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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKimm v Down District Council [2008] NIIT 1229_05IT_2 (30 July 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1229_05IT_2.html
Cite as: [2008] NIIT 1229_05IT_2, [2008] NIIT 1229_5IT_2
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- The claimant was employed by Down District Council as its Arts Officer from January 2001 until 30 April 2007. The claimant resigned with effect from the latter date.
- The claimant contends that she was mistreated by the respondent ('the Council') in the following respects. First, according to the claimant, she was underpaid in comparison with the Council's Museum Curator. Secondly, she complains in respect of certain specified alleged acts of discriminatory detrimental treatment which occurred, she says, while she was employed by the Council. Thirdly, she says that, by reason of some or all of those acts of discriminatory detrimental treatment, she was put in a position where she felt she had no option but to resign.
- The current position is as follows:
- It was agreed by both parties that the tribunal should leave any remedies issues to be dealt with at a later stage of the case.
- Accordingly, at this first stage of the case, we are confined to dealing with liability issues in respect of the claimant's claims of victimisation discrimination.
- Article 8 of the 1976 Order makes it unlawful for an employer to discriminate (within the meaning of that Order) against an employee:
- As Article 2(2A) of that Order makes clear, for the purposes of the Order, references to the dismissal of a person from employment include references:
- For the purposes of the Order, 'discrimination' includes victimisation discrimination, which is defined in Article 6. In essence, Article 6 provides that a person discriminates against another person ('the person victimised') in any relevant circumstances if he treats the person victimised less favourably than in those circumstances he would treat other persons, and does so by reason that the person victimised has carried out a protected act.
- It is agreed between the parties that, for the purposes of Article 6, the claimant did carry out a relevant protected act when she alleged, as part of a November 2004 internal grievance, that the omission by the Council to pay her as much as they paid the Museum Curator constituted unlawful sex discrimination within the meaning of the 1976 Order.
- In relation to each relevant act of alleged mistreatment, the Council accepts that, if that act did indeed constitute mistreatment, such mistreatment amounted to subjecting the claimant to 'any other detriment' for the purposes of Article 8 of the 1976 Order.
- Article 42 of the 1976 Order provides a potential defence for an employer, who can escape liability, for the discriminatory acts of any work colleague of the victim, by proving:
- The claimant provided the respondent with details of the acts of detrimental mistreatment which were the subject of her claim in respect of pre-dismissal discriminatory detriments. Those details were contained in replies to particulars, which the claimant provided to the respondent in November 2006.
- During the course of this first stage of the main hearing, those details were the subject of certain modifications and refinements. As modified and refined, those details are as follows:
- The claimant's claim of discriminatory dismissal is based on the following propositions:
- At this stage of the main hearing, the sources of evidence were as follows:
- On the claimant's side of the case, we received oral testimony from the claimant and from Ms Alison White. (Ms White was an Officer in the Corporate Services Directorate of the Council during the period when the claimant was still an employee of the Council, and continues to be an employee of the Council).
- On the respondent's side of the case, we received oral testimony from Ms O'Connor and from Mr McGrillen.
- We also saw:
- We told the parties that we would only have regard to any document within any bundle if our attention was specifically drawn to that particular document.
- With the agreement of both parties, we were provided with written submissions from each party ('Submissions'). At a hearing on 19 May 2008, each party was available to respond to any queries from the tribunal in relation to the party's Submission. At the same hearing, each party had the opportunity to comment on the other party's Submission. In arriving at our decision, we have taken careful note of all the arguments which have been made to us, whether in the course of a Submission or in the course of oral argument. Specific reference has been made to some of those arguments during the course of this Decision. The Submissions provide a permanent record of much of the argument on each side of the case. In those circumstances, it is unnecessary to provide comprehensive details in this Decision of all of the arguments.
- In relation to matters relevant to the issues which have been determined at this stage of the case, we made the following findings of fact:
- As already noted above, these discrimination claims are brought under the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order').
- The 1976 Order has to be construed in light of the requirements of the Equal Treatment Directive 1976 ('the Directive'), as interpreted by the European Court of Justice.
- In the context of victimisation, those requirements were considered in Coote v Granada Hospitality Ltd [1999] ICR 100.
- In Coote, the ECJ noted that the version of the Directive which was then in force was a version which made explicit provision about measures to protect employees against dismissal, but which made no explicit provision in relation to any other retaliatory action on the part of the employer. However, the Court went on to make clear that it was not to be inferred that the intention of the legislator was to limit the protection of workers (against retaliatory measures decided on by the employer) solely to cases of dismissal. As the Court pointed out, although dismissal is an exceptionally serious measure, it is not the only measure which may effectively deter a worker from making use of the right to judicial protection in the context of an issue as to equal treatment.
- Article 8 of the 1976 Order has already been mentioned above. Article 8(2) of is in the following terms:
- The Directive was extensively amended with effect from 5 October 2005. As amended, the Directive now makes explicit provision, at Article 7, for the protection of employees against a variety forms of retaliatory action on the part of employers:
- Shamoon v Chief Constable of the RUC [2003] ICR 337 shows that a 'detriment' within the meaning of Article 8(2)(b) exists if, by reason of the act or acts complained of, a reasonable worker would or might take the view that she had thereby been disadvantaged in the circumstances in which she had thereafter to work. (See Shamoon, at paragraphs 34, 91 and 104.) We accept that, in applying those criteria, it is appropriate to consider the issue from the point of view of the complainant. (See Shamoon, at paragraph 105.) We have reminded ourselves that, in considering whether a claimant has been subjected to a detriment because of a particular act, it is necessary to consider all the facts which we have found in the case, and to put that particular act within the context of all those other facts.
- Victimisation discrimination is one of the types of discrimination which are proscribed by Article 8 of the 1976 Order. That type of discrimination is defined in Article 6 of the Order.
- Article 6, which has already been mentioned briefly above, provides as follows:
- Victimisation discrimination cannot occur if both of the following requirements are not met:
- In cases of direct discrimination, Article 7 of the Order requires that the relevant circumstances of the complainant and of the comparator:
- In Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 the claimant was a police officer who had made an industrial tribunal claim of racial discrimination. That claim had been brought against the Chief Constable. While those proceedings were pending, he applied for a job with another police force. The Chief Constable refused to provide him with a reference. The claimant brought proceedings for victimisation discrimination in respect of that refusal.
- In Khan, the respondent argued that the correct comparison was with the treatment accorded to other persons who had issued proceedings against the Chief Constable under other statutes, rather than with the treatment accorded to those who had issued no proceedings at all. That view was rejected by the House of Lords. Accordingly, Khan is clear authority for the proposition that the comparison to be made is simply between the treatment afforded to the claimant (who had done the protected act) and the treatment that had or would have been afforded to other employees (who had not done a protected act); and that no other features need to be factored into the comparison.
- For example, in the context of Article 6 of the 1976 Order, the question of the appropriate comparator arises most acutely in the context of a dismissal. In our view, in that context, anybody who was not dismissed is an appropriate comparator. (See paragraphs 25 and 27 of Khan).
- The 'by reason that' requirement will be satisfied even if the fact that the claimant had carried out a protected act was not the main reason for the treatment complained of, if it was an important, or significant, reason for that treatment. (See Igen Ltd v Wong [2005] IRLR 258, at paragraphs 35 and 37 of the judgment.)
- The phrase 'by reason that' means, in effect, 'because'. (See paragraph 76 of the House of Lords decision in St Helen MBC v Derbyshire and Others [2007] IRLR 540.)
- The "by reason that" element of the definition of victimisation is significantly different from a causation question. As Lord Nicholls pointed out in Khan, at paragraph 29 of the decision:
- Accordingly, it has to be borne in mind that, in considering whether victimisation discrimination has occurred, it is necessary to focus on the reason why, as distinct from focusing on questions of pure causation. Nevertheless, against the factual background of this case, comments of Langstaff J in Blundell v Governing Body of St Andrew's Roman Catholic Primary School [2007] IRLR 652 (at paragraph 33 of the judgment) are relevant:
- The facts of Khan have already been briefly mentioned (at paragraph 33) above. In that case, the Chief Constable had declined to give the claimant a reference not 'by reason that' the claimant had brought the racial discrimination proceedings against him but because of the existence of those proceedings, and because of the Chief Constable's need to preserve his position in respect of those proceedings; accordingly, the House of Lords decided that he had not discriminated against the claimant by way of victimisation.
- Prior to the enactment of Article 63A of the 1976 Order, courts in the United Kingdom had established what amounted to a special rule of proof in discrimination cases. That rule was best expressed in the judgment of Neill LJ in King v Great Britain-China Centre [1992] ICR 516, 528–529, in the following terms:
- That general rule of proof can be simply described in the following terms. If, at the conclusion of the evidence, the party bearing the legal burden proves, on the balance of probabilities, all matters which he is required to prove, he is entitled to succeed in his claim.
- The judge-made special rule of proof (as set out in King) entitled, but did not require, a tribunal to decide in favour of a claimant in a discrimination case if that claimant had established a prima facie case which was not the subject of a satisfactory (in the sense of non-discriminatory) explanation from the employer. That was the background to the enactment of Article 63A
- Article 63A was intended to implement the requirements of the EU Burden of Proof Directive of 15 December 1997.
- According to Article 4.1 of the 1997 Directive:
- Article 63A of the 1976 Order is in the following terms:
- There is nothing in the content or context of Article 63A to suggest that, through the enactment of that provision, the general rule of proof (as described above) was abrogated.
- One effect of Article 63A is that, if a prima facie case of unlawful discrimination is established, a tribunal is now under an obligation (as distinct from having the power) to find in favour of the claimant unless the employer proves that the relevant treatment was not accorded on a relevant prohibited ground.
- The English Court of Appeal decision in Igen has already been mentioned above. At the end of Igen, that court set out what is known as 'the revised Barton guidance'. That guidance envisaged a two-stage process for addressing the burden of proof, under Section 63A of the Sex Discrimination Act (which corresponds to Article 63A). That guidance was as follows:
- At paragraph (1) of the guidance, the phrase ' … the tribunal could conclude …' means 'a reasonable tribunal could properly conclude'. (See Madarassy v Normura International plc [2007] IRLR 246, at paragraph 57 of the judgment.)
- In cases (like the present case) in which a hypothetical comparator is cited, it is appropriate for a tribunal to construct a picture of how a hypothetical comparator would have been treated in comparable surrounding circumstances. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases. (See Shamoon, at paragraph 81 of the decision.)
- The judgments in the House of Lords in Shamoon highlight the fact that, when a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment. As Lord Nicholls commented, at paragraph 11 of Shamoon:
- In Zafar v Glasgow City Council [1998] IRLR 36, the House of Lords endorsed the reasoning of Lord Morison, who had explained (when Zafar was in the Court of Session):
- The unreasonableness of the treatment complained of is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was accorded on a proscribed ground, or for a proscribed reason. See Bahl v Law Society [2004] IRLR 799, especially at paragraph 101 of the judgment. See also paragraph 51 of the judgment in Igen (where the Court of Appeal accepted that a tribunal could decide that there was a prima facie case of unlawful discrimination mainly on the basis of the tribunal's finding that there was unexplained unreasonable conduct on the part of the employer).
- As already noted above (at paragraphs 6-9), it is unlawful to discriminate (by way of victimisation discrimination) against an employee by 'dismissing' her (in the broader sense in which dismissal is defined in Article 2(2A) of the 1976 Order).
- As noted at paragraph 7 above, Article 2(2A) provides that, for the purposes of the Order, references to the dismissal of a person include references to the termination of that person's employment by resignation:
- An employee will not be entitled to terminate the contract of employment without notice, by reason of the employer's conduct, if all of the following requirements are not met:
- In the present context, the concept of affirmation has to be seen against the following background. Faced with a repudiatory breach on the part of the employer, the employee is entitled to choose whether to treat the contract of employment as continuing or to accept the repudiation and treat herself as discharged from that contract. If she elects (either expressly or by implication) to treat the contract as continuing, she will be said to have 'affirmed' the contract; by doing so, she will lose her right to treat herself as having been constructively dismissed. (See paragraphs 7 and 44 of the respondent's Submission).
- Every contract of employment contains an implied term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust which should exist between employer and employee. Any breach of the implied term of trust and confidence will be a breach which is sufficiently important to justify the employee in resigning.
- As already indicated above, repudiatory conduct can consist of a series of acts or incidents, some of them quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. This is the last straw principle. In such a situation, the last action of the employer, which leads to the employee leaving, need not itself be a breach of contract; instead, the question is whether the cumulative series of acts, taken together, amount to a breach of the implied term of trust and confidence.
- The claims falling within this category of allegations have already been set out as claims (1) to (14) inclusive at paragraph 13 above. For ease of reference, we have repeated each of the relevant allegations in this part of the Decision.
- In the context of each particular claim, (in explaining why we have found that claim to be well-founded or not to be well-founded), we have drawn attention to particular facts and circumstances which we consider to be of significance in the context of that particular allegation. However, in deciding whether or not any particular alleged instance of mistreatment was accorded on the relevant prohibited ground, we have taken account of all the findings of fact which we have made in this case (and not just those findings of fact, or those factual conclusions, which we have chosen to highlight in the context of that particular allegation).
- Allegation (1) is as follows:
- We consider allegation (1) to be factually well-founded.
- We are satisfied that the fact that the claimant had carried out the relevant protected act was the main reason for the behaviour which is the subject of this particular allegation. We are so satisfied for the following reasons and against the following background:
- Allegation (2) was as follows:
- The context of this allegation is that on Monday 22 November 2004, the claimant's son had to go into hospital after collapsing at school. As a result, the claimant needed to be absent from work. We are satisfied that Ms O'Connor showed no empathy, and expressed no warmth, in connection with the relevant bout of serious illness. However, we are entirely satisfied that the only reason for that reaction was Ms O'Connor's quite understandable annoyance that the claimant had taken a long time to get into contact with her to explain the reason for the claimant's absence from work.
- Allegation (3) was as follows:
- Allegation (3) is factually well-founded in respect of absence during the period from November 2004 onwards. However, because of the breakdown in professional relationships, between the claimant and Ms O'Connor, any such interviews could not be conducted in an effective manner. That was the only reason for that shortcoming.
- Therefore, this particular claim of unlawful victimisation discrimination must fail because we are satisfied that the fact that the claimant had carried out the relevant protected act was not an important or significant reason for the relevant treatment. The relevant treatment was not accorded to the claimant because she had instigated a sex discrimination controversy. (See paragraph 40 above). Instead, that controversy was of merely contextual importance: because of the existence of the controversy, it was impossible for Ms O'Connor to carry out the interviews in an effective manner. (See paragraph 39 above.)
- Allegation (4) is as follows:
- We are satisfied that allegation (4) is factually well-founded. We are also satisfied that the fact that the claimant had carried out the relevant protected act was the main reason for the making of the criticisms. Accordingly, we are satisfied that the relevant treatment was accorded to the claimant on the relevant prohibited ground. It follows that an appropriate comparator would not, on that occasion, have been subjected to the relevant criticism.
- In arriving at those conclusions, we have taken account of the following matters and conclusions. First, there had been no equivalent criticisms of the contribution made by the Arts team in relation to any earlier St Patrick's Day Parade. Secondly, the criticism was expressed in strident and confrontational terms. Thirdly, we noted that this criticism was made only a few weeks after the relevant protected act was carried out. Fourthly, we found this aspect of Ms O'Connor's evidence to be evasive and unconvincing.
- Allegation (5) is as follows:
- The claimant was unable to actually change the job descriptions of any Art Centre staff without the approval of Ms O'Connor. Therefore, in reality, the relevant assertion was that the claimant had inappropriately attempted to augment the job descriptions of the two relevant staff. There is no doubt that the claimant did indeed attempt to augment the job descriptions of those staff. The only controversial question in that connection is whether she did so appropriately or inappropriately.
- A dispute on that question arose between the claimant and Ms O'Connor in July 2004. (See paragraph 21(10) above). The claimant took the view, and continues to take the view, that there were sound economic and organisational reasons for her attempt to augment the job descriptions. Ms O'Connor took the view from the outset, and continues to take the view, that there were no proportionate economic or business arguments in favour of the proposed augmentation and that there were compelling consideration of organisational policy which made it inappropriate to do so.
- We have concluded that the behaviour complained of in this allegation is not behaviour which constitutes victimisation discrimination. We have so concluded for the following reasons and against the following background. This type of controversy, in the context of a working relationship between two competent, articulate and committed individuals, is not exceptional. It is a controversy which arose before the protected act had been carried out. It is a controversy in respect of which Ms O'Connor's stance has been consistent, from the very beginning. Therefore, it is inherently unlikely that the carrying out of the relevant protected act was a significant reason for the making of the relevant assertion by Ms O'Connor. Furthermore, we found her evidence on this aspect of the matter to be internally consistent, consistent with the known facts and generally convincing.
- Allegation (6) is as follows:
- As we have already indicated above (in the course of setting out our findings of fact), we are satisfied that the launch of a disciplinary process against the claimant, in the circumstances of this case, was inappropriate and unjustified.
- So the claimant was indeed mistreated in the way alleged in allegation (5). The next question is, was the fact that she had carried out the relevant protected act a significant reason for that mistreatment?
- We have concluded that this question has to be answered in the affirmative. In arriving at that conclusion, we have taken account of the following matters:
- We have not lost sight of the fact that, in the course of the relevant internal grievance, the claimant initially complained of alleged religious discrimination (alongside her complaint of sex discrimination). However, during the course of this hearing, nobody has suggested that any action or omission on Ms O'Connor's part was prompted in any way by the complaint of religious discrimination. Furthermore, we note that the factual subject-matter of the relevant complaint (the disparity between the pay of the claimant and the pay of the Museum Curator) fits more comfortably within the context of an equal pay claim, than it would fit within the context of a religious discrimination claim.
- Accordingly, we are satisfied that Ms O'Connor instigated the disciplinary process because the claimant had carried out the relevant protected act. We are also satisfied that, if the relevant protected act had not been carried out, Ms O'Connor would not have been so angry with the claimant and, without that level of anger, she would not have wanted any disciplinary process to be initiated.
- Allegation (7) was as follows:
- There was indeed a lengthy delay in the completion of the disciplinary process, and a lengthy delay in pursuing relevant internal procedure processes. However, we are satisfied that those delays were the result of bureaucratic inefficiencies. Having carefully considered the relevant evidence and explanations of Mr McGrillen and Ms O'Connor, we are satisfied that the length of each relevant process would have been much the same in the case of a staff member who had not carried out a protected act (but whose situation was, in all other material respects, similar to those of the claimant). Because of those considerations, we must conclude that the conduct complained of in this allegation was not conduct which constituted discriminatory treatment.
- Allegation (8) was as follows:
- This is a reference to the mediation process which was begun in purported compliance with the recommendations of the Joynes Report.
- Allegation (8) is factually well-founded. Ms O'Connor did not make adequate or proportionate efforts to anticipate constructively in the relevant mediation process. Nevertheless, we have concluded that her omissions in that connection were not discriminatory in the relevant sense.
- We have so concluded because we are satisfied that Ms O'Connor would never be an enthusiastic participant in a mediation process involving herself and one of her direct or indirect subordinates. Therefore, an appropriate comparator (being a person who had not carried out a relevant protected act) would have been treated, in respect of any mediation process, in the same way as the claimant was in fact treated.
- Having carefully considered the evidence about Ms O'Connor's management style which emerged out of the oral testimony in this case, on both sides of the case, we are satisfied that Ms O'Connor would always resent any mediation process involving herself and a subordinate because she would always take the view that participation in such a process would have the effect of undermining her authority as a director.
- Allegation (9) is in the following terms:
- As already noted above, we have no doubt that it was inappropriate of the Council to initiate disciplinary action against the claimant in the first place. The Joynes Report suggested that the Council should reconsider the question of whether disciplinary action should be continued. Mr McGrillen did reconsider that matter. His decision was that the disciplinary action should be continued. In his evidence in these proceedings, Mr McGrillen's explanation was that he did not want Council staff to think that they could avoid appropriate disciplinary action by misusing the grievance process. That explanation has the ring of truth about it; and it makes logical sense. We have carefully assessed Mr McGrillen's demeanour and manner of giving evidence. Against that background, we decided that this aspect of his evidence was credible.
- Many reasonable employers would be concerned to make sure that staff were not led to believe that, in future cases, the opportunistic invocation of anti-discrimination procedures could act as an effective defence to well-founded disciplinary measures.
- We are satisfied that the relevant Joynes recommendation was rejected only because Mr McGrillen did not wish to create the type of 'unhelpful' message which is referred to in the last paragraph above.
- Accordingly, the carrying out by the claimant of the relevant protected act was not a reason for Mr McGrillen's decision to proceed with the disciplinary action. Therefore, we are unable to uphold allegation (9).
- We can only adjudicate in respect of allegations of discrimination which are actually made. Allegation (9) is a specific allegation that, by failing to implement the relevant Joynes recommendation, Mr McGrillen carried out an unlawful discriminatory act. For reasons which we have given above, we have concluded that this particular allegation is not well-founded.
- However, we wish to make the following additional comments. We have no doubt that the disciplinary proceedings would not have been instigated in the first place without explicit or implicit approval, or acquiescence, on the part of Mr McGrillen. He should not have allowed the instigation of the disciplinary action. That was improper conduct on his part. He knew at the time, or should have known, that the initiation of disciplinary action was a grossly disproportionate response to the situation.
- Allegation (10) is in the following terms:
- We consider that allegation (10) is based on a misunderstanding. Mr Joynes did not recommend that Mr McGrillen should play an active role in the monitoring of the mediation process. Instead, his recommendation was that there should be a monitoring programme for the purpose of resolving such issues as might arise generally in connection with the working relationship of the two protagonists (Ms O'Connor and the claimant). Mr McGrillen decided not to involve himself in such an arrangement. Instead, he decided to distance himself from the troubled relationship between those two protagonists.
- It is a fact of life that many senior managers distance themselves from conflict situations involving staff who directly or indirectly report to them. In our view, Mr McGrillen's lack of enthusiasm for getting himself involved in monitoring the claimant/O'Connor working relationship, even when it is viewed in the overall factual context, does not provide prima facie evidence that the relevant treatment was accorded on the relevant prohibited ground. Therefore, this allegation cannot be upheld.
- Allegation (11) is as follows:
- The criticisms in respect of the claimant's patterns of attendance at divisional management team meetings were fully justified. The claimant was often absent from such meetings and did not give adequate priority to her duty to attend such meetings. Therefore, allegation (11) is not factually well-founded, so this claim fails on that basis.
- Allegation (12) is as follows:
- This allegation is not factually well-founded. Ms O'Connor's application of rules and sanctions in respect of 'lieu' leave practices were fully in accordance with the Council's policies. Some lax practices, not consistent with those policies, had emerged within the Arts Department. The acts which are complained of within the context of this allegation were acts which were necessary in order to bring those practices back into line with those policies. Furthermore, those acts would have been carried out even if the claimant had not made the relevant internal complaint.
- Allegation (13) was as follows:
- Ms O'Connor did carry out a staff appraisal of the claimant in 2004. It was not practicable for Ms O'Connor to carry out effective appraisals in respect of the claimant after their professional relationship broke down from the end of 2004 onwards. So, the relevant omissions were not affected by the fact that the claimant had made the relevant complaint. The failure on the part of Ms O'Connor to carry out appraisals from 2005 onwards was the result of a realistic and appropriate recognition of the impracticability of doing so. That failure did not constitute any retaliatory action on the part of Ms O'Connor. For that reason, and against that background, this particular complaint of victimisation discrimination cannot be upheld. (See paragraph 70 above).
- Allegation (14) was in the following terms:
- It was not possible for Ms O'Connor to provide 'proper line management support' for the claimant once the claimant's relationship with Ms O'Connor broke down, from the end of 2004 onwards. The omission to provide 'proper line management support' was the outcome of recognition of that reality. It did not constitute retaliatory action. Accordingly, for that reason, and against that background, this complaint of discriminatory detrimental treatment must be rejected. (See paragraph 70 above)
- The claimant claims that the Council discriminated against her (by way of victimisation discrimination), contrary to the 1976 Order, by (constructively) dismissing her.
- That claim is based on the proposition that the various alleged acts of pre-dismissal discrimination, taken singly or together, constituted an important breach of the implied 'trust and confidence' term of the claimant's contract of employment.
- Of those 14 allegations of unlawful discrimination, we have upheld three. Those allegations were as follows:
- Taken on their own, the telephone conversation and the St Patrick's Day criticism could not possibly constitute a fundamental breach of the employment contract. Accordingly, in considering the claimant's claim of discriminatory constructive dismissal, it is important to pay special attention to the allegation relating to the instigation of the disciplinary proceedings.
- Those disciplinary proceedings were originally instigated by Ms O'Connor in February 2005 and were revived in February 2006. The outcome of the initial disciplinary hearing was made known in July 2006. The outcome of the appeal stage of the disciplinary hearing was made known in October 2006. However, the claimant did not resign from her employment until 2 April 2007. In the meantime, she gave no hint that she was intending to resign, or that she was considering resignation.
- For those reasons, and against that background, we consider that we must conclude that the claimant affirmed the contract over a lengthy period after she had become aware of the relevant breaches of contract.
- Because the claimant affirmed the contract after becoming aware of the relevant breaches, she lost the right to treat herself as discharged from the contract by reason of those breaches. Therefore, her resignation does not fall within the scope of the extended definition of 'dismissal' which is contained in Article 2(2A) of the 1976 Order. (See paragraph 58 above). Accordingly, in the circumstances of this case, the claimant has not been "dismissed", (in the sense in which the concept of dismissal is used in Article 8(2) of the 1976 Order).
- Therefore, the question of whether or not the termination of the claimant's employment was tainted by discrimination is a question which (in the circumstances of this case) does not arise.
- The claimant sought leave to amend her claim form, so as to include the claim of discriminatory (constructive) dismissal which has already been mentioned above. We gave the claimant leave to make that amendment. (That application was opposed by the respondent).
- We promised to provide written reasons for that determination at a later stage. We do so now.
- The effect of Rules 10(1) and 10(2)(q) of the Industrial Tribunals Rules of Procedure 2005 ('the Rules') is that this tribunal had power to give leave to the claimant to amend her claim.
- The claimant's resignation had taken effect at the end of April 2007. She only made her application (for leave to amend) in the course of the main hearing.
- Article 76 of the 1976 Order specifies the period within which industrial tribunal victimisation discrimination proceedings must be brought. Article 76 specifies both a primary time limit and a secondary time limit.
- The primary time limit is provided for in Article 76(1), which provides that an industrial tribunal shall not consider a relevant complaint unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done. Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 arguably provide for an extension of that primary time limit in the circumstances of this case, because a grievance procedure was an 'applicable statutory procedure' and the claimant did pursue that procedure. (See paragraphs (1) and (3) of Regulation 15). However, it seems to us to be unnecessary to arrive at a definitive conclusion on that question.
- Paragraph (5) of Article 76 provides that a tribunal may nevertheless consider any complaint which is out of time (in terms of the primary time limit) if:
- The arguments of the parties on the time limit point can be summarised as follows:
- We accept that the claimant was affected by depression during part of the relevant period. However, we also note that she was fit to work during much of that period. We also accept that there was serious illness in her family at a relevant time. We find that, at the time of the termination of her employment, she knew of her entitlement to make a claim of discriminatory constructive dismissal. We note that, at that time, she made it known to the respondent that she did not intend to make any constructive dismissal claim.
- We noted the statement of law, in relation to the amendment of claims, which appears in 'Harvey on Industrial Relations and Employment Law' ('Harvey') at paragraphs 311 to 312.06 of Division T. We noted that Harvey categorises relevant amendments as follows:
- We have proceeded on the basis that the relevant amendment is a category (iii) amendment.
- Because we have treated this as a category (iii) claim, an important question is whether or not it would be appropriate to extend the time limit, if this amendment was being pursued by way of fresh proceedings.
- Selkent Bus Company v Moore [1996] IRLR 661 is a leading authority on the circumstances in which it is appropriate to grant leave to amend a claim form. In Selkent, Mummery LJ emphasised that, in refusing or granting an amendment, the paramount considerations are the relative injustice and hardship involved for each party.
- We then turned to the question of whether or not time would be extended if the additional complaint had been pursued by way of a fresh claim. We noted that, in that context, we were faced with criteria which were very similar to the criteria which were emphasised by Mummery LJ in Selkent.
- It is clear that, in considering whether to allow a 'just and equitable' extension to a discrimination case time limit, it is appropriate to consider the criteria which are applied in the context of deciding upon extensions of time in respect of personal injury cases.
- Against that background, the case of Horton v Sadler [2006] UKHL 27 is of considerable interest. In that case, the House of Lords considered some fundamental issues regarding the purpose, in the context of the Limitation Act 1980, of the provisions for disapplication of the primary time-limit in Section 33 of that Act. Those provisions are widely recognised as being broadly analogous to the 'just and equitable' provisions which apply in the context of discrimination legislation.
- Paragraph 9 of the judgement in Sadler shows that the exercise of the discretion under Section 33 of the 1980 Act is not reserved for the 'occasional hard case' nor is it to be reserved for cases of an unusual nature; and that, instead, the relevant provision gives courts an unfettered general discretion to extend time.
- At paragraph 32 of Sadler, Lord Bingham discusses the disapplication provisions in the Limitation Act in the following terms:
- Sub-section (1) of Section 33 makes it clear that the overall criterion relates to the extent of the prejudice to each of the parties to the action:
- So the provisions of sub-section (1) set out the overall criterion. The so-called 'check-list' in subsection (3) is intended merely to assist courts in applying that criterion.
- Turning now to that 'check-list':
- In considering the degree of prejudice to each party, we noted that the prejudice to the claimant (if we refused the amendment) was that she would lose what might be a viable claim. We noted that, on the other hand, the prejudice to the respondent would consist of the loss of a fortuitous limitations defence. (See Sadler, at paragraph 34).
- This is an unusual case, in that the proposed additional cause of action (the relevant discrimination claim in respect of constructive dismissal) is based solely on the allegations which provide the factual basis for the claimant's pre-existing claims (which are claims of pre-dismissal discriminatory detriments). Accordingly, the respondents have always known, from the outset, that the matters which would now constitute the basis for the discriminatory dismissal claim were matters which would, in any event, be the subject of examination and contention in the course of an employment tribunal hearing.
- In view of all the circumstances outlined above, we concluded that it would have been appropriate for a tribunal to extend the time, if the new claims were being made in fresh proceedings (as distinct from being made by way of an application for leave to amend).
- Accordingly, we were satisfied that it was just and equitable to extend the time-limit, having regard, in particular to, relative injustice and hardship involved for both parties.
- Accordingly, we decided to grant the claimant leave to amend the proceedings by adding the claim of allegedly discriminatory dismissal.
- As a result of this hearing, we have become aware that Ms O'Connor is a hard worker, with high quality standards, who has done much good in the public service.
- We are uncomfortably aware of the fact that Ms O'Connor has suffered much stress and anxiety as a result of these proceedings.
- However, in our role as an industrial tribunal, we must apply the law to the facts as we find them. The 1976 Order has to be construed in light of the requirements of the Equal Treatment Directive. Article 7 of that Directive imposes a requirement on member states to:
- The effect of relevant provisions of the 1976 Order (when construed in light of the requirements of the Directive) is that a woman (or a man) who raises an equal treatment allegation with an employer is entitled to compensation in the event of there being any retaliatory action by the employer, or by any person for whom the employer has legal responsibility.
- The central difficulty in this case was the inappropriate instigation of disciplinary action. Ms O'Connor was the perpetrator of that act of discrimination. However, Mr McGrillen is also blameworthy in that connection, because he did not prevent her from doing so.
- Either party is free to ask for the case to be listed for a remedies hearing. Either party can do so at any time after the expiration of six weeks from the date on which this decision is issued to the parties.
CASE REF: 1229/05
CLAIMANT: Cathie McKimm
RESPONDENT: Down District Council
The unanimous decision of the tribunal is as follows:
(A) The claimant was subjected to the following acts of unlawful victimisation discrimination:
(1) During the course of a telephone conversation in November 2004, Ms Sharon O'Connor engaged in aggressive and abusive behaviour towards the claimant, by raising her voice and by "hanging up".
(2) Ms O'Connor criticised the contribution being made by the Council's Arts team to the 2005 St Patrick's Day Parade.
(3) Ms O'Connor's instigation of a disciplinary process against the claimant was inappropriate and unjustified.
(B) None of the claimant's other victimisation discrimination claims is well-founded. Accordingly all of the other victimisation discrimination claims are dismissed.
Constitution of tribunal:
Chairman: Mr P Buggy
Members: Mrs T Hughes
Mr J Nicholl
Appearances:
The claimant appeared in person.
The respondent was represented by Mr D McAughey, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.
REASONS
The claims
(1) These proceedings include an equal pay claim in connection with the pay grievance referred to above. It is agreed between the parties that the equal pay claim will be dealt with at a subsequent stage of the main hearing.
(2) The claimant had been asserting that the underpayment also constituted an act of unlawful sex discrimination against her. However, during the course of the main hearing, she has withdrawn that claim.
(3) The claimant claims that, by subjecting her to the mistreatments referred to above, the Council has discriminated against her (by way of victimisation) by "… subjecting her to any other detriment" within the meaning of Article 8 of the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order').
(4) In the course of the main hearing, the claimant sought leave to amend her claim by including a claim that, because of those instances of alleged unlawful victimisation discrimination, the Council had also discriminated against her (again, by way of victimisation discrimination) by dismissing her, contrary to Article 8 of the 1976 Order. We granted that leave application. (See below).
Some key legislative provisions
"… by dismissing her, or subjecting her to any other detriment".
"to the termination of that person's employment … by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer …".
"… that he took such steps as were reasonably practicable to prevent [the perpetrator] from doing that act, or from doing in the course of his [or her] employment acts of that description".
The Council does not invoke that defence in this case.
The allegations
(1) During the course of a telephone conversation in November 2004, the claimant's immediate line manager, Ms Sharon O'Connor, engaged in aggressive and abusive behaviour towards the claimant, by raising her voice, and by 'hanging up'.
(2) Ms O'Connor failed to show any compassion or duty of care in relation to a bout of serious illness which was suffered by the claimant's son.
(3) Ms O'Connor failed to adequately carry out return to work interviews with the claimant.
(4) Ms O'Connor criticised the contribution being made by the Council's Arts team to the 2005 St Patrick's Day Parade.
(5) Ms O'Connor unfairly asserted that the claimant had inappropriately augmented the job descriptions of two Arts Centre staff (a Mr Smyth and Ms Rogan).
(6) Ms O'Connor's instigation of a disciplinary process against the claimant was inappropriate and unjustified.
(7) There was unwarranted delay in the completion of that disciplinary process and there was unwarranted delay in implementing other relevant internal procedure processes.
(8) Ms O'Connor did not make adequate or proportionate efforts to participate constructively in a mediation process.
(9) The Chief Executive of the Council, Mr John McGrillen ('Mr McGrillen') inappropriately decided to continue with disciplinary action against the claimant.
(10) Mr McGrillen also inappropriately rejected a recommendation that he should conduct an ongoing monitoring programme in connection with the mediation process.
(11) Ms O'Connor inappropriately criticised the claimant in respect of the latter's patterns of attendance at Ms O'Connor's divisional management team meetings.
(12) Ms O'Connor inappropriately applied rules and sanctions to the claimant in respect of 'lieu' leave practices.
(13) Ms O'Connor did not carry out any staff appraisals of the claimant from June 2003 onwards.
(14) Ms O'Connor did not provide the claimant with 'proper line management support' from November 2004 onwards.
According to the claimant, those various acts together constituted a course of conduct on the part of the respondent. The respondent does not suggest that any of those complaints of detrimental treatment is statute-barred. (However, the respondent did raise a time-limit point in respect of the complaint of discriminatory constructive dismissal: see below).
(1) All of the claims of discriminatory detrimental treatment (as set out in the last paragraph above) are well-founded.
(2) The carrying out of those unlawful discriminatory acts constituted a breach of the implied term of trust and confidence in the claimant's contract of employment.
(3) Those acts of unlawful discrimination, taken singly or together, constituted a fundamental breach of the claimant's contract of employment.
(4) The claimant resigned as a reaction to some of those acts.
The sources of evidence and the arguments
(1) a large agreed bundle of documents, consisting of several hundred pages;
(2) a report of an investigation into the claimant's allegations of harassment and bullying, dated August 2005 ('the Joynes Report'); and
(3) various miscellaneous documents which were provided to us by the two parties during the course of this stage of the hearing.
The facts
(1) The Council employs hundreds of staff. As its Chief Executive, Mr McGrillen is the Council's most senior Officer. The next tier down is Director level. Ms O'Connor is a Director. She has a number of staff reporting directly to her. The post of Arts Officer (the post which the claimant held) is one of those posts which report directly to Ms O'Connor's post.
(2) The claimant became the Arts Officer in January 2001.
(3) From the start, she impressed Ms O'Connor and Mr McGrillen, because she was enthusiastic and clever and good at her job. The first appraisal was carried out in mid-2001. Ms O'Connor was the appraiser. Mr McGrillen (as Ms O'Connor's line manager) countersigned the appraisal. In the relevant appraisal documentation, both Ms O'Connor and Mr McGrillen were fulsome in their praise of the claimant.
(4) By mid-2001, the claimant had become aware of the salary, grade, and job responsibilities of the Museum Curator's post. She had formed the view that her work was at least equal, in terms of economic value, to the work of the Curator. But the Curator was paid much more than the claimant. She formed the view, at that point, that she ought to be paid at least as much as the Curator. She has never deviated from that view ever since. She raised the disparity issue during 2001, in the context of her appraisal.
(5) During the following year, 2002, she again was the subject of a very favourable appraisal.
(6) In August 2003, she launched a re-grading appeal, which was designed to address what she considered to be the unjust disparity between her pay and that of the Curator. In September of that year, she was told that there would be no re-grading of her post until the Council had decided on the appropriate grades for all members of staff (in the course of a harmonisation process which was ongoing at that time, and which is still ongoing).
(7) In 2003, her work was again appraised. Again, the appraisal was very complimentary.
(8) Mr McGrillen told us that, on one occasion, early on in the claimant's period of employment with the Council, he had to threaten the claimant with disciplinary action before she would accept a direction, from him, not to publicly criticise the Church of Ireland (in the context of an issue as to whether the Church should allow members of a Buddhist organisation to perform in Down Cathedral). We are satisfied that, in reality, no threat of disciplinary action was made in that connection. We accept however that there was a robust interaction between Mr McGrillen and the claimant in respect of the relevant incident, with the claimant being told, in no uncertain terms, of Mr McGrillen's expectation that the claimant would refrain from any public criticism of the Church.
(9) During the period from the commencement of the claimant's employment until November 2004, there were some other sources of tension. First, the claimant was quite adept at the art of internal politicking and, in particular, was good at personal networking with some of the Council's Councillors. Secondly, her internal personnel practices, within the Arts Sections, were sometimes, in relation to some people, overly pragmatic and somewhat lacking in transparency.
(10) Those pre-November 2004 controversies were the subject of occasional tensions between the claimant and Ms O'Connor. However, overall, they had a very good working relationship throughout that period. Those sources of tension did not diminish the quality of their working relationship. In particular, there was a very sharp exchange of correspondence between the claimant and Ms O'Connor, beginning with an O'Connor email of 28 June 2004 and ending with two O'Connor emails of 1 July 2004. In the course of that correspondence, Ms O'Connor rightly accused the claimant of having implicitly threatened a reduction in services, as part of the claimant's campaign to achieve a non-generic job description for a Mr James Smyth. Indeed, aspects of the memo from the claimant could reasonably be regarded as having an impertinent tone. Yet, Ms O'Connor never considered the possibility of disciplinary action in connection with that correspondence. Furthermore, later during the Summer of 2004, Ms O'Connor completed an appraisal in respect of the claimant in which she described the claimant's performance as 'excellent'. (See paragraph 6.3 of the Joynes Report).
(11) Throughout this period, the claimant continued to feel a very strong sense of resentment in relation to the disparity between her pay and that of the Museum Curator. She was frustrated at the fact that the Council was unwilling to do anything about the issue until gradings within the Council generally had been finalised. She correctly realised that that general harmonisation process could take a very long time.
(12) In August 2004, she asked for an external review of the entire Arts Service staffing structures within the Council, in comparison with other Down Council departmental services and, in particular, with the Museum. That proposal was approved by Mr McGrillen's Senior Management Team.
(13) That review was carried out by an external consultant, who worked for Capita. She produced a draft report. Prior to the production of that draft report, Ms O'Connor talked to that consultant; Mr Norman Stewart, another Director of the Council, had a separate meeting with the consultant; and the claimant had a separate meeting with the consultant.
(14) The claimant hoped that, as a result of the external review, the log-jam in respect of her grading would somehow be broken. The claimant's proposal in respect of the external consultancy was approved at a Management Team meeting on 12 August 2004. The claimant's proposal was agreed in the following terms:
"Agreed that a Structural Review which should take no more than 2 consultancy days be undertaken to examine roles and responsibilities in advance of, and separate from, the Job Evaluation Scheme".
(15) Contrary to views which were put forward in the course of evidence which was given on behalf of the respondent in this case, and contrary to arguments that were put forward on behalf of the respondent in this case, we consider it to be clear that the claimant's initial proposal was agreed without any modifications which are relevant in the present context. It is true that the proposal was agreed on the basis that the review would take no more than two consultancy days. It is also true that the proposal was agreed on the basis that it would be in advance of, and separate from, the Job Evaluation Scheme. However, the approval of the proposal did not explicitly or implicitly exclude grading issues from the scope of the review.
(16) No "final" version of the report was ever produced. The draft report was produced in October 2004. The scope of the draft report was very different from the scope of the claimant's proposal. First, the draft focussed on the role of one particular Administrative Assistant within the Arts Service, whereas the proposal had covered all of the Arts team posts. Secondly, the report used the Arts Services in other Councils as the points of comparison, and did not carry out any comparison with roles within the Museum Service of the Council.
(17) Why was the scope and focus of the draft report so very different from the scope and focus of the claimant's proposal, against a background in which the claimant's proposal was apparently accepted as the basis for the consultant's brief? Ms O'Connor and Mr McGrillen did not provide us with any clear or convincing answers to that question.
(18) The claimant was very angry about the outcome. She was convinced that the consultant's brief had been tweaked as a result of discussions with some senior person within the Council. Ms O'Connor was her chief suspect.
(19) In the meantime, the claimant, with the encouragement of Ms O'Connor, had applied for the post of Director of Recreation within the Council. She was not short listed, and was informed to that effect at the end of October 2004. By that time, her relationship with Ms O'Connor was still so good that she thought it appropriate to seek advice from Ms O'Connor, and Ms O'Connor thought it appropriate to give her advice, in that connection. Ms O'Connor advised the claimant to 'appeal' against the short listing decision. The claimant did follow that advice. First, she sought feedback in respect of the short listing decision. Subsequently (on 5 November 2004) she notified the Council of her wish to appeal against the short listing decision.
(20) Councillors who belong to nationalist parties are in the majority on Down District Council. The claimant comes from a Protestant community background.
(21) On 5 November 2004, the claimant submitted a written grievance to the Council. It was submitted, in the first instance, to Ms O'Connor. According to the written grievance, the nature of the grievance was as follows:
"Religious and Sexual Discrimination: Despite repeated efforts to have the Council review the inequalities between […] myself and that of other colleagues in my department, the Council has refused to address this issue. I now wish to lodge a formal grievance on the basis of religious and sexual discrimination".
(22) Ms O'Connor decided that the Capita consultant's fee should come out of the Arts Service budget. The claimant regarded this as adding insult to injury. She used that situation as a pretext to raise her issues about the changing of the consultant's brief. She rang Ms O'Connor on 17 November, ostensibly to discuss who should properly have budgetary responsibility in respect of payment of the consultant's fee. In the course of that conversation, she took the opportunity to query with Ms O'Connor why the scope and focus of the consultant's draft report was so very different from the scope and focus of the claimant's initiating proposal. The tone was not rude, but it was pointed. Contrary to the claimant's protestations in her evidence at this hearing, she did make a remark during that conversation to the effect that 'he who pays the piper calls the tune'. Ms O'Connor affected to be shocked and insulted by the implication that she had been instrumental in changing the scope and focus of the consultant's brief.
(23) However, the reality was as follows. First, even if the claimant's imputation was correct, it did not necessarily reflect upon Ms O'Connor's integrity. (Directors have a legitimate role in providing a 'steer' to external consultants.) Secondly, it was entirely reasonable of the claimant to raise the issue with Ms O'Connor. After all, it was likely that somebody within the Council had encouraged the consultant to modify the scope and focus of the consultant's work and Ms O'Connor, as the Director of the relevant function, was the person most likely to have done so; and the claimant was raising the issue with Ms O'Connor in private.
(24) However, during the course of the 17 November telephone conversation, Ms O'Connor expressed anger about the suggestion that she, in her role as Director, had influenced the scope or focus of the brief. She hung up on the claimant.
(25) Shortly afterwards, at 10.58, she sent the claimant an e-mail in the following terms:
"For the record, I asked Norman Stewart to commission this piece of consultancy work by an independent consultant. I have had little or no involvement with the consultant (nor did I select her) other than to meet her briefly to outline why the issue had arisen.
I greatly resent your suggestion that I influenced the outcome. I have been consistently supportive of you and the Arts Centre and I am really disappointed by this sort of behaviour".
(26) Less than 20 minutes later, she sent another e-mail to the claimant. That e-mail was in the following terms:
"The brief was totally in your hands. I assume that you gave the consultant anything that you had produced for the Management Team. It was up to you to make your case to the consultant. I DID NOT!!!! say anything to influence her one way or the other. The methodology she adopted of comparing the DDC Arts facilities is […] probably a better comparator than the Museum which you'll agree is a very different facility. If you are saying that the data she supplied ref other Arts functions is incorrect then I suggest you talk to her about it. Norman Stewart could provide you with a telephone number".
(27) The intensity of Ms O'Connor's apparent anger (as indicated by the fact that she hung up on the claimant and by the use of block capitals and exclamation marks in the second e-mail of the morning of 17 November) seems to be grossly disproportionate to the situation presented by the claimant's words and actions on that morning.
(28) On the day of that telephone conversation, Ms O'Connor will have been aware of the fact that the hearing in respect of the claimant's internal religious discrimination/sex discrimination grievance was scheduled for the following Monday.
(29) At all material times, all those concerned in connection with the claimant's grievance knew that in essence, in reality, it was a gender equality grievance. Nobody ever took the religious discrimination aspect of the grievance seriously; and, ultimately, that aspect of the grievance was not pursued.
(30) Ms O'Connor saw the grievance as a grievance against herself personally. At all material times, she had seen herself as a strong supporter of gender equality, particularly in the local government context, and she regarded the claimant's sex discrimination grievance as a serious and personal insult. Some flavour of that hurt and annoyance emerges in Ms O'Connor's witness statements in these proceedings. (See paragraphs 2.1 to 2.3 of Ms O'Connor's initial witness statement). There is also support for that proposition in the comments which Ms O'Connor made to the disciplinary procedure Investigating Officer, Mr Patrick Hobson. (She told him that the claimant "… accused me of discrimination").
(31) On 24 November 2004, the claimant was informed that her short listing grievance was not upheld.
(32) The claimant was not at work from 24 November 2004 until 5 January 2005. From 24 November 2004 until 24 December 2004, she was on sick leave, which was certified as being due to stress.
(33) The claimant's grading grievance hearing took place on 22 November 2004. However, a determination in respect of that grievance was delayed because Ms O'Connor was not available for interview (in connection with that grievance) until 6 December 2004.
(34) At the beginning of February 2005, a first stage internal decision on the grading grievance was still outstanding, but was imminent. (That decision was sent to the claimant on 9 February.)
(35) In early 2005, a considerable number of Council job descriptions were being revised and updated. Among the relevant job descriptions were all the job descriptions within the Arts Section, including the claimant's own job description.
(36) By that time, Ms O'Connor had made it clear to the claimant that she expected the claimant to agree the terms of any draft Arts Section job descriptions with her before sending them to the Human Resources Department. That instruction was not consistent with an instruction which Ms Catrina Miskelly, the Council's Human Resources Manager, had sent to all staff on 17 January 2005. (The Miskelly instruction has to be read within the context of a memo which Mr Norman Stewart sent to staff on 20 December 2004.) According to the Miskelly instruction, each proposed revised job description was to be sent to the Human Resources Department as soon as it had been agreed between the relevant officer and that officer's immediate line manager.
(37) At a meeting with Ms O'Connor on Friday 4 February 2005, the claimant told Ms O'Connor that, in compliance with the Miskelly instruction, the claimant had sent the proposed revised job descriptions in respect of several of her subordinates directly to the Human Resources Department.
(38) Any such bypassing of Ms O'Connor in this way had no practical significance, because no relevant revised job description would be agreed by the Human Resources Department unless and until Ms O'Connor had agreed it.
(39) The purpose of the 4 February meeting was to discuss the draft revised job descriptions in the Arts Section. During the course of that meeting, Ms O'Connor expressed strong disapproval in response to the claimant's assertion that the claimant had sent the proposed revised job descriptions of various Arts Section staff directly to Human Resources.
(40) During the course of that meeting, the controversy in respect of the Capita report, and in particular the conversation of 17 November 2004, was also discussed. In their evidence to us, there was disagreement between the parties on question of whether Ms O'Connor first raised the Capita issue or whether the claimant first raised that issue. In our view, for the purpose of determining the issues which we have to decide, it is unnecessary to resolve that factual conflict. We are satisfied that, in the course of that discussion, the claimant again made it clear that she was unhappy about the altered focus of the Capita draft report and, once again, she strongly implied that she was suspicious that Ms O'Connor had had a significant influence in connection with the change of focus. During that meeting, Ms O'Connor was agitated and angry. The meeting came to an end when Ms O'Connor told the claimant to get out of her office, stating that she (Ms O'Connor) had 'had enough'. In 2005, 4 February was a Friday. On the following Monday, 7 February, Ms O'Connor held a meeting of her management team in her office. After that team meeting, there was a further meeting with Ms O'Connor, about grants policy in which various other members of staff participated alongside the claimant. At the end of that second meeting, Ms O'Connor asked the claimant to remain behind.
(41) The claimant did remain behind. Ms O'Connor then held a meeting with the claimant. At Ms O'Connor's insistence, Ms O'Connor's PA was present at that meeting, for the purpose of taking notes. At that meeting, Ms O'Connor made it clear to the claimant she intended to instigate disciplinary proceedings against the claimant, based on two matters. First, Ms O'Connor would be alleging that the claimant had improperly accused her of dishonestly influencing the outcome of the relevant Capita report. Secondly, Ms O'Connor would be asserting that the claimant had acted improperly by sending job descriptions of Arts Section staff directly to the Human Resources Department.
(42) The respondent's Disciplinary Procedure ('the Procedure') had classified disciplinary offences as offences of ordinary misconduct, serious misconduct and gross misconduct. Among the examples of 'Serious Misconduct' given in the Procedure are the following:
"Offensive behaviour to fellow employees or member of the public"
and
"Refusing to carry out a reasonable instruction"
(43) There is no doubt whatsoever that the relevant disciplinary proceedings against the claimant were instigated by Ms O'Connor. She was not merely a person who reported on a particular piece of misconduct. She was the driving force behind the proceedings. For example, in her supplementary witness statement, she refers to the disciplinary proceedings against the claimant as "my disciplinary action against her". (See paragraph 4 of Ms O'Connor's supplementary witness statement.)
(44) We have already referred above to the confrontational meeting of 7 February, at which the claimant was told of the intention to take disciplinary proceedings. The alleged disciplinary offences were set out in the letter which Ms O'Connor sent to the claimant later that day. According to that letter, the offences consisted of insubordination and failure to carry out a reasonable instruction, which consisted of the following:
"1. On Friday last, 4/2/05 you made unfounded allegations that I manipulated the outcome of the recent independent review of staffing structures at the Arts Centre. This is the second time that you have repeated this allegation and I refute this.
2. Your failure to consult me prior to agreeing new posts with members of staff and your actions associated with this represent a failure to carry out a reasonable instruction, as I have directed you not to attempt to use the job evaluation process to create alternative posts – a direction I have repeated on numerous occasions."
(45) Ultimately, no action was taken in respect of the second of those allegations because the Investigating Officer (Mr Hobson) concluded, rightly in our view, that there was no adequate evidence to support this complaint.
(46) However, the first of those allegations was made the subject-matter of a disciplinary process, apparently on the basis that there was no adequate basis for any contention that Ms O'Connor had influenced the outcome of the Capita report.
(47) As soon as the claimant became aware of the fact that the disciplinary proceedings were being instigated against her, she invoked the Council's bullying and harassment procedure, as a means of retaliating against Ms O'Connor, and as a self-protective measure.
(48) In her harassment complaint, the claimant complained in respect of what she characterised as Ms O'Connor's 'bullying behaviour'. That complaint was originally set out in the claimant's memo of 9 February 2005 (addressed to Ms Catrina Miskelly). That memo concentrated, in the main, upon Ms O'Connor's behaviour in connection with the instigation of disciplinary proceedings, in connection with the telephone conversation of 17 November 2004 and in connection with the meeting on 4 February 2005. However, in order to bolster her claim under the bullying procedure, the claimant alleged that Ms O'Connor has been involved in bullying behaviour over several months. In particular, she complained in respect of the mid-2004 controversy regarding the augmentation of job descriptions. (See above.)
(49) In our view quite understandably, Ms O'Connor was not keen to engage pursuant to the bullying procedure on an informal (as distinct from a formal) basis. Ultimately, pursuant to the relevant formal process, the Council engaged the services of Mr Alistair Joynes to investigate the claimant's bullying complaint.
(50) Mr Joynes' report was completed at the end of August 2005. In summary, he decided that Ms O'Connor had not been guilty of bullying or harassment. However, he was sharply critical of several aspects of her behaviour in connection with relevant interactions between the claimant and herself.
(51) The claimant could have pursued an internal appeal under the bullying procedure, but did not do so.
(52) As already noted above, Mr Hobson, as the Disciplinary Procedure Investigating Officer, concluded that one of the disciplinary allegations against the claimant could appropriately be made the subject of a disciplinary process. He arrived at those conclusions in April 2005. On 18 April 2005, the claimant was notified by the Council, by letter, that Management did indeed intend to make that allegation the subject of a disciplinary process.
(53) No disciplinary hearing was held pending the outcome of the Joynes' investigation.
(54) One of the Joynes recommendations was as follows:
"As a start point, it is recommended that all formal actions by either against the other are set aside, in order that constructive and meaningful dialogue is made possible. Of course, both parties must fully agree to this course of action."
(55) Ms O'Connor was strongly opposed to the abandonment of the pending disciplinary proceedings. Mr McGrillen decided not to abandon those proceedings. He decided against abandonment of the proceedings mainly because he did not want Council staff, in any future disciplinary or alleged disciplinary proceedings, to think that they could prevent appropriate disciplinary action by misusing the grievance process. We are satisfied that he would have decided to continue the disciplinary process even if relevant representations had not been made on behalf of Ms O'Connor.
(56) At both stages of the two-stage internal disciplinary process, the relevant internal disciplinary decision-maker decided that the charge against the claimant was found to be well-founded. In our view, those decisions were perverse. However, the actual disciplinary decisions are not the subject of any discrimination claim in these proceedings. Accordingly, we say no more about that particular aspect of the matter.
(57) The ultimate outcome of the internal disciplinary process was much delayed. The initial disciplinary hearing did not take place until June 2006. The first stage disciplinary decision was not made known to the claimant until July 2006. The second stage disciplinary decision was not made known to the claimant under October 2006.
(58) In these proceedings, one of the claimant's complaints is that Ms O'Connor did not carry out any staff appraisals of the claimant from June 2003 onwards. She did carry out such an appraisal in the Summer of 2004. However, her duly signed copy of the appraisal is, according to Ms O'Connor, lost, and irretrievably so. Like Mr Joynes, we are very surprised by that loss. Like him, we find it very surprising that no copy of the relevant appraisal form was kept in Ms O'Connor's office. However, we do not consider it to be appropriate to draw any inferences adverse to the respondent from that situation.
(59) The Joynes Report included the following recommendation:
"6. [Both the claimant and Ms O'Connor] should be encouraged to enter into a process of Mediation. In reality there is little likelihood that this could proceed without genuine commitment from both Ms McKimm and Ms O'Connor. A suitable Mediator should be agreed and appointed as soon as possible."
(60) The Joynes Report also contained the following recommendation:
"9. Consideration should be given to an on-going Monitoring Programme for an agreed period, in order that any "issues" that arise can be quickly and effectively resolved. It may be that the Chief Executive is best placed to provide such an arrangement."
(61) The claimant's letter of resignation was dated 1 April 2007. In the second and third paragraphs of that letter, she set out her reasons for resignation, in the following terms:
"It is with some regret that I offer my resignation, as there had been some key areas of work I had wished to see through to completion before moving on. However, the current circumstances in which I am having to work are compromising my ability to manage it effectively and causing me stress that is having a negative impact on my general health.
It has been a huge disappointment to me that the organisation has not honoured and implemented their recommendations set out in the external report presented by Alastair Joynes in August 2005. Your decision not to implement a suitable Monitoring Programme to oversee the restoration of an acceptable working relationship between myself and Miss O'Connor has allowed an already bad situation to deteriorate. In almost two years there has been no progress with regard to mediation and I have not had a staff appraisal since 2003. I feel very isolated and unvalued within the organisation and no longer have any confidence that Miss O'Connor's unacceptable and disrespectful management style will be dealt with".
The claimant's resignation took effect on 30 April 2007.
(62) We accept the respondent's contention that the evidence of the claimant should be treated with caution. In particular, we accept that, in her evidence to this tribunal, the claimant initially failed to tell the truth and the whole truth about the potential for communicating directly with Ms O'Connor, in the context of the bout of serious illness which is referred to in allegation (2) above.
(63) However, we also have reservations about the credibility of Ms O'Connor as a witness, in relation to some aspects of her testimony. First, we have noted, in particular, the lack of detail in her responses, in the course of her witness statements, to some of the allegations put forward by the claimant. For example, we were never informed as to the identity of the 'colleagues' who criticised the quality of the contribution being made by the Arts Service in respect of the 2005 St Patrick's Day parade. Secondly, Ms O'Connor failed to frankly acknowledge that she gave insufficient priority to her contribution to the post-Joynes mediation process. Thirdly, Ms O'Connor failed to frankly acknowledge that Mr Joynes has been sharply critical of relevant aspects of her behaviour. (See paragraph 5.3 of Ms O'Connor's initial witness statement.)
(64) In the interests of readability, and with a view to minimising duplication, we have included some additional findings of fact below, alongside our conclusions.
The legal principles
"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –
…
(b) by dismissing her, or subjecting her to any other detriment."
"Member States shall introduce into their national legal system such measures as are necessary to protect employees … against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment."
"6.(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has —
(a) brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act …, or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order or the Equal Pay Act …, or
(c) otherwise done anything under or by reference to this Order or the Equal Pay Act … in relation to the discriminator or any other person, or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act …
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.
(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
(3) … ."
The actions listed at sub-paragraph (a – (d) of Article 6(1) are usually referred to as "protected acts". The respondent accepts, for the purposes of these proceedings, that by making the internal complaint of sex discrimination (on 5 November 2004), the claimant did carry out a "protected act".
(1) The claimant must have been treated less favourably than the alleged perpetrator treated, or would have treated, an appropriate comparator (who may be an actual comparator or a hypothetical comparator).
(2) The less favourable treatment must have been accorded 'by reason that' the claimant had carried out the relevant protected act.
" … are the same, or not materially different …".
However, Article 7 does not apply to victimisation discrimination.
"Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. … The phrase 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
" … [This case] stands or falls by reference to well established law in relation to direct discrimination. That recognises that treatment complained of is not on the ground of sex if it is on some other ground, which is not gender specific. Although the 'but for' test is often helpful in identifying whether treatment is on the ground of sex, and in circumstances such as those in James v Eastleigh Borough Council … may be determinative, it is worth remembering that the focus of the enquiry is as to the reason for the treatment – the 'reason why?' as it has been described in Shamoon (see paragraph 7 in the speech of Lord Nicholls of Birkenhead). The 'but for' test has limitations in resolving disputes as to causation upon which rights to compensation depend. For example, the claim that 'but for' my leaving home in the country to travel to London I would not have been knocked down by a car in Fleet Street may entitle the philosopher to muse that my doing so was the cause of my injuries, but such musing is completely unhelpful in determining the cause of the accident for the purposes of deciding whether I or the driver of the car should be financially responsible for the damage to man and to car involved in the accident. Thus for these purposes a court adopts what has been termed a robust, or pragmatic, approach to causation. Such an approach often leaves a broad margin within which a decision may fall. Courts and tribunals alike are entitled to the respect of the appellate courts when they give an answer as to the reason why treatment has happened, unless the approach is obviously wrong or the answer clearly perverse".
"From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but … 'almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
There is nothing in King itself, or in any of the associated case law, which indicates that this special rule of proof was intended to abrogate (as distinct from operating alongside) the general rule of proof which applies to most civil litigation.
"1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."
"63A. (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
(2) Where, on the hearing of the complaint, 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 or harassment 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 or harassment 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 employment provisions of the 1976 Order are contained within Part III of that Order. For the respondent, Mr McAughey accepted that Article 63A applies in the context of victimisation discrimination.
"(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word 'could' in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(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. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
"This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."
"The requirement necessary to establish less favourable treatment … is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."
In Zafar, the courts were dealing with a claim of direct racial discrimination. However, it seems clear to us that the general thrust of Lord Morison's comments is equally applicable to victimisation discrimination.
"… in circumstances such that [she] is entitled to terminate it without notice by reason of the conduct of the employer …".
That definition is, for all practical purposes, identical to the definition of constructive dismissal which is to be found in Article 127(1) of the Employment Rights (Northern Ireland) Order 1996.
(1) There must be a breach of contract on the part of the employer.
(2) That breach of the contract of employment must be sufficiently important to justify the employee in resigning.
(3) That breach must be a fundamental breach of contract.
(4) An employee may rely on a pattern of actions, the most recent of which is the 'last straw'. If so, that last straw need not itself be a breach of contract so long as it is more than trivial.
(5) The employee must leave in response to the breach (and not for some other, unconnected, reason).
(6) The employee must act promptly in resigning following the breach. Delay in so doing may amount to waiver of the breach and affirmation of the contract.
Conclusions (Pre-termination detriments claims)
"(1) During the course of a telephone conversation in November 2004, the claimant's immediate line manager, Ms Sharon O'Connor, engaged in aggressive and abusive behaviour towards the claimant, by raising her voice, and by 'hanging up'".
(1) Annoyance about being accused of unlawful discrimination is a more plausible explanation for Ms O'Connor's annoyance than the explanation which she put forward in her evidence to us. (Her explanation was that she was annoyed because the claimant had suggested that she had influenced the approach of Capita in respect of the provision of the draft report. We have already referred to that draft report at paragraph 21 above).
(2) The conversation took place very soon after the claimant had carried out the relevant protected act.
(3) We paid particular attention to Ms O'Connor's demeanour and manner of giving evidence, in relation to her professed reasons for her reactions during the relevant telephone conversation. Having done so, we found Ms O'Connor's evidence on this aspect of the case to be unconvincing.
We are also satisfied that the relevant behaviour (on the part of Ms O'Connor) would not have occurred if the claimant had not initiated her sex discrimination grievance.
"(2) Ms O'Connor failed to show any compassion or duty of care in relation to a bout of serious illness which was suffered by the claimant's son".
"(3) Ms O'Connor failed to adequately carry out return to work interviews with the claimant.
"(4) Ms O'Connor criticised the contribution being made by the Council's Arts team to the 2005 St Patrick's Day Parade".
"(5) Ms O'Connor unfairly asserted that the claimant had inappropriately augmented the job descriptions of two Arts Centre staff (a Mr Smyth and a Ms Rogan).
(6) Ms O'Connor's instigation of a disciplinary process against the claimant was inappropriate and unjustified".
(1) The launch of a disciplinary process was a grossly disproportionate reaction to the acts which were the subject-matter of that process.
(2) Ms O'Connor instigated that process soon after she became aware of the fact that the claimant had carried out the relevant protected act.
(3) Ms O'Connor referred to the claimant's complaint of discrimination in the course of her interview with the disciplinary procedure Investigating Officer.
(4) Having carefully considered Ms O'Connor's demeanour and manner of giving evidence, in the context of her discussion of the events and factors which prompted her to instigate the disciplinary proceedings, we were satisfied that she was an unconvincing witness in that context.
"(7) There was unwarranted delay in the completion of the disciplinary process and there was unwarranted delay in implementing other relevant internal procedure processes".
"(8) Ms O'Connor did not make adequate or proportionate efforts to participate constructively in a mediation process".
"(9) The Chief Executive of the Council, Mr John McGrillen ('Mr McGrillen') inappropriately decided to continue with disciplinary action against the claimant".
"(10) Mr McGrillen also inappropriately rejected a recommendation that he should conduct an ongoing monitoring programme in connection with the mediation process".
"(11) Ms O'Connor inappropriately criticised the claimant in respect of the latter's patterns of attendance at Ms O'Connor's divisional management team meetings".
"(12) Ms O'Connor inappropriately applied rules and sanctions to the claimant in respect of 'lieu' leave practices".
"(13) Ms O'Connor did not carry out any staff appraisals of the claimant from June 2003 onwards".
"(14) Ms O'Connor did not provide the claimant with 'proper line management support' from November 2004 onwards".
Conclusions (the discriminatory dismissal claim)
(1) allegation (1), which relates to a telephone conversation which took place in November 2004;
(2) allegation (4), which relates to criticism of the Arts Department's contribution to the St Patrick's Day Parade in 2005; and
(3) allegation (6), which relates to the instigation by Ms O'Connor of the disciplinary proceedings.
The application for leave to amend
"… in all the circumstances of the case, it considers that it is just and equitable to do so".
(1) The claimant told us that there was good reason for her delay in making the discriminatory constructive dismissal claim. There was good reason, because of illness in her family, the fact that she had been suffering from depression, and the circumstance that she didn't know the detail of the relevant time limits.
(2) For the respondent, it was asserted that there was no good reason for the relevant delay on the part of the claimant; therefore, even though the cogency of the evidence was not in any way affected by the delay, the tribunal should decline to allow the relevant claim to be made.
(i) amendments which are merely designed to alter the basis of an existing claim, but without proporting to raise a new distinct head of complaint;
(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and
(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.
"In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injury. In choosing between these outcomes, the court must be guided by what appears to be equitable, which I take to mean no more (but also no less) than fair and must have regard to all the circumstances of the case and in particular the six matters listed in sub-section 3".
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the provisions of section 11 or 11A or 12 of this Act prejudices the plaintiff or any person whom he represents; and
(b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates".
(1) We accept that there has been a delay of many months on the part of the claimant in seeking this amendment. We also accept, in the context of Article 76(5) of the 1976 Order, that the matters to which she drew our attention are matters which do not constitute good reasons for that delay.
(2) As the respondent accepts, the evidence adduced, or likely to be adduced, by the respondent is not likely to be less cogent than if the claim had been amended in a timely fashion.
(3) The conduct of the respondent after the cause of action arose is not conduct which can properly be used as a basis for arguing for an extension.
(4) No disability on the part of the claimant has caused or contributed to the delay in seeking amendment.
(5) The claimant did not act promptly after the termination of her employment.
(6) The claimant did not take timely steps to obtain relevant expert or legal advice at an early stage.
General comments
" … introduce into their national legal systems such measure as are necessary to protect employees … against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment."
We recognise that the current version of Article 7 was not in force during the period prior to 5 October 2005. However, the current version is merely declaratory of what the Directive already required during that prior period.
Next steps
Chairman:
Date: 26 March - 28 March 2008; 1 April 2008 – 8 April 2008; 25 April 2008; and 19 May 2008; Belfast
Date decision recorded in register and issued to parties: