was unrepresented, frankly accepted that she had previously believed that such an act of protected disclosure did come within the terms of the 1998 Order and 1976 Order in relation to any claim of discrimination by way of victimisation. However, it became clear to the Tribunal, during the course of the claimant’s submissions on the above matters, and without prejudice to same, she might be seeking to make a claim, pursuant to Article 70B and 71 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) – namely a claim that she had been subjected to a detriment by her employer on the ground that she had made a protected disclosure.

The Tribunal therefore sought to clarify the claimant’s position on this issue. The claimant accepted that, although she had referred in Paragraph 7.4 of her claim forms in Case Reference Nos: 143/10 FET and 2383/10, to the alleged act of protected disclosure in January 2008, this had always been in relation to and/or in the context of her claim of discrimination by way of victimisation pursuant to the 1998 Order and 1976 Order and not [Tribunal’s emphasis] in relation to and/or in the context of any claim pursuant to Article 70B and 71 of the 1996 Order. Indeed, in Paragraph 7.1 of the above claims, she had referred, inter alia, to ‘other : victimisation as a result of lodging industrial papers’; and in Paragraph 7.4 of her claim forms for Case Reference Nos: 162/10 FET and 2082/10, she accepted there was also no express reference to the alleged act of protected disclosure and in Paragraph 7.1 she had also stated ‘other : victimisation as a result of lodging industrial papers’.

2.3 The Tribunal, having considered the above claim forms, as a whole, and in an non-technical way (see further Baker v Commissioner of the Police and Metropolis [UKEAT/0201/09]) and what the claimant had stated in her submissions, as set out above, concluded the claimant had not made, in any of her said claims before the Tribunal, a claim that she had been subjected to a detriment by her employer on the ground that she had made a protected disclosure pursuant to Article 70B/71 of the 1996 Order. The respondents contended, in their submissions, that no such claim had ever been made (see later).

In the circumstances, the Tribunal invited the claimant, if she wished to do so, to make an application for leave to amend her claims; and, in particular, her claims in Case Reference Nos: 143/10 FET and 2383/10 to include a claim of detriment on the grounds that she had made a protected disclosure pursuant to Article 70B/71 of the 1996 Order. After taking time to consider her position, the claimant indicated that she wished to make such an application. The Tribunal, again recognising she was an unrepresented party, gave her further time to prepare and make her said application, which was opposed by the respondents, and also provided her, without objection, with copies of the relevant entries from Harvey on Industrial Relations and Employment Law to assist her in making her said application. Having heard submissions by both the claimant and the respondents’ representative, the Tribunal took time to consider the application. The Tribunal then orally announced to the parties that it had decided to refuse to grant the claimant’s application. It was agreed that the Tribunal would give its reasons for its refusal to grant the application when issuing its decision, in order, having regard to the terms of the overriding objective, not to further delay the hearing of the matter. Having refused to grant the application to amend the claimant’s claim to include the claim under Article 70B/71 of the 1996 Order, and having concluded, as set out above, that the claimant’s allegation of protected disclosure was not relevant to the claimant’s claim of discrimination by way of victimisation pursuant to the 1998 Order and/or 1976 Order, the Tribunal ruled that any evidence relating to the alleged acts of protected disclosure was not relevant to the claims to be determined by the Tribunal; and decided it would not hear or consider any evidence relating to those said alleged acts of protected disclosure.

2.4 The Tribunal’s reasons for refusing the claimant’s application for leave to amend her said claims to include her claims of detriment on the ground that she had made a protected disclosure pursuant to Article 70B/71 of the 1996 Order are set out in the following sub-paragraphs.

2.5 In Harvey on Industrial Relations and Employment Law at Paragraphs 311 – 312.07, the relevant law and authorities in relation to issues of amendment are helpfully set out. In particular, it draws distinction between amendments which are:-

“(i) Amendments which are merely assigned 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.

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

2.6 It has long been held that amendments which fall within the first and second categories, as set out above, are not affected by the time-limits set out in the relevant legislation. The Tribunal was satisfied the proposed amended claim of the claimant did not fall within the first category. The claimant, not without some hesitation, came to the conclusion that the proposed amended claim fell within the second category as it, in essence, was putting a new label on what had been set out in Paragraph 7.4 of the claim form by the claimant in Case Reference Nos: 143/10 FET and 2383/10, as set out above. In particular, in that paragraph, there had been specific reference to the alleged acts of public disclosure in January 2008 and there had been reference to same in the issues identified at the Case Management Discussion on 27 January 2011; albeit in relation to a claim of discrimination by way of victimisation under the 1976 Order and 1998 Order. In these circumstances, issues of time did not require to be further considered by the Tribunal.

2.7 In deciding whether leave should be granted to amend the said claims, the Tribunal was satisfied that the classic guidance is still to be found in the judgment of Mummery J, as he then was, in the case of Selkent Bus Company v Moore [1996] ICR 836, endorsed by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201.

Mummery J held, in particular, that:-

“Whenever the discretion to amend is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

See also Underhill J in Transport & General Workers Union v Safeway Stores Ltd [2007] UKEAT/0092/07.

2.8 The above authorities and, in particular, Selkent, suggest that the circumstances to be taken into account in relation to any such amendment application may vary according to each case; but they also suggest there are certain particular matters which will normally require to be considered by a Tribunal, namely:-

(i) The nature of the application itself – ie is it minor or substantial.

(ii) Time-limits, if applicable and relevant.

(iii) The timing and manner of the application – although a delay in itself should not be the sole reason in refusing an application, the Tribunal should nevertheless consider why it was not made earlier, why it was now being made, for example, whether it was because of the discovery of new facts or new information appearing from documents disclosed in discovery.

However, in each case, as set out above, the paramount consideration (see Mummery J in Selkent) remains the relative injustice and hardship involved in refusing or granting an amendment. Questions of a delay, as a result of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party, can also be relevant in reaching any decision. A late application, as the Baker case confirms, is but one of the considerations to be taken into account when determining an application to amend.

2.9 The Tribunal’s power to grant leave to amend is contained in Rule 9 of the Fair Employment Tribunal Rules of Procedure 2005, as amended. As was made clear by the Court of Appeal in the case of Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49, when exercising those Rules, the Tribunal must have regard to and take into account the terms of the overriding objective contained in the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, which includes ensuring a case is dealt with expeditiously and fairly and saving of expense and dealing with a case in ways which are proportionate to the complexity and importance of the issues.

2.10 In relation to this particular case, there is no doubt that the amendment sought is not minor and it is substantial. If the amendment was to be allowed by the Tribunal, the Tribunal was satisfied it would require to determine all the necessary ingredients of such a claim pursuant to Article 70B/71 of the 1996 Order including, for example, whether a qualifying protected disclosure had been made, as alleged by the claimant, and/or whether the claimant had acted with the necessary reasonable belief or with the required good faith etc before considering whether the detriment, to which the claimant was subjected, was done on the ground of the protected disclosure. It would not merely require consideration and determination of a single discrete issue, as in the claim of discrimination by way of victimisation, namely whether the claimant had or had not presented an earlier claim. The Tribunal had no doubt that, if the amendment was allowed, in order to deal with the complex and varied issues relating to the protected act itself, which was at all times contested by the respondents, there would require to be a considerable number of additional interlocutory applications and factual enquiries and/or discovery of additional documents to be made to enable the amended claim to be fully particularised and determined by the Tribunal. There would require to be additional witnesses called, in particular, by the respondents to defend the amended claim, which would have involved further drafting and exchange of additional witness statements. The present hearing would clearly have required to have been adjourned to enable the above steps to be taken, with additional costs incurred by both parties (see further New Star Asset Management Holdings Ltd v Evershed [2010] EWCA Civ 870). It was apparent to the Tribunal that neither the claimant or the respondents, on the basis of the witness statements exchanged on foot of the unamended claims, were sufficient for the claimant to bring and the respondents to defend any such amended claim. It was not disputed that, not only would the matter have to be adjourned; but, when re-listed, it would require to be listed for a considerable longer time than the present hearing. The respondents’ representative was not instructed to raise any particular issue of prejudice arising out of the said proposed amended claim; but she raised concerns that, if the detailed matters relative to a claim under Article 70B/71 of the 1996 Order had to be addressed, as referred to above, it might become apparent that there were issues of prejudice, arising from the fact the alleged acts relied on by the claimant occurred some time ago and memories of witnesses, in such circumstances, might have faded.

2.11 This application was brought at a very late stage, albeit the Tribunal accepted this was explained, in part, at least, by the fact the claimant was unrepresented and had wrongly believed she could raise the issue of the alleged protected disclosure in the context of her claim of victimisation under the 1998 Order and the 1976 Order. It was unfortunate this issue was not addressed and resolved at the earlier Case Management Discussion, referred to above. It was not until the commencement of this hearing, in the circumstances referred to above, that the claimant had realised that she required to make this application for amendment to her claim to include a claim under Article 70B/71 of the 1996 Order. In those circumstances, the Tribunal did not consider the delay in itself was a reason to refuse the claimant’s application.

However, after taking into consideration, in particular, the matters referred to above in Paragraph 2.10, and after carrying out the balancing exercise referred to in the Selkent case, the Tribunal concluded that the greater hardship and injustice would be to the respondents if the claimant’s present claims were adjourned to enable the further steps, referred to in Paragraph 2.10 of this decision, to take place before a claim, pursuant to Article 70B/71 of the 1996 Order, could proceed to hearing. In doing so, the Tribunal also took into consideration the terms of the overriding objective.

2.12 Even if the Tribunal was wrong, and it had concluded the amendment application came within the third category, as set out in Harvey, the Tribunal, regardless of any time-issue, which might have arisen, would have reached the same conclusion for the same and/or similar reasons to those set out above; and would also have refused the claimant’s application for leave to amend her said claims.

3.1 The Tribunal heard oral evidence from the claimant and also Arnold Hatch, Dr Peter Smyth and Professor Mary Hanratty, on behalf of the claimant. It also heard evidence from the third, fourth, fifth and sixth respondents together with Andrew Saunders, on behalf of the respondents. The witness statement of Harry McConnell, was agreed to be admitted in evidence on behalf of the respondents, together with his report referred to therein, without formal proof. Having heard the said evidence and having also considered the documents referred to it, and the oral and written submissions of the claimant and the respondents’ representative at the conclusion of the hearing, the Tribunal made the findings of fact which it considered relevant to the determination of the claimant’s claims as set out in the following sub-paragraphs.

3.2 There was no dispute that, at all material times, Brian Doran (the fourth respondent) was the chief executive of the Southern Regional College (‘the College’) and Raymond Sloan (the third respondent) was the Human Resources manager/Head Of Human Resources and Development at the College and that Neil Bodger and Angela Coffey, the fifth and sixth respondents, were members of the Governing Body of the College and that the first and/or second respondents, Southern Regional College/Governing Body of the Southern Regional College, were liable (if so found by the Tribunal) for any acts of unlawful discrimination and/or victimisation and/or harassment, pursuant to this 1998 Order and/or the 1976 Order, found by the Tribunal to have been carried out by the third, fourth, fifth and sixth respondents in their position/capacities as set out above.

It was further not disputed, at all material times, the claimant was a Protestant and her political opinion was Unionist; and further that Brian Doran was a Catholic. However, there was no evidence brought before this Tribunal in relation to the political opinion of Brian Doran or indeed the third, fifth or sixth respondent. Even if there had been such evidence, the Tribunal is satisfied this would have made no difference to the decision of the Tribunal, for the reasons set out elsewhere in this decision.

3.3 The College came into existence on 1 August 2007, following the merger of three Colleges, sometimes known as the legacy Colleges, namely:-

Armagh College;

Upper Bann Institute; and

Newry & Kilkeel Institute.

Prior to the merger, a Temporary Executive Committee, which consisted of governors from the three legacy Colleges, oversaw the necessary preparations for the creation of the new Governing Body of the College. On 25 July 2007, the Temporary Executive Committee for the College appointed the claimant as secretary to the Governing Body of the College, with effect from 1 August 2007. The claimant, who had been previously secretary to the Governing Body of the Upper Bann Institute, was appointed to the said position by the Temporary Executive Committee, without any competition for the position. On 28 August 2007, the newly formed Governing Body of the College ratified the appointment of the claimant to the position of secretary to the Governing Body, which had been made previously by the Temporary Executive Committee on 25 July 2007, as set out above.

3.4 On 19 November 2007, the claimant signed a document which set out the main statement of conditions of service relating to her contract of employment with the College, as secretary to the Governing Body of the College. Significantly, in the view of the Tribunal, it was not disputed by the claimant that this statement contained the relevant terms of her contract of employment with the College. It required her, inter alia, to work for approximately 30 hours per week. In particular, it provided that her salary (pro rata) was a Grade/Scale Band 7, Points 38 – 41.

Insofar as relevant, the statement also provided:-

“(3) Conditions of service and changes –

Your terms and conditions of employment, including certain provisions relating to your working conditions, are covered by collective agreements, negotiated and agreed with trade unions … which are recognised by the College for collective bargaining purposes in respect of the employment group to which you belong. These conditions are embodied in the Scheme of Conditions of Service relating to your employment group, as well as in other documents …

From time to time variations in your terms and conditions of employment will result from negotiations and agreement with the trade unions and these changes will be incorporated in the documents to which you have reference … .

(5) Job evaluation –

The College operates a job evaluation scheme which is covered by a collective agreement negotiated and agreed by trade unions and staff associations. If your job is re-graded to a higher grade as a result of job evaluation you will automatically receive the increased salary provided, provided always that you remain in the employment of the College. If you leave the employment of the College before the job evaluation has been undertaken you will not be entitled to receive the increased salary attached to the re-evaluated post.”

3.5 In light of the foregoing, the Tribunal was satisfied the claimant, at all material times, was an employee of the College, subject to the terms of the contract of employment as set out in the said statement as agreed by her; and, in particular, the claimant’s pay was required to be determined through the collective negotiating framework, which in this case was the NJC Negotiated Framework, and also that any job evaluation was required to be carried out under the Greater London Provincial Council’s (‘GLPC’) job evaluation scheme, which was the relevant scheme for any job evaluation process for non-teaching staff, such as the claimant.

3.6 It was not disputed that, at all material times, the line management responsibility for the claimant, was the responsibility of the chairman of the Governing Body, for the time being, and not the chief executive. On 1 January 2008, the chief executive of the College, following an open competition, was Brian Doran, the fourth respondent. Mr Arnold Hatch was appointed as chairman of the Governing Body of the College from in or about February 2008.

3.7 The appointment of the claimant, as set out above, was made without the completion of any formal job evaluation or job description. At the time of her appointment, there were two other members of staff, who had each been carrying out duties as secretary to the Governing Body for the Armagh College and the Newry & Kilkeel Institute, respectively. Neither of these two persons were given the opportunity to be considered for the post of secretary to the Governing Body of the College, before the claimant’s appointment was made by the Temporary Executive Committee, as set out above. This appointment process was not in accordance with the agreed principles, protocols framework and agreed processes for appointment of staff as part of the College restructuring. However these principles, framework and processes were not approved by the Governing Body until in or about December 2007, which was subsequent to the claimant’s appointment to her said position, as set out above.

3.8 Appointments to all other relevant posts in the College, as restructured, other than the claimant, were carried out in accordance with the said principles and protocols and agreed processes for appointment. This process involved, inter alia:-

(i) Development of a job description.

(ii) Grading/job evaluation.

(iii) Identification of eligible pool of staff.

(iv) Process of consultation with individuals and trade unions.

Thereafter appointments were made using either assimilation, an internal competition or an external competition, depending on the eligibility pool and skill set required for the specific post. During this process of appointment of staff to the new structures in the College, Brian Doran became aware that one of the members of staff, who had previously held the position of secretary to the Governing Body in Newry & Kilkeel Institute, felt aggrieved that she had not been considered for the post to which the claimant was appointed, namely secretary to the Governing Body of the College. Although no formal grievance was lodged by this member of staff, Brian Doran was concerned that this member of staff could raise a legal challenge against the College, arising out of the above circumstances and, in particular, the failure to offer her the opportunity to compete for the said post. The member of staff who had held a similar position in the Armagh College, subsequently took voluntary redundancy, prior to the restructuring, and was not therefore a matter of continuing concern to Brian Doran in relation to the risk of a legal challenge.

3.9 Concerned about the risk of a legal challenge to the Governing Body of the College, and also recognising that, although the claimant had been validly appointed as set out above, by the Temporary Executive Committee, whose decision had been ratified by the Governing Body upon its formation, it was contrary to the principles and protocols agreed by the Governing Body, subsequent to her appointment. Brian Doran decided, properly in the view of the Tribunal, to raise his concerns about the above matters with the Governing Body at its meeting on 15 October 2008 and again at its meeting on 9 December 2008.

In order to avoid any risk of future challenge, it was agreed by the Governing Body to assimilate the claimant into her position as secretary of the Governing Body, in accordance with the agreed assimilation process. Further, the aggrieved member of staff, referred to above, was able to be successfully assimilated into a position within the College structure, thus avoiding any risk of a future legal challenge, which had been the concern of Brian Doran.

3.10 The claimant lodged an individual job evaluation request for re-grading on 10 November 2008 under the agreed GLPC Job Evaluation Scheme. She did so with the support of her line manager, Mr Hatch, who, as set out above, was also the chairman of the Governing Body.

It has to be noted that the form under which the claimant applied states:-

“A request for re-grading can only be made when an officer has been in post for a minimum of one year and the post has not been evaluated during the previous two years.” [Tribunal’s emphasis and see later in Paragraph 3.13 of this decision.]

This individual job evaluation request was not processed at this stage. This was because it was superseded by a management-led job evaluation, for the claimant’s post as secretary to the Governing Body, and carried out under the agreed GLPC Scheme, as part of the job assimilation exercise referred to above. This management-led job evaluation process has to be contrasted with the individual request, referred to above, not least by the fact that the latter allows an opportunity for the individual to appeal (see later). Further, the management-led evaluation process, under the GLPC Scheme, was consistent with the best practice guidance provided under the Scheme when dealing with a restructuring process, which was relevant for the College at that time. Indeed, it was agreed with the relevant trade unions that, during the restructuring period at the College, it would be inappropriate for individual evaluation requests to be dealt with.

3.11 Such a management-led evaluation, under the GLPC Scheme, was carried out, in relation to not only the claimant’s position, to ensure she was properly assimilated into her position in the circumstances as set out above; but it was also carried out, in relation to other non-teaching staff posts in the new College structures, as part of the restructuring process which was required on the formation of the College. The internal team which carried out the management-led evaluation process under the Scheme for all the posts, including the claimant, were highly trained experienced evaluators. The team consisted of Raymond Sloan (the third respondent), in his capacity as Human Resources manager, and Anne Marie Hughes, as deputy human resources manager. As shall be seen later, the claim of unlawful discrimination against the third respondent, did not relate to his actions in respect of this management-led evaluation. The position of secretary to the Governing Body was evaluated by the said team on 10 December 2008, using a newly developed job description for the post. This job description had had to be developed, as no previous job description existed for the said post. This was the first occasion in which the post had been formally evaluated as part of the new College structure; since, although the claimant had been appointed in August 2007, the job description had not been developed at that time, nor had the job been evaluated prior to December 2008. The job description, developed for the post, was based largely on the job descriptions that had been used for the post of Secretary to the Governing Body in each of the three legacy Colleges, prior to the merger. The result of the said management-led evaluation, which took place in or about December 2008, was that the post of secretary to the Governing Body was found to have 592 points, which still placed the claimant at Pay Band 7.

The claimant, not surprisingly, was disappointed by this result, as was her line manager, Arnold Hatch. By e-mail dated 10 February 2009, from Arnold Hatch to Brian Doran and after he had consulted with the claimant, Arnold Hatch asked that three additional duties be added to the said description. Both Mr Hatch and the claimant felt these had been wrongly omitted from the newly developed job description, on which the December 2008 evaluation had been based. This was agreed and the same panel, as in December 2008, looked again at the amended job description, following the inclusion of the three additional duties. However, in or about February/March 2009, the panel again decided that these additional duties did not require any change in the grading from Band 7, as they had originally decided. The claimant did not seek to exercise any right of appeal to the above decision.

3.12 There then followed a lengthy protracted dispute between Brian Doran and the claimant, supported by her line manager, Arnold Hatch, about her continuing dissatisfaction with the result of the last job evaluation in or about February/March 2009. At the heart of the dispute was that the claimant contended she was entitled to seek an individual job evaluation, whereas Brian Doran held to his view that the management-led job evaluation process, which had culminated in the decision in February/March 2009, as part of the restructuring process, superseded the individual’s right to submit a job evaluation request.

3.13 Following a meeting on 7 September 2009 between Arnold Hatch and Brian Doran, to try and resolve the impasse, an agreement was made, which was subsequently endorsed by the claimant in correspondence dated 17 September 2009, whereby it was agreed another management-led job evaluation would take place, the result of which ‘would bring the matter to a close’. Given the context of the claimant’s claims to the Tribunal against Brian Doran, the Tribunal considered it was of some significance that Brian Doran, in order to resolve the impasse that had developed, had agreed to waive/relax the two year time bar under the GLPC Scheme referred to in Paragraph 3.10 of this decision, which would normally have prevented this further job evaluation.

3.14 A further job evaluation therefore was carried out by a team of two internal evaluators, namely Janet Little and Raymond Mallon, on 16 and 19 October 2009. The result of their evaluation was the claimant’s grading should remain at Band 7, which decision the claimant appealed, as she was entitled to do under the GLPC Job Evaluation Scheme. After a pre-appeal evaluation meeting on 19 November 2009 with the panel of evaluators, referred to above, which did not result in any change to the panel’s decision, the claimant lodged a grievance in relation to the conduct of the panel during the pre-appeal meeting and the overall job evaluation process.

3.15 The claimant, although the appeal would have been heard by an independent Chairperson, with a union representative and management representative, decided not to proceed with the appeal; but rather to proceed with her grievance, which was heard by Arnold Hatch, in his capacity as her line manager.

3.16 Arnold Hatch then unilaterally decided to uphold the grievance by the claimant; although, somewhat surprisingly, it does not appear that, in doing so, he held any meetings with, for example, the panel members, who had carried out the evaluation, in order to discuss the allegations made against them by the claimant. He further ordered that a new job evaluation was to be conducted by a panel of two members from another College. In the Tribunal’s view, he made this decision, even though clearly it was contrary to the spirit and letter of the above earlier compromise agreement made between the claimant and Brian Doran (see Paragraph 3.13 of this decision) to resolve this issue, solely because he and/or the claimant were not confident that any further internal evaluation would result in an upgrade for the claimant, which both he and she clearly wanted to achieve. By ordering it to be taken outside the College, he clearly hoped to achieve the desired result, namely an upgrade for the claimant. The Tribunal had no doubt that, given their joint desire to achieve the upgrade, Mr Hatch, albeit he was in the role of line manager and the claimant was in the role of employee, worked closely together in relation to the steps taken by Mr Hatch, as set out above; and indeed subsequently as referred to elsewhere in this decision.

3.17 Brian Doran, in his position as Chief Executive, properly expressed his concerns to Arnold Hatch, in relation to the actions he was proposing to take in relation to this further evaluation. In his e-mail of 23 November 2009, Brian Doran highlighted the following, inter alia:-

“(1) I would advise that College management lead on the appointment of the agreed evaluation team and any subsequent appeal panel, if required, in line with current practice and the evaluation scheme.

(2) You had indicated it was your wish to use two representatives from the College, namely either the SWC or SERC. As discussed, I had previously shared information with you on the grade of existing clerks to the Governing Body for the other Colleges. The selection of representatives from either of the two Colleges mentioned could be perceived as bias because both have evaluated the post of clerk to the Governing Body at a higher level … consequently, I believe the selection of an evaluator from these Colleges would be viewed as skewed towards the automatic grading of the post at a higher level.

(3) … I suggest the College employ the services of individuals who have appropriate experience of the evaluation process, including governance arrangements. One suggestion is the use of trained evaluators operating in the SEELB.

(4) To proceed on the basis of your original proposal may place you and the College at the risk of a future challenge and I would thus strongly advise that you re-consider the proposed steps … .”

3.18 Arnold Hatch had asked Brian Doran to inform the appropriate trade union of what he was proposing to do. NIPSA, the relevant trade union, responded by letter dated 15 December 2009 to Brian Doran in which it expressed a number of concerns, including the fact that the claimant’s post had been evaluated in December 2008 and the precedent that this might give rise to for other staff members wanting job evaluations. The Tribunal could fully understand Mr Doran’s concern about the risk to the College, if any such external evaluation was proceeded with. Arnold Hatch was advised of NIPSA’s concern by Brian Doran but stated, in response, that he was going to proceed to appoint an external panel and did not consider any precedent was set as he did not recognise the December 2008 evaluation.

In fact, regardless of the above, Arnold Hatch had already initiated the external evaluation with the South Eastern Regional College by letter dated 8 December 2009 and had not waited for the response from the trade union.

The Tribunal found it surprising, given the concerns expressed by the Chief Executive, that before taking any such action, Arnold Hatch, who was not only Chairman of the Governing Body but also the claimant’s line manager, did not consider it appropriate or necessary to refer this matter to the Governing Body. This was a further example, in the Tribunal’s view, of the tensions/conflicts which had arisen with Arnold Hatch carrying out both roles, in circumstances where he clearly considered the claimant was, at all times, entitled to an upgrade, regardless of what had been determined by the earlier evaluations. Indeed, the Tribunal concluded this was a further example of ignoring previous evaluations, which did not give the desired result and taking further action to achieve the desired result, regardless of procedures and normal practice. The Tribunal considered it was unfortunate that, given the issues that had arisen between Mr Doran and Mr Hatch in this matter, that Mr Doran had not himself gone to the Governing Body or the Staffing Committee of the Governing Body. If he had done so, many of the difficulties that subsequently arose between the parties might have been able to be avoided.

3.19 In the event, by letter dated 8 February 2010, the result of the evaluation by the Southern Eastern Regional College was notified to Arnold Hatch. In particular, it found:-

“Whilst the panel accepted the College had increased in size and this may have resulted in an increase in the volume of duties performed, there was no evidence of additional duties or higher levels of responsibility. In light of this and given the provisions of the Scheme do not provide scope to consider an increase in the volume of tasks being performed, the panel had no option but to dismiss the request for re-grading.”

In line with the GLPC Scheme, one might have expected this should have finally concluded the matter, especially since it was Mr Hatch, with the consent of the claimant, who had sought this external evaluation.

3.20 Clearly, however, having not obtained the results that he had hoped for, Arnold Hatch, with the active agreement of the claimant, initiated a further job evaluation of the claimant’s post; which, on this occasion, Mr Hatch decided was to be conducted by two members of the Governing Body, namely Dr Smyth, who was Vice Chairman of the Governing Body and Professor Hanratty. Whilst the claimant, in the Tribunal’s view, could reasonably contend that any letters/e-mails to arrange this new process were written on the instructions/with the agreement of Arnold Hatch, in her position as Clerk to the Governing Body, the Tribunal has no doubt that the claimant was in fact, with the agreement of Mr Hatch, the driving force in further pursuing this matter and making the necessary arrangements for this further evaluation. In writing to organise the training for the two members of the Governing Body, as part of the preparation for the further evaluation, in an e-mail to Tony Maye of South Eastern Education & Library Board, the claimant did not say, for example:-

“I have been asked by Mr Hatch, as Chairman of the Governing Body to look into providing training for two Governors”;

but rather she stated in the relevant e-mail:-

“I [Tribunal’s emphasis] am currently looking into providing training for two Governors.”

Training was carried out on the morning of 11 March 2010 by Mr Maye for Dr Smyth and Professor Hanratty, who on the afternoon of 11 March 2010 were able to evaluate the claimant’s post and found it should be graded at Band 9. This was the result which had always been sought by the claimant and Arnold Hatch. The Tribunal, after hearing evidence from both Dr Smyth and Professor Hanratty, and in the absence of any detailed relevant paperwork, which it might have expected to find, in connection with such an evaluation exercise, remained unclear how such a conclusion was reached by them in the circumstances; and especially when all the previous evaluations had been unable to find that such an upgrade was appropriate. However, in the context of this claim, it was not necessary for the Tribunal to further consider and explore this issue, other than to record that such an upgrade had been made by them.

3.21 However, armed with the result he and the claimant had always sought, Arnold Hatch, as Chairman of the Governing Body, then sent Brian Doran, the Chief Executive, an e-mail on 22 March 2010 informing him of the result of the Governors’ evaluation; but also, in particular, instructing him to inform Human Resources of the change of grade for the claimant’s post.

3.22 Although it has been necessary, for the purposes of setting out the proper conduct in which the claimant has made her claims in these proceedings, to refer in considerable detail to the events prior to the instruction given by Arnold Hatch to Mr Doran, it is not without some significance, for the purposes of the Tribunal’s decision, to note that the claimant made no allegations of unlawful discrimination against any of the respondents, in relation to any of the acts, prior to the refusal by Brian Doran to comply with the said instruction. She only did so when she got the result she wanted in the evaluation by the two Governors of the Governing Body; and Mr Doran refused to implement it.

3.23 At a meeting on 24 March 2010, of the Governing Body of the College, during a confidential section of the meeting, Arnold Hatch again instructed Brian Doran to increase the claimant’s salary in line with the outcome of the job evaluation, carried out by Dr Smyth and Professor Hanratty, two members of the Governing Body, which had graded, as set out previously, the claimant’s post at Grade 9. Somewhat unprofessionally, in the Tribunal’s view, Arnold Hatch, given his position as Chairman of the Governing Body, had not told Brian Doran, the Chief Executive of the College, in advance of the meeting, of his intention to raise this matter. Indeed he did so, whenever the claimant was present at the meeting. Despite, what the Tribunal concluded was an attempt by Arnold Hatch to force Brian Doran to comply with his earlier instruction, Brian Doran made it clear to the Governing Body, at the meeting, that he was refusing to follow through on the instruction at that point in time, as he felt it would be in breach of his responsibilities as the Accounting Officer of the College, and in that role ultimately to the Permanent Secretary of the Department for Employment & Learning. This was due to his concerns about the fact that the payment was a result of a process which he, for the reasons set out earlier, did not consider had been arrived at in accordance with the proper procedures and indeed was not a proper job evaluation in line with the terms of GLPC Scheme. He also indicated that, in the circumstances, he considered it would be necessary to obtain legal advice before he could properly set out his position to the Governing Body. As Accounting Officer at the College, the Tribunal accepts that Brian Doran could not have made such a payment, in the absence of legal advice authorising him to pay it, if he considered it was not proper expenditure which he could, in essence, ‘stand over’. In the event, in a subsequent letter dated 21 June 2010, the Permanent Secretary of the Department for Employment & Learning, after further investigation of the matter, endorsed the position taken by Brian Doran, when, at all material times to these proceedings, he refused to upgrade the claimant, following the March evaluation carried out by Dr Smyth and Professor Hanratty. The Permanent Secretary of the Department stated, inter alia, in his said letter:-

“ … The implementation of this evaluation is deemed to be novel and contentious, as per Paragraph 34 of the Department’s Financial Memorandum with the College, due to its repercussive nature. Consequently, the implementation of the most recent evaluation of this post requires the prior approval of the Department and the Department of Finance & Personnel. On this basis, any decision to proceed with implementation of the outcome of the evaluation, in the absence of the Department’s prior approval, will be deemed an irregular payment.”

The Tribunal is satisfied Brian Doran, as a responsible Chief Executive, had throughout the history of this matter, been very careful to ensure that, at all times, due process was carried and to protect the College’s position, even though his stance obviously brought him into conflict with Arnold Hatch, the Chairman of the Governing Body and the claimant’s line manager, but also Dr Smyth and Professor Hanratty who were members of the Governing Body and who had graded the claimant’s post at Grade 9, as set out above.

3.24 The Tribunal has no doubt, in the circumstances, that the sole and only reason for Mr Doran’s refusal to make the payment in line with the March job evaluation of Dr Smyth and Professor Hanratty, was because he was not prepared to make the payment, which he believed was ‘wrong’ as it had not been achieved through proper process and in accordance with the GLPC Scheme; and to pay it would compromise his position as Accounting Officer of the College. It also has to be remembered that this was not his first intervention in order to ensure proper process, as referred to in previous sub-paragraphs, in relation to the evaluation of the claimant’s grade. Significantly, none of his earlier interventions had been the subject of any claim by the claimant. It also has to be remembered that Brian Doran, as set out previously in Paragraph 3.13 of this decision, had in September 2009 entered into a compromise agreement, in order to try and resolve the impasse that had developed, by relaxing the two year time bar under the GLPC Scheme, which normally applied.

In these circumstances, and given his position as both Chief Executive of the College and Accounting Officer, he was not prepared to carry out such an instruction given by the Chairman of the Board of Governors. The Tribunal is further satisfied that in deciding to refuse to follow the instruction of Arnold Hatch, the Chairman of the Governing Body, a decision which undoubtedly was very difficult for him, as Chief Executive, had nothing to do with the claimant’s religious belief and/or political opinion and/or sex. Indeed, to have merely done what he was told, regardless of the consequences for the College, would have been the easy thing for Brian Doran to have done; but the Tribunal accepts he did not do so, despite the fact that it would bring him into conflict with the claimant but also, in particular, Arnold Hatch, the Chairman of the Governing Body. As set out previously, Arnold Hatch clearly supported the claimant’s claim for re-grading and, in the Tribunal’s view, was determined to obtain that result, regardless of due process. There clearly was a difference of view between Arnold Hatch and Brian Doran in relation to the claimant’s wish to be re-graded. That dispute had nothing to do, in the Tribunal’s opinion, with the claimant’s religion and/or political opinion and/or sex and the Tribunal is convinced that Brian Doran would have maintained the same position, and refused to carry out the instruction to re-grade, in similar circumstances involving any other person employed by the College.

3.25 In view of the Tribunal’s finding, as set out above, of the reason for the decision of Brian Doran, it was not therefore necessary for the Tribunal to consider the comparators relied on by the claimant for the purposes of her claim of unlawful discrimination. If it had been necessary to do so, the Tribunal would not have found the persons relied on by the claimant were appropriate comparators for the purposes of the relevant legislation and, in particular, it was not satisfied the circumstances of those particular comparators were not the same as the claimant.

3.26 The claimant confirmed, in the course of the hearing, that her claim against Raymond Sloan, the third respondent was restricted to a claim of discrimination by way of victimisation and, in essence, related to one incident which occurred on or about 16 August 2010.

Raymond Sloan, in his capacity as Head of Human Resources and Development at the College, on 16 August 2010, following a period of annual leave, sent an internal envelope to the claimant at her office in Portadown on which the claimant’s name ‘Beth Badger! Portadown’ was written on the address panel. The contents of the envelope did not relate to the claimant’s job evaluation process and/or any of her grievances and/or the Tribunal proceedings. When this envelope was addressed and sent by Mr Sloan, the claimant had already commenced these Tribunal proceedings against the third respondent. The claimant was particularly upset by the use of the exclamation mark on the envelope. Raymond Sloan gave evidence on this issue to the Tribunal. As Raymond Sloan subsequently stated to Mr O’Hagan, Director of Finance & Corporate Services, who investigated the claimant’s complaint on receipt of the internal envelope, he was unable to give an explanation for including the exclamation mark other than that it was a simple sweep of his pen and/or some sort of reflex action by him, as he addressed the envelope in a hurry due to pressure of work following his holiday. Raymond Sloan also made it clear to Mr Hagan, who confirmed this to the claimant in a e-mail on 19 August 2010, that he had not intended to upset the claimant ‘and he offered his apology for any offence that this inadvertent action might have caused’.

Raymond Sloan assured the Tribunal, in the course of his evidence, that he often did some underlining of names/a box around names and, on occasion, exclamation marks so as to, in some way, assist the post room by highlighting the addressee. The Tribunal found his explanation less than convincing and, in particular, why he would have used an explanation mark in such circumstances. However, equally, what ever his reason for doing it at the particular time, the Tribunal was not convinced that, when he did this, it had anything to do with the fact that the claimant had brought Tribunal proceedings against him. There was no other evidence of any other improper action by Raymond Sloan relevant to these proceedings by the claimant. He immediately apologised, although this was not accepted by the claimant. The Tribunal could understand, given she had brought proceedings arising out of the matters, the subject-matter of her claim, the claimant was at that time under a certain amount of stress and pressure; but the Tribunal concluded that, in the circumstances, she overreacted to what was a somewhat minor matter. In addition, there was no suggestion from anyone in the post room or anyone who had seen the envelope or indeed by the claimant herself, that any adverse inference had been taken by anyone in relation to the said exclamation mark on the envelope. Equally, the claimant never suggested that she had any difficulty in carrying out her duties/work because of what Raymond Sloan had written on this envelope.

3.27 Following the dispute over the refusal of Brian Doran to pay, on the instructions of Arnold Hatch, the uplift on the claimant’s salary, arising from the job evaluation of 11 March 2010, which had been raised, as set out above, at the meeting of the Governing Body on 24 March 2010, the claimant on 16 April 2010 raised a grievance. This became known as ‘Grievance No 2’ (the earlier Grievance No 1 related to the second job evaluation in November 2009, see before).

In Grievance No 2, the claimant, in essence, alleged that Brian Doran had discriminated against her on the grounds of religious belief and/or political opinion and/or sex in relation to the job evaluation process and his refusal to pay her the salary increase, following the job evaluation of 11 March 2010. Grievance No 2 was determined by two other members of the Governing Body, namely Mr Pat Cummisky and Mrs Eileen Wright. They issued their decision on 11 May 2010, which did not uphold the grievance. This panel found, inter alia:-

“No justifiable evidence of the complaint of discrimination against the Chief Executive. The panel finds that the job evaluation carried out on 10 March recommending the post be placed at Band 9 falls outside the authority of College practice and procedure and the Chief Executive is correct in not proceeding to implement it at this time..”

The claimant lodged another grievance (Grievance No 3) on 4 May 2010, complaining that the failure to increase her salary, following the 11 March 2010 job evaluation was a breach of her contract. In addition, she appealed the decision not to uphold her Grievance No 2. Again, in the Tribunal’s view, it was not, without significance, to note that no allegation of discrimination was raised by the claimant against Mrs Wright and/or Mr Cummisky in relation to their dismissal of the Grievance No 2.

At a meeting of the Governing Body on 19 May 2010, it was agreed two further Governors, the fifth respondent, Neil Bodger, who was also the Chairman of the Audit Committee, and Angela Coffey, the sixth respondent, would hear the appeal of Grievance No 2 but also Grievance No 3, given the subject-matter of the latter was interlinked with the subject-matter of Grievance No 2. This was a decision of the Governing Body. The fact the fourth respondent was present at the meeting, as Chief Executive, was not relevant and not relevant to any complaint by the claimant.

3.28 Neil Bodger and Angela Coffey decided to carry out a complete re-hearing, given the complexity and sensitivities of this whole matter, which they recognised had involved not only the Chairman and Vice-Chairman of the Governing Body but also other members of the Governing Body and the Chief Executive. This therefore required them to consider the whole history of the claimant’s requests for re-grading and the involvement of the Chairman and Vice-Chairman and other members of the Governing Body and the Chief Executive, in this whole process, an outline of which has been already referred to in the course of this decision. The Tribunal has no doubt, having regard to the large volume of documents relating to this whole process, which was presented to the Tribunal, that the fifth and sixth respondents had to read up a considerable amount of documentation before they could even commence the series of interviews which they held with the relevant personnel. They conducted a series of interviews with the claimant, Brian Doran and Arnold Hatch between 4 June 2010 and 21 June 2010. Raymond Sloan was unable to be interviewed, and then only by Angela Coffey, until 8 July 2010, as he was on annual leave prior to that date. As a further safeguard to ensure the independence of the process and to avoid the use of College staff, Stuart McKeown of PricewaterhouseCoopers, a firm of well-known accountants, was engaged to attend the meetings and to take notes of the various interviews. The Tribunal has no doubt that the task entrusted to Neil Bodger and Angela Coffey by the Governing Body was very difficult and raised sensitive issues, not least having regard to their own positions as Governors and whom they had to interview; and the respective involvements of the interviewees in the matter. In the Tribunal’s view, they carried out a detailed, thorough and proper investigation of all matters and gave all relevant personnel involved an opportunity to set out their case. Indeed there was no evidence of any criticism of the manner in which they carried out this task.

The Tribunal accepts that, at an interview meeting on 21 June 2010, the claimant was given an indication by Neil Bodger and/or Angela Coffey that the panel hoped [Tribunal’s emphasis] to have finalised its response in relation to the said grievances by the end of June 2010. However, she was also told that it would be necessary to interview the third respondent, who was on annual leave; and who, as set out above, was not able to be interviewed until 8 July 2010. At best, the Tribunal is satisfied the claimant was given an indication, but no more, that the outcome would be known by the end of June 2010; but she certainly was not given, as suggested by the claimant, any promise or guarantee by the panel. Given the intention of the panel to give a detailed written outcome, the Tribunal was not surprised that no such promise or guarantee was given.

3.29 The claimant had presented her first claim to the Tribunal on 14 June 2010; but it was not received by the College, following the acceptance procedures, until 28 June 2010. Under the Tribunal’s Rules of Procedure, a response was required to be presented to the Tribunal within 28 days, unless an extension of time was sought and granted by the Tribunal before that date. Given that the subject-matter of the grievances being investigated by Neil Bodger and Angela Coffey included many of the very matters raised by the claimant in her claim, the Tribunal could fully understand and accept that any conclusions of Neil Bodger and Angela Coffey, in respect of the matters investigated by them, were likely to be central to any defences which would be required to be set out in the response by the respondents to the first said claim and that their conclusions would therefore require to be rejected, in some detail, in the said responses. The Tribunal has no doubt that in or about early July 2010 the panel of Neil Bodger and Angela Coffey had reached, in discussion, their preliminary/draft decision on the outcome but this had not been finalised in any written form. Indeed, it was not able to be sent to the claimant until 2 August 2010.

In looking at this issue of delay, the Tribunal was satisfied there was an added complication in that, during the course of its investigations of all these matters, Mr Bodger and Mrs Coffey, as responsible members of the Governing Body, had come to have real concerns about the manner in which Arnold Hatch had dealt with the various job evaluations for the claimant’s post and had come to the conclusion that Arnold Hatch, as Chairman of the Governing Body, but also the Vice-Chair of the Governing Body, Dr Smyth, given his involvement, as set out previously in the job evaluation, were conflicted and were not therefore the correct persons to approve the responses of the College, which would require to be lodged at the Tribunal to the claimant’s claim. Normally, but for these concerns, we might have expected any response to the Tribunal proceedings to have been ‘signed off’ by the Chairman and/or Vice-Chair of the Governing Body. As a consequence of the above matters, Neil Bodger wrote on 19 July 2010 to obtain the approval of the Department for Employment & Learning for authority, which was subsequently given, for him to sign the responses on behalf of the Governing Body to the claimant’s Tribunal claim, on the grounds the Chairman and the Vice-Chair of the Governing Body had a material interest in the matter.

3.30 In light of the above circumstances, the Tribunal is satisfied that the receipt of the claimant’s claim to the Tribunal, at the end of June 2010, had clearly led to additional difficulties for the respondents. The necessity to deal with the responses, as set out above, undoubtedly led to additional delay by Neil Bodger and Angela Coffey in sending to the claimant the written outcome of their investigation of the grievances. This was because, before that could be done, the College’s responses had to be lodged with the Tribunal in order to comply with the relevant time-limits. It would have been possible for the respondents to give a ‘holding/limited’ response to the Tribunal and to subsequently provide a ‘detailed’ response, after the written conclusions of the panel had been sent to the claimant; but it must be noted, the Tribunal, under the Rules of Procedure 2005, require a ‘detailed’ response. A ‘simple denial’ is not normally appropriate. Equally, it might have been possible to have asked for an extension of time to present the response to enable the finalised written conclusion of the panel to have been sent to the claimant first; but there was no guarantee that the Tribunal would exercise its discretion in the respondents’ favour in such circumstances. Faced with these various options, following the approval of the Department, it was decided by Mr Bodger to present a detailed response to the claimant’s claims to the Tribunal and to send the written conclusions of the panel to the claimant as soon as possible thereafter. In light of the foregoing, the claimant was sent, in essence, a holding response on 13 July 2010 by the panel and by letter dated 2 August 2010 the claimant was sent a detailed written outcome by Neil Bodger and Angela Coffey to the said Grievance No 2 appeal and to Grievance No 3 (breach of contract grievance). The Tribunal, in the circumstances, does not consider any criticism arises from the taking of the above option, albeit there was some delay in providing to the claimant the finalised written conclusion from what had originally been hoped for. It arose because of the necessity to provide a detailed response to the claimant’s claim, which required to be based on the conclusions reached by Neil Bodger and Angela Coffey following their investigation of the matter.

3.31 In a letter dated 2 August 2010, Neil Bodger wrote to the claimant setting out the decision made by himself and Angela Coffey in relation to the said grievances, following their detailed investigation and interviews referred to previously. In their detailed decision, they concluded the grievances could not be upheld and stated, inter alia:-

“To conclude we believe there is no evidence that the CEO has discriminated against you on the grounds of your religious belief, political opinion or gender. In fact we believe that the evidence is quite to the contrary and instead would indicate that he sought to assist you by offering a second evaluation panel. Following this he became concerned the due process was not being followed and therefore raised his concerns. Having had the opportunity to consider his entire matter, we are in agreement with his concerns. There has been a failure to follow correct procedure and this has left the College vulnerable to claims and complaints by other members of staff who will feel they have not been treated in a similar manner. NIPSA are aware of this situation and have written to express their alarm and annoyance that one person can receive what they perceive as preferential treatment. They have stated that they expect the same treatment for all of their members … .”

In addition, the panel also had serious concerns about the conduct of the Chairman of the Governing Body, Arnold Hatch, in relation to the various evaluations of the claimant’s post to which reference has been made previously; and, in particular, it concluded that, in light of their investigation of the claimant’s grievances, that the Chairman’s involvement had given rise to a wide range of conflicts of interest together with evidence of irregularities in the management of the GLPC’s Scheme, together with issues of Corporate Governance, which they both agreed had to be investigated. Subsequently, Mr Hatch resigned from the Governing Body.

Indeed, subsequently, a later investigation carried out on behalf of the Governing Body by Harry McConnell was highly critical of the actions of the Chairman, Mr Hatch, amongst others, in relation to the job evaluation process carried out in relation to the claimant’s post. It was not necessary for the Tribunal to consider these concerns, in further detail, for the purposes of the Tribunal’s determination of these proceedings, save to note that this whole matter had undoubtedly raised Governance issues for the Governing Body but also had resulted in serious differences of opinion amongst various members of the Governing Body in relation to how the whole process relating to the claimant’s application for re-grading had been handled. In simple terms, the Governing Body was ‘split’.

3.32 However, the claimant had particular concern, for the purposes of these proceedings, about the final conclusions of Neil Bodger/Angela Coffey, in their letter dated 2 August 2010, which she considered was an act of discrimination by way of victimisation, having issued Tribunal proceedings on 14 June 2010, as set out previously, but also of harassment on grounds of her sex and/or religious belief and/or political opinion.

In their letter dated 2 August 2010, the panel had stated:-

“In your role as Secretary to the Governing Body you are to advise the Board and its members about procedure and Governance issues. In this case it is very clear that the provisions of the GLPC Scheme were not adhered to. Either you were aware of this, but you agreed with the breach of process in order to achieve a desired outcome. Alternatively, if you were not aware that the procedure was not being correctly followed, it raises concern in your ability to advise the Board regarding matters of procedure and of Governance. We have also raised our concern about your failure to distance yourself from matters involving your own terms and conditions of employment. Finally we believe you failed to see the conflict in the Chairman’s role in the matter, of which as Secretary of the Board, you should have been mindful and either advised the Chairman that he may be in difficulty or alerted another member of the Board of the potential conflict.

Regrettably, therefore, we feel we have no option but to recommend [Tribunal’s emphasis] that the disciplinary procedure be invoked against you … .”

3.33 The Tribunal was satisfied that, after they were alerted to these matters, during the course of their investigations of the claimant’s grievances, Neil Bodger and Angela Coffey, as responsible members of the Governing Body, concluded for good and proper reasons that they had to take some further action; and they could not, having discovered these matters during the course of their investigations, which they had been asked to do by the Governing Body, ignore them and/or forget about them. Crucially and significantly, in the Tribunal’s opinion, this was not a decision by Mr Bodger and/or Mrs Coffey to invoke the disciplinary procedure against the claimant but was a recommendation, albeit with reasons, to the Governing Body in light of what they had found out during the course of their investigation of the grievances. The Tribunal has no doubt the sole and only reason for the recommendation by the panel of Mr Bodger and Ms Coffey was because of their discovery of the matters set out in their letter of 2 August 2010, which if found to be correct, had serious implications for both the claimant and the Governing Body. However, any such further action invoking the disciplinary process against the claimant was not for Neil Bodger and/or Angela Coffey but the other members of the Governing Body who had not had any involvement, to date, in these matters, giving rise to any conflict. The fact that the claimant had brought Tribunal proceedings, when Mr Bodger and Ms Coffey were in the course of investigating the claimant’s grievances, had, in the Tribunal’s opinion, no bearing whatsoever on their decision to make this recommendation which arose solely from what they had discovered, during the course of their investigations and not from the fact that the claimant had issued such proceedings. What the report of 2 August 2010 revealed were very serious issues, which no responsible member of the Governing Body could have properly ignored. The Tribunal is satisfied that Neil Bodger and/or Angela Coffey, if they had been faced with similar issues in relation to another member of staff, albeit one who had taken Tribunal proceedings, they would have taken the same action of recommending disciplinary procedures to be invoked. It was not for them to take any final decision in relation to these matters – it would be for others, if the decision was taken by the other members of the Governing Body to follow the recommendation was to be followed, to investigate and to determine, as required, these matters under the disciplinary procedures.

3.34 Following the letter of 2 August 2010, the claimant, once again dissatisfied with the result, appealed against not only against the breach of contract outcome but raised further grievances in relation to the job evaluation process, following the said report, against the Governing Body and Mr Bodger, to which further reference will be made later, insofar as necessary for the determination of the claimant’s claims.

Not surprisingly, given the number of grievances, involving the Governing Body and individual members thereof, the Governing Body decided in or about November 2010 to appoint an external consultant, Harry McConnell, to carry out an investigation and to report findings and recommendations in relation to each of the claimant’s grievances which still remained outstanding at that time. Subsequently on 24 January 2011, Mr McConnell sent his report to the College, in which the Tribunal noted he did not uphold any of the claimant’s outstanding grievances.

3.35 Neil Bodger was the Chairman of the Audit Committee of the Governing Body, which is a very important Sub-committee of the Governing Body and, because of the specific and sensitive tasks entrusted to it, in relation to financial matters concerning the College, the Committee had a somewhat ‘independent role’ which Mr Bodger, as Chair of the Committee, was clearly very conscious of and guarded jealously. In particular, given its said role, Mr Bodger had no doubt that all the members of the Committee had to be beyond reproach and could not find themselves conflicted in any way.

3.36 On 8 September 2010, Mr Bodger sent an e-mail at 11.30 am to the other members of the Audit Committee to cancel the Audit Committee meeting which was due to be held on that date. It is apparent from the e-mail that he was concerned that there should not be any issue about the standing of any member of the Committee, and, in this context, he referred, albeit in general terms, to allegations, insinuations and accusations made against the Governing Body and some of its members, including himself. In the e-mail he set out his decision, as Chairman of the Audit Committee, to adjourn the meeting until all the allegations involved had been fully investigated. He made no reference to any named individuals in relation to the above allegations, other than himself. The Tribunal is satisfied, that as Chairman, Mr Bodger was entitled to take this decision independently of any member of the Governing Body, including the Chairman of the Governing Body, Arnold Hatch, who was not a member of the Committee. Whilst the Tribunal recognised that others, faced with the same situation, might still have proceeded with the meeting, despite the difficult circumstances, the Tribunal was satisfied that it was his decision and his alone to take. The claimant, as Secretary of the Governing Body, was also Secretary to the Audit Committee. Mr Bodger subsequently discovered, from another member of the Committee, that the claimant had contacted other members of the Committee to see if the meeting should still proceed, despite his earlier e-mail to postpone the meeting. When he learned of the claimant’s action, the Tribunal has no doubt, and, in particular, having heard his evidence on this matter, that he was genuinely shocked and very annoyed by the claimant’s actions. He believed the claimant, as Secretary of ‘his Committee’, in whom he should have been able to have a degree of trust, had, in essence, ‘gone behind his back’, in order to try to reverse his decision. Mr Bodger sent the claimant, as a result, an e-mail on 9 September 2010 at 9.37 am in which he stated:-

“I am writing to you as Secretary to the Governing Body. It has come to my attention that you contacted the member of the Audit Committee to invite them to come to the audit meeting of 8 September 2010, even though I had notified the members personally that the meeting had been adjourned.”

He then raised a series of 10 questions for the claimant to answer about her involvement in seeking to re-arrange the meeting for 8 September 2010, despite his earlier instructions. He concluded his e-mail by stating:-

“Due to the highly irregular conduct from you in this matter, I require a reply to the above questions by 3.00 pm today 9^th of September 2010.”

Whilst the Tribunal could understand the series of questions might be considered to have been unnecessarily detailed and prolix, given the issues involved, the Tribunal has no doubt the reasons for the e-mail and the series of questions was solely due to Mr Bodger’s shock and annoyance at hearing what the claimant had done and which, in his mind, clearly gave rise to suggestions that the claimant was undermining his authority as Chairman of the Audit Committee, the reputation of which he jealously guarded. Although, there is no doubt the terms of the e-mail could have been phrased less stridently and more simply, the Tribunal is satisfied that the terms in which he wrote reflected his genuine anger and annoyance; but, in particular, it had nothing to do with the fact that the claimant had brought Tribunal proceedings. His anger was solely related to what she had done, which he believed had amounted to the claimant, without his authority, countermanding his previous instruction. The claimant replied by e-mail dated 9 September 2010 at 11.22 am and, inter alia, she confirmed she had contacted, by phone, certain members of the Audit Committee; but significantly, in the Tribunal’s view, she did not confirm in her response, as she could so easily have done, that what she had done was on the authority of Mr Hatch, the Chairman of the Board, as she subsequently maintained in evidence to this Tribunal. If she had done so it might well have avoided any further dispute between them. In such circumstances, Mr Bodger would undoubtedly have directed his anger at Mr Hatch in interfering in his role as Chairman of the Committee.

3.37 In an e-mail dated 17 September 2010, sent to the members of the Governing Body, including Arnold Hatch and Neil Bodger and the Chief Executive, in relation to the cancellation of a Governance Course, the claimant set out her position in relation to the circumstances in which she did not notify the Governors of the cancellation, including reference to the e-mails between herself and the Chief Executive about the matter.

In her e-mail, she stated, in particular, the following:-

“ … I was not involved in the setting up of this event and as this e-mail was received during the issue regarding the adjournment of the Audit Committee, I felt … that Brian Doran had taken this into his own hands ….”

Neil Bodger, in a e-mail of the same date, to Mr Hatch, in response, stated:-

“Arnold

Just for the record I would like to correct a statement made:

“I was not involved in the setting up of this event and as this e-mail was received during the issue regarding the adjournment of the Audit Committee.’

You can see that the e-mail correspondence between Brian and the Secretary is all on the 7^th September between 1227 and 1738 hours.

The e-mail that I sent as Chair of Audit, and the first e-mail sent in connection with my adjournment of the meeting was on the 8^th September at 1130 hrs and therefore I would hold that the Secretary’s statement is not factually correct [sic] … .”

3.38 The Tribunal concluded that, although what Neil Bodger had stated in relation to the timings of the e-mails, referred to above, was correct, he was being over-technical and/or pedantic and not reflecting the general thrust of the claimant’s statement; but it accepted this had resulted from the ongoing tensions/anger between them following the dispute over the postponement of the Audit Committee, as referred to above, and the desire of Neil Bodger to make sure everything in relation to any inter-action between himself and the claimant was current and accurate in all respects. In the circumstances, the Tribunal was satisfied this had nothing to do with the fact that the claimant had brought Tribunal proceedings and made allegations of discrimination against him, but arose for the reasons set out above.

3.39 Given the role of the claimant, as Secretary of the Governing Body, pending the outcome of the ongoing grievances, following the decision of the Bodger/Coffey panel, the Governing Body were very aware of the ongoing difficult working relationship for both the claimant and/or the members of the Governing Body. As a consequence, at a special meeting of the Governing Body on 15 September 2010, it was decided to give the claimant two options, namely the option to transfer from her current role on a temporary basis to a secondment arrangement as a Project Co-Ordinator under College management or to take a period of extended leave until all issues were concluded. The claimant did not favour either option. The Tribunal found of considerable significance that, in a letter dated 27 September 2010 to the claimant, Mr Hatch, the then Chairman of the Governing Body, who, as seen previously, had supported the claimant’s job evaluation upgrade, frankly acknowledged that current working arrangements could not be maintained as long as there were these unresolved matters between her and the Governing Body. The claimant’s alternative proposal to the Governing Body was that she remained in post and continued to carry out background duties in relation to the work of the Governing Body. This was, for understandable reasons, in the circumstances, considered by it to be unworkable and impracticable, given that it would have been difficult to separate out the claimant’s contact with Governors of the Governing Body. In light of this, and the claimant’s refusal to accept the temporary work transfer, which the Tribunal concluded, in the circumstances, was a proper and appropriate option to be offered to the claimant, the Governing Body subsequently decided to place her on extended leave from 27 September 2010. The Tribunal has no doubt the reasons for this arose not from the fact the claimant had brought Tribunal proceedings and/or made complaints of unlawful discrimination against the Governing Body and/or certain members of the Governing Body, but arose from the unique and unusual circumstances that had arisen from these ongoing grievances, which required to be determined ultimately by the Governing Body, of which the claimant was Secretary. Clearly, as part of her duties and role as Secretary, she had to have a close working relationship with the Governing Body but also the individual members of the Governing Body. The claimant, as she was entitled to do, was raising, inter alia, ongoing claims of victimisation and the Governing Body had to be seen to protect her from further potential victimisation. In these circumstances, the Tribunal could fully understand why a period of extended leave was the only reasonable solution which the Governing Body could arrive at, following the refusal of the claimant to take the option of the transfer to the other role as Project Co-Ordinator under College management. The Tribunal was of the opinion that the claimant, despite wishing to pursue, as she was entitled to do, the ongoing grievances, was also reluctant to step aside in any way from her role as Secretary of the Governing Body and, in an alternative, to take on the Project Co-Ordinator role, which would have involved her coming under College management, rather than having her line manager as the Chairman of the Governing Body. The Governing Body of the College required to remain in existence at all times, in order to ensure the effective ongoing management of the College and it could not, as a Body, step aside and take extended leave during this period. Equally, it was necessary to ensure that, whatever solution was adopted by the College, did not prejudge the outcome of any further investigations instigated by the Governing Body, which, as referred to previously, subsequently culminated in the appointment of Mr McConnell the external consultant, who reported on 24 January 2011 and concluded that the ongoing grievances should not be upheld. The Tribunal was satisfied the claimant was given full pay but also discovery of all relevant documentation which she required to prepare for her Tribunal claims.

3.40 In the circumstances, the Tribunal came to the conclusion, given the above unique and unusual circumstances, having regard to the role of the claimant, as Secretary of the Governing Body, and her relationship with that Governing Body, the Governing Body in the face of her ongoing grievances, which it still would have to resolve, properly, and in a non-discriminatory way, for the reasons set out above, decided to place the claimant on extended leave. In particular, the Tribunal was satisfied, in light of the foregoing, that its reasons for doing this were not related in any way to the fact she had brought her Tribunal proceedings and/or her sex and/or religious belief; but, in essence, were made for her protection but also to allow the Governing Body to continue to operate effectively, in the interests of the College, whilst these matters remain unresolved. The Tribunal was satisfied this would not have been able to happen, in the circumstances, if the claimant was to remain in her day-to-day role as Secretary to the Governing Body.

4.1 Relevant legislation

Under the 1998 Order it is provided:-

3(1) In this Order ‘discrimination’ means –

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

(b) discrimination by way of victimisation and ‘discriminate’ shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if –

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

…

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

(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 –

‘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 the 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

(v) ‘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;

(vi) Paragraph (4) does not apply to treatment of a person by reason of any allegation made by him if the allegations was false and not made in good faith.

19(1) It is unlawful for an employer to discriminate against a person in relation to employment in Northern Ireland … -

(b) where that person is employed by him –

(i) in the terms of employment which he affords him; or

(ii) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

(iii) by dismissing her or by subjecting him to any other detriment.

…

(1) A person (‘A’) subjects another person (‘B’) to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2)(b) where on the ground of religious belief or political opinion ‘A’ engages in unwanted conduct which has the purpose or effect of –

(a) violating ‘B’s’ dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for ‘B’.

(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of Paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of ‘B’, it should reasonably be considered as having that effect.

38A – Burden of proof:-

Where, on the hearing of a complaint under Article 38, 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 unlawful discrimination or unlawful harassment against the complainant; or

…

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.

4.2 Similar provisions relating to discrimination on the grounds of sex and/or by way of victimisation and/or unlawful harassment and in relation to the burden of proof are also contained in the 1976 Order (see further Articles 3, 6, 6A and 63A).

4.3 The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered the provisions equivalent to Article 63A of the 1976 Order and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA 3). The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Nomura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25.

In Madarassy the Court of Appeal held, inter alia, that:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination : could conclude in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong.

Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”

In the decision of the Northern Ireland Court of Appeal in the case of Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8, the Court of Appeal approved the judgment of Elias J in Laing, which was also referred to, with approval by Campbell LJ in the Arthur case, that it was not obligatory for a Tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholl observed in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 174, where he observed at Paragraph 8 of his opinion, as follows:-

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.”

Lord Nicholls in his opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or a hypothetical comparator, and then, secondly, whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground, was less favourable then was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion). Indeed Lord Nicholls in his opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the coin.

4.4 In relation to the issue of victimisation, the reverse burden of proof provisions in Article 38A of the 1998 Order and Article 63A of the 1976 Order apply to cases of victimisation (see further Pothecary Witham Weld v Ballimore [2010] IRLR 572 and Rice v McEvoy [2011] NICA 9). Further, as the House of Lords made clear in the decision in the case of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 victimisation occurs when in any circumstances relevant for the purposes of the provisions of this Act, a person is treated less favourably than others because he/she has done are of the ‘protected acts’. In order to make the necessary comparison it is necessary to compare the treatment afforded to the claimant who has done a protected act and the treatment which was or would be afforded to other employees, who had not done the ‘protected act’. This may involve a comparison with an actual or a hypothetical comparator. In the Rice case, Lord Justice Girvan at Paragraph 33 of his judgment, when considering the reason why issue stated:-

“In determining the reason why issue it is necessary for the Tribunal to consider the employer’s mental processes, conscious and unconscious. If on such consideration it appears that the protected act had a significant influence on the outcome if victimisation is established (see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576). The question is 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 (per Lord Nicholls in Chief Constable of West Yorkshire v Khan [2001] IRLR 830 at Paragraph 24).”

Lord Scott in the Khan case referred to establishing ‘the real reason’, ’the core reason’ and ‘the motive’ for the treatment complained of.

In relation to whether the ‘protected act’ had a significant influence on the outcome, as referred to above by Lord Nicholls in Nagarajan, that expression was interpreted as an influence more than trivial. In Villalba v Merrill Lynch & Co [2006] IRLR 437, Elias J, as he then was, held that, if in relation to any particular decision where a discriminatory influence was not a material influence or factor then it was trivial and therefore according to the dicta in Igen v Wong insufficient to break the principle of equal treatment.

4.5 In order to qualify as a ‘detriment’, it was held in Shamoon by the House of Lords that a Tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances where he thereafter had to work. It further held that an unjustified sense of grievance could not amount to a detriment.

In Nelson v Newry & Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’. He said that “the facts must lead to the inference of discrimination”. He also stated:-

“(24) This approach makes clear that the complainant’s allegation of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claimant put forward his allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

4.6 Coghlin LJ in the case of Curley also referred to the well-known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasises the necessity for the Tribunal to look at the matter, in the light of all the facts as found:-

“[3] Discrepancies in evidence, weaknesses in procedures, poor record-keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute a material which a inference of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows that such a conclusion is improbable on the facts.”

4.7 Thus, in essence, subject to the burden of proof provisions which also apply to a claim of unlawful harassment, as set out above, there are elements of any such claim which a claimant must show, namely:-

(i) The unwanted conduct – did the respondent engage in unwanted conduct?

(ii) The purpose or effect of that conduct. Did the conduct in question either:-

(a) have the purpose; or

(b) have the effect;

of either:-

(i) violating the claimant’s dignity; or

(ii) creating an adverse environment for her – ie the ‘prescribed consequence’.

See further Richmond Pharmacology v Dhaliwal [2009] IRLR 336.

4.8 In the context of the claimant’s claim, and in light of the foregoing, it was also relevant for the Tribunal to have regard to the observations of Mr Justice Underhill at Paragraph 22 of his judgment in the Richmond Pharmacology case (a racial harassment case) but equally relevant to claims of other unlawful harassment):-

“ … dignity is not necessarily violated by things said or done which are trivial or transiently, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hyposensitivity where the imposition of legal liability in respect of every unfortunate phrase … .”

5.1 In light of the legislative provisions and the legal authorities referred to in the previous paragraphs, it was therefore necessary for the Tribunal to determine, in light of the facts as found by the Tribunal, whether the claimant had shown that the Tribunal could conclude, in the absence of an adequate explanation, that the respondents, or either of them, had acted unlawfully, as alleged by the claimant, pursuant to the 1998 Order and/or the 1996 Order (Igen v Wong). The Tribunal was not satisfied that she had done so. As set out previously, the first and second respondent accepted vicarious liability for any unlawful actions of the other respondents.

5.2 Firstly, it has to be noted that, in relation to any of the claims of unlawful discrimination, pursuant to the 1998 Order made by the claimant, there was no evidence brought by her that the respondents, or either of them, acted unlawfully on the grounds of the claimant’s political opinion. In the circumstances, it was not necessary for the Tribunal to consider this aspect of the claimant’s claims any further.

5.3 The Tribunal was satisfied the reason for the refusal of the fourth respondent to comply with the instruction of Mr Hatch to pay the claimant, in accordance with the job evaluation, which was carried out by Dr Smyth and Professor Hanratty, had nothing to do with the claimant’s religious belief and/or sex; but rather was because he believed it was ‘wrong’, as it had not been achieved by proper process and in accordance with the GLPC Scheme and for him to have paid it would have compromised his position as Accounting Officer of the College. It was in this context that he had also informed the Governing Body that legal advice was required to be obtained. Therefore any such claim of unlawful discrimination on the said grounds by the fourth respondent must fail.

5.4 The Tribunal found the third respondent’s explanation for placing an exclamation mark against the claimant’s name in an internal envelope was less than convincing. However, looking at all the circumstances, as found by the Tribunal, and, in particular, the absence of any other improper conduct by the respondent, his immediate apology, the Tribunal was not satisfied it could conclude the reasons for his actions related to the fact that the claimant had brought Tribunal proceedings against him. Indeed, it concluded the claimant overreacted to what was a somewhat minor matter. Even if the Tribunal was wrong, it was not satisfied the claimant had established she had suffered any detriment, as defined in Shamoon. In particular, there was no evidence of any adverse reaction to the claimant in her work or from her work colleagues from what the third respondent had written. Thus, the Tribunal concluded the claimant’s claim of victimisation, pursuant to the 1998 Order and/or the 1976 Order, against the third respondent must fail.

5.5 The Tribunal could find no criticism of the actions of the fifth and sixth respondents in their hearing of the Grievance No 3 and/or the appeal of Grievance of No 2. Their investigation involved a complete re-hearing of all matters. Indeed, there was no criticism of the fifth and sixth respondents in relation to how they went about their said investigation and/or the carrying out of the relevant interviews. Undoubtedly, the investigation was not completed as quickly as the claimant, or indeed the fifth and sixth respondents, had wanted. However, the Tribunal was satisfied the claimant was never given a guarantee that the result of the investigation would be completed and given to her by a certain date. At best she was given an indication. The Tribunal concluded that the delay in issuing the decision was because of the necessity for the College to enter a response to the claimant’s Tribunal proceedings, which were issued shortly before the decision was due to be finalised and issued to the claimant. The outcome of the investigation was relevant to the terms of any response to be made by the respondents to the said proceedings; and any further delay was caused because the response had to be signed off by the fifth respondent, for which he had to obtain the approval of the Department for Employment & Learning, in order to avoid any issues of conflict. The Tribunal, in the circumstances, concluded that any delay was proper in the circumstances and, in particular, does not accept any such delay provided any evidence of victimisation or harassment by the fifth or sixth respondent, pursuant to the 1998 Order or the 1976 Order, in relation to their investigation of the said grievances.

5.6 The fifth and sixth respondent, having been alerted, during the course of their investigation to the serious matters, as set out in their letter dated 2 August 2010, in relation to the claimant’s conduct as Secretary to the Governing Body, were fully entitled, in the Tribunal’s judgment, in light of those concerns, to make the recommendation that the disciplinary procedure be invoked against the claimant. The making of this recommendation had, in the Tribunal’s view, nothing to do with the fact that the claimant had brought Tribunal proceedings against the first and sixth respondent. The fifth and sixth respondent, as responsible members of the Governing Body, and to whom the investigation had been entrusted by the Governing Body could not ignore these concerns. The fact the claimant did not like the recommendation is irrelevant. It was set out in a proper and appropriate manner, with reasons, in the letter of 2 August 2010. In the Tribunal’s view, the making of such a recommendation in those circumstances was not unwanted conduct by the fifth and sixth respondent but rather appropriate action in light of the serious matters exposed during the course of the investigation in relation to the claimant’s conduct as Secretary to the Governing Body. Further, it was certainly not done with the purpose or effect of either violating the claimant’s dignity or creating an adverse environment for her. It was for others to consider whether the recommendation should be taken further, in accordance with the College’s disciplinary procedures. Even if the Tribunal was wrong in relation to any of the above matters, the Tribunal was satisfied the recommendation was made for the reasons set out and not on the grounds of the claimant’s sex and/or religious belief. Thus, in the Tribunal’s view, it was unable to conclude the fifth and sixth respondents had unlawfully harassed the claimant, pursuant to the 1998 Order and/or the 1976 Order. In this context, it also must be noted that the sixth respondent, who jointly with the fifth respondent, made the recommendation, was female, like the claimant. It was, therefore, without more, unlikely that the reason for any such conduct was on the grounds of the claimant’s sex (see Sergeant A).

5.7 The Tribunal examined very carefully the e-mails sent by the fifth respondent on 8, 9 and 17 September 2010. Whilst the Tribunal accepted that the fifth respondent’s e-mail on 9 September 2010 was unnecessarily detailed and prolix and could have been phrased less stridently, it concluded that the reason for this was, due to genuine anger and annoyance on the part of the fifth respondent. He believed, as the Tribunal found, the claimant had undermined his authority, as Chairman of the Audit Committee, when she had ‘gone behind his back’ in seeking to reverse his decision to adjourn the meeting of the Audit Committee. Similarly, the Tribunal accepted the e-mail of 17 September 2010, which was sent by the fifth respondent, may have been over-technical and/or pedantic. Again, the Tribunal was satisfied the reason why he sent the e-mail resulted from the ongoing tension/anger between the claimant and the fifth respondent over her actions, as referred to above, in relation to the postponement of the Audit Committee meeting, but not because she had issued Tribunal proceedings against the fifth respondent. The Tribunal was therefore not satisfied the claimant had been victimised and/or discriminated against by the fifth respondent in relation to the sending of the said e-mails by the fifth respondent, pursuant to the 1998 Order and the 1976 Order.

5.8 The Tribunal further accepted that the Governing Body was fully entitled, in the circumstances, to place the claimant on extended leave, after she had refused the alternative proposal to transfer her on a temporary basis to the alternative of Project Co-Ordinator under the College management. In this context, it has to be recalled that Mr Hatch recognised that the then current working arrangements could not be maintained. This was in the unique and unusual set of circumstances in that the claimant was Secretary to the Governing Body, with whom she had ongoing grievances, and which Body had to remain in existence to resolve those grievances. The Tribunal was satisfied that in those circumstances, the claimant could not remain in her day-to-day role as Secretary to the Governing Body and that the extended leave was made for her protection and to allow the Governing Body to continue to operative effectively, in the interest of the College, whilst those matters remained unresolved. Having decided the reason for the extended leave was, as set out above, the Tribunal decided it could not conclude the reason for the extended leave had been victimised because the claimant had issued Tribunal proceedings or had been discriminated against because of her sex and/or religious belief by the first and second respondents, pursuant to the 1998 Order and/or the 1976 Order.

6. The claimant’s claims must therefore be dismissed.

Chairman:

Date and place of hearing: 9 – 12 May 2011;

16 – 20 May 2011; and

24 May 2012, Belfast

Date decision recorded in register and issued to parties: