Industrial Tribunals Northern Ireland Decisions

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Cite as: [2006] NIIT 9574_03, [2006] NIIT 9574_3

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THE INDUSTRIAL TRIBUNALS

CASE REF: 9574/03

CLAIMANT: Clare Rea

RESPONDENTS: 1. Grafton Recruitment Agency

2. DVLNI

DECISION

The unanimous decision of the tribunal is that the claimant's complaint of sex discrimination is not well founded and it is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr McArdle

Members: Mr Hughes

Ms Galloway

Appearances:

The claimant was represented by Mr G Purvis Barrister-at-Law, instructed by McGrady Collins Solicitors.

The first respondent was represented by Mr J Dunlop Barrister-at-Law, instructed by Comerton and Hill Solicitors.

The second respondent was represented by Ms L Askin Barrister-at-Law, instructed by the Departmental Solicitor's Office.

REASONS

The claim and the defence

At the conclusion to the first day of hearing the claimant withdrew her claim against the first respondent, without objection from either respondent. Accordingly, the tribunal dismissed the claimant's complaint against the first respondent.

The claimant alleged that the second respondent (hereafter, 'the respondent') had discriminated directly against her on grounds of her sex in that while she had been working for the respondent on assignment from an employment agency, and had taken pregnancy-related sickness leave, the respondent had terminated her assignment with them in October 2003 and replaced her with a permanent Civil Servant.

In written submissions the claimant sought to raise in addition a complaint of indirect discrimination, which, for reasons set out further below at paragraph 15, the tribunal concluded it had no jurisdiction to consider, and therefore dismissed.

The respondent maintained that the claimant was simply filling a vacancy on a temporary basis until a permanent member of staff was recruited to the post. Owing to staffing difficulties the person earmarked for the vacancy was not available to take it up until October 2003.

Sources of evidence

The tribunal heard evidence from the claimant. It also heard evidence from Mr Tony McFlynn, a Personnel Manager with the respondent, from Ms Christine Clark, an Area Manager for the respondent with responsibility for the Belfast and Downpatrick offices, and from Ms Mary Beattie, Manager of the Downpatrick office and line manager of the claimant. The tribunal also had before it an agreed bundle of documents.

The issue

The issue for the tribunal, identified by a Case Management Discussion in January 2006, was whether the claimant was discriminated against on grounds of sex in the termination of her employment.

Analysis of the evidence

On the basis of the timing of the claimant's dismissal, on the basis that she was not given any advance notice of the plans to replace her, or of the precise reasons for which she had been recruited as a temporary worker, the tribunal thought it unsurprising that the claimant should have suspected discriminatory factors at work in her dismissal. The tribunal accepted that the circumstances of the claimant's dismissal appeared to point to pregnancy-related discrimination. On a detailed consideration of the respondent's explanation for the claimant's dismissal, however, the tribunal concluded that this explanation was cogent and the witness evidence called to support it both credible and consistent with the documentary record. The claimant's counsel notably did not impugn the authenticity of the respondent's documentary record although he did take issue with some of the arguments advanced on the basis of it.

In relation to a central fact in issue between the parties, what was said in the course of a telephone conversation between the claimant and her then line manager while the claimant was away from work on sickness leave, the tribunal on balance preferred the evidence of the claimant's line manager. The tribunal reached this conclusion partly on its impression of the evidence, partly on account of its reservations as to the reliability of the claimant's recollection on this and on a number of other issues. The claimant's account of her reasons for attending the respondent's Christmas party and her experience there did not carry conviction, nor her explanation for staying there throughout the evening when she was allegedly being ignored. Her alleged reasons for rejecting a subsequent placement with the respondent at its Downpatrick office (stress and anxiety about her previous treatment) were at variance with her explanations to the agency and her own evidence, under cross-examination, at hearing.

The tribunal appreciates, nevertheless, how the claimant's perceptions of the disputed telephone exchange may well have been coloured by the surrounding circumstances: her subsequent dismissal; her discovery that another, less-experienced (male), temporary worker had been retained on clerical duties after her dismissal; and her sense of injustice at having been dropped by the respondent without notice. In the absence of additional statutory protection, that is, regrettably, an all too common experience for contract workers in the claimant's position.

Findings of fact relevant to the issue

1 The claimant commenced work as a trainee on placement with the respondent in September 2001 under a government training scheme (Job Link). The claimant was paid a training allowance by Job Link.

2 The claimant worked on placement in the respondent's Motor Tax Office in Downpatrick and carried out office administration duties. It was common case that she had performed well on placement.

3 The staffing complement in the Downpatrick office up until 1 April 2003 was five full-time permanent Administrative Officer posts, responsible to the office manager, an EOII, Ms Mary Beattie. Other than these, and the claimant trainee, the only additional workers employed at the office were agency workers recruited to cover the permanent staff on long-term sickness leave, on maternity leave and, in summer, on holiday leave. These were the only contingencies for which the Downpatrick office had authority and finance to engage agency workers on temporary contract.

4 The claimant's period as a trainee on placement would in the normal course of events have expired when she reached her eighteenth birthday, on 19 April 2003.

5 Well before that time, however, the claimant, with the encouragement and support of her line manager, Ms Beattie, registered with an employment agency, Grafton Recruitment. At that time the respondent had an informal but regular arrangement with the agency for the supply of temporary workers on an as-required basis. Ms Beattie provided a reference to the agency for the claimant.

6 The respondent through its Personnel Officer Mr Tony McFlynn, as was the usual arrangement, in agreement with Ms Christine Clark, the Area Manager responsible for the Belfast and Downpatrick offices, requested the agency to provide it with a temporary clerical/administrative officer in early April 2003.

7 The claimant was assigned by the agency to work for the respondent at its Downpatrick office commencing 7 April 2003 as a temporary contract administrative officer on a weekly contract. Following a seamless transition from the status of trainee on placement, she now earned a wage which was paid to her by Grafton Recruitment.

8 There were no members of the permanent staff in the Downpatrick office on extended sickness or maternity leave in early April 2003, nor was it necessary to have temporary cover at that time of year for holiday leave. The respondent did not requisition an additional temporary worker or authorise the finance to pay for her merely to re-employ the claimant out of concern for her as she reached the term of her Job Link placement. There had to be a business case for her assignment, and the respondent established this business case before tribunal.

9 The need for an additional worker arose because of the Statutory Off Road Notification (SORN) scheme and the requirement placed by the government on the respondent to administer it. To meet the anticipated increase in the respondent's workload, fully justified in the event, additional posts were created across the respondent's workforce and allocated to its different centres. The respondent allocated one additional permanent Administrative Officer (AO) post to its Downpatrick office, with effect from 1 April 2003.

10 Some of the additional posts were initially filled by temporary cover, either by the redeployment of permanent staff or, as in the Downpatrick case, by the assignment of a temporary contract worker from Grafton Recruitment. This was the vacancy to which the claimant was assigned on temporary contract by Grafton on 7 April 2003.

11 The SORN initiative increased the workload for the respondent's motor tax office staff across the board. All of the respondent's staff at the Downpatrick office, as elsewhere, handled some of the increased workload resulting from SORN. While an additional post had been created to help meet the anticipated increase in workload, the additional post was not, any more than any of the other posts in Downpatrick, a dedicated 'SORN' post, nor was it labelled as such.

12 The respondent recruited additional temporary workers for its Downpatrick office from Grafton in the course of 2003 as follows:

(a) Ms Julie Price was assigned by the agency to provide cover for a member of the permanent staff, Ms Marie Rooney, who went out on extended sickness leave in June 2003 and did not return to work until April 2004. Ms Price commenced her assignment on the 16 June 2003 and remained until 19 September 2003 when she left of her own volition to go elsewhere.

(b) With no immediate prospect of Ms Rooney's return the respondent sought and the agency assigned, a new agency worker, Mr Luke Murray, to cover the same vacancy. Mr Murray commenced his assignment on 30 September 2003 and remained in place until Ms Rooney's return in April 2004, at which point he was reassigned elsewhere by Grafton.

(c) On the basis of its findings at (a) and (b) the tribunal find that had she remained in post Ms Price would have, in place of Mr Murray, remained in post until Ms Rooney's return in April 2004.

(d) Mr Mark McCloy was assigned by Grafton to the respondent on 23 June 2003 to provide summer holiday cover, and remained in place until 31 August 2003 at which point his assignment was terminated.

13 The respondent, as a rule, when engaging temporary staff, allocated them to a particular vacancy or a function. Mr McFlynn dealt directly with Grafton and made the requests. He would then allocate the person assigned to him by Grafton and confirm the assignment by email to Ms Christine Clark, Area Manager.

14 No particular significance attaches to the absence of any specific reference to such a function in the email on record for the claimant. The vacant post was an AO post. It had no-one's 'name' on it, as did Ms Rooney's, for example. It was not a dedicated 'SORN' post as explained above, or a holiday relief post. It was a temporary contract assignment to a permanent AO post, as yet unfilled by a permanent member of staff. The record confirms this.

15 While the work undertaken by the different temporary workers was interchangeable as between temporary workers (and for that matter between temporary workers and permanent staff), the reasons for their assignment were not. It was no part of the respondent's practice to conduct performance appraisals of its temporary workers, or an audit of their sickness records or timekeeping, prior to deciding which temporary worker should be retained and which let go. Each temporary worker was engaged for a certain contingency or reason and upon that contingency or reason coming to pass their contract came to an end. Last In First Out, as Mr McFlynn put it, did not apply to temporary contract workers.

16 Among the factors taken into account by Mr McFlynn and Ms Clark in deciding to fill the AO vacancy in April 2003 with a temporary contract assignment was a consideration of the position of one of the respondent's permanent employees in the Belfast office, Ms Selena Martin. Mr McFlynn exercised his discretion to keep the post 'open' in the knowledge that Ms Martin, although at that time (April 2003) on extended sickness leave, had applied in June 2002 for a transfer to Downpatrick. He did so in the expectation that when she returned to work, and provided that she met the NICS conditions of eligibility and had attained the appropriate place on the transfer list, Ms Martin might be eligible to transfer into the post.

17 Ms Martin made her application for transfer from the Belfast office in June 2002. She went absent on sick leave from 30 July 2002 until 4 June 2003, and returned to work on a phased part-time basis over the summer of 2003. In early September 2003 she was pressing Ms Clark for a decision on her transfer. Ms Clark resisted an immediate decision on the grounds of staffing difficulties experienced by the Belfast office, caused by staff turnover and new appointments, including that of a new supervisor.

18 Mr McFlynn emailed Ms Clark on 6 October 2003, implicitly referring to earlier discussions between them, which appear to have approved in principle the transfer of Ms Martin subject to a resolution of the staffing issues in the Belfast office. He pressed Ms Clark for a 'release date' for Ms Martin. He advised that Core Personnel had confirmed Ms Martin was still next on the transfer list but that there was a risk she might lose her place. He expressed concern too that the strain of travel may have been responsible for Ms Martin's absence on sickness leave the previous week.

19 A bona fide transfer application had therefore been made the previous year by a permanent AO working in Belfast who had then been absent on sickness leave. A vacancy was created in the Downpatrick office under the SORN initiative. Following her return to work in summer of 2003 a decision in principle had been agreed between the Personnel Manager and the Area Manager to transfer Ms Martin to the Downpatrick office to fill this permanent vacancy, subject to approval of Core Personnel, which was granted, and subject to the resolution of outstanding staff issues in the Belfast office, which by September/October were well on the way to being overcome.

20 On this basis a transfer by Ms Martin to the permanent AO vacancy in the Downpatrick office was imminent at any time from the first week of October 2003 onwards. Such a transfer would unavoidably entail an end to the claimant's temporary assignment to the respondent's Downpatrick office. Neither Ms Clark nor Mr McFlynn advised Ms Beattie of the forthcoming transfer until the decision was taken. Ms Beattie, consequently, was in no position to warn the claimant.

21 The precise timing of the transfer of Ms Martin from the Belfast to the Downpatrick office, finally decided by Ms Clark on 27 October 2003, was conditioned by the resolution of the staffing issues in the Belfast office and in particular the provision of training to the new supervisor (who took up post on 27 September), which Ms Clark judged to be sufficiently well-advanced to permit the release and transfer of Ms Martin to commence work in the Downpatrick office with effect from 30 October 2003. In reaching the decision Ms Clark acted, she stated, on the basis of her assessment of the operational needs of the two offices under her control.

22 The claimant was unaware of the developments affecting Ms Martin that were to result in the termination of her employment.

23 The claimant, who had been working as a temporary contract worker on assignment since April 2003, discovered that she was pregnant in August 2003. She promptly advised both the employment agency and the respondent of the fact.

24 The claimant attended her doctor on 17 September and again on 20 October 2003. On the second occasion, as she was complaining of tiredness, weight loss and inability to eat, her doctor gave her a sickness certificate for two weeks, for 'problems of early pregnancy'. A further sick line was issued by her doctor on 3 November and the claimant was given a signing off line by the doctor on 24 November 2003.

25 On obtaining her sickness certificate on 20 October 2003, the claimant notified the agency and her line manager, Ms Beattie.

26 On 22 October 2003, Ms Beattie telephoned the claimant at home. Ms Beattie initially enquired after her health. She then pressed her on whether, notwithstanding the two-week sick line, she would be able to come into work towards the end of the second week, as the office was likely to be under pressure as a result of staff leave over Hallowe'en and the mid-term school break. Ms Rea resisted the pressure, and confirmed she would not be in a position to return to work until her doctor had certified her as fit for work.

27 Ms Beattie did not threaten Ms Rea that the office would simply replace her with someone else if she was unwilling or unable to return to work early. Ms Beattie was not in a position to take such a decision or to issue such a threat. Nor was this allegation consistent with the previous record of protective regard for the claimant that Ms Beattie had shown towards her as manager. In particular Ms Beattie, contrary to the claimant's submission, did not remind the claimant that she was only a temporary worker. The claimant's own witness statement alleges that it was an agency employee who said this to her.

28 On telephoning the agency after receiving Ms Beattie's call the claimant was reminded that her position with the respondent was a temporary one and that if she did not return to work the agency would have to arrange for someone else to fill the position. The claimant was given no assurance as to what would happen in such a scenario if and when she was fit for work once again.

29 A few days later, on 28 October 2003, Mr McFlynn, pursuant to the decision by Ms Clark on 27 October to transfer Ms Martin with effect from the 30 October, advised Grafton that the claimant's assignment was at an end in view of the filling of the AO post by a permanent member of staff. The claimant was informed that her assignment with the respondent was terminated.

30 The claimant was aggrieved at this treatment and understandably made a link between her pregnancy, her pregnancy-related sickness leave, the telephone call from Ms Beattie and the decision to terminate her employment.

31 On 21 November 2003 the claimant called at the respondent's Downpatrick office to collect, as she thought, a small leaving present from her former colleagues. As a result of a misunderstanding, however, no collection had yet been made. A collection was taken up subsequently, however, and her former colleagues sent the claimant a farewell card and some Boots vouchers to her home address. The abortive visit would doubtless have caused embarrassment to the claimant.

32 In the course of her visit the claimant noted that Mr Murray was still working for the respondent. He had started with the respondent from Grafton, long after she had started, he was less experienced than she was, and yet he had been retained while she had been dismissed. The claimant reflected that, although she had had no formal training role while at work, she had 'shown the ropes' to Mr Murray in his first couple of weeks in the job. The claimant also dated from this time her suspicion that she had been the victim of sex discrimination.

33 The claimant sought advice at this stage and with assistance served a statutory questionnaire and lodged a complaint of unfair dismissal (later withdrawn) and sex discrimination against both Grafton Recruitment and the respondent in early December 2003.

34 Closer to Christmas 2003, the claimant attended the respondent's office Christmas party for which she had previously bought a ticket. The circumstance of her voluntary participation in the evening's event, the witness evidence of her conversations with her colleagues and the evidence of a smiling photograph of the claimant in company with two of her former colleagues at the party, as well as the claimant's decision to stay until the end of the evening, undermine the claimant's claim that she was ignored or cold-shouldered by her former colleagues at this event.

35 In both December 2003 and in January 2004 when job offers were made to the claimant by the agency, including on the second occasion an offer of a fresh assignment with the respondent, she declined on the two occasions, according to the agency's records, on the grounds that she stood to lose benefits by accepting the offers of work. The claimant accepted under cross-examination that this was the real reason for her refusing the renewed offer of work for the respondent. This was incompatible with the claimant's attempt, whether on advice or not, to persuade the agency later in January 2004, and the tribunal in 2006, that she had refused the renewed offer of work from the respondent because of the stress and anxiety that the recollection of the respondent's treatment of her would cause her.

Law on sex discrimination

Article 3 (1) of the Sex Discrimination (NI) Order 1976 provides:

A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if—

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man . . . .

Article 12, 'Discrimination against contract workers', provides:

(1) This Article applies to any work for a person ('the principal') which is available for doing by individuals ('contract workers') who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

(2) It is unlawful for the principal, in relation to work to which this Article applies, to discriminate against a woman who is a contract worker—

(a) in the terms on which he allows her to do that work, or

(b) by not allowing her to do it, or

(c) in the way he affords her access to any benefits, facilities or services or by refusing or deliberately omitting to afford her access to them, or

(d) by subjecting her to any other detriment.

Article 63A (2) provides:

Where, on the hearing of the complaint [of sex discrimination] the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent-

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.

The case law establishes that discrimination on grounds of pregnancy amounts, automatically, to discrimination on the ground of sex for the purposes of the Order. In Webb v EMO Air Cargo (UK) Ltd [1994] IRLR 482, the European Court of Justice, on a referral to it by the House of Lords, held that:

the dismissal of a pregnant woman recruited for an indefinite period cannot be justified because she is unable to work for a temporary period owing to her pregnancy

there is no question of comparing the situation of a woman who is unable to work because of her pregnancy with that of a man similarly incapable for medical or other reasons

any less favourable treatment of a woman because she is pregnant or because of the consequences of pregnancy is direct sex discrimination.

Following this decision the House of Lords held that it was unlawful to dismiss a woman who had been employed for an indefinite period when she was temporarily unavailable for work as a result of her pregnancy: Webb v EMO Air Cargo (UK) Ltd (No2) [1995] IRLR 645. The authorities are less clear as to the position of a woman on a temporary contract dismissed or replaced during pregnancy.

The tribunal was required to consider whether the respondent had discriminated against the claimant, in the sense of subjecting her to less favourable treatment, contrary to Article 12 (2) (b) or (d) above.

The claimant relied before tribunal on the Northern Ireland Court of Appeal decision in the case of Patefield v Belfast City Council [2000] NIJB 157-162 which, her counsel submitted, was on all fours with the facts of the present case. In that case, however, the respondent to the appeal, Ms Patefield, had worked in the appellant Council's cemeteries department for over three years on assignment from two employment agencies in succession as a 'temporary' contract worker before going out on maternity leave. She had by that stage become the longest-serving worker in the department. She wrote to the Council asking for confirmation that she could return to work in her old job. The Council declined to confirm this, reminded her that she was a contract worker and advised that she might be eligible for an assignment in another location at the end of her maternity leave. The Court's decision upholding the tribunal's finding of pregnancy discrimination relied crucially on the tribunal finding that Ms Patefield would have remained in her post had she not become pregnant. Carswell LCJ said:

We referred above to the particular facts of this case, for it should be emphasised that the facts were somewhat unusual particularly in respect of the tribunal's finding that the respondent would have remained in her post if she had not been off work for maternity reasons. Replacement of a contract worker may well be within the law in many other circumstances.

In the present case the claimant, although she had previously spent some time as a trainee on placement with the respondent, had been employed on assignment for an altogether shorter period, from April 7 to October 27 2003. The claimant earlier withdrew her unfair dismissal claim at a hearing convened to determine whether, for the purposes of an unfair dismissal claim, she possessed the requisite qualifying service for unfair dismissal. Critically, however, the tribunal concluded on the documentary and witness evidence before it that the post filled on a temporary basis by the claimant was always going to be filled by a permanent member of the respondent's staff, and that Mr McFlynn and Ms Clark had agreed in principle as early as the summer of 2003 that this person should be Ms Martin. Moreover the timing of the transfer of Ms Martin was conditioned by the staffing difficulties in the Belfast office, their gradual resolution, and pressure from Ms Martin, first of all, and from Mr McFlynn of Personnel on Ms Clark as Area Manager to secure a transfer as soon as possible from early October 2003 onwards, lest Ms Martin lose her priority ranking on the NICS transfer list. This was a full two weeks before there was any hint of the claimant going out on pregnancy-related sick leave. A matter that carried some weight with the tribunal was the claimant's counsel's acceptance that the respondent's documentary record, if incomplete in places, was not in any sense a 'doctored' version of events. The accuracy of the respondent's documentary record was accepted, though not all of the arguments the respondent advanced on the basis of it.

Under the Burden of Proof provisions of Article 63A it is for the claimant to raise a presumption of discrimination by pointing to facts, that, in the absence of an explanation from the respondent, could lead the tribunal to conclude that the respondent had discriminated against her. Once this occurs, the burden of satisfying the tribunal that discrimination has not taken place shifts to the respondent. The tribunal accept the claimant's submissions that in setting out the facts surrounding her dismissal

the claimant's engagement on assignment as a temporary contract worker by the respondent in April 2003 and her continuous employment at its Downpatrick office until 20 October 2003

the claimant's discovery that she was pregnant in August 2003

the claimant's absence on pregnancy-related sickness leave from 20 October 2003

the telephone approach by her line manager while she was out on sick leave, asking her to come in and provide cover during a busy period

the termination of the claimant's assignment by the agency on the initiative of the respondent 8 days later, without notice or warning that her post was to be henceforth filled by a member of the respondent's permanent staff

the claimant's realisation, a few weeks later, that a less experienced male temporary worker had been retained on assignment while her assignment had been terminated;

the claimant had established 'such facts' as could lead the tribunal to conclude, in the absence of an explanation, that the respondent had committed an act of discrimination against the claimant. In these circumstances the burden of proof shifted and the tribunal looked to the respondent for an explanation.

The tribunal was directed to and had regard to the Barton guidelines as modified and approved by the Court of Appeal in the case of Igen v Wong [2005] IRLR 258, in considering the burden placed upon the respondent. Guidelines 9 - 13 advise as follows:

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof.

Conclusion

On the basis of its findings of fact the tribunal concluded that the respondent

(a) had created a new permanent vacancy for an AO post in its Downpatrick office in April 2003 as part of its preparation for dealing with the additional workload created by the SORN initiative;

(b) had purposely deferred filling the post on a permanent basis in the expectation that it might be filled by Ms Martin on her return from sickness leave;

(c) had filled the post on a temporary basis by assigning an agency worker on temporary contract, namely the claimant, who could have had no expectation of filling the post on a permanent basis outwith the normal NICS recruitment procedures;

(d) had agreed Ms Martin's transfer to the Downpatrick office in principle but delayed the transfer pending the resolution of staffing difficulties in the Belfast office;

(e) had arranged Ms Martin's transfer as soon as she could safely be released from the Belfast office having regard to that office's operational requirements during a period when a number of staff, and particularly the supervisor, were being trained into their roles;

(f) had terminated the claimant's assignment because the original reason for it was at an end;

(g) had retained Mr Murray on temporary assignment because the reason for his assignment remained until Ms Rooney's return.

The tribunal reached the conclusion on the evidence before it that the respondent had shown, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the ground of sex. In arriving at this conclusion the tribunal were satisfied they had done so on the basis of cogent evidence set before them both in the documentary record and by way of witness evidence. Accordingly the claimant's claim is dismissed. The tribunal concluded that the respondent's treatment of the claimant, nevertheless, had shown a marked lack of consideration. In particular the tribunal took the view that the respondent's failure to alert the claimant in advance to her impending replacement by a member of the respondent's permanent staff allowed her no opportunity to prepare for the adjustment and the undoubted upset that the loss of her job would cause her. No blame attaches to Ms Beattie for this failure. Had the respondent shown a little more understanding for the predicament of the claimant, they might possibly have cushioned the impact of the termination of her assignment and possibly also have avoided the risk of tribunal litigation.

In written submissions after the hearing had concluded the claimant's counsel advanced an argument that the tribunal should consider, in the alternative to direct discrimination, whether the claimant had been the victim of indirect discrimination by reason of the potentially discriminatory impact of the respondent's policies dealing with temporary workers, and in particular their failure to take account of the circumstances of pregnant women when such contracts were terminated. This novel aspect of the claimant's case had first surfaced briefly, if only implicitly, at hearing when the claimant's counsel had questioned Mr McFlynn in cross-examination over his defence of these policies. The claimant's counsel had not pursued the matter nor attempted to lead evidence in relation to it. Predictably, the submission prompted supplementary responding submissions and further submissions from the claimant. The tribunal decided it did not have jurisdiction to consider such a claim. The respondent rightly drew attention to the claimant's express disavowal of any indirect discrimination claim in the claimant's Replies to Particulars. In those circumstances the hearing proceeded on the basis that the tribunal had before it a claim for direct discrimination. The claimant's counsel made no attempt, as would have been incumbent upon him, at the outset of the hearing, to amend the claimant's claim to include a claim of indirect discrimination. Without such a formal amendment it would not have been open to the tribunal to consider the merits of any indirect discrimination claim. Clear authority for this conclusion is to be found in the Court of Appeal decision in Ali v Office of National Statistics [2005] IRLR 201 (Direct and indirect discrimination were different types of unlawful act; where a claim of direct discrimination was made in time, a subsequent claim of indirect discrimination could not be considered under the ambit of the original claim but would have to be the subject of an application for leave to amend under the just and equitable provisions dealing with out-of-time claims.)

Chairman:

Date and place of hearing: 20-22 March 2006, Belfast.

Date decision recorded in register and issued to parties: