Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 115/02

CLAIMANT: Eleanor Gawne

RESPONDENTS: 1. Board of Governors Ballyclare Secondary School

2. North Eastern Education & Library Board

DECISION

The unanimous decision of the tribunal is that the respondent did not discriminate against the claimant on the grounds of her sex and did not victimise the claimant because she had previously brought a sex discrimination claim against the respondents in 1993. The claimant did not make a protected disclosure under Article 67A of the Employment Rights (Northern Ireland) Order 1996 (as inserted by the Public Interest Disclosure (Northern Ireland) Order 1998).

Constitution of Tribunal:

Chairman: Mr Cross

Members: Mrs McReynolds

Mr Hampton

Appearances:

The claimant appeared and represented herself.

The respondents were represented by Ms A Finnegan, Barrister-at-Law, instructed by Mr Michael Brown, Chief Legal Adviser, The Education & Library Board's Legal Service.

At the commencement of the hearing it was agreed that a third respondent, Mr McCrea, the Principal of Ballyclare Secondary School should be dismissed from the proceedings in that he was an employee of the respondent, Ballyclare Secondary School.

EVIDENCE

1. The tribunal were provided with witness statements and heard oral evidence from the claimant, Mr Ivan Atcheson, Mr John A Gawne and Mrs Maureen Moore. These were the witnesses called by the claimant. Doctor J T Lavery, the claimant's General Practitioner also attended the tribunal to give evidence but did not provide a witness statement. He did however provide letters from both himself and Doctor A B Stevens.
2. The respondents provided witness statements and oral evidence from Mr S A McCrea (hereinafter referred to as "the headmaster"), the Principal of Ballyclare Secondary School (hereinafter called "the school"), the Reverend J H McConnell, the Chairman of the board of governors, the Reverend Trevor Kirkland, Mrs J McCormick, Mr S McComb, Ms Irene Taylor, Mr J Graham, Ms Iris M Weatherup, Ms Gillian Oliver, Miss J Roberts, and Mr Gerard Laverty on behalf of the respondents. The tribunal also received bundles of documents running to nine lever arch files.

THE ISSUES IN THEIR LEGAL CONTEXT

3. .1 The tribunal has to decide whether the claimant was discriminated against by way of victimisation by the respondents under Article 7 of the Sex Discrimination (Northern Ireland) Order 1976 ( "the 1976 Order"). The second named respondent was the employing authority, however the claimant's contract of employment was with the board of governors of the first named respondent.
4. .2 To paraphrase Article 7, the person victimised must show that the discriminator, through its officer's governors or employees, treated the victimised person less favourably than it would have treated another employee, and does so for an inadmissible reason as set out in the Order. For instance, the person victimised has brought proceedings against the discriminator under the 1976 Order, whilst the comparator employee, (whether such comparator be actual or hypothetical), has not brought such proceedings.
5. .3 The claimant in this case produced evidence of numerous incidents, which she alleged showed that she was treated differently to a teacher who had not brought such proceedings and that she suffered detriment as a result. The burden of proof is on the respondents to show that they acted, or failed to act, in each incident, for a reason, not rendered inadmissible by the statutory provisions.

THE TRIBUNAL'S FINDINGS OF FACT

6. The claimant's allegations of victimisation arose out of a large number of incidents dating from 1993 which were carefully examined by the tribunal. The tribunal, in respect of each incident, listened to the oral evidence and examined the documentary evidence adduced before it and made the primary findings of fact set out below. These are listed in chronological order, so far as is possible. The findings of fact are identified by and linked to the incidents which gave rise to the allegations of victimisation. In each case the tribunal makes a finding of whether the alleged incident provides evidence of victimisation on the part of the respondents or either of them. Where it is stated that there is no evidence of victimisation, the tribunal is satisfied that the respondents have discharged the burden of proof that rests upon them, in respect of that incident and that their action or failure to act has not been prompted by the fact that the claimant brought the proceedings against the respondents, or assisted another person in other tribunal proceedings.
7. This claim arises out of tribunal proceedings case number 397/93 SD, where the claimant, together with Mrs Donnell (then called Miss Graham, under another case reference), were applicants in an industrial tribunal in which they made a sex discrimination allegation against the first and second named respondents, in or about January 1993.
8. Future references to "the board of governors" and to "the headmaster" are to the board of governors and headmaster of the first named respondents.
9. The first of these incidents on which the tribunal make a finding of fact occurred in January 1993, at the time when the claimant's sex discrimination claim was lodged with the tribunal. These incidents continued until the time of the commencement of these proceedings in 2002. All these incidents, the claimant felt, were evidence of victimisation of her, because she brought the original proceedings in 1993.
10. The claimant was unsuccessful in an application for the post of Development Officer, Library Resources, which appointment was made on 9 March 1993. The tribunal find that at the meeting, at which the Development Officer appointment was made, the board of governors were informed that two cases were running before the industrial tribunals concerning sex discrimination. However the names of the applicants, one of whom was the claimant, were not disclosed to the board members at the time of the interview process. The tribunal, although surprised that the chairman of the board did not know the names of the claimants, accepts the evidence of the first named respondent's witnesses and find that the board of governors did not know that the claimant was involved in the case and consequently her non appointment is not as a result of her being victimised.
11. On 6 October 1994, the decision of the tribunal in the sex discrimination case was announced and on 17 November 1994 the respondents appealed the decision.
12. In November 1994, at about the time of the appeal of the decision the claimant claimed that, on entering a room in which members of her department, the English Department, were meeting, she was greeted by the conversation stopping, as if the conversation had been about her. There was an embarrassed silence and then, the claimant said, Miss Roberts took her by the arm and led her out. Regarding this incident the tribunal prefer the evidence of Miss Roberts who denied that the claimant was being discussed and denied leading her out. The tribunal hold that the claimant was imagining that people were talking about her and that there was no evidence to substantiate her allegation.
13. Shortly after the decision of the tribunal in the autumn of 1994, the claimant endeavoured to adjust a Venetian blind at an English Department meeting held in the room of the head of department, Miss Roberts. The claimant claimed that she was somewhat intimidated by Miss Roberts' tone of voice in shouting at her; not to touch the blind as it was in a precarious condition.
14. The tribunal's finding of fact on this incident was that the blind was in a delicate state and a" fix it note" had been attached warning people not to touch it. Ms Weatherup and Ms Oliver referred to the matter in their evidence, which is accepted by the tribunal, that Miss Roberts did speak somewhat sharply to avoid the claimant touching the blind but this was not meant in any malicious way as there was a reason for Miss Roberts's concern, namely that the blind could suddenly collapse. There was no evidence of victimisation.
15. Following the announcement of the industrial tribunal decision the claimant alleged that the chairman of the board of governors, the Reverend McConnell had glared at the claimant in the entrance way to the school.
16. The tribunal having considered the evidence concerning this incident, hold, in the light of evidence that there were various members of staff and pupils milling around the entrance way at the time, that the chairman of the board had not intended to glare at the claimant or indeed at anybody. However it may have come across to the claimant that he failed to acknowledge a greeting from her. The tribunal hold that the chairman did not deliberately act in an intimidating manner to the claimant but may have failed to observe the social niceties. Again there was no evidence of victimisation.
17. In early November 1993 an incident occurred with the parents of a child Joanne Jenkins. A misunderstanding occurred as to whether or not a parental complaint had taken place. The child had been taught by other members of staff during a period of illness of the claimant. The tribunal find that the handling of this matter by the Headmaster was reasonable and that the matter indeed was a misunderstanding which was soon cleared up. This incident, like a number of small incidents, is, in the opinion of the tribunal, the type of incident that occurs on a daily basis in any large school and might be regarded as 'the rough and tumble' of school life. Misunderstandings occur and matters which might in one light appear to be complaints are not complaints at all but these occurrences have to be investigated by the school and often, as in this case, no action is taken in relation to these incidents. There is no evidence of victimisation. However the tribunal do find that there was a lack of policy and guidance on these matters for both pupils staff and parents which possibly caused confusion.
18. On 24 February 1995, the claimant was involved in a Health & Safety Inspection in the school. Some amount of difficulty had arisen regarding the organisation of this Health & Safety Inspection as the claimant had to be replaced in her classroom with another teacher while she was carrying out this duty. This caused a certain amount of aggravation with the headmaster but again, the tribunal hold that this was just a typical annoyance that could occur in a school day, no victimisation was evident in the incident.
19. Of a more serious nature; was an incident at about the same time when a note, which had been written by the claimant and thrown into the waste paper bin in a classroom, was recovered by a child and handed in to Mr McComb, one of the Vice Principals. The tribunal find that the note, which was written by the claimant and was a private note which she had discarded, spoke in a disparaging way about children in her class and used obscene language with reference to the children. Mr McComb was very shocked at this and handed the note to the headmaster who investigated it. The tribunal hold that the initial handling of this incident by the headmaster was fair and sympathetic to the claimant. The claimant stated that the headmaster had held on to this note for a long time with a view to using it against her. The fact that the headmaster held onto the note and refused to hand it back or destroy it was a mistake and led to further stress and misunderstanding for the claimant. A decision should have been taken to take a disciplinary case against the claimant or, after the matter was "spent", in that it was too old an event to support a complaint against the claimant, it might have been destroyed. However the note was not, in the opinion of the tribunal held "in terrorem" over the claimant as an act of victimisation. Indeed, the tribunal hold that the handling of this incident, which could have had very serious consequences for the claimant, (apart from the holding onto the note), to have displayed a caring and understanding attitude on the part of the headmaster, the very opposite of victimisation.
20. The next incident which occurred on 20 March 1995 concerned a complaint by a pupil called Guthrie. The allegation by the claimant was that Miss Roberts had attempted to solicit and encourage the making of this complaint. The tribunal hold that this was not the case. The school rule was that a complaint could not be considered unless it was in writing. Miss Roberts made it clear to the Guthrie parents that the complaint, if it was to be considered, had to be in writing. Again, this is an example of matters of quite a common occurrence, taking on far more significance in the mind of the claimant than they really deserve. Again there is no evidence of victimisation. However once again a lack of a proper complaints procedure caused difficulties which could have been avoided.
21. A similar incident involving a pupil Charlene McAuley, occurred in March 1995. Again the tribunal having heard substantial evidence about this matter hold that there is no evidence that the respondents used the incident to victimise the claimant. The child was in care and particular difficulties arose over her education. The tribunal hold that the constraints on the headmaster in relation to the child governed his actions.
22. On 30 June 1995, the first case in the industrial tribunal brought by the claimant and Miss Graham was settled, before the Appeal was heard and so the case came to an end.
23. In the autumn of 1995, problems arose again in the English Department concerning the linking of books and videos to provide training in English literature and the availability of library books for the children. The tribunal heard evidence from the claimant that she felt that the other members of the English Department were "ganging up" against her. The tribunal find there was a division in the department, where a number of the teachers, who felt that the claimant was a disruptive influence did try to bring matters to a head to resolve their frustration, at what they saw as a negative attitude of the claimant. However the employees, who she alleged were taking a position against her, were her colleagues, or slightly senior to her and the tribunal cannot agree that the first named respondent was behind the action of the teachers and thus victimising the claimant because of her previous claim. These arguments and disputes in the English Department appear to have arisen out of clashes in personality between some of the members including the claimant. As will be seen later, the first named respondents did take action to try and resolve these problems.
24. During this period of time the claimant made allegations that various people were discussing her previous tribunal case. For instance, on 21 December 1995 the tribunal heard evidence that Mrs McCormick one of the Vice Principals discussed the case with Mr Atcheson another teacher in the school and a union representative with NASUWT. This is one example of the allegation that the tribunal decision was being discussed. This tribunal feels that it was natural that a certain amount of curiosity would be engendered by the earlier tribunal and it would not be unexpected for members of the staff to discuss the case from time to time. This however does not in the view of this tribunal show any evidence of victimisation on the part of the first named respondent against the claimant.
25. A further element of the claimant's allegations of victimisation revolved around the marking of exam papers in the English Department. It was necessary for each teacher to take on some additional papers and this the tribunal hold was something that all the teachers in the English Department had to cope with and was not in any way aimed solely at the claimant. There is no evidence of victimisation.
26. During the end of the summer term in 1997 and the following September term of the same year, matters in the English Department became strained. A letter dated 27 June 1997 complaining about the claimant was signed by a number of teachers in the English Department and delivered to the headmaster. The tribunal hold that this letter arose out of disputes in the English Department and was not evidence of any victimisation on the part of the senior management of the second named respondent.
27. In September 1997 further difficulties arose in the English Department, when the claimant raised complaints about her timetable and the absence from it of any library duties, which she had particularly requested. The tribunal having heard lengthy evidence on this matter, prefer the evidence of the first named respondent's witnesses, who explained the difficulties in timetabling. The tribunal hold that no victimisation occurred as a result of the fact that the complainant got no library duties.
28. The tribunal considered a memo dated 29 May 1998, from Miss Roberts (head of English Department) to all members of the Department. The claimant claimed that this was aimed at her as she was named in this document and certain of her shortcomings were alluded to. The tribunal hold that this memo was aimed at the Department by Miss Roberts who was entitled to send such a memo. The tribunal accept the evidence of the headmaster and hold that the head master was not party to the memo, save to receive it, and no victimisation is evident in the incident.
29. As a result of the memo referred to above, the claimant commenced a complaint under the stage 1 of the grievance procedure of the first named respondents. The tribunal, having studied the documents exhibited and heard the evidence concerning this matter, hold that Mr McCrea, the head master, handled the grievance in a reasonable and fair manner and exhibited no victimisation of the claimant.
30. The claimant, not satisfied with the result of stage 1 of the grievance procedure, on 25 June1998 referred the matter to the board of governors under stage 2. The tribunal had the benefit of lengthy minutes of the governors meetings. The tribunal having read these minutes and heard several witnesses accept the evidence of the first named respondents' witnesses, that although the claimant was unhappy with the outcome, the procedures adopted by the board of governors were fair and transparent and showed no evidence of victimisation.
31. The grievance then went to stage 3 where it was considered by the second named respondents. The tribunal hold that that respondent also dealt with the claimant's grievance in a fair and sympathetic way, with no evidence of victimisation. Indeed at that stage, a concession of withdrawal of the memo was made by the head master, which was one of the main requirements of the claimant.
32. Despite this concession the claimant took the grievance to stage 4 at the Labour Relations Agency. At this stage the first named respondents took the decision to appoint the Vice Principal, Mrs J McComick, to act in an attempt to improve working relations in the English Department. The Tribunal followed the evidence of the parties relating to this attempted reconciliation and find that it failed entirely due to the attitude of the claimant, who failed to make any concession or even see that a "coming together of minds " was required if any resolution was to be achieved. Instead she spent her energy on a series of formal memos and demands requiring various actions on the part of Mrs McCormick and on the part of Miss Roberts, which resulted in the failure of the initiative. The tribunal find no evidence of victimisation on the part of either respondent or on the part of any participating member of staff in this regard. The good intentions of the people concerned were frustrated by the attitude of the claimant.
33. On 19 November 1998 an incident occurred in the school which became known as "the car wash incident" where the claimant had a serious argument with another teacher, Mrs Dumigan, concerning possible damage to the claimant's car during the course of a sponsored car wash being carried out by Mrs Dumigan's class. The tribunal prefer the evidence of the headmaster, Mr McCrea, that he handled a series of meetings in a fair way. The tribunal having heard lengthy evidence concerning this incident and the subsequent efforts of the head master to deal with the complaints, consider this to be a dispute between two teachers, who each lodged complaints against the other, which went further than it should have done but again had nothing to do with any victimisation of the claimant by the respondents.
34. As a result of the car wash incident, disciplinary proceedings were instigated against the complainant which led to a verbal warning. She appealed to the board of governors. The tribunal, having heard the evidence and studied the documentation on this issue, find no evidence that the disciplinary proceedings, or the appeal were tainted with victimisation.
35. On 22 February 1999, the claimant again invoked the grievance procedure, this being because she alleged that the head master had not properly dealt with her complaint against Mrs Dumigan. This grievance was dealt with at a meeting of the board of governors on 6th May 1999, (the grievance thus passing directly to stage 2 because of the head master's involvement in the complaint). Whilst agreeing with the claimant that the grievance was not really dealt with satisfactorily, the tribunal hold that the decision of the board, to try and "move on", was reasonable and free from any evidence of victimisation.
36. In April 2000 there occurred an incident, known as "the Hodgson incident", where the claimant allegedly shouted at Mr and Mrs Hodgson, when at a meeting set up with Mrs McCormick, to resolve teaching difficulties with their child. The tribunal accept the evidence of Mrs McCormick, that both parties at the meeting raised their voices and that this was a difficult interview, but of a type that does from time to time occur in the life of a school. Unfortunately the parents took the matter further and complained to the board of governors. The board asked the head master to investigate the incident. The head master and the board, despite advice to the contrary, from the Mr Laverty of the second named respondents, refused to show the full letter of complaint to the claimant. This the tribunal consider was unfair of the first named respondents, however the tribunal hold that despite this mistake the first named respondents did not refuse the claimant sight of the full letter in order to victimise her. The board of governors at the conclusion of their investigation into this incident decided to take no action against the claimant on foot of the letter of complaint. The tribunal hold that there is no evidence of victimisation in the evidence arising out of this incident.
37. At about the same time as the above incident, a further incident known as "the Houston incident" occurred. The claimant wrote a letter to the parents of the Houston child on school notepaper and without observing the proper procedure of sending the letter through the office, having first had it cleared. The tribunal hold that this was a serious breach of school rules and that it was reasonable and indeed the duty of the board to investigate it. The tribunal hold that the matter was fairly investigated and that there is no evidence of victimisation of the claimant because of her earlier tribunal case.
38. In September 2000 a further dispute arose between the claimant and Mrs Dumigan,"the second Mrs Dumigan incident". The claimant made a complaint to the head master, who on this occasion decided to deal with it informally. At this time the claimant had to go into hospital. The claimant wrote a series of letters to the headmaster about his handling of this incident. The tribunal having considered these letters, accept the headmaster's evidence, that he was trying to help the claimant to concentrate on her career and try to get away from these endless disputes. The tribunal find no evidence of victimisation in this incident.
39. After her return to school in May 2001, the headmaster asked the second named respondents to arrange for her to have the benefit of an examination by the Occupational Health Physician. To assist the doctor the headmaster wrote a lengthy resume of the recent history of the claimant's employment in the school. The claimant was not permitted to see this report and the subsequent medical report. She only got a copy of it by contacting the occupational health office. The tribunal is critical of this action of refusing the claimant sight of her report, as it led to suspicion on the part of the claimant which could have been avoided. Despite the secrecy and the claimant's objection to the head master's resume, the tribunal hold that it was a fair assessment of the situation, written to assist the doctor when he saw the claimant, and the document and the surrounding secrecy displays no evidence of victimisation.
40. After the claimant returned to the school in May 2001, after a lengthy period of sick leave arising out of an operation, a dispute arose between the claimant and Mr Lewis, a temporary teacher who had been standing in for the claimant. The tribunal heard much evidence on this matter, which escalated to such an extent that the police were involved. The claimant felt that it was unfair, that she alone was disciplined, whilst Mr Lewis, who was leaving the school in any event, was not disciplined. The tribunal can see the claimants point of view, but accept the evidence of the first named respondent's witnesses, that the claimant was the main instigator of the dispute and furthermore, even if the matter was unfairly handled, it was because of the multiplicity of complaints coming before the board of governors involving the complainant and not for the purpose of victimising her, because of proceedings that she had brought against the respondents many years before.
41. The claimant, in earlier years, had done a certain amount of A level teaching. Despite repeated requests she did not receive any A level classes on her return from sick leave in May 2001. The division of teaching work appears to have been previously discussed at English Department meetings, but this appears to have fallen into abeyance. Consequently the system of division of work was not transparent but the tribunal could find no evidence of victimisation.
42. On her return from sick leave in May 2001, the board of governors dealt with the outstanding disciplinary proceedings namely the Hodgson incident and Lewis Incident. The claimant was given a final written warning, which was upheld on appeal in November 2001. The tribunal find no evidence of victimisation in respect of this disciplinary process.
43. On 2 January 2002 the claimant commenced this claim in the tribunal.

THE LEGAL CONTEXT

44. The tribunal reminded itself of the legal requirements of a claim of victimisation as set out in paragraph 3 above. Namely that it was necessary for the tribunal to consider each incident recounted by the claimant and decide if the evidence adduced by the respondents discharged the burden of proof which lay upon them, to show that they responded to each incident involving this claimant in the same manner as they would have responded to the incident had it involved either an actual or hypothetical comparator. Assuming that the comparator had not been involved in tribunal proceedings against the respondents or as a witness to such proceedings.
45. The tribunal were guided by a paragraph in Harvey on Industrial Relations and Employment Law, [Division D2 Paragraph 594] which states

"Only the employer knows what prompted him to behave as he did, and therefore formal onus of proof is placed on the employer to show the ground upon which any act, or any deliberate failure to act, was done."

DECISION OF THE TRIBUNAL

46. The tribunal having reviewed all the evidence and studied the volumes of documentation can find no evidence of the claimant being victimised, either because she took a claim against these same respondents, or because, at a later date, she assisted a colleague who had a dispute with the same respondents which ultimately led to a tribunal hearing, at which hearing she was a witness.
47. There is no doubt that from time to time during this long period of dispute, the first named respondents made mistakes of procedure and of judgment, however none of these wrong decisions were, in the finding of this tribunal, motivated by a desire to victimise the claimant.
48. The tribunal hold that the claimant was guilty of two serious breaches of discipline, namely the Houston incident of the unauthorised letter and more serious still, the incident of the thrown away note containing some obscene words which was recovered from a waste paper basket by a pupil. The sympathetic handling of these two matters by the head master belies any claim that he wanted to victimise the claimant.
49. The tribunal disagree with some of the decisions taken by the board of governors, for instance over the decision not to show the claimant the complete letter of complaint from the Hodgsons and on some occasions when it appears that the claimant was excluded from part of the hearings and thus unable to ask questions that she felt were relevant. However despite these shortcomings, there was no evidence, throughout this very long case, of victimisation of the claimant by the board of governors. The tribunal is satisfied that the first named respondent has discharged the burden of proof laid upon it.
50. There was no evidence of victimisation of the claimant by the second named respondents and it likewise has discharged the burden of proof laid upon it.
51. The claimant in her application to this tribunal claims that the first named respondent was in breach of the Public Interest Disclosure (Northern Ireland) Order 1998 (the 1998 Order), this breach was alleged to be in connection with the unauthorised letter on school paper that the claimant wrote on 10^th May 2000 to Mrs Houston. This matter was not pursued by the claimant at the hearing but in order to dispose of all matters, the tribunal did consider this aspect of the claim. The tribunal hold that the 1998 Order cannot be called to aid of the claimant in this matter as under Article 67B of the 1996 Order (as enacted by Article 3 of the 1998 Order) the claimant, to gain the protection of the Order, must show that the disclosure was a "qualifying disclosure" as therein defined. There is no evidence that this letter which was a complaint by the claimant, to a mother about the conduct of her child, contained any such qualifying disclosure.
52. The tribunal consequently dismisses all the claimant's claims.

Chairman:

Date and place of hearing: 8-10, 13-17 June 2005, 9-11, 14-18, 21-25 November 2005

23-24, 26-27 January 2006, 15-16, 18-19 May 2006, 6-8 June 2006 and 16 October

2006, Belfast.

Date decision recorded in register and issued to parties: