Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS:   24/14 FET

1608/13

1942/13

 

 

 

CLAIMANT:                      Fiona McGeady

 

 

RESPONDENT:                North West Regional College

 

 

DECISION

 

The unanimous decision of the Tribunal is that:-

 

(1)      the claimant having been granted leave to amend her claim to include a claim of discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998 and the claim was so amended;

 

(2)      the claimant was not unfairly dismissed and her said claim is dismissed;

 

(3)      the claimant was discriminated against by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and the Fair Employment and Treatment (Northern Ireland) Order 1998;

 

(4)      the claimant’s claim having been amended, as aforesaid, the claimant did not pursue her claim, pursuant to the Disability Discrimination Act 1995, at the substantive hearing and for the avoidance of doubt, it is dismissed; and

 

(5)      as agreed, the claim of the claimant will be re-listed for hearing to consider any remedy to which the claimant is entitled on foot of the above decision.

 

Constitution of Tribunal:

Employment Judge          Employment Judge Drennan QC

Members:                        Mr P Killen

                                        Mrs A Gribben

 

Appearances:

The claimant was represented by Mr P Moore, of PM Associates.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Brett, Solicitors.

 

Reasons

 

1.1     The claimant presented a claim form to the Tribunal (Case Reference No:  1608/13) on 4 September 2013 in which she made a claim of unfair dismissal and unlawful discrimination, pursuant to the Disability Discrimination Act 1995, as amended.  The respondent presented a response denying liability for the claimant’s said claims on 8 October 2013.  The claimant presented a further claim to the Tribunal (Case Reference No:  1942/13) on 6 November 2013, in similar terms, to which the respondent presented a response again denying liability on 13 December 2013.  Both said claims were the subject of a Consolidation Order made on 20 November 2012.

 

1.2     In accordance with the Tribunal’s normal case-management practice, a Case Management Discussion was held on 20 November 2013.  The representatives of the parties at that hearing identified the following legal and main factual issues, as set out in the Record of Proceedings, dated 21 November 2013, namely:-

 

                    “Legal issues

 

                    1.       The parties accept the claimant has done protected acts.

 

2.       Was the claimant unfairly dismissed contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996?

 

3.       Did the claimant have a disability as defined by the Disability Discrimination Act 1995 and to what extent was this the case at relevant times?

 

4.       If the answer to 2. Is in the affirmative, was the claimant unlawfully discriminated against on the ground of her disability?  The claimant shall identify any comparator relied on to the respondent’s representative by no later than 11 December 2013.

 

5.       Was the claimant discriminated against by way of victimisation contrary to Section 55 of the Disability Discrimination Act?

 

6.       Is res judicata applicable to the circumstances of this case?

 

Factual Issues

 

1.       Was the reason for termination due to the claimant’s health.

 

2.       Was the respondent entitled to rely on the report from Dr Peter Curran Consultant Psychiatrist, on representations by the claimant’s union representative in deciding to terminate the employment, on ground of ill-health rather than on grounds of gross misconduct.

 

3.       Was the claimant treated less favourably as a result of pursuing Industrial Tribunals and Fair Employment claims.

 

4.       Was the claimant treated less favourably as a result of raising grievances against former work colleagues?

 

5.       Was the curriculum audit relevant to the decision to terminate the employment.

 

6.       Is the claimant entitled to a remedy?  If so, what?”

 

1.3     At the commencement of the hearing, it became apparent that, although the claimant had provided a schedule of loss, there were outstanding issues between the parties, relating to remedy, in particular, in relation to any pension loss of the claimant.  In the circumstances, it was agreed the Tribunal would determine the issues in this matter on liability only, and if necessary and appropriate, the claims of the claimant would be re-listed for a hearing to consider any remedy to which the claimant was entitled, on foot of the decision on liability by the Tribunal.  It was further agreed by the claimant at the outset of the substantive hearing, in relation to the claimant’s claim of unfair dismissal, if the Tribunal found her dismissal was unfair, she wished to obtain an award of compensation by way of remedy and, in particular, she did not seek an Order of Reinstatement and/or Re-engagement, pursuant to the provisions of Article 147 – 151 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

 

1.4     At the outset of the substantive hearing, it was agreed the effective date of termination of the claimant’s employment with the respondent was 31 October 2013.

 

1.5     In light of the claimant’s witness statement, which the Tribunal had read prior to the commencement of the substantive hearing, in accordance with the Tribunal’s             case-management directions/orders at the Case Management Discussion on 20 November 2013, as set out in the Record of Proceedings, dated 21 November 2013, the Tribunal, in accordance with the terms of the overriding objective, found it necessary, before the hearing commenced, to identify from the claimant’s representatives the ‘protected acts’ relied upon by the claimant for the purposes of any claims of discrimination by way of victimisation and/or any relevant legislation under which any such claim of victimisation was made by her.  Indeed, in the course of submissions made by the representatives of the parties, it became apparent the claimant wished to make claims of discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’), the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’).  As a consequence of these submissions, the claimant’s representative acknowledged it would be necessary for him, in the circumstances, to make an application for a order for leave to amend the claimant’s said claims to the Tribunal, to include claims for discrimination by way of victimisation, pursuant to Article 6(1) of the 1976 Order and Article 3(1) of the 1998 Order; and which proposed claims he accepted had not been included in the said claim forms of the claimant previously presented to the Tribunal.  The respondent had disputed any claim for discrimination by way of victimisation pursuant to the 1995 Act was included in the said claim forms but, interlocutory process had objected to any application for leave by the claimant to so amend her claims to the Tribunal.

 

          Having heard submissions by both representatives, the Tribunal decided to grant the said application and to make an Order granting leave for the claimant to amend her said claims, as set out above.  It was further agreed that the Tribunal would set out, in this decision, its reasons for granting the said application, which are set out in the following sub-paragraphs.  The Tribunal, having regard to the terms of the overriding objective, with the agreement of the representatives, did not give its reasons orally at that time, in order to enable the substantive hearing to proceed without further delay.  By granting the said application to amend, the claimant’s claims now included, in particular, a claim before the Fair Employment Tribunal, which said claim was given the Case Reference No:  24/14 FET.  In addition, a direction, pursuant to Article 85 of the 1998 Order was made by the President on 8 April 2014, so that all the claimant’s claims, as now amended, could be heard and determined by the Fair Employment Tribunal as set out above.

 

1.6     Before determining the said application for an Order for leave to amend the claimant’s claim to include claims for discrimination by way of victimisation, pursuant to the 1976 Order and the 1998 Order, it was necessary for the Tribunal to clarify with the claimant’s representative the precise nature of the amendments sought, given the terms of the statement of issues previously agreed at the Case Management Discussion on 20 November 2013 but also, in light of the terms of the claimant’s witness statement and the submissions referred to above.  In this context, although it had been agreed, as set out in the statement of issues, ‘the claimant had done protected acts’, these had not been specified and required, in the judgment of the Tribunal, before the commencement of the hearing, to be identified by the claimant for the purpose of identifying any claim made by her of discrimination by way of victimisation under the discrimination legislation in its various forms.

 

1.7     Following submissions, it was agreed, insofar as the claimant was seeking to rely, on protected acts, these were grievances made by her, namely:-

 

(a)      her grievance in relation to Dorothy McIlwee in or about 2006, which related to issues of religious discrimination;

 

(b)      her grievance in or about 2007/8 in relation to Seamus Murphy, which related to sex discrimination; and

 

(c)      her grievance in relation to Colin Morrison and Karen McLaughlin in or about 2007/8 which related to issues of religious discrimination.

 

It was further not in dispute that the claimant had previously made a number of discrimination claims to the Tribunal, pursuant to the 1976 Order, and the 1998 Order.  The claimant’s representative further agreed, insofar as the claimant was claiming detriment on foot of her said claim of discrimination by way of victimisation she was relying on acts of victimisation, relating to the dismissal process to which she was subject from on or about 23 February 2013, culminating in her dismissal by the respondent on or about 31 October 2013.

 

1.8     In making his application, the claimant’s representative emphasised that in seeking to amend the claimant’s claim to include claims of discrimination by way of victimisation, pursuant to the 1976 Order and the 1998 Order, he was not seeking to include any ‘new’ facts, not already set out in the claimant’s claim forms or witness statement.  He fully acknowledged the failure to include same was his mistake, which mistake he accepted he should have ‘picked up’ by him long before the commencement of the substantive hearing.  The respondent’s representative, whilst objecting to the application, was unable to point to any ‘real prejudice’ if the said amendments were to be allowed by the Tribunal, subject to the respondent’s denial of such amended claims.  It was apparent that, if the said amendments were to be allowed, there would not require to be a postponement of the proceedings and/or any additional costs.

 

1.9     Harvey on Industrial Relations and Employment Law, Volume 3, Division P I have set out the following distinctions, in relation to applications for leave to amend:-

 

“311.03         A distinction may be drawn between (1) amendments which are merely designed  to alter the basis of an existing claim but without purporting to raise a distinction head of claim (2) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as the original claim and (3) amendments which add or substitute a wholly new claim to a cause of action, which is not connected to the original claim at all.”

 

          In Harvey at 312, it is stated:-

 

“So far as category (2) is concerned Tribunals have always shown a willingness to permit a claimant to amend to allege a different type from the one pleaded if this can be justified by the facts set out in the original claim.  It is usually described as putting ‘a new label’ on facts already pleaded.”

 

Crucially, if a new claim arises out of facts that have already been pleaded in relation to the proposed amendment, it is not required to be subjected to scrutiny in respect of time-limits but will be considered under the general principles applicable to amendment, as set out in Selkent Bus Co Ltd  v  Moore [1996] IRLR 66.

 

The principles set out in Selkent are well-known and have been approved in a long line of decisions of the Employment Appeal Tribunal and the Court of Appeal, namely that, when exercising its discretion in deciding whether to grant an amended, the Tribunal is required to take into account all the circumstances and relevant factors to include, in particular, the nature of the amendment (substantial/ minor), the applicability of time-limits, where relevant, the timing and manner of the application but the paramount considerations remain, as referred to by Mummery J, namely:-

 

“Whenever taking any factors into account the paramount considerations are the relative injustice and hardship involved in refusing or grant an amendment.”

 

Questions of 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 a decision.  As Underhill LJ said in Abercrombie  v  Aga Rangemaster Ltd [2013] EWCA Civ 1148, the guidance of Mummery J in Selkent is not a               box-ticking exercise but the factors referred to by him are likely to be relevant in striking the balance to which he refers.  Indeed, in Abercrombie, Underhill LJ at Paragraph 48 of his judgment stated, after referring to the Selkent guidance:-

 

“Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action, has been to focus not on questions of formal classification but the extent to which the new pleading is likely to involve substantially different areas of enquiry then the old : the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.  It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal labels on facts which are already pleaded, permissions will normally be granted.  See the discussion in Harvey on Industrial Relations and Employment Law, Paragraph 312.01.02 (referred to above).  We were referred by way of example to my decision in Transport and General Workers Union  v  Safeway Stores Ltd [UKEAT/0092/07], in which the claimants were permitted to add a claim by a trade union for breach of the consultation obligations ... to what had already been pleaded only as a claim for unfair dismissal by individual employees.  (That case in fact probably went beyond ‘mere re-labelling’ – as do others which are more authoritative examples, such as British Printing Corporation (North) Ltd  v  Kelly (above), where this court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payment.”

 

In Ali  v  Office of National Statistics [2004] EWCA Civ 1363, ‘the balance of hardship and injustice ground’ was held to be little different, if at all, to the ‘just and equitable ground’, which applies in relation to extension of time in discrimination claims.

 

1.10    Insofar as it was necessary to do so (see Abercrombie), the Tribunal considered the proposed amendments fell within the second category referred to in Harvey, as set out above, and were, in essence, putting a new label on facts already pleaded, given that the claimant was not seeking to amend the claim form/witness statement to add ‘new facts’.  The effect of the amendments was not therefore going to require the Tribunal ‘to be involved in substantially different areas of enquiry then the old’ (Abercrombie).

 

          The Tribunal had no doubt that these were major amendments and the application for same should have been made at a much earlier stage.  The respondent’s representative, as stated previously, could not point to any ‘real prejudice’ to the respondent if the amendments were granted and no issue of adjournment of the proceedings required to be considered.  The Tribunal also noted the frank admission by the claimant’s representative of his mistake in the matter and, in this context, the Tribunal noted the guidance of Underhill P (as he then was) in the case of Eversheds  v  New Star Asset Management [2009] UKEAT/0249/09 at Paragraph 33 when he stated:-

 

“It is not the business of the Tribunal to punish parties (or their advisers) for their errors.  In very many, perhaps most, cases where permission is given to amend the pleadings, the party in question could, if he had been sufficiently careful, have got it right first time round.”

 

1.11    In light of the foregoing, the Tribunal, taking all the above matters into account and after balancing the relative hardship and injustice in refusing and granting the amendments, decided, in the exercise of its discretion, to grant the claimant’s application for leave to amend her claim to include her said claims of discrimination by way of victimisation, pursuant to the 1976 Order and the 1998 Order, as set out above and the claimant’s claim was so amended.  Having orally announced its decision, with reasons to be given in this decision, the claimant’s claims in the Industrial Tribunals and Fair Employment Tribunal, as now amended, were formally reconstituted in the Fair Employment Tribunal, pursuant to the said Article 85 direction, dated 8 April 2014 (see Paragraph 1.5 of this decision).

 

1.12    The formal denial by the respondent of the said amended claims was formally recorded by the Tribunal with the consent of the claimant’s representative, without the necessity to amend the responses already presented to the Tribunal by the respondent, and/or to amend the witness statements of the respondent’s witnesses.  It was further agreed by the representatives that, in light of the foregoing, the respondent’s representative, insofar as necessary and appropriate, would have leave of the Tribunal to ask of its witnesses ‘supplementary questions’ by way of examination-in-chief, arising out of the said amendments to the claimant’s claims.

 

1.13    Following the above decision by the Tribunal amending the claimant’s claims as aforesaid, the legal issues to be determined by the Tribunal were further refined, by agreement, to be, namely:-

 

“(i)      Was the claimant unfairly dismissed contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996 (1996 Order).

 

(ii)     Was the claimant discriminated against by the respondent by way of victimisation contrary to Article 6(1) of the Sex Discrimination (Northern Ireland) Order 1976 (1976 Order).

 

(iii)    Was the claimant discriminated against by the respondent by way of victimisation contrary to Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (1998 Order).

 

(iv)    Was res judicata applicable to the circumstances of the case.”

 

In light of the foregoing and the amendment of the claimant’s claims, as aforesaid, the claimant did not pursue her claim, pursuant to the Disability Discrimination Act 1995 at this hearing and, for the avoidance of doubt, it is dismissed.

 

1.14    During the course of the substantive hearing, the representatives of the parties agreed, and the Tribunal so ordered, that the witness statement of Dr P Curran, Consultant Psychiatrist, dated 19 March 2014, which had been previously exchanged between the parties by the respondent, in accordance with the Tribunal’s case-management directions/orders, as set out in the Record of Proceedings, dated 21 November 2013, together with his medical report dated 14 May 2013, would be admitted in evidence, without formal proof, and without the necessity for Dr Curran to attend the hearing for examination in relation to same.

 

          In addition, the Tribunal heard oral evidence from the claimant; and on behalf of the respondent from Mr Seamus Murphy, Mrs Kate Duffy, Mr Bertie Faulkner, Dame Geraldine Keegan, Mr Martin Agnew, Mr Gavin Killeen, and Mrs Catherine McFarland.  In accordance with the said case-management directions/orders of the Tribunal, witness statements by Mr Martin O’Kane and Ms Eileen Cavanagh had been prepared and exchanged between the parties by the respondent.  It was agreed, and the Tribunal so ordered, that the witness statements of Mr O’Kane and Ms Cavanagh would be admitted in evidence as hearsay evidence (see further Curley  v  Police Service of Northern Ireland and Another [2008] NIFET, 44/99 FET – this issue was not the subject of the appeal in the said proceedings).  However, in doing so, the Tribunal warned the parties, which was acknowledge by their representatives, that the weight which the Tribunal might give to such evidence, so admitted, might be little, if any.

 

1.15    It was not disputed by the respondent’s representative that if any employee and/or member of the Board of Governors of the respondent discriminated against the claimant, as alleged, pursuant to the 1976 Order and/or the 1998 Order, the respondent would be liable for acts of any such employee and/or member of the Board of Governors (see further Articles 42 and 43 of the 1976 Order and Article 35 and 36 of the 1998 Order).

 

1.16    The representatives of the parties agreed, during the course of the hearing, an agreed chronology as follows:-

 

24.09.2010             Mr Morrison received a complaint from Mrs McLaughlin against Mrs McGeady dated 24 September 2010

 

24.09.2010             Seamus Murphy, Principal, NWRC receives complaint about Mrs McGeady from Head of School

 

27.09.2010             Mrs McGeady suspended pending investigation

 

28.09.2010             Investigation meeting adjourned

 

18.10.2010             Confirmation from Occupational Health Adviser that Mrs McGeady fit to attend investigation meeting

 

28.10.2010             Investigation meeting adjourned

 

17.01.2011             Confirmation from Occupational Health Adviser that Mrs McGeady fit to attend meeting

 

28.01.2011             Investigation meeting adjourned

 

04.02.2011             Investigation meeting adjourned

 

10.02.2011             Letter to claimant enclosing list of matters under investigation

 

24.02.2011             33 page response from Mrs McGeady

 

18.03.2011             Tribunal claim, 39/11 FET and 800/11 IT submitted

 

30.03.2011             Mr Murphy and Mrs Trainor agree case to answer and invoke procedure Stage 4

 

07.04.2011             Availability sought from Dame G Keegan

 

11.04.2011             Mr Murphy advised Mrs McGeady that the disciplinary hearing would take place on 19 April 2011

 

20.04.2011             Mr Murphy advised Mrs McGeady that the re-scheduled hearing would take place on 13 May 2011

 

13.05.2011             Date of disciplinary hearing.  During the hearing Mrs McGeady’s trade union representative advised that she was at the hearing under duress and against the medical advice of her physician.  The hearing was postponed and an appointment was arranged with Occupational Health to determine if Mrs McGeady would be fit to attend investigatory meetings

 

14.06.2011             Mrs McGeady is advised that the re-scheduled hearing will take place on 22 June 2011

 

22.06.2011             Disciplinary hearing took place.  Mrs McGeady did not attend, have a person represent her or provide a written submission.  Dame G Keegan determined that as no satisfactory explanation was given, she would refer to the dismissal procedure

 

28.06.2011             Mrs McGeady advised of referral to dismissal procedure

 

16.03.2012             Letter to Mrs McGeady to confirm the hearing under the dismissal procedure with paper prepared by Dame Geraldine Keegan

 

27.04.2012             Mr McKeown UCU, advises he is now representing Mrs McGeady and requests adjournment

 

08.05.2012             Letter from Kate Duffy to Mrs McGeady confirming hearing to take place 23.05.2012

 

17.05.2012             Written response to the charges received from Mrs McGeady

 

18.05.2012             Hearing postponed as Mrs McGeady intends to make application for ill-health retirement

 

31.05.2012             Mrs McGeady’s application for ill-health retirement received by College and sent to Teachers Pension Board on 1 June 2012

 

01.06.2012             Application for ill-health retirement forwarded to Teachers Pension Board

 

02.07.2012             Application for ill-health retirement declined by Teachers Pension Board

 

04.01.2013             Letter from Kate Duffy to Mrs McGeady confirming dismissal hearing to take place on 26 February 2013

 

06.02.2013             Tribunal decision, 39/11 FET and 800/11 IT, issued

 

18.02.2013             Mr McKeown requests Tribunal outcome included in paperwork for meeting

 

26.02.2013             Meeting of Dismissal Committee with Mrs McGeady

 

13.03.2013             Meeting of Dismissal Committee to prepare a report and recommendation

 

19.03.2013             Meeting of Governing Body which approved recommendations

 

28.03.2013             Letter to Mrs McGeady advising her of the outcome

 

08.05.2013             Dr Curran sees Mrs McGeady

 

14.05.2013             NWRC receives Dr Curran’s report

 

29.05.2013             Letter to Mrs McGeady inviting her to a meeting prior to termination on grounds of ill-health arranged for 6 June 2013

 

06.06.2013             Meeting with Mr Faulkner, Mrs Cavanagh, Mrs McGeady and Mr McKeown to discuss Dr Curran’s report and                   ill-health retirement

 

11.06.2013             Letter from Mr Faulkner confirming termination on grounds of ill-health

 

18.06.2013             Letter from Mrs McGeady

 

24.06.2013             Further application for ill-health retirement forwarded to Teachers Pension Board on 28.06.13

 

04.07.2013             Reply from Mr Faulkner

 

08.08.2013             Letter from Teachers Pension Board confirming partial incapacity benefits

 

12.08.2013             College received a copy of letter sent to Mrs McGeady from Teachers Pension Board that confirmed she had been accepted for partial incapacity benefits

 

04.09.2013             Tribunal application, 1608/13, submitted

 

31.10.2013             Mrs McGeady’s employment terminated on grounds of ill-health

 

06.11.2013             Further application to Tribunal, post-termination, 1942/13

 

1.17    Pursuant to the Rules of Procedure, the decision of the Tribunal, as set out above, was recorded in the Register and issued to the parties on 12 May 2015 and it was stated therein written reasons would be issued by the Tribunal in due course.

 

2.1     The claimant was employed as a lecturer with the respondent from 18 September 1996 to 31 October 2013.

 

2.2     The following are relevant extracts from the disciplinary and dismissal and suspension procedures which applied to the claimant’s employment as a lecturer at the respondent:-

 

“(a)     Disciplinary procedure for Teachers in Institutions of Further Education

 

          1.       Scope

 

          The procedures set out in this document are designed to deal with misconduct or indisciplines or allegations thereof.  They apply to all teachers in institutions of further education.  The procedures do not apply to matters relating to a teachers professional competence.  The object of the procedures is to encourage improvement in the conduct of an individual teacher and should not be viewed primarily as a means of imposing sanctions.  It is important that a teacher must always be informed of any disciplinary action taken and the reason for it.

 

          ...

 

          5.       Formal Procedure

 

          The formal procedure shall consist of 4 stages, which shall normally be followed in sequence.  The following shall apply to each stage of the formal procedure:-

 

(i)       an interview shall be arranged by the disciplinary authority;

 

(ii)      written notice of the alleged offence shall be given to the teacher;

 

(iii)     copies of any relevant documents shall be exchanged by the parties at least 3 working days prior to the interview; and

 

(iv)     at the interview both parties shall have the opportunity to present their cases.

 

...

 

9.       Further Disciplinary Action (Stage 4)

 

9.1     Stage 4 may be involved:

 

          ...

 

(c)      where the seriousness of an act of indiscipline or misconduct merits the omissions of Stages 1, 2 and 3.

 

9.2     Where Stage 4 is involved and a satisfactory explanation is not given the teacher may be subject to further disciplinary action, which may include suspension and dismissal in accordance with the provisions of the Dismissal and Suspension Procedure for full-time teachers in Institutions of Further Education.

 

...

 

11.     Appeals

 

...

 

11.8    Provision for appeal against a decision to take further disciplinary action following Stage 4 of the procedure shall be in accordance with the Dismissal and Suspension Procedure in Institutions of Further Education.

 

...

 

11.10  No decision to take disciplinary action, other than suspension, or the issue of an oral or written warning, shall be implemented while an appeal is pending.

 

(b)      Dismissal and Suspension Procedure for Full-time Teachers in Institution of Further Education

 

          Dismissal

 

(1)      On it appearing to the governing body of an institution of further education (whether following suspension as hereafter referred to, or otherwise) that consideration should be given to the dismissal of a teacher the matter should be remitted to a committee established by the governing body for that purpose.  The committee shall consist of 4 members of the governing body and a chairman, who shall be the chairman of the governing body or a member of the governing body nominated by the chairman.  In the event of a vote being taken on any matter the chairman shall be entitled to vote if he wishes to do so.  A meeting of the committee shall be convened not less than 10 days after notice thereof has been given to the teacher, in writing, informing him that the question of his dismissal is to be considered.  The notice shall specify in full any charge, complaint or adverse report affecting the teacher’s conduct  which is to be taken into account in that respect, and shall state that he has a right of a personal hearing at that meeting (hereafter referred to as ‘the initial hearing’)

 

(2)      The Teacher shall be entitled to appear, with the assistance of a teachers’ union representative or a colleague if he so wishes, at the initial hearing to show cause why the committee should not recommend to the governing body that he should be dismissal. 

 

(3)      The Committee shall not include, as a member or otherwise, any person who was connected with the charge; complaint or adverse report affecting the teachers conduct or capacity.

 

(4)      In the event of the governing body, having considered the findings of the initial hearing, determining that the teacher should cease to work at the college, the teacher shall have the right to appeal to an independent appeals committee as under paragraph 13 before the determination of the governing body as put into effect.

 

(5)      Such an appeal must be made in writing, setting out the grounds within 5 working days of being notified of the determination of the governing body, who shall establish the appeals committee in accordance with paragraph 13.  The teacher concerned shall have the right to appeal with a teacher representative or a colleague.

 

(6)      After considering the decision of the appeal committee the governing body shall then decide whether or not to uphold the determination that the teacher should cease to work at the college and shall notify him accordingly.

 

Suspension

 

(7)      The governing body or the principle, in accordance with the approved Articles of Government for the institution of further education, may, in the vent of an emergency or allegation of misconduct or for any other urgent cause, suspend a teacher from duty and, if desired, from attendance at the institution.

 

(8)      Where it is not possible to convene a meeting of the governing body within 2 working days, the chairman of the governing body may suspend the principal or vice principal or, in the absence of the principal, any number of the teaching staff.  A report of such action must be made to a meeting of the governing body within 5 working days of the suspension.

 

(9)      When a teacher is suspended by the principal under the above provision the question of whether he should be dismissed or  reinstated or whether his suspension should continue shall be considered as a matter of urgency by a committee of the governing body.  The teacher shall be entitled to be notified of the meeting and to attend as if it were an initial hearing.

 

(10)    In the event of the suspension continuing following consideration of the matter by a committee of the governing body, the teacher shall be entitled to appeal to the chairman of the governing body as if the question of his dismissal were at issue.”

 

2.3     The claimant, as referred to previously, has made a number of complaints to the Industrial Tribunal and Fair Employment Tribunal pursuant to the 1976 Order and the 1998 Order to which, together with the said internal grievances, referred to in Paragraph 1.7 of this decision, were accepted by the respondent to be ‘protected acts’ for the purposes of the 1976 Order and the 1998 Order.  In the circumstances, it is not necessary to set out the details of those Tribunal proceedings and internal grievances in detail for the purposes of these proceedings; save as set out elsewhere in this decision.

 

2.4     On 24 September 2010 the principal of the respondent, Mr Murphy, received from Mr Morrison the line manager of the claimant, a complaint from Ms McLaughlin, the Head of School against the claimant, dated 24 September 2010.  In it she sets out the details of the internal grievances and the claims to the Industrial Tribunal and the Fair Employment Tribunal claims that had been brought by the claimant prior to that date and concluded:-

 

“I now find the situation intolerable and I cannot be reasonably expected to continue to carry out my role effectively on a personal or professional level as line manager to Fiona as she is intent in persistently attacking me.”

 

2.5     On 27 September 2010, the claimant was suspended by Mr Murphy, pending investigation of the complaint made by Ms McLaughlin, from her duties during the course of the investigation.

 

After a series of dealings and abortive hearings, due to the ill-health of the claimant, it was decided by Mr Murphy, after taking advice from the respondent’s Occupational Health adviser, that he would set out to the claimant in writing, the subject-matter of the investigation, giving her the opportunity to respond to the matters raised in writing.

 

By letter, dated 10 February 2011, Mr Murphy wrote a letter to the claimant, in which he stated, inter alia:-

 

          “ ... The reason for the meeting was to investigate the following :

 

·       A number of complaints have been taken by you over the last few years, including claims of harassment as well as numerous grievances.

 

·       A number of these were against Karen McLaughlin, Head of School.

 

·       None of these complaints have been upheld (they have included several numbers of senior staff, Governing Body members and external agencies).

 

·       Karen McLaughlin is of the view these complaints have been spurious and vexatious and have been a deliberate attempt to undermine her in her role as Head of School.

 

·       The nature of the allegations made by you have required considerable management time and energy, impacting on the efficient operation of the College.  The outcome of these unfounded allegations affects the relationship of trust and confidence between the College and you.

 

·       As Principal and Chief Executive I have a duty of care to all staff and must satisfy myself whether or not there is a case to answer.

 

I wish to give you an opportunity to respond and explain your reasons for submitting the complaints and your views of these matters now.  Notwithstanding the various Tribunal claims that followed your grievances, the focus of this process is in relation to the numerous internal complaints dealt with at various times by the College ... .”

 

The letter then referred to specific matters to be commented upon by the claimant relating to those internal complaints, which it is not necessary to set out for the purpose of this decision.  The claimant then provided by letter dated 24 February 2011 a detailed response.  By letter dated 16 March 2011, Mr Murphy realising the stress the claimant was experiencing and the claimant’s concerns about Mr Murphy conducting the investigation, wrote to the claimant on 16 March 2011 stating that for these reasons and to provide her with a degree of comfort, he had decided to involve another colleague of the claimant, Ms Samantha Taylor, the Head of School Early Years, Children and Young People.  The claimant was informed that both he and Ms Taylor, as the Disciplinary Investigation panel would therefore investigate the case jointly and decide if there is a case against the claimant to go to a disciplinary hearing or whether such a hearing was not required.  On 18 March 2011 the claimant issued a claim to the Tribunal claiming unlawful discrimination by way of victimisation pursuant to the 1998 Order and the 1976 Order, which claim was given the Case Reference No:  39/11 FET and 800/11.  The hearing of the Tribunal (chaired by Mr P Cross – the ‘Cross Tribunal’), in relation to those claims, was not heard until 8 – 9 January 2013 and the decision was recorded in the Register and issued to the parties on 6 February 2013.  Indeed, this Tribunal is setting out the findings of fact of this Tribunal, as set out above, has had regard, insofar as necessary and relevant, for the purpose of these proceedings, to the findings of fact previously made by the Cross Tribunal in its said decision.  However, it should be noted at the date when the said claim was presented to the Tribunal on 18 March 2011, and therefore the subject-matter of these proceedings, the claimant had been suspended and the investigation commenced but no decision had been taken in relation to whether there was a case to answer and the disciplinary process should be invoked to arrange a disciplinary hearing, pursuant to the said disciplinary procedures referred to previously.  That decision was not made until 30 March 2011.  As set out in the Cross Tribunal, the claimant was then informed that a disciplinary hearing would be instigated against her, which would be heard by Dame Geraldine Keegan a member of the Governing Body’s Staffing Committee, pursuant to the said disciplinary procedures.

 

2.6     The claimant was informed that the charges to be heard at the said disciplinary hearing, following the Murphy/Traynor investigation, were as follows:-

 

“1.      You have taken a number of complaints against staff within the North West Regional College, which have been made without sufficient grounds.

 

 2.      You failed to accept the findings determined by those charged with the responsibility to investigate and/or act as an appeal authority.

 

 3.      You have made it impossible for you to work in a collegiate along with colleagues and/or management within the School of Hospitality, Tourism and Sport.”

 

2.7     The Cross Tribunal at Paragraph 13 of the decision also found that:-

 

“After very lengthy delays and many adjournments the disciplinary case was heard by Dame Keegan on 22 June 2011, in the absence of the claimant.  Dame Keegan after hearing the case decided to refer the case to the dismissal panel under the procedures laid down for dismissal and suspension of Full-time Teachers in Institution of Further Education.  Further lengthy delays and adjournments have occurred in the process, due to the health problems of the claimant and the hearing had not taken place at the time of this Tribunal.”

 

          (These events will be referred to again later this decision.)

 

It is also necessary, for the purpose of these proceedings, to refer to the following findings/conclusions made in the decision of the Cross Tribunal, namely:-

 

“14     The Tribunal finds no fault in the manner in which the investigation by Mr Murphy and Ms Traynor was conducted, or the subsequent arrangements for the disciplinary hearing.  [Tribunal’s emphasis]  The only matter which the Tribunal criticises is the suspension of the claimant.

 

...

 

21      The Tribunal then looked for a reason for the suspension of the claimant.  In the Tribunal’s view, suspension would not have been invoked in other similar situations that had not been the subject of Tribunal claims of discrimination.  The onus of proof is on the respondent to show that the reason for suspension being invoked was for a reason other than a discriminatory reason.  The Tribunal looked at the evidence of the respondent’s witnesses, but could find no reason, save, that Mr Murphy considered that ‘given the background to the proposed investigation, I believed that it was essential to keep the parties separated ... .’  The Tribunal was not satisfied with this reason and believe that the true reason was the fact that the claimant had brought the Tribunal claims in the Industrial and Fair Employment Tribunal.

 

22      It was to achieve the objective separation of the parties that the precautionary suspension, as the respondent called it, was used.  The way that this was carried out was very traumatic to the claimant.  The other parts of the disciplinary process were handled in a sensitive and proper way and the Tribunal find no fault on the part of the respondent save for the decision to suspend and its mode of execution.                                                                                       [Tribunal’s emphasis]

 

The decision of the Cross Tribunal was not the subject of appeal or review by either party.

 

2.8     The disciplinary hearing, before Dame Keegan, was originally scheduled to take place on 19 April 2011.  It was then re-scheduled to take place on 13 May 2011 and then 13 May 2011.  At the hearing on 13 May 2011, the claimant’s trade union representative informed Dame Keegan that the claimant was at the hearing under duress and against the medical advice of the physician.  As a result the hearing was adjourned and the claimant was assessed for fitness to attend by the respondent’s Occupational Health adviser.  A new date for the disciplinary hearing was subsequently arranged for 22 June 2011.  The claimant did not attend and was not represented.  She did not provide any written submissions for use at the said hearing.  By letter dated 28 June 2011, Dame Keegan wrote to the claimant, informing her of what had taken place at the said disciplinary hearing, stating, inter alia:-

 

                    “ ...

 

I gave due consideration to all the correspondence, the fact that you are currently suspended on full pay and have been from September 2010, and the medical opinion from Dr Linton indicating your situation may not improve in the long term.  On the basis any outcome from this hearing would provide you with a further opportunity to provide representation at a later stage I decided that it was reasonable to proceed.”

 

At the hearing on 22 June 2011 Mr Murphy presented a case to address the three disciplinary charges [which have been set out in Paragraph 2.6 above of this decision].

 

The disciplinary procedure indicated that where Stage 4 is invoked and a satisfactory explanation is not given the teacher may be subject to further disciplinary action, which may include suspension and dismissal in accordance with the provisions of the Dismissal and Suspension Procedure for Full-time Teachers in Institutions of Further Education.

 

In the absence of a satisfactory explanation I feel I have no alternative but to refer you to the Dismissal and Suspension Procedure.

 

... .”

 

2.9     By letter dated 16 March 2012, the claimant was informed of the dismissal hearing to give consideration to your dismissal was to be held on 3 April 2012, which was subsequently re-scheduled, as set out later in this decision.

 

          The letter confirmed, inter alia, the disciplinary charges to be considered at the dismissal hearing were as follows, namely:-

 

·       You have taken a number of complaints against staff within the North West Regional College which have been made without sufficient grounds.

 

·       You failed to accept the findings determined by those charged with the responsibility to investigate and/or act as an appeal authority.

 

·       You have made it impossible for you to work in a collegiate way with colleagues and/or management within the School of Hospitality, Tourism and Sport.

 

The letter referred, inter alia, to various adjustments to the conduct of the hearing, in light of medical advice obtained ‘to ease the process for the claimant’.  This included the following:-

 

          “The Chairperson has agreed that the information will be sent to you (copy attached) and you will be given an opportunity to have some time to reflect on the information before you are required to comment.  I would request you respond in writing with your response by 5.00 pm on Monday 26 March 2012.  This adjustment will give you every opportunity to reflect on the evidence you want to submit, and it will ensure panel members and Dame Geraldine Keegan can reflect on your response in advance of the hearing ... .”

 

2.10    In the paper prepared by Dame Geraldine Keegan and attached to the letter dated 16 March 2012 she concluded, after setting out the history of the internal grievances and Tribunal proceedings and the conclusions of the Disciplinary Investigation panel of Mr Murphy and Ms Taylor:-

 

“From the evidence presented it is clear that Mrs McGeady has brought a number of complaints against staff without sufficient grounds.

 

It is clear from Mrs McGeady’s response that she has failed to accept the findings of Mr Morrison, Professor Monds, Mr McKeown or even the Industrial Tribunal hearings.

 

By her continuous complaints through claims of grievance and harassment she has broken the necessary bond of trust and confidence with colleagues and her line manager.  Such trust and confidence is a necessary requirement for her to work in a collegiate way in the delivery of an education service to the students of the college.

 

Following Mr Murphy’s presentation, I deemed that it was appropriate, as a satisfactory explanation had not been given, I decided it should be referred for consideration of dismissal in accordance with the Dismissal and Suspension Procedure for Full time Teachers in Institutions of Further Education.”

 

2.11    On 27 April 2012, Mr J McKeown, trade union official of UCU, advised the respondent he was now representing the claimant and sought an adjournment of the hearing.  On 17 May 2012, the claimant provided a written response to the said three charges, in which she stated, inter alia:-

 

                    “Re:  Charge 1

 

I believe any complaints I have raised with NWRC have been raised with sufficient grounds.

 

I believe that had my original complaint been treated seriously and properly investigated within NWRC the additional complaints may never have arisen.  I believe that the issues raised were allowed to escalate to this current situation which has only served to increase the number of complaints made.  I firmly believe that my complaints had substance/sufficient grounds as they were accepted by the Office of Industrial Tribunals as valid.  Had my complaints been spurious or vexatious, this would have been identified at one of the Case Management Discussions prior to the Industrial Tribunals.

 

Re:  Charge 2

 

I believe that the findings of the investigating officer and appeal panel are subjective.  I believe I do not have to accept the findings are correct.  I believe I had a case and I wanted to proceed with that case.  I did not see anything in the findings of the investigating report or the appeal outcome to suggest that I was wrong in my belief.  If I had seen evidence that it was wrong to invoke a grievance I would have apologised and moved on from the matter.  I believe I was correct in following the process and part of that process was to take my case to the Industrial Tribunal.  I believe I am now being retried for the outcome of my first Tribunal case.  I accepted the findings of the Industrial Tribunal and did not appeal this case outcome so I do not understand how you can state that I failed to accept the findings determined by those charges with the responsibility to investigate or act as an appeal authority.

 

Re:  Charge 3

 

I believe this to be a subjective view and I would like to know exactly how this conclusion was reached?  You have accused me of not being able to work in a productive way with any staff within the School of Hospitality, Tourism and Sport and yet prior to my complaints being lodged, I worked within a number of tourism teams with success and I enjoyed a good working relationship with my colleagues within the hospitality, business administration and sport teams.

 

When I returned to work in May 2010, I returned to working with the tourism section and I believed a line had been drawn under previous events and I was prepared to move on.”

 

2.12    The disciplinary hearing was again postponed on 18 May 2012, following notification to the respondent by the claimant’s new trade union representative that the claimant intended to put in an application for retirement on grounds of infirmity, which application was received by the respondent on 31 May 2012 and sent, in accordance with the relevant procedures, to Teachers Pension Branch of the Department of Education on 1 June 2012.

 

2.13    In the medical report contained within the application, a diagnosis of ‘chronic mixed depression anxiety stress’ was given, with findings of chronic depression, low mood, difficulty coping, poor sleep, chronic anxiety state, frequent agitation and low concentration and volition and a prognosis the claimant would continue in a similar state of mind for the foreseeable future.  The respondent, in its declaration required to be filled in on the application stated:-

 

“This Teacher is currently suspended from duty or under investigation for serious misconduct.”

 

2.14    By letter dated 2 July 2012, the Teachers Pension Branch declined the application stating:-

 

“  ...  The Department’s Senior Medical Adviser has stated that the medical available does not demonstrate that you meet the criteria for total or partial incapacity benefits and therefore cannot recommend retirement on the grounds of ill health ... .”

 

2.15    The decision of the Cross Tribunal was issued on 6 February 2013, as previously stated, and was enclosed with the papers for the disciplinary hearing arranged for 26 February 2013.

 

2.16    On 26 February 2013, a committee made of the Governing Body of the respondent, set up in accordance with the Dismissal and Suspension procedure for                    Full-time Teachers in Institutions of Further Education, under the Chairmanship of Martin Agnew (the ‘Agnew Committee’), met to consider the dismissal of the claimant arising from the three charges set out to the claimant on 4 January 2013, as previously set out in this decision.  Mr John McKeown, trade union official of UCU, represented the claimant.  The written case prepared by Dame Geraldine Keegan, and sent previously to the claimant, and the claimant’s response thereto were before the Committee and taken as read by agreement.  Dame Geraldine Keegan presented her case before the Committee, which in essence was in line with her previous written submission, to which Mr McKeown responded in some detail on behalf of the claimant.  In view of the Tribunal’s conclusions in this matter, as set out elsewhere in this decision, it is not necessary to refer in detail to the evidence produced and/or was said by the various participants at the disciplinary hearing which was to determine whether or not the Committee, under the said procedure, should recommend to the Governing Body that the claimant be dismissed.  Significantly for the purpose of these proceedings, Mr McKeown in this conclusions repeated emphasised to the Agnew Committee, in summary it was not a conduct issue but a capability and medical issue and the College had proceeded with disciplinary and by doing so had failed in the duty of care to an employee.  The College had wrongly, in his submissions, focused on one thing, disciplinary action which was that conduct was the problem not capability.  He stated, in the course of his submissions:-

 

“  ...  It would be a fair reason if misconduct and if Mrs McGeady had acted in a malicious way.  He said that her medical history suggested different reasons, which was she had been suffering for some time with mental issues.  He said that the College had been aware and moved along the disciplinary route.  He said this had not been a reasonable approach and that if there was a dismissal on the grounds of misconduct, the College would be open to charges.  He said the reason had not been fair and reasonable.  He said the charges that had been crafted were far from clear and specific ... .”

 

He also acknowledged that the claimant was not fit for work and had not been in the relevant period under discussion.  He confirmed, on behalf of the claimant, as her representative, it was a medical capacity issue and should be so dealt with by the respondent.

 

2.17    Following the meeting and after further consideration and review of the paperwork and the evidence presented to the Agnew Committee, the Agnew Committee decided in relation to the said three charges:-

 

                    (1)      1^st Charge

 

“The panel were unanimously of the view that this charge was clearly upheld based on the evidence available.  The panel noted that                 Mr Jim McKeown confirmed Mrs McGeady’s behaviour was not that of a rational person and she had become a serial complainer.”

 

                    (2)      2^nd Charge

 

Whilst the panel recognised from Dame Keegan’s presentation that this charge related to the repeated behaviour of complaint taking that resulted from non-acceptance of outcomes, they accepted Mr John McKeown’s view that the wording of the charge was less than clear.  The panel unanimously accepted it was not a requirement to accept the finding as such, but to modify behaviour due to the finding.  As a result this charge in not upheld.”

 

                    (3)      3^rd Charge

 

“Mr Jim McKeown presented no evidence to counter this charge.  The panel reviewed the evidence provided and unanimously agreed the charge was upheld.”

 

          The Agnew Committee concluded in light of the foregoing:-

 

“Following discussion, the panel unanimously agreed that based on Charges 1 and 3 being upheld this case was one of gross misconduct therefore an outcome of dismissal would be appropriate.  However, the Panel considered the case presented by Mr Jim McKeown which centred around the fact that Mrs McGeady is not a well person and he believed her complaint taking was a symptom of her mental health condition which has developed over time.  Whilst the College has to date received no confirmation of this from a clinical service, the Panel acknowledged, due to the timescales involved, it is possible that Mrs McGeady is now unwell and unfit for work therefore it is possible based on current medical opinion consideration should be given to termination on the grounds of ill health.  The panel felt this would be desirable, if accepted by medical opinion.  They acknowledged the potential adverse impact a dismissal decision would have on someone if they are now suffering from a serious mental health condition.”

 

The unanimous decision of the Agnew Committee and recommendation to the Governing Body was as follows:-

 

“Mrs McGeady is dismissed however the implementation of the dismissal decision is in abeyance [Tribunal’s emphasis] until the College seeks specialist psychiatric opinion relating to her current state of health.  If medical opinion confirms Mrs McGeady is unfit for work and will remain unfit for the foreseeable future due to a mental health condition, the College will process termination on grounds of ill health [Tribunal’s emphasis].  If medical opinion does not support ill health termination, then the decision to dismiss will be implemented immediately.”

 

2.18    Mr Agnew wrote to the claimant by letter dated 28 March 2013 confirming the said decision of the Agnew Committee and the recommendation of the Committee to the Governing Body, as set out in the previous sub-paragraph.  Arising from this, an appointment was arranged for the claimant to see Dr P Curran, a consultant psychiatrist, who saw the claimant on 8 May 2013.

 

2.19    In the letter of instruction to Dr Curran, for the purpose of his consultation with the claimant and subsequent report, the respondent stated:-

 

“  ...  Mrs McGeady was suspended on full pay from which since September 2010 pending an investigation into misconduct.  Due to her ill health the investigation and disciplinary process has been delayed for 2¹/₂ years.  During this time her GP has confirmed she is unfit for work due to depression, stress and anxiety.  At her disciplinary hearing her representative stated she was incapable due to illness, however no medical report received by the College during this process suggested that Mrs McGeady would be unfit for work permanently or indeed in the foreseeable future.  The disciplinary panel heard the case and agreed that Mrs McGeady’s conduct, which related to taking numerous cases against staff in the College, all of which were without sufficient grounds, and the impact this had was described as making it impossible for her to work in a collegiate way with colleagues and/or management, amounted to gross misconduct, therefore she should be dismissed.

 

However, they also took into account the case made by her representative and felt as her employer they owed her a duty of care.  It was their view that in the 2¹/₂ years since her suspension her health may have deteriorated to such an extent that she is now unfit for work and will remain unfit in the foreseeable future.  If this is the case, the College will terminate on the grounds of ill health as they felt this would be less likely to adversely impact on Mrs McGeady’s health then a dismissal due to misconduct if she is now suffering from a serious mental health condition.  If the medical opinion does not support termination on the grounds of ill health then Mrs McGeady will be dismissed on the basis of gross misconduct.

 

I would greatly appreciate if you would provide a report on Mrs McGeady’s fitness for work and if unfit whether or not she will remain unfit for work for the foreseeable future or indeed if you feel she is permanently unfit for work (ie until the age of retirement).

 

... .”

 

2.20    Dr Curran saw the claimant, as arranged, and he provided a report to the respondent on 14 May 2013, which, as previously stated, was admitted in evidence, without formal proof and the requirement for Dr Curran to give evidence and/or be cross-examined on foot of his witness statement exchanged with the claimant’s representative.

 

2.21    In his report, Dr Curran, in light of his said letter of instructions, reviewed the medical evidence which the claimant had privately obtained from a Dr Doherty, but which had not been seen prior to the date of his consultation by the respondent during the disciplinary process; and after consulting with the claimant in some detail reached the following conclusions:-

 

                    “11.9

 

My view is that clinically she is suffering quite a moderately severe depressive episode albeit one caused by these circumstances and possibly, to some degree, that she may have been the author of her own misfortune.  However, on the day, I found before me an emotionally defeated person; plainly suffering, just as Dr Doherty opined six months ago, a depressive illness; and its duration is certainly for three or four years; and she requires to take psychotropic medication; and she is attending for psychiatric treatment in the form of weekly CBT; and her marriage has filed probably because of her emotional defeat in recent years; and she recognises that her career as a teacher has ended; and altogether i would recommend (both to her and the College) that I have no hesitation in diagnosing her as suffering mental illness in the form of severe depression sufficient to warrant medical retirement.  I think her prognosis is guarded, if not poor.  Her mental illness will continue for as long as she remains in dispute with her employers.  She is currently asking that a decision on being dismissed or be retired be postponed until she has exhausted all legal options, whatever they are to her.

 

11.10

 

I can only suppose that it is up to herself whether to accept my recommendation and opinion that she is mentally unwell and that she has satisfied me that her ill health termination is appropriate.”

 

2.22    By letter dated 29 May 2013, Mr H Faulkner, the Chair of the Governing Body, wrote to the claimant to invite her to a meeting on 6 June 2013, to be chaired by himself, accompanied by a Governing Body member.  In the letter he stated:-

 

“I refer to Mr Agnew’s letter dated 28 March 2013 confirming the decision of the Governing Body to dismiss you from employment in the North West Regional College.  In his letter Mr Agnew confirmed that the decision to dismiss would be put in abeyance [Tribunal’s emphasis] until the College received specialist psychiatric opinion relating to your current state of health.  The College has now received this report that confirms you are unfit for work and likely to remain so far three or four years.  On the basis of the report the Governing Body intends to terminate your contract on the basis of ill health.  However, prior to implementing the decision they wish to give you an opportunity to present any information you feel is relevant, if you do not agree with this decision.”                                                 [Tribunal’s emphasis]

 

2.23    At the meeting, on 6 June 2013, the claimant was again represented by Mr McKeown.  It should be pointed out, for the avoidance of any doubt, Mr McKeown did not give any evidence to this Tribunal.  During the meeting Mr Faulkner confirmed on a number of occasions that the claimant was being dismissed on ill health.  Significantly, Mr McKeown did not seek to challenge this, or indeed the contents of Dr Curran’s report,; but rather he sought clarification on notice and timing issues for any appeal following termination.

 

          It was also confirmed, at the meeting, by Mrs Kate Duffy, from Human Resources of the respondent, that since this was a dismissal on ill health an appeal could happen after dismissal was put into effect and, when the date of termination was decided by the respondent, notice would follow.  She also confirmed if the claimant wished to exercise her right of appeal, it would be from the date of notification. 

 

          In addition, Mr McKeown, sought further clarification about ill health retirement under the Teachers Pension Scheme following such a termination and how any such application would and could be progressed by the claimant and/or the respondent.  In particular, Mr Faulkner said that any such decision on any application for ill health retirement was a matter for Pensions Branch of the Department of Education but he hoped the application would be accepted.  It is of interest to note that Mr Faulkner acknowledged that what had happened in this matter had given rise ‘to an unusual set of circumstances’.

 

2.24    By letter dated 11 June 2013, Mr Faulkner wrote to the claimant in which he stated:-

 

“  ...  At our meeting on 6 June 2013 you did not present any information to influence the decision of the Governing Body but your representative did raise a number of procedural issues  ...  The panel was therefore of the view that you accepted the decision of the Governing Body to terminate your contract of employment on the grounds of ill health.  I now wish to formally advise you that your contract of employment is terminated on the grounds of ill health.  Based on your contract you are entitled to 4 months notice ending 31 October 2013 ...  .”

 

In the letter, he confirmed to the claimant, following investigation, it had been confirmed any application for ill health retirement under the NI Teachers Pension Scheme had to be made by the claimant, not the respondent.

 

2.25    In a letter dated 18 June 2013 the claimant wrote to Mr Faulkner confirming, inter alia, she was not appealing the decision to dismiss on grounds of ill health, and raising any issues with the process carried out by the respondent.  The claimant sent a further application on 28 June 2013 for ill health retirement under the Teachers Pension Scheme to the Pensions Branch.  It was in similar terms to her previous application but in the Declaration by the employer, dated 28 June 2013, relating to suspension/under investigation for serious misconduct.  Mr Murphy stated:-

 

“Mrs McGeady was suspended from duty however she has since been advised that she has been dismissed on the basis of ill health (with notice) effective 31 October 2013.”

 

2.26    Mr Faulkner, by letter dated 4 July 2013, wrote to the claimant, rejecting any criticism of the respondent but, in particular, any suggestion, as made in her letter of 18 June 2013, she had not been able to make relevant representations at the meeting on 6 June 2013 and pointing out she had been represented by Mr McKeown at this meeting.  He noted the claimant had decided not to appeal.  He also stated:-

 

“You are correct to highlight a change of procedure.  For the purposes of clarity I wish to explain that the decision of the Governing Body which was communicated to you by Mr Agnew, in his letter confirmed the decision to dismiss clearly on the grounds of misconduct.  However representation made at that hearing suggested that as some considerable time had passed since your suspension it was possible your health had deteriorated to an extent that you were no longer capable of working as a lecturer.  At that time you remained a member of staff the Governing Body felt it was appropriate and indeed necessary in exercising their duty of care to you to consider if you were suffering from a serious medical condition and of this was confirmed based on medical opinion they would progress the dismissal on grounds of ill health.

 

...

 

In relation to the process I wish to clarify that the decision to dismiss which was communicated by Mr Agnew’s letter was put in abeyance [Tribunal’s emphasis] until medical opinion was sought.  Following Mr Agnew’s letter you had the right to object to this process if you believed it to be inappropriate.  In which case your dismissal would have been actioned on the basis of misconduct and the right of appeal offered to you.  You did not object to this process and agreed to attend Dr Curran to get medical opinion to establish if your dismissal could be on the basis of ill health.  As Dr Curran confirmed you were unfit and were likely to remain so for the foreseeable future you have been dismissed on the grounds of ill health and offered the right of appeal [Tribunal’s emphasis].  If Dr Curran had confirmed you were not unfit for work the dismissal decision would have been implemented and you would have been dismissed due to misconduct with the right of appeal.

 

... .”

 

2.27    On 12 August 2013, in a letter to the claimant the Pensions Branch of the Department of Education, it was confirmed that the claimant had been accepted for Partial Incapacity Benefits.

 

2.28    In accordance with the previous correspondence to the claimant her contract of employment terminated on 31 October 2013, after taking into account the relevant period of notice to which she was entitled.

 

Relevant law

 

3.1     Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

 

                    “An employee has the right not to be unfairly dismissed by his employer.”

 

          Article 130 of the 1996 Order provides:-

 

“(1)     In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show –

 

(a)      the reason (if more than one the principal reason) for the dismissal; and

 

(b)      that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

                     (2)     The reason falls within this paragraph if it –

 

(a)      relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

(b)      relates to the conduct of the employee,

 

...

 

                    (3)      In Paragraph 2(a) –

 

(a)      ‘capability’ in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality ...

 

(4)     Where the employer has fulfilled the requirements of Paragraph (1) the determination of a question whether the dismissal is fair or unfair, (having regard to the reasons shown by the employer) –

 

(a)      depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably as treating it as a sufficient reason for dismissing the employee; and

 

(c)      shall be determined in accordance with equity and the substantive merits of the case.

                   

                    ...

 

                     (6)     Paragraph (4) is subject to Article 130A ... .”

 

          Article 130A of the 1996 Order provides:-

 

“(1)     An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

 

(a)      one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

(b)      the procedure has not been completed; and

 

(c)      the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

 

(2)     Subject to Paragraph (1) failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

 

3.2     Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’).  The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal.   These provisions came into operation on 3 April 2005.  They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.

 

In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exceptions which were not applicable to this case, to follow a specific minimum procedure when subjecting employees to disciplinary action or dismissal.  There are two alternatives, namely:-

 

(a)      standard dismissal and disciplinary procedures (DDP);or

 

(b)      a modified DDP.

 

          It was not disputed there was no failure by the respondent to comply with the said statutory dismissal and disciplinary procedures.  In these circumstances no issue of automatic unfair dismissal pursuant to Article 130A of the 1996 Order therefore arose to be determined by the Tribunal in this matter (see further Venniri  v  Autodex Ltd [UKEAT/0436/07].

 

3.3     Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) provides:-

 

“(1)     A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

 

(a)      brought proceedings against the discriminator or any other person under this Order ...

 

(b)      given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order;

 

(c)      otherwise have anything under or by reference to this Order ...

 

(d)      alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order ...

 

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done or intends to do, any of them.

 

(2)      Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him of the allegation was false and not made in good faith.

 

                    ... .”

 

          Article 8 of the 1976 Order provides:-

 

                    “ ...

 

(2)      It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland to discriminate against her –

 

                                        ...

 

(b)      by dismissing her, or subjecting her to any other detriment.”

 

          Article 63A of the 1976 Order provides:-

 

                    “ ...

 

(2)      Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

 

(a)      has committed an act of discrimination ... against the complainant which is unlawful;

 

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

 

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

 

3.4     Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:-

 

                    “(1)     In this Order, discrimination means –

 

                                        ...

 

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

 

                    ...

 

(4)      A person (‘A’) discriminates by way of victimisation against another person (‘B’) in any circumstances relevant for the purposes of this Order if –

 

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

 

                    (b)      he does so for a reason mentioned in paragraph (5).

 

(5)      The reasons are that –

 

                    (a)      B has –

 

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

 

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

 

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

 

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

 

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

 

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

 

          Article 19 of the 1998 Order provides:-

 

“It is unlawful for a an employer to discriminate against a person in relation to employment in Northern Ireland –

 

          ...

 

          (b)      where that person is employed by him –

 

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

 

          Article 38A of the 1998 Order provides:-

 

“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 ... against the complainant, or

 

(b)      is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination ... against the complainant;

 

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

 

3.5     In relation to the claimant’s claim of ‘ordinary’ unfair dismissal, pursuant to Article 130(1)(a) of the 1996 Order, there was no dispute by the representatives that the burden was on the respondent to establish the reason relied upon by it.  The question of whether it did in fact justify the dismissal requires the Tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order.  (See further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 8 and Mental NHS Trust  v  Sarkar [UKEAT/0479/08], where it is established in relation to the issue of fairness, there is no burden of proof on any party.)

 

3.6     In relation to a case where the reason for the dismissal is found to relate to the conduct and/or capability of the claimant, which is a reason within the terms of Article 130(1) and (2) of the 1996 Order, the Tribunal, as set out above, then has to determine whether the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously. 

 

          Applying the dicta, which originated in the well-known case of British Home Stores Ltd  v  Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a Tribunal to determine:-

 

“(i)      whether the employer had a genuine belief in the guilt of the employee;

 

                    (ii)      whether it had reached that belief on reasonable grounds;

 

                    (iii)     whether this was following a reasonable investigation; and

 

(iv)     whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.”

 

          As seen above, it has long been established that in relation to the matters set out in Article 130(4) there is a ‘neutral’ burden of proof (see further DSG Retail Ltd  v  Mackey [2013] UKEAT/0054/13 and Singh  v  DHL Services [2013] UKEAT/0462/12]).

 

In Sainsburys Supermarkets Ltd  v  Hitt [2003] IRLR 23, it was made clear the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason.  Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.

 

In Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-

 

          “ …

 

(1)      the starting point should always be the words of [Section 57(3)] themselves;

 

(2)      in applying the Section the industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they [the members of the industrial tribunal] consider the dismissal to be fair;

 

(3)      in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4)      in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

 

(5)      the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair : if the dismissal falls outside the band it is unfair.”

 

It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision.  As Viscount Dilhourne said in W Devis & Sons Ltd  v  Atkins [1977] IRLR 314:-

 

“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”

 

          In W Weddel & Company Ltd  v  Tepper [1989] IRLR 96, it was held that:-

 

“ … [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’.  That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances.  If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”

 

The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin  v  Citybus Ltd [2008] NICA 42 and Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council  v  McCann [2013] NICA 7 and Gould  v  Regency Carpet Manufacturing Ltd [2013] NICA 26.  In London Ambulance NHS Trust  v  Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer.  In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater  v  Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-

 

“The employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the Tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

 

          As Underhill LJ emphasised in Stuart  v  London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation – “that is, such an investigation as fairness required in the circumstances of the case” before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test.  He acknowledged that different Tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-

 

 

“ ... two Tribunals both conscientiously considering ‘the range of reasonable responses’ ... and trying to avoid illegitimate ‘substitution’, may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... .”

 

3.7     In a recent decision in the Court of Appeal in Davies  v  Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-

 

“It is not for ET to conduct a primary fact-finding exercise.  It is there to review the employer’s decision.  Still less is the ET there to conduct an investigation into the whole of the employee’s employment history … .” (Paragraph 33 of the judgment)

 

Further, in Turner  v  East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-

 

“For a good many years it has been a source of distress to unfair dismissal claimants that, with rare exceptions, they cannot recanvass the merits of their case before an employment tribunal.  In spite of the requirement in Section 98(4)(b) that the fairness of a dismissal is to be determined in accordance with equity and the substantial merits of the case, a tribunal which was once regarded as an industrial jury is today a forum of review, albeit not bound to the Wednesbury mast.  Other claims – for example discrimination claims – based on the same or related facts, do attract a full merits hearing.  But in relation to unfair dismissal the law is unequivocally what Lord Justice Elias has set out in Paragraphs 16 to 22 above.”

 

3.8     Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness.  As the Court of Appeal held in Taylor  v  OCS Group Ltd [2006] EWCA Civ 702:-

 

“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair.  After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care.  Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the                      open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”

 

          In a recent decision, the Employment Appeal Tribunal, in the case of Holt  v  Res On Cite Ltd [2014] UKEAT/0410 emphasised that the Tribunal’s role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process (see further First Hampshire & Dorset Ltd  v  Parhar [2012] UKEAT/0643]).

 

          In McMaster  v  Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-

 

The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing.  As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be advise to  his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.”

 

See further West Midlands Co-Operative Society Ltd  v  Tipton [1986] AC 536)  In London Probation Board  v  Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, in McMaster, HH Judge McMullan QC made clear:-

 

... the whole point of internal appeals is to allow for bad or unfair decisions to be put right.”

 

3.9     Similarly under Article 130(2)(a) of the 1996 Order a dismissal is capable of being fair, if it relates to the capability of the employee performing the work of the kind which he was employed by the worker to do.  In Taylor  v  Alidair Ltd [1978] IRLR 82, the Court of Appeal held:-

 

“The correct test of fairness is whether the employer honestly and reasonably held the belief that the employee was not competent and whether there was reasonable ground for that belief.”

 

          In East Lindsey District Council  v  Daubney [1977] IRLR 181:-

 

“ ... Though the steps that employers should take may vary, if in every case employers take such steps as are sensible according to the circumstances, to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”

 

          In Patterson  v  Bracketts [1977] IRLR 137:-

 

“What is required in a particular case as far as the employer informing himself about the true situation of the employee’s health is concerned will depend on the circumstances of each case ... .”

 

3.10    In relation to the burden of proof provisions set out in Article 63A of the 1976 Order, and Article 38A of the 1998 Order, the English Court of Appeal in the case of Igen  v  Wong [2005] IRLR 258, considered similar provisions, applicable under relevant legislation applying in Great Britain 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 [2005] IRLR 258 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 1 and other decisions referred to below.)  The decision in Igen  v  Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, 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 & Another [2007] NICA 25.  (See further the recent Supreme Court decision in the case of Hewage  v  Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].), and where it did not consider any further guidance was necessary.  It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other. 

 

          In Madarassy  v  Nomura International PLC [2007] IRLR 246 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 [Tribunal’s emphasis], 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 for 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 … .”

 

3.11   In relation to what is to be included by the expression ‘something more’ – guidance is to be found in the judgment of Elias J in The Law Society  v  Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799). 

 

In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

 

“94.    It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman.  All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour.  In order to establish unlawful discrimination it is necessary to show that the particular employer’s reason for acting was one of the proscribed grounds.  Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way.  The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration.  Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.

 

 96.    ... Nor in our view can Sedley LJ (in Anya  v  University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups.  The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference.  ...  No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a Tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.”

 

In particular, in Paragraph 101 of Elias J’s judgment  explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

 

“The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable.  In short, it goes to credibility.  If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination.  But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct.  Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour.  They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity.  If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself.”

 

          At Paragraph 113 of his judgment, he also stated:-

 

“There is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... .”

 

          At Paragraph 220 he confirmed:-

 

“An inadequate or unjustified explanation does not of itself [Tribunal’s emphasis] amount to a discriminatory one.”

 

In the recent decision in the case of The Solicitors Regulation Authority  v  Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way (Paragraph 46):-

 

“(i)      In appropriate circumstances the ‘something more’ can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

 

 (ii)     If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another                   non-discriminatory reason, it cannot make a finding of discrimination.”

 

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions.  In Maksymiuk v Bar Roma Partnership  [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-

 

“The guidance in Igen  v  Wong has been carefully refined.  It is an important template for decision-making.  As Laing and Madarassy have pointed out however, a tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it.  That would not to be apply the words of the statute appropriately.  Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required.”

 

Further, in Birmingham City Council  v  Millwood [2012] UKEAT/0564, Langstaff P stated:-

 

“26     What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

 

Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof.  Exactly that evidential position would have arisen in the days in which King  v  Great Britain – China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination.  Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

 

27     ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong.  In essence, the tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.”

 

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent’s witness, which was found to lack credibility and could therefore constitute the ‘something more’; and the Tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

 

“The tribunal asked the reason why the claimant had been treated as she was.  It was not simply a question of the respondent putting forward no explanation but having given a false explanation.  This was clearly capable of being ‘something more’ ... .”

 

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK  v  Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-

 

“all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... .”

 

It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given.  Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account.  When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

 

3.12   In the case of Curley  v  Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ 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 Nicholls in Shamoon  v   Chief Constable of the Royal Ulster Constabulary [2003] NI 147, 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 Nicholl’s 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 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 than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion).  Indeed, Lord Nicholls’ 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 same coin.

 

3.13   In Nelson  v  Newry and 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 “the facts must lead to the inference of discrimination”.  He also stated:-

 

“24.    This approach makes clear that the complainants allegation of unlawful discrimination cannot be used 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 probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable the Police Service of Northern Ireland and 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 claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63 A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

3.14   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 emphasised the necessity for the Tribunal to look at the matter, in the light of all the facts as found:-

 

“3.      Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence 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 such a conclusion is improbable on the facts.”

 

          Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the Tribunal, to determination of claims of discrimination pursuant to the 1998 Order and/or 1997 Order, as amended and the other discrimination legislation and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales . 

 

3.15    It can occur, in certain circumstances, that there is found to be more than one reason for the discriminator’s actions.

 

          In O’Neill  v  Governors of St Thomas More Upper School [1996] IRLR 372, Mummery J suggested a Tribunal’s approach to the question of causation should be simple, pragmatic and commonsensical and that, from the whole complex of facts what is the ‘effective and predominant cause’ or the ‘real and efficient cause’ of the discriminatory act complained of.

 

          In Nagarajan  v  London Regional Transport, a race case, [2000] AC 501, Lord Nicholls said:-

 

“Decisions are frequently reached for more than one reason.  Discrimination may be on racial grounds even though it is not the sole ground for the decision.  A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases; discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reasons, an important factor.  No one phrase is obviously preferable to all others, although in the application of this legislation, legalistic phrases, as well as subtle distinctions are better avoided so far as possible.  If racial grounds had a significant influence on the outcome, discrimination is made out.”

 

          In Igen  v  Wong, the dicta of Lord Nicholls in Nagarajan were found to be by the Court of Appeal to be not substantially different to the formulation ‘no discrimination whatsoever’ (see Barton).

 

          A significant influence is an influence which is more than trivial.

 

          In Law Society  v  Bahl [2003] IRLR 640, a case of sex and race discrimination, Elias J gave this guidance:-

 

“But if the evidence does not satisfy the tribunal that there is discrimination on grounds of race or on grounds of sex, considered independently, then it is not open to a tribunal to find either claim satisfied on the basis there is nonetheless discrimination on grounds of race and sex when both are taken together.  That would fail to give effect to the fact that the burden of proof is on the applicant.  Nor can the tribunal properly conclude, if it is uncertain about whether it is race or sex, that it would find both.”

 

3.16    It has now been established the said reverse burden of proof provisions also apply to cases of victimisation (see further Rice  v  McEvoy [2011] NICA 9).  Further, 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 one of the protected acts.  Thus, 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 done the protected act.  This may involve comparison with an actual or 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, victimisation is established (see Lord Nicholls in Nagarajan  v  London Regional Transport [1999] IRLR 572 at 575, 576), the question is why did the allege 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.

 

As Higgins LJ stated in the Northern Ireland Fire & Rescue Service and Another  v  McNally [NICA Unreported 29 June 2012] Paragraph 23 of this judgment:-

 

“The primary object of the victimisation provisions is to ensure that employees who have taken steps to exercise their statutory rights (under the 1998 Order) are not penalised for doing so (see Lord Nicholls in Khan  v  Chief Constable of West Yorkshire Police [2001] UKHL 48 at Paragraph 16).”

 

In relation to whether the ‘protected act’ had a significance influence on the outcome, as referred to Lord Nicholls in Nagarajan, that expression was interpreted as an influence more than trivial.  In Villalba v Merrill Lynch & Co [2006] IRLR 43, Elias J, as he then was, held that, if in relation to any particular decision where a discriminatory influence was not a material inference or factor then it was trivial and therefore according to the dicta in Igen  v  Wong is insufficient to break the principal of equal treatment.

 

          In Simpson  v  Castlereagh Borough Council [2014] NICA 28, Girvan LJ reviewed the case law and stated:-

 

“A person discriminates against the person alleged to have been victimised if he treats the person less favourably ‘by reason that the person victimised’ has (inter alia) done anything under or by reference to the 1976 Order or the Equal Pay Act.  ‘By reason that’ simply means ‘because’ (see Lord Neuberger in Derbyshire  v  St Helen’s Metropolitan Borough Council [2007] ICR 841 at 865, Paragraph 76).  As Mr Potter pointed out in argument, in determining whether an act is done because the party victimised did one or some of the things set out in Article 6(2)(a) – (d) the test to be applied may be expressed in somewhat different ways though it should lead to the same answer.  The Tribunal can ask the question ‘why did the respondent act as it did?  See, for example, Nagarajan  v  LRT [1999] IRLR 57 at Paragraphs (13) and (18).  In Derbyshire, Lord Neuberger put the matter thus:-

 

‘The words ‘by reason that’ require one to consider why the employer has done the particular act ... and to that extent one must assess the alleged act of victimisation from the employer’s point of view.  However, in considering whether the act has caused a detriment, one must view the issue from the point of view of the alleged victim.’

 

Alternatively, the Tribunal may pose the question ‘would the respondent have acted as it did but for the fact that the victimised party did what he or she did acting under Article 6(1)(a) – (d)’.  See, for example, Lady Hale in R  v  Governing Body of JFS [2010] IRLR 136, Paragraph (58) and Lord Clarke (ibid) at Paragraphs (131) – (134).  Alternatively, it may pose the question, as Lord Mance did, in JFS, whether the impugned act was inherently discriminatory.”

 

3.17    In Martin  v  Devonshire Solicitors [2011] ICR 352, Underhill P (as he then was) stated:-

 

“22     We prefer to approach the question first as one of principle, and without reference to the complex case-law which has developed in this area.  The question in any claim of victimisation is what was the ‘reason’ that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable.  The most straightforward example is where the reason relied on is the manner of the complaint.  Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the Managing Director at home at 3 o'clock in the morning.  In such cases it is neither artificial nor contrary to the policy of the               anti-victimisation provisions for the employer to say ‘I am taking action against you not because you have complained of discrimination but because of the way in which you did it’.  Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint.  ...  Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable.  It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements.  An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases.  But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle.”

 

23      We accept that the present case is not quite like that.  What the Tribunal found to be the reason for the appellant's dismissal was not the unreasonable manner in which her complaints were presented (except perhaps to the extent that Mr. Hudson referred to the fact that some of the grievances were repeated).  Rather, it identified as the reason a combination of inter-related features – the falseness of the allegations, the fact that the appellant was unable to accept that they were false, the fact that both those features were the result of mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness.  But it seems to us that the underlying principle is the same: the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself.  [Tribunal’s emphasis]  Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.”

 

          Elsewhere in the judgment Underhill P, also stated:-

 

“  ...  The distinctions involved may appear subtle, but they are real; and they require to be recognised if the anti-victimisation provisions, important as they are, are to be confined to their proper effect and not to become an instrument of oppression. This is an area of law where, alas, the questions to be answered cannot always be straightforward – not so much because the law is complex as because of the complexities of legislating for the subtleties of human motivation.

 

          In Woodhouse  v  West North West Homes Leeds Ltd [2013] UKEAT 007, the Employment Appeal Tribunal referred, with approval, to the decision in Martin  v  Devonshire Solicitors, but suggested that it would only be in exceptional cases that the detriment or dismissal would not be found to be done by reason of the protected act:-

 

“ ... very few cases will be like Martin.  There are no doubt exceptional cases where protected act have not caused the dismissal or whatever other detriment is at issue and Martin is such an exceptional case.  Very few cases, however will have grievance-based on paranoid delusions about events that never happened.  The process of measuring cases against such a yardstick is a dangerous one.  Before a case could be regarded as analogous to Martin, it is necessary to identify some feature of the protected acts, which could properly be regarded as separable from them, as being the reason for the treatment complained of.”

 

Although it may be stated that the facts of Martin are somewhat unusual, given the mental health issues, the judgment of Underhill P makes it clear, in the judgment of this Tribunal, that his guidance as set out in Paragraphs 22 and 23 of his judgment was based on principle.  He does not refer to any exceptionality test but rather refers to whether the reasons are properly and genuinely separable in a particular case.  Indeed, the Tribunal is confirmed in that view by the recent decision of the Employment Appeal Tribunal in the case of Shinwari  v  Vice Entertainment Ltd [2015] UKEAT/0394.

 

This was a case of protected disclosure not victimisation; but Mrs Justice Simler found similar principles applied and the ‘exceptionality test’, as suggested in Woodcock, was not relevant; in her judgment, and the Tribunal, on the facts, had drawn a proper distinction between the fact of making the protected act and the consequences which were related but separable from the fact the claimant made those protected disclosures.  The Tribunal had made findings of fact that was supported by the evidence that entitled it to treat the consequences as separable. 

 

3.18    In order to qualify as a ‘detriment’, for the purposes of the discrimination legislation, 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 sense where he thereafter had to work.  It further held an unjustified sense of grievance could not amount to a detriment (see further Northern Ireland Fire & Rescue Service and Another  v  McNally [2012] EqLR 821 Higgins LJ stated:-

 

“In determining whether or not an employer has victimised an employee for a prohibited reason, the Tribunal must look at why the employer has taken the particular act from his standpoint and whether the act has caused detriment from the point of view of the alleged victim.  An unjustified sense of grievance at the act of the employer cannot amount to a detriment, but if time-issue is the victim’s opinion that the treatment was to his detriment and that was a reasonable opinion to hold, that might suffice to prove detriment.  However it would require positive evidence and findings to that effect.  The distress has to be objectively reasonable.”

 

3.19    The Court of Appeal in England and Wales in the recent decision of Crawford  v  Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, has confirmed that, depending on the particular facts, a suspension could amount to a detriment for the purposes of the discrimination legislation.  In a footnote to the judgment, Elias LJ, obiter, (Paragraph 71) raised particular concerns about suspending employees for alleged gross misconduct and referring the allegation to the police; and indicated, in such a case, suspension “should not be a ‘knee-jerk’ reaction and it will be a breach of the duty of trust and confidence towards the employee if it is”.  He also stated that, even where there is evidence supporting an investigation, it does not mean that suspension is automatically justified.  He referred to the feelings of demoralisation and the psychological effect of suspension where there is exclusion from work and enforced removal from colleagues.  Of course, such matters, in an appropriate case, may be relevant to issues of remedy and injury to feelings. 

 

          Similarly, Elias J also made it clear that, when considering whether to refer a matter to the police, it is important for an employer, whilst taking into account the necessity for transparency and not to conceal wrongdoing, to remember that it is a heavy burden for an employee to be under the cloud of possible criminal proceedings.  Therefore he suggested, in an appropriate case, employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet ‘criminal’ being applied to the employee’s conduct.  On the facts, it was found the decision to suspend was not such a ‘knee jerk reaction’.

 

3.20    Harvey on Industrial Relations and Employment Law, Volume 3, Section P1, Paragraph 1006, and following, has summarised the effect of a previous judgment between the parties and finality of litigation, in the context of ‘cause of action estoppel and issue estoppel’:-

 

“1006       The effect of a judgment of an employment tribunal is that it is binding between the parties so as to prevent them from litigating the same issues are again in any future legal proceedings; or, to put it more precisely, such a judgment is covered by the doctrine of res judicata (or cause of action estoppel) and issue estoppel.  The rationale of this doctrine is that there must be finality of litigation and the avoidance of multiplicity of proceedings on the same issue.

 

...

 

1008        Therefore, where an employment tribunal has made a final determination on an issue, the parties are bound in any subsequent proceedings between themselves, whether in an employment tribunal or in a court of law ...

 

...

 

1013        For the doctrine of cause of action estoppel to operate, it is essential that there has been a judicial determination made after an investigation of the facts and the hearing of evidence, but also to the formal dismissal by a Tribunal of a claim on withdrawal by the claimant ...

 

...

 

1022        In cases where issue estoppel is raised on a defence in subsequent proceedings, it is normally essential that the issues in those proceedings are identical with those that were determined in the earlier proceedings and also that the findings of fact in the judgment in those earlier proceedings are clear and precise.

 

...

 

1023        ... for the defence of issue estoppel to succeed there must be an identity of issues in the two sets of proceedings.”

 

3.21    It has long been held that a litigant must raise all relevant points at the trial of the complaint he has brought.  The Courts have long adhered to the principle that when a litigant brings a case he must bring forward his whole case and will not, accept proceedings in respect of a matter which could and should have been litigated in earlier proceedings.  The starting point for this principle is the decision of the Court of Appeal in Henderson  v  Henderson [1843] 3 Hare 100.  In recent years the Courts have taken a more liberal approach to the potential harshness of the principle of Henderson  v  Henderson.  In Johnson  v  Gore Wood Ltd [2002] 2 AC 1 the House of Lords made it clear that although closely connected with cause of action estoppel and issue estoppel, the principle in Henderson  v  Henderson is a form of abuse of process.  Lord Bingham made it clear that two important matters arise, which alleviate the potential harshness of the principle, namely:-

 

(i)       there requires to be a broad merits based approach, taking into account all the circumstances should be taken;

 

(ii)      the onus is on the defendant to show abuse, rather than on the claimant to show special circumstances why the claim should be allowed to proceed:-

 

“  ...  It is, however, wrong to hold that because as a matter could have been raised in early proceedings of it in later proceedings necessarily abusive.  That is to adopt too dogmatic an approach to what should in my opinion be a broad merits based judgment which takes account of the public and private interests involved and also take account of all facts of the case, focusing on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before.”

 

In Bradford & Bingley Building Society  v  Seddon [1999] IWLR 1482, Auld LJ suggested the following elements which would be likely to render re-litigation on abuse, namely:-

 

          “(i)      a collateral attack on an earlier judicial decision;

 

           (ii)     dishonesty;

 

           (iii)    successive actions amounting to harassment of the defendant;

 

(iv)    pursuit of a claim after having pursued a mutually exclusive alternative claim;

 

(v)     pursuit of a claim previously abandoned.”

 

In a recent decision, in the employment context, Elias LJ in the case of Bon Groundwork Ltd  v  Foster [2012] IRLR 517, reviewed the authorities and stated inter alia:-

 

“The principle of res judicata can be summarised as follows : where an issue has been litigated before a judicial body and determined as between the parties, it cannot be re-opened.  It is binding as between them, and the parties are estoppel from re-opening it.  The issue may be one of fact or law.  However, the parties are only bound by an issue which it was necessary for the court to determine in the earlier claim.  It follows, therefore, that a finding of fact by an earlier court which is not a ‘necessary ingredient’ in the earlier course of action will not give rise to a ‘fact estoppel’.

 

...  the central question for the court when considering abuse of process in the Henderson  v  Henderson sense if whether the later proceeding involves the unjust harassment of a party; but that condition is not satisfied merely because a claim could have been brought in the earlier proceedings but was not ...  .”

 

4.1     In light of the facts as found by the Tribunal and, after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the Tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

4.2     In relation to the claimant’s claim of unfair dismissal, there was no doubt, in the judgment of the Tribunal, that the reason for the claimant’s dismissal was on the grounds of capability arising from her ill-health, which pursuant to Article 130(2)(a) and (3) of the 1996 Order is a potentially fair reason for dismissal.  In particular, the Tribunal is satisfied that the decision to dismiss the claimant for misconduct was put in abeyance and was never implemented.  The Tribunal, in determining the claimant’s claim of unfair dismissal, then had to determine whether the respondent had acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the claimant, pursuant to Article 130(4) of the 1996 Order.  If the reason for the claimant’s dismissal had been for misconduct it would have been necessary for the Tribunal to consider, in particular, in much greater detail than set out in the facts as found by it, the investigation carried out by the respondent in relation to the said disciplinary charges, which were the subject of the misconduct alleged by the respondent, together with the conclusions reached by the respondent, on foot of that investigation.  Since misconduct was not the reason for the dismissal which was implemented by the respondent it was not necessary for the Tribunal to do so. 

 

          In light of the representations made by Mr John McKeown, the claimant’s trade union representative at the dismissal hearing, where he properly and correctly persuaded the respondent not to dismiss on grounds of misconduct but rather on ill-health (ie capability), the Tribunal is satisfied the action of the respondent in dismissing her on such a ground was the only proper decision a reasonable employer could have taken in these somewhat unusual circumstances; and therefore the said decision fell within the range of reasonable responses, which a reasonable employer was required to adopt.  It is not without significance that Mr McKeown, at his subsequent meeting with Mr Faulkner on 6 June 2013, which was attended by the claimant, when it was confirmed to him the dismissal was to be on ill-health grounds, and not misconduct, did not seek to challenge the decision to dismiss on grounds of ill-health; but rather he sought to seek clarification on issues of notice and timing issues for any appeal, following termination.  The respondent, before deciding to dismiss on capability grounds, was entitled to obtain a Psychiatric report from Dr Curran to confirm the position in relation to the claimant’s health.  Indeed, to have failed to do so would have been a matter of concern to the Tribunal, despite the submissions of Mr McKeown.  This report and Dr Curran’s conclusions, in particular, as set out therein, in relation to the claimant’s state of health, was never the subject of challenge.  Indeed, Dr Curran’s conclusions were similar to the conclusions, which had been already reached by the claimant’s own medical adviser, Dr Doherty. 

 

          In the circumstances, in light of the medical evidence obtained but also the submissions of the claimant’s own trade union representative, the Tribunal is satisfied the respondent had reasonable grounds for believing the claimant was no longer fit for work and it was therefore appropriate for her to be dismissed on                  ill-health grounds.  The claimant did not appeal this decision. 

 

4.3     In light of the foregoing, the Tribunal concluded the dismissal was fair in the circumstances and the claim of unfair dismissal must be dismissed.

 

4.4     In relation to the claimant’s claim of discrimination by way of victimisation, pursuant to the 1976 Order and the 1998 Order, it was agreed that the claimant had done ‘protected acts’ pursuant to the terms of the said Orders and as identified and agreed, as set out in Paragraph 1.16 of this decision.  It also has to be noted that, in relation to the claimant’s said claim of discrimination by way of victimisation, the claimant was only relying on acts of victimisation relating to the dismissal process to which she was subject from on or about 23 February 2013, culminating in her dismissal by the respondent on or about 31 October 2013 (see paragraph 1.7 of this decision).  By 23 February 2013, the claimant had already been suspended and, following the disciplinary investigation by Murphy/Traynor, and the disciplinary hearing before Dame Keegan, the dismissal hearing before the Agnew Committee had been arranged for 26 February 2013.  On 6 February 2013, the decision of the Cross Tribunal had been issued.  Thus, the Tribunal were only concerned, in essence, for the purposes of the claimant’s claim of discrimination by way of victimisation, the events after 23 February 2013, which involved, in particular, the dismissal process involving the Agnew Committee and the final decision by the Governing Body to dismiss the claimant with effect from 31 October 2013, on grounds of ill-health.  Central to these events, were the disciplinary charges, which were before the Agnew Committee 

 

4.5     It is clear that the Cross Tribunal, in its decision, found that the suspension of the claimant was an act of victimisation, for which act the claimant was compensated; but, in particular, it made no criticism of the disciplinary process adopted by the respondent prior to the involvement of the Agnew Committee.  In light of the decision of the Cross Tribunal and the claimant’s agreement that the relevant period for this complaint commencing on 23 February 2013, it was not necessary for the Tribunal to further consider any issues of issue estoppel and/or res judicata and/or the rule in Henderson  v  Henderson (see further Paragraph 3.26 – 3.27 of this decision) arising from events before the 23 February 2013.  In essence, as the claim emerged during the course of the evidence given at the hearing, the central issue, for the purposes of this claim of discrimination by way of victimisation related to the action of the respondent in bringing the claimant before a dismissal hearing (the Agnew Committee) to consider her dismissal for gross misconduct on foot of the three charges of alleged misconduct, namely:-

 

“1.      You have taken a number of complaints against staff within the North West Regional College which have been made without sufficient grounds.

 

 2.      You failed to accept the findings determined by those charged with the responsibility to investigate and/or act as an appeal authority.

 

 3.      You have made it impossible for you to work in a collegiate way with colleagues and/or management within the school of hospitality, tourism and sport.”

 

4.6     The Tribunal was concerned about the serious lack of understanding and knowledge of all the respondent’s witnesses, who gave evidence to the Tribunal about this issue of discrimination by way of victimisation.  In the event, this lack of knowledge was not determinative of the matter.  However, there is clearly a training issue which requires to be addressed by the respondent in due course in relation to not only the administrative staff but also the members of the Governing Body.

 

4.7     There is clearly some overlap between the three charges, which may require to be considered further at any remedy hearing, in light of the Tribunal’s decision on the claimant’s claim of discrimination by way of victimisation (see later).  It also has to be noted the second charge was not ultimately upheld by the Agnew Committee.  Further, in relation to the first and third charges, although it was recommended by the Agnew Committee to the Governing Body that the claimant was to be dismissed for gross misconduct on foot of the first and third charge, this decision, as set out previously, was put in abeyance by the Agnew Committee and was not ultimately implemented by the respondent. 

 

4.8     The Tribunal, in deciding whether the claimant had been treated less favourably than others for the purposes of the 1976 Order and/or the 1998 Order for doing one of the protected acts, namely bringing complaints to her employer, had to consider, in particular, what was the reason why the claimant’s dismissal was required to be considered by the Agnew Committee on foot of these three charges.  As Higgins LJ stated in Northern Ireland Fire & Rescue Service and Another  v  McNally [unreported June 2012]:-

 

“The primary object of the victimisation provisions is to ensure that the employees who have taken steps to exercise their statutory rights are not penalised for doing so.”

 

Thus, if the reason for the bringing of the charges and the subsequent dismissal process was considered by the Tribunal to be because the claimant had exercised her statutory rights then, in the Tribunal’s judgment, a Tribunal could conclude the respondent had committee an act of discrimination by way of victimisation (see further the cases of Igen  v  Wong and Madarassy and the legal authorities referred to previously in Paragraph 3.10-3.14 of this decision).

 

4.9     The first charge to be considered at the dismissal meeting and which was the subject of the decision by the Agnew Committee to dismiss for gross misconduct, albeit that decision was held in abeyance and subsequently not implemented, in the tribunal’s judgment meant, in terms, the reason why the claimant was to be the subject of a dismissal process was because she had made complaints which she was entitled to do, but which had not been upheld following investigation as the claimant had not made out sufficient grounds.  Further, the claimant having exercised her right to make a complaint, albeit that complaint may have been weak and as a consequence not subsequently upheld was now being required to face a dismissal hearing on foot of that charge.  The Tribunal’s was satisfied to require the claimant to face such a charge, without more, was an act of discrimination by way of victimisation in the circumstances.  Further, to require her to face such a dismissal process on foot of such a charge was, in the Tribunal’s judgment, to her detriment, as defined in Shamoon, albeit at the conclusion of the process the decision to dismiss for gross misconduct on foot of that charge by the Agnew Committee was held in abeyance and not implemented. 

 

4.10    However, the Tribunal concluded that the reason why the claimant was required to attend the dismissal meeting on foot of the second and third charges was different.  In the Tribunal’s judgment, these charges were the consequences of the claimant making the complaint and were properly and genuinely separable from the making of the complaint itself (see Martin  v  Devonshire Solicitors).  Although these charges arose out of the said complaints, the reason, in the Tribunal’s judgment, for the bringing of the said charges and the said dismissal process to determine them was not the complaint itself but the consequence of those complaints, where the respondent believed the claimant was not accepting the decision of the outcome of the complaint and was not working with her colleagues and management in a collegiate way.  The Tribunal was satisfied that this was the reason for the bringing of the said charges (ie Charges 2 and 3) by the respondent and it was entitled to have those charges considered and determined, on foot of the relevant procedures by the Agnew Committee.  By doing so, the respondent had not committed an act of discrimination by way of victimisation, arising out of the second and third disciplinary charges. 

 

4.11    In the circumstances, the Tribunal therefore found the claimant was discriminated against by way of victimisation, pursuant to the 1976 Order and the 1998 Order; but only in relation to the bringing of the first disciplinary charge and the dismissal process carried out by the respondent to determine it.  As agreed, the claim of the claimant will be re-listed to consider any remedy to which the claimant is entitled on foot of the above decision.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing:         7 – 9 April 2015;

                                                  11 April 2015;

                                                  14 April 2015; and

                                                  20 – 22 May 2015, Belfast

 

 

Date decision recorded in register and issued to parties: