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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Farhan- Alanie v Northern Health and Social Car... [2010] NIIT 04130_09IT (13 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/04130_09IT.html
Cite as: [2010] NIIT 4130_9IT, [2010] NIIT 04130_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 4130/09
CLAIMANT: Mazin Hussien Farhan-Alanie
RESPONDENT: Northern Health and Social CareTrust
DECISION
The unanimous decision of the tribunal is that it has jurisdiction to entertain the claimant’s complaint but that the claimant was not subjected to unlawful discrimination on the grounds of his age, sex or race contrary to the provisions of the Employment Equality (Age) Regulations (Northern Ireland) 2006 and the Sex Discrimination (Northern Ireland) Order 1976 as amended and the Race Relations (Northern Ireland) Order 1997 as amended.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Mr R Gunn
Ms G Ferguson
Appearances:
The claimant attended the hearing and represented himself.
The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by the Regional Business Services Organisation.
Issues
1. The issues to be determined by the tribunal were:
a. Whether the claimant presented his complaint of unlawful discrimination on the grounds of his age, sex and race to the Office of the Industrial Tribunal and the Fair Employment Tribunal before the end of the period of three months beginning with the Act of Discrimination complained of and, if not;
b. Whether it is just and equitable for the tribunal to extend the time for presenting the claim, and if so;
c. Whether the claimant was treated less favourably in the arrangements made by the respondent to fill the position of locum consultant surgeon from 4 February 2009, on any of the prohibited grounds of race, sex or age.
The tribunal determined at the outset with the agreement of the parties that it was in the interest of justice that the tribunal should not deal with the time limit issues in isolation as a preliminary point but should hear the entire evidence in the case before reaching its conclusions.
Evidence
2. The tribunal heard the oral evidence of the claimant, Mr Mazin Hussien Farhan-Alanie and witnesses for the respondent, Mrs Linda Millar, General Manager of Surgery and Endoscopy and Mr Malcolm Brown, Clinical Director and Consultant Surgeon. Where there was a conflict of evidence the tribunal preferred the evidence of the respondent’s witnesses and found the claimant’s evidence, particularly in relation to his alleged financial loss to be evasive, vague and contradictory. The tribunal also took into consideration an agreed bundle of documentation and further documentation furnished by the parties during the course of the hearing.
3. The claimant’s Schedule of Loss detailing his loss of earnings was not agreed by the respondent Trust. It was explained to the claimant by the tribunal that it was necessary for him to provide vouching documentation in order to prove the loss of earnings claimed by him. The tribunal directed the claimant that if he wished to pursue this aspect of his claim he should provide copies of his personal bank statements together with remittance advice slips from Medacs to Medwood Limited since the termination of his contract with the respondent Trust. The tribunal also requested or directed the claimant to provide details from the Inland Revenue so that the tribunal could determine all income received by the claimant during the relevant period.
Findings of Fact
4. The tribunal made the following relevant findings of fact to be proven on a balance of probabilities:
4.1 The claimant, Mr Alanie is an Arab male of Egyptian origin and a British citizen. He is a Consultant in General Surgery. The respondent is a large healthcare trust providing a broad range of health and social care services within its catchment area.
4.2 Mrs Linda Millar is General Manager of Surgery and Endoscopy in the respondent Trust and is under a duty to ensure that surgical services are delivered within budget. Her responsibility extends over the four Trust hospitals Causeway, Antrim, Mid Ulster and Whiteabbey and also some clinics in the Moyle. She is responsible for ensuring that posts are funded within budget. In late 2007 there was a proposal to reform the surgical service within the Trust which would have entailed the closure of the In-patient Service Surgical Ward at Whiteabbey and only the day surgery in Endoscopy would remain on the Whiteabbey site. The plan was ultimately to move the three Consultant Surgeons from Whiteabbey to Antrim in order to maintain the rota. This proposal could not be implemented until ministerial approval was received from Stormont. Mr McMurray, a General and Neurology Surgeon in the Antrim Area Hospital, retired in February/March 2008. The money from his post was diverted to fund a new Urology post in the Causeway Hospital. However Mrs Millar had to recruit a locum consultant surgeon to fill the gap in the Antrim site. The cost of the locum consultant surgeon position in Antrim hospital was funded out of the budget overspend. The Trust had identified that the costs of employing Agency locums was contributing significantly to the overspend and Mrs Millar was instructed to look at locum costs and to make savings. The tribunal accepted Ms Millar’s evidence that it was significantly cheaper for the Trust to employ a locum on the Trust Terms and Conditions of Service than through an Agency.
4.3 The respondent Trust’s policy and procedures for the procurement of locum doctors is set out in a document entitled “Operational Arrangements for the Appointment and Employment of Locum Doctors dated June 2005”. This provides that long term appointments of four weeks or more should be arranged through Personnel in accordance with normal recruitment procedures. The normal recruitment procedures involve the advertisement of the vacant post. However if insufficient notice has not been received or a locum is required due to inability to recruit a substantive post-holder the procedure for short term appointments should be followed. Mrs Millar told the tribunal that patient safety considerations and the need to maintain services means that in practice the respondent Trust does not have time to advertise the posts.
4.4 The procedure for short term appointments of four weeks or less does not require the post to be advertised but permits the locum or locum agency to be contacted directly by the Trust. The policy provides that no locum will be engaged without documentary evidence of appropriate GMC registration, satisfactory health assessment and criminal records checks. Where possible all short term locums will be engaged directly by the Trust and paid at NHS rates. The policy provides that the Trust should first seek to procure locums from the Trust list established from doctors previously employed by the Trust i.e. leavers and those employed in the same speciality in another HPSS Trust. If a locum is not available from this category, then from a locum agency registered with the Trust; thereafter from locum agencies not registered with the Trust; and as a last resort a doctor currently employed by the Trust providing that new deal and EWTD controls are not breached.
4.5 Mrs Millar initially tried to recruit a locum consultant to provide cover on Trust terms and conditions of employment as this would have been a cheaper option. She was unsuccessful in this and therefore decided to recruit a locum consultant through Medacs Healthcare (“Medacs”). Medacs supplied the claimant’s CV, which was examined and approved by Mr Brown, as the relevant clinical director. Mrs Millar completed the contractual arrangements and agreed the length of the placement and the rate of payment. She signed the contract on behalf of the Trust. The locum position was not advertised and the claimant was not interviewed prior to his recruitment through Medacs.
4.6 The terms of business between the Trust and Medacs, for the supply of temporary workers, is set out in a written agreement. Clause 9 provides that Medacs is entitled to an introduction fee from the client where a worker who has been supplied to the client is engaged other than through the company within the duration of the assignment or the relevant period, either by the client (whether directly or pursuant to being supplied by another employment business/agency) or by any third party, unless (in the case solely of engagement by the client) the client gives at least seven days notice prior to the engagement of the worker requesting an extended period of hire of 26 weeks. During the extended period of hire Medacs continues to receive payment for the hours normally worked by the worker during the last assignment of the worker with the client (whether or not actually worked) at the rates specified under 6.1 “or the client may elect to pay the introduction fee”.
4.7 The claimant’s placement as an Agency locum with the respondent Trust was initially from 10 March 2008 until 20 May 2008. The period was further extended to 31 August 2008 and then until 3 February 2009. The claimant was not an employee of the respondent Trust. As an Agency locum the claimant was not entitled to receive any pay during periods of absence on sick and holiday. The respondent Trust made payment to Medacs in respect of the claimant’s services. The claimant had an arrangement whereby Medacs made payment for services provided by the claimant to a private company called Medwood Limited, of which the claimant was Managing Director. During the period 10 March 2008 until 3 February 2009 the respondent company paid Medacs a sum of £211,000.00 in respect of services provided by the claimant. There was no issue about the claimant’s ability or performance as a consultant surgeon.
4.8 The claimant was required to fill in a weekly timesheet recording the date, start and finish times of shifts, the duties carried out and the number of hours worked by him each day. The claimant contended initially to the tribunal that he was the only Agency locum who was required to fill in such a sheet and that this was an example of less favourable treatment of him by the respondent Trust on racial grounds. The claimant dismissed as irrelevant copies of weekly timesheets completed in December 2008 by another male Agency Locum Consultant, because he worked in a different department from the claimant and because the race of that person was not evident from his name. The tribunal accepted Mrs Millar’s evidence that all Agency locum staff were required to complete these timesheets as part of the process of monitoring Agency locum costs.
4.9 The claimant attended a meeting in September 2008 at the invitation of Mr Brown at which the proposals for re-organisation were discussed, including the implications for the continuation of the Agency locum post held by the claimant. During the meeting disparaging comments were made by a Senior Surgeon, about the costs of Agency workers to the Trust. The claimant told the tribunal that as he was the only Agency worker present at the meeting, he felt that the comments were directed at him personally and therefore this was an another example of racial discrimination. No complaint was raised by the claimant at the time.
4.10 In early November 2008 Mrs Millar was informed by Ms Samantha Mewha of the Directorate Office that a Dr Eatock had contacted the Trust and indicated that she would be prepared to work as a locum Consultant surgeon on Trust terms and conditions of employment. Mrs Mrs Millar discussed this with Mr Brown and on 11 November 2008 Mrs Millar wrote to Dr Eatock to offer her the post of temporary locum Consultant Surgeon at Antrim Hospital for an initial period of six months commencing on 4 February 2009. This was to enable Dr Eatock to give three months notice to her current employer. Dr Eatock was informed that she would have to produce her CV and that the offer was subject to approval by Mr Brown of her qualifications and experience. A locum medical cover request form was completed in respect of Dr Eatock on 1 December 2008. Her CV was forwarded to Mr Brown on 3 December 2008, which he approved the following day. Dr Eatock is a female Consultant Surgeon, of white European origin and married to a white European Consultant Oncologist who is also employed by the respondent Trust. She is younger than the claimant.
4.11 On 12 November 2008 Medacs confirmed with Ms Mewha that the claimant’s post would be extended until 28 February 2009. Ms Mewha sent an email to Medacs on 21 November 2009 confirming that the end date of the claimant’s contract would be 3 February 2009 not 28 February 2009. On 25 November 2008 the claimant spoke with Ms Mewha who confirmed that his contract would end at beginning of February. When the claimant asked how they would be filling the post, Ms Mewha told him that there was no funding at the present time to fund the post permanently. He enquired why he was required to fill out the weekly timesheets and was advised by Ms Mewha that this was because he had different entitlements under his contract as an Agency staff member. Ms Mewha sent an email to Ms Millar on 25 November 2008 advising her of her conversation with the claimant “in case he calls you or Mr Brown”. The claimant told the tribunal that on seeing this email he formed the view that Ms Mewha was trying to warn Mrs Millar in advance in case he raised an issue with her about his contract. He said that he found this insulting and another example of discriminatory treatment.
4.12 The claimant was aware of the intended appointment of Dr Eatock and met with Ms Millar prior to 27 November 2008 to discuss this. The claimant told Mrs Millar that the other consultants in the Department were very aggrieved at the manner in which Dr Eatock had been appointed and had concerns about her. On 27 November 2008 Ms Millar therefore wrote a letter marked “Private and Confidential” to Consultant Surgeon staff at Antrim Hospital to advise the following:
· Dr Eatock would take up post from 3 February 2009 and that her appointment was carried out through the Trust’s locum protocol;
· it would not be normal practice to seek approval of Consultant Surgeons before appointing a locum but that if this was something they felt was going to be required they could meet to discuss this;
· she requested anyone who had issues around the appointment of the locum put them in writing so that she could deal with them in a professional manner; she had written to the claimant to advise that once Dr Eatock was in post, the temporary position would be advertised and he would have the opportunity to apply for the position;
· Dr Eatock had already been offered the temporary post and had given notice and would take up the post on 4 February 2009;
· It was necessary to change matters for financial reasons because the Trust had paid the claimant £213,575.00 during the 42 weeks that he had been working for the Trust whereas Dr Eatock’s starting salary would be £73,403.00 per annum.
Ms Millar accepted that with hindsight it would have been better not to have included the personal details concerning the claimant’s remuneration however she wished to demonstrate the savings to the Trust by appointing Dr Eatock to the position. Mrs Millar did not receive any response.
4.13 Mrs Millar wrote separately to the claimant on 27 November 2008 confirming that Dr Eatock would take up the post from 3 February 2009 on a Trust contract and would be paid approximately a third of the cost that the Trust presently pays to his agency and that she was appointed through the Trust’s locum protocol. Mrs Millar stated in her letter “I appreciate your interest in this post unfortunately it is not possible to extend your contract as Ms Eatock has already given notice and we have confirmed the position with Ms Eatock”. She advised that if he was interested in the post she would arrange for the temporary position to be advertised and that he would have the opportunity to apply for the post at the Trust’s rate starting salary of £73,403.00.
4.14 The claimant sought legal advice after, he told the tribunal, he realised that Dr Eatock had been appointed to the position. A solicitor informed the claimant that he must instigate a grievance with the respondent Trust. The claimant told the tribunal that the solicitor also advised him that he may have a complaint of age discrimination.
4.15 The claimant requested a meeting with Mrs Millar on 29 December 2008. He raised with her the fact that Dr Eatock was related to someone already employed by the Trust. Mrs Millar was previously unaware of this fact. There was a discussion about the proposed reform of the Acute Surgical Services and that there would not be a need for the locum post when the three consultant surgeons were transferred to Antrim hospital. The claimant said he felt he had been discriminated against and not given an equal opportunity to apply for the position which had been offered to Dr Eatock.
4.16 Following this meeting Mrs Millar sought advice on how to proceed. On 31 December 2008 the matter was referred to Mr Flanagan, Medical Director of the respondent Trust and Mr Brown’s line manager. He suggested that they write to the claimant to confirm that they would be proceeding as per earlier correspondence and that it would be useful to include the fact that should the Trust extend his contract on NHS Terms and Conditions it would mean that the Trust would have to pay a substantial fee to his locum agency. On his advice a letter was sent to the claimant signed by Mrs Millar and Mr Brown, copied to Mr Flanagan confirming that the claimant’s contract would terminate on 3 February 2009 and that the temporary locum consultant post would be advertised in early 2009 for anyone who would wish to apply.
4.17 On 8 January 2009 the claimant sent an email to Mrs Norma Evans, the Chief Executive of the respondent Trust raising a grievance concerning the appointment of Dr Eatock who he described as “a doctor of local Irish background and connections”. He complained of the possibility of racial and sex discrimination, departure from the Trust’s equal opportunity protocol and that Dr Eatock “is the wife of another consultant that works in close association with the Trust and that this has not been declared on the application. He indicated that he was not seeking to extend his own contract through the agency and contended that the locum post should have been advertised, so that all interested parties could apply. He requested that even at that stage the post should be advertised. After some reminders from the claimant, Mrs Evans replied to the claimant on 6 March 2009 stating that at the time the senior managers involved in the appointment were of the understanding that he did not wish to be directly employed by the Trust and that it was now apparent from his recent correspondence that he would have considered a direct appointment with the Trust. She confirmed that the Trust intended to advertise the consultant surgeon post soon and he would have the opportunity of applying for the post at that time. She denied that the action taken by the Trust had been influenced by his gender or racial background and expected to hope that “this genuine understanding will not discourage you from applying for any future vacancies within the Trust”. The claimant responded by email dated 9 March 2009 enclosing Mrs Millar’s letter dated 27 November 2008 which he stated clearly shows his interest in the post. Mrs Evans wrote to the claimant on 13 March 2009 stating that it was her understanding that the claimant advised Mrs Millar of his wish to be employed by the Trust only after the offer of employment was made to Dr Eatock and that it was not possible to withdraw the offer of employment to Dr Eatock at that stage.
4.18 The claimant’s placement ceased with the respondent Trust on 3 February 2009. He continued to be registered under the auspices of Medwood Limited with Medacs and it appeared to the tribunal from documentation that he was registered with at least one other agency. He lodged his originating claim on 24 March 2009 with the Office of the Industrial Tribunal and the Fair Employment Tribunal complaining that the respondent Trust had subjected him to unlawful discrimination on grounds of race, sex and age in the arrangements made by the respondent Trust to fill a temporary locum post from 4 February 2009. The claimant claimed that the act complained of took place between the end of December 2008 and was still ongoing by 13 March 2009 as he had lodged a grievance.
4.19 By the end of August 2009, the respondent Trust had received ministerial approval for the reoranisation of surgical services and it was decided not to advertise the locum post. Instead Dr Eatock’s contract was extended at the end of August 2009 but she was given notice that it would terminate with effect from end December 2009, as there was no longer a need for a locum.
Contentions of the Parties
5. The claimant contended that he had been subjected to a continuing act of discrimination in the arrangements made to fill the position of locum consultant surgeon at Antrim Area hospital commencing from the date of the appointment of Dr Eatock until the conclusion of his grievance. Therefore his complaint to the tribunal had not been lodged out of time and in any event he had acted upon legal advice. The Trust failed to follow proper recruitment procedures in not advertising the post and in offering the position to Dr Eatock, without giving him an opportunity of applying for the post, despite being aware of his interest in the post. He disputed that by employing a locum consultant on trust terms and conditions instead of him would result in a substantial cost saving for the respondent Trust. By employing Dr Eatock on the Trust locum contract, she would have been paid less than if he had been appointed on Trust terms and conditions due to his age and seniority and that this amounted to less favourable treatment on grounds of age. All of those involved in the process leading to the appointment of Dr Eatock were white Irish European females, who deliberately set out to discriminate against him on grounds of his race, age and sex. Mrs Millar did not have authority to offer Dr Eatock the position and that Mr Brown supported these “ladies” because he was being “chivalrous”. Dr Eatock was appointed because she is a white European female Irish female who is younger than the claimant and because her husband was already employed by the respondent Trust. Derogatory remarks made by a colleague about Agency locums at the meeting in September 2008 and the requirement upon him to complete time sheets provide supporting evidence that the reason for the treatment is connected with his race, sex or age, the most important factor being his race.
6. The claimant sought compensation for loss of earnings in the region of £223,283 from 3 February 2008 until 4 January 2010, at which date he had obtained a permanent National health contract consultant post in a Scottish hospital and £20,000.00 for injury to feeling.
7. For the respondent it was contended that the claimant had presented his claim outside the three month time limit. Mr Hamill BL conceded that the the delay was such as to prejudice the ability of his witnesses to recall the events and give evidence. In relation to the substantive issues it was denied that the claimant had been discriminated against on the grounds of race, age or sex or that any of the prohibited grounds had been a factor in the decision to appoint Dr Eatock. The reason for her appointment was the cost savings to the respondent Trust as she was prepared to work as a locum on a trust contract. Mr Hamill BL submitted that Dr Eatock was not the correct statutory comparator as her circumstances were not the same as and were materially different from those of the claimant. He suggested that the correct comparator was a hypothetical comparator.
The Law
8. The relevant legislation is set out in Article 3 of the Race Relations (Northern Ireland) Order 1997, Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 as amended and Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006. Under these provisions direct discrimination on the grounds of race, sex and age is prohibited. The wording is almost identical and provides that a person discriminates against another in any circumstances relevant for the purposes of any provisions of the legislation, if on racial grounds or the grounds of a person’s age or sex, he treats that other less favourably than he treats or would treat another person. In the case of age discrimination an employer may be able to justify direct discrimination if it can be shown that the treatment complained of is a proportionate means of achieving a legitimate aim. Direct racial and sex discrimination cannot be similarly justified in any circumstances. Part II of the 1997 Order, Part III of the 1976 Order and Part II of the 2006 Regulations provides that it is unlawful for a person in relation to employment by him at an establishment in Northern Ireland to discriminate in the arrangements made for the purposes of determining who should be offered that employment or by refusing or deliberately omitting to offer (him) that employment.
9. The legislation requires the claimant to compare his circumstances with an actual or hypothetical comparator whose relevant circumstances are the same or are not materially different from those of the claimant. Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator. However it is open to the tribunal to focus on the reason for the claimant’s treatment; “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was. Was it on the proscribed ground which is the foundation of the application? Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.” Per Lord Nicholls at Paragraph 11 Shamoon –v- Chief Constable of the RUC 2003 IRLR 285.
Burden of Proof
10. These provisions state that where on the hearing of the complaint the claimant proves facts from which the tribunal could apart from this Article conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of the legislative provisions, 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.
Guidance on the application of this provision was given by the Court of Appeal in the cases of Igen Limited –v- Wong 2005 IRLR 258 in which the Court of Appeal ruled that the guidance issued by the EAT in Barton–v- Investec Henderson Crosthwaite Securities Limited should be applied and amended as follows:
(1) Pursuant to (Section 63(a) of the 1975 Act) it is for the claimant who complains of (sex) discrimination to prove on the balance of probabilities the facts from which the Tribunal could conclude in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of part two where which by the virtue of Section 41 or 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as “such facts”.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to them. In such cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal would therefore usually depend on what inferences it is proper to draw from the primary facts bound by the Tribunal.
(5) It is important to note the word “could” in section 63(a)2. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see where inference of secondary fact could be drawn from the facts.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include in an appropriate case any inferences that it is just and equitable to draw in accordance with Section 74(2)B of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section74(2) of the 1975 Act.
(8) Likewise a Tribunal must decide whether any provision of any relevant code of practice is relevant and if so take it into account in determining such facts pursuant to Section 56(a)(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(10) It is then for the employer to prove that he did not commit or as the case maybe, is not to be treated as having committed that act.
(11) To discharge that burden it is necessary for the employer to prove on a balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the burden of proof directive.
(12) That requires a Tribunal to assess not merely whether the employer has proved an explanation from the facts from such inference can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex is not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the Tribunal would normally expect cogent evidence to discharge that burden to proof. In particular the Tribunal will need to examine carefully examinations for failure to deal with the questionnaire procedure and/or Code of Practice.
Time Limits
11. The relevant legislation provides that an industrial tribunal does not have jurisdiction to hear a complaint unless it is presented before the end of a period of three months beginning when the act complained of was done. Where there is an act extending over a period, the time begins to run at the end of that period. However a tribunal may nevertheless consider any such complaint, claim or application which is presented out of time, if in all the circumstances of the case, it considers that it is just and equitable to do so. The onus is always on the claimant to convince the tribunal that it is just and equitable to extend time. The tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regards to all the other circumstances in particular:
a) the length of and reasons for the delay;
b) the extent to which the accuracy of the evidence is likely to be affected by the delay;
c) the extent to which the parties sued had co-operated with any requests for information;
d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action, and;
e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew the possibility of taking action. (British Coal Corporation v Keeble 1997 IRLR 336 at Paragraph 8).
The tribunal took into account the following additional cases: Laing v Manchester City Council [2006] IRLR 748; Madarassy v Nomura International PLC [2007] EWCA Civ 33; Macdonald v Advocate-General for Scotland [2003] IRLR 512; Shamoon v Chief Constable of the RUC (HL) [2003] ICR 337; Nagarajan v London Regional Transport [1999] ICR 877; Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96; Vento v Chief Constable of West Yorkshire Police (No.2) [2003] !RLR
Conclusions
Time Limit Point
12. The claimant’s complaint concerned the appointment of Dr Eatock. This was not a continuing act. It was clear from the facts that the claimant was aware from at least 27 November 2008 that his placement with the Trust was not going to be renewed and that Dr Eatock had been offered a locum post under Trust terms and conditions. As the claimant’s complaint was not presented to the tribunal until 24 March 2009, clearly the claim was presented outside the three month statutory time limit. The tribunal therefore had to go on to consider whether it should exercise it’s discretion to grant an extension of time. The tribunal was mindful that although the discretion is wide, there is no presumption that a tribunal should exercise its discretion to extend time on the just and equitable ground in favour of the claimant and that it should be exercised judicially in accordance with the guidelines in the British Coal Corporation v Keeble case referred to above.
13 The claimant’s case of course was that his claim was not presented within time as there was a continuing act of discrimination against him because he had lodged a grievance which was subsequently not upheld by the Chief Executive of the respondent Trust. The claimant did not raise a complaint to the tribunal as to the manner in which his grievance was handled. However the tribunal did take into account that there were ongoing communications between the claimant and Mrs Millar from 27 November 2008 when he was requesting that the Trust should advertise the post and reverse its decision. Mr Hamill on behalf of the respondent Trust conceded that no prejudice had been caused to the respondent by reason of the claimant’s delay and that the evidence was not affected by the delay. On the other hand the prejudice which would be caused to the claimant in not extending the time to present his complaint to the tribunal is self evident. The claimant gave evidence that he approached a solicitor for advice in or about December 2008 and was informed that he must lodge a grievance. The tribunal considered that this was a reference to the statutory grievance procedure which in certain cases requires a claimant to put their grievance in writing and to wait for 28 days before making a complaint to an industrial tribunal. In recruitment case there is no statutory requirement for a claimant to put the grievance in writing before lodging the complaint. It was clear to the tribunal that the claimant had acted upon the legal advice given and that he was not correctly advised about the time limits contained in the legislation. In the circumstances the tribunal is satisfied that it is just and equitable to extend the period for lodging the complaint and that it does have jurisdiction to decide the claimant’s complaint.
Substantive Issues
14. The tribunal had to consider whether the claimant had established facts from which it could conclude that he had been subjected to unlawful discrimination on grounds of his race, sex and or age in the arrangements made by the respondent Trust to fill the temporary locum consultant position from 4 February 2009. The tribunal was mindful that, following the reasoning of the Court of Appeal of England and Wales in the Madarassy case, the burden of proof does not shift to the respondent simply by the claimant showing a difference in status and a difference in treatment of him. The bare facts of a difference in status and a difference in treatment only indicate the possibility of discrimination and without more is insufficient material from which the tribunal can conclude or could conclude that on the balance of probabilities the respondent has committed an act of discrimination. The tribunal is required at the first stage to consider the evidence of both the claimant and the respondent.
15. The less favourable treatment complained of by the claimant was that the position was not advertised and that he was not given an opportunity to compete for the position, in contravention of the respondent’s policy and procedure for appointment and recruitment of locum doctors. The tribunal noted that the policy itself specified that it was not necessary at all times to advertise all locum positions which were designated long term. The policy itself sets out the circumstances when there is no need to advertise the position and in practice Indeed when the claimant was himself recruited the position was not so advertised neither was there any short-listing or interview process.
16. The claimant’s placement was for a fixed period. He was not an employee and as an Agency worker the respondent Trust had no obligation to the claimant to extend his placement. However the tribunal is satisfied that had Dr Eatock not made an appoach to the Trust that the claimant’s placement probably would have been extended beyond February 2009, as there were no issues with the standard of his work.
17. The claimant’s allegations of unlawful discrimination on prohibited grounds of his race and age appear to be based on the fact that Dr Eatock is a younger white European female. The tribunal agreed with Mr Hamill’s submission that Dr Eatock was not the correct statutory comparator for the purposes of the claimant’s complaint. The tribunal considered that her circumstances the not the same and were materially different from the circumstances of the claimant in that she was not at the time of her appointment already providing services to the respondent Trust as an Agency locum and she had approached the Trust to indicate that she would be prepared to perform the locum duties on Trust terms and conditions. The tribunal considered that the correct comparator is a hypothetical white European younger female Agency locum consultant already providing services to the respondent Trust.
18. The claimant tried to support his claim of sex discrimination by arguing that the process was one whereby “ladies were involved in the appointment of a lady” and that a group of female employees of the respondent Trust had set out deliberately to employ a female consultant locum. This is clearly undermined by the fact that both Mr Brown and Mr Flanagan were involved in the decision to appoint Dr Eatock. The tribunal rejected the proposition that Mr Brown had so acted out of a sense of chivalry and considers that the documentation consistently supports the respondent Trust’s contention that Dr Eatock was appointed because it was the cheaper option and significantly reduced locum costs.
19. The tribunal took into consideration that it was maintained by the claimant that Mrs Millar and Doctor Brown were influenced by the fact that Dr Eatock’s husband was already working in the Trust. Firstly the tribunal accepted Mrs Millar’s evidence that she was unaware of this fact until it was raised with her by the claimant and after the position was offered to Dr Eatock. Secondly the tribunal considered that this if true would amount to nepotism and therefore undermines the claimant’s case that he was discriminated against or that the reason for the treatment was due to his race, age of sex.
20. The tribunal did not consider that there were any facts from which it could properly infer that the claimant had been discriminated against on any of the prohibited grounds. It was factually incorrect that no other agency locum consultant was required to fill in the weekly record sheets. Furthermore the disparaging comment made by a consultant colleague about the cost of agency workers to the Trust was general in nature and there was no evidence that it had been deliberately directed towards the claimant during the course of the meeting. The comment was not related in any way to the claimant’s sex race or age and it was made in the context of a discussion about the cost of employing agency workers and the proposals for change.
21. The tribunal considered that reason why the position was offered to Dr Eatock because she was prepared to work on a trust contract and this was both in accordance with the Trust procedure for appointing locums and in line with the objective of reducing the locum costs. The tribunal is further satisfied that there is no evidence from which it could conclude that the respondent Trust would have acted any differently had a younger white European female Agency locum been covering the position instead of the claimant.
22. The tribunal is therefore satisfied that the claimant was not subjected to unlawful discrimination on grounds of his race, sex or age. It is therefore not necessary for the tribunal to consider the issue of remedy.
23. The claimant’s claim is dismissed in its entirety.
Chairman:
Date and place of hearing: 24 -27 May 2010, Belfast
Date decision recorded in register and issued to parties: