FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 68/16FET
CLAIMANT: Susan Quail
RESPONDENTS: 1. Belfast City Council
2. Gerry Millar
3. Cathy Reynolds
The decision of the Tribunal is that the claimant's claims are dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Murray
Members: Mr J McKeown
Mrs C Stewart
The claimant was represented by Mr P Boomer (accompanied by Ms McKee of NIPSA)
The respondents were represented by Mr P Ferrity, Barrister-at-Law instructed by Ms Murtagh of Belfast City Council Legal Services
1. The claimant claimed discrimination in the form of direct discrimination, harassment and victimisation on grounds of disability and on grounds of religious belief.
2. The impairment relied upon in the disability claim is the claimant's bilateral hearing loss which requires her to wear hearing aids in both ears. It was conceded by the respondent at hearing that the claimant suffered from a disability within the meaning of the disability discrimination legislation at the relevant time for these proceedings.
3. The issues for the Tribunal were therefore as follows:
(1) Whether the claimant was harassed by Mr Millar and/or Ms Reynolds as alleged and whether any such treatment was on grounds of her disability and/or religion;
(2) Whether the claimant was victimised as alleged following the meeting on 24 June 2015 with Mr Neeson and the raising of her grievance on 9 October 2015; whether either of those two events constituted protected acts in that they related to the relevant legislation; and whether any adverse treatment was connected in the requisite way to those alleged protected acts;
(3) Whether the review of grades and the consequent "categorisation process" were a sham and in reality aimed at moving the claimant from the North Foreshore work.
(4) Whether the claimant's claim is in time. There was no application to extend time as the claimant's clear application was that her claims were presented within the time-limit as they all formed a continuing act, the last act of which was within the three months before the date of the lodgement of the claim form.
SOURCES OF EVIDENCE
4. The Tribunal heard evidence from the following witnesses for the claimant's side:
(1) The claimant.
(2) Ms McKeown of NIPSA.
(3) Ms McKee of NIPSA.
(4) Mr Cowan.
(5) Ms McNally.
5. For the respondent the Tribunal heard evidence from the following:
(1) Mr Gerry Millar.
(2) Ms Cathy Reynolds.
(3) Ms Jean Oakes.
(4) Ms Stewart.
(5) Ms Dunlop.
(6) Mr Neeson.
6. The Tribunal had regard to all the written and oral evidence and the documentary evidence to which it was referred.
7. Discrimination on grounds of religious belief and political opinion is rendered unlawful by virtue of the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended ("FETO"). The provisions on direct discrimination and victimisation are set out at Article 3. The burden is on the claimant to prove facts from which the Tribunal could conclude that a detrimental act on prohibited grounds has occurred. The burden then shifts to the respondent to provide an explanation for the acts which is untainted by unlawful discrimination.
8. The provisions on harassment are also set out at Article 3A of FETO which states where relevant as follows:
"3A. (1) A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of-”
(a) violating B's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect."
9. The burden is on the claimant to prove facts from which the Tribunal could conclude that she suffered such unwanted conduct on grounds of religion, which had the required purpose or effect. If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to religion or that it did not have the alleged purpose or effect.
10. The burden of proof is dealt with at Article 38A of FETO which 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 or unlawful harassment against the complainant or
(b) is by virtue of Article 35 or 36 to be treated as having committed an act of discrimination or harassment against the complainant,
the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or as the case may be treated as having committed that act."
11. The Court of Appeal, in the case of Igen v Wong  IRLR 258 considered provisions equivalent to Article 38A of FETO, in a sex discrimination case, and approved, with minor amendment, guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Limited  IRLR 332.
The Barton guidance, as amended in Igen, provides, as follows:-
"(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word 'could' in s.63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, an inference that it is just and equitable to draw in accordance with s.74(21) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.
(8) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and; if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice."
12. In the case of Network Rail Infrastructure Limited v Griffiths-Henry  IRLR 865, the Employment Appeal Tribunal held that:-
"A Tribunal at the second stage is simply concerned with the reason why the employer acted as he did. The burden imposed on the employer will depend on the strength of the prima facie case ....
It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. Unfairness is not itself sufficient to establish discrimination."
13. The Court of Appeal in the case of Nelson v Newry & Mourne District Council  NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof. The court stated:
"22 The Court of Appeal in Igen v Wong  3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd  IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon  NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.
23 In the post- Igen decision in Madarassy v Nomura International PLC  IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-
'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter 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 allegations 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 in contesting the complaint. Subject only 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 as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'
That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.
24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland  NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the 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 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."
14. In S Deman v Commission for Equality and Human Rights & Others  EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-
"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."
15. In Laing v Manchester City Council  IRLR 748, the EAT stated at Paragraphs 71 - 76:-
"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.
(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.
(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.
(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage."
16. The Hendricks v Metropolitan Police Commissioner  IRLR 96 CA case involved a race discrimination case where the claimant alleged approximately 100 allegations of discrimination over a period of five years involving 50 or more of her fellow police officers. The issue for the Tribunal was whether the acts constituted a continuing act whereby the relevant three month time-limit would not begin to run until the date of the last act. The principle established by the Court of Appeal in the Hendricks case is outlined in Harvey Division L paragraph 562 which states as follows:
"In deciding whether a particular situation gives rise to an act extending over time it will also be appropriate to have regard to: (a) the nature and conduct of the discriminatory conduct of which the complaint is made, and (b) the status or position of the person responsible for it. Certain types of discriminatory insults, for example, will by their nature indicate that they have a continuing effect and are properly seen as part of a general regime of discrimination; so too discriminatory acts by a person of authority may be more likely to create a regime of discrimination than similar conduct by a person of lower authority within an organisation. Where there is evidence of numerous instances of discriminatory acts by different people over time the focus of the enquiry should not be on whether there is something that can be characterised as policy, rule, scheme, regime or practice - instead what is important is whether there is an ongoing situation or a continuing state of affairs in which the group discriminated against (be it defined by sex or race) and including the claimant was treated less favourably : Hendricks v Metropolitan Police Commissioner  IRLR 96 CA...
The claimant was held entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged instances of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period".
17. Provisions in relation to disability discrimination claims are set out in the Disability Discrimination Act 1996 (as amended) (the DDA) and the relevant provisions are framed in similar terms to the FETO provisions.
18. Direct discrimination is provided for at Section 5 of DDA, harassment is set out at Section 3B of DDA and victimisation is set out at Section 55. The burden of proof provisions set out above also apply to DDA claims.
FINDINGS OF FACT AND CONCLUSIONS
19. The Tribunal took account of the witness statements, the oral evidence, the submissions and the documentation to which it was referred, together with the claim and response forms to find the following facts. The Tribunal applied the relevant law to the facts to reach the conclusions set out below. It is important to note that this decision does not record all the competing evidence but records the primary findings of fact drawn from the evidence.
20. The claimant has been employed by Belfast City Council since August 2007 and remains employed by them. She was previously in the post of North Foreshore Manager in the Council's Development Department. That unit was moved in 2010 from that department to the Property and Projects Department and the claimant started after that point to work with Mr Millar and Ms Reynolds. It is the claimant's case that Mr Millar and Ms Reynolds treated her detrimentally, from the time she started working with them, because of her disability and religion.
21. The claim of harassment centred on the claimant's allegations that Mr Millar and Ms Reynolds both spoke to her in a different way to other employees in that they spoke to her as if she was a child. A further allegation was that Mr Millar on several occasions waved his arms at the claimant to get her attention and shouted to get her attention and that this was connected to her disability. The claimant stated that she felt harassed when Mr Millar told her the outcome of the review and how it affected her post.
22. The protected acts relied upon for the victimisation claims were, firstly, the raising of discrimination at the meeting with Mr Neeson on 24 June 2015 and, secondly, the claimant's lodging of her grievance on 9 October 2015. The claimant alleged that after the alleged protected acts she was excluded and treated in a condescending or disparaging way by Ms Reynolds, was prevented by Ms Reynolds from carrying out her work and was instead given the work of more junior staff.
23. The direct discrimination claims related to an allegation that there was a concerted effort by Mr Millar and Ms Reynolds to move the claimant from the North Foreshore Development work in order to boost Ms Reynolds' workload to enable her to gain promotion at a later stage. The claimant alleges that complicit in this were Ms Oakes and Ms Stewart of Organisational Development division, who carried out a review of the work of the North Foreshore Unit.
Review of North Foreshore Unit
24. The North Foreshore Unit was involved in the planning matters and applications for funding which were necessary in order to develop the North Foreshore area in Belfast. The North Foreshore Unit comprised the claimant as manager and a quantity surveyor, Mr Cowan who reported to her, together with Mr Lynch an engineer.
25. A structural review was directed in June 2012 by Corporate Management Team (CMT) and this included a review of the North Foreshore Unit. CMT comprised 6 people, 3 of whose perceived religious affiliation (PRA) was Protestant and three of whose PRA was Roman Catholic.
26. The claimant's case was that the review of North Foreshore Unit was motivated by a desire on Mr Millar's part to move her out of that division to the advantage of Ms Reynolds and that this was connected to the claimant's religious belief and/or her disability. We reject that claim as set out in this decision.
27. The background to this matter at the relevant time was the Local Government Reform (LGR) and the huge changes which came about as a result of that initiative. One of the outcomes of LGR was that Belfast City Council acquired extensive lands from the Lisburn and Castlereagh Council areas and, as a consequence, there was a huge increase in work for the relevant department in Belfast City Council which dealt with the council's land bank. There were also various political and financial pressures. All of these factors led Mr Millar to look at his division to see how best he could spread his existing resources (including people) over the increased workload.
28. In assessing this, Mr Millar as a senior manager knew that the North Foreshore Unit was a "standalone unit" working on that specific project. He knew that two sources of European Funding had not come through as those applications for funding had failed for various reasons. The initial vision of the North Foreshore development, which was that it would develop into a leisure park, had changed and the revised plan was that there would be development in three different areas namely, waste, leisure and Cleantech. In addition the initial vision which was that the respondent would retain ownership of the North Foreshore had changed to a plan for the respondent to divest itself of the North Foreshore. This meant that a professional qualification as a Chartered Surveyor was a key requirement for those involved in managing the North Foreshore work.
29. It was undisputed by the claimant that;
(i) applications for funding had failed and at that time there was no funding in the pipeline for the North Foreshore Unit;
(ii) the vision had changed for that area as outlined above;
(iii) a change of governance arrangements was necessary in that the North Foreshore Unit had to be connected to the larger department (which was under Ms Reynolds' authority) in order to secure funding.
30. In addition, the way of working in the Department was changing in view of the increase and change in the workload, whereby rather than having standalone units on specific developments, staff were expected to work on several developments simultaneously. The aim of this was to make best use of the people and expertise available.
31. It was Mr Millar's evidence (which we accept) that little had happened in the North Foreshore for two years because of the lack of funding and the lack of imminent funding. The review therefore included the North Foreshore Unit with a view to making recommendations for the way forward.
32. The review was conducted by Ms Oakes and Ms Stewart who are job evaluation experts in the Council.
33. Ms Oakes and Ms Stewart's statements for the Tribunal largely replicated each other in relation to the process adopted and the decisions taken about the review and the categorisation process which followed it. Ms Oakes in evidence emphatically denied that she had seen Ms Stewart's statement before drafting her own and could give no explanation for the duplication. This evidence was most unsatisfactory and tainted Ms Oakes' evidence generally for us.
34. Mr Boomer submitted that the Tribunal should attach no weight to any evidence given either by Ms Oakes or Ms Stewart as a result of what he termed their collusion in giving their evidence. Whilst this issue tainted Ms Oakes' evidence in particular, we do not accept that we should ignore entirely the evidence given by these two witnesses, particularly when documentary evidence supported some of the points they made.
35. The allegation against the Review Team was that they simply carried out what Mr Millar wanted them to do which was to move the claimant off the North Foreshore work. We do not accept that case for the following principal reasons:
(1) There were cogent reasons for having the review conducted and none of these reasons related to the claimant as an individual nor to the claimant's disability or religion. Having assessed all the evidence presented to us, we find that there was a management imperative to ensure that resources (ie people and skills) were used efficiently. The outcome of the review was clearly in line with that and none of the reasons given in the review outcome related to the claimant as a person but rather related to the post.
(2) The claimant did not actually move away from the North Foreshore work in that she still worked on it albeit that she worked in a different structure and had other duties too.
(3) If it really had been Mr Millar's intention to remove the claimant from North Foreshore work, he could simply have pressed for the claimant to be actually made redundant as a key outcome of the review was that her post was redundant. The fact that the categorisation process was applied in order to ensure that the claimant retained her grade and salary, points away from that motivation.
(4) We specifically reject the allegation that Mr Millar somehow misrepresented the work of the North Foreshore Unit to the review team.
36. The outcome of the review in December 2012 was that the North Foreshore Unit was abolished. Mr Lynch and Mr Cowan were moved into a new structure reporting to Ms Reynolds and the claimant's post was deleted as it was found to be underused given the lack of progress on development due to the funding gap.
37. The recommendation of the review was that, as that post was redundant, the claimant should be subjected to the "categorisation process" (ie placed in another role) to ensure that she was not made redundant. It was the claimant's case that this process was not actually followed and that the respondent's evidence on this was a sham to cover the fact that the claimant was effectively moved out of her job unfairly and for discriminatory motives. We reject the claimant's case on this as set out below.
The categorisation process
38. The categorisation process involved trying to match the claimant to the nearest equivalent post as a positive alternative to redundancy as it would not involve the loss of job nor a loss in pay or grading. The claimant alleged that this process was not carried out at all, that she was not consulted and that no information was given to her.
39. Ms Oakes and Ms Stewart carried out the assessment and made proposals to a categorisation panel for a decision. The proposal about the post was also sent to the TU for comment and no comments were received. The decision was that, given the weight of the claimant's work, she should be assimilated to a new post of Planning and Development Officer in Ms Reynolds' team. Neither Mr Millar nor Ms Reynolds was involved in the categorisation process.
40. When it was revealed to the claimant by Mr Millar that she was to be a Planning and Development Officer she protested at being described as an Officer. He agreed to ask the assessors to designate that post as a manager. He did so and the job title was changed to Planning and Development Manager. We reject the claimant's allegation that Mr Millar harassed her in some way in this encounter.
41. It was common case that the claimant's post was deleted. It was also common case that the claimant had sight of the review report on 22 January 2013 and that clearly sets out in the following paragraph that her post was deleted, that she should be subject to categorisation process to go into a job which was graded at PO6 i.e. two grades lower than her P08 job. The recommendation was that she should retain her grade and her pay as "personal to holder". The relevant extract states as follows:
"Having analysed the information, the following is recommended:
Â§ The post of NFS Manager should be deleted
Â§ A new post of Planning and Development Manager should be created (notional grade PO6) to assist with the delivery of a wider range of projects managed through the Estates Management Unit.
The following implications should be noted:
Â§ The categorisation procedure will be applied to ensure that the current post of NFS Manager is not in a redundancy position. It is anticipated that the post will be categorised into the new post of Planning and Development Manager. (categorisation process organised by OD)
Â§ The new post of Planning and Development Manager is two grades lower - the NFS Manager will remain personal to holder (currently being paid salary scale PO8)."
42. An independent panel approved the categorisation process which applied to the claimant. It was the claimant's case that this panel did not sit at all and her reason for making this allegation related to the lack of notes of that meeting and the lack of a sign-off sheet which was signed by the Chief Executive to confirm that she should move to her new job.
43. It is clear from the contemporaneous emails that a panel meeting took place which approved the claimant's move and we had uncontroverted evidence that the panel was of mixed religious affiliations. Ms Stewart gave evidence about what happened at the meeting because she was there. We accept her evidence. We reject Mr Boomer's point that it was for the respondents to call the members of the panel. It was open to the claimant to call to give evidence any members of the panel for them to be questioned as to whether their meeting actually took place if the claimant truly believed this surprising allegation which would have involved the fabrication of evidence comprising numerous emails relating to this meeting.
44. The claimant's side invited us to conclude from the lack of documentation to do with the categorisation process and the other alleged flaws identified by the claimant that the process was tainted by unlawful discrimination in the form of disability and religious discrimination. We reject that claim for the reasons set out in this decision.
45. The claimant's case in tribunal appeared to be:
(i) On the one hand that she was demoted and subjected to a detriment by being put in a job two grades lower than her previous job, albeit that she retained her grading and pay. We find that that is what actually happened. Using the Shamoon test we find that that constituted a detriment as, whilst she retained her grade and pay as personal to holder as an alternative to redundancy, she suffered a loss of status and a removal of her line management responsibilities. Whilst this constituted a detriment, it was unconnected to the claimant's disability or religion.
(ii) On the other hand the claimant maintained in tribunal that her work did not change and that she retained the grade of P08 to reflect that. We reject the claimant's point on this. It is clear from the papers that the claimant determinedly tried to proceed on the basis that she still managed her team and continued to call herself North Foreshore Manager despite the changes in structure and title and despite specific instructions to the contrary from Ms Reynolds and others.
46. The respondent's position was that the claimant was no longer the manager of the North Foreshore project but that she did have an input into it. It had come under Ms Reynolds' management and Ms Reynolds therefore was the responsible manager. In our assessment the outline in the claimant's statement of her being "sidelined" actually bolsters the respondent's case that things had changed following the review despite the claimant's assertions to the contrary.
47. The claimant was sent a letter from HR to tell her that she had changed job and it enclosed a job description. There was potentially some confusion because that job description had "PO8" written on it. This was the grade the claimant retained personally whereas the post was graded as PO6. The claimant relied on this in tribunal to assert that her job did not change and neither did her grade.
48. The claimant seemed to believe that if she did not sign the job description that she could proceed as if nothing had happened even in the face of strenuous efforts by Ms Reynolds to get her to adhere to the new management structure and lines of responsibility. The claimant was not happy about the outcome of the review and that is clear from the documents which we have seen; however, that does not mean that the claimant did not know what the outcome was.
49. We find that the claimant knew exactly how the outcome of the review applied to her. We find that the outcome of the review did not constitute discrimination on any grounds. We do not believe that the claimant really thought that her job had not changed. She was however determined to act as if it had not changed.
50. We find that Mr Cowan's evidence (which at its height was that the claimant was sidelined from North Foreshore work) did not assist the claimant in her religious discrimination claim as he was clearly very unhappy with the outcome of the review because of his perception that the review disparaged or undervalued the work of the unit he was in and because his unit ended up being absorbed into Ms Reynolds' larger unit. Mr Cowan's description of Ms Reynolds as domineering, overbearing and bullying echoed the claimant's description. As set out in this decision we reject that portrait of Ms Reynolds and Mr Cowan's evidence in this regard therefore tainted his evidence generally for us.
Assistant Estates Manager Post and Team Leader Post
51. The claimant alleged that, rather than being subjected to categorisation, she should have been placed in the post of Assistant Estates Manager (AEM) which was a P08 post present on the organisational structure. It was common case that that post had been unfilled for a long time and it was the respondent's case that it was dormant.
52. Ms Oakes' evidence was that this was not considered because there was no finalised job description for that post. She further stated that the claimant's lack of qualification as a Chartered Surveyor would not have been a bar to her being considered for that post if there had been a job description in place. The latter evidence conflicted directly with the evidence of Mr Millar and Ms Reynolds that the AEM post required a Chartered Surveyor qualification due to the nature of the work and the associated requirement for that professional qualification.
53. Given the unsatisfactory nature of Ms Oakes' evidence generally and the fact that she became very confused when asked about this process, we find that the evidence of Mr Millar and Ms Reynolds should be preferred on this point.
54. We therefore accept the evidence of Mr Millar and Ms Reynolds that the AEM and Team Leader posts required a professional qualification as a Chartered Surveyor. The principal reason given by them for this was that Estates Management (which was what they were primarily engaged in) required specific professional expertise and membership of the relevant professional associations in order to deal with disposals of land, negotiation of leases and rent reviews, and valuations of land and leases. This related to the increase in that type of work firstly, because of the increase in the land bank held by the respondent due to the transfer of tracts of land from both Lisburn and Castlereagh Borough Councils, and secondly, due to a change in plan for North Foreshore whereby the respondent intended to divest itself of the property. Valuations by those holding the necessary qualification were therefore a key necessity for the relevant legislation and for funding.
55. A decision was taken that, as an interim measure, three Team Leaders should be appointed at P08 level to do the work of an AEM. The reason for these being interim appointments essentially related to the fact that things were in a state of flux because of the increase and change in work and the ongoing reorganisation of the way the Department as a whole worked.
56. The point made by the claimant in relation to the Team Leader Post was that an expression of interest was sent out when she was on holiday to ensure that she could not apply. In tribunal she added to that to state that the Chartered Surveyor qualification was unreasonably included as a requirement in order to ensure that she could not apply.
57. Contrary to the claimant's evidence, the period for submitting an expression of interest had not expired by the time the claimant had returned from holiday. In addition the fact that these posts were about to be advertised internally had been previously flagged up to all staff, including the claimant, by Ms Reynolds at a management meeting. In that meeting the claimant did not raise any protest about there being a Chartered Surveyor qualification requirement. During the tribunal hearing the claimant changed her evidence and then stated that she would not have had a lot of time to complete the application form. This change in evidence tainted the claimant's evidence generally for us.
58. We do not accept any point made for the first time in the tribunal hearing by the claimant's side that she had equivalent qualifications which meant that she could carry out the Team Leader post as that point was not flagged up in the interlocutory process, was not in the claim form, and was not raised at the relevant time in the grievance. We accept the evidence of managers that it was a requirement of funding that managers engaged in this work needed to have professional membership of relevant associations as this was uncontested by the claimant. There was no detailed evidence given about the equivalence of qualifications point and this was not put in cross-examination to Mr Millar or Ms Reynolds when they gave their evidence about the requirement for these professional qualifications.
59. The net effect of this is that we reject any suggestion that there was unlawful discrimination suffered by the claimant in relation to the interim Team Leader post. We accept the cogent reasons given by Ms Reynolds and Mr Millar for the Chartered Surveyor qualification and we find that if the claimant had wanted to apply she had had time to do so.
Appointment of Adrian Ferguson
60. We find that the trigger for the claimant's perception that she had been adversely treated because of her disability and religion was the fact that Mr Ferguson was appointed as one of the interim Team Leaders and, as such, he became her line manager from 18 May 2015. It was the claimant's perception that he was more junior to her and she was very unhappy at having to report to him. He was in a Team Leader post at P08 (on an interim basis) and, whilst the claimant held P08 grading personal to herself, her actual post was at P06 level. The claimant effectively would not recognise that Mr Ferguson had achieved temporary promotion.
61. We find that the claimant's annoyance at having Mr Ferguson as her line manager led her to decide to look again at the review process and at the categorisation process which had happened several years before. She did this in an effort to characterise her perceived unfair treatment as some form of discrimination.
62. The claimant's case was that, after she raised discrimination at a meeting with
Mr Neeson on 24 June 2015 and after she raised a grievance on 9 October 2015, Ms Reynolds treated her detrimentally and thus victimised her.
(i) Meeting with Mr Neeson - 24 June 2015
63. The first issue for us is whether a protected act occurred in this meeting i.e. whether the claimant did something under, or by reference to, the relevant legislation. There was a lot of debate at hearing in relation to whether issues of disability or religious discrimination were raised at the meeting with Mr Neeson on 24 June 2015. Ms McKee, the trade union official who was at that meeting, was adamant in evidence that the raising of the issue of discrimination, without specifics, encompassed disability and religious discrimination. We have studied carefully the transcript of that conversation (as it was recorded by the claimant) and it is clear that the point being made by the claimant and her trade union representative in the meeting was that the discrimination consisted of the fact that Mr Ferguson was put in a position of managing the claimant when (in the claimant's eyes) he was more junior to her. There was absolutely no reference to religion or disability. Indeed the claimant in her statement to this tribunal states that the reason for the meeting was:
"... to discuss the new reporting structures and to particularly question why an interim Team Leader who was acting up to the same grade as my substantive grade was my line manager."
64. Whilst we accept that in general it is not the case that it is up to a claimant necessarily to flag up the type of discrimination she believes she is being subjected to, it is an element to be weighed in the balance in our deliberations on whether this constituted a protected act in this case. This is a case where the claimant gave evidence to the Tribunal that she knew that her adverse treatment over the previous five years was on grounds of her religion and disability. It is therefore legitimate for us in those circumstances to question why this was not specifically raised by her trade union official nor by the claimant herself at the meeting with Mr Neeson.
65. We conclude that the true nature of the claimant's concerns was in relation to the fact that Mr Ferguson had been promoted and was her manager when she believed that he was more junior to her. At that time the claimant did not connect this to her disability or religion nor were there grounds for her to do so. We therefore find that no protected act occurred in this meeting.
(ii) The grievance of 9 October 2015
66. It was part of the claimant's case that spurious allegations were made by Ms Reynolds against her, in order to tarnish her name. We reject that allegation.
67. Mr Millar and Ms Reynolds gave uncontradicted evidence that several very serious issues had been raised with the claimant. These concerned the fact that she continued to call herself the North Foreshore manager when she no longer held that post, she took decisions and engaged external consultants (which incurred a financial cost to the Council) without her manager's knowledge or permission, and she continued to refuse to comply with Ms Reynolds instructions to abide by the new structure and lines of responsibility. Indeed the claimant actively undermined Ms Reynolds' managerial role in relation to North Foreshore work.
68. We accept the evidence of Mr Millar and Ms Reynolds on this point as it fits in with the approach taken by the claimant which was to pretend that nothing had changed following the review and to ignore the fact that Ms Reynolds had responsibility for the claimant and for the North Foreshore project. This stance by the claimant flew in the face of what she had been clearly told about the reorganisation and its effects on her role. Unfortunately for the claimant her wishful thinking could not reverse the outcome of the review.
69. Ms Reynolds had raised serious concerns about the claimant's behaviour with the claimant at a meeting in May 2015 and then in an email to HR of 6 October 2015. Ms Reynolds had very strong grounds for raising these serious issues none of which had a connection with the claimant's religion or disability and she raised them before the grievance.
70. We therefore reject the claim of victimisation as:
(i) Ms Reynolds had raised serious issues with the claimant about her behaviour in May 2015 which was before the meeting with Mr Neeson;
(ii) There was no evidence that Ms Reynolds knew about the content of the meeting with Mr Neeson;
(iii) Ms Reynolds also raised valid serious issues about the claimant's behaviour in writing on 6 October 2015 which was before the grievance raised by the claimant raised on 9 October 2015;
(iv) We reject the claimant's case that she raised issues of discrimination on grounds of disability or religion at the meeting with Mr Neeson. We find that no protected act occurred in that meeting so any alleged adverse treatment subsequent to that cannot amount to unlawful victimisation. To be clear the chronology does not bear out any allegation that Ms Reynolds treated the claimant adversely in response to any protected act on 24 June 2015 or 9 October 2015 as
Ms Reynolds' valid concerns about the claimant's behaviour were raised before those acts. We specifically reject the claimant's additional allegation that Ms Reynolds prevented the claimant from carrying out her work and that she inappropriately allocated junior level work to her.
71. We therefore reject the claim that there is evidence from which we could conclude that acts of discrimination in the form of victimisation occurred.
Knowledge of disability
72. The claimant's case was that Mr Millar and Ms Reynolds in particular knew from the outset that she had a hearing impairment and that this was behind their allegedly detrimental treatment of her. Both Mr Millar and Ms Reynolds emphatically denied that they knew that the claimant had a hearing impairment stating that they could not see her hearing aids because she wore her hair long and they were not aware of any related difficulties from the way the claimant did her job. We were shown photographs of the claimant to demonstrate her hair style at that time which did indeed cover her ears. It was common case there were no adjustments in place (nor were they required) to facilitate the claimant's hearing impairment.
73. We heard evidence from Ms McNally, the claimant's Trade Union representative who stated that she specifically told Mr Millar and Ms Reynolds on 13 October 2010 that the claimant had a hearing impairment and gave great detail of that encounter. On her evidence she told Mr Millar and Ms Reynolds of the claimant's hearing impairment after they expressed concern about the claimant's attitude. On her evidence they made no response whatsoever to the further information she allegedly imparted in great detail about hearing impairments. That encounter was emphatically denied by both Mr Millar and Ms Reynolds.
74. We found the evidence of Ms McNally unsatisfactory and note that she has raised a grievance against Mr Millar. We find her account inherently implausible (i.e that there was no response whatsoever from Mr Millar and Ms Reynolds) and we therefore reject her evidence that there was such a discussion and accept Mr Millar's and Ms Reynolds' denial of the conversation.
75. It was noteworthy that the only matter relied upon by the claimant for this aspect of the case was her allegation that they must have seen her hearings aids, particularly when she was out on site and her hair was blown by the wind. At no point until the hearing in tribunal did the claimant's side allege that the claimant's mode of speech constituted a clear indicator that she had a hearing impairment.
76. We do not accept that the claimant's mode of speech, of itself, would indicate a hearing impairment. This point was not made by the claimant in her evidence, was not put to the respondent's witnesses and was mentioned for the first time by one of the claimant's witnesses in the course of their oral evidence. We also accept that the claimant's hair style covered her ears.
77. We have weighed up the evidence and assessed the demeanour of the relevant witnesses and their reliability and credibility generally and we find on a balance of probabilities Mr Millar and Ms Reynolds were not aware at the relevant time that the claimant had a hearing impairment. As set out below we found Ms Reynolds to be a particularly impressive and credible witness.
78. Even if both Mr Millar and Ms Reynolds did have knowledge of the claimant's hearing impairment, an issue for us is whether or not any adverse treatment was related in the requisite way to the claimant's disability. In other words, it is for the claimant to prove facts from which we could conclude that any alleged adverse treatment by them was either consciously or unconsciously motivated by the fact she had a disability in the form of a hearing impairment.
79. In relation to the arm waving, the claimant's case was that Mr Millar did this approximately 12 times over a period of six years (the last being 20 May 2015) which means that, on her case, he did this twice a year. Even if those acts occurred, we are not convinced that this might have been on grounds of her hearing impairment. Such infrequent waving of arms to get the claimant's attention is not inherently related to any hearing impairment in our view. We accept Mr Millar's evidence that if he did wave his arms he did not do so to get the claimant's attention because she had a hearing impairment, as we have accepted he did not know of her hearing impairment at that time.
80. The only comparator relied upon in the case by the time of the tribunal hearing was Ms Reynolds. At the outset of the hearing Mr Ferguson was stated to be relied upon as a comparator solely in relation to the disability claim but that was abandoned at the submissions part of the hearing. Mr Ferguson was not relied upon in the FET claim because he is a co-religionist of the claimant.
81. We do not find that Ms Reynolds is a valid comparator for the following principal reasons:
(1) She was a manager who was senior to the claimant at all relevant times.
(2) She was a qualified Chartered Surveyor (in contrast to the claimant) with wide-ranging managerial responsibilities and numerous staff reporting to her.
(3) She was not in the North Foreshore Unit and was therefore not subject to that review and there was nothing untoward about this.
(4) The fact that the North Foreshore work came under her responsibility after the review does not mean that we could conclude that the review was connected to the claimant's religion or disability. It is clear that Ms Reynolds' duties and responsibilities increased hugely because of the wider increase in work due to a wider reorganisation, none of which was to do with Ms Reynolds nor with the claimant and her position.
(5) A key difference between the claimant and Ms Reynolds was that the claimant was in a standalone unit whose work had effectively stalled at the relevant time because of a funding gap. That did not apply to Ms Reynolds' position where she was a more senior manager with a Chartered Surveyor qualification; she had responsibility for several projects; she had an increasing workload and she had numerous staff.
Credibility of witnesses
82. We found Ms Reynolds in particular to be a particularly impressive witness. Having assessed the transcripts of several key conversations which were recorded covertly by the claimant, they do not support the picture put forward by the claimant of Ms Reynolds as someone who acted in a domineering, difficult, abrasive way with her. In contrast Ms Reynolds came across in the transcripts (and in our hearing) as extremely patient and, whilst she had ample grounds to be frustrated at the claimant's obstructive attitude, this did not manifest itself, in an overbearing or disparaging demeanour or attitude. The claimant's evidence on this was therefore not consistent with the transcripts and tainted her reliability generally for us.
83. We accept that Ms Reynolds' evidence was supported by Ms Dunlop that the claimant was hostile and uncooperative in meetings. This is also corroborated by contemporaneous documents because these were the matters that Ms Reynolds was speaking to the claimant about. These were also in line with the uncontested facts that the claimant was arranging meetings, keeping papers from her managers and incurring costs without reference to her managers in relation to the North Foreshore project.
84. We found the claimant to be an unreliable witness who was not entirely credible. Our reasons for this assessment are principally related to the following:
(1) We reject the adverse picture she painted of Ms Reynolds as this was not borne out by the covert recordings.
(2) The claimant covertly recorded meetings and provided transcripts for the hearing at a belated stage. She altered the transcripts and only admitted to this when it was put to her. This tainted her reliability for us.
(3) The claimant's evidence changed in relation to whether she was able to apply for the Team Leader post. At first she emphatically alleged that the expression of interest was issued when she was holiday in an effort to ensure that she could not apply. She however accepted that she had returned from holiday several days before the deadline and she therefore could have applied but then stated that she did not have enough time to do so.
(4) The claimant raised a point about having equivalent qualifications to a Chartered Surveyor. She raised this in tribunal whilst not disputing Mr Millar's and Ms Reynolds' evidence that that professional qualification was an essential requirement for the work to be carried out.
85. The last alleged adverse act occurred before the claimant went off on sick leave. She was off on sick leave from 16 November 2015 until 7 June 2016 and was clear in her evidence that there were no adverse acts after November 2015.
86. In preparation for the hearing, the claimant's side relied for the first time on the fact that the grievance was taking so long to be dealt as an act of discrimination. That was not in the claim form and appeared for the first time in the claimant's witness statement. It was not relied upon as an act of discrimination before that point and is therefore not part of the claim of discrimination before us. The fact that the grievance has taken so long is not a fact from which we could conclude that discrimination occurred in circumstances where this was not an act complained of in the claim form. The grievance process is separate from the allegations of discriminatory acts in the claim before the Tribunal.
87. The three months, therefore ran from 16 November 2015 at the latest and the claim form was lodged on 15 August 2016. It was therefore lodged outside the three-month time-limit. The claimant has not sought an extension on just and equitable grounds. Even if the claimant had sought an extension, there was no evidence of grounds for extending time in view of her evidence that she believed from an early stage that she was being subjected to discrimination on grounds of disability and religion and she had the benefit of advice and assistance from her Trade Union officials throughout the relevant period.
88. The claimant fails on the time-point but we have recorded our findings on the substantive claim given the extent of the evidence and given the protracted and bitter nature of the dispute that the claimant has had with her employers.
89. The claimant at hearing maintained that, on one hand, her job continued essentially unchanged as before whereas, on the other hand, work was taken from her and she was sidelined and excluded from meetings and work. This was a contradictory position for the claimant to adopt.
90. We do not accept the claimant's account of Ms Reynolds and Mr Millar speaking to her in a bullying or condescending way because of her disability or religion due to our concerns about the reliability of the claimant and her witnesses generally and due to the fact that we found Ms Reynolds and Mr Millar to be credible convincing witnesses.
91. Essentially the claimant's claim on the religious discrimination claim was that some of the people who made decisions or were involved in the review, were Roman Catholic and she was Protestant and that this therefore indicated discrimination. That is not enough in our judgement to shift the burden of proof in the context of all of our factual findings.
92. The claimant's approach in her claim of disability and religious discrimination was to seek to show a difference in status and difference in treatment between herself and her comparator Ms Reynolds. We find that she is not a valid comparator as set above.
93. The detrimental treatment alleged namely placing the claimant in a lower grade post albeit whilst retaining her pay and seniority as an alternative to redundancy did amount to a detriment generally as she thereby lost status and line management responsibilities. However we find that the claimant was regraded on valid grounds unconnected to religion or disability as the regrading followed a wider reorganisation. We find nothing in the review and regrading process that could lead us to conclude that acts of unlawful discrimination had occurred.
94. We reject the claim of harassment on grounds of disability given our findings on the knowledge point.
95. We reject the victimisation claim as set out above. There was no protected act in the meeting with Mr Neeson. There was a protected act in the grievance because disability was mentioned but there was no connection between the grievance and any alleged adverse treatment.
96. In all of this there was clear frustration on the part of managers and Ms Reynolds in particular that the claimant would not accept the outcome of the review and would not comply with the new structure which had been put in place because of the wider reorganisation. Ms Reynolds was trying to manage the claimant and the North Foreshore work and she was right to speak to the claimant for making decisions and incurring costs without authority.
97. In our estimation Ms Reynolds acted as an extremely patient manager in trying to keep the claimant on board by explaining the new structure and responsibilities to her. We accept Ms Reynolds' evidence which was that the review and its outcome were nothing to do with her and that she had to try to manage the claimant and her workload within the new structure. The claimant's refusal to accept Ms Reynolds' authority in the new structure is regrettable. We find that Ms Reynolds was trying to do her job in the face of an unreasonable lack of cooperation from the claimant. We can understand why Ms Reynolds finally passed the matter to her manager and HR for consideration of disciplinary action against the claimant due to the serious implications of the claimant's continued behaviour.
98. In summary the claimant failed to prove facts from which we could have concluded that any acts of discrimination in the form of direct discrimination, victimisation or harassment occurred on grounds of disability and/or religion. As she failed to prove such primary facts the burden would not have shifted to the employer even if the claim had been in time.
99. The claimant's claims are therefore dismissed in their entirety.
Date and place of hearing: 15, 16, 17, 18, 19, 22 and 23 May 2017, Belfast.
Date decision recorded in register and issued to parties: