Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 2721/04

CLAIMANT: Maria Wilson

RESPONDENTS: 1. North West Institute of Further & Higher Education

2. Seamus Murphy, Director

3. Kate Duffy, HR Manager

DECISION

It is the unanimous decision of the tribunal that the claimant was not discriminated against on the grounds of her gender or marital status and neither was she victimised and harassed.

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Mr McParland

Mr Hampton

Appearances:

The claimant represented herself.

The respondent was represented by Ms A Finnegan, Barrister-at-Law instructed by J Blair, Employment Law Solicitor.

1. SOURCES OF EVIDENCE

The tribunal heard evidence from the claimant on her own behalf; from Mr Peter Gallagher former Director of the first respondent; from Mr Maurice Dineen, Local Union Representative and Mr Martin Murphy, Full-time Union Representative. The tribunal also heard from Miss Geraldine Gray, Secretary to the current Director, Mrs Kate Duffy, third respondent and Human Resources Manager at the first respondent and Mr Seamus Murphy, second respondent and Director of the first respondent.

2. The tribunal also had a bundle before it which contained various documents. The claimant indicated at the outset that she did not agree the contents of the notes of attendances made by Mrs Duffy and these were proved by Mrs Duffy in the course of giving her evidence. There was no objective evidence adduced by the claimant to counter the contents of the memoranda of attendances produced by Mrs Duffy.

In general in reaching its decision, the tribunal preferred the evidence given on behalf of the first respondent by the second and third respondents and by Miss Geraldine Gray. The evidence was given in a crisp and direct manner. The questions put were answered without equivocation.

3. Whilst the tribunal had the benefit of witness statements from the claimant, Mr Gallagher, Mr Murphy and Mr Dineen on behalf of claimant, it also read the witness statement of Mr Robin Percival who was unavailable to give evidence to the tribunal. That being the case, the tribunal is able to attach only the slightest weight to his witness statement. On behalf of the respondent the tribunal had the benefit of witness statements from Mr Seamus Murphy, Mrs Kate Duffy and Miss Geraldine Gray. The tribunal also read the witness statement of Mr Gerry McGuckin. It was agreed by the claimant that there was no need to call Mr McGuckin to give his evidence orally to the tribunal.

THE LEGAL ISSUE FOR THE TRIBUNAL

4. The legal issue for the tribunal was whether or not the claimant had been discriminated against on grounds of her gender or marital status and ancillary thereto whether or not she had suffered victimisation and harassment. The tribunal did not determine the claimant's breach of contract claim because it had previously been dismissed.
5. The law relating to this legal issue is found in the Sex Discrimination (Northern Ireland) Order 1976.

THE FACTS FOUND

6. The claimant was employed by the first respondent as a Personal Assistant to the Director of the first respondent. She had held this post approximately 18 years by the time of the hearing of her claim to the tribunal.
7. In or around April 2004 the second respondent, Mr Seamus Murphy, was appointed as incoming Director of the first respondent, to replace Mr Peter Gallagher who was scheduled to retire in or around 31 August 2004.
8. Mr Murphy wished to start making plans for the changes he was considering making almost immediately. He had considered that the staffing of directorate support required review and together with the third respondent, Mrs Kate Duffy, wanted to meet with the claimant to discuss the situation. Mr Peter Gallagher refused to permit this.
9. However, rumours abounded and as a result of the rumours, Mr Gallagher permitted Mr Murphy and Mrs Duffy to meet with the claimant to discuss the situation and Mr Murphy's proposals.
10. One of the key events in the history of this case was a meeting of 5 July 2004 between the claimant, the claimant, Mr Murphy and Mrs Duffy. Mr Murphy explained to the claimant that he was not replacing his post of Deputy Director for Curriculum and was going to continue carrying out that job alongside his duties as Director. As a consequence, he was going to bring his existing Secretary, Miss Geraldine Gray, with him to provide him with support in the area of Curriculum. The claimant was concerned about this and pushed Mr Murphy to say whether or not he considered there would be sufficient work for two persons both working to the Director. Eventually Mr Murphy indicated that he was not sure and said that organising a split timetable of Director's support for him might be the way forward. He offered a suggestion that one person could come in at 8.30 am and leave slightly earlier, the other person could come in later and finish at 5.30 pm. The purpose was to provide Directorate support cover for Mr Murphy throughout the whole of the working day, although he informed them that he started work at 7.30 in the morning. He indicated that he would also like a degree of flexibility. The claimant construed this suggestion as a requirement on the part of Mr Murphy and took the view that he was requiring her to work from 8.30 in the morning (and with the requirement for flexibility perhaps earlier than that) to 5.30 in the evening. The claimant also considered that she was intimidated by Mr Murphy's manner in introducing these issues to her. The claimant also contended that it was a presentation done deliberately to put an obstacle in the way of her becoming the new Director's Personal Assistant, because as a married woman with school children she would not be able to start at an early time in the morning. Mr Murphy explained to the claimant that if she did not wish to remain as Personal Assistant there were two other options available for consideration. The first one was a transfer to an Executive Officer's position in administration. The second option was that she could have a new post at Executive Officer level within Staff and Student Services. The claimant agreed to consider these options.
11. On the advice of Mr Gallagher she spoke to Mrs Kate Duffy on 6 July 2004. The claimant admitted in cross-examination that Mrs Duffy reassured her about the hours and that any change would have to be agreed, with there being no capacity to force the claimant to work those hours against her will. The claimant accepted that she was never asked to work other than from 9.00 am to 5.15 pm. The claimant had an arrangement with Mr Gallagher permitting her to leave at 4.00 pm on Wednesday afternoons to teach an Irish Dancing Class commencing at 5.00 pm. There was discussion in the tribunal hearing about what arrangement had been made and what further interim arrangement was agreed with Mr Murphy. In reaching its decision the tribunal has disregarded the evidence on this issue as it considered that it was totally irrelevant to the legal issue that the tribunal was required to determine.
12. Mrs Duffy met with the claimant and Mr Dineen and Mr Murphy on 15 July 2004. The issue of the 8.30 am start was raised by Mr Martin Murphy and explained by Mrs Duffy. The claimant disagreed with the explanation that it was a suggestion made in the light of two persons working for the Director. The claimant did not in any way accept that the suggestion was to extend coverage. At the meeting, the claimant indicated that she valued the status of her role as Personal Assistant to the Director and the option that she was offered was not attractive. It would need to be made more attractive. It appeared from the evidence of the claimant that if she had been given an upgrade to Senior Executive Officer level she would have considered herself able to move out of her post as Personal Assistant with dignity.
13. A further meeting was held on 22 July 2004 between Mrs Duffy, Mr Seamus Murphy, the claimant and Mr Martin Murphy. To start the meeting, Mrs Duffy recapped the options that had been put forward to the claimant in previous meetings. Mr Murphy indicated that she would be welcomed in the post of Personal Assistant if she chose to remain there and also indicated that the post with the best chance of upgrading and career progression was the Executive Officer post in Staff and Student Services. The claimant indicated that she believed it had been earmarked for somebody else. She was assured that this was not the case. Mr Martin Murphy indicated that the claimant valued the status of her post as Director's Personal Assistant and she was concerned that the new incumbent, Miss Gray, would be in a good position to be upgraded as the curricular duties were added on to the incumbent's existing duties. Mr Seamus Murphy indicated that was not the case. The meeting concluded with the claimant agreeing to consider the options originally put to her at the meeting of 5 July 2004.
14. In or around 21 July 2004, Mr Gallagher referred to Mrs Duffy a complaint about a comment made by Mr Neilus (an employee of Graham FM) about the claimant to Ms Gibson. The claimant did not wish to pursue the matter as a complaint.
15. In August 2004 the claimant applied for a further job evaluation. The current points attached to her job were 370. There was an issue potentially about Mrs Duffy acting as a job evaluator for the claimant's job. Whether or not it was Mr Dineen or Mr Gallagher who initiated the contact, Mr Gallagher indicated to Mr Dineen that he felt it would be a conflict of interest for Mrs Duffy to sit as an evaluator on the claimant's job. Mr Dineen indicated that he did not wish to cause any delay in the process and agreed to Mrs Duffy acting as evaluator. As it happened, Mrs Duffy and Ms Dorothy McElwee were due to carry out an evaluation in connection with a technician's position on 25 August 2004. They were able to also carry out the claimant's evaluation on the same day. Some queries were sent to Mr Gallagher in the internal post on Tuesday, 31 August 2004.
16. The final outcome of the evaluation was that the claimant's post should remain at Executive Office level. In the event, she lost two points and was thereafter rated with 368 points.
17. Up until 1 September 2004 despite being requested to the contrary, the claimant gave absolutely no indication of which option she was going to take. She indicated that her option was made clear by the e-mail of 1 September 2004 in which she asked the following question "prior to receiving this message, I was going to ask you at what time today should I move down beside you to allow me to continue my duties effectively". While it was the respondent's case that no preference had been indicated prior to a meeting of 3 September 2004, it was the claimant's case that her preference was always plain from the original meeting of 5 July 2004. We find that the memorandum of 1 September 2004 was in the light of the meetings that had taken place between the claimant, her representatives and the respondent a highly unclear way of making a point. Given that the claimant frequently referred questions to Mrs Duffy, the tribunal does not understand why she was not able to tell Mrs Duffy that this was the role she wished to pursue, as Mrs Duffy had previously requested her so to do. The tribunal finds that there was no evidence to suggest that the claimant did make her preferences plain at the meeting of 5 July 2004. However, it was made plain on 3 September 2004 that this was the role (director's personal assistant) she wished to pursue.
18. On 6 September 2004, the claimant forwarded a memorandum to Mrs Duffy indicating that she wanted to know when she would resume duties as Personal Assistant to the Director considering that she had been bullied, harassed and victimised and as a consequence was dissatisfied with the process to date.
19. The claimant's claims were to be discussed with Mrs Duffy on 8 September 2004. On 7 September, the claimant indicated that she required a written reply to her memo to Mrs Duffy of 6 September 2004. Mrs Duffy did not have the time to do so and indicated that. The meeting actually took place on 9 September 2004 and there was a considerable degree of dispute between the parties as to what transpired. However, it concluded with Mrs Duffy informing the claimant that the process to date had not been ideal largely because the claimant had failed to indicate prior to 1 September which one of the options she wished to pursue.
20. The claimant also wrote to Mrs Duffy in a memorandum of 10 September 2004 proposing that she take on the Curriculum Support duties Mr Murphy was bringing the claimant for consideration. By memorandum of 24 September 2004, Mrs Duffy indicated that as her trade union representatives were involved to discuss her role that process should be maintained as the means of communication. This was also the reason advanced by the respondent for a failure to provide the claimant with a list of duties before the meeting of 27 September 2004 which was the meeting scheduled to discuss the job description. That meeting did not actually take place as it was cancelled by Mr Martin Murphy. The tribunal was not able to discern from the evidence the reason why this meeting was cancelled by the union.
21. There was a course of dealings between the first respondent and claimant concerning the removal of the claimant's name from an e-mail circular list. The eventual position was that the claimant was reinstated to the list. In reaching its decision the tribunal has discarded this issue as it does not consider that the removal of the claimant's name initially and later by the direction of Mr Murphy inadvertently, is in any way related to her gender or marital status.
22. In the interim the claimant had two further sources of complaint. The first one was that she had been required by Mr Murphy to attend in the general office to help with enrolments for approximately three days. The tribunal does not see this as discrimination on the grounds of her gender or marital status or victimisation and harassment as it was not disputed that other people such as Miss Geraldine Gray were also involved in the roster. Indeed, Mr Seamus Murphy indicated that he would help out himself on occasions as he considered that this was an important source of revenue for the Institute. The second issue concerned the archiving by the claimant of the previous Director's files. It appeared that the files were not arranged in such a way with correspondence following in date order on a treasury tag or other means of binding. Mr Seamus Murphy indicated that he wished the files to be tidied, hole-punched, put away ready for storing and electronically archived. It was agreed that the claimant would carry out this task. She indicated that she felt isolated and that this task had caused her health to suffer. The claimant cited this as a further instance to victimisation and harassment. The tribunal is not able to agree. What better person could there be to prepare the previous Director's files for storage than his Personal Assistant? There was a dispute between the parties as to the length of time this task would take. Irrespective of that dispute, the tribunal is unable to regard this as an instance of discrimination on the grounds of gender or marital status or victimisation or harassment. Simply it was an office task that required to be done and she was agreed to be the best person to do it.
23. On 29 September 2004, Mr Seamus Murphy and Mrs Duffy decided to go to see the claimant to discuss what progress she was making with her archiving. Mrs Duffy felt it preferable to accompany Mr Murphy given the claimant's claims that she felt bullied and harassed by him. In the event, the claimant was late and they had to wait approximately ten minutes in the corridor. The claimant objected to this meeting.
24. A further complaint of the claimant was that she did not receive a copy of a memo of 4 October 2004 regarding required standards of behaviour in the approaching party season. Given that there were many other members of staff who did not receive a copy, we do not consider that this is a relevant complaint to the legal issue before the tribunal.
25. On the same day the claimant lodged a formal complaint under the grievance procedure and one under the harassment procedure. She also lodged an originating claim in the industrial tribunal. The harassment panel of the Board of Governors concluded that the claimant's harassment complaint was vexatious. It recommended that she should be removed to a position away from Mr Seamus Murphy as the working relationship between them had totally broken down. The claimant moved to the position of Executive Officer in administration. The claimant was not permitted to run a separate grievance procedure through to a conclusion. It had been agreed by Mr Martin Murphy on behalf of the claimant that any issue covered under the harassment case would be excluded from the grievance panel's consideration. As there were no issues left for consideration, the grievance procedure terminated, without a final decision being issued by the grievance panel.

CONCLUSIONS APPLYING THE FACTS TO THE LAW

26. From the primary facts found, the tribunal has not been able to identify any primary fact from which an inference of discrimination could be drawn, save for the fact that there was a substantial delay in completing the statutory questionnaire served by or on behalf of the claimant. Given that this is only one fact, set against a history of considerable patience and concern being shown by the respondents to the claimant, the tribunal does not consider that this is sufficient to make the burden of proof shift

and consequently dismisses the claimant's case for sex discrimination on the grounds of gender or marital status and victimisation/harassment.

Chairman:

Date and place of hearing: 22-26 January 2007, Belfast

29-30 January 2007, Belfast

Date decision recorded in register and issued to parties: