Industrial Tribunals Northern Ireland Decisions

Ward v Board of Governors Longstone School & Anor (Preliminary Hearing) [2003] NIIT 1991_01 (03 June 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1991/01

APPLICANT: Eileen Ward

RESPONDENTS: 1. Board of Governors Longstone School

2. South Eastern Education & Library Board

DECISION OF THE TRIBUNAL ON A PRE HEARING REVIEW

The tribunal were of the unanimous opinion the contentions put forward by the Respondent that the application had no reasonable prospect of success could not be acceded to and the tribunal were of the opinion that the case should proceed to a full hearing and no Order is therefore made.

Appearances:

The applicant was represented by Ms S Bradley, Barrister-at-Law, instructed by Equality Commission for Northern Ireland, Legal Division

The respondent was represented by Ms J Simpson, Barrister-at-Law, instructed by the Legal Service, Education & Library Board.

1. This hearing was a pre hearing review under Rule 7 of Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996. The Respondents in their Notice of Appearance contended that no case relating to sex discrimination had been made out by the Applicant.
2. The Applicant's complaint related to three issues:-

(i) Verbal abuse by pupil on 2 occasions on the same day.

(ii) Further verbal abuse by parent and threat of physical violence the next day.

(iii) The Respondents had failed to have in place protective measures and had not provided training or written advice to teachers.

3. It was agreed that the pupil concerned suffered from Aspergers Syndrome, a form of autism, which leads to unpredictable behaviour.
4. Ms Simpson submitted that the Applicant had to prove less favourable treatment than a man. At the heart of the case was the question of control. She referred the tribunal to the case Burton –v- De Vere Hotels (1996) IRLR 596 and in particular to paragraphs 35-37 and in particular to that part which stated, "a person subjects another to something if he causes or allows that thing to happen in circumstances where he can control whether it happens or not".

She accepted that foresight and culpability were not the test but submitted that the Respondent had no control over the pupil in that his form of autism was not controllable. She also contended the same test applied to the parents' behaviour.

She further referred to the case Pearce –v- Governing Body of Mayfield Secondary School (2001) IRLR 675 and in particular to paragraph 35 with a reference to vicarious liability and quoted "but schools are not automatically responsible for the acts of their pupils".

She drew a distinction from the facts in the case Sidhu –v- Aerospace Composite Technology Limited (2000) IRLR 607 to the present case in that the child suffered from the behaviour problems over which there was no control. She also referred the tribunal to an extract from the case Strathclyde Regional Council –v- Porcelli (1986) IRLR 135 and submitted that the Applicant's case had no reasonable prospect of success.

5. Ms Bradley submitted that the first two elements of the Applicant's complaint were gender specific and therefore there would be no need for the Applicant to refer to a comparator. She submitted that the Respondents were vicariously liable for the sexual harassment and could have taken steps to control the behaviour of the pupil and to have taken immediate and effective steps to support the teacher in those circumstances.

It was the Applicant's case there was no adequate training for teachers in dealing with children with special needs.

Ms Bradley also referred the tribunal of the case Burton –v- De Vere Hotels and also to paragraph 37 which concluded "but in circumstances over which the employer has control, a tribunal may well find that he has subjected his employee to it".

Ms Bradley contended the Headmaster had control or should have had control and she referred the tribunal to the case Pearce –v- Governing Body of Mayfield Secondary School and in particular to paragraph 35 entitled 'The School's Responsibility'. This paragraph concludes "an employer may subject his employees to detriment of enduring discriminatory behaviour by a third party if he is in a position to prevent it happening".

She submitted that this was not a clear-cut case and the tribunal should have the chance to hear all the evidence.

6. The tribunal were of the unanimous opinion that the issues raised by Ms Bradley in relation to control of pupils, inadequate procedures for protecting teachers and lack of teacher training were matters upon which a tribunal should hear evidence. Further, her contention that the Headmaster did exercise control and was aware of verbal abuse by pupils as evidenced by the existence of an Incident Book where matters upon which a tribunal could only reach a conclusion on hearing all the evidence. The tribunal, therefore, does not conclude that the contentions put forward by the Applicant had no reasonable prospect of success and therefore no Order is made.
7. Ms Bradley referred to requests for Particulars and Discovery sought from the Respondents and asked the tribunal to grant Orders in respect of these requests.

Ms Simpson explained the reasons why the Particulars and Discovery had not been granted as they were under a duty to protect the pupil and were required to get parental consent. The Respondents did not have difficulty in producing some of the documents sought and proposed that Orders should be determined at a later date.

The tribunal having convened for the purpose of a pre hearing review considered it more appropriate for the parties to have a formal hearing on the issues of Particulars and Discovery following receipt of the tribunal's Decision on the pre hearing review and therefore did not make any Orders.

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: