Industrial Tribunals Northern Ireland Decisions

 


Lamour v Wright & Anor (Sex Discrimination) [2002] NIIT 2559_01 (3 September 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 2559/01

APPLICANT: Brent Larmour

RESPONDENT: 1. Sandra L Wright

2. LA Fitness PLC

DECISION

The unanimous decision of the tribunal is that the applicant was unlawfully discriminated against by the respondents on the grounds of his sex. The application will be relisted for hearing on remedy.

Appearances:

The applicant appeared in person.

The first respondent did not appear and was not represented.

The second respondent was represented by Ms Patricia Rooney, Solicitor of Carson McDowell, Solicitors.

1. At the commencement of the hearing the applicant explained that in the week prior to the hearing his Solicitors had ceased to act for him after withdrawal of support by the Equality Commission. The applicant was prepared in the circumstances to proceed with the case. However, it became clear to the tribunal, in the light of the foregoing, he was not in a position to deal with any issue of remedy and with the consent of Ms Rooney the tribunal in the interests of justice decided that it firstly would consider the issue of liability and, if necessary, the matter should be re-listed for a hearing on remedy after the promulgation of the decision on liability. It was further agreed by the applicant and Ms Rooney that the title of the second respondent should be amended as set out above.
2. The tribunal found the following facts:-

(a) The applicant, was born on 20 November 1971, was employed by the respondent from on or about 1 November 2000 as a membership sales consultant. The second respondent was in the course of building premises attached to the new Ramada Hotel at Shawsbridge, Belfast. As the premises were not yet ready the applicant together with the other sales consultants and the first respondent, the general manager and the applicant's line manager, were based in temporary accommodation at Cooke Rugby Club which is across the road from the Ramada Hotel complex at Shawsbridge. Initially, the applicant worked irregular hours for approximately 2/3 days per week. After January 2001 the applicant worked full time hours based at Cooke Rugby Club in what was known as the 'LA Marketing Suite'. The suite was not designed for that purpose, being normally in use as part of the Rugby Club. The applicant prior to taking up the position with the second respondent had worked in a similar position for another fitness company. The applicant had a Degree in Modern Languages and a Postgraduate Diploma in Management.

(b) On 17 January 2001 the applicant was called outside the suite by the first respondent who asked the applicant if he wanted to go for a drink. The applicant refused making his excuses and saying he was not interested. The first respondent told the applicant she was lonely and that he was the type of guy she could relate to. She told him that she was looking for a policeman but that he would do in the meantime. She described her experiences with other policemen and how none had really satisfied her. The applicant asked her why she was telling him this. She replied "Are you sure you wouldn't like to go for a ride". The applicant was very shocked and had no doubt she would have seen the obvious shock on his face. She giggled in a flirtatious way and added 'on my motor bike'. The applicant subsequently confided in another sales consultant, Keith McClure, that the first respondent had asked him out but he had refused. Mr McClure did not know the detail of what had been said but was aware from then on that something had happened between the applicant and the first respondent and noticed a change in the applicant's personality.

(c) On 16 February 2001 at an evening function held at the Edge Bar, organised by another fitness organisation, Fitness First, the applicant was told by the first respondent to proposition this organisation's "fitness instructor to see, if he "had what it takes". The first respondent also said to the applicant – 'Hey you big hunk, do you think you could shag that girl (pointing at the young lady). You could then take her away from Fitness First and we could have a new fitness coach. I might have a rival then. What do you think?" The applicant took this to be another proposition by her to himself. The applicant made it clear by his reaction that he was very shocked by her proposition and what she had said to him and he was not interested in having any such relationship with the first respondent. Mr McClure noticed that the applicant was very distressed subsequent to this conversation, which he had overheard. The applicant at no time gave the first respondent any indication that he was interested in having a personal relationship with her.

(d) On 2 November 2001 the applicant was working in the marketing suite and sold membership of the Club to a young lady. After the sale the applicant was approached by the first respondent who, to his amazement, said to him 'Oh she wanted you alright. I heard all she was saying to you, rent boy you little star. I'll bet she had more than LA Fitness Membership on her mind. She really wanted you, you little devil'. The applicant was totally bemused by her comment and believes this would have been registered on his face. He thought she was coming over to commend him on his sale.

(e) On 5 March 2001 the applicant was in the marketing suite with another sales consultant Ms Mandi Magennis and some workmen when the first respondent for no apparent reason began to read out and ridicule the applicant's qualifications and sales performances in previous companies. She said 'were you really with Pulse Fitness. They are a bit of a bad outfit aren't they? You must have been employed by LA Fitness for your looks. If I had known you worked for Pulse Fitness I wouldn't have employed you. I don't think much of their training procedures'. She then went on to query his 'sales achievements' before joining the second respondent and his computer qualifications and his CV. The applicant was very hurt by these comments because when he had been interviewed for his position with the second respondent, the group sales manager, who had interviewed him, had been particularly impressed by his work with Pulse Fitness and he believes it had been instrumental in him obtaining the position.

(f) On 12 March 2001 in the marketing suite the first respondent asked him where he had been on the Saturday night. When he told her he had been in Belfast with some friends and had met some members of the LA Fitness whom he had signed up that day she said "Oh that must have been nice. Did you shag them all?" The applicant was dumbfounded by the remark and which reaction he believes must have been obvious to the first respondent.

(g) The first respondent's daughter came to work for the second respondent in late January/early February 2001. She lived with her mother. The applicant at the end of March 2001 had a brief relationship with the first respondent's daughter, which the first respondent was aware of. On 4 April 2001 the first respondent's daughter told the applicant of an argument she had with her mother about the applicant when she had complained that her mother was picking on the applicant and treating him unfavourably in comparison to Mandi Magennis, another sales consultant, although the applicant had achieved the highest sales figures of any of his colleagues. She told the applicant her mother had grabbed her daughter by the throat and pushing her up against a cupboard had asked 'are you shagging Brent? I think he is a lovely guy'. The applicant believed that the first respondent, having rejected her advances, was jealous he was going out with her daughter. Although the relationship with her daughter ended the applicant noticed that the first respondent would then often refuse to speak to him and she would, as he described, 'blank him'.

(h) On 15 April 2001 the regional manager Ms Berni Hawkins was present at a meeting in the marketing suite, which was also attended by the first respondent, the applicant and Ms Mandi Maginnis. The first respondent first mocked the applicant's willingness and ability in comparison to Ms Maginnis to work long periods and to start early – which criticisms were unfair and untrue. She then said, with no objection or criticism by Ms Hawkins, 'why don't you go and make yourself useful anyway; here (Holding out the kettle and turning round) go and make some tea for the girls, rent boy'. She then went on to say 'Don't worry, Brent, we won't give you anything technical to do again. I know you struggle to switch a plug on and off. What kind of husband will you make anyway?' The applicant was again dumbfounded not only by what was said, but the absence of any objection or criticism by Ms Hawkins. The applicant was by this time the only male employee employed at the marketing suite. The first respondent glared at him smirking and then said "are you going to sit there in the corner fluttering your eyelids looking cute all day?" The applicant was shocked and left speechless by what the first respondent had said. For the remainder of the day Ms Hawkins referred to the applicant as 'rent boy'. Ms Maginnis also called him this. The first respondent called him rent boy frequently. Ms Hawkins was the first respondent's line manager, based in England. The applicant did not know who he should report what the first respondent was saying to him, as set out above, when he found that Ms Hawkins with whom the first respondent seemed friendly had participated and joined in with the above remarks. He did not feel to report to her what was going on would have any success. The applicant was very embarrassed. He did not take any action in the circumstances to report the first respondent's conduct as he hoped that whenever the new premises were opened and they each would have separate offices that he would have less contact with the first respondent and she would stop harassing him and he would not be required to work in such close proximity to her. The applicant enjoyed his work and was anxious not to do anything, which might jeopardise his position or cause him to lose his job.

(i) On 18 April 2001 in the marketing suite the first respondent said to the applicant as he arrived early for work – "Aren't you going to go somewhere and get yourself tarted up? Go on, hurry up and make yourself pretty".

(j) On 19 April 2001 the first respondent said to the applicant at the marketing suite – "Hello Brent, so you're shagging my daughter". The applicant refused to answer. She then added "I'm not good enough for you but my daughter is. I'm disgusted with both of you. We will see about this".

(k) The first respondent continued to 'blank' the applicant when he was carrying out his duties. She did this even when he was raising with her legitimate work concerns, for example, with regard to difficulties in running sales reports due to computer problems or even when he came in to work on his day off to deal with a computer problem with the first respondent's daughter. As a result he was made to feel excluded and isolated in his workplace.

(l) In the week commencing 16 April 2001 Ms Hawkins visited the marketing suite and addressed most of the staff including the first respondent. She told them that she wished the applicant to be in charge of the sales office with sales staff reporting to him. The applicant took up this position for a few days before his ultimate dismissal and he was advised by the fitness manager Mr Lavery to wear a suit so as to distinguish him from the other sales staff, who were to report to him. The clear indication from Ms Hawkins was that whenever the Club opened the applicant would be the sales manager, but until that time it was more in the nature of an "unofficial promotion" to that position.

(m) The applicant's work performance including his sales figures had never come under adverse criticism from management and indeed his good work was reflected by his said appointment to the position in charge of the sales office. Despite this the applicant was surprised on 16 April 2001 to receive a letter from the first respondent inviting him to a disciplinary interview on 20 April 2001 in which she indicated she wished to discuss a number of areas relating to his work.

(n) The applicant attended the interview. The applicant agreed to the said fitness manager attending the meeting. The first respondent raised the issue of "achieving the minimum key performance indicators for the sales process". These 'KPI' were the criteria used to assess the sales consultant's performance. Under his job description there were daily and monthly requirements. The first respondent said the applicant was not satisfying the requirement but did not say when or how he had failed nor produced any relevant data. These were requirements which were clearly designed for sales consultants working in a properly designed and fitted office and for a Club which had been built and opened. The applicant explained, inter alia, that in his office, which was part of the Rugby Club, he was not provided with his own telephone and it was therefore not possible to achieve the required figures for number of calls. He had no desk. The premises were not open and he was not able to show potential members the actual premises, which was unsatisfactory. She raised the issue of 'recorded levels of activity on the SDA system'. When the applicant asked what was not being recorded the first respondent did not give him any explanation. She raised the issue of 'completion of sales reports'. These sales reports are normally due at the end of the day and sent on to the Head Office. He explained that he had told her that there had been problems in doing this as the computer system was not working at night and she had told him not to worry about it. The applicant explained the problem of sending information at night to John Hewitt, a manager in England, who was fully aware of the problem. The first respondent had earlier "blanked" the applicant when he had tried to speak to her about the computer problems. The applicant was at a loss to know why the issue of his completion of sales reports was raised when the first respondent had told him not to complete the sales reports. She further raised the issue of 'completion of opening and closing forms'. She accepted it was a trivial matter and expressed the hope that he did not think she was picking on him. He was completing the forms but she produced one form, where one item, out of many, had not been completed due to human error. She agreed to drop the issue. There was no discussion of the issue of general authority levels, albeit it was referred to in the letter as an area she wished to discuss. Finally, the first respondent referred to the issue of "unauthorised changes to the rota". The applicant denied that he had changed the rota, which in any event was the responsibility of Ms Maginnis.

(o) Despite the applicant's response to the above matter the first respondent wrote to the applicant by letter dated 20 April 2001 indicating she expected improvements in the said areas, which had been the subject matter of the letter of 16 April 2001, and would review his performance at 1.00 p.m. on 27 April 2001 when she would expect to see a marked improvement in these areas. She also stated she would review his performance at 1.00 p.m. on 4 May 2001 when she expected him to be achieving the criteria as laid down in his job description, with specific reference to 'KPIs'. The letter also stated that this was a written warning, as described in the staff handbook, which would be held on record for 12 months, and that if the outlined improvement in the above areas was not achieved within the time limits described further disciplinary action would be taken (within the guidelines of the disciplinary procedures).

(p) The applicant was very upset when he received this letter containing the warning as he knew his performance in the circumstances had been very good. Indeed this had been reflected in the fact he had been put in charge of the sales office. He felt the matter would go no further; the first respondent having looked at his work in light of what he had said at the disciplinary meeting would not proceed further with the matter. Further, after receipt of the warning, the first respondent said to the applicant "Don't worry, everyone needs a little warning sometime. After all I was going to lose my job because of you and that is not fair". The applicant turned up for the meeting on 27 April 2001, but the first respondent did not attend nor gave any reason or apology for her non attendance.

(q) A meeting was held on 4 May 2001 as arranged. The applicant expected his performance between 20 April 2001 and 4 May 2001 would be under review, whereas the first respondent complained he was not meeting the Key Performance Indicators. The applicant disagreed and asked her to produce evidence of his failure. She produced one Pal Sheet, from which such information was recorded, for 3 April 2001; although she had others with her, but to which she did not refer. Curiously at the hearing the second respondent's representative did not produce this Pal Sheet for 3 April 2001, but produced Pal Sheets for various dates between 21 April 2001 and 3 May 2001, which were not the subject matter of the meeting on 4 May 2001. The first respondent referred in particular to three individuals referred to on the sheet and asked why they had not joined. The applicant was able to give a full explanation as to why these individuals had not joined. He again pointed out that the requirements in the job description, such as the requirement in the minimum monthly operation standards of "seventy-five per cent of telephone enquiries converted to appointment", to which the first respondent referred, could not be achieved where the Club was not built and potential members could only be shown drawing/photographs and not the actual premises. The first respondent said the standard could be achieved and if he could not get it she would get someone else who could. The first respondent then adjourned the meeting and on her return said the applicant was not meeting his KP1s and he had to go. She at no time explained how he had specifically failed to meet the KP1s, which in any event he disputed.

At the hearing before the tribunal Ms Rooney put issues to the applicant arising out of the said various Pal Sheets for the period between 21 April 2001 to 3 May 2001. The tribunal was impressed by his explanation of the various matters raised, but in any event the tribunal did not accept, in the absence of any other evidence, the relevance of same when these Pal Sheets were never the subject of the meeting on 4 May 2001.

(r) The applicant at no time received a letter of dismissal from the second respondent. By letter dated 9 May 2001 the applicant wrote to Mr Turok, the Managing Director, setting out, inter alia, that he believed he had been unfairly dismissed and asking to inform the Managing Director personally of the manner in which he had been treated as an employee. He pointed out the reason for his dismissal had been neither explained or detailed to him in writing. He asked for an investigation of the manner of his dismissal, which he indicated he wished to appeal. The applicant also wrote to Judith Adams of the Human Resources Department on 10 May 2001 confirming inter alia his appeal against the dismissal. He also asked that Ms Hawkins would not hear the appeal as he perceived her to be a good friend of the first respondent. He was concerned he stated, about the prejudicial treatment he had already received. He also referred to the non-adherence to the stages of disciplinary procedure and the ongoing failure to give him confirmation of his dismissal and the reason for same. The applicant intended at the appeal hearing to refer to all the aforesaid matters which had taken place in relation to his dismissal but also the specific conduct of the first respondent referred to above since he had refused to have a personal relationship with her on 17 January 2001. This letter had written across it "length of service" 1.11.01 (under 1 year). The writing was not identified but was clearly written by someone in the second respondent's office. It would appear that the letter sent to Mr Turok was probably also given to Ms Adams to deal with as Judith had been written across it.

(s) Neither Mr Turok nor Ms Adams replied to the above correspondence. He was not granted an appeal as sought – despite a letter reminding the second respondent of his request sent on 4 June 2001 by his then Solicitors to Ms Adams.. Again there was no reply to this letter.

(t) At the hearing the second respondent produced a copy of an unsigned letter from the first respondent to the applicant, purporting to set out the circumstances and reasons for the dismissal. The applicant denied that he received the letter and the tribunal accepts his denial. Unlike other letters written by the first respondent (the letters of 16 April 2001 and 20 April 2001) this letter was not written on headed company note paper. The second respondent produced no evidence as to how the letter came to be written. No evidence was produced to the tribunal to show that the letter was sent. The letter purported to indicate that the applicant had been dismissed after a hearing at stage 4 of the Company's formal disciplinary procedure and to set out what had taken place prior to the said dismissal. The first respondent did not appear and no evidence was called by the second respondent. The tribunal is of the opinion that since the applicant had not worked for a year with the second respondent, as had been noted on the face of the said letter dated 10 May 2001, a decision was taken by the second respondent's senior management there was no need to respond to the applicant's letters.

In light of the findings of fact set out above the tribunal could not accept that the contents of the letter set out accurately either what had taken place at the said meeting or the reasons for the said dismissal. In this context the tribunal also noted that under the disciplinary procedure it is provided an appropriate manager could only take the decision to dismiss following consultation with either the HR Manager or one of the Directors from Head Office. The reason for dismissal requires to be stated at the time and confirmed in writing as soon as possible afterwards. When being dismissed the employee has to be advised of the effective date of termination and of the right of appeal. No evidence was produced to the tribunal of any such consultation by the first respondent with either the HR Manager or one of the directors before she dismissed the applicant.

(u) The Staff Handbook contained an Equal Opportunity Policy together with a separate Sexual and Racial Discrimination policy. The latter provided –

4.13 Harassment

A person discriminates against another if he treats that person less favourably on grounds of sex or race than he treats or would treat another.

Sexual Harassment ranges from suggestive remarks displaying pornographic material and tendency to more extreme examples such as groping and assault. Racial Harassment includes physical and verbal abuse. Such behaviour, whether implied or actual, may be considered unlawful and will not be permitted or condoned by the Company.

Unwanted conduct such as that above must be reported.

It is the duty of all mangers and supervisors to implement the Company policy.

All employees must comply.

All allegations of harassment shall be dealt with seriously, promptly and in confidence. Anyone making a complaint will be protected from victimisation.

3. (i) The applicant complained to the tribunal that he had, in light of the foregoing, been sexually harassed by the respondent.

The tribunal was satisfied that at all material times the second respondent was vicariously liable for the actions of the first respondent, who was their general manager in Northern Ireland and the applicant's line manager. The first respondent did not appear and the second respondent called no evidence. The tribunal was further satisfied that the first respondent had embarked on the course of conduct referred to above when on 17 January 2001 the applicant made it clear to the first respondent that he did not wish to have any personal and/or sexual relationship with her. Having made his position clear to her and which, in the tribunal's view, she was at all times fully aware she then continued to make the remarks and behave in the manner set out above which were clearly of an explicit sexual nature and further affected the applicant's dignity at work. The tribunal was further satisfied that the first respondent by her conduct created a humiliating working environment for the applicant with her remarks about his appearance and his cerebral abilities and suitability for the job. The tribunal has no doubt that the conduct was unwanted, unreasonable and offensive to the applicant. The tribunal further considers that the applicant by his reaction to the remarks and conduct made it clear he found it unwelcome and offensive and that he did not wish it to continue and that the first respondent was at all times aware of this. At no time did he give any hint of encouragement to the first respondent. Indeed his reaction was exactly the opposite. The tribunal accepted the applicant's explanation for not formally reporting the matter to his employers. The tribunal accepted that he found the whole matter both embarrassing and distasteful and had hoped it would end whenever the new offices became operational and he would have less contact with the first respondent. The tribunal understood his desire not to lose his job, which he clearly enjoyed. The tribunal has no doubt he would have made specific complaints of sexual harassment if the appeal hearing in relation to his dismissal had been heard, as he had sought in the correspondence following his dismissal. The tribunal did not accept the contention of the second respondent's solicitor that the applicant's failure to report the matter in any way suggested acceptance on his part. In the view of the tribunal the first respondent could not accept the applicant's rejection of her unwanted advances. The language used was totally unacceptable and this had to have been known to her as a line manager in particular and having regard to the terms of the second respondent's sexual harassment policy. The situation was compounded when the first respondent on 15 April 2001 engaged in such conduct in the presence of the regional manager, Ms Hawkins, who took no steps to stop same and then herself proceeded to refer to the applicant as 'rent boy'.

By reason of the foregoing, the tribunal was satisfied that the applicant had shown in the absence of an adequate explanation, sufficient facts to enable the tribunal to conclude that he had been sexually harassed and that he had therefore been unlawfully discriminated against by the respondents on the grounds of his sex. Having regard to the terms of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and no such explanation having been given the tribunal has no alternative but to uphold the applicant's complaint that he had been sexually harassed and thereby unlawfully discriminated against by the respondents on the grounds of his sex. Even if the tribunal had not been so compelled by the said regulations, on the basis of the evidence before it, it had no doubt that this was a clear case of sexual harassment against the applicant and he had been thereby unlawfully discriminated against by the respondents on the grounds of his sex.

(ii) The applicant also complained that his dismissal in the circumstances set out above was a further act of sex discrimination by the respondents.

The tribunal was satisfied that there was no good grounds for the said dismissal of the applicant. The tribunal noted that the actions of the first respondent in terminating the applicant's contract of employment due to failures in his work performance was at a time when he had been in effect promoted to sales manager in the Northern Ireland Office, which the tribunal does not believe is the sort of action which would be contemplated against a person who was not working satisfactorily. The tribunal is further satisfied that the applicant was able to give a satisfactory explanation for all the matters raised at the disciplinary meetings he had with the first respondent, not least the fact that he was working in a temporary office without a dedicated phone or desk and at a time when the Club was not built and available for potential members to view and the standards in the job description could not be achieved. Although the procedures required the first respondent to consult with more senior management before taking such action no evidence of such consultation was produced. Indeed no evidence was produced by the respondents to support the alleged failures in performance by the applicant and which were the subject matter of the disciplinary hearings.

The tribunal was satisfied that the applicant had shown in the circumstances and in the absence of an adequate explanation by the respondents or either of them sufficient facts to enable the tribunal to conclude that in so dismissing him the applicant was unlawfully discriminated against on the grounds of his sex by the respondents. Having regard to the terms of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and no such explanation having been given, the tribunal has no alternative but to uphold the applicant's complaint. Even if the tribunal had not been so compelled by the said regulations the tribunal, on the evidence before it, was satisfied that the sole reason for the said dismissal was due to the applicant's sex and his rejection of her unwanted advances and had nothing to do with his work performance and any failures in relation to same and that he had been thereby unlawfully discriminated against on the grounds of his sex by the respondents.

4. The tribunal therefore finds that the applicant has been unlawfully discriminated against on the grounds of his sex. The application will be relisted at a later date for a hearing or remedy.

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Date and place of hearing: 2-3 September 2002, Belfast

Date decision recorded in register and issued to parties: