Fair Employment Tribunal Northern Ireland Decisions

THE FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 19/16FET,

80/16FET

355/16

1969/16

 

 

CLAIMANT: Brendan Wright Personal Representative of the Estate of Colette Anne Wright Deceased

RESPONDENTS: 1. Belfast Bible College Ltd

2. Alan McCormick

 

 

DECISION

The unanimous decision of the Tribunal is that all discrimination claims are dismissed. By agreement of the parties, the Tribunal orders the first named respondent to pay the claimant the sum of £1,099.00 in respect of unpaid wages.

 

Constitution of Tribunal:

 

Employment Judge: Ms J Knight

 

Members: Mrs D Adams

Mr I Atcheson

 

 

Appearances:

 

The claimant was represented by Mr G Wilson, independent legal consultant and employment tribunal advocate.

 

The respondent was represented by Mr R Taylor, Litigation Consultant, Croner Group Limited.

 

Background

 

1.             Mrs Colette Wright was employed by the first named respondent, Belfast Bible College Ltd as a part time receptionist from 11 November 2003 until 29 April 2016 when her employment terminated through a voluntary redundancy package.

 

2.             Mrs Wright tragically died on 18 February 2017 in circumstances which the tribunal recognises are very difficult to bear for her surviving husband and children and we are very sorry for their loss. Mr Wright was appointed Personal Representative of the Estate of the Deceased and continues these claims in that capacity. In this decision when we refer to "the claimant" we mean Mrs Wright.

 

3.             The first originating claim form dated 13 January 2016, received by the Office of the Tribunals on 22 January 2016 complained that the claimant had been subjected to:

 

                      i.         Direct religious/political discrimination contrary to the provisions of the Fair Employment and Treatment (NI) Order 1998 as amended ("FETO"). It was claimed that on occasion the claimant suffered embarrassment because of her Catholic minority background. It was alleged that Mr McCormick had drawn the claimant's "Catholic minority background status" to the attention of other members of staff, that on one occasion was aggressive towards her and that staff "have often been surprised at her Catholic background". It was further alleged that the claimant was informed on 4 November 2015, without any warning or consultation that she had been selected for redundancy.

 

                    ii.         Indirect Sex Discrimination contrary to the provisions of the Sex Discrimination (NI) Order 1976 as amended ("SDO") in that the respondent's redundancy process targeted Administrative staff who are solely comprised of female staff.

 

                   iii.         Direct age discrimination and victimisation contrary to the Employment Equality (Age) Regulations (NI) 2006 ("Age Regulations") on the basis that the claimant was selected for redundancy, she was 60 years of age and among the oldest of the respondent's employees at the time.

 

                   iv.         Failure to consult contrary to Part XIII of the Employment Rights (NI) Order 1996 ("the 1996 Order").

 

                    v.         Unlawful victimisation contrary to the provisions of FETO and the Age Regulations in the failure of the respondent to pay the claimant her full wages for December 2015, that she only received £270.00 for her wages when she should have been paid £670.00 net, and

 

                   vi.         Unauthorised deductions from wages/the failure to provide itemised pay statements contrary to Parts IV and III of the 1996 Order.

 

4.             On 18 October 2016 an application to amend the originating claim form was granted to amend the first originating claim to include a further claim of unlawful victimisation by reason of not being paid any wages at all on 25 January 2016 (pay day).

 

5.             A second originating claim form dated 12 September 2016 was lodged by Mr Wilson on behalf of the claimant with the Office of Industrial Tribunals and the Fair Employment Tribunal on 20 September 2016 which complained that the respondent had further unlawfully victimised the claimant in failing to provide an "agreed reference" which was requested by her representative in a letter dated 5 September 2016 addressed to Mrs Hazel Harris at the College.

 

6.             An Order was made by Tribunal on 28 October 2016 consolidating the claims.

 

7.             The Bible College and Alan McCormick, Dr Patrick Mitchel, Hazel Harris and Coleen Armstrong, employees of the first named respondent were initially all named as parties to the proceedings. At a Case Management Discussion on 20 December 2016, the claims against the third, fourth and fifth named respondents were withdrawn on behalf of the claimant. The claimant continued the proceedings against her employer and Alan McCormick, the second named respondent. Her case was that Mr McCormick, as an Evangelical Protestant, was prejudiced against the claimant because she was a Roman Catholic from a perceived Nationalist background and he instigated the alleged discriminatory treatment for this reason.

 

8.             Both remaining respondents denied the claims and asserted that they had not unlawfully discriminated against the claimant on grounds of religious belief/political opinion, age or sex, as was alleged, either directly or indirectly or by way of victimisation.

 

9.             There were a number of Case Management Discussions held between 18 April 2016 and 28 November 2018 and a number of directions were made concerning arrangements for the hearing of the case. These included the use of witness statements.

 

Issues

 

10.          The parties provided an agreed list of legal and factual issues to be determined by the Tribunal as follows:

 

Jurisdiction - Time Limits

 

11.          Whether any of the claimant's discrimination claims have been presented outside the statutory time limits; and if so,

 

12.          Whether it is just and equitable to extend the statutory time limit for presenting the claim.

 

Direct Discrimination - Religious Belief/Political Opinion

 

13.          Whether the claimant was treated less favourably than a hypothetical Evangelical comparator on grounds of her religious belief. The Tribunal was asked to determine the following factual issues under this heading:

 

(a)           Whether in 2014 Mr McCormick shouted at the claimant in relation to a telephone message from his wife.

 

(b)           Whether Mr Johnny Beggs asked the claimant "What church do you go to?" and when she replied "St Colman's Roman Catholic", did he respond "Oh" and walk away?

 

(c)           Whether the claimant was preselected for redundancy by Mr Alan McCormick because she was a Catholic and whether the redundancy process was therefore a sham.

(d)           Whether the claimant was told at the first redundancy meeting held on 4 November 2015 that she was redundant.

 

(e)           Whether it was confirmed to the claimant at the redundancy consultation meeting held on 11 November 2015 that she was redundant.

 

(f)            Whether letters sent to the claimant about the meetings held on 4 November 2015 and 11 November 2015 misrepresented what was said at those meetings.

 

(g)           At the start of the hearing the claimant's representative withdrew an allegation that the claimant had been asked to undertake work on the MAYTAS system without training and at a lower rate of pay.

 

Direct Discrimination -Age

 

14.          Whether the claimant was treated less favourably than a hypothetical younger comparator on grounds of her age. The factual issues that the tribunal had to determine under this heading were the same as in paragraph 12 (c) -(f) above; and if so,

 

15.          Whether the respondent has shown this to be a proportionate means of achieving a legitimate aim.

 

Indirect Sex Discrimination

 

16.          Whether the respondent applied a provision, criterion or practice which put women at a particular disadvantage and which put the claimant at a particular disadvantage when only administration employees were included in the pool for potential redundancies, and did the claimant suffer a detriment(s), namely:

 

(a)       Whether the claimant was told at the first redundancy meeting held on 4 November 2015 that she was redundant,

 

(b)       Whether it was confirmed to the claimant at the redundancy consultation meeting held on 11 November 2015 that she was redundant,

 

(c)        Whether letters sent to the claimant about the meetings held on 4 November 2015 and 11 November 2015 misrepresented what was said at those meetings; and if so,

 

17.          Whether the respondent has shown this to be a proportionate means of achieving a legitimate aim.

 

Victimisation - Religious Belief/Political Opinion

 

18.          Whether the claimant was less favourably treated by the respondent because her representative had sent a letter on 17 November 2015 threatening legal action, and specifically:

(a)           Whether the respondent failed to pay the claimant the proper amount of wages in December 2015, and

 

(b)           Whether the respondent failed to provide the claimant with a pay statement in December 2015.

 

19.          Whether the claimant was subjected to less favourable treatment by the respondent because she had lodged an originating claim with the Fair Employment Tribunal in January 2016, and specifically,

 

(a)           Whether the respondent refused to give the claimant an agreed reference.

(b)           Whether the respondent failed to pay the claimant her wages for January 2016.

 

(c)           Whether the respondent refused to allow the claimant to take voluntary redundancy while she was pursuing her claims with the Fair Employment Tribunal.

 

(d)           Whether the respondent failed to provide the claimant with a pay statement in January 2016.

 

Remedy in Discrimination Claims

 

20.          In the event that the Fair Employment Tribunal concludes that the claimant was subjected to unlawful discrimination, whether it is just and equitable to award compensation for injury to feelings, including aggravating or exemplary damages.

 

Unlawful Deduction from Wages

 

21.          The Tribunal was not required to adjudicate on this issue. During the hearing, the parties' representatives reached an agreement, now made an Order of the Tribunal, that the respondent would pay the claimant the sum of £1,099.00 in respect of unpaid wages.

 

Evidence

 

22.          Mr Geoffrey Wilson, the claimant's representative, Mr Brendan Wright, the claimant's husband and Mrs Emma Wright, the claimant's daughter made witness statements and gave oral evidence for the claimant. Mrs Hazel Harris, the claimant's former line manager was called by Mr Wilson to give evidence for the claimant pursuant to a Witness Order. The claimant's representative informed the Tribunal that he would seek to discharge the claimant's evidential burden through his recollection of the claimant's instructions and by reference to handwritten notes made by him at meetings with the claimant. There was no witness statement made by the claimant or comprehensive statement of instructions taken from the claimant. Mr Wilson confirmed at the hearing that his own notes were not a full record of all that was discussed at various meetings with and concerning the claimant and she had raised matters with him that he had not recorded.

`

23.          The witnesses for the respondent Mr Alan McCormick, Director of Operations, Mr Jonny Beggs, Recruitment Coordinator and Dr Patrick Mitchel, former Principal of the Belfast Bible College provided written witness statements and gave oral evidence.

 

24.          The Tribunal also considered documents to which it was referred in a bundle of documents prepared by the respondents and the documents which were appended to the statements of Mr Wilson and Mr Wright.

 

25.          The Tribunal decided that it was both necessary and in the interests of dealing with the case justly, to consider all relevant evidence in relation to all issues rather than deal with the jurisdictional issue as a preliminary point. No evidence was given during the hearing in support of the claimant's claims of direct age and political discrimination.

 

Case Management during the Hearing

 

26.          During the course of the hearing the Tribunal made a number of rulings which were objected to by the claimant's representative;

 

(a)           Before the parties reached agreement on the unlawful deduction from wages issue and after hearing representations from the parties' representatives, the Tribunal directed the College to obtain further documentary evidence from its own bank concerning the identity of the recipient of funds, which the respondent contended had been paid to the claimant but which had not apparently reached her account. The tribunal in making this direction, overruled an objection from the claimant's representative, because that documentation/information was particularly relevant to the issues of whether wages owed to the claimant had in fact been paid to her and whether she had been victimised.

 

(b)           The Employment Judge ruled that it was not permissible for the claimant's representative to cross examine Mrs Harris as she had been called to give evidence on behalf of the claimant.

 

(c)           The Employment Judge ruled that it was not permissible for the claimant's representative to cross examine the respondent's witnesses concerning recruitment policies and exercises undertaken by the respondent over the years and in particular why it had not engaged in "positive discrimination" to increase the number of candidates with Roman Catholic backgrounds, as this was not relevant to the issues which had to be determined by the Tribunal. Further it was not disputed that the claimant was the only Roman Catholic employed by the College.

 

27.          The Tribunal provided written directions to the parties for the exchange and submission of written closing submissions, as due to illness, the claimant's representative was unable to attend to give oral submissions at the end of the evidence. Following an application by the claimant's representative and after consideration of written representations by the parties' representatives, the time for making written submissions was extended by the Employment Judge.

 

Facts

 

28.          After consideration of the evidence before it, the tribunal made the following findings of relevant fact:

 

29.          The Belfast Bible College ("the College"), is a registered charity which provides non-denominational Protestant teaching of Christian religion and is widely seen as evangelical. It offers undergraduate and post graduate theological degrees, both as a constituent college of the Institute of Theology of Queen's University Belfast and as validated by the University of Cumbria. It undergoes annual inspection by the Quality Assurance Audit and other compliance bodies.

 

30.          At the relevant time the senior management team comprised the principal, Dr Patrick Mitchel, Mr Alan McCormick, Director of Operations and Ms Karen Fulton, the Director of Learning. As Principal one of Dr Mitchel's roles was to oversee the financial sustainability of the College.

 

31.          The College's Monitoring Return as at 6 October 2015 showed that the College employed a total of 30 employees. There were 9 male employees of whom 8 were Protestant and 1 whose community could not be determined. There were no males employed in administrative or secretarial roles. There were 21 female employees of whom 18 were Protestant, 1 Roman Catholic (the claimant) and 2 whose community could not be determined. 11 out of the 21 female employees occupied administrative or secretarial roles.

 

32.          The claimant was employed by the College as a part time receptionist from 11 November 2003 until her voluntary redundancy which took effect from 29 April 2016. Her main duties were to provide telephone and administration support. Her normal hours of work were Tuesday 9am until 5pm, Wednesday 9am until 1pm and Thursdays 2.00 pm until 5.00 pm. The claimant was the only Roman Catholic employed by the College. Her line manager was Mrs Hazel Harris who in turn reported to Mr McCormick.

 

33.          Mr McCormick who describes himself as a Protestant Evangelical Christian has been employed by the College since 2008. The backbone of the claimant's case was that Mr McCormick had been "consistently nasty" to the claimant because she was a Catholic and he is an Evangelical Christian.

 

Allegations of Discriminatory Treatment Pre-October 2015

 

34.          Until approximately late October/early November 2015, the claimant appeared to be very happy working for the College and had raised no formal complaint or grievance. However a number of allegations of discriminatory treatment which predated a redundancy process in October/November 2015 were made in the originating claim form and raised in the claimant's witnesses' statements and oral evidence at the Hearing. The case made for the claimant was that these earlier incidents were part of a continuing act culminating in a decision to make the claimant redundant or alternatively, that these prior incidents were capable of providing corroboration and background evidence of later acts of discrimination.

 

35.          The first such matter referred to in the first originating claim form concerned a conversation between the claimant and Mr McCormick which occurred in 2009/10, a year or two after Mr McCormick had started his employment with the College. The claimant was upset because Mr McCormick had allegedly shouted at her for not passing on a telephone message from his wife. Earlier in the day Mr McCormick had asked the claimant to find him if his wife called or at least inform him as his mother was ill and he was waiting to hear about a visit from her GP. He was frustrated later on to learn from the claimant that she had forgotten to tell him about a phone call from his wife. Mr McCormick admitted that "in the heat of the moment" he had reprimanded the claimant but denied shouting at her. Mrs Harris later informed him that the claimant was annoyed at being told off in reception although no one else was present. Mr McCormick then met with the claimant in the presence of Mrs Harris and apologised to her. He informed her that she could make a formal complaint if she wished and that Mrs Harris could assist her with this. Mrs Harris confirmed that the claimant accepted his apology and did not wish to raise a complaint. She also apologised to Mr McCormick for not passing on the message and "everything went back to normal". The tribunal views this as being a one-off incident under which both parties had drawn a line. Importantly there was no evidence to suggest to the tribunal that Mr McCormick would have treated the hypothetical Evangelical comparator who had failed to pass on an important phone message any differently.

 

36.          A second allegation was made in the first originating claim form that Mr McCormick had drawn the claimant's religion to the attention of other members of staff. It was clarified at the Hearing that this related to accounts given at different times by the claimant to Mr Wilson and her husband about being very upset to be approached by an unidentified woman who alleged that Mr McCormick "has told me you're a Catholic." Mr Wilson stated that the claimant had repeated the incident to him "many times" and was annoyed because it was not Mr McCormick's business to disclose her religion to people at the College. The tribunal was referred to Mr Wilson's notes of his meeting with the claimant on 5 August 2016 where it is noted for the first time "2010 -2 ^nd semester 'Alan tells me you are a Catholic'." The identity of the person allegedly making this allegation is not recorded. Mr Wilson's evidence was that this was a West Belfast woman, possibly called May Maguire, who had "some sort of connection" with the College, either employed or doing a course, who had converted from Catholicism to the Protestant faith after marrying a Protestant. Mr Wright thought that the claimant had told him this had happened a couple of years before November 2015. The claimant had raised no complaint about this matter at the time nor did she take any steps to ascertain the truth or otherwise of the words attributed to Mr McCormick. Mr McCormick categorically denied ever having discussed the claimant's religion with anyone else. No one with that name has been employed by the College. There was no evidence before the tribunal of any other occasion when Mr McCormick had allegedly discussed the claimant's religion with another person. When considering the evidence the tribunal exercised caution in weighing what is effectively an assertion of fact from an anonymous source and concluded that this could not be relied upon to find on a balance of probabilities that this incident had in fact occurred. The tribunal therefore finds that the claimant has not discharged her burden of proving that this incident had taken place.

 

37.          A third allegation made within the first originating claim form was that "staff have often been surprised at the claimant's Catholic background". Mr Wilson clarified at the Hearing that this related to one single incident involving a conversation between the claimant and Mr Jonny Beggs in which Mr Beggs had allegedly asked the claimant " What church do you go to? And that he responded 'Oh' and walked away when she told him she went to St Colman's Roman Catholic Church". Mr Wilson told the tribunal that the main purpose of including this allegation was to emphasise the point that the claimant was the only Catholic employed by the College and that Mr Beggs' reaction demonstrated a culture of anti-Catholic discrimination within the College. Mr Beggs has been employed since 1 February 2015 as Recruitment Coordinator. He describes his religious belief as "Evangelical" and is married to a Roman Catholic woman. He and his wife attend a non-denominational church attended by both Catholics and Protestants. He recalled a conversation with the claimant around June 2015 while they and other colleagues were preparing a flyer mail to be sent to various churches in the area to generate interest in the College. In the general conversation Mr Beggs asked the claimant what church she attended and she told him St Colman's Church. He assumed that she was referring to St Colman's church in Dunmurry, a Protestant Church, and remarked to her that he thought a flyer had already been sent. At that point the claimant advised him that she went to St Colman's Roman Catholic Church in Derriaghy. They continued with a brief discussion about how long the claimant had been going there and where it was located. Mr Beggs denied that the conversation had ended abruptly or that he walked away. The tribunal considered that Mr Beggs' version of events is supported by the fact that the claimant made no complaint about this at the time, that the claimant had shown no signs of upset or distress and that afterwards they continued to have a good working relationship. The tribunal does not consider that it can draw any inference from a conversation between colleagues that there was an anti-Catholic culture within the College. It is also further noted that there was no suggestion that Mr McCormick was involved in this allegation.

 

38.          Mr Wilson contended in his witness statement that the claimant alleged to him that when interviews were being carried out in 2008 for the position of Director of Operations, Mr McCormick was the only candidate not to acknowledge the claimant afterwards as she sat in the reception area as he was leaving the College. This allegation was not included in the originating claim form or in Mr Wilson's handwritten notes of the claimant's instructions. Mr McCormick denied that he would have deliberately ignored the claimant but, if he had ignored the claimant, conceded that he may have been preoccupied with the interview. In cross examination, Mr Wilson accepted that there was no way that at this point Mr McCormick could have known or suspected that the claimant was a Roman Catholic. Therefore the tribunal considers that it would not be possible to draw an inference of unlawful discrimination even if it were true that Mr McCormick had failed to acknowledge the claimant.

 

39.          A further allegation was made by Mr Wright in his witness statement that the claimant was made to feel uncomfortable as the only Catholic working in an evangelical college when "a couple of years before" she was made redundant, she was asked to photocopy "anti Catholic literature" about the Protestant reformer Martin Luther who had accused the Catholic Church of heresies. Mr Wright accepted that the pamphlet was most likely a teaching aid and the photocopying request had been made by an undisclosed tutor. Mr Wright confirmed that he was very disappointed with the contents of the pamphlet and he himself sought advice from his Parish Priest who reassured him that these were historical and outdated ideas. Crucially this allegation is not mentioned in the originating claim form and it is not mentioned in Mr Wilson's witness statement. There is no reference to this incident in Mr Wilson's handwritten notes. Mr Wright confirmed that his wife had not made a big deal of it at the time and she did not complain as it was part of her job to photocopy teaching and other materials. There was no suggestion that Mr McCormick had made the request or that the person who made the request to the claimant had done so with the intention of embarrassing the claimant because she was a Catholic. Therefore the tribunal is unable to infer that this amounted to discriminatory treatment.

 

40.          Mr McCormick denied that he had been consistently nasty to the claimant as was alleged. He was not the claimant's line manager and generally did not have direct contact with her. He gave unchallenged evidence that on 28 August 2015 he had sent a memo to Mrs Harris confirming that he had given the claimant a few additional days' leave on compassionate grounds as she was concerned that her husband was making a slow recovery from surgery. Mr McCormick wanted to ensure that this was not deducted from her normal annual leave entitlement. Further on 24 April 2009 Mr McCormick had written to the claimant, who was on long term sickness absence to inform her that she and her family were in the thoughts and prayers of the College to reassure her that she would be entitled to full pay for the first 3 months and half pay for the next three months.

 

41.          Mr McCormick refutes that by not espousing Roman Catholic doctrine that he should be categorised as being anti-Catholic. He has organised and participated through work in retreats at the Benedictine Monastery in Rostrevor, the Dominican Retreat Centre in Dublin and the Passionists Community in Tobar Mhuire, Crossgar. He also worked closely with Father White of Youthlink NI to establish and deliver a cross community programme. The tribunal accepted that these activities did not suggest an Anti Catholic, sectarian outlook or that Mr McCormick was motivated against the claimant because she was a Roman Catholic.

 

Allegations of Discriminatory Treatment Post-October 2015

 

42.          These allegations emanate from events from late 2015 culminating in the claimant's voluntary redundancy. In late 2014 the College had a budget deficit mainly due to a fall student enrolment numbers and increased costs. Costs savings measures such as natural wastage by not replacing staff who left and reducing working hours resulted in some savings but not enough to prevent a further budget deficit for a second year in 2015. The senior management team decided that it was necessary to make redundancies, initially within the administration team, to address the budget deficit. Redundancies of teaching posts were deferred due to course commitments within the current academic year and the need to protect the core business of the College. The senior management team sought legal advice as to the procedure to be followed. The tribunal accepted that the College had demonstrated that there was a genuine redundancy situation.

 

43.          Dr Mitchel took charge of and led the redundancy process. Mr McCormick did not have conduct of the redundancy process. Dr Mitchel convened a general staff meeting on Wednesday 21 October 2015 to explain the financial difficulties of the College and the need to make the equivalent of 2-2.5 full time administrative jobs redundant. Dr Mitchel invited expressions of interest in voluntary redundancy and confirmed that employees who may be affected by the proposals would be informed and consulted as soon as possible. A further general staff meeting was held on Monday 2 November 2015 again to discuss the proposed redundancy process. The claimant, although invited, did not attend the general staff meetings as these took place outside her working hours. On 3 November 2015, Dr Mitchel sent an email to all staff, including the claimant, attaching a formal announcement of Proposed Redundancies, which outlined the matters discussed at the meetings.

 

44.          Three administrative posts were identified as being at risk of redundancy. It was felt that the claimant's reception duties could be absorbed into the remaining staff team. The other two posts identified were those of BG, the Principal's PA and AH, which was a student support role which was considered the "least mission critical role" which could be covered by other staff. Both BG and AH were female employees with a perceived Protestant backgrounds.

 

45.          Dr Mitchel commenced individual consultation processes with the claimant, BG and AH. The first individual consultation meeting with the claimant took place on 4 November 2015 at which Mrs Harris was also present. Dr Mitchel reiterated the reasons why the redundancy situation had arisen and confirmed that the claimant's post was at risk and subject to completion of full and proper consultation she may be dismissed by reason of redundancy. The claimant was informed that a further individual meeting would be arranged to discuss any counterproposals or suggestions she might wish to make and the possibility of alternative employment and to provide clarification on timescales for the process, raised by the claimant during the meeting. It was confirmed that the meeting on 4 November 2015 marked the beginning of a period of individual consultation and that the College would consider all ideas, suggestions and representations made by the claimant during the consultation period.

 

46.          The claimant became very upset during the meeting to the extent that Mrs Harris permitted her to go home early. The claimant never returned to work. The tribunal accepts that the claimant telephoned both her daughter and her husband in an upset state to inform them that she had just been told she had been made redundant. However the tribunal considers that she was mistaken as it accepted Dr Mitchel's evidence that he told the claimant it was a possibility not a certainty that she would be made redundant, only after proper consultation.

 

47.          There were no minutes of the meeting but Dr Mitchel wrote to the claimant on 6 November 2015 to confirm that the claimant's job was " at risk" and that she " may subject to the completion of a full and proper consultation, be dismissed by reason of redundancy." The letter went on to state somewhat misleadingly that "we have discussed the method by which you have been selected..." however went on to confirm that this meeting marked "the beginning of a period of individual consultation. We will consider all ideas, suggestions and representations you wish to make to us during this consultation."

 

48.          Dr Mitchel sent another email on 6 November 2015 to all staff, including the claimant, to provide clarity about the need for compulsory redundancies and the process followed to date, without going into individual details, as follows:

 

•          " Verbal information to staff team of the risk of possible redundancies 21 October 2015 and confirmed on 2 November.

 

•          Invitations given at both meetings to discuss any voluntary redundancies with explanatory email sent on 4 November 2015.

 

•          Written confirmation sent to staff by email on 3 November about the need to make 2-2.5 administrative contract jobs redundant.

 

•          Consultation began on 4 November with the affected individuals.

 

•          Any discussion about a possible redundancy takes place over 3 consultation meetings. That person is told that their post may become redundant, why it has been selected and invited to discuss this and any proposals they want to discuss over the next one or two meetings.

 

•          Any offers of voluntary redundancy received by 10 November can be factored into the redundancy consultation meetings.

 

•          Further meetings held after 10 November with those affected by the redundancy with appropriate decisions made at the end of this process. At this stage formal notice will be given if the post is made redundant."

 

An objective reading of this email confirms that no final decision would be taken until after the consultation process had been completed. An individual redundancy consultation checklist was drawn up in respect of the claimant.

 

49.          A further consultation meeting was held with the claimant on 11 November 2015. Mrs Harris was present and made a record of the meeting. The rationale for the need to make redundancies was discussed again and the claimant is recorded as having stated she had no questions, she understood the need for cutbacks and there were no bad feelings. Dr Mitchel mentioned that information would be sent to all staff members affected by redundancy concerning a potential redeployment post to provide maternity cover between January and September 2016. He discussed her redundancy payment and 12 weeks' notice period entitlements. It was left for another occasion that there would be further discussion about whether the claimant would work her notice or not, should redundancy notice be served. Dr Mitchel advised the claimant that a third consultation meeting was scheduled for the following Tuesday 17 November 2015 and that she had the right to bring a representative to this meeting.

 

50.          The claimant sought advice from Mr Geoffrey Wilson, a Legal Consultant with some 15 years' experience specialising in employment and discrimination law. Mr Wilson told the Tribunal that at their first meeting on 13 November 2015 the claimant's view was that Mr McCormick was behind the decision to make her redundant and she regarded him as "unapproachable and not trustworthy". She mentioned the conversation between Mr McCormick and the claimant in 2009/2010, described at paragraph 34 above. Mr Wilson's notes of the first meeting do not record that the possibility of discrimination was discussed. From his second meeting with the claimant Mr Wilson said that religious discrimination was mentioned as a "very subtle possible motive" for the decision to make her redundant.

 

51.          Mr Wilson accompanied the claimant to the third consultation meeting with Dr Mitchel and Mrs Harris held on 17 November 2015. Mr Wilson candidly and proudly told the Tribunal that he gained access "on the slim pretext of being a friend of the family" and that his tactic was to be as intimidating and threatening as possible. He told Dr Mitchel that he had advised the claimant that she had possible grounds for making complaints to a tribunal including unfair dismissal due to redundancy; sex discrimination, religious and political discrimination (in light of the claimant's "Catholic community background"); age related discrimination; breach of the implied duty of mutual trust and confidence; and breach of the Part time Workers' Regulations. This was repeated in a letter also dated 17 November 2015 handed by Mr Wilson to Dr Mitchel during the meeting. This contained a request for a written statement of reasons for less favourable treatment further to the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (as amended) and warned of possible legal action on other grounds. The letter also contained a number of allegations outlining how the claimant had been treated less favourably than her full time colleagues, including that the claimant had been informed that she had been selected for redundancy because her work could be deployed to other administrative staff, that she had not been invited to any of the staff meetings arranged to discuss the redundancies and that the College was in serious breach of a fair and reasonable redundancy procedure. The allegations of discrimination in this letter were confined to the manner in which the College had conducted the redundancy process to date and did not mention any earlier allegations. Mr Wilson requested a written response within 21 days "as per the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000" and advised that " at the end of this period we will also inform you of whether the claimant shall be accepting your offer of voluntary redundancy or not." He requested that this letter should also be treated as a " written grievance".

 

52.          Mr Wilson frankly told the Tribunal that at this time he was under the misapprehension that the claimant was the only part time worker employed by the College and that he was "looking for something to hang (his) hat on, as it were". Therefore he considered that the Part Time Workers Regulations was " the most obvious cause of action" at that particular time.

 

53.          Dr Mitchel responded to this letter by email dated 19 November 2015 to Mr Wilson and sought to arrange a meeting to address the claimant's concerns. He indicated also that the College was happy to discuss the comment regarding voluntary redundancy.

 

54.          Mr Wilson responded by email dated 25 November 2015 that he and his client would only consider a further meeting after the College had provided a written explanation for the alleged less favourable treatment of the claimant.

 

55.          Mr Wilson's evidence was that he met with the claimant again on 27 November 2015. At this meeting she disclosed to him that she was a "devout Catholic" and they had a discussion about doctrinal differences between Catholics and Evangelical Protestants. He made it clear to the claimant his view, which he said derived from his own personal knowledge of people who had studied and worked at the College and his familiarity with the ethos of the College, that many Evangelical people would be surprised that a devout Catholic was working at the College at all. They then speculated whether this could be the "specific motive behind her recent negative treatment and she then recalled various incidents which as a devout Catholic had made her feel uncomfortable". The focus was shifting away from a claim under the Part Time Workers Regulations and evolving into allegations of religious discrimination as a tool to assist Mr Wilson in negotiating with the College the most generous possible redundancy package.

 

56.          Dr Mitchel wrote directly to the claimant on 1 December 2015 indicating that he was keen to resolve any queries that she may have and expressing disappointment that his request to meet had been declined. He addressed the matters raised in Mr Wilson's letter, repeating the business reasons which had given rise to the redundancy situation, the reason why her post was at risk of redundancy and the process followed so far. He denied that she had not been invited to the staff meetings held on 21 October 2015 and 2 November 2015, pointing out that she had been given advance notice but had not attended. He denied at any time taking into consideration her position as a part time employee or that gender, age or religious/political affiliation were factors in the process. He stressed that although he had discussed redundancy pay and notice requirements at the second meeting, at no stage had a decision been made to terminate her employment. He sought to reassure the claimant that this was not the end of the process and that a formal meeting would have to take place before any notice of redundancy could be given "as per your statutory right." He stated that he would be happy to meet with her to discuss her concerns further and continue the process.

 

57.          A further meeting was then arranged for 9 December 2015. Dr Mitchel and Mrs Harris were this time accompanied by Ms Orla Hogg, an advisor from Croner Consulting. Mr Wilson explained that claimant was unable to attend as she was finding it all very stressful and felt badly treated. Ms Hogg explained that the College had entered the process with the best of intentions and that although the College had initially considered the claimant's job was a "stand alone role", it was willing to consult about implementing a selection pool. Ms Hogg had intended at this meeting to ask the claimant what jobs she was able to do so that she could consider a pool. Mr Wilson then presented a letter dated 9 December 2015 addressed to Dr Mitchel concerning a proposal " Re an enhanced redundancy package etc". He set out his calculation of an enhanced redundancy payment and contractual entitlements to pay, holiday pay and notice pay which totalled £4,941.91. He also requested a written apology and undertaking that in any future redundancy situation the College would engage with the Equality Commission and/or seek proper legal advice together with " a written glowing reference". Mr Wilson gave an ultimatum that unless an agreement was reached by 14 December 2015, he would lodge a claim with the tribunal. He repeated this ultimatum at the meeting and refused to give further time to the College to consider their position and to have terms of an agreement drawn up. He suggested that this case could be "Ashers 2".

58.          Mr Wilson explained to the Tribunal that the claimant at this stage did not want to go to a tribunal but his approach at this meeting was to appear as combative and as demanding and belligerent as possible "for tactical advantage" in order to get the best package possible. He threatened Dr Mitchel and Mrs Harris that they would be personally named as parties in the event of proceedings. Mrs Harris confirmed that she had felt very threatened and intimidated indeed given that her only role was notetaker at this meeting. The meeting concluded with an understanding that if an agreement could be reached, the claimant would not be expected to work her notice but would receive a payment in lieu. It was left that the College would put a proposal to Mr Wilson for consideration by the claimant by the following Monday.

 

59.          Dr Mitchel wrote to the claimant on 14 December 2015, copied in an email to Mr Wilson, proposing that the parties should enter into a formal written compromise agreement terminating the claimant's employment whereby she would agree not to bring any claims relating to unfair dismissal or discrimination either to an employment tribunal or the Equality Commission for NI in return for a total package value of £5,637.53. It was proposed that her employment would end on 14 December 2015 should she choose not to work her notice, or 7 March 2016, if she elected to work her notice. Additionally, it was stated that the College would provide an agreed reference and a response to address her concerns over the redundancy consultation process. It was specified that the offer would remain open until 16 December 2015 and that should agreement not be reached, the College intended to continue with the redundancy consultation process about the potential redundancy on which no decision had yet been reached.

 

60.          Mr Wilson responded by email dated 15 December 2015 that he would discuss the letter with the claimant and asked if Dr Mitchel would be free to meet the following afternoon. Dr Mitchel confirmed by email that he could meet at 4pm or on Thursday afternoon. Mr Wilson then telephoned the College on 16 December 2015 and left a message that as no one had got back to him he had no option but to lodge a claim with the Fair Employment Tribunal and with the Equality Commission who he suggested were interested due to the Ashers case. Dr Mitchel's earlier email was resent to Mr Wilson who then responded that the claimant felt the offer was insufficient and that the meeting would have to be postponed until 4pm the next day.

 

61.          On 17 December 2015 Mr Wilson telephoned to cancel the meeting but indicated that he was keen to resolve the matter before Christmas. Dr Mitchel emailed Mr Wilson to advise that he would be out of the country from the next day until 6 January 2016. He asked Mr Wilson to contact Mr McCormick in his absence to arrange a further meeting. He advised that a reference and response to the claimant's concerns would be part of the settlement process. He again confirmed that if agreement could not be reached the redundancy consultation process would continue.

 

62.          It appears that the claimant and her husband were given to understand around this time that the College had "mucked up the negotiations". Mr Wilson met with the claimant and her husband on 18 December 2015 to discuss lodging various discrimination claims before the Fair Employment Tribunal and it was agreed that this would be done in the New Year. Mr Wilson said he warned the claimant that the College may retaliate by not paying her properly. Mr Wilson made no further contact with the College in December 2015 to discuss the offer which had been made.

63.          On 6 January 2016 Dr Mitchel wrote to Mr Wilson requesting contact by 8 January 2016. He advised in the absence of a response he would write to the claimant directly as she was still an employee in order to progress the redundancy consultation process.

 

64.          Mr Wilson met again with the claimant on 8 January 2016. Mr Wilson told the Tribunal that on this occasion he had a discussion with her about who else in the College was affected by redundancy. The discussion turned to the religious profile of the staff employed by the College and how she suspected that she was the only Catholic employed by the College. It is recorded that on this occasion she mentioned the incident involving Mr Beggs described at paragraph 37 above.

 

65.          Having received no communication from Mr Wilson, Dr Mitchel wrote again directly to the claimant on 12 January 2016. He outlined his attempts to arrange a meeting to discuss the offer made on 14 December 2015. He asked the claimant to advise if she intended to accept the offer as if not, the redundancy consultation process would continue. He invited her to attend a formal meeting on 20 January 2016 if the offer was rejected. He stated that the purpose of the meeting was to conclude the consultation over her position being placed at risk of redundancy and that the meeting could result in the termination of her employment.

 

66.          The claimant did not reply to this letter but on 16 January 2016 Mr Wilson wrote to Dr Mitchel to inform him that he had been instructed by the claimant to lodge a complaint with the Fair Employment Tribunal and enclosed a copy of the details of the claim.

 

67.          Mr Wilson attended at the meeting held on 20 January 2016 on behalf of the claimant who did not attend. Mr Wilson indicated that the claimant's absence from work was due to illness. Dr Mitchel was accompanied by Mr McCormick on this occasion. Mr Wilson advised that the offer made by the College had been rejected by the claimant and her family and that discrimination claims had been lodged with the Office of the Tribunals on grounds of religion, age and victimisation and for non-payment of salary in December 2015. He stated that a complaint of unfair dismissal would be also lodged if the claimant was dismissed for redundancy and that reinstatement would be sought as a remedy. He threatened also to write to the Vice Chancellor of Queen's University Belfast as the College was connected with QUB.

 

68.          Dr Mitchel expressed surprise and regret at this action as there had been no response or counterproposal to the offer made and that there had been no engagement with the Labour Relations Agency. Mr Wilson advised that there was absolutely no chance of his client engaging with the LRA. Dr Mitchel stated that the College had not heard from the claimant why she had not been at work. He stated that her December pay had been processed in the belief that there was a good chance that the offer, which involved the termination of the claimant's employment from 14 December 2015, was going to be accepted. Dr Mitchell indicated that the College would take advice on progressing the redundancy process and that they would contact Mr Wilson further after having the opportunity to consider their response to the documentation he had given to them that day. Dr Mitchel also expressed the view that it was possible for the claimant to return to work as she had not been made redundant. Mr Wilson took from this that the College was "backing down" and that the claimant was "no longer selected for redundancy or at least that they might be rethinking their position". This was clearly an erroneous view as the claimant had not yet been selected for redundancy.

 

69.          As stated above at paragraph 3 the first originating claim form dated 13 January 2016, was received by the Office of the Tribunals on 22 January 2016.

 

70.          On 26 January 2016 Dr Mitchel wrote to the claimant, copying his letter to Mr Wilson. He expressed disappointment that attempts to reach settlement had failed and confirmed the College's continuing willingness to try to resolve the matter. He clarified that her salary had been paid up to 14 December 2015, the termination date in the proposed settlement and which Mr Wilson had indicated was "close to what may be required". He advised that the December payroll had been run earlier than in a normal month due to the closure of the College from 23 December 2015. To facilitate the payment of any outstanding wages, he requested that the claimant should confirm that she was off work due to illness and that she should forward Fitness for Work Certificates to cover the period from 4 November 2015 until the present date in accordance with the College's notification of sickness absence procedure, which the claimant had meticulously followed in previous periods of sickness absence. He confirmed that the company policy provided for 3 months' entitlement to full pay if medically certified as unfit for work. He confirmed that she was still an employee and that the College would be delighted to see her back at work at reception.

 

71.          The claimant did not respond to this letter and consequently was not paid any wages in January 2016. The tribunal did not accept Mr Wilson's contention that the claimant's continuing absence had been authorised by Mrs Harris when she told her that she could go home early after the first consultation meeting on 4 November 2015 or that because he had informed Dr Mitchel that the claimant's absence was due to illness that this meant that she did not have to comply with the College's sickness absence policy which requires certification of absence by a medical practitioner.

 

72.          Dr Mitchel wrote to the claimant on 4 February 2016 again requesting certification from her GP so that her outstanding pay could be processed. He pointed out that without any response, the College may have to consider whether her absence was unauthorised which may be a disciplinary matter. This letter was again copied to Mr Wilson.

 

73.          Mr Wilson met with the claimant on 28 January and 5 February 2016 to discuss her various options. It was agreed that the claimant would now seek voluntary redundancy without any enhancement of payment or a compromise agreement so that she would be free to pursue her claims lodged with the Fair Employment Tribunal. Mr Wilson contacted the College on 9 February 2016 to arrange a meeting on 18 February 2016.

 

74.          On 11 February 2016, the claimant submitted fit notes backdated to 1 December 2015 certifying her as unfit for work due to stress from that date. Dr Mitchel emailed Mr Wilson to confirm the arrangements for the meeting and receipt of the fit notes. He advised that the outstanding monies would be paid to the claimant in the February payroll. He confirmed that the claimant's entitlement to company sick pay would end after 3 months and she would be paid statutory sick pay thereafter. The claimant was to be paid her full pay backdated to 4 November 2015 even though she was absent without any certification from 4 November 2015 until 1 December 2015. The respondent did not seek to recover payment for the uncertified period from the claimant.

 

75.          Dr Mitchel confirmed that the College was agreeable to Mr Wilson accompanying the claimant and sought clarification from Mr Wilson as to the reason for the requested meeting. He confirmed that the College wished to continue with the redundancy consultation process.

 

76.          The claimant again did not attend the meeting arranged with Dr Mitchel on 18 February 2016. Mr Wilson explained that the claimant felt too stressed to attend and that he was representing her to discuss the way forward. He stated that she was most definitely not coming back to work. Dr Mitchel confirmed that the claimant was still an employee and the College would like to know her intentions. He clarified that if the claimant returned to work the redundancy process would continue with no predetermined outcome. Mr Wilson then advised that the claimant was open to the possibility of voluntary redundancy but not on the terms previously offered. He confirmed that she was willing to forgo the enhancement of £500.00 and might accept £5,137.00 but that she was not prepared to enter into a compromise agreement. He confirmed that she might sign a statement accepting voluntary redundancy therefore losing the right to pursue an unfair dismissal claim but that she still intended to pursue her discrimination claims. Dr Mitchel indicated that the College would get back to him about a possible offer of voluntary redundancy on these terms. He also confirmed that the claimant would be paid at the end of February 2016, four months' instead of three months' sick pay, backdated as a gesture of goodwill to 4 November 2015. Mr Wilson confirmed that if these monies were paid he would probably withdraw the complaint of unlawful deduction from wages, although he warned that this would not necessarily remove the complaint of victimisation.

 

77.          Following advice from Croner Consulting, Dr Mitchel wrote to the claimant on 22 February 2016 advising that the College had been informed that she was definitely not returning to work and that she may be interested in taking voluntary redundancy without enhancement. He informed her that the College was not able to proceed without a legally recognised compromise agreement and that the original enhanced offer still stood (£5,637.63 plus any additional holiday pay and an apology for upset and "a very positive reference for all your years of service to the College".) He advised that if not acceptable then the College was willing to restart the redundancy process afresh. He confirmed that she would be paid outstanding sick pay at the end of February and that from 4 March 2016 she would be paid statutory sick pay.

 

78.          An instruction was given by Dr Mitchel to pay the outstanding pay to the claimant in the February 2016 payroll. Payroll documentation and payslips issued to the claimant which led the respondent to believe that two payments were made to the claimant on 25 February 2016 in the sums of £881.52 (for December 2015 and January 2016 wages) and £644.96 (for February 2016 wages). Due to a clerical error, payment of £881.52 was made into Dr Mitchel's bank account instead of the claimant's account. At the Hearing it was confirmed by an examination of the claimant's bank statements that these payments had not reached her account. As a result of further enquires with the College's bank, it came to light during the Hearing that the monies had been paid in error into Dr Mitchel's bank account. The Tribunal accepted that Dr Mitchel was unaware that this error had been made until it was brought to his attention at the hearing. Following on from this an agreement was reached between the parties' representatives that the College would pay to the claimant the agreed sum of £1,099.00 and that this should be made an Order of the Tribunal. The Tribunal was invited to draw an inference that this was a deliberate act of victimisation because of the contents of Mr Wilson's letter of 17 November 2015. The tribunal accepted, after consideration of the records of the Case Management Discussions, that the respondent's representatives did not receive copies the claimant's bank statements until 20 November 2018 and that the belief that the payment had been made to the claimant was genuine and reasonable in the circumstances. The Tribunal therefore did not accept representations that this constituted a deliberate act to deprive or delay payment to the claimant or that it was related to Mr Wilson's letter or the fact that she had lodged proceedings with the Fair Employment Tribunal.

 

79.          Mr Wilson strongly disagreed with the College's requirement that there should be a compromise agreement which would involve the claimant seeking advice from a solicitor. Mr Wilson met with the claimant on 4 March 2016 to discuss this letter. He formed the impression she was about to give up her legal case against the College so he reassured her that she had a very strong case especially if "our suspicions were right that (Alan McCormick) had been aggressive to her and was behind her selection for redundancy due to him discovering that she was a Catholic". The claimant told Mr Wilson that she was having a recurring dream that she was back in the College and that people were ignoring her. Mr Wilson's evidence was that at the time he was completely unaware of the claimant's mental health history and that he probably did not appreciate the full effects that the ongoing dispute was having on her health.

 

80.          On 5 April 2016, Mr Wilson wrote to Professor Ken Brown, Chairman of the Board of the College intimating that he intended to lodge a second claim with the Fair Employment Tribunal that the claimant had been further victimised because the College had refused to consider a voluntary redundancy package unless she withdrew all her claims on the basis of a compromise agreement. He also sought clarification of the relationship between the College and QUB and suggested that there would be significant media attention if the case was to go to a full hearing. He advised that he would refrain from lodging a further claim, naming Professor Brown as an individual respondent, until 14 April 2016 to give the College an opportunity of reconsidering voluntary redundancy.

 

81.          Following receipt of this letter, Dr Mitchel instructed Mr McCormick in his absence to send an email to Mr Wilson to confirm that the College was willing to make an offer of voluntary redundancy on the same terms offered to other staff who had requested a voluntary redundancy package. This was confirmed in Mr McCormick's email dated 11 April 2016 which also set out the compensation figures.

 

82.          A final meeting was arranged for 28 April 2016, attended by Ms Hogg of Croner Consulting and Dr Mitchel. Mr Wilson again attended on behalf and in the absence of the claimant and it was agreed that the claimant's last day of employment would be 29 April 2016. Her redundancy payment of £5,200.25 comprised:

 

Statutory Redundancy pay £2,516.76

 

Plus 20% enhancement of £ 503.36

 

12 Weeks' notice pay @ £139.82 £1,677.84

 

9      days' outstanding holiday pay @ £55.81 £ 502.29

 

83.          It was agreed that this amount would be paid to the claimant as quickly as possible or in the next payroll. There was no "agreed reference" discussed at this meeting. Mr Wilson further conceded that the voluntary redundancy package did not contain an agreed reference due to an omission on his part.

 

84.          On 2 May 2016 Dr Mitchel wrote to the claimant formally accepting her request for voluntary redundancy and confirming the employment termination date to be 29 April 2016 and the amount of her redundancy pay entitlement. He confirmed that her final salary and holiday pay would be paid through payroll. He informed her that it was company policy not to provide an open reference but the College would be pleased to respond quickly to any request made by a potential future employer. He expressed thanks for her contribution to the College over the years and wished her well for the future. Dr Mitchel left the employment of the College on 31 July 2016.

 

85.          The claimant did not receive payment of her wages for the period from 14 December 2015 until the end of January 2016 in the February payroll. The claimant brought this to the attention of Mr Wilson around 5 August 2016. Mr Wilson met with the claimant on 16 August 2016 and she informed him that she was finding it hard applying for jobs as she was almost 61 years old and she felt that most of the jobs were for younger people.

 

86.          On 5 September 2016, Mr Wilson sent a letter addressed to Mrs Hazel Harris marked "Private and Confidential". In this he requested "an exemplary reference confirming that my client was an exemplary employee of some 12 years standing with a good attendance record - with no disciplinary/sickness record whatsoever etc be issued -by way of return-asap." He acknowledged in the body of his letter that no reference was previously agreed.

 

87.          Mrs Harris had left her employment with the College on 18 August 2016 and then went on holiday out of the jurisdiction and did not receive the letter. The response drafted by the respondent's representative stated that the letter, when found was forwarded to Mrs Harris. However, the tribunal accepted Mr McCormick's evidence that the envelope was brought to him some time later for opening. No response was sent to Mr Wilson or directly to the claimant. The tribunal accepted this was not a deliberate attempt by Mr McCormick to thwart the claimant's attempts to find another job as the College had agreed to provide a reference if so requested by a prospective employer and no such request was received.

 

88.          By this stage Mr Wilson had already sent a second originating claim form dated 12 September 2016, which was received by the Office of the Tribunals on 20 September 2016, alleging that the respondent had further unlawfully victimised the claimant in failing to provide an agreed reference.

89.          In its Responses to the Originating Claims, the respondent denied having unlawfully discriminated against the claimant, either directly or indirectly or by way of victimisation. It was contended that the claimant was paid all sums to which she was contractually entitled by 25 April 2016.

 

LAW

 

Time Limits for Presenting the Claim

 

90.          Discrimination legislation provides that the Tribunal shall not consider a complaint (of discrimination) unless it is brought before the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of.

 

91.          The period for bringing the proceedings may be extended by the Tribunal if it considers in all the circumstances it is "just and equitable" to do so.

 

92.          For the purposes of discrimination legislation any act extending over a period shall be treated as done at the end of that period. What the claimant has to prove in order to establish a continuing act, is that ( a) the incidents are linked to each other, and ( b) that they are evidence of a 'continuing discriminatory state of affairs'. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed'. ( Per Mummery LJ in Hendricks v Metropolitan Police Comr  [2002] EWCA Civ 1686,  [2003] IRLR 96 at para 51-52).

 

Direct Discrimination

 

93.          The relevant statutory provisions are found in Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("FETO").

 

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

 

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

 

and Regulation 3 of the Employment Equality ( Age)  Regulations ( Northern Ireland) 2006 ('the Age Regulations').

 

"3. -” (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if -”

 

(a)       on the grounds of B's age, A treats B less favourably than he treats or would treat other persons ...

 

and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim."

 

Indirect Sex Discrimination

 

94.          Article 3A. of the Sex Discrimination (Northern Ireland) Order 1976 as amended provides

 

"3. -”(1) In any circumstances relevant for the purposes of any provision of this Order, a person ("A") discriminates against another person ("B") if A applies to B a provision, criterion or practice which is discriminatory in relation to B's sex.

 

(2) For the purposes of paragraph (1), a provision, criterion or practice is discriminatory in relation to B's sex, if -

 

(a) A applies, or would apply, it to persons of a different sex,

 

(b) it puts, or would put, persons of the same sex as B at a particular disadvantage when compared with persons of a different sex,

 

(c) it puts, or would put, B at that disadvantage, and

 

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

 

Victimisation

 

95.          FETO, the SDO and the Age Discrimination Regulations make similar provisions prohibiting victimisation. A person ("A") discriminates by way of victimisation against another person ("B") in any circumstances relevant for the purposes of the legislation if-”

 

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

 

(b)           he does so for one of the following reasons:

 

(c)           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

 

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

 

(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.

 

Discriminatory Acts

 

96.          It is unlawful for an employer to discriminate against an employee in relation to employment in Northern Ireland, - 

 

a.             in the terms of employment which he affords him; or

 

b.             in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

 

c.             by dismissing him or by subjecting him to any other detriment.

 

Burden of Proof in Discrimination Cases

 

97.          Article 38A of the FETO , Article 63A of SDO and Regulation 42 of the Age Discrimination Regulations set out the burden of proof provisions using similar terms and provide that where, on the hearing of a complaint under the relevant statutory provision, the complainant proves facts from which the Tribunal could, apart from this Article/subsection, 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 the relevant statutory provision is to be treated as having committed such an act of discrimination or harassment against the complainant,

 

(c)           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.

 

98.          The Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] 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 [2005] 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 [2003] 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 [2007] 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 [2007] 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 to 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 [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the 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."

 

99.          In S Deman v Commission for Equality and Human Rights & Others [2010] 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."

100.       In Laing v Manchester City Council [2006] 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 behaved as he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will often 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."

 

The Comparator

 

101. The comparator in cases of direct discrimination is someone whose circumstances are the same or not materially different from those of the claimant but who does not share the protected characteristic. The comparator may be actual or hypothetical. Where there is no actual comparator the Tribunal must identify the characteristics of the hypothetical comparator. However it is open to the Tribunal to focus on the reason for the claimant's treatment; "...employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was. Was it on the proscribed ground which is the foundation of the application? Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others. " Per Lord Nicholls at Paragraph 11 Shamoon -v- Chief Constable of the RUC [ 2003] IRLR 285 .

 

102. The Tribunal considered additionally the legal authorities to which it was referred by the parties' representatives in their respective submissions.

 

CONCLUSIONS

 

Direct Discrimination

 

103.       There was no evidential basis laid for the claimant's claim of discrimination on the grounds of age or political opinion during the hearing. Therefore these claims are dismissed.

 

104.       The Tribunal refers to the detailed findings of fact made in relation to allegations of discrimination on grounds of religious belief detailed in paragraphs 33-40 above, which were all made outside the statutory three-month time limit. Having carefully considered the facts found, the tribunal rejected Mr Wilson's argument that these were capable of being construed as an act of discrimination extending over a period culminating with the redundancy process. Rather it concluded that these were a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. In any event the Tribunal has found that these earlier allegations either did not occur at all or in the manner as was alleged, not all of them involved Mr McCormick, and that the claimant has not established that she was treated less favourably than a hypothetical Evangelical comparator. There is therefore no basis for upon which the Tribunal can infer from the facts found in respect of these earlier allegations that the claimant was discriminated against on grounds of her religion.

 

105.       Similarly there are no grounds upon which the Tribunal can conclude on the facts found that the claimant has been treated less favourably than the hypothetical Evangelical Protestant comparator in relation to the redundancy process which began in September/October 2015. The facts found do not support the claimant's contention that Mr McCormick treated her less favourably than the hypothetical comparator, motivated by prejudice against devout Catholics because of his own religious beliefs. A mere difference in religious belief is not sufficient and it is necessary that there has been less favourable treatment. It has not been proven that Mr McCormick treated the claimant less favourably, or even spitefully, as was alleged. To the contrary there is clear evidence that he gave her more annual leave in consideration of her difficult personal circumstances.

 

106.       Further it is clear from his actions that Mr McCormick displayed no animosity towards the claimant or Roman Catholics generally. In the redundancy process, it was Dr Mitchel who made the main business decisions that it was necessary to make redundancies and who drove the redundancy consultation. Mr McCormick's role was peripheral in the redundancy process and any action taken by him was at the direction of Dr Mitchel, who it was conceded did not have a discriminatory motive. It was not Mr McCormick's decision to make the claimant redundant. Most significantly of all, the administrative posts of two Protestant female employees were also identified as being redundant and the two postholders were treated in the same way as the claimant. Both these employees were eventually made redundant.

 

107.       The Tribunal was invited to infer that there had been unlawful religious discrimination against the claimant because the respondent had not engaged in positive discrimination to recruit more Roman Catholics to its workforce. This was rejected because this was simply not relevant to the issues before the Tribunal. In any event positive discrimination, as opposed to affirmative action is unlawful under FETO and Article 55 does not confer rights on individual employees.

 

108.       Therefore the tribunal determines that the claimant has not established facts from which unlawful religious discrimination may be inferred.

 

Indirect Sex Discrimination

 

109.       It was submitted on behalf of the claimant that the respondent's decision to make redundancies initially within the administrative section amounted to the application of a provision, criterion or practice which was discriminatory, because although it applied equally to men, it put women at a particular disadvantage when compared with men and did put the claimant to a disadvantage, and was not shown to be a proportionate means of achieving a legitimate aim.

 

110.       The Tribunal considered that this had the potential to be a PCP within the meaning of Article 3A of the 1976 Order. However, the Tribunal was not convinced on the facts found that the claimant had shown that such a PCP had actually been applied. This was a selection criterion which the respondent would only apply in the event of compulsory redundancy. The claimant, after consultation and negotiation with her representative had requested and was granted voluntary redundancy. It is clear from the facts found that had voluntary redundancy not been agreed, the redundancy consultation stage would have resumed. The process was not set in stone and the College was open to exploring a redundancy selection pool which may have meant that the claimant would not automatically have been the person ultimately made redundant. The claimant was not made compulsorily redundant.

 

111.       However even if this was not correct and a PCP had been applied, the tribunal considered that this had been justified by the respondent. There was a genuine business case to make redundancies. It was proportionate in that the College's workforce was predominantly female throughout all occupational classifications and the wish to protect the core business of course delivery was a legitimate aim. Therefore the Tribunal cannot conclude that the claimant has been subjected to indirect sex discrimination.

 

Victimisation

 

112.       The Tribunal determines that the claimant has not established facts from which it can infer that she has been victimised contrary to the 1976 Order, FETO or the Age Regulations. The Tribunal has found as a fact that the reason why the claimant's pay was not paid into her account in the February 2016 payroll was due to a genuine error compounded by the fact that it did not have sight of the claimant's bank statements until shortly before the full hearing. The Tribunal is satisfied that this did not have anything to do with the fact that Mr Wilson had sent a letter dated 17 November 2015 or that proceedings were lodged with the Fair Employment Tribunal in January 2016.

 

113.       Although there was a factual discrepancy concerning how the College had dealt with Mr Wilson's post-employment request for a reference on behalf of the claimant, this was not such that the Tribunal could draw an inference of victimisation. The claimant's representative conceded that he had overlooked the issue of a reference when negotiating the terms of voluntary redundancy and therefore there was in fact no agreement to provide an agreed reference. Further there had been no request for a reference made by any prospective employer. Had such a request been received, the respondent had confirmed that a reference would have been provided in accordance with its policy as notified to the claimant in the letter from Dr Mitchel dated 2 May 2016. On this basis the Tribunal determines that the claimant had not suffered a detriment and that this part of her claim must fail.

 

114.       The Tribunal therefore determines that the claimant's unlawful discrimination claims are dismissed in their entirety.

 

115.       By agreement reached between the parties, the Tribunal orders the first named respondent to pay the claimant the sum of £1,099.00.

 

116.       This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Employment Judge:

 

Date and place of hearing: 3-7, 10 and 12 December 2018, Belfast.

 

Date decision recorded in register and issued to parties: