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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Coleman v Sportsbowl Ltd Christopher Donnelly [2011] NIIT 02137_10IT (16 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02137_10IT.html
Cite as: [2011] NIIT 2137_10IT, [2011] NIIT 02137_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2137/10
CLAIMANT: Colleen Margaret Coleman
RESPONDENTS: 1. Sportsbowl Limited
2. Christopher Donnelly
DECISION
The unanimous decision of the tribunal is that the second named respondent sexually harassed the claimant and that the first named respondent sexually discriminated against the claimant. Compensation is awarded as set out in the Schedule hereto.
Constitution of Tribunal:
Chairman: Mr S M P Cross
Panel Members: Mrs M Heaney
Mr E Grant
Appearances:
The claimant was represented by Mr P Ferrity (Barrister-at-law) instructed by Anderson Agnew & Co Solicitors.
The respondent was represented by Mr Sheridan of Peninsula Business Services Limited.
FINDINGS OF FACT
1. The claimant commenced her employment with the first named respondent in December 2000. She is still working for the first named respondent. The first named respondent owns a bowling alley and leisure centre in Ballymena which comprises amongst other things a restaurant and a children’s area called Tumble Towers. The claimant worked in both the restaurant and Tumble Towers.
2. The claimant informed the tribunal that about seven years previously, when she was working in the restaurant, she had been sexually harassed by the second named respondent. He was, and remains a chef in the restaurant and the incident which the claimant referred to, occurred when she and the second named respondent were working together and when nobody else was in the facility. The allegation of the claimant is that the second named respondent grabbed the claimant by her chest and rubbed himself against her. The claimant reported this to her workmate John Herbison and to a manager, Betty Anderson. The tribunal find as a fact that she did not report the incident to Mr Devine, the managing director of the first named respondent, the tribunal hold that the claimant believed that her line manager, Mrs Anderson, to whom she had reported the incident, passed the information on to Mr Devine. There was some doubt as to the reporting sequence; under cross-examination the claimant agreed that she had not reported this matter to Mr Devine. At about the same time as this assault occurred the claimant alleges that the second named respondent made various sexual remarks to the claimant for instance he said, “I would love to lick you out" and “I would die a happy man if I could have you a night”. The claimant took natural exception to these remarks, which she said other members of the kitchen staff considered to be banter and normal form of speaking in the kitchen. Because she was unable to accept this, the claimant felt that she was considered, by other staff, to be an outsider. These remarks were also reported to Mrs Anderson, but appear never to have reached the ears of Mr Devine.
3. Shortly after these incidents occurred the second named respondent either left the employment of the first named respondent for a period of time, or the rota system kept the claimant and him apart, there is some doubt about this. However, the parties only came across each other on an infrequent basis. As a result of this, the claimant did not come across the second named respondent during her employment until, in early 2010 they found themselves on the same shifts at weekends.
4. Almost immediately the claimant and the second named respondent developed a bad working relationship in the shifts that they worked together. The second named respondent ignored the claimant and did not have any conversation with her and indeed refused to acknowledge her presence, by blanking her out whenever they came across each other. The claimant found this very upsetting and matters became worse during May 2010 when two incidents occurred during the claimant's shifts in the restaurant.
5. The first incident on 14 May 2010, involved a customer who asked for a salad and asked what was in the salad. The claimant repeated the request about the ingredients of the salad to the second named respondent, who flew into a rage and said “can you not fucking read you fucking bitch, can he not fucking read, it’s a fucking salad, it is what it says”.
6. The second incident occurred about two weeks later on 28 May, when an order went slightly wrong. A plate of chips had been ordered from the kitchen but did not appear with the order when produced. This again provoked the second named respondent into a verbal tirade against the claimant. He called her “bloody stupid” and “what the fuck is this can you not bloody write”. He blamed the claimant for the muddle concerning the chips. This second incident occurred in the presence of customers who were somewhat embarrassed and made remarks concerning the matter.
7. The claimant made a complaint, concerning these incidents, to her line manager, Miss Oonagh Devine. Miss Devine investigated the matter. However, the tribunal find that the claimant did not refer in detail to the incident, that occurred about seven years previously, when the second named respondent assaulted the claimant and made the sexual remarks to her. The claimant merely stated that an incident had happened seven years previously. Miss Devine asked her sister, another manager of the first named respondent, if she knew anything about the previous incident and her sister told her she remembered something about an argument, but is it was nothing serious. Mr Herbison, when asked, told Miss Devine that Mr Donnelly had made some sexual remarks to the claimant. However no grievance or complaint was raised by the claimant at that time. It was only when the witness statements were produced for this hearing that Miss Devine discovered the seriousness of the allegations of the assault and sexual remarks.
8. Despite this, the investigation carried out by Miss Devine, did inform her that there had been incidents of some sort seven years previously. Miss Devine did not delve deeper to try and find what had occurred. In her evidence she stated that she thought that it was wrong to go back so far in time in an investigation and that she should not question incidents that occurred more than six years previously.
9. During the investigation Miss Devine questioned various members of staff, including the second named respondent, who made it clear that he had nothing to do with the claimant and indeed rarely spoke to her. He referred to the fact that Linda Rainey, the manageress in the restaurant, had informed him that the claimant had cried on the night of the second incident regarding the chips. In the transcript of the interview between Miss Devine and the second named respondent, the tribunal find that some of the second named respondent’s answers to Miss Devine's questions should have put her on notice of his attitude towards the claimant. For instance, when asked whether he spoke to the claimant when they were working together he said, “no I just ignore her”. When asked, “previous to this have you ever said anything to Colleen that could be construed as harassment or bullying,” he answered, “I don't speak to her”.
10. Whilst some of the witnesses interview by Miss Devine, during the course of her investigation, referred to bad language used by the second named respondent in the kitchen, no one witnessed either of the May confrontations between the claimant and the second named respondent.
11. Miss Devine, having heard the evidence, turned down the claimant's claim of harassment and, in an attempt to resolve the situation that had arisen, suggested that the claimant work more of her hours away from the kitchen in the Tumble Tower and merely one or two shifts in the kitchen. This resulted in the claimant loosing 2 hours work per week. In the meantime the claimant appealed the decision of Miss Devine and that appeal was heard by the managing director, Mr Jim Devine. He upheld the decision of Miss Devine. He reviewed the CCTV footage of the period around the incident in question and said that the footage seemed to suggest that there were other members of staff in and around the restaurant at the time when the alleged insulting remarks were made by the second named respondent. Mr Devine said that he would have expected somebody to have heard the shouting if it had occurred. He did interview the claimant at length but did not re interview the second named respondent.
THE LAW
12. Harassment is defined in the Sex Discrimination (Northern Ireland) Order 1976, (hereinafter called “the 1976 Order”) as follows:-
“6A.— (1) For the purposes of this Order, a person subjects a woman to harassment if—
(a) he engages in unwanted conduct that is related to her sex or that of another person and 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.
(3) --------------”
13. A tribunal faced with a discrimination claim such as this one must apply the following directions laid down in Article 63A of the 1976 Order. These directions have the effect of reversing the burden of proof when the requirements of the Article are met. The Article is as follows:-
“63A.— (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—
(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”
14. Thus this tribunal must first decide if there is any fact of an unusual nature in the case which, if not explained, could lead the tribunal to find that discrimination or harassment has occurred. If such a fact or facts are proven then the tribunal places the burden of proof on the respondents to show that they did not commit an act of discrimination.
THE DECISION
15. The tribunal is unanimous in its decision that the information that became available to Miss Devine during her investigation of the two incidents in May 2010, being the blanking of the claimant by and the non communication with the second named respondent, together with the hints that something had happened in the past, should have alerted her to the claimant’s problem in the restaurant. A similar situation arises with the second named respondent whose unexplained behaviour resulted in the serious distress of the claimant who was discovered in tears. As a result of this the tribunal find that the burden of proof shifts to the respondents to show that they did not sexually harass or discriminate against the claimant.
16. So far as the second named respondent is concerned the tribunal find that his attitude towards the claimant indicated that something had occurred in the past that made him antagonistic towards the claimant. The tribunal is faced with totally conflicting evidence from the two protagonists and must decide on the balance of probabilities, who is telling the truth. The tribunal asks itself the question, why would the second named respondent act as he did in the blanking of the claimant, the non communication with her and the horrible way of addressing her; if there was no underlying reason? For these reasons the tribunal believes the evidence of the claimant and not that of the second named respondent. The tribunal find, again on the balance of probabilities that he had been guilty of the language he used on the 14 and 28 May and that he had been guilty of ignoring and blanking the claimant whilst they were working together in the kitchens and restaurant.
17. The first named respondent, having failed to uncover the underlying reason for the second named respondent's most unusual behaviour, in totally ignoring the claimant, compounded the matter by failing to investigate the conduct of the second named respondent even though Miss Devine and Mr Devine at the appeal, knew that there had been a previous incident some seven years previously. Neither of them appear to have thought of questioning the claimant more deeply about that and at all times the evidence of the second named respondent was preferred to that of the claimant despite the unusual nature of this evidence.
18. The matter was not resolved at the appeal, as the attitude of Mr Devine was that his daughter had carried out a first-class investigation of everything and that there was really nothing more to look into. The managing director, Mr Devine, appears to have made up his mind at an early stage that the whole matter was fabricated and was a way for the claimant to claim money from his company. Although he took the trouble to look at the CCTV footage he did not re-interview the second named respondent whose statement was, to an employer, full of negative sentiments that should have made Mr Devine consider that maybe there was something after all in what the claimant was stating.
19. Even if on a more thorough investigation of what had happened and even if he considered it to be too late to discipline the second named respondent, over the assault and sexual remarks seven years ago, the second named respondent could have been given a warning concerning his conduct in May. This would at least have made the claimant feel that she, as a long serving member of the company, was not being completely disbelieved. The fact that she alone was moved to a different part of the business, whilst understandable, as she was more versatile than a chef, did leave in her mind, the feeling that she was the guilty party in this matter.
20. It is clear from the appeal hearing notes, that Mr Devine skirted around the matter of the assault and sexual remarks seven years ago. Had he been able to uncover what was subsequently included in the claimant’s witness statement, it might have given him more of an insight into the reason for the claimant's breaking down in tears on the night of 14 May. On the surface, the investigation appears to have been carried out thoroughly, although the tribunal hold that the first named respondent failed to get to the nub of the complaint. The tribunal hold that more credence should have been given to what the claimant was saying, especially in the light of the conduct of the second named respondent in blanking out and ignoring the claimant, which conduct the second named respondent admitted.
21. The tribunal find, that Miss Devine was in some way blinkered by her view, that she could not investigate any matter as old as the original assault and sexual remarks. Whilst the tribunal agree, that this was not part of the disciplinary matter in hand, the information that would have come out of an investigation of what was alleged to have happened at that time, would have been helpful in finding a reason for the second named respondent’s conduct towards the claimant in the kitchen during May of 2010. Miss Devine failed to follow that up and consequently was never likely to get to discover the cause of the problem between her two employees.
22. Mr Devine also had an opportunity to discover the underlying problem. However, he was overly impressed by the seemingly painstaking and detailed enquiry of his daughter and failed to re-examine the second named respondent. Mr Devine was aware of some underlying problem. He did take the trouble to view the CCTV footage and drew some conclusions from that, but how much more valuable would have been a more searching questioning of the second named respondent. Mr Devine convinced himself that the claimant was making the complaint in order to get money, indeed he told the tribunal this in his evidence, much to the obvious distress of the claimant. He seemed to believe everything that the second named respondent said and nothing said by the claimant, a long standing and valued employee. Mr Devine, as an older person and with a long experience of running a business employing many people, failed to deal with this serious problem in the manner that the tribunal would have expected. His daughter did her best but she also missed opportunities to get to the nub of the matter, but she had less experience than her father and although she had attended courses on discrimination she did not have an HR background.
23. In any event, the tribunal find that the failure of the first named respondent in this matter, compounded the sexual harassment clearly displayed by the second named respondent and the tribunal award compensation to the claimant, to be paid jointly and severally by the respondents.
24. In considering compensation, the tribunal was aware that the claimant was working 2 hours less than she was prior to the incident in May 2010. The tribunal award the difference in hours up to the date of this hearing, on the assumption that the hours in future can be brought back to what they were. The tribunal do not make an award for medical problems as the evidence concerning the claimant’s psychiatric state was very sketchy and did not give the tribunal the impression that the claimant was suffering to any great extent. The tribunal do award compensation for injury to feelings amounting to £3,500.00, being in the lower band of the compensation suggested in the case of Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102 CA. The tribunal is aware of the way that the claimant herself dealt with this matter and failed to alert the Devines about the full extent of the problems with the second named respondent in the past. Clearly if the harassment had been as serious in May, as it is alleged it was on that previous occasion, the compensation would have been very much higher.
25. The tribunal having considered the matter of interest up to the date of this decision do not award this as in the tribunal’s view it would not be appropriate.
26. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
SCHEDULE
Loss suffered by the claimant as a result of not working in
the restaurant 9 June 2010 - 5 September 2011, 65 weeks
@ £5.80 per hour x 2 hours per week, £11.60 x 65 £754.00
Injury to feelings £3,500.00
£4,254.00
Chairman:
Date and place of hearing: 5 September 2011, Belfast.
Date decision recorded in register and issued to parties: