Industrial Tribunals Northern Ireland Decisions

A v B & Anor (Sex Discrimination) [2003] NIIT 1473_01 (18 February 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1473/01

APPLICANT: A

RESPONDENTS: 1. B

2. C

DECISION

The unanimous decision of the tribunal is that the applicant was not discriminated against on the grounds of her sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976, the respondents having established the defence as set out under Article 42(3) of the said Order. The claim is therefore dismissed and the tribunal so orders.

Appearances:

The applicant was represented by Mr I Rosbotham, Trade Union Official of the Northern Ireland Public Service Alliance.

The respondents were represented by Ms L Askin, Barrister-at-Law, instructed by Mr J Sullivan, Solicitor, Departmental Solicitor's Office.

1. At the outset of the proceedings, Ms Askin made an application for a restricted reporting order, pursuant to Rule 14 of the Industrial Tribunals (Rules of Procedure) 1996 in relation to D, who was formerly a respondent to the said application. By a decision, registered and issued to the parties on 16 January 2003 the application made by the applicant against D was stayed until further Order, the parties having reached an agreement in settlement of the application with the assistance of the Labour Relations Agency. Ms Askin stated that it was anticipated D might be a witness in the course of the hearing. Whilst she accepted that D was an employee of the respondents and that he had sexually harassed the applicant, she wished, in order to protect his interest and to prevent any increase in tension in the workplace, to apply to the tribunal to have the said Order made. Mr Rosbotham stated that the applicant did not wish such an Order to be made and did not consider it was necessary; in view of the admitted actions of D, the settlement of the applicant's claim against him, and also in view of the fact that the applicant and D no longer worked in the same location. The tribunal refused to make the said Order. It did not consider that it was in the public interest that the press should be prevented from reporting the said matter. In so deciding, the tribunal took into account, in particular, the fact that the applicant did not wish the said Order to be made but also that the actions of D were not to be in dispute during the course of the hearing, in light of the said admission and settlement of the applicant's application against D.
2. It was agreed by the parties that, although the first respondent, which was an agency of the second respondent, employed both the applicant and D, the tribunal, if the applicant established liability for the acts the subject matter of this application, was not to make any distinction between the respondents as to their respective responsibilities and liability for same. It was further agreed by the parties that on 5 December 2000, at or about 5.30 pm/6.00 pm at an office party held at Dempseys Terrace, Dublin Road, Belfast, D pulled down the applicant's boob tube style top, thereby exposing her breasts. Ms Askin indicated to the tribunal, properly in the tribunal's view that the respondents accepted that they were vicariously liable for the said admitted actions of D; and further that by his said actions he had sexually harassed the applicant and the respondents would be liable for such unlawful sex discrimination unless the respondents could establish the defence as set out under Article 42(3) of the Sex Discrimination (Northern Ireland) Order 1976. In these circumstances, it was agreed the issue for the tribunal to determine was whether the respondents had established the said defence.

3.	(i)	Article 42(3) of the Sex Discrimination (Northern Ireland) Order 1976 states:- "In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description".
	(ii)	It is clear that to establish such a defence the onus of proof was on the respondents. Mr Justice Burton in the case of Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 EAT at Page 560 stated:- "We are satisfied that the proper approach is:- to identify whether the respondent took any steps at all to prevent the employee for whom it is vicariously liable from doing the act or acts complained of in the course of his employment; having identified what steps, if any, they took to consider whether there were any further acts that they could have taken which were reasonably practicable". In an unreported decision, Florence Lorraine Alexander v Chief Constable of the Royal Ulster Constabulary (unreported judgement delivered on 16 March 2001) the Northern Ireland Court of Appeal, Lord Justice McCollum (at Page 10 of the judgement) expressly agreed with the approach of Mr Justice Burton in Canniffe v East Riding of Yorkshire Council.

3. The tribunal found the following facts.

(i) D had Equal Opportunities Awareness Training for a half-day on 16 May 1995. This training was mandatory for all employees of the respondents and covered, inter alia, all the respondents relevant Equal Opportunities policies and procedures, and in particular EO Circular 10/93 (as revised).

(ii) In addition in or about the Summer of 2000, D was involved in further training, which included an Equal Opportunities element, as part of a programme for B to obtain its Charter Mark.

(iii) D received on 17 May 1999 a personal copy of the said EO Circular 10/93 (revised), which he signed for, acknowledging that he had a responsibility to read and understand its contents and that he undertook to do so as soon as possible. The said Circular, revised as aforesaid, set out the respondents' Equal Opportunities – Complaints Procedure. It included all revisions to the said procedure, which were primarily of a technical nature, which had occurred since his initial training in 1995. The Circular, while setting out the formal complaints procedure itself also set out very clearly both the employers and employees respective responsibilities and rights but also what was meant by unlawful discrimination, including sexual harassment, and that it could arise not just in the workplace, but also 'at any work-related social, training, development and communication event or occasion'. The Equal Opportunities Unit of the respondents has been required to investigate and deal with many complaints under the said procedure. The said Circular, which was originally drawn up in 1993 in consultation with the Trade Unions has been regularly updated and revised in the light of changing circumstances.

(iv) E, the Unit Manager for the Section in which the applicant and D worked had received Equal Opportunities Awareness Training, similar to that given to D, but in addition had had further training with emphasis on his role as a Manager/Supervisor. In the months prior to the events, the subject matter of the application, he had overheard conversations in the Section arising out of a TV programme called 'Porn Stars'. Neither the applicant nor D were involved, but he required their Line Manager, F, to re-issue Circular 10/93 (as revised) to those who were involved. F, who had also received relevant Equal Opportunities Awareness training, together with relevant training with emphasis on her line manager role spoke to those involved, explaining the dangers of such conversations. During the course of her work, F, whenever she heard inappropriate banter, would have informally spoken to those involved in order to prevent a reoccurrence.

(v) D had a responsibility in the Section to distribute documents for issue and/or circulation to other staff in the Section. The tribunal were satisfied that, whilst D did not give evidence, in this capacity he saw all such documents and, where appropriate and necessary, retained his own copy. In particular, the tribunal is satisfied D was given a copy of a notice dated 18 August 1999, relating to the issue of 'Attending Social Functions'. The applicant accepted she had also received a copy of this Circular. This document set out in clear and stark detail that inappropriate behaviour at social functions, both written and outside the workplace could lead to complaints of unlawful sex discrimination/sexual harassment. The Circular gave explicit examples from tribunal case law and elsewhere of matters that could lead to a complaint. F indicated to the tribunal that the Circular, when it had been issued, had created because it was so explicit a talking-point in the Section. The members of the Section discussed the Circular and took notice of what type of behaviour could lead to such complaints and ultimately tribunal hearings.

(vi) At a staff meeting on 4 August 1999, it is recorded that Equal Opportunity Circular 3/99 was to be circulated to all staff and that it was important that this Circular was seen and understood. D was not at the meeting but a copy of the said minutes were subsequently circulated to him and the tribunal is confident that he saw a copy of the Circular, particularly having regard to his role as the person who carried out the circulation of documents in the Section. In addition, the Tribunal noted that the applicant accepted that she had seen a copy of this Circular. The Circular enclosed a copy of an article on a reported case, providing general guidance on the correct approach to sexual harassment cases. In addition the Circular itself highlighted, by way of example, the types of remarks which can constitute sexual harassment.

(vii) E, the Unit Manager, on 10 November 2000 issued to all staff in his Section a memorandum, reminding them of the contents of EO Circular 10/93 (revised), it gave a specific reminder/warning, including relevant examples, in relation to inappropriate behaviour. He did so in the specific context of the 'approaching office party season', and highlighted the type of behaviour that could lead to complaints about discrimination and/or harassment. At a staff meeting on 16 November 2000, which was attended by D, all staff were expressly reminded, as confirmed by the minutes, with regard to Equal Opportunities especially in the run-up to Christmas and the necessity to be aware of the guidance on the issues.

(viii) In November 2000, the respondents circulated to all staff the Core Brief, and the tribunal is satisfied that D, given his responsibilities in relation to circulation, would certainly have seen a copy of this Core Brief. This document again made specific reference to harassment at work-related social events and gave examples of inappropriate and wrongful behaviour and reminders about the respondents relevant policies and procedures. The use of the Core Brief to give such reminders was a new innovation by the Equal Opportunities Unit of the respondents.

(ix) F attended the office party itself, but prior to the admitted incident involving the applicant and D had not found it necessary to intervene or to speak to anyone about inappropriate behaviour. The tribunal is confident that if she had considered it necessary she would have done so. Further, there was no evidence to suggest D had ever done anything of a similar nature before or that there had ever been cause to speak specifically to him about his conduct.

4. Having regard to the steps taken by the respondents to prevent D from doing the said acts complained of the tribunal noted in particular that D had been given training in Equal Opportunities in 1995 and had received his own personal copy of the EO Circular 3/93 (revised) in May 1999 and that he had also received some additional training in 2000 in connection with the programme undertaken by B to achieve Charter Mark status. The tribunal was particularly impressed by the specific focus of the respondents on the issue of sexual harassment and in particular in the context of social functions and functions such as the office party. The memorandum/circular sent to all staff on 18 August 1999, Circular 3/99 circulated to all staff but also the specific memorandum sent by E on 10 November 2000 to all members of his Section, including D, could not have set out more clearly, but also in a way that was readily understood by all staff, that actions such as the admitted actions of D at the office party would be unlawful and likely to be the subject of a claim. It was further clear to the tribunal that these memoranda/circulars had been discussed both generally in D's workplace, but also specifically at staff meetings, many of which were attended D and for which he received the minutes as part of the circulation procedure. E's memorandum, but also the circulation of the Core Brief, could not have been more timely. The tribunal noted how E had intervened in a direct way when he overheard the discussions in the Section relating to the TV programme 'Porn Stars'. F was clearly conscious of the need for her to intervene whenever she became aware of any inappropriate behaviour by staff, for whom she was responsible. In the tribunal's view the steps taken by the respondents to prevent D from doing the admitted acts complained of at the said office party were comprehensive and could not be faulted. In the tribunal's view it was not satisfied, in the circumstances, that there were any further acts which the respondents could have taken, which were reasonably practicable. Mr Rosbotham suggested that there should be more training, centrally organised, by the respondents. The tribunal could not accept that any such further training was required, in light of the foregoing but in particular the issue of the said memorandum of E and the Core Brief, which were, in essence, self-explanatory and had been issued in the month prior to the actions of D.
5. The tribunal is satisfied that the respondents have, in the circumstances, established the defence as set out in Article 42(3) of the Sex Discrimination (Northern Ireland) Order 1976 and that therefore the applicant was not unlawfully discriminated against on the grounds of her sex. The claim is therefore dismissed and the tribunal so orders.

Chairman:

Date and place of hearing: 18, 19, 20 February 2003, 14 March 2003, Belfast

Date decision recorded in register and issued to parties: