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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cass v AMT-SYBEX (NI) LTD [2009] NIIT 7_08IT (30 September 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/7_08IT.html
Cite as: [2009] NIIT 7_08IT, [2009] NIIT 7_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 00007/08
CLAIMANT: Linda Mary Cass
RESPONDENTS: 1. AMT-SYBEX (NI) LTD
2. Stewart Reid – Managing Director
3. Martella Millar - HR Manager
4. Christine Ramsey – Receptionist/Admin
DECISION
The tribunal finds that the claimant did not suffer discrimination on the grounds of sex or her part-time working status and accordingly her claims are dismissed.
Constitution of Tribunal:
Chairman: Mr B Greene
Panel Members: Ms Gail Ferguson
Mr Eddie Millar
Appearances:
The claimant appeared in person.
The respondents were represented by Mr P Sefton, of counsel, instructed by Murphys Solicitors.
SOURCES OF EVIDENCE
1. The tribunal heard evidence from the claimant and for the respondents from the second, third and fourth respondents. The tribunal also received ten bundles of documents amounting to 1,021 pages, a schedule of loss, closing submissions from the claimant and the respondents, a supplementary submission from the claimant and various correspondence from the claimant to the tribunal in the course of the hearing.
THE CLAIM AND DEFENCE
2. The claimant claimed discrimination on the ground of sex and on the ground of her part-time working status. Her claim for sex discrimination related to her family status.
In her claim form the claimant alleges that she has been the victim of unlawful discrimination since she commenced employment with the first respondent on 1 February 2000. In particular she relies on a number of instances of discrimination which include that;
s the rate of pay paid to her from the outset was not that agreed;
s she was victimised by reason of having taken a previous claim to the industrial tribunal against another employer;
s she was required to do domestic duties in the office despite being employed as a receptionist/administrator;
s the respondents were involved in the withdrawal of an offer of a job with another employer, Halifax;
s the claimant was not informed about or offered to do the work in the accounts department when the holders of those posts left or were unavailable;
s the first respondent failed to split that post into accounts and administration in order to facilitate the claimant taking on that post;
s Martella Millar had behaved inappropriately to the claimant in August 2007 when a position had been advertised and the claimant was not considered for that position;
s a fellow employee and the claimant’s comparator Christine Ramsey was given more holiday leave than the claimant;
s the claimant was not considered for full-time posts when they came up;
s from 10 – 12 September 2007 the claimant was the victim of verbal abuse and being ostracised by other members of staff; and
s the respondents failed to deal with her grievance properly.
The respondents deny the claimant’s claims in their entirety.
THE ISSUES
3. The following legal and factual issues were agreed between the parties at a Case Management Discussion on 5 September 2008.
Legal Issues
(1) Did the respondent subject the claimant to less favourable treatment?
(2) If so, was this less favourable treatment as a result of the claimant’s sex and/or her family status?
(3) And/or was this less favourable treatment as a result of the claimant’s status as a part-time worker?
(4) Did the respondent subject the claimant to indirect sex discrimination?
(5) Did the respondent subject the claimant to victimisation?
Factual Issues
(1) Did the respondent verbally agree with the claimant a salary of £6.80 per hour at the stage of the offer of a job to the claimant?
(2) Did the respondent extend the probationary period from six months to eleven months without a good reason?
(3) Did the respondent then fail to pay the claimant, when she began her employment, £6.80 per hour instead paying her £5.25 per hour?
(4) Did the claimant raise this issue when she saw the contract stating the hourly wage to be £5.25?
(5) Did the respondent explain this salary of £5.25 per hour to be because the ‘Government set the market value rates’ and as a result there was nothing they could do?
(6) Was the claimant employed through the New Deal Scheme?
(7) Were the respondents influenced by the fact that the claimant had taken a claim against her previous employers?
(8) Did Maurice McIlroy make a comment in the interview with the claimant for her position, along the lines, that AMT-SYBEX did not practice discrimination/victimisation/harassment?
(9) Did the claimant on numerous occasions request to be moved to the position in the Accounts and continue her part-time hours?
(10) On each occasion when this vacancy arose did the claimant request to work the Accounts part of her job on a part-time basis?
(11) Did the respondent on each occasion refuse to consider the claimant for the job because it was a full-time position?
(12) Was the position in question made up of part-time receptionist duties and part-time accounts duties?
(13) Did the respondent assume the claimant would not want a full-time position as she had young children?
(14) Did the claimant suggest on numerous occasions to the respondent that as the position in question was two part-time roles, they could recruit a full-time Receptionist?
(15) Did the respondent then offer the Accounts position on a part-time basis (due to the imminent birth of her child) to Anna Thompson who was working in that full-time role?
(16) Did the respondent withdraw their offer to Anna Thompson when the claimant complained about it?
(17) Did the respondent on each occasion refuse to consider the claimant’s proposals?
(18) Did the respondent fill the role in question after Karen Thompson left the position without informing the claimant of it?
(19) Did the respondent fill the position whilst the claimant was on holiday and unaware of the opportunity?
(20) Did the respondent agree to give Christine Ramsey additional holiday entitlement over and above what she was entitled to?
(21) Did Mrs Ramsey often make mistakes in carrying out her job role?
(22) Did the respondent approach and then offer Christine Ramsey the position of temporary full-time cover as an assistant to Ruth McCracken covering for Martella Millar who was to go on maternity leave?
(23) Did the respondent offer this on the basis that Christine Ramsey did not have young children and the claimant did and that she had completed three weeks overtime for the respondent, doing full-time hours?
(24) Did the respondent offer overtime to the claimant and then disallow same (because of a dispute over holidays) (with the exception of one day) as they were low on staff?
(25) Did the respondent or its servants or agents inform the claimant that she would not want the position anyway as she had young children?
(26) Did the respondent offer Ruth McCracken to cover for Martella Millar when Mrs Millar went on maternity leave?
(27) Did the respondent also approach the claimant concerning the job vacancy?
(28) Did the claimant lodge a grievance in relation to all of this?
(29) Was the claimant excluded from the office environment and conversations as a result of making her complaint?
(30) Did the respondent withdraw the job offer from Christine Ramsey?
(31) Did Mr Reid apologise for wrongly assuming the claimant would not wish to work full-time?
(32) Did the respondent give the claimant the job description for the temporary role that had been offered to Mrs Ramsey?
(33) Was the job description that the claimant received different than that given to the employment agencies and Mrs Ramsey?
(34) Was the salary of this temporary role approximately £2,000 less than the salary the claimant was currently on?
(35) Did Martella Millar phone the claimant at home to inform her that Mrs Ramsey had taken up the position?
(36) Did Mrs Ramsey verbally abuse and harass the claimant in or around the reception area in September 2007?
(37) Did the claimant inform Mr Reid of the harassment she alleges she had experienced at the hands of Mrs Ramsey?
(38) Did Mr Reid fail to take any adequate steps to deal with the alleged harassment by Mrs Ramsey or her husband?
(39) Did the claimant have to go off on sick leave as a result of experiencing this behaviour at work?
(40) Did the respondent fail to adhere to the correct grievance procedure?
(41) Did the respondent give out the claimant’s details to third parties such as BUPA and subsequently an independent counsellor without her consent which could be construed as harassment and/or discrimination?
(42) Has the respondent excluded the claimant from company functions since she has been off on sick leave?
(43) Has the respondent failed to take any adequate steps to resolve the concerns of the claimant?
(44) What were the reasons for the delay in the appeal procedure relating to the claimant’s grievance that she had raised?
(45) Did the respondent or its servants or agents treat the claimant less favourably on the basis of her gender/family status?
(46) Did the respondent or its servants treat the claimant less favourably on the basis of her part-time status?
(47) Was the claimant victimised by the respondent or its servants or agents on the grounds of her gender?
(48) Was the claimant victimised by the respondent or its servants or agents on the grounds of her part-time status?
(49) Was the claimant victimised by the respondent for taking up a grievance?
(50) Did the respondent fail to supply relevant requested documents, thus complying with the grievance procedure timeframes?
(51) Did the respondent state categorically during the appeal meeting that the claimant’s work, timekeeping and manner was exemplary?
(52) Has the respondent failed in their duty to supply information asked by the claimant concerning the grievance procedure?
(53) Did the respondent fail to carry out fully the grievance procedure according to their guidelines as discussed with the claimant?
(54) Did the respondent fail in their duty to protect the claimant under the Health & Safety at Work Act? (Not agreed by respondent).
(55) Did the respondent contravene Data Protection concerning the claimant, thus causing further injury and distress? (Not agreed by respondent)
(56) Did the respondent approach Christine Ramsey concerning the job vacancy?
(57) Did the respondent also approach the claimant concerning the job vacancy?
(58) Did the respondent offer overtime to the claimant and then disallow same (because of a dispute over holidays) (with the exception of one day) as they were low on staff?
(59) In terms of the third recruitment exercise, did the claimant apply for the post in question? If not, why not?
FINDINGS OF FACT
4. Having considered the evidence and insofar as it was relevant to the issues before it the tribunal came to the following findings of fact on the balance of probabilities;-
(1) The claimant began working for the first respondent on 1 February 2000 as a receptionist/administrator. She continues to be employed in that post. The claimant has been off work from 12 September 2007 by reason of sickness and she remains off work.
(2) The first respondent is the claimant’s employer.
(3) The second respondent (Stewart Reid) was the Managing Director of the first respondent during the period to which this claim relates. He has since retired.
(4) The third respondent (Martella Millar) is the Human Resources Manager in the first respondent company.
(5) The fourth respondent (Christine Ramsey) was also a receptionist/administrator with the first respondent having begun employment in October 2006. She formerly was a close friend of the claimant having been encouraged to apply for the position by the claimant. She is also the claimant’s comparator.
(6) When the claimant began employment with the first respondent the tribunal is not persuaded that the first respondent agreed to pay a salary of £6.80 per hour. In so concluding the tribunal had regard to the following matters;-
(a) The first respondent denies that the claimant was offered a salary of £6.80 per hour.
(b) Martella Millar (third respondent), the Human Relations Manager and the claimant’s Line Manager at that time earned £6.30 per hour.
(c) The job offer states that the hourly rate was £5.25 per hour.
(d) Stewart Reid’s (second respondent) handwritten notes show hourly rates of salary between £5 and £5.50 were costed. There is no reference to £6.80 per hour being costed.
(e) The letter of offer of employment to the claimant of 10 January 2000 from the first respondent sets out the salary at £5.25 per hour.
(7) The tribunal is not persuaded that the probationary period was extended from six months to eleven months.
(8) The tribunal considers it unlikely that the claimant raised the issue of hourly rates of pay when she saw the contract stating that her hourly rate was £5.25. In so concluding the tribunal had regard to the following matters;-
(a) There is not any corroborating evidence to substantiate this. It remains the claimant’s word against the respondents’ word.
(b) Had such a discussion taken place it would have been in the context that the claimant would have been receiving a higher rate of payment per hour than her Line Manager and Human Relations Manager, Martella Millar (third respondent).
(c) Mr Reid’s (second respondent) notes of the wages and their costings does not include any reference to a figure of £6.80 per hour.
(d) The claimant’s handwritten note on her contract records matters that she says she raised with the respondents. The notes refer to flexible working. Had she raised an issue about wages one would have expected some note of it on that contract.
(9) The tribunal is not persuaded that the Government set the rate of pay for this particular job at £5.25 per hour or that the first respondent so advised the claimant as it is not a credible proposition to believe that the Government sets the rate of pay in private companies.
(10) The claimant contends that she was employed under the New Deal Scheme. The first respondent denies it. The only objective evidence is the fee note from the Grafton Recruitment Agency, which referred this job to the claimant, where no reference is made to the New Deal Scheme.
Accordingly the tribunal is not persuaded that the claimant was employed under the New Deal Scheme.
(11) The claimant alleges that at the interview for the post she informed the first respondent that she had brought a claim against her previous employer to an industrial tribunal. She further asserts that that is one of the reasons for the respondents’ bad treatment of her. The tribunal is not persuaded by this contention on behalf of the claimant. The logic of the claimant’s argument is that the first respondent employed the claimant so that they could discriminate against her for bringing a claim against a previous employer. The tribunal finds this unbelievable.
(12) Similarly the tribunal is not persuaded that the first respondent, at the initial interview, declared that it did not practice discrimination or victimisation or harassment.
(13) When the claimant was employed by the first respondent she made it clear that she was only interested in doing part-time hours. That wish did not change despite discussion of it with the claimant annually. The claimant did not express an interest in full-time hours until she had a meeting with Stewart Reid (second respondent) on 14 August 2007.
(14) The claimant never applied for a position within the Accounts Department. She first indicated her interest at a meeting on 14 August 2007. The claimant however did not have the mathematical qualification or the requisite experience to discharge the position within the Accounts Department.
(15) As the claimant never applied for a position within the Accounts Department she could not be considered for that position.
(16) The position about which the claimant expressed interest was a full-time position where the post holder had responsibilities in accounts and also receptionist duties. It was not two part-time jobs. Often times the person in this position, whilst on reception, would have done accounts work as well.
(17) The first respondent did not consider the claimant for full-time positions because the claimant had made it clear that she was not interested in a full-time position. That situation did not change until 14 August 2007.
(18) The claimant alleges that on numerous occasions she suggested to the first respondent that the position in accounts was in reality two part-time posts and therefore the first respondent could recruit a full-time receptionist to discharge the part-time reception duties of the accounts post and also of one of the part-time receptionist posts, for example the claimant’s. The first respondent denies that any such suggestion was made. In any event the configuration of the post is entirely a matter for the first respondent.
(19) The first respondent did not offer the accounts position on a part-time basis to Anna Thompson because of the imminent birth of her child. Anna Thompson never applied nor indicated any desire to work part-time. In fact when she left the respondent company she left to take up a full-time job in accounting.
(20) After Karen Thompson, another holder of the accounts post, left the first respondent advertised the job externally and internally. The claimant did not express any interest in that job. The first respondent was not under any obligation to inform the claimant or anyone else beyond the steps that it had already taken.
(21) The claimant, who worked part-time from Monday to Wednesday lunchtime, received 8.5 statutory days’ holiday per year. Christine Ramsey (fourth respondent), the claimant’s comparator, who worked part-time, from Wednesday lunchtime to Friday, received 2.5 days’ statutory holidays. For the leave year 2007 the first respondent awarded Christine Ramsey (fourth respondent) an additional 3 days’ statutory leave to compensate her for not getting the same number of statutory days as the claimant. The claimant’s number of days was unaffected. The claimant already received the statutory days to which she was entitled.
(22) There was not any persuasive evidence before the tribunal that Christine Ramsey (fourth respondent) often made mistakes in carrying out her job role. The claimant so contended. All the witnesses from the respondents disputed that.
(23) On 1 August the first respondent approached Christine Ramsey (fourth respondent) to inquire if she was interested in working full-time temporary cover as an assistant to Ruth McCracken. It was not to cover Martella Millar’s (third respondent) maternity leave.
(24) The approach to Christine Ramsey (fourth respondent) was made because the first respondent was experiencing difficulties in recruiting a suitable candidate to provide temporary cover through the recruitment agency. There was not any evidence whatsoever that this approach was made or had anything to do with Christine Ramsey’s (fourth respondent) children or their ages.
(25) In March 2007 it had been arranged that the claimant would do overtime to cover for Christine Ramsey’s (fourth respondent) holidays. On the first day that the claimant was expected to turn up she did not show up for work. The General Manager and Martella Millar (third respondent) covered the reception duties. The first respondent did not prevent the claimant from doing the overtime. Rather the claimant failed to turn up to do the work. It did not arise by reason of a dispute over holidays.
(26) There was not any evidence before the tribunal that the respondents had informed the claimant that she couldn’t do the position anyway because she had young children.
(27) In June 2004 after Martella Millar (third respondent) had gone on maternity leave Ruth McCracken applied for and was appointed as an administrative assistant. As part of that job she discharged some of the functions that Martella Millar (third respondent) had carried out in human relations and environmental aspects. She was not recruited to cover for Martella Millar’s (third respondent) maternity leave.
(28) The claimant was not approached about covering this duty as it was a full-time cover and the claimant had made it clear she was only interested in part-time work.
(29) There was not any evidence before the tribunal that the claimant made a grievance which raised this issue specifically. However, the claimant in a grievance letter of 13 January 2007 has complained that she was not considered for job opportunities since joining the first respondent because she was part-time with three children.
(30) There was not any evidence before the tribunal that the respondents sought to exclude the claimant from the office environment and the conversations therein by reason of her having made a complaint.
Clearly, in the light of the differences of opinion that have arisen between the claimant and other members of staff, it may be at a human level that conversations were difficult or avoided. However there is clear evidence in the claimant’s own statement that she indicated that at one stage she did not speak to Martella Millar (third respondent) about her grievance and at another stage she wished to reduce her conversation with Christine Ramsey (fourth respondent) except where necessary and indeed she even apologised to Ruth McCracken for not speaking to her.
(31) In August 2007 Stewart Reid (second respondent) withdrew a job offer to Christine Ramsey (fourth respondent) following the claimant’s representation that she was prevented from applying for the post.
(32) Stewart Reid (second respondent) apologised to the claimant if she felt that she had been treated badly by the first respondent’s failure to offer her the job. The respondents did not wrongly assume that the claimant would not wish to apply for full-time work because that was the instruction that she had given to them at the outset and had maintained until 14 August 2007.
(33) Thereafter the first respondent made available to the claimant the job description for the temporary role that had been offered to Christine Ramsey (fourth respondent).
(34) The tribunal is not persuaded that the job description, given to the claimant, differed significantly from that provided to the employment agencies and Christine Ramsey (fourth respondent) as regards the salary that was on offer. The original job description, that the claimant was given, was not produced to the tribunal. The respondents maintain that the wage range was between £12,000 and £15,000 though there is a slight difference between what Martella Millar (third respondent) says, £12,000 to £15,000 and what Stewart Reid (second respondent) says, £12,000 to £14,000.
(35) The salary on offer to the claimant was not £2,000 less than the claimant was currently receiving as this was a full-time post and the claimant worked part-time. However the hourly rate was less than the hourly rate that the claimant was being paid.
(36) On 7 September 2007 Martella Millar (third respondent) phoned the claimant to advise her that Christine Ramsey (fourth respondent) had applied for the post of administration assistant and had been successful and would be commencing work in that role from 10 September 2007.
(37) On 10 September 2007 a verbal altercation occurred between the claimant and Christine Ramsey (fourth respondent) in the first respondent’s premises. Each blames the other as being the aggressor.
(38) The claimant sent an e-mail to Stewart Reid (second respondent) on 12 September 2007 outlining the treatment she received from Christine Ramsey (fourth respondent) on 10 September 2007.
(39) Stewart Reid (second respondent) did not take any steps to deal with the alleged harassment of the claimant by Christine Ramsey’s (fourth respondent) husband as he was not an employee of the first respondent and the events alleged did not take place on company property nor in the course of company business. They happened in a private car park on the public road.
In relation to the alleged harassment by Christine Ramsey (fourth respondent) the first respondent instigated meetings with the claimant and Christine Ramsey (fourth respondent) individually on 10 September 2007 to discuss the issues with David Cox and Martella Millar.
(40) On 12 September 2007 the claimant went off on sick leave. She attributes the sickness to the events that had occurred during her employment with the first respondent.
(41) The tribunal did not receive any specific evidence about the family size, number of children or ages of the children of the claimant or Christine Ramsey (fourth respondent). The claimant apparently has three children but their ages are unknown to the tribunal. The tribunal is aware that Christine Ramsey (fourth respondent) has one child who suffers from a disability and may have other children and that the child that suffers from the disability is roughly the same age as the claimant’s son Andrew and that they have been associated in church activities together.
THE LAW
5. (1) It is unlawful direct sex discrimination for an employer to treat a women less favourably than he would treat a man on the ground of her sex (Articles 3(1)(a) and 3(2)(a) Sex Discrimination (Northern Ireland) Order 1976).
(2) It is unlawful indirect sex discrimination for an employer to apply to a woman a requirement or condition which he applies or would apply equally to a man but -
(a) which is such that the proportion of women who can comply is considerably smaller than the proportion of men who can comply with it,
(b) which he cannot show to be justified irrespective of the sex of the person to whom it is applied, and
(c) which is to her detriment because she cannot comply with it (Article 3(1)(b) Sex Discrimination (Northern Ireland) Order 1976).
(3) It is unlawful indirect sex discrimination from 5 October 2005 for an employer to apply to a woman a provision, criterion or practice which he applies or would apply equally to a man but -
(a) which puts or would put women at a particular disadvantage when compared with men,
(b) which puts a woman at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim (Article 3(2)(b) Sex Discrimination (Northern Ireland) Order 1976).
(4) Protection is specifically given against discrimination on the grounds of family status (Equal Treatment Directive 76/207/EEC Article 2(1)) (Harvey on Industrial Relations and Employment Law L [38]).
(5) The Equal Treatment Directive does not have direct effect upon the relationship between a worker and an employer which is neither the state nor an emanation of the state, but nevertheless it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation (Webb v Emo Air Cargo Ltd [1993] ICR 175 At 186 D, H.L.).
(6) A person discriminates against the person victimised in any circumstances relevant for the provisions of the Sex Discrimination (Northern Ireland) Order 1976 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 the Sex Discrimination (Northern Ireland) Order 1976 or the Equal Pay Act (Northern Ireland) 1970 or Articles 62-65 of the Pensions (Northern Ireland) Order 1995, or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Sex Discrimination (Northern Ireland) Order 1976, the Equal Pay Act (Northern Ireland) 1970 or Articles 62-65 of the Pensions (Northern Ireland) Order 1995, or
(c) otherwise done anything under or by reference to the Sex Discrimination (Northern Ireland) Order 1976, the Equal Pay Act (Northern Ireland) 1970 or Articles 62-65 of the Pensions (Northern Ireland) Order 1995, in relation to the discriminator or any other person, or
(d) alleged that the discriminator or any other person has committed an act which would amount to a contravention of the Sex Discrimination (Northern Ireland) Order 1976 or give rise to a claim under the Equal Pay Act (Northern Ireland) 1970 or under Articles 62-65 of the Pensions (Northern Ireland) Order 1995.
or by reason that the discriminator knows the person victimised intends to do any of these things or suspects the person victimised has done or intends to do any of them (Article 6(1) (Sex Discrimination (Northern Ireland) Order 1976).
(7) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -
(a) as regards the terms of the contract, or
(b) by being subjected to any other detriment by any act, or deliberate failure to act of his employer.
The right only applies if -
(c) the treatment is on the ground that the worker is a part-time worker, and
(d) the treatment is not justified on objective grounds (Regulation 5(1) the Part-time Workers (Provision of Less Favourable Treatment) Regulations 2000).
APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
6. (1) Following submissions from the parties in the course of the hearing, the tribunal decided not to deal with any issues that arose after 11 December 2007, the date of the claimant’s originating claim. The tribunal gave its reasons in the course of the hearing.
As a consequence the following issues for determination are outside the remit of this decision;-
Factual Issues 41, 42, 43, 44, 50, 51, 52, 53, and 55.
(2) A number of the factual issues were duplicated in the list of issues and the tribunal therefore also disregarded the duplicated issues which are;-
Factual Issues 56, 57, and 58.
(3) Factual issue 54 was also disregarded as the tribunal does not have such a jurisdiction under the Health and Safety At Work (Northern Ireland) Order 1978. In addition no specific contraventions were drawn to the tribunal’s attention.
LEGAL ISSUE (1)
“Did the respondent subject the claimant to less favourable treatment?”
7. The tribunal is not persuaded that any of the respondents treated the claimant less favourably than her comparator. In so concluding the tribunal had regard to the following matters;-
(1) The claimant never applied for a position within the Accounts Department.
(2) Prior to 14 August 2007 the claimant had never indicated an interest in working full-time. She had repeatedly made it known that she was not interested in full-time hours from the commencement of her employment with the first respondent.
(3) The claimant’s holiday leave was unchanged and is that to which she was entitled. Christine Ramsey (fourth respondent) was given additional leave to compensate for the fact that many of the statutory leave days fall on a Monday, a day when she did not work.
(4) When Christine Ramsey (fourth respondent) was approached to do full-time temporary cover as an assistant to Ruth McCracken the claimant had not expressed her interest in full-time work.
(5) Even if the pool of comparators was extended to include fellow employees there is not any evidence that the claimant was treated less favourably than them.
(6) The claimant complains about treatment she received by the respondents which she regards as bad treatment but bad treatment is not necessarily less favourable treatment.
LEGAL ISSUE (2)
“If so, was this less favourable treatment as a result of the claimant’s sex and/or her family status.”
8. It is not necessary for the tribunal to consider this issue in the light of the tribunal’s finding that the claimant was not subjected to less favourable treatment.
9. The claimant does not make a classic sex discrimination claim. Rather she said that the treatment she received is on the ground of her family status and that this falls under the protection of the Sex Discrimination (Northern Ireland) Order 1976.
10. The tribunal is not persuaded that any of the treatment suffered by the claimant was on the basis of her family status. In so concluding the tribunal had regard to the following matters;-
(1) The evidence about the claimant’s family status is limited to a few short facts viz, she has a husband Robert and three children, one of whom is called Andrew. The ages of the children are unknown to the tribunal.
(2) The evidence of the family status of Christine Ramsey the claimant’s comparator, (fourth respondent), is even scantier. The tribunal is aware that Christine Ramsey’s (fourth respondent) husband is called Ronnie and they have at least one child who suffers from a disability. The number of children, their ages or sex are unknown to the tribunal.
(3) There is very little evidence about the family status of any other of the persons involved in this claim. Martella Millar (third respondent) is married and has had two pregnancies.
(4) There was not any evidence before the tribunal that any treatment visited on the claimant was on the grounds of her family status or anyone else’s family status.
LEGAL ISSUE (3)
“And/or was the less favourable treatment as a result of the claimant’s status as a part-time worker?”
11. There was not any evidence before the tribunal that any treatment visited on the claimant was as a result of her status as a part-time worker. In so concluding the tribunal had regard to the following matters;-
(1) The claimant’s comparator, Christine Ramsey (fourth respondent), was also a part-time worker.
(2) The claimant did not identify a full-time comparator.
(3) The claimant did not convey to the first respondent her interest in full-time work until 14 August 2007.
(4) In relation to any of the posts about which the claimant complained she did not actually apply for them. It is therefore impossible to conclude she has been subjected to any detriment.
(5) In view of the tribunal’s findings of fact the claimant was not treated less favourably as regards the terms of her contract of employment.
LEGAL ISSUE (4)
“Did the respondent subject the claimant to indirect sex discrimination?”
12. The tribunal finds that the claimant did not suffer indirect discrimination. In so concluding the tribunal had regard to the following matters;-
(1) The claimant did not adduce any evidence to satisfy the requirements of indirect discrimination as set out in Article 3 of the Sex Discrimination (Northern Ireland) Order 1976.
(2) The claimant did not satisfy the statutory requirements of indirect discrimination on the ground of family status, if such would be deemed to be read into Article 3 of the Sex Discrimination (Northern Ireland) Order 1976.
LEGAL ISSUE (5)
“Did the respondent subject the claimant to victimisation?”
13. The tribunal is not persuaded that the claimant was the subject of victimisation. In so concluding the tribunal had regard to the following matters;-
(1) As stated above the claimant did not suffer less favourable treatment.
(2) There was not any persuasive evidence before the tribunal that the treatment, the claimant regarded as bad treatment, came about by reason of the claimant having brought a claim to an industrial tribunal.
(3) The nature of the industrial tribunal claim against another employer is unknown to the tribunal. Neither is it known whether it was brought under any of the legislation set out in Article 6(1) of the Sex Discrimination (Northern Ireland) Order 1976.
14. There is no claim for victimisation under the Part-time Workers (Provision of Less Favourable Treatment) Regulations 2000.
15. There is a right not to suffer less favourable treatment on the ground that the worker is a part-time worker and the treatment is not justified on objective grounds. The tribunal is not persuaded that the claimant has made a persuasive claim under this legislation. In so concluding the tribunal had regard to the following matters;-
(1) The claimant has not identified a full-time comparator. The claimant’s chosen comparator Christine Ramsey (fourth respondent) is also a part-time worker.
(2) The claimant did not suffer less favourable treatment.
(3) There was not any persuasive evidence before the tribunal that the treatment, the claimant regarded as bad treatment, came about by reason of her part-time status.
Chairman:
Date and place of hearing: 2, 3, 4, 5, 6, 9, 10, 11, 13, 16, 18, 19, 20, 23, 24, 25, March; 11, 12, 13, May and 19 June 2009.
Date decision recorded in register and issued to parties: