Industrial Tribunals Northern Ireland Decisions

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Cite as: [2005] NIIT 65_97

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00065/97SD

03644/99SD

CLAIMANT: Dr Lorna Lawrence

RESPONDENT: Queen's University of Belfast

DECISION

The unanimous decision of the tribunal is that the claimant should be compensated by the respondent because the respondent unlawfully discriminated against her by way of victimisation in 1996 and again in 1999. The respondent is hereby ordered to pay to the claimant the sum of £16,046.14 in respect of case reference number 65/97SD and £12,381.81 in respect of case reference number 03644/99SD.

Constitution of Tribunal:

Chairman: Mrs M Davey

Panel Members: Mr N Wilkinson

Mr J Patterson

Appearances:

The claimant appeared in person.

The respondent was represented by Mr S Shaw, Queen's Counsel, with Mrs M Lewis, Barrister-at-Law, instructed by L'Estrange & Brett, Solicitors.

The issues for determination in this aspect of the cases are whether the claimant is entitled to compensation by way of injury to feelings, aggravated damages and loss of pension in respect of both cases.

The Facts

Professor Gilmour and Professor Pearce were the most senior academic staff in the Faculty and School of Agriculture and Food Science in the University where the claimant was a lecturer. They victimised the claimant in various ways as set out in the decision previously issued. The University, despite the claimant bringing the matter to its attention through a complaint to its Equal Opportunities Department in 1996, took no steps to deal with the problem with regard to the behaviour of Professor Pearce and Professor Gilmour. The claimant, as a result of the ongoing undermining treatment of her by Professor Pearce and Professor Gilmour, sought a secondment away from the University and went to work in the Livestock and Meat Commission in 1998.

When her secondment term was coming to an end, and with a view to building up her research team for her return to her lecturing post at the University, the claimant prepared an application for a CAST Award in conjunction with the local poultry industry, which Professor Pearce and Professor Gilmour refused to approve on spurious grounds.

This led the claimant to conclude that she could not return to the University and her academic research life and she sought and obtained a full-time post with the Livestock and Meat Commission and subsequently a more highly paid post with a commercial company, where she still carries out research but in a different field from that in which she specialised and had considerable standing in her University role.

The claimant suffered considerable injury to her feelings as a result of the way she was treated by Professors Pearce and Gilmour and in the University's failure to take any steps to deal with their behaviour. In particular, the claimant's decision to seek a secondment away from the University and subsequently not to return to her academic life because of the way she was treated caused her considerable anguish.

The claimant, with the benefit of legal advice, reached a compromise settlement with her other employer, the Department of Agriculture and Rural Development, and Professors Pearce and Gilmour who were named respondents in respect of case reference numbers 65/97SD and 03644/99SD and an earlier complaint and she received a payment of £5,000 in respect of those complaints. That settlement was without prejudice to her continuing these claims against the University.

The claimant provided the tribunal with written submissions and the respondent's representative provided a skeleton argument which are attached hereto and intended to form part of this decision.

In essence, the claimant maintained that she should be compensated by the University in respect of both cases of victimisation for injury to feelings, aggravated damages and loss of pension rights.

With regard to the injury to feelings aspect of the claims, the claimant maintained that the actions of Professor Pearce and Professor Gilmour, who were the most senior academic staff in the Faculty of Agriculture and Food Science, undermined her with respect to her peers and the students, both undergraduate and postgraduate, and also with outside industry with whom she worked closely. This included their refusal to support one of her research students for a higher degree in February 1996, Professor Gilmour's attempt to block funding from MAFF in March 1996 for one of the claimant's research student's projects and in the withdrawal of one of the claimant's suggested research topics for undergraduate students without informing her in advance in September 1996.

The claimant also pointed out that, although she complained to the University's Equal Opportunities Department in 1996 and an investigation was carried out, no action was taken by the University to resolve her complaint.

Mr Shaw's arguments were that the claimant should not be entitled to any payment for loss of pension, which he maintained was part of her earnings because she had indicated at a hearing in 2003 that she was not pursuing a claim for loss of earnings. He also suggested that, by including a claim for loss of pension at this stage, the University had been placed at a disadvantage in dealing with this aspect of the matter. He maintained that, even if the claimant could bring a claim for loss of pension, it should not be countenanced because the claimant needed to show a detriment and that such detriment was caused by the respondent.

Mr Shaw accepted that the claimant would be entitled to compensation for injury to feelings, but suggested that this should be less than £5,000 in view of the settlement previously reached between the claimant and the Department of Agriculture and Rural Development and Professors Pearce and Gilmour. He maintained that an award for aggravated damages should not be made. He also appeared to suggest that any award should be made jointly and severally against the University and the other respondents, although the other respondents had already been dismissed from the claims.

The tribunal did not accept the respondent's contention that by indicating at a previous hearing that she would have no claim for loss of earnings the claimant was not pursuing a claim for loss of pension. In coming to that conclusion, the tribunal took into account that the claimant was not a legally qualified person and was not represented at that hearing. In addition, it is clear that the legal textbooks, in dealing with calculations for particular heads of loss, rightly regard loss of earnings and loss of pension entitlement as two separate matters. The tribunal therefore did not accept the respondent's argument that the claimant was estopped from bringing a claim for loss of pension in these circumstances. The tribunal also did not accept that the University was at any disadvantage in allowing this matter to be dealt with at this remedy hearing. The University was aware from at least the third day of the hearing in January 2005 that the claimant was claiming compensation for loss of pension rights as set out in her original schedule of loss and therefore had ample time to deal with this matter.

The tribunal, however, is not satisfied that it should make any award with regard to loss of pension rights as against the University. In coming to this conclusion, the tribunal took into account that the claimant's pension would have been paid by the Department of Agriculture and Rural Development with whom she had already settled her complaints and not by the University. In addition, the claimant continued in a broadly equivalent pension scheme while with the Livestock and Meat Commission and elected, for her own reasons, to move from that employment to the private sector at a considerably higher salary. The tribunal considered therefore that there was no direct link between the victimisation she suffered and the loss of pension benefits.

Even if the tribunal had accepted that there was a direct link between the victimisation and the loss of pension benefits, the tribunal considered that it would not be just and equitable to award compensation in this regard where the claimant of her own volition chose not to enter her private sector employer's pension scheme nor to make any personal provision for a pension. By failing to take any steps in this regard the tribunal concluded that the claimant had failed to mitigate her loss.

The tribunal considered that it would be just and equitable to compensate the claimant for injury to feelings in respect of both victimisation claims as against the University. In coming to this conclusion the tribunal took into account that the majority of the matters complained of in the originating applications related to matters within the academic sphere rather than the claimant's day to day work for the Department of Agriculture and Rural Development. The tribunal noted that the claimant had reached a compromise agreement in respect of these claims in the sum of £5,000 as against the Department of Agriculture and Rural Development and Professors Pearce and Gilmour. The tribunal took account of this settlement, but was conscious of the fact that it was a compromise agreement.

The tribunal accepted that the way the claimant was treated by Professors Pearce and Gilmour and by the University resulted in her being undermined among her fellow lecturers, the research students whom she supervised, the students in the classes she taught and outside bodies such as the companies in the poultry industry with whom she was involved in conducting research on their behalf.

The tribunal also considered that Professors Pearce and Gilmour, and through them the University, had acted in a high-handed and malicious fashion in their treatment of the claimant in respect of both cases and the tribunal has included an amount in each case by way of aggravated damages on this account.

The tribunal concluded that the injury to the claimant's feelings in both these cases fell within the middle band in Vento -v- Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102. In respect of case reference number 65/97SD, the tribunal considered that an appropriate amount for compensation for injury to feelings would be £9,000, including £1,500 for aggravated damages. In coming to this decision, the tribunal took into account the length of time over which the various acts of victimisation occurred, the effect of these actions on the claimant and the University's failure to take any constructive steps to prevent it despite her complaint to the University's Equal Opportunities Department.

With regard to case reference number 03644/99SD, the tribunal considered that the University should pay compensation to the claimant for injury to feelings in the sum of £8,000, which also includes an amount of £1,000 for aggravated damages. In coming to this conclusion, the tribunal took into account that, while this was a single act of victimisation in the refusal of the two Professors to support the claimant's application for a CAST Award, it was a clear indication that Professors Pearce and Gilmour were continuing their victimisation of the claimant and making it clear that she would not be welcome back in the Department/School of Agriculture and Food Science in the University. In this regard, their behaviour was again both high-handed and malicious.

The tribunal then considered whether to award interest on the amounts awarded and concluded that it should award such interest. The tribunal calculates the compensation to be awarded as follows:

Case Reference Number 00065/97SD

Injury to feelings: £9,000

The first act of discrimination in relation to this case occurred on 19 February 1996 with the rejection of Miss L's application to become a research student on the recommendation of Professor Pearce.

Interest @ 8% on £9,000 from 19 February 1996 to 30 November 2005 (the date of calculation) (3,572 days) = £7,046.14.

The respondent is therefore ordered to pay to the claimant the sum of £16,046.14 in respect of case reference number 00065/97SD.

Case Reference Number 03644/99SD

Injury to feelings = £8,000

The act of discrimination in this case being the refusal of Professors Pearce and Gilmour to approve the CAST application occurred on 27 January 1999.

Interest @ 8% on £8,000 from 27 January 1999 to 30 November 2005 (the date of calculation) (2,499 days) = £4,381.81.

The respondent is ordered to pay to the claimant the sum of £12,381.81 in respect of case reference number 03644/99SD.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 2 November 2005, Belfast

Date decision recorded in register and issued to parties: