Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 2223/04

CLAIMANT: Martin Thomas Knox

RESPONDENTS: 1. Patricia Henry

2. Board of Governors of Drumcree College

3. Council for Catholic Maintained Schools

DECISION

The unanimous decision of the tribunal is that the claimant was not the victim of sexual discrimination in his employment with the respondents.

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Dr Eakin

Mrs Ley

Appearances:

The claimant was represented by Mr T Carlin of Irish National Teachers Organisation.

The respondents were represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

1. THE CLAIM AND THE DEFENCE

The claimant contended that he had been the victim of sex discrimination in his employment with the respondents. The claimant relied on a number of incidents which the tribunal will discuss in the body of the decision culminating in a failure to short list him for the post of Vice Principal of the school. The respondents denied that the claimant was treated in a manner that was discriminatory and contended that the claimant was not short listed as he failed to meet the criteria applied by the short listing panel.

2. SOURCES OF EVIDENCE

On behalf of the claimant the tribunal heard evidence from the claimant on his own behalf, from Mr D McLaughlin (the former Vice Principal of the school), from Mr Mairtin McConville (a senior teacher of the school), Mrs Veronica Knox (sister-in-law of the claimant and a teacher for 25 years at Drumcree College) and Mr Frank Bunting of Irish National Teachers Organisation. On behalf of the respondents, evidence was given by Mrs Patricia Henry (the Principal of the school) and Ms Suzette Bracken (Personnel Manager of the third respondent). The tribunal also had an agreed bundle of documentation.

3. ANALYSIS OF EVIDENCE

In general, the tribunal preferred the evidence given on behalf of the respondents as it was consistent with the witness statements provided and balanced. The claimant indicated that he regarded Suzette Bracken as an 'honourable' person. In contrast, the evidence given by the claimant and on behalf of the claimant was informed by a sense of dislike of Mrs Henry and a sense of grievance against her. The tribunal would except from this comment the evidence given by Mrs Veronica Knox. Mrs Knox was extremely balanced and fair in the way in which she gave the evidence. However, most of her evidence related to incidents which occurred after Doctor Knox had left the school, and as such could only be assigned a very small weighting in the overall consideration of the evidence. The tribunal is also aware that Mrs Knox has a long-running grievance against Mrs Henry, and aware of the possibility that her evidence could be affected by this.

4. THE APPLICABLE LAW

The applicable law is found in the Sex Discrimination (Northern Ireland) Order 1976 and in particular Articles 3 and 4. In the context of this case the claimant was complaining that he had been treated less favourably than females in and around the short listing of candidates for the post of Vice Principal of Drumcree College.

5. THE FACTS FOUND

5.1 The claimant, Doctor Knox, is a very highly educated teacher who taught at Drumcree College at the time of the incidents in question which was June 2003 to approximately March 2004. Doctor Knox, over and above his basic qualification, holds two further diplomas and two further degrees. Before the events of June 2003 to March 2004 he 'acted up' as Vice Principal on two occasions.

5.2 In June 2003, Mrs Patricia Henry was appointed as Principal.

5.3 The claimant contended that he had been discriminated against on the ground of his gender and that this had been an 'ongoing' campaign against him. The first incident to which he drew attention was an alleged conversation between Mrs Henry and Mr McLaughlin in June 2003 when Mrs Henry was Principal designate of Drumcree College. Allegedly in this conversation she referred to Doctor Knox as 'him'. Doctor Knox contended that that was less favourable treatment on the ground of his gender. The tribunal heard virtually no evidence about the actual context of the alleged reference to Doctor Knox. The discussion appeared to be a discussion between Mr McLaughlin who was handing over as acting Principal and Mrs Henry who was the incoming Principal.

5.4 At a staff development meeting in August 2003 Mrs Henry asked the claimant and the three other men who were sitting at his table to disperse amongst the women members of staff.

5.5 In the same meeting, the claimant was admonished in front of the whole staff of Drumcree College for addressing Mrs Henry as 'Patricia', when she had asked the staff to refer to her as 'Mrs Henry' in a formal situation.

5.6 Following immediately upon this staff development meeting, the claimant attended at the Principal's Office without appointment at 8.30am the next day. He refused to leave the Principal's Office until she had dealt with his concerns about the way he had been treated and the Principal was forced to consider the option of calling the police to remove him.

5.7 At a prize giving in the school sometime between late October to early November 2003 the claimant was assigned security duty which he regarded as demeaning.

5.8 The claimant was admonished for leaving school without the consent of Mrs Henry on or around 13 November 2003.

5.9 The claimant, in March 2004, was not short listed for the post of Vice Principal at the school.

5.10 The claimant alleged that these events constituted an on-going course of conduct culminating in the direct discrimination of failing to short list him for the post of Vice Principal. The claimant sought to establish that these facts constituted an ongoing campaign of sex discrimination. The respondents contended that as there had been no events between early November 2003 at the latest and March 2004, the chain of causation was broken. The tribunal accepted this argument and in the consideration of these points regards them as background to the main allegation which was the failure to short list for the post of Vice Principal.

6. CONCLUSIONS

The tribunal has considered each of the events complained of and concludes as follows:-

(i) The reference to Doctor Knox as 'him' in June 2003.

The tribunal heard insufficient evidence to enable it to make any finding as to whether this was a primary fact from which discrimination could be inferred. The context of the general conversation between Mrs Henry and Mr McLaughlin was a hand over discussion about the transition between Mr McLaughlin as acting Principal and Mrs Henry as the incoming Principal. The tribunal heard virtually nothing of the context of the reference to Doctor Knox as 'him'. Accordingly, the tribunal cannot find this as a primary fact from which discrimination can be inferred.

(ii) The remark about four men sitting together at a table.

The claimant took issue with Mrs Henry asking his table of four men to disperse amongst the tables of other staff (women) in the library in the staff development meeting. The claimant regarded that as discrimination on the grounds of gender. The tribunal has noted that the gender proportions in this school were heavily weighted in favour of women. The tribunal does not see that it would have been logical or feasible for the reverse to have happened and the women asked to disperse amongst the men. Had it been the case that the gender proportions were less heavily weighted in favour of women, this might have been feasible. There was a dispute in the evidence. Mrs Henry's version was that she asked the four men to split up to give a balanced point of view by joining tables with women members of staff. The claimant contended that she said that she "did not like the idea of four men sitting together at a table". The tribunal accepts Mrs Henry's version and regards her as a more credible witness as her explanation that she asked them to split up to give a more balanced point of view from various tables was entirely feasible.

(ii) The admonishment for calling Mrs Henry 'Patricia'.

Mrs Henry had made it clear in the meeting that she wished the staff to refer to her as 'Mrs Henry'. The claimant referred to her as 'Patricia' in reporting back to her on behalf of his table. Mrs Henry said that she thought that she had made it clear that she wished to be referred to as Mrs Henry. While the tribunal would accept that Mrs Henry handled this event less diplomatically than she might otherwise have done, the tribunal is unable to conclude that the admonishment of Doctor Knox in front of the staff was discrimination on the ground of gender. The claimant accepted that it would have been no different if a female member of staff or a hypothetical comparator had referred to the Principal as 'Patricia'. This being the case the tribunal is unable to conclude that this is a primary fact from which an influence of discrimination might be drawn.

(iii) The refusal to leave the Principal's Office.

The claimant regarded the terms in which Mrs Henry referred to him in her incident report as being discrimination on the grounds of gender. A selection of the comments made is as follows:-

"… his deportment and body language were threatening and I felt concerned for my safety…".

"… he responded by moving forward aggressively in his chair …".

"… I knew that Mr Knox was no longer in control of his emotions and for me the threat of violence was imminent".

"… this is a very scary man who is not in control of his emotions…".

This was Mrs Henry's view on what happened.

Mrs Henry explained that she and Doctor Knox were seated at right angles within approximately an arm's length each of the other. The tribunal makes no finding upon the nature of the exchange between the parties in this instance, but takes note of the fact that Doctor Knox refused to leave the Principal's Office and Mr McLaughlin had to be called in to deal with the situation and Doctor Knox still refused to leave the Office, only leaving eventually at 9.20 am. Again, the tribunal is unable to conclude that this is a primary fact from which discrimination can be inferred. The situation would have been the same had a woman or the hypothetical comparator behaved in the fashion of Doctor Knox in refusing to leave the Principal's Office.

(iv) The duty of security at the prize giving.

Doctor Knox considered that this was demeaning. He considered that a woman would not have been given this duty. Mrs Henry explained that Doctor Knox had been invited to the reception prior to the prize giving, had been with the platform party throughout, and had taken part in the photo shoot with the prize winners. This being the case, we do not consider that Doctor Knox was in any way treated less favourably. Doctor Knox certainly did not allege that he had not participated in the events as explained by Mrs Henry.

(v) The absence from the school on research grounds.

When Mrs Henry became Principal of the school she instituted a number of management changes, one of which was the requirement that teachers leaving school during school hours should do so only with her consent. Doctor Knox indicated that he was less favourably treated than Mrs A McKeague who was also conducting a research exercise in the school and was not required to explain why she was engaged in it and why she had not sought permission from Mrs Henry to conduct it. The tribunal accepts the evidence of Mrs Henry which was that Mrs McKeague had obtained her consent in accordance with the new management practice. As this is plainly a case in which the situation between the direct female comparator Mrs McKeague and Doctor Knox are very radically different, the tribunal is unable to accept that this is a fact from which discrimination might be inferred. As previously indicated elsewhere in this decision, the tribunal considers that the foregoing points are background to the main allegation that he was less favourably treated as he was not short listed as a candidate for interview in the recruitment exercise for the post of Vice Principal.

(vi) The failure to short list.

The claimant was one of nine applicants for the post of Vice Principal and this pool of applicants consisted of persons internal to the school and external to the school. The claimant was not short listed and the reason for this was that upon short listing the short listing panel decided to reduce the pool of applicants to five – six and to do this enhanced the essential criteria. If the first enhancement had not sufficiently reduced the pool, the

enhancement process would have continued until the pool was reduced to the requisite number.

Originally, the requirement had been for two management allowances for a total of three years. On enhancement, the criterion rose to being three management allowances for three years. Doctor Knox contended that Mrs McCabe was short listed and he was not and that this was less favourable treatment on the grounds of his gender. He also contended that the short listing panel had failed to consider that his special needs teaching points would give him the required essential criterion. The claimant's case at its height was that there was a conspiracy between Fr. Larkin and the Principal, Mrs Henry, to exclude him from the pool of applicants to be interviewed. This was to be achieved by the enhancement of the criteria. The tribunal heard much evidence on behalf of the claimant concerning the status of special educational needs points and also some very confusing evidence from Mr Frank Bunting to the effect that special educational needs points should be treated in the same way as management allowances. The tribunal on this point preferred the evidence of Ms Suzette Bracken, whom even the claimant regarded as an 'honourable' person which was that special educational needs points were teaching points and not management allowances. She explained that on an internal trawl, which would have been the method of selection for the acting posts previously enjoyed by the claimant they may have been taken into account. Ms Bracken made the point which the tribunal accepts that it would have depended on the requirements of each and every recruitment exercise. The other limb of the claimant's claim in respect of the short listing exercise was that Mrs McCabe was allowed to become short listed without fulfilling the criteria. Ms Bracken accepted that this was a mistake on her part arising from a misconstruction of Mrs McCabe's teaching experience. As this would have been the case whether or not Doctor Knox or a hypothetical comparator had been involved, as this treatment was a mistake, the tribunal is unable to conclude that this is a fact from which an inference from discrimination could be drawn. Ms Bracken is a very experienced person having conducted perhaps twenty such short listing meetings as part of recruitment exercises. She gave evidence to the tribunal which was not in any way controverted by the claimant indicating that she saw no evidence of a conspiracy between Mrs Henry and Fr. Larkin to exclude the claimant. She pointed out that the question of enhancement originated with her as it was a way of restricting the pool to five or six candidates for interview which was about the normal number in such exercises. She led the discussion. She indicated that had she seen any reason for concern she would have immediately dealt with the 'conspirators'. The tribunal has also noted that Ms Bracken also had the benefit of assessors from the third respondent working with her and they had no difficulty with the enhancement. Finally on this point, the tribunal has noted that the question of enhancement was agreed before the pool of claimants was actually known by the opening of the application envelopes. The tribunal considers that there was no conspiracy between Mrs Henry and Fr. Larkin and declines to find this as a primary fact from which an inference of discrimination could be drawn.

Finally, there is no doubt in the minds of the tribunal that there was considerable bad feeling between Mrs Henry, the claimant, Mr McLaughlin and Mr McConville in the management of Drumcree College and there has been behaviour between Mrs Henry and Dr Knox which has not contributed to the smooth running of the school, and which has been inappropriate. The tribunal has noted the evidence of Veronica Knox which was that Mrs Henry had forcibly removed the media report of Doctor Knox becoming Principal of another school from the school notice board. This, in the view of the tribunal goes to show the depth of bad feeling between Mrs Henry and Doctor Knox and his colleagues. However, it is not of itself a fact from which discrimination can be inferred as it occurred after the relevant time which was between November 2003 and March 2004. The tribunal has already commented elsewhere in this decision about the admonishment of Doctor Knox in front of the whole staff. This was insensitive. The tribunal has noted the allegation by Veronica Knox that on one occasion Mrs Henry summoned Doctor Knox in a manner that was less than polite, in front of pupils. Once again this goes to show the depth of bad feeling in this school. This occurred in or around April 2004. It was inappropriate at the very least but the tribunal has noted that on Veronica Knox's evidence the Principal spoke impolitely to another female teacher in the same incident and declines to find this a primary fact from which discrimination can be inferred. This was not referred to by Doctor Knox in his evidence, and the tribunal infers from this, that the incident was not regarded by him as being part of the alleged course of conduct of which he complained.

The tribunal has also noted that Veronica Knox has also taken a grievance against Mrs Henry.

As the tribunal has not found primary facts from which an inference of discrimination could be drawn the question of the burden of proof shifting to the respondents does not arise. The complaint of the claimant is dismissed.

Chairman:

Date and place of hearing: 5 - 9 June 2006, Belfast.

Date decision recorded in register and issued to parties: