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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dunne v Michael McCurley [2009] NIIT 817_09IT (18 September 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/817_08IT.html
Cite as: [2009] NIIT 817_09IT, [2009] NIIT 817_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 817/08
CLAIMANT: Catherine Dunne
RESPONDENTS: 1. Michael McCurley
2. Stranmillis College
DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against by the respondents on the grounds of her sex and/or she was not subjected to sexual harassment, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, as amended. The said claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr N Wilkinson
Mrs M Gregg
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Mr J Dunlop, Barrister-at-Law, instructed by Carson McDowell, Solicitors.
Reasons
1.1 The claimant presented a claim to the tribunal on 6 June 2008, in which she made a claim of discrimination against the respondents on the grounds of her sex arising out of a number of incidents which she alleged had taken place at Stranmillis College (‘the College’) in her role as one of the Halls Tutors in the Halls of residence at the College. The first-named respondent presented a response to the claimant’s claim on 29 July 2008 and the second-named respondent presented a response to the claimant’s claim on 31 July 2008. In the said responses, each of the respondents denied liability for the claimant’s claim.
1.2 This matter was the subject of a Case Management Discussion on 25 September 2008, in which the following legal and factual issues were agreed by the claimant and the representative of the respondents, as set out in the Record of Proceedings of the said hearing dated 26 September 2008:-
“ …
(2) The precise legal and factual issues were agreed as follows:-
Legal issues
(1) Did the respondents treat the claimant less favourably than they would treat a male on the grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 by failing to remove posters from students’ bedrooms following the claimant’s complaints in November 2007?
(2) Did the respondents treat the claimant less favourably than they treated the male tutors, Dermot Moore, Frank Thompson and Colm Donaghy, of the second-named respondent, on the grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 by calling at the claimant’s flat at the Halls of residence on 6 December 2007?
(3) Did the respondents treat the claimant less favourably than the male tutors, Dermot Moore, Frank Thompson and Colm Donaghy, of the second-named respondent, on the grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 by verbally attacking her in the office of the Halls of residence on 7 December 2007?
(4) Did the respondents treat the claimant less favourably than the male tutors, Dermot Moore, Frank Thompson and Colm Donaghy, of the second-named respondent, on the grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976 by their behaviour and remarks at the tutors’ meeting on 10 December 2007?
(5) Did the claimant lodge a grievance in connection with her claim of sex discrimination with the second-named respondent within the prescribed statutory time-limits?
(6) Did the claimant bring her claim of sex discrimination within the statutory time-limits?
(7) If not, is the time for bringing the claim extended by reason of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 to enable the claimant to continue with her claim of sex discrimination?
(8) If not, is it just and equitable in all the circumstances of the case to extend the time to enable the claimant to continue with her claim of sex discrimination pursuant to Article 76(5) of the Sex Discrimination (Northern Ireland) Order 1976.
Factual issues
(9) Did the second-named respondent fail to carry out the grievance procedure within the appropriate or reasonable times?
(10) Did the second-named respondent adequately inform the claimant about the progression of the grievances?
(11) Did the second-named respondent offer support to the claimant in relation to her grievance?
(12) Did the first-named respondent threaten the claimant about her job security with the second-named respondent on 2 December 2007?
(13) Did Mrs Nesbitt, the second-named respondent’s Domestic Bursar, renege on an agreement to accompany the claimant to the tutors meeting on 10 December 2007?
(14) Did the second-named respondent change the lock on the claimant’s flat on 18 January 2008?
(15) Did the second-named respondent receive the claimant’s e-mail of 9 April 2008 containing allegations of sex discrimination?
... .”
1.3 At the commencement of the hearing, the claimant firstly made an application for the exclusion from the hearing of any witnesses of the respondents who were to give oral evidence until such evidence had been given by the said witnesses. She also made an application for leave to amend her claim. In relation to both applications, the tribunal took time to consider its Ruling whether or not to grant each application, after hearing submissions by the claimant and the representative of the respondents. It then orally announced its Ruling in relation to each said application and gave relevant orders/directions, arising out of its said Ruling. It was agreed that the tribunal would set out, in writing, in more detail, its reasons for its said Ruling in relation to each application, which it did by a Ruling in writing, dated 12 February 2009. It was further agreed that this Ruling would be attached, in due course, to this decision. The said Ruling, marked ‘A’, is therefore attached to this decision and forms part of this decision.
1.4 As appears from the said Ruling the tribunal refused the claimant’s application to exclude witnesses until each had given their evidence. However, the tribunal, for the reasons set out in the said Ruling and, subject to the matters set out therein, granted the claimant leave to amend her claim to include a claim of sexual harassment, pursuant to Article 6A of the Sex Discrimination (Northern Ireland) Order 1976, as amended, (‘the 1976 Order’).
1.5 There was no dispute that the issues already identified by the parties, as set out above, included a claim of sexual harassment; but the said issues had been brought, in her claim form presented on 6 June 2008, as a claim by the claimant, pursuant to Article 3 of the 1976 Order, on the grounds that she had been less favourably treated on the grounds of her sex. The claimant, as set out in the Ruling, in making her application for amendment of her claim to include a claim under Article 6A of the 1976 Order, was not relying on any new facts, as previously identified in her claim form and/or her witness statement. The claim of the claimant was therefore, as set out in the said Ruling, amended to also include a claim by the claimant of sexual harassment, pursuant to Article 6A of the 1976 Order; but, subject to the entitlement of the respondents, if they wished to do so, to rely in their defence of the said amended claim on the issues already raised by them in relation to the claimant’s claim in its unamended form, as set out in Paragraphs (5), (6), (7) and (8) of the legal issues contained in the said Record of Proceedings of the Case Management Discussion on 25 September 2008, dated 26 September 2008. The respondents were given leave to amend their response form if they considered it necessary and appropriate, in light of the claimant’s amendment of her said claim form. In the event, on the resumption of the hearing on 17 February 2009, the respondents’ representative not only confirmed the respondents’ denial of the claimant’s claim, pursuant to Article 6A of the 1976 Order, but that the respondents would also be relying, in defence of the said amended claim, on the matters set out at Paragraphs (5) – (8) of the legal issues set out in the said Record of Proceedings. In the circumstances, and having regard to the fact that the claimant was not relying on any new facts, he informed the tribunal the respondents did not require to amend the response forms of the respondents already presented to the tribunal.
2.1 The tribunal heard oral evidence, on behalf of the claimant, and on behalf of the respondents. It heard evidence, on behalf of the claimant, from the claimant herself, Dermot Moore, Mae Watson, George Harrison, John Chapman, Louise MacNamee and Avril McConnell. The witness statement of Rosemary McFaul, who at the date of hearing was abroad on an Erasmus Course, was admitted in evidence by the tribunal; but after a warning was given by the tribunal to the claimant of the weight which could be attached to the said statement by the tribunal, in circumstances where the respondents objected to the admission of the said statement and who had not been given an opportunity to cross-examine the said witness. The medical evidence of the claimant’s General Practitioner, Dr Fair, was admitted in evidence by the tribunal, without formal proof and without objection by the respondents. It heard evidence on behalf of the respondents, from the first-named respondent, Norman Halliday, Rosemary McQuaid, Ursula Doherty, Christine Nesbitt, Frank Thompson, Diane Nugent, Wendy Stanfield and Colm Donaghy.
2.2 There was no dispute between the parties that, if the first-named respondent discriminated against the claimant on the grounds of her sex and/or sexually harassed her, pursuant to the 1976 Order, as amended, that any such acts were carried out by him in the course of his employment with the College, as the Halls Warden, and further that the College would be vicariously liable for any such acts carried out by the first-named respondent.
2.3 The claimant confirmed, during the course of the hearing, that she was no longer making any discrete complaint of unlawful discrimination for which a separate remedy was sought, pursuant to the 1976 Order, in relation to the alleged failure of the respondents to remove posters from student bedrooms following the claimant’s complaints in November 2007 (see further Paragraph (1) of the legal issues set out in the said Record of Proceedings); but her said allegations were advanced, as background information, to the subject-matter of her said claims (see further Anya v University of Oxford [2001] IRLR 377).
3.1 Insofar as relevant and material the tribunal made the findings of fact, as set out in the following sub-paragraphs.
3.2 The claimant was a Halls Tutor in the college’s halls of residence from on or about 1 December 1999. The claimant, at all material times, was the Halls Tutor for Navan North, one of a number of halls of residence for use of students at the college. In 2004, the first-named respondent, Mr Michael McCurley, took over from Mr Maurice Blease as the Halls Warden. He does not live at the college, but lives nearby. Mr McCurley, in addition to his duties as a Halls Warden, was a member of the teaching staff at the college in the English Department. The claimant is not a member of the teaching staff at the college and has other employment unconnected to the work of the college. The claimant, as a Halls Tutor, has a self-contained flat in her halls of residence. During the term time at the college the claimant has, in essence, ‘free’ accommodation. Outside of term time, the claimant is allowed to remain, if she wishes, in her flat; but is required to pay a nominal rent to the college. As a Halls Tutor, she normally is required to do in term time a number of shifts each week, when she is said to be ‘on-call’. Students with problems can contact her in her flat, in particular, at those times; but she would also make herself available at other times, as necessary. If she sees something untoward occurring, she can be proactive, including, if necessary and appropriate, reporting any such matters to the Halls Warden, if she is unable to deal with the matter herself.
3.3 Over the years, the number of Halls Tutors employed by the college have reduced with an increase in the number of shifts required to be carried out by a Halls Tutor each week. Throughout the period the claimant has been a Halls Tutor, there have, on occasions, been incidents of students misbehaviour in the halls of residence. However, the college authorities have always considered that the students, who attend the college, and live in the halls of residence at the college, generally behave in a more responsible manner than students attending other universities and colleges; and that, to date, student misbehaviour in the halls of residence has not been a significant problem with the college. However, incidents have occurred despite warnings given at induction meetings at the beginning of a year, and subsequently during the year as the need has arisen, about behaviour and the responsibilities expected of students living in the halls of residence. It is recognised, by the college authorities, that students, who are generally young, occasionally do have lapses and require to be informally spoken to by the Halls Tutor or, if necessary, the Halls Warden. This has normally been able to resolve any such problems when they have occurred.
3.4 The role of Halls Tutor is essentially pastoral and one of support for the students. The Halls Tutor looks after the health and safety of the students and generally monitors the smooth running of the halls of residence and ensures there is a satisfactory standard of behaviour in those hall. Noise is a particular ongoing problem, which initially Halls Tutors would seek to resolve, by speaking to the students concerned; though, if necessary, any such problem can and, on occasion, has had to be referred to the Halls Warden to deal with, where the Halls Tutor has been unable to resolve the matter.
3.5 The claimant relied in her evidence on a incident between herself and Mr McCurley, which occurred on 18 December 2004, some considerable period of time prior to matters which were the subject-matter of her claim, which occurred in or about December 2007; and did so in support of and/or as background information in relation to her treatment in or about December 2007 (see further Anya v University of Oxford [2001] IRLR 377).
3.6 The tribunal found this incident of little or no assistance in relation to its determination of the issues the subject-matter of this claim. The tribunal accepts that an incident did take place on that date; but the claimant, with hindsight, has sought to exaggerate what occurred for the purposes of this claim. The tribunal noted the claimant made no complaint at the time and no evidence was given to corroborate the claimant’s version of events.
At the end of the college term, a Halls Tutor was normally required to obtain and return to the reception the keys of the residence in the relevant hall. There was some dispute, which it is not necessary for the tribunal to determine, in relation to what time the claimant returned her keys and/or at what time the keys were due to be returned. However, Mr McCurley accused the claimant, she believed wrongly, of returning the keys from her Halls of Residence of her hall later than he had requested. He undoubtedly did so sharply and with some annoyance, which resulted in the claimant walking away. However, although this incident certainly confirmed that Mr McCurley has an abrupt manner and a somewhat short-temper, to describe it as chastisement by Mr McCurley was, in the tribunal’s opinion, an exaggeration.
Mr McCurley subsequently attempted to apologise to the claimant for upsetting her, which she appears to have accepted. In doing so, he did not hug her, as the claimant suggested, but certainly did make some form of open-arm gesture and placed his hands on her arm in the course of his apology. Significantly the claimant again did not complain about his gesture at the time. Mr McCurley clearly recognised that he had previously spoken to the claimant with unnecessary harshness on 18 December 2004; and on a number of subsequent occasions, including one particular incident in January 2006, sought to refer, in passing, to his previous unfortunate actions over the keys and his embarrassment over what happened. To her credit, the claimant told Mr McCurley to forget about it and not to worry about it. Once again, the tribunal concluded the claimant was seeking to exaggerate and put a sinister interpretation on Mr McCurley’s referral to the earlier incident. The tribunal concluded it was an attempt by Mr McCurley, albeit somewhat clumsily, by his reference to the previous incident, to try to show he wished to put it into the past and maintain good relations with the claimant and not to allow what occurred previously to interfere with their ongoing working relationship. If Mr McCurley had been as persistent in his apologies, as the claimant sought to suggest, the tribunal is satisfied she would have complained earlier about his actions; which she did not do; and not waited until she did so in connection with this claim.
3.7 On or about 7 November 2007, the claimant, during a chance meeting with Mr McCurley, raised a complaint she had about student misbehaviour in the hall and, in particular, in relation to the issue of noise at Navan West Hall, but also the display of posters of nude/semi-nude women which were displayed in some male students rooms in Culmore Hall, which she found offensive and which she contended could be seen by her from outside the hall.
Firstly, as set out previously, any failure to remove any such posters by the respondents was not an act of discrimination for which the claimant was making a discrete claim in these proceedings. Secondly, the tribunal noted the posters were within the privacy of the students own rooms and not in a public area. It further had considerable doubt how visible the posters were, in fact, to the claimant from outside, without her making a special effort to try to see them. The tribunal felt this was a further example of exaggeration on the part of the claimant, in order to support her claim. If the posters had been as visible, as she suggested, the tribunal has no doubts others, and in particular, other female members of staff of the college would have complained, which did not occur. Finally, in any event, the tribunal is satisfied Mr McCurley did investigate the matter and informally spoke to the students concerned and reminded them of their responsibilities as student residents of the hall; but also, in particular, spoke to the members of the female cleaning staff, who did, unlike the claimant, have to regularly enter the students rooms and satisfied himself they had no objections to the posters and/or were not offended.
3.8 The claimant again spoke to Mr McCurley on or about 14 November 2007, when she repeated her complaints of student misbehaviour and, as a consequence, they agreed a meeting would be arranged to enable the claimant to discuss her complaints, as indicated to Mr McCurley on 7 November 2007. No specific date was arranged for the meeting. On 29 November 2007, Mr McCurley did call, without a prior appointment, to see the claimant at her flat to discuss her complaints about student misbehaviour. Clearly, it would have been better if he had made a prior appointment, as the claimant on that particular evening had company and was unable to discuss the issues with him when he called at her flat. The claimant did not seem to have any difficulty with Mr McCurley calling at her flat during the evening; but merely that it was unsuitable as she had company on that particular evening. Whilst the tribunal can accept Mr McCurley may have been somewhat annoyed that he was unable, in the circumstances, to discuss the matter with the claimant and may have shown his annoyance by his demeanour, the tribunal does not accept he showed a degree of such agitation, as suggested by the claimant, that she felt concern for herself and/or safety. The tribunal considers the claimant has once again, for the purposes of her claim, sought to exaggerate the situation. As part of his visit to the hall that evening, Mr McCurley also visited Mrs McNamee, who was a college staff member resident of a flat above the claimant in her halls of residence, who had also raised issues of noise by students. In addition, as part of his investigation of these complaints of noise, he also went to visit Mr Thompson and Mr Moore, who were also Halls Tutors. Mr Moore was not in his flat when he called.
3.9 Following an incident on the evening of 3 December 2007, when a male student had indecently exposed himself to the claimant, the claimant, on the morning of 4 December 2007 tried to telephone Mr McCurley to report the matter; and when she failed to contact him she tried to see him in his office, but again without success. She clearly found her inability to contact Mr McCurley frustrating and annoying. However, she did send him an e-mail which stated, inter alia:-
“Good morning Michael, sorry to disturb you but I yet again have to report bad behaviour from Navan West Flat 9. Can you give me a call on extension 330 at your earliest convenience, so I might give you details. Regards.”
Mr McCurley, by the limited terms of the e-mail, did not appreciate the seriousness of the matter and did not treat it with the urgency the claimant was hoping for. If he had, what subsequently transpired might have been avoided.
By chance, the claimant met, following her unsuccessful visit to Mr McCurley’s office, the senior security officer, Mr Harrison, and Mr Chapman, the estates manager and informed them, inter alia, of what had happened the previous evening and her concerns about student misbehaviour in the halls of residence in general. Mr Harrison was also not able to contact the warden, and he decided to take some action before he went on his holidays that day. He informed Ms Mae Watson, the Vice-Principal, in confidence, of what he had been told and asked her to speak to the claimant, which she agreed to do. He did so, as he was aware of her obvious distress over the incident but also to ensure nothing further or worse would occur before the warden was able to be contacted.
3.10 As a result, Ms Watson asked the claimant to attend a meeting later that day. She did so, accompanied by Mr Dermot Moore, the Halls Tutor of Devenish West Hall at 4.30 pm, on 4 December 2007. At the meeting both the claimant and Mr Moore raised various recent issues/incidents regarding student misbehaviour and, as they believed, the failure by Mr McCurley to properly deal with such issues/incidents. Ms Watson in her position as Vice-Principal did not normally have any official line management responsibility regarding the halls of residence and/or student discipline; but she decided, in view of the serious nature of the complaints made to her, as a senior member of staff, to take some action to progress their complaints. In particular, she sent an e-mail to Ms Dunne and Mr Moore on 5 December 2007 asking them to set out, in writing, information in relation to the incidents which had been the subject-matter of their complaint to her including dates, names, etc. She also stated:-
“I can assure you any course of action will be pursued in strict confidence.”
3.11 On 6 December 2007, Ms Watson received a detailed statement, in writing, from the claimant and Mr Moore, setting out details of a number of incidents of student misbehaviour in the halls of residence over the previous number of days/weeks. Following receipt of this and other information, Ms Watson arranged to meet Mr McCurley later on 6 December 2007 to discuss the student misbehaviour which had now been reported to her; but at all times, during the course of her meeting with Mr McCurley, she maintained the confidentiality of who had complained to her. During the course of the meeting, after discussing the student misbehaviour report to her, she sought assurances that any such misbehaviour was being properly dealt with by him. Indeed, following this meeting on 6 December 2007, Ms Watson sent a very strongly worded e-mail to Mr McCurley seeking immediate detailed action by him, following her said meeting.
The e-mail stated:-
“Following yesterday’s meeting, senior management needs assurances that the issues of bad behaviour in halls are being dealt with in a firm and prompt manner. As I indicated yesterday you should now, as a matter of urgency, request as many details as you can from all the tutors regarding the bad behaviour, ie dates, incidents, names of student. There is no point in minimising it or trivialising it. When you have dealt with the students, please let me have a report of the outcome. This should be with me by Friday of next week, ie 14 December 2007.
This behaviour cannot continue, students must behave responsibly and respect the community in which they live. They are putting the good name of the college at serious risk, and disciplinary procedures will have to be invoked if necessary. Also no tutors should have to put up with bad language, malicious, verbal attacks or be kept away on a regular basis. People should be free to walk through halls without the aid of security ... .”
Mr McCurley, upon his receipt of the e-mail, immediately recognised that the terms and tone of the e-mail appeared to be highly critical of his role as Halls Warden, to date, in response to dealing with complaints of student behaviour.
3.12 Mr Moore, on a number of occasions, had also complained to Mr McCurley about incidents of student misbehaviour. The initial complaints of both the claimant and Mr Moore related to complaints of student misbehaviour and of the failure of Mr McCurley to properly deal with their complaints. There was no suggestion, at that time, by either the claimant or Mr Moore of any issue of sex discrimination and/or sexual harassment on the part of Mr McCurley.
3.13 Mr Moore sent an e-mail, in particular, to Mr McCurley on 4 December 2007, in which he made serious allegations of student misbehaviour, setting out much more detail than, for example, the claimant’s e-mail to Mr McCurley on 4 December 2007. He concluded:-
“I’ll be in later this evening, if you want to contact me.”
The tribunal is satisfied that Mr McCurley attempted to call at Mr Moore’s flat that evening, but, despite the terms of the e-mail, Mr Moore was not in when Mr McCurley called.
A wardens meeting had been called for 5 December 2007, which would have been an opportunity for Mr McCurley to discuss these issues, as he had hoped; but both the claimant and Mr Moore informed Mr McCurley they could not attend. Thus, that opportunity for further discussion was lost.
3.14 Following the meeting which Ms Watson had with Mr McCurley, the tribunal has no doubt that, although Ms Watson had been very careful not to reveal the identity of Mr Moore and the claimant as the persons making the complaints about student misbehaviour, Mr McCurley had equally no doubt that they were the persons who have spoken to Ms Watson. Indeed, the claimant fairly accepted that, given what had taken place in the days/weeks before, that this would have been an obvious conclusion for Mr McCurley to draw. The tribunal was satisfied that Mr McCurley, having been called in for the meeting by Ms Watson, who had normally no direct management responsibility for the halls of residence, about matters which were the responsibility of Mr McCurley was less than well pleased to have been called in for such a meeting with such a senior member of staff. As seen from her subsequent e-mail, Ms Watson in the course of the meeting made it clear she was less than satisfied with his explanations at the meeting of his role, to date, in dealing with the complaints of student misbehaviour and was putting pressure on him to resolve the matter as quickly as possible. Added to his annoyance was the fact that Mr McCurley had tried, albeit unsuccessfully, as set out above, to speak to both the claimant and Mr Moore, in particular, about the issues of student behaviour; but also both had, he considered, ‘gone over his head’, when they had complained to Ms Watson, as he had correctly deduced.
3.15 With this background, and in the above frame of mind, the tribunal has no doubt that Mr McCurley decided, following his meeting with Ms Watson on the afternoon of 6 December 2007, to speak as soon as possible to both the claimant and Mr Moore. He therefore sought to meet both in their respective flats on the evening of 6 December 2007.
3.16 Mr Moore suggested, in evidence to the tribunal, that Mr McCurley had not tried to contact him at his flat on 6 December 2007. He maintained that he was in his flat from about 5.30 pm/6.30 pm after work; and as he had not seen Mr McCurley he did not believe that Mr McCurley could have called at his flat. However, in an e-mail of 7 December 2007 to Mr McCurley, in response to Mr McCurley’s e-mail of 5 December 2007, when Mr McCurley had confirmed that he had tried to call at Mr Moore’s flat on 4 December 2007, without success, the tribunal noted, firstly, that Mr Moore did not seek to suggest otherwise, as he did before the tribunal; and, secondly, and more importantly, he stated:-
“I was not back until late last night, so apologise for the delay.”
In the tribunal’s judgment, this confirmed that Mr Moore was not in fact in his flat, despite his evidence to the tribunal. Mr Moore sought to suggest that the reference to ‘was not back until late last night’ was merely a reference to the fact he did not return from work until 5.30 pm/6.30 pm. The tribunal rejects this explanation and believes it was wrongly given by Mr Moore to try to show a difference in treatment between him and the claimant, for the purposes of her claim; and, in particular, to try to suggest that Mr McCurley only visited the claimant and not Mr Moore. If it was merely a reference to his return from work, as suggested, the tribunal believes that he would have said so and would not have phrased it in the way set out above. The reply was given on 7 December 2007, to an e-mail sent on 5 December 2007; and Mr Moore clearly felt an apology for not replying was in order. If Mr Moore had been in his flat all evening on 6 December 2007, as he suggested, he would have been likely to have replied to the e-mail on 6 December 2007 and would have not waited until 7 December 2007.
3.17 Mr McCurley went to the claimant’s flat about 7.30 pm/8.00 pm, to see if she was available, which was not unusually late given the roles of the Halls Warden and the Halls Tutors. He rang her doorbell but without any response. He saw from the kitchen window of the nearby hall flat that there as a light in the claimant’s flat, which clearly encouraged him to believe she was in but had not heard the bell. The tribunal accepts that he then looked through the letterbox and rang the bell again; but also, on a number of occasions, knocked and/or tapped on the flat door with his bunch of keys. The tribunal believes he did so sufficiently hard and vigorously to draw the claimant’s attention to his presence, if she had been in the flat and had not heard the bell. However, the tribunal is satisfied he only did this for a relatively short time; although given his anxiety to speak to the claimant, it may have been for longer and harder than he now recalls; and indeed there may have been an element of frustration/annoyance that he could not make contact with her. However, the tribunal rejects the suggestion that this went on continuously for a period of approximately 15/20 minutes and/or that his actions with his keys could be properly described as ‘thumping and/or banging’. This, in the judgment of the tribunal, was an exaggeration of what took place. Further, the tribunal did not consider Mr McCurley’s action, as described above, were in any way sinister but were a genuine attempt on his part to have an early opportunity to speak to the claimant, whom he was anxious in the circumstances to meet, if she was in her flat that evening. After failing to contact the claimant at her flat, Mr McCurley spoke to some students in Navan Hall about the issue of noise and, before he left the building, he again, for a short period, tried the claimant’s door but without success. The claimant was not present in her flat on 6 December 2007, when Mr McCurley had called; but was subsequently informed by some students in her hall of his visit. She sent an e-mail to Ms Watson on the morning of 7 December 2007 and referred to Mr McCurley’s attempts to visit her flat, as reported to her by the students. In her e-mail she did not suggest, at that time, that Mr McCurley, by his actions, had sought to invade her privacy and/or harass her and/or that she felt unsafe in her flat by reason of his actions, as she suggested during the course of the hearing. She referred, inter alia, to Mr McCurley ‘knocking with his keys’; but, in her witness statement to the tribunal, this was referred to as banging on the door with his keys. In the opinion of the tribunal, this was a further attempt by the claimant to seek to exaggerate the actions of Mr McCurley, when he sought to visit her at her flat on the evening of 6 December 2007, for the purposes of her claim. If the actions of Mr McCurley had been as she attempted to suggest to the tribunal, as set out above, the tribunal has no doubt that she would have set that out clearly and in detail in her e-mail and raised concerns about her safety. None of which she did.
3.18 In her e-mail to Ms Watson on 7 December 2007, the claimant raised the issue of confidentiality, which had been earlier promised by Ms Watson. Ms Watson in her reply, confirmed she had maintained her confidentiality; but also stated she could not prevent Mr McCurley from drawing his own conclusions about the sources of the complaints. She also confirmed that she had spoken to Mr McCurley about the matters raised by her and Mr Moore and had sought a report from Mr McCurley; and that, before doing so, he would be seeking information from tutors. In a later e-mail on 7 December 2007, Ms Watson told the claimant, following receipt of her complaints in writing from her and Mr Moore, that, as Halls Tutors, they needed to share the information given to her with Mr McCurley about the complaints of student misbehaviour.
3.19 Following his meeting with Ms Watson, but also her subsequent critical e-mail seeking a report, Mr McCurley was clearly angry and frustrated by the fact that not only had Mr Moore and the claimant felt it necessary to go over his head to Ms Watson, without speaking to him; but also that in the e-mail, in particular, he had been made the subject of criticism in his role as Halls Warden, by a senior member of staff, Ms Watson, which he felt was unjustified and which he was anxious to show was incorrect. Further, Mr McCurley had been unable on the evening of 6 December 2007 to make contact with either the claimant or Mr Moore. In the circumstances, it was not surprising, when Mr McCurley subsequently met the claimant by chance, for the first time following his meeting with Ms Watson, on 7 December 2007, as set out below, that he sought to speak to her and made his anxiety to do so clear.
3.20 The tribunal is further satisfied that if Mr McCurley had met Mr Moore, the other Halls Tutor who had complained to Ms Watson, on 7 December 2007, in similar circumstances, he would have been equally anxious to speak to him and would have done so in a similar way.
3.21 The claimant on the afternoon of 7 December 2007 had arranged to have a meeting with Ms Nesbitt, the domestic bursar of the college; but, as she was unavailable when the claimant arrived for the meeting, due to another appointment, she had to wait in the halls foyer area. By chance, at that time, Mr McCurley was attending a farewell Christmas lunch for Erasmus students and as he left the dining hall, with others, he saw the claimant in the foyer and went over to speak to her. What happened subsequently, and indeed the precise order of events, was the subject of much dispute between the parties. However, the tribunal is satisfied that Mr McCurley, at all times, sought to speak to the claimant about the matters which had been the subject of the complaint by her and Mr Moore to Ms Watson and which he was required to report back on to Ms Watson; but the claimant equally made it clear to him, at all times, that she was not prepared to do so. Undoubtedly, this gave rise to a degree of frustration and also some anger on the part of Mr McCurley, which led to a heated discussion between them, with raised voices, and with Mr McCurley, following the claimant from the foyer into the reception area to Ms Nesbitt’s office. However, the tribunal is satisfied that, although Mr McCurley visibly displayed his frustration and anger, by raising his voice and by drumming his fingers on the hatch of the reception, for all of which he can be the subject of criticism, the claimant has sought to greatly exaggerate what happened and in a way which has not received any relevant support from any of the persons who were witnesses to what occurred. Equally, the claimant, knowing what had occurred with Ms Watson and that it was inevitable Mr McCurley would wish to speak to her, did everything to avoid any sort of discussion. By doing so, she did nothing to calm the situation and for which she must also be the subject of some criticism. Mr McCurley, wrongly, did seek to join the claimant in her meeting with the bursar, as he clearly was fearful this was to be a further meeting, like the meeting with Ms Watson, which was taking place, as he believed, ‘behind his back’. The meeting with the domestic bursar was nothing to do with the issues of student misbehaviour and was a non-related matter of administration. Although there is no doubt the claimant was very upset by this heated discussion, her description of what took place as a non-provoked/relentless attack on her, with acts of aggression, including blocking of her path and pinning her in her corner, were not supported by the witnesses to what occurred. The witnesses did confirm there had been an angry argument between the claimant and Mr McCurley, where she had been very clear that she did not wish to discuss anything with him; but none suggested it reached the heights of aggression/attack contended for by the claimant. For example, Ms Stanfield, the Halls of Residence Secretary, was a key witness of what occurred, and who would have had no reason, in the tribunal’s view, not to support the claimant’s versions of events, if true. She made clear to the tribunal, in her evidence, that, although the discussion was heated she was satisfied that both the claimant and Mr McCurley were speaking to each other. It was not a one-sided conversation with Mr McCurley dominant. Whilst acknowledging the discussion was between two persons at a higher than normal level of talking, she denied there was shouting and was clear that she saw no attack by Mr McCurley upon the claimant. Not disputing the claimant was upset over what occurred, she did not accept the claimant’s description that she was in a state of shock/traumatised after it. Mr McCurley undoubtedly, during the course of this heated discussion, made it clear that the claimant, as a Halls Tutor, would require to speak to him, the Halls Warden, about the matter, the subject of her complaint to Ms Watson. Indeed, as set out in the previous e-mail from Ms Watson, Ms Watson had made it clear that Mr McCurley would not only be wishing to speak to her, but she would be required to give him the information. However, the tribunal does not accept that, during the course of this heated discussion, Mr McCurley made any improper threat against the claimant, either personally or in relation to her job as a Halls Tutor. The subject of his visit to the flat the previous evening was certainly raised during the course of this discussion, but the tribunal does not believe that Mr McCurley made any improper threat to enter her flat with his master key. The outcome of this discussion was that a meeting was arranged to take place between the claimant and Mr McCurley on 10 December 2007 at or about 6.00 pm.
3.22 However, upon reflection, Mr McCurley decided that, rather than have a meeting with the claimant alone, it would be better and more appropriate for him to have a formal Halls Tutors meeting, to which all the Halls Tutor would be invited and there would be an opportunity to fully discuss the issues of student misbehaviour and the response to same, which had been the subject, in particular, of Mr Moore and the claimant’s complaint to Ms Watson, as referred to previously, and which he was required to report back to Ms Watson by 14 December 2007. The Halls Tutors meeting was arranged for 6.30 pm on 10 December 2007.
Ms Nesbitt, the domestic bursar, initially agreed to accompany the claimant to her meeting with Mr McCurley, which had been agreed, as set out above, at the conclusion of their heated discussion, would take place on 10 December 2007. However, she did so when she believed it was to be a one-to-one meeting with Mr McCurley. She was agreeable to give her some support, as she was aware of her upset following their discussion on 7 December 2007. However, whenever the nature of the meeting was changed to a formal Halls Tutors meeting, Ms Nesbitt, properly in the view of the tribunal, decided her presence was neither necessary or appropriate. She did not normally attend such meetings, unless requested to do so by Mr McCurley and no such request had been made. The tribunal did not, in the circumstances, consider there was any significance to be attached to Ms Nesbitt’s failure to attend the meeting on 10 December 2007, despite her earlier agreement to do so.
3.23 All the Halls Tutors attended the meeting, namely Mr Thompson, Mr Donaghy, Mr Moore, Ms Nugent and the claimant. The meeting was held at a long rectangular table, with Mr McCurley and Ms Nugent seated at the ends of the table. The tribunal noted that the claimant decided to sit to the right of Mr McCurley with one empty seat between them. The tribunal found this surprising, if, as she tried to suggest in her evidence, she was fearful and felt intimidated by Mr McCurley by reason of the events on 7 December 2007. If this was correct, the tribunal would have expected her to sit as far away as possible from Mr McCurley. She could easily have done so but chose not to.
3.24 There was no dispute that Mr McCurley concentrated at the meeting on various e-mails which had been sent by Mr Moore to Mr McCurley relating to student misbehaviour. It was equally clear that the focus of Mr McCurley’s challenge about the content of those e-mails was against Mr Moore and not the claimant. Whatever complaint the claimant may have had about the way Mr McCurley treated Mr Moore at the meeting, this was not relevant to the claimant’s claim. It was Mr Moore’s e-mails which were read out in full by Mr McCurley. It was the sectarian remarks made by students against Mr Moore which were read out in full by Mr McCurley. Undoubtedly, it can be argued that Mr McCurley may have been imprudent/ ill-advised, as suggested by the investigatory panel’s conclusions, which are referred to later, to conduct the meeting in that way. However, it must be noted that these were not private e-mails; but e-mails sent by Mr Moore, as Halls Tutor, to Mr McCurley, as Halls Warden. They were also the subject of Mr Moore’s complaints about Mr McCurley’s role as Halls Warden in relation to student misbehaviour, which he had earlier made to Ms Watson and which she had asked Mr McCurley to make a report on. Ms Watson had said in her e-mail that Mr McCurley was not to trivialise or minimise what had been complained about. Setting out in full the contents of the e-mail was one way of showing that Mr McCurley was treating the complaints seriously. These e-mails were being discussed by the Halls Tutor at a Halls Tutors meeting, which had been called to discuss these very matters. The tribunal does not accept the claimant’s contention that she was, for example, shocked by Mr McCurley’s verbalising of the sectarian remarks. Indeed, in doing so, the tribunal considered the claimant again sought to wrongly exaggerate her reaction to what occurred at the meeting. Although this was a claim of sex discrimination/sexual harassment, the claimant, in her witness statement, also sought to raise a fair employment element to her claim by referring to the fact that she was a Catholic from the Republic of Ireland; albeit she was fully aware, as she accepted, this was not relevant to her complaint to this tribunal.
The tribunal has no doubt that the meeting was tense and Mr McCurley, in his criticisms and discussions with Mr Moore, spoke robustly to him and was less than even-tempered. Undoubtedly, Mr McCurley could be the subject of criticism in how he conducted that meeting and, in particular, his discussion with Mr Moore. However, in relation to the claimant, who did not play an active part in the discussion, the tribunal concluded, he could only be criticised, when he asked the claimant, during the course of the meeting, ‘whether she had a facial tic’. Mr McCurley, during the course of the hearing, admitted that he had done so. However, the reason for him making such a remark had to be carefully considered by the tribunal. The tribunal is satisfied that, throughout the course of the meeting, and, in particular, during the discussion Mr McCurley had with Mr Moore, the claimant, whilst not playing an active part herself in the discussion, sought to distract and/or undermine Mr McCurley by her body/facial language, which included laughing/smirking and/or rolling her eyes. The tribunal accepts that Mr McCurley initially challenged the claimant about her laughing but received no response and as the claimant continued with her actions he concluded she was seeking to disrupt the meeting; and, finally, in his frustration and anger, he used words which questioned ‘whether she had a facial tic’. The claimant’s actions were clearly designed to goad Mr McCurley, who is undoubtedly quick-tempered. She was seeking to disrupt the discussion he was having with Mr Moore, which she did not agree with. The tribunal noted that the other Halls Tutors generally confirmed the manner in which the claimant had behaved at the meeting, which none of them considered was a professional way for a Halls Tutor to behave at such a meeting – although some recalled more detail of her specific behaviour than others. The tribunal was particularly impressed by the confirmation of Ms Nugent of the claimant’s said behaviour and her acceptance that the above remark was made as a result of the claimant’s facial expressions over a period of time. As neither Mr Moore, nor any of the other Halls Tutors, behaved in the same way as the claimant no such remark was addressed to them by Mr McCurley.
3.25 On 14 December 2007, the claimant made a formal complaint, jointly with Mr Moore, to Ms Mae Watson, the Vice-Principal and Registrar, in relation to, in particular, the alleged behaviour of Mr McCurley on Friday 7 December 2007 in the halls foyer and reception area and also at the meeting of the Halls Tutors with Mr McCurley on Monday 10 December 2007. The said complaint made no express reference to any allegation of sex discrimination and/or sexual harassment of the claimant by Mr McCurley.
Following two meetings, Ms Ursula Doherty, the Human Resources Manager of the College, on 9 and 17 January 2008, the claimant submitted on 21 January 2008 an individual complaint, in writing, to the College relating to Mr McCurley’s alleged behaviour on the said dates. Again, there was no express complaint of sex discrimination and/or sexual harassment of the claimant by Mr McCurley. By the date when the claimant made her said complaint, she had been provided by Ms Doherty with a copy of the College’s Dignity at Work Policy, to which further reference shall be made below. An investigation panel, which consisted of Norman Halliday (Director of Corporate Affairs) and Rosemary McQuaid (Human Resources Officer) was asked by the College Principal, Dr Heaslett, to investigate the claimant’s complaints under the College’s Dignity at Work Policy of alleged harassment and abuse of authority by Mr McCurley. At the same time, the panel were also asked to investigate the similar complaints made by Mr Moore in relation to the behaviour of Mr McCurley.
3.26 The claimant contended, in evidence to the tribunal, that at the time when she made her complaint to the College on 21 January 2008 she considered Mr McCurley’s treatment of her was wrong and amounted to bullying and harassment; but, at that time, she did not realise such conduct might also amount to sex discrimination and/or sexual harassment and that, in such circumstances, she had not made any express complaint, when making her formal written complaint to the College on 21 January 2008.
The Policy sets out, inter alia, in Paragraph 2.1 a definition of harassment:-
“As unacceptable behaviour, which can range from violence to more subtle behaviour such as ignoring an individual at work or study.
Harassment may be physical (such as unnecessary body contact), verbal (eg offensive jokes) or non-verbal (eg ostracising or soliciting an individual or sending unwanted e-mails).”
In Paragraph 2.4 the Policy sets out a list, not exhaustive, of some examples of behaviour which may be forms of harassment and bullying. This list of examples included ‘sexual harassment’ and gave examples of such sexual harassment including, for example, unwanted physical contact, unwelcome advances, attention, invitations or proposals; sexual innuendo; suggestive comments, looks or attitudes or jokes; stalking.
Despite this guidance set out in the Policy document, which the claimant was given a copy of before she made her formal complaint, the tribunal noted, in the context of the complaints made to this tribunal, the claimant made no such reference in her formal complaint to the college of sexual harassment and/or sex discrimination in her said complaint and, in particular, to any allegation that her complaints against Mr McCurley were on the grounds of her sex. The claimant is clearly a very intelligent woman and the tribunal would have expected, if she believed that there was a sexual element to her complaint, especially after reading the said Policy document, she would have said so in her formal complaint to the College.
3.27 The tribunal is satisfied that, at the meeting with Ms Doherty on 9 January 2008 she expressed some concerns about the safety of her home, following the events in December 2007, when Mr McCurley had a master key to the claimant’s flat. However, it is equally satisfied that she expressly declined Ms Doherty’s proposal to change the locks of the flat; and it was not until the meeting of 17 January 2008 that she accepted the proposal, which was immediately acted upon. The locks of the claimant’s flat were changed on 18 January 2008.
3.28 The investigation panel then carried out a number of investigatory meetings with the claimant and Mr McCurley and various other persons/witnesses referred to in the claimant’s complaints, which resulted in a report which was sent to the claimant on or about 10 July 2008. The claimant had a clear expectation, after her interview with the panel on 10 February 2008, that the panel hoped to make the resultant report available within a period of five weeks. Indeed, this is the anticipated timescale, as set out in the said Policy; but the tribunal does not accept that the claimant was given by the members of the panel any such guarantees, as she sought to suggest during the course of this hearing. Whilst the tribunal could understand the claimant’s frustration at the length of time taken by the panel to complete the report, which was compounded by annual leave of members of the panel, the tribunal does not consider the delay was of any relevance or significance. In this context, it has to be noted that the investigation itself was not the subject-matter of the claimant’s claim to the tribunal (see Paragraph 1.2 of this decision).
3.29 However, arising from the failure of the panel to provide its report within the expected five week period, the claimant was advised by a friend to consult with the Equality Commission on 7 April 2008. Following this meeting, on 9 April 2008, the claimant sent an e-mail to the College which stated, inter alia:-
“I would indicate to you that the latter treatment, in particular, may amount to unlawful sex discrimination on the grounds of my sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976 and European Law, in particular, the European Directive.”
Other than the above reference, the claimant did not provide any further or additional evidence in support of this further complaint to that previously submitted to the investigation panel.
As shall be set out elsewhere in this decision, the timing of this e-mail, in the context of the statutory grievance procedure and the jurisdiction of the tribunal to hear the claimant’s claims, was somewhat fortuitous. It was not disputed by the respondents’ representative that the contents of the said e-mail constituted a grievance for the purposes of the said procedures (see further Canary Wharf Management Limited v Edebi [2006] IRLR 416 and Paragraph 4.9 of this decision). However, it was disputed by the respondents’ representative that the written complaint made on 21 January 2008 did constitute such a grievance, as it had not raised such a complaint of sex discrimination and/or sexual harassment.
The claimant did not present her claim to the tribunal until 6 June 2008. Her failure to do so seemed to arise from some confusion on her part in relation to the advice given to her at the time of her meeting of the Equality Commission, having regard to the relevant time-limits applicable and/or any extension of time available in light of the provisions of the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. The tribunal noted that the meeting with the Equality Commission was directed initially to the delay in the completion of the report from the investigation panel. The advice to send the e-mail of 9 April 2008 appeared to relate to notification of the claim than detailed advice. The tribunal has sympathy for any lay person trying to charter a course through the said statutory procedures and complex relevant time-limits, not least where the claimant’s claim was against the college, to which the statutory grievance procedures applied; and against a fellow employee, to whom the said procedures did not apply. The tribunal was prepared to accept that, in the above circumstances, any advice given by the Commission at the meeting was limited and not in the nature of detailed advice, with full knowledge of all the facts; and that the claimant remained confused as to the precise time-limits she was required to follow. It was clear that she felt she had additional time, following her meeting with the Commission to present her claims against the college and/or Mr McCurley and she was not deliberately neglecting to present her claim. Again, the delay in presenting the claim did not give rise to any prejudice.
3.30 The tribunal found it less than satisfactory that, in its report to the claimant, the panel did not specifically address the issue of sex discrimination, as referred to in the claimant’s e-mail of 9 April 2008 and which the panel received. Despite the absence of any such reference in the report, the tribunal was satisfied that the panel did in fact consider the contents of the e-mail; but the panel had concluded, in the absence of any specific reference, either at the panel’s interview with the claimant or in the initial complaint, that the actions of Mr McCurley had nothing to do with the claimant’s sex; and the absence of any new facts or evidence in the e-mail to add to the factual matrix, to support this additional complaint, it did not consider there was anything further to be investigated and/or to suggest Mr McCurley’s actions might amount to sex discrimination. as set out in the e-mail. Although the tribunal accepts that, as set out above, the panel did consider the terms of the e-mail, there was no further meeting by the panel with the claimant, following her said e-mail of 9 April 2008, in which she raised the additional complaint of sex discrimination.
The tribunal suspects that if the investigation panel in its report had made clear to the claimant that the further complaint had not been ignored, as was clearly felt by the claimant, some of her frustration and disappointment with the report might have been reduced.
The panel report, although it made various criticisms of the actions and management style of Mr McCurley, which were the subject-matter of the investigation, it rejected the central thrust of the claimant’s complaint of harassment and abuse of authority by Mr McCurley. However, it did find that, at the tutors meeting on 10 December 2007, Mr McCurley had during a period of tension between them at the meeting asked whether the claimant had ‘a facial tic’, which remark Mr McCurley had denied making. At this hearing (see further Paragraph 3.24 of this decision), Mr McCurley acknowledged the remark had been made. The panel accepted the remark had caused discomfort and offence to the claimant. Arising from the foregoing, the panel made various recommendations in relation to the future management of the Halls of Residence, but also that Mr McCurley should make an apology to the claimant for his said remark. Clearly, it would have been more appropriate if the apology, as recommended by the panel, had been given earlier, but the tribunal accepted that, allowing for the Summer period and the necessity to obtain the approval of the Principal of the College of the report and its recommendations, that it was understandable the apology was not in fact sent to the claimant until 23 September 2008. The letter of apology stated, inter alia:-
“I refer to your complaint under the Dignity at Work Study Policy, in particular in relation to the Halls Tutors meeting of 6 December 2007. I wish to say that it was not my intention to cause you any embarrassment or injury to feelings and I sincerely apologise that I have inadvertently caused upset ... .”
The Halls Tutors meeting, was not on 6 December 2007 but 10 December 2007, as had been recognised in the report which recommended the apology to be given. The tribunal had no doubt that to have given the wrong date in the apology was carelessness on the part of Mr McCurley, which he clearly regretted, rather than any attempt on his part to reduce or water down the apology; albeit it was something which should not have occurred and was undoubtedly a source of increased hurt to the claimant.
4.1 Relevant law
(a) The 1976 Order provides as follows:-
Article 3(1) –
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if –
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man; or
… .”
Article 7:-
(a) A comparison of the cases of persons of different sex … under Article 3(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
Article 8(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 … subjecting her to any other detriment.”
Article 8(2A):-
“It is unlawful for an employer in relation to her employment by him at an establishment in Northern Ireland, to subject to harassment –
(a) a woman whom he employs.”
Article 6A:-
“(1) For the purpose of this Order, a person subjects a woman to harassment if –
(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect –
(i) of violating her dignity; or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her;
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect –
(i) of violating her dignity; or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her; or
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in sub-paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.
(2) Conduct shall be regarded as having the effect mentioned in Paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.
… .”
Article 42:-
“(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
…
(3) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.”
Article 43:-
“(1) A person who knowingly aids another person to do an act made unlawful by this Order shall be treated for the purpose of this Order as himself doing an unlawful act of the like description.
(2) For the purposes of Paragraph (1) an employee … for whose act the employer … is liable under Article 42 (or would be so liable but for Article 42(3)) shall be deemed to aid the doing of the act by the employer.”
Article 63(1):-
“A complaint by any person (the complainant) that another person (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, may be presented to an industrial tribunal.”
Article 63A(1):-
“(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.”
4.2 Prior to the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005, which introduced into the 1976 Order, Article 6A, (as set out above, in Paragraphs 4.1 of this decision), there was no ‘freestanding’ claim for sexual harassment. Prior to the above amendment, sexual harassment was not actionable as such under the 1976 Order. It was necessary, in such circumstances, in order to bring a successful action under the 1976 Order, to show less favourable treatment in the normal way and show that such harassment fell within the meaning of detriment. In numerous cases (for example De Souza v Automobile Association [1986] ICR 514), it has long been recognised sexual harassment has the potential to be unlawful direct discrimination on the grounds of sex.
Indeed, in the case of Porcelli v Strathclyde RC [1986] IRLR 177, it was suggested that, if the form of sexual harassment was gender-specific, there was no need for a comparator. However, in the decision in the case of MacDonald v Advocate General for Scotland [2003] IRLR 512, the House of Lords made it clear that comparison remains a necessary ingredient of this type of unlawful conduct.
Such a comparison, as seen in the decision of the House of Lords in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, can include an actual or a hypothetical comparator.
Thus, conduct which subjected the victim to a detriment and was of a sexual nature might not be sexual harassment contrary to the 1976 Order, where it could not be shown that such treatment constituted less favourable treatment than that of a relevant comparator.
As Lord Nicholls in his judgment in the Shamoon case made clear the normal two-step approach of tribunals, in considering firstly whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was and was the reason the said proscribed reason or some other reason. If the latter, the application fails. If the former, there will normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ judgment).
Further, in Shamoon, it was held that in order for a disadvantage to qualify as a ‘detriment’, it must arise in the employment field and that the tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he/she had thereby been disadvantaged in the circumstances in which he thereafter had to work.
As was stated in the sexual harassment case of Reed and Bull Information Systems Ltd v Steadman [1999] IRLR 299:-
“The essential element of sexual harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves which is acceptable to them and what they regard is offensive.”
Many sexual harassment cases, prior to the introduction of the legislative amendment, relied on the definition of sexual harassment seen in the EC Code of Practice on Social Harassment:-
“Unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women at work including unwelcome physical, verbal or non-verbal conduct.”
(See further In Situ Cleaning Company Ltd v Heads [1995] IRLR 4.) Prior to the MacDonald case, there were many cases where the nature and circumstances of the verbal abuse were such that, without more, these provided sufficient evidence of less favourable treatment on grounds of sex to make the exercise of formally identifying a comparator unnecessary. Such cases, it might be suggested, are more accurately analysed as examples of the maxim ‘res ipsa loquitur’ or ‘the facts speak for themselves’.
In the case of MacDonald, Lord Nicholls said:-
“The fact that the harassment is gender-specific in form cannot be regarded as of itself establishing conclusively that the reason for the harassment is gender-based – ‘on the ground of her sex’. It will certainly point in that direction. But this does not dispense with the need for the tribunal a fact to be satisfied that the reason why the victim was being harassed was her sex. The gender-specific form in harassment will be evidence, whose weight will depend on the circumstances, that the reason for the harassment was the sex of the victim. In some circumstances the inference may readily be drawn that the reason for the harassment was gender-based. A male employee also subjects a female employee to persistent unwelcome sexual overtures may readily be inferred to be doing so on the ground of her sex.”
Equally, Lord Hope said:-
“It may be that the conduct complained of is so specific to the claimant’s gender that there is no need to do more than to ask the question, to which the answer may well be ‘res ipsa loquitur’.”
Thus, although a comparison is required where a claim is made of direct sex discrimination under Article 3 of the 1976 Order, in many cases this, depending on the particulars facts, may not involve an insurmountable hurdle for a claimant.
As was stated in the case of Driskel v Peninsula Business Services Limited [2000] IRLR 151 the Employment Appeal Tribunal considered the question of when harassment amounted to a detriment within the meaning of the Sex Discrimination Act 1975 (which is in similar terms to the 1976 Order). It held that:-
“ … the ultimate judgment, sex discrimination or no, reflects an objective assessment by the tribunal of all the facts. That said, amongst the factors to be considered are the [claimant’s] subjective perception of that which is the subject of complaint and the understanding, motive and intention of the alleged discriminator. Thus the act complained may be so obviously detrimental, that it is disadvantageous … to the applicant as a woman, by intimidating her or undermining her dignity at work and that the lack of any contemporaneous complaint by her is of little or no significance. …
In making its decision a tribunal should not lose sight of the significance in this context of the sex of not just the complainant but also that of the alleged discriminator.”
4.3 Article 6A of the 1976 Order, was introduced under the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005 in order to comply with relevant European Directives. It has to be noted that harassment prohibited under Article 6A of the 1976 Order is a distinctly different cause of action to direct sex discrimination under Article 3 of the 1976 Order. Article 3 of the 1976 Order, as set out above, requires proof of less favourable treatment by an actual or hypothetical comparator on prohibited grounds, which amounts to a detriment, within the meaning of the 1976 Order; whereas Article 6A of the 1976 Order does not require such a comparison to be made. Thus a claim of harassment may be actionable by itself under Article 6A of the 1976 Order, whether or not it would amount to a detriment. If it would amount to a detriment there may therefore be an alternative claim under Article 3 of the 1976 Order. The definition of harassment and of a detriment under the 1976 Order are mutually exclusive (see further Article 2 of the 1976 Order. It should be noted, by way of contrast, that the situation is different under the Disability Discrimination Act 1995, as amended, where detriment has been re-defined and ‘detriment ... does not include conduct of the nature referred to in Section 3B (Harassment)’.
In the recent case of EOC v Secretary of State for Trade & Industry [2007] IRLR 327, Mr Justice Burton found that:-
“Section 4A(1)(a) of the Sex Discrimination Act 1975 (which is in similar terms to Article 6A(1)(a)) which defines unlawful harassment of a woman by a person as where, on the ground of her sex, he engages in unwanted conduct that has the purpose or effect –
(i) of violating her dignity; or
(ii) of creating a discriminating, hostile, degrading, humiliating or offensive environment for her;
did not directly implement the revised Equal Treatment Directive 2002/73/EC, which defines harassment as where ‘unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, degrading, humiliating or offensive environment.”
Mr Justice Burton held that:-
“The use of the words ‘on the grounds of her sex’ impermissibly imports causation – the reason why issue – into the concept of harassment. There can be conduct which is related to sex, but not of a sexual nature, which has the effect of creating an offensive working environment for a woman, such as where there is denigratory conduct of a man related to sex. That would not fall within Section 4A on a straightforward reading, as it would not be conduct on the ground of the woman’s sex.
Accordingly, Section 4A(1)(a) needs to be re-cast so as to eliminate the issues of causation.”
As a consequence, Article 6A(1)(a) of the 1976 Order has been further amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’) as follows:-
“In Article 6A(1)(a) of the 1976 Order (definition of harassment) for ‘on the ground of her sex he engages in unwanted conduct that’ substitute ‘he engages in unwanted conduct that is related to her sex or that of another person’.”
This amendment came into operation on 6 April 2008, but as set out in the tribunal’s Ruling, referred to above, the tribunal concluded that the 2008 Regulations were not retrospective; and, in the circumstances, as the events, the subject-matter of this claim, occurred prior to 6 April 2008, the tribunal concluded it should have regard to Article 6A in its unamended form, as set out in the 2005 Regulations.
4.4 The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered the provisions equivalent to Article 63A of the 1976 Order, and approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process to be used in relation to the burden of proof, in a case of unlawful discrimination. In the case of Bridget McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA 3, the Court of Appeal, in referring to the said two-stage process stated:-
“The first stage required the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, the complaint is not to be upheld … .”
The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Normura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748 EAT, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25. In Madarassy, the Court of Appeal held, inter alia, that:-
“‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude from all the evidence before it’. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.
Subject only to the statutory absence of an adequate explanation at this stage the tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like with like as required by Section 5(3) and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong [2005] …
Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”
In the recent decision of the Northern Ireland Court of Appeal in the case of Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8 the Court of Appeal approved the judgment of Elias J in Laing, which was also quoted with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the formal steps set out in Igen in each case; and also referred to the opinion of Lord Nicholl observed in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 174, where he had observed at Paragraph 8 of his judgment, as follows:-
“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.”
In the case of Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR 865 the Employment Appeal Tribunal held that:-
“A tribunal at the second stage is simply concerned with the reason why the employer acted as he did. The burden imposed on the employer will depend on the strength of the prima facie case … it would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the tribunal considers objectively to be justified or reasonable. Unfairness is not itself sufficient to establish discrimination.”
As indicated above, the burden of proof provisions under Article 63A of the 1976 Order apply not only to a claim of direct sex discrimination under the 1976 Order but also a claim of sexual harassment under the 1976 Order, though clearly, as indicated above, the references to comparative treatment are inapplicable.
4.5 Article 6A of the 1976 Order, in its unamended form, has not, until recently, been the subject of any relevant legal authority, in relation to the interpretation of the said Article, (other than in the case of EOC v Secretary of State for Trade & Industry [2007] IRLR 327, as referred to above) – which because of its use of the phrase ‘on the ground of her sex’ means that many of the relevant authorities referred to above, in relation to direct sex discrimination, may also be considered to have some application in relation to interpretation of Article 6A of the 1976 Order, in its unamended form, prior to the commencement of the 2008 Regulations (see also later in this decision).
4.6 In the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336, Mr Justice Underhill, President of the Employment Appeal Tribunal, in a case brought under Section 3A of the Race Relations Act 1976, made observations concerning the approach to be taken by tribunals when considering claims of harassment under the 1976 Act and the equivalent provisions in legislation relevant to other forms of discrimination. Article 6A of the 1976 Order is in similar terms to Section 3A of the Race Relations Act 1976:-
“10 As a matter of formal analysis, it is not difficult to breakdown the necessary elements of liability under Section 3A. They can be expressed as threefold:-
(1) The unwanted conduct
Did the respondent engage in unwanted conduct?
(2) The purpose or effect of that conduct
Did the conduct in question either:-
(a) have the purpose; or
(b) have the effect of either –
(i) violating the claimant’s dignity; or
(ii) creating an adverse environment for her?
(We will refer to (i) and (ii) as ‘the proscribed consequences’.)
(3) The grounds for the conduct
Was that conduct on the grounds of the claimant’s race (or ethnic or national origins)?
11 But that formal breakdown conceals the fact that there are – or will at least in some cases be – substantial overlaps between the questions that arise in relation to each element. To take one obvious example, the question of whether the conduct complained of was ‘unwanted’ will overlap with the question of whether it creates an adverse environment for the claimant. There is also evidently a considerable overlap between the two defined proscribed consequences, notwithstanding that they are expressed as alternatives : many or most acts which are found to create an adverse environment for an employee will also violate her dignity (though it might be less general for the reverse to apply). The tribunal’s eventual decision may often depend on what are, in practice, undifferentiated factual issues which cover more than one element in the analysis. Nevertheless, it will be a healthy discipline for a tribunal in any case brought under this Section (or its equivalent in the other discrimination legislation) specifically to address in its reasons each of the elements which we have identified, in order to establish whether any issue arises in relation to it and to ensure that clear factual findings are made on each element in relation to which an issue arises.
12 We make four other points which we hope may be of assistance to tribunals seeking to apply Section 3A.
13 First, such case law as there was in relation to ‘harassment’ as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful. We do not say there may not be some general observations to be found in that case law which are equally applicable to claims under the new legislation. But the old law was constructed, somewhat uncomfortably, out of the general statutory definitions of discrimination. The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps. Still less is assistance likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated case ...
14 Secondly, it is important to note the formal breakdown of ‘element (2)’ into two alternative basis of liability – ‘purpose’ and ‘effect’. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so). It might be thought that successful claims of the latter kind will be rare since in a case where the respondent has intended to bring about the proscribed consequences, and his conduct had a significant impact on the claimant for her to bring proceedings, it would be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent’s purpose (though that does not necessary exclude consideration of the respondent’s mental processes because of ‘element (3)’, as discussed below).
15 Thirdly, although the proviso in Sub-section (2) is rather clumsily expressed, its broad thrust seems to us to be clear. The respondent should not be held liable merely because his conduct has the effect of producing a proscribed consequence : it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that, that being so, the phrase ‘having regard to … the perception of that other person’ was liable to cause confusion and to lead tribunals to apply a ‘subjective’ test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the punitive victim : that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a ‘subjective’ objective; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the Section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially, a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or precisely to produce the proscribed consequences) : the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at Paragraph 22 below.
16 Fourthly, ‘element (3)’ involves an enquiry which will be very familiar to tribunals from other types of discrimination claims. There is ample case law in the nature of the enquiry required by the ‘interchangeable’ statutory phrases ‘on the grounds of’ or ‘by reason that’ : see classically the speeches of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1AC501 at Pages 510 – 513, [1999] ICR 877 at Pages 884 – 6 and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at Paragraph 29 (Page 1072) … .”
In the context of the claimant’s claim, and in light of the foregoing, it was also relevant for the tribunal to have regard to the observations of Mr Justice Underhill at Paragraph 22 of his judgment in the Richmond Pharmacology case:-
“ … Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. … .”
In the absence of any previous authority either in this jurisdiction or in Great Britain, in relation to the proper interpretation of Article 6A of the 1976 Order, as amended the tribunal concluded it was appropriate to follow the guidance of Mr Justice Underhill, as set out above, in the Richmond Pharmacology case.
4.7 Under Article 76(1) of the 1976 Order:-
“An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complaint of was done.”
Under Article 76(5) of the 1976 Order:-
“A ... tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
Under Article 76(6) of the 1976 Order:-
“An act extending over a period shall be treated as done at the end of that period.”
4.8 In addition to the provision of the 1976 Order, as amended, referred to in the previous sub-paragraphs, it was also necessary for the tribunal to have regard to the further statutory provisions, as set out below.
In April 2005, the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’), introduced, inter alia, the statutory grievance procedures. A claim of sex discrimination and/or sexual harassment under the 1976 Order, as amended, is a claim to which the said grievance procedures apply and if not complied with can prevent a tribunal hearing the claim.
4.9 Under, as set out below, the statutory grievance procedure (see further Paragraphs 6 – 8 of Schedule 1 of the 2003 Order) an employee must set out the grievance in writing and send it to the employer. It is not necessary under the said proceedings for a grievance to be sent by an employee to a fellow employee, the subject-matter of the complaint – only to the evidence. It is not necessary under the said procedures for a grievance to be sent by an employer. The employer then requires to invite the employee to a meeting to discuss the grievance, followed by an appeal. (In light of the tribunal’s decision in this matter, it was not necessary to consider in further detail the said requirements of the statutory grievance procedures and/or the consequences of failure to comply with same.)
A grievance is defined in Regulation 2(1) of the 2004 Regulations as:-
“A complaint by an employee about action which his employer has taken or is contemplating taking in relation to him.”
This definition has been the subject of much case law. In the case of Canary Wharf Management Ltd v Edebi [2006] IRLR 416, Elias P stated:-
“ ... it seems to me that the objectives of the statute can fairly be met if the employer, on a fair reading of the statement and having regard to the particular context in which its is made, can be expected to appreciate that the relevant complaint is being raised ... if the statement cannot in context be read in a non-technical and unsophisticated way as raising the grievance which is the subject-matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interests of justice which can be invoked to save it.”
Under Article 19 of the 2003 Order, it is provided:-
“(2) An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –
(a) it concerns a matter in relation to which the requirement in Paragraph 6 or 9 of Schedule 1 has been complied with; and
(b) the requirement has not been complied with.
(3) An employee shall not present a complaint to an industrial tribunal, under a jurisdiction to which this Article applies if –
(a) it concerns a matter in relation to which the requirement in Paragraph 6 or 9 of Schedule 1 has been complied with; and
(b) less than 28 days have passed since the day on which the requirement was complied with.
(4) an employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if –
(a) it concerns a matter in relation to which the requirement in Paragraph 6 or 9 of Schedule 1 has been complied with; and
(b) the date on which the requirement was complied with was more than one month after the end of the original time-limit for making the complaint. [tribunal’s emphasis]
(6) An industrial tribunal shall be prevented from considering a complaint presented in breach of Paragraphs (2) to (4) but only if –
(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings; or
(b) the tribunal is satisfied of the breach, as a result of his employer raising the issue of compliance with those provisions in accordance with Regulations under Article 9 of the Industrial Tribunals Order (Industrial Tribunal Procedure Regulations).”
4.10 In this matter, as set out in Paragraph 1.2 of this decision, an issue which required to be determined by this tribunal related to whether a statutory grievance had been lodged by the claimant within the relevant time-limits. Under the statutory grievance procedures, the time-limit is extended, where the grievance procedures apply, pursuant to Regulation 15 of the 2004 Regulations, Unfortunately there have been difficulties in interpretation of Regulation 15. Regulation 15(1) of the 2004 Regulations provides:-
“The normal time-limit for presenting the complaint is extended for a period of three months beginning with the day after [tribunal’s emphasis] the day on which it would otherwise have expired.”
Where the circumstances specified in Paragraph 3 apply:-
“(3) The circumstances referred to ... are that the employee presents a complaint to the tribunal –
(a) within the normal time-limit for presenting the complaint but in circumstances in which Article 19(2) or (3) ... of the Order of 2003 does not permit him to do so; or
(b) after the expiry of the normal time-limit for presenting the complaint, having complied with Paragraph 6 or 9 in Schedule 1 in relation to his grievance within that normal time-limit.”
4.11 Firstly, neither of the above circumstances deals with the scenario envisaged by Article 19(4) of the 2003 Order. Secondly, in Regulation 15 reference is made to ‘the normal time-limit’, whereas Article 19(4) refers to ‘the original time-limit’.
In addition, there is a further complication in that Regulation 15(5) of the 2004 Regulations, when defining normal time-limit states that the normal time-limit to be extended does not include, for this purpose, any extension of time that the tribunal might in its discretion grant under the ‘just and equitable’ basis – such as found, as set out previously, in Article 76 of the 1976 Order.
4.12 Thus the effect of the above provisions seemed to be to provide a final cut-off point under Article 19(4) of the 2003 Order – with the result a right to raise a grievance and therefore also to present a complaint to the tribunal, might be lost.
However in Spillet v Tesco Stores Ltd/BUPA Care Homes (BNH) Ltd v McCann [2006] ICR 643, the Employment Appeal Tribunal held that ‘original time-limit; in [Article 19(4)] had a different meaning from normal time-limit in [Regulation 15(1) of the 2004 Regulations] (the Great Britain provisions are in similar terms to those in Northern Ireland). It held that the original time-limit in Article 19(4) is inclusive of any extension of time granted by the tribunal in its discretion under normal principles (eg just and equitable). In contrast, the three month extension of time under Regulation 15(5) runs only from the end of the ‘normal time-limit’, being the primary limitation period exclusive of any extension of time granted under the tribunal’s discretion. Although the BUPA decision makes clear the time period, within which an employee must comply with the Step 1 grievance in writing, Article 19(4) of the 2003 Order does not deal with the time period within which an employee must then present his claim to the tribunal. Regulation 15 of the 2004 Regulations does not refer to Article 19(4) at all and Regulation 15(1)(b) of the 2004 Regulations only operates to extend time in the two cases referred to set out in Regulation 15(3)(a) and (b) of the 2004 Regulations.
This is a further example of the unsatisfactory nature of the statutory grievance procedures and the legislation under which they were introduced.
However, taking into account the foregoing, the tribunal concluded that if an employee has complied with Step 1, by making the grievance to the employer in writing, at the latest within one month of the expiry of the original time-limit, and after applying the BUPA case, Article 76 of the 1976 Order and the provisions of the 2003 Order, a tribunal can still consider a claim at any point after the 28 day period if, in all the circumstances, the tribunal considers it just and equitable to do so.
5.1 In light of the findings of fact made by the tribunal, and in accordance with the legal authorities referred to in Paragraph 4 of this decision, the tribunal reached the following conclusions in relation to the claims made by the claimant.
5.2 The claimant, prior to the e-mail sent to the college on 9 April 2008, had not referred in any complaint to the college that she was making any claim of sex discrimination and/or sexual harassment on the part of Mr McCurley. In particular, in her formal written complaint to the college under the college’s Dignity at Work Policy, dated 21 January 2008 the claimant at no time stated that the actions of Mr McCurley were related to her sex. The tribunal was prepared to accept that, reading the complaint under the said policy in a non-technical and unsophisticated way, the college in the above circumstances could not have been expected to appreciate that a complaint of sex discrimination and/or sexual harassment was being made by the claimant (see Canary Wharf Management Ltd v Edebi [2006] IRLR 416). Indeed, the investigation panel, upon receipt of the said complaint and after its interview with the claimant did not do so. Thus no grievance, for the purposes of the statutory grievance procedures, was presented to the college, the claimant’s employer, prior to the e-mail of 9 April 2008. The respondents did not dispute the e-mail of 9 April 2008 was a valid grievance for the purposes of the said statutory grievance procedures.
5.3 The claimant’s complaints of sex discrimination and/or sexual harassment against the respondents related, in particular, to the events from 4 December 2007 to 10 December 2007. For the purposes of determining whether the claims of the claimant had been presented in time the tribunal had to consider, pursuant to Article 76(6) of the 1976 Order whether these were ‘acts extending over a period’, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed. In the case of Hendricks v Commissioner for Police for the Metropolis [2003[ IRLR 96 it was held the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The tribunal was satisfied that there was sufficient linkage between the said events. They were not a succession of unconnected/isolated acts and that they were therefore acts extending over a period. Thus, for the purposes of the calculation of the three month time-limit for presentation of the claim pursuant to Article 76(1) of the 1976 Order the date of the last relevant act was 10 December 2007.
5.4 The claimant’s claim was not presented to the tribunal until 6 June 2008 and was therefore out of time pursuant to Article 76(1) of the 1976 Order unless time was able to be extended, pursuant to Article 76(5) on just and equitable grounds. Before making her complaint again Mr McCurley, a fellow employee, the complaint did not have to comply with the statutory grievance procedures by sending a valid grievance to Mr McCurley. Thus, it was necessary for the tribunal to firstly consider whether time should be extended in relation to the claimant’s claim against Mr McCurley.
A tribunal has a very wide discretion, whether or not it is just and equitable to extend time. In the exercise of the said discretion the tribunal had regard to the guidance of the Employment Appeal Tribunal in British Coal Corporation v Keeble [1997] IRLR 336 as approved in the Court of Appeal decision in the case of London Borough of Southwark v Afolabi [2003] IRLR 220. It also had regard to the decision of the Court of Appeal in the case of Robertson v Bexley Community Service [2003] IRLR 434 where it was stated:-
“An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However, time-limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds, there is no presumption that they should do so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule.”
The decision in Robertson has been recently endorsed by the Court of Appeal in England and Wales in the case of DCA v Jones [2008] IRLR 128 and in the recent Employment Appeal Tribunal decision of Chief Constable of Lincolnshire Police v Carston [2009] UKEAT/0530/08.
There was no doubt the claimant had promptly brought on 21 January 2008 her formal complaint to the college in relation to the actions of Mr McCurley in December 2007, albeit she had not suggested at that time the complaint related to sex discrimination and/or sexual harassment. It is also correct to note that, even before the said formal complaint, the claimant had complained to the college authorities about the said actions of Mr McCurley. When by her e-mail on 9 April 2008 the claimant did raise the complaint of sex discrimination and/or sexual harassment she did not rely upon any new facts to add to the factual matrix, which was already the subject of investigation by the investigation panel, following her complaint of 21 January 2008. The panel did not consider, following receipt of the said e-mail there was anything further to be investigated or that it required any further meetings with the claimant and/or Mr McCurley on those specific matters in order to reach its conclusions and finalise the report. The tribunal was satisfied the cogency of the evidence was not affected by the delay. Further there was no evidence of prejudice to the college or Mr McCurley by the delay in the presentation of the claim to the tribunal until 6 June 2008. The claimant did have a meeting with the Equality Commission, albeit initially to consider the delay in completion of the report by the investigatory panel. It resulted in the e-mail of 9 April 2008, some two days after the meeting. The tribunal had considerable sympathy for the confusion in the mind of the claimant, an unrepresented person, about the relevant time-limits to present a claim, even after the limited advice she had received from the Equality Commission (see further Paragraph 3.27 of this decision); but at all times was satisfied that she was not deliberately neglecting to present her claim and no prejudice resulted from any such delay.
In these circumstances, the tribunal came to the conclusion, notwithstanding the strict nature of the time-limits, that the time to present a claim should be extended to 6 June 2008 (the date of actual presentation) for the presentation of the claimant’s claim against Mr McCurley on just and equitable grounds (see also the Ruling of the Tribunal, where the tribunal allowed the amendment of the claimant’s claim in the absence of prejudice).
5.5 In relation to the claimant’s claim against the college, there is the added complication of the application of the statutory grievance procedures. As set out previously, the claimant did not present a statutory grievance to the college until the e-mail of 9 April 2008. This was within one month of the expiry of the original three month time-limit, as set out in Article 76 of the 1976 Order (see further Article 19(4) of the 2003 Order set out in Paragraph 4.9 of this decision). In addition, following the said grievance, the claimant did not present her claim against the college until after the 28 day period required under the statutory grievance procedure. In these circumstances (see further Paragraph 4.12 of this decision) the tribunal concluded it was entitled, if it considered it was appropriate to do so, to extend the time on just and equitable grounds, pursuant to Article 76 of the 1976 Order, to 6 June 2008 (the date of actual presentation) for the presentation of the claimant’s claim against the college. The tribunal considered the reasons set out above, in relation to the extension of time for the presentation of the claimant’s claim against Mr McCurley, also applied to its consideration of whether to extend time in relation to the claimant’s claim against the college. Indeed, the tribunal considered it would be most unjust to the college, if the claim against Mr McCurley was allowed to proceed in circumstances where the claim against the college was prevented from proceeding, by reason of the undoubted complications and technical difficulties caused by the terms of the relevant statutory provisions contained in the 2003 Order and the 2004 Regulations.
5.6 In accordance with the two-stage test and guidance set out in the case of Igen v Wong and the legal authorities referred to, in particular, in Paragraph 4.4 of this decision it was firstly necessary fro the tribunal to determine whether the claimant had established facts from which the tribunal could [tribunal’s emphasis] conclude, in the absence of an adequate explanation, that the respondent had committed an act of sex discrimination and/or sexual harassment against the claimant. However, in carrying out this exercise, the tribunal had particular regard to the dicta of Mummery LJ in Madarassy v Nomura International PLC [2007] ICR 867 where he stated there requires to be something more than a mere difference in treatment and in [sex] to pass the first stage hurdle in relation to sex discrimination claims. Further in Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Court of Appeal confirmed the necessity to have particular regard to the ‘reason why issue’ in determining whether a claimant had been unlawfully discriminated against; but also that it was not obligatory for a tribunal to go through the formal steps set out in Igen in each case. The question of less favourable treatment and the reason why question are, in essence, two sides of the same coin (see Ladele v London Borough of Islington [2009] ICR 387 Paragraphs 30 – 39). The answer to the reason why issue, in the tribunal’s judgment, was of similar relevance in a claim of sexual harassment. As was emphasised in the case of Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865 unfairness is not in itself sufficient to establish discrimination or, in the tribunal’s judgment, sufficient to establish harassment. The fact that some of Mr McCurley’s actions, as found by the tribunal, were open to criticism was not sufficient to establish the claimant’s claims. The tribunal was concerned that these distinctions were not always or appreciated or understood by the claimant.
5.7 In essence, in light of the findings of fact made by the tribunal there were three particular incidents the subject-matter of the claimant’s claim of sex discrimination and/or sexual harassment which can be summarised as:-
(1) Mr McCurley’s visit to the flat of the claimant on the evening of 6 December 2007;
(2) the meeting in the halls foyer/reception area between the claimant and Mr McCurley on 7 December 2007; and
(3) the Halls Tutor meeting on 10 December 2007.
5.8 In relation to the visit of Mr McCurley to the claimant’s flat on the evening of 6 December 2007, the tribunal found that not only had the claimant tried to visit the claimant’s flat but also the flat of Mr Moore, the other Halls Tutor, who was complaining about student misbehaviour and Mr McCurley’s response to same. Thus, there was no less favourable treatment on the part of Mr McCurley. Further, the tribunal was satisfied that the reason for his visit was a genuine attempt on his part to have an early opportunity, following his meeting with Ms Watson, to speak with the claimant (but also Mr Moore) and that he had knocked on her door/rung her doorbell sufficiently hard and vigorously to draw the claimant’s attention to his presence, if she was in the flat and had not heard the bell; especially when he believed she might have been in the flat, given the visible light. The tribunal accepts that, given his anxiety to speak to the claimant, Mr McCurley may have knocked on the door/rung the bell for longer and harder than he accepted and indeed there may have been an element of frustration and annoyance. However it does not accept, in light of the foregoing, the reason for his actions had anything to do with the sex of the claimant. The tribunal therefore concluded that the claimant had not established a claim of sex discrimination in relation to the said visit by Mr McCurley to the claimant’s flat.
In relation to the claimant’s claim of sexual harassment, in circumstances where the tribunal concluded that the knocking on the door/ringing of the bell was exaggerated by the claimant, the tribunal did not consider that Mr McCurley’s conduct, albeit unwanted by the claimant, was done for the purpose or effect of violating the claimant’s dignity or creating an adverse environment for her. Further, he had a proper reason for visiting her flat that evening, following his meeting with Ms Watson. As set out above, his actions at the flat were a genuine attempt by him to draw attention to his presence, if she had not heard the bell. Crucially, the reason for his actions, as set out above, were not related to the claimant’s sex. Thus, the tribunal also concluded the claimant had not established she had been sexually harassed by Mr McCurley, when he visited the flat.
5.9 In relation to the meeting between Mr McCurley and the claimant on 7 December 2007 in the halls foyer/reception area, it has to be noted it was a chance meeting. It had not been arranged. The tribunal was also satisfied that, if Mr Moore had also been in the area, when Mr McCurley had emerged from his lunch, Mr McCurley would have been equally anxious to speak to him and would have done so in a similar way to the way he approached the claimant. What would have subsequently transpired would have depended upon whether Mr Moore would have spoken to Mr McCurley about the complaints or would have refused to do so in the same way as the claimant. This is a matter of speculation. Although the tribunal accepts Mr McCurley’s actions during the course of this meeting are open to criticism and there undoubtedly was a heated discussion between them, crucially the tribunal does not accept that the reason for his actions were to do with the claimant’s sex; but arose out of his frustration and anger because of the claimant’s refusal to engage in any discussion with him about matters which, he believed, she had taken ‘over his head’ to Ms Watson, and which he had been required by Ms Watson to investigate and to be the subject of an urgent report. The tribunal is satisfied this discussion, albeit heated, was a two-way discussion and rejected the claimant’s colourful and exaggerated description of what had happened. If further rejected that Mr McCurley, during the course of this discussion, made any improper threat in relation to either the claimant personally or in relation to entering her flat. Clearly the actions of Mr McCurley were unwanted. Although the tribunal does not accept the claimant’s description of what took place, which it found to be exaggerated, it did consider that his actions could be the subject of criticism and could, in the circumstances, have raised issues whether they were done for the purpose or effect of violating the claimant’s dignity or creating an adverse environment for her, for the purposes of her sexual harassment claim. However, in view of the tribunal’s conclusion, as set out above, that the actions of Mr McCurley did not relate to her sex, it was not necessary to consider this issue further.
The tribunal therefore concluded the claimant had not established she had been sexually discriminated against and/or sexually harassed during the discussion in the halls foyer/reception area on 7 December 2007.
5.10 In relation to the Halls Tutor meeting on 10 December 2007, no issue of less favourable treatment arose. Mr McCurley’s reference, to whether the claimant had a facial tic, was made arising out of her behaviour during the meeting. None of the other Halls Tutor, including Mr Moore, had behaved in the same way. Mr McCurley had discussed with Mr Moore the contents of his e-mails, and in a way which clearly the claimant did not agree with. However she was not part of that discussion and none of Mr McCurley’s remarks in relation to the contents of the e-mails were directed at her. In any event, the tribunal is satisfied that Mr McCurley’s reference to whether the claimant had a facial tic had nothing to do with the claimant’s sex but was solely due to her inappropriate body/facial language during the meeting. She had continued this behaviour, despite Mr McCurley’s initial challenge, and it was clearly designed to not only disrupt the discussion but also goad Mr McCurley, whom she knew had a quick temper. It was an unfortunate remark, which Mr McCurley subsequently regretted making. By her actions, the claimant had created the environment in which the remark was made. In the circumstances, the tribunal did not accept that Mr McCurley had intended to violate her dignity or create an adverse environment for her. Although it was an unfortunate remark, it was not, in the circumstances, a remark which gave rise to legal liability (see Richmond Pharmacology case and, in particular, Paragraph 22 of the judgment).
In the circumstances, the tribunal concluded that the claimant had not established that she had been sexually discriminated and/or sexually harassed at the Halls Tutors meeting on 10 December 2007.
6. The claimant therefore was not unlawfully discriminated against on the grounds of her sex and/or sexually harassed; and the claims of the claimant against the respondents must be dismissed.
Chairman:
Date and place of hearing: 9 - 11 February 2009;
17 – 20 February 2009;
23 – 27 February 2009;
2 March 2009; and
4 March 2009
Belfast
Date decision recorded in register and issued to parties:
THE INDUSTRIAL TRIBUNALS ‘A’
CASE REF: 817/08
CLAIMANT: Catherine Dunne
RESPONDENTS: 1. Michael McCurley
2. Stranmillis College
RULING
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr N Wilkinson
Mrs M Gregg
Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Mr J Dunlop, Barrister-at-Law, instructed by Carson McDowell, Solicitors.
Ruling of the Tribunal
1. Before commencing to give her evidence, the claimant made an application, pursuant to Rule 27(4) of the Industrial Tribunals Rules of Procedure 2005, contained in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’) which states as follows:-
“27(4) The tribunal may exclude from the hearing under Rule 26 any person who is to appear as a witness in the proceedings until such times as they give evidence if it considers it is in the interests of justice to do so.”
2. I am not aware of any legal authority, either in this jurisdiction or in Great Britain, where this particular Rule has been the subject of legal interpretation. In interpreting any Rule and/or exercising any power given under any Rule, under the Rules of Procedure, the tribunal is required to seek to give effect to the terms of the overriding objective set out in Regulation 3 of the said Regulations. Under the terms of the overriding objective, the tribunal is required to deal with cases justly and dealing with a case justly includes, so far as practicable:-
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
The tribunal was satisfied that, in exercising its powers under Rule 27(4) of the Rules of Procedure, that the tribunal had a wide discretion. In considering the exercise of its discretion under the said Rules, the tribunal also had regard to Rule 14(2)(3), Rule 16, Rule 26(3) and Rule 59 of the Rules of Procedure.
Under Rule 59(1) it is provided that:-
“Subject to the provisions of these Rules and any Practice Direction, a tribunal or chairman may regulate its or his own procedure.”
Under Rule 26(3) any hearing of a claim under this Rule shall take place in public, subject to Rule 16. Rule 16 provides for the conduct of a hearing in private in specific circumstances, as set out in the said rule. The claimant, in making her application, made clear that she was not seeking to exclude members of the public from the hearing, nor was she seeking to make an application under Rule 16 of the Rules of Procedure.
Under Rule 14(2) it is provided:-
“So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts.”
Under Rule 14(3) it is provided:-
“A chairman or tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such a manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings.”
3. Prior to the commencement of the Rules of Procedure in April 2005, there was no specific provision in the Rules of Procedure for the exclusion of witnesses, as now provided for as set out in Rule 27(4). It is apparent from the Rules of Procedure that, subject to the exceptions referred to above, that a substantive hearing will normally be held in public. In Blackstones Employment Law Practice 2008 (Paragraph 9.118) it is stated:-
“In practice this power (ie Rule 27(4)) is rarely exercised in tribunals in England and Wales.”
In Employment Court Practice 2008 (Paragraph 4 – 223) it is stated:-
“This power was usually the practice in Scotland prior to the 2004 Rules. It is now a power given to all tribunals. At present there is no evidence to indicate that it is a power that has been grasped by tribunals in England and Wales. It does, however, indicate there is now a presumption in Scotland that witnesses would not be excluded unless the tribunal exercises its discretion under Rule 27(4).”
The need for cases to be heard in public flows from the common law principle that:-
“Justice should not only be done but should be manifestly and actually seen to be done”;
and also from Article 6 of the European Convention on Human Rights, now incorporated into UK law under the Human Rights Act 1998. Indeed, in the Northern Ireland Courts, when dealing with civil matters, the normal practice is that witnesses are not excluded, save upon application by a party in a particular case; and such applications are rarely be made and/or granted. In contrast, the tribunal understands that, in criminal cases in Northern Ireland, such applications may be more frequent, given the particular nature of such proceedings. This contrasts with the situation in Scotland, where the tribunal understands the normal Rule, in civil and criminal matters, would be for exclusion of witnesses before they give their evidence.
4. The claimant, in making her application under Rule 27(4) of the Rules of Procedure referred to the fact that the claim, which is a claim under the Sex Discrimination (Northern Ireland) Order 1976, as amended, touches upon very sensitive issues and that witnesses, who have been required to be called in this matter, would not in many cases have been aware of the particular matters/facts, the subject-matter of her claim. In this context, she referred to the Human Rights Act and her right to a private life under Article 8 of the European Convention, referred to above. She submitted that this situation was compounded by the fact that she was continuing to live and work in Stranmillis College and was therefore required to continue to work with and to meet many of the witnesses, who are likely to be called in this case. She also referred to the fact that she was not represented and was required to conduct this case on her own, in a situation where the witnesses to all these matters would be present. She also expressed some concern about the fact that witnesses, who had not yet been called to give evidence, would hear and be aware of any cross-examination she conducted of the respondents’ witnesses and the answers that had been given by them. Mr Dunlop, on behalf of the respondents, objected to the claimant’s application referring, in particular, to the normal practice in this jurisdiction, in tribunal matters, that it is a public hearing and witnesses are not generally excluded. He also submitted that the matters raised by the claimant could be raised by any person in these tribunals, including unrepresented parties, and there was nothing on the facts of this case, albeit they include allegations of sexual harassment, that made it necessary for witnesses to be excluded, as sought by the claimant. Indeed, he suggested that if the claimant was successful in her application, then any party could make such an application in the future. He also noted that, in this case, there had been, in accordance with the tribunal’s case management orders, exchange of witness statements by both parties and therefore both parties were aware of the allegations made by the claimant and her witnesses and the response made by the respondents and their witnesses.
5. Having considered the submissions made by both parties, the tribunal concluded that, in the exercise of its discretion, it should not exercise its powers under Rule 27(4) and exclude any witness until they give evidence. It did not consider that the claimant had shown that it was in the interests of justice to do so. Firstly, the tribunal was very conscious that a hearing should be heard in public, unless one of the exceptions, as set out in the Rules, could be established, and that the general practice in this jurisdiction, unlike in Scotland, was not to exclude witnesses. The tribunal considered very carefully the submissions made by the claimant and came to the conclusion that the claimant’s fears were unfounded. Firstly, the tribunal did not consider that the particular allegations made by the claimant, albeit serious, justified the tribunal, in the absence of anything more, taking the action of excluding witnesses. The tribunal has no doubt that appearances by any person in the tribunal, whether as a claimant or a respondent, whether represented or not, and/or as a witness can be stressful. The grounds for the claimant’s application could be made by any claimant and there was nothing, in the judgment of the tribunal, to bring the case of the claimant outside the normal practice of the tribunal not to exclude witnesses. In addition, witness statements had been ordered in this matter; and it was therefore inevitable that, in preparation of witness statements, the case made by the claimant would require to be considered by all witnesses called to give evidence by the respondents.
Under Article 8 of the European Convention it is provided:-
“(1) Everyone shall have the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the prevention of health or morals, for the protection for the rights and freedoms of others.”
As made clear in the case of De Keyser Limited v Wilson [2001] IRLR 324 the right to respect for private life is qualified by the right for both parties to have a just trial of the issues between them; and it has to be borne in mind that it was the claimant who invoked the right to such a trial by bringing the claim.
The tribunal at all times is fully aware that the claimant is not represented and is appearing on her own. In this context, the tribunal has had particular regard to the terms of the overriding objective and, in particular, the provision relating to ‘ensuring that the parties are on an equal footing’ and dealing with the case in ways which are proportionate to the complexity or importance of the issues’. The tribunal will continue to do so; but does not consider that it is necessary, in order to do so, for it to grant the claimant’s application to exclude witnesses, in the interests of justice, pursuant to Rule 27(4) of the Rules of Procedure. In order for the tribunal to have exercised its power to exclude witnesses, something more would require to have been shown by the claimant than merely the difficulties/concerns faced by any person appearing in a tribunal case, involving allegations of sexual discrimination and/or sexual harassment.
The tribunal therefore refused the claimant’s application.
6. On 6 June 2008, the claimant presented a claim to the tribunal. There is no doubt that the claimant brought a claim pursuant to the Sex Discrimination (Northern Ireland) Order 1976, as amended (‘the 1976 Order’). Attached to the claim form was a detailed statement relating to the details of her claim. At a Case Management Discussion on 25 September 2008, to which the claimant appeared in person, the Chairman identified the legal and factual issues as agreed between the parties. In relation to the said issues, it is apparent that the claimant has made, inter alia, a claim of sexual harassment pursuant to Article 3 of the 1976 Order on the grounds that she had been less favourably treated. Mr Dunlop, properly, accepted that a claim of sexual harassment can be made, provided the relevant facts/comparators are established, pursuant to Article 3 of the 1976 Order. It is apparent from the Record of Proceedings of that hearing, dated 26 September 2008, that no consideration appears to have been given by either party to whether or not the claimant was making a claim of sexual harassment, pursuant to Article 6A of the 1976 Order – which provision had been inserted into the 1976 Order in Regulation 6 of the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005. Article 6A has been further amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’). The 2008 Regulations provide that the said Regulations came into operation on 6 April 2008 and in Regulation 1 states that the Interpretation Act (Northern Ireland) 1954 applies to these Regulations as it applies to an Act of the Assembly. There is no specific provision, in relation to this amendment of Article 6A, providing for the amendment applying other than from 6 April 2008. In the circumstances, the tribunal concluded that, given that the matters, the subject-matter of this claim, occurred prior to 6 April 2008 that the tribunal should have regard to Article 6A, as set out in the 2005 Regulations.
It is unfortunate that the issue of whether or not Article 6A of the 1976 Order was relevant to these proceedings was not considered at an earlier stage and, in particular, prior to the commencement of these proceedings. However, having considered the claimant’s statement attached to her claim form, and the contents of the claimant’s witness statement, the tribunal considered that it was appropriate, having regard to the terms of the overriding objective and, in particular, that the claimant was unrepresented, to clarify this issue before the proceedings commenced, and, in particular, the parties and their witnesses were called to give evidence. Regardless of the foregoing, it became apparent that, in the week prior to the commencement of these proceedings, the claimant had the benefit of advice from a senior counsel, acting under the Bar Council Pro Bono Scheme. Arising from that advice, the claimant, at a meeting with the respondents’ representatives in the week prior to the commencement of these proceedings, having looked at the terms of the 1976 Order, as amended, raised the issue of the application of Article 6A to the claims which she was making in this matter. Indeed, it appears that the claimant was unsure whether or not she was in a position, at this stage, to raise the application of Article 6A to her claim. It was apparent that, having considered the terms of Article 6A, she believed that Article 6A also applied to the claims that she was making to the tribunal, as an alternative to the claim made under Article 3. There was no reference to Article 6A in the claimant’s claim form and indeed, as set out above, it appears that this issue was not raised between the parties at any time prior to the said meeting. The tribunal concluded that, in the circumstances, if the claimant wished to rely on Article 6A of the 1976 Order, as amended, then in order for her to be able to do so there required to be an application for an amendment of her claim. The claimant indicated that she wished to make such an application for leave to amend her claim to include a claim pursuant to Article 6A of the 1976 Order, as amended. She was making this claim as an alternative to the claim already made to the tribunal.
The claimant made it clear that, in making this application, she was not seeking to rely on any new facts and the facts of her claim remained, as set out in her claim form and also contained in her said witness statement, which was before the tribunal.
7. Mr Dunlop indicated that he was not consenting to the claimant’s application; but neither was he objecting, save as set out below.
8. There was no dispute between the parties that the application of the claimant for leave to amend her claim fell within the second category of amendments, as set out in Harvey on Industrial Relations and Employment Law Volume 5 Section T Paragraph 311.03, namely:-
“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.”
The tribunal was satisfied that this approach by the parties was correct and that Article 6A of the 1976 Order, as amended, raised such a new cause of action.
The tribunal has a general discretion under Rules 10(1), 10(2)(q), 59 of the Rules of Procedure to grant leave to amend a claimant’s claim form.
In relation to Category 2, as set out in Harvey:-
“The tribunals and courts have always shown a willingness to permit a claimant to amend to an alleged different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new ‘label’ on the facts already pleaded.”
Further (see Paragraph 312.02):-
“The position is therefore that if the new claim arises out of facts have been pleaded in relation to the original claim, the proposed amendment will not be subjected to scrutiny in respect of the time-limits, but will be considered under the general principles applicable to amendment, as summarised in Selkent.”
This is a reference to the leading authority in relation to the amendments of claim, namely the decision of the Employment Appeal Tribunal in the case of Selkent Bus Company Ltd v Moore [1986] ICR 836 (Mummery J – as he then was – presiding). The relevant part of the judgment set out at Pages 843F – 844C:-
“Whenever the decision to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:-
(a) the nature of the amendment –
the application to amend are of many different kinds, ranging on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the additional substitutions of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action;
(b) the applicability of time-limits –
if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, if the time-limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, Section 67 of the 1978 Act;
(c) the timing and manner of the application –
an application should not be refused solely because there has been a delay in making it. There are no time-limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is however a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed in discovery. Whenever taking any factors into account, the paramount considerations are the relevant injustice and hardship involved in refusing or granting an amendment. Questions of delay, the result of adjournments, and additional costs, particularly if they are likely to be recovered by the unsuccessful party, are relevant in reaching a decision.”
As set out above, it was not necessary for the tribunal to consider the issues of time in relation to this application for leave to amend, other than as set out below. Crucially, the claimant is not relying on any additional facts and therefore the tribunal was satisfied the respondents, subject to what is set out below, would not be prejudiced by the said amendment. Clearly, as indicated above, it would have been more satisfactory if this application had been brought at an earlier stage. However, the tribunal is satisfied that the claimant, as an unrepresented person, was not aware, prior to obtaining advice from senior counsel and her meeting with the respondents, that her claim of sexual harassment could fall within Article 3 of the 1976 Order but also, in the alternative, under Article 6A. Subject to the appropriate safeguards, the tribunal was satisfied that, in the exercise of its discretion, it should allow the claimant leave to amend her claim. In particular, it took the view that to refuse the application would result in considerable injustice and hardship to the claimant, in circumstances where the respondents would be in a position, subject to the said safeguards, to deal with the amended claim during the course of this hearing.
9. The tribunal therefore granted leave to the claimant to amend her claim to include a claim of sexual harassment, pursuant to the provisions of Article 6A of the Sex Discrimination (Northern Ireland) Order 1976, as amended. Her claim is therefore so amended.
However, for the avoidance of any doubt, the tribunal made clear that the said amendment was an amendment of her claim form, which she had presented, as set out above; and that the respondents were entitled, if they wished to do so, to rely on their defence of the amended claim on the issues already raised by them in relation to the claimant’s form in its unamended form, as set out in Paragraphs 5, 6, 7 and 8 of the Record of Proceedings dated 26 September 2008, relating to issues of statutory time-limits and/or application of the statutory grievance procedures. Having amended the claimant’s claim, as set out above, the tribunal gave leave to the respondents to amend their response form, if they considered it necessary and appropriate in light of the claimant’s said amendment of her claim form. Any such amendment to the respondents’ response form must be notified to the tribunal and the claimant on or before the resumption of this matter on 17 February 2009. Mr Dunlop indicated, in any event, that the respondents would be denying the claimant’s claim pursuant to Article 6A of the 1976 Order, as amended, and would also be relying, in relation to the said amendment, on the issues raised in Paragraphs 5 – 8 of the Record of Proceedings dated 26 September 2008. He wished to consider the respondents’ response form to see whether, in the circumstances, it was necessary for any formal amendment to be made to the response form to formally raise such issues and/or any other issues which may require to be included.
In addition, Mr Dunlop in objecting to the said amendment submitted that, if the tribunal was minded to grant the said amendment, that he should be given an opportunity to issue a Notice for Additional Information in relation to the application of Article 6A of the 1976 Order, as amended, to the various facts of the claimant’s claim. The tribunal considered that, in allowing the amendment, as set out above, in the exercise of its discretion, the respondents should be allowed to issue such a Notice and the claimant should be given the time to answer any such Notice, before the case resumed. The respondents’ representative presented to the claimant a Notice for Additional Information dated 11 February 2009 and it was agreed by the claimant that she would answer the said Notice by on or before 4.30 pm on 16 February 2009. In the circumstances, it was not necessary for the tribunal to make any Order. The tribunal, in permitting the respondents to issue such a Notice, and to require the claimant to reply to the said Notice, is aware that, if this amended claim had been made at an earlier stage, then such a Notice would have been issued, by the respondents; and that they should not be prejudiced by the fact that the amendment has arisen at the commencement of the substantive hearing of this matter. In the circumstances, the tribunal was satisfied that there was sufficient time for the claimant, albeit unrepresented, to reply to the said Notice and, to seek, if she required to do so, any further assistance or advice. Indeed she did not raise any objection to providing a reply within the period of time, referred to above.
If any issues arise out of the foregoing, then the tribunal will consider them at the commencement of the substantive hearing on 17 February 2009.
10. The tribunal made clear to the parties, in making its Ruling and the reasons for same, as set out above, that it had not determined any issue in the matter; and anything set out in this Ruling could not be taken by any party as indicative of any determination by the tribunal of any issue relating to the claimant’s claim against the respondents.
The tribunal, having heard submissions by both representatives in relation to both applications, and having retired to consider its Ruling, announced its specific Ruling and relevant orders/directions to each application at that time; but indicated that it would set out, in writing, in more detail, its reasons for its said Ruling, which will be attached, in due course, to any decision given in this matter.
Chairman:
Date: 12th February 2009