Industrial Tribunals Northern Ireland Decisions

 


Hyland v Customs & Excise & Ors (Sex Discrimination) [2002] NIIT 00814_00 (28 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 00814/00

APPLICANT: Bronagh Hyland

RESPONDENTS: 1. Her Majesty's Customs & Excise

2. Gary Archibald

3. Enda Moen

4. Maggie Eyden

DECISION

The unanimous decision of the tribunal is that the applicant was not discriminated against on the grounds of her sex by any of the respondents. The application is dismissed.

Appearances:

The applicant was represented by Mr D Flanaghan, Barrister-at-Law, instructed by Arthur J Downey & Co, Solicitors.

The respondents were represented by Mr F O'Reilly, Queens Counsel and Mr J Maxwell, Barrister-at-Law, instructed by Crown Solicitors Office.

1. The applicant's case to the tribunal was that she was discriminated against by the respondents on the grounds of her sex. The applicant alleged that this discrimination arose out of the events which occurred after she was a member of a sift panel for appointment to posts at Aldergrove Airport in 1997. One of the unsuccessful candidates, Mr Green, made an application to the Fair Employment Tribunal regarding his failure to be shortlisted for the post. There was a request by the Equality Commission on behalf of Mr Green for further particulars and the applicant, together with the two other panel members, John Millar and Liam Gray, were contacted regarding this. It was suggested that the panel should reconvene and discuss their decision making process. All three members of the panel received advice from their trade union that they should refuse to participate in this exercise.
2. The applicant refused to respond to the respondents' request to reconvene the panel. In early January 2000 the applicant along with the other two members of the panel received a letter from Gary Archibald, the manager of Human Resource and Development regarding this matter. The applicant was also approached by her line manager, George Thompson, who related to her a conversation which he had had with Gary Archibald in a lift. The applicant alleged that Mr Thompson passed on a threat to her regarding her failure to participate in the exercise.
3. The applicant also alleged that she had been threatened by Enda Moen, another senior manager, at a meeting in his office on 21 January 2000. The applicant alleged that she was informed by Mr Moen that she could be liable for costs if she failed to provide information to the respondent as this had happened recently in another Customs & Excise case.
4. The applicant alleged that the information passed to her from Gary Archibald from George Thompson and her conversation with Enda Moen amounted to threats against her. She submitted a complaint to her manager and to Maggie Eyden who replaced Gary Archibald as Human Resource and Development Manager in February 2000. The complaint was sent back to the applicant by Ms Eyden because it dealt with two separate complaints in one letter. The applicant submitted amended complaints.
5. The applicant's complaint against Ms Eyden concerned firstly her requirement that the original complaint should be amended and secondly a complaint arising out of a meeting with Ms Eyden on 20 March 2000. The applicant went to see Ms Eyden who was the appointed sponsor of the investigation into the complaints made by the applicant because Ms Eyden had stated that she had a letter for the applicant regarding the progress of her complaint. The applicant alleged that she was uncomfortable attending Ms Eyden's office because it was next to Mr Moen's who was one of the subjects of her complaint. She stated that the offices were divided by a five to six foot partition and she was not aware whether Mr Moen was in his office at the time. The applicant also alleged that Ms Eyden was unable to get the letter out of her safe because she did not have the keys. The applicant alleged that having to leave without the letter was another attempt to intimidate her. The letter's contents had been outlined to her by Ms Eyden and she received it in the next day's internal post. After this the applicant submitted her Originating Application naming all four respondents. She alleged that Ms Eyden acted in a further discriminatory way against her by contacting her at her home by letter requesting further particulars of the applicant's claim. The applicant alleged that she was upset by this action as she had already appointed solicitors to deal with the claim on her behalf.
6. The applicant made allegations in relation to both the discrimination against her as set out above and also about the conduct of her complaint by the respondent. The allegations regarding the conduct of her complaint were not raised in her Originating Application and it was agreed at the hearing that these would not form part of the case to be dealt with by the tribunal.
7. The applicant alleged that the threats made to her by Mr Archibald and Mr Moen were not made to the other two members of the sift panel, Mr Millar and Mr Gray, and therefore she was discriminated against by the respondents on the ground of her sex.
8. The tribunal considered the case made by the applicant in relation to all of the respondents. To establish a case of discrimination against the respondents the applicant is required to show less favourable treatment of herself contrary to the provisions of Article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976. The applicant is required to compare her treatment to that of others. The applicant compared herself to Mr Millar and Mr Gray, the other two members of the sift panel.
9. The tribunal firstly considered the case against the fourth respondent, Maggie Eyden. The applicant's case against Ms Eyden relates to her handling of the complaint made to her regarding Gary Archibald and Enda Moen by the applicant. The applicant's first allegation relates to the manner in which Ms Eyden dealt with her complaint at the outset by requiring her to submit it in a different format. The applicant's manager accepted that there was a distinction between the two complaints made by the applicant and the tribunal found that Ms Eyden was entitled to require the applicant to set out her complaint to reflect the different policies to be adopted in dealing with them. The applicant's second complaint against Ms Eyden related to their meeting of 20 March 2000 and Ms Eyden's failure to give her a letter regarding her complaint. The tribunal noted that the applicant made no objection to the location of the meeting either before or after it took place. The tribunal found no merit in the applicant's allegations in relation to this. Whether or not the letter was handed to the applicant on the date of the meeting the tribunal, having heard evidence from Ms Eyden, accepted that the meeting was held for valid reasons and was not an attempt to frustrate the applicant's claim and we found no reason to believe that Ms Eyden would say that the letter was handed over if this had not in fact taken place. The tribunal also considered the final aspect of the applicant's case against Ms Eyden, namely the posting of a notice for further particulars to the applicant's home. The tribunal found that Ms Eyden was perfectly entitled to attempt to establish the case being made against her and her actions in this regard were both reasonable and understandable. The tribunal therefore found no substance to any of the complaints made by the applicant against Ms Eyden.
10. The tribunal consider the complaint made against Mr Moen. The applicant alleged discrimination by Mr Moen because of the conversation which she had with him regarding the possible repercussions of her actions for the applicant should she fail to comply with the respondent's request for further information from her. To establish a case in relation to this the applicant would have to show that other members of the panel were treated differently. In particular, in this case that would refer to Mr Gray. The applicant did not call Mr Gray as a witness to support her case. A statement of his was in the papers. Mr Moen gave evidence that he went to Mr Gray's workplace to speak to him directly but found that he was on leave and therefore contacted him by telephone. The tribunal found firstly that Mr Gray asked Mr Moen to speak to the applicant. Secondly, that Mr Gray was given the same information as the applicant. The respondent was concerned to obtain information from the members of the sift panel and the contacts by Mr Moen were an attempt to do this. The tribunal found that the applicant was not treated differently to Mr Gray by Mr Moen. The tribunal accepted Mr Moen's explanation for his contacts with both of them and found no discriminatory conduct in his contact with the applicant. The case relating to Mr Millar was slightly different. He was the chairman of the sift panel and refused to participate in any of the information gathering processes and subsequently retired from the organisation.
11. The next aspect of the case was the conduct of Mr Archibald in relation to the applicant. The applicant accepted that Mr Archibald requested the managers of each member of the sift panel to speak to them regarding providing the information. The distinction in the applicant's case is that she was also spoken to by Mr Moen who was not her direct manager. The tribunal accepted that this was done at Mr Gray's request. The tribunal found no merit in the applicant's allegations against Mr Archibald. It was apparent that the respondent was concerned about the members of the sift panel refusing to convene to provide replies to the particulars requested. Mr Archibald was taking whatever steps were possible to ensure the replies were furnished. The tribunal did not accept that there was any distinction based on her sex between the treatment of the applicant and Mr Gray in particular. The tribunal also noted that Mr Millar was spoken to by his line manager. It was clear that it was essential for the replies to be furnished by the respondent and it was to this end that approaches were made to all members of the panel to comply with the requests made. The tribunal found that the distinction drawn between her treatment and that of the others by the applicant had no merit. In essence the applicant's claim was that she was spoken to twice whereas Mr Gray was only spoken to once and the tribunal did not accept that there was any discriminatory intent by the respondent in relation to this. The tribunal also found that the fact that consideration was being given to naming members of the panel as respondents was a step which the respondent was entitled to consider in consultation with their legal advisors and would have applied equally to all members of the panel and therefore did not amount to any act of discrimination against the applicant.

12. For the reasons stated above the application against the respondents in this case are dismissed.

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Date and place of hearing: 27-28 May 2002, Belfast

Date decision recorded in register and issued to parties: