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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McEvoy v John Joseph Rice John J Rice & Company, Solicit... [2011] NIIT 06564_09IT (12 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/06564_09IT.html
Cite as: [2011] NIIT 06564_09IT, [2011] NIIT 6564_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6564/09
CLAIMANT: Yvonne Elizabeth McEvoy
RESPONDENTS: 1. John Joseph Rice
2. John J Rice & Company, Solicitors
WRITTEN REASONS FOR DECISION
The unanimous decision of the tribunal was that the claim of unlawful victimisation contrary to Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 (‘the Order’) was dismissed. This decision was delivered in a written decision on 8 December 2011 with reasons reserved to be given later in writing. These are the written reasons.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr B McGuire
Ms T Madden
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Savage & Company, Solicitors.
The respondents were represented by Ms N McGrenera, Queen’s Counsel, and Mr M Wolfe, Barrister-at-Law, instructed by Campbell Fitzpatrick, Solicitors.
Background
1. The first-named respondent is a solicitor and was, at all material times, the sole equity partner and therefore the principal in the second-named respondent (‘the practice’).
2. The claimant is a solicitor who was employed by the practice from 1990 or 1991 to 2011. She became a salaried partner in or about 2000. The vagueness in relation to these dates, which carried through into the final submissions lodged on behalf of the parties, indicate a lack of detailed organisation and a lack of management records within the practice.
3. The claimant was responsible for the conveyancing work within the practice and concentrated on that type of work. She did do some additional work in relation to family law, litigation and other matters. However, she did not do any criminal law work and did not want to do so.
4. Criminal law was, at all relevant times, the major part of the practice’s workload.
5. In 2008/2009, the claimant was the highest paid solicitor in the practice, apart from the first-named respondent, the principal in the practice. She received, in addition to her salary, an annual profit share bonus and further bonuses for any additional work she attracted to the practice.
6. Following a substantial downturn in conveyancing work in 2008/2009, the first-named respondent, on several occasions, asked the claimant to undertake criminal work. She refused.
7. Although the claimant and the first-named respondent had previously enjoyed a good working and indeed a good social relationship, their relationship deteriorated between December 2008 and February 2009.
8. On 25 February 2009, the claimant submitted a written grievance to the first-named respondent. It is common case that this grievance was a protected act for the purposes of the Order.
9. The claimant went on sick leave. Her first day of absence was Friday 27 February 2009.
10. The claimant was paid full pay for the first week of her sick absence and was then placed on statutory sick pay.
11. The claimant lodged a tribunal claim on 10 July 2009 alleging that she had been subjected to discriminatory and detrimental treatment because of her sex and age. She also claimed that the first-named respondent had victimised her by refusing to pay her full pay rather than statutory sick pay during her sick absence. Finally, she also claimed that she had suffered unlawful deductions from earnings.
12. The claim of unlawful deductions from earnings was subsequently withdrawn by the claimant. The tribunal dismissed the claims of sex discrimination and age discrimination. There was no appeal by the claimant against the dismissal of those claims. The tribunal upheld the remaining head of claim, ie the claim of unlawful victimisation in relation to non-payment of full pay and payment of statutory sick pay during the first three months of sick absence.
13. The respondents appealed against the finding of victimisation and the Court of Appeal overturned that latter finding and remitted that part, and only that part, of the initial claim for a complete re-hearing. The Court stated:-
“The tribunal will have to consider the case afresh and reach its own determinations on all issues on the evidence adduced before it.”
The issue
14. There was only one issue to be determined by this tribunal:-
“Whether the respondents had unlawfully victimised the claimant contrary to the Sex Discrimination (Northern Ireland) Order 1976 in failing to pay the claimant full sick pay for the first three months for sick absence and instead placing her on statutory sick pay?”
The hearing
15. The hearing took place over three days – 5, 6 and 7 December 2011. On the first day, the tribunal read the witness statements which had been filed in the initial tribunal litigation and the further witness statements filed for this hearing on the issue remitted by the Court of Appeal. The tribunal did not read the initial tribunal decision in the course of its deliberations. The Vice President had read the first tribunal decision some months earlier but could remember very little of the detail of that decision. The tribunal did read the decision of the Court of Appeal.
16. Each witness in turn adopted the statements which had been given both in the initial tribunal proceedings and the present tribunal proceedings as their evidence and each witness then moved immediately to cross-examination and re-examination. The claimant gave evidence on her own behalf. The first-named respondent, Ms Doris Sherlock and Miss Kalena McCann gave evidence on behalf of the respondents. The statements of Arlene Loney and Hugh Leslie were accepted by consent into evidence without cross-examination. Written submissions on behalf of the parties were handed into the tribunal on the afternoon of 7 December 2011 and were supplemented by oral submissions given by Ms McGrenera QC and Mr Potter.
17. The hearing finished shortly after 3.00 pm on 7 December 2011. The tribunal panel met on 8 December 2011 to review the evidence and submissions and to reach a decision. That decision, with reasons reserved to be given at a later date, issued after the conclusion of the panel meeting.
18. At the start of the hearing, Mr Potter sought leave to introduce new evidence in the form of documents relating to the claimant’s bank account. He further sought leave to examine the claimant orally in relation to those documents. Those documents had not been exchanged on discovery, despite the lengthy history of this case, and had not been shown to the respondents’ representatives until 20 minutes before the start of the hearing on 6 December 2011. All parties had been aware that the tribunal had directed that the hearing of the issue remitted by the Court of Appeal would proceed using the witness statement procedure and that oral evidence-in-chief would only be permitted in exceptional circumstances. The respondents objected to Mr Potter’s applications. The tribunal ruled that it would not be appropriate to either allow further evidence to be adduced in this form or at this stage or to allow oral evidence-in-chief. The case had already been thoroughly litigated. If relevant evidence had existed, it had been up to the claimant, as a lawyer represented by lawyers, to ensure that it was produced in the proper manner and at the proper time and not to seek to introduce it at a time and in a manner which would cause yet further delay to the final determination of this claim. Mr Potter’s applications were refused.
19. The tribunal also excluded questions which related to the reasoning and fact-finding of the first tribunal. This hearing was a complete re-hearing of the issue which had been remitted by the Court of Appeal.
20. At the end of proceedings on 6 December 2011, after the closing of the claimant’s case and when only one respondent’s witnesses remained, Mr Potter asked the tribunal for disclosure of the Chairman’s notes taken during the first tribunal proceedings. The respondents objected to this application. The tribunal ruled that it was not interested in the findings of fact or the reasoning of the first tribunal. It was, however, open to Mr Potter to cross-examine the first-named respondent, or indeed any other witness, on alleged inconsistencies in evidence given between the first tribunal hearing and the present tribunal hearing. Mr Potter had already done so in some detail.
As with Mr Potter’s earlier applications, this would have caused significant delay to the determination of this claim if the application had been granted. If the claimant or her advisers had felt that the earlier evidence given by the first-named respondent or by any other witness was or could be relevant to the determination of the issue remitted by the Court of Appeal, it had been open to the claimant or her advisers to either call Mrs Savage as a witness to what had been said or not said during the first tribunal hearing by filing a witness statement in the normal way, or to have applied for the Chairman’s notes at a much earlier stage in the proceedings; ideally during the Case Management Discussions.
If disclosure of the Chairman’s notes were to be directed and if they were to be admitted, on the second day of the present hearing, further instructions would have had to be taken by the representatives on both sides, and the possibility would then have arisen of the notes taken by both solicitors and counsel during the first tribunal hearing also being produced in evidence. Inevitably further substantial delay would have resulted.
Since Mr Potter had already exercised his right to cross-examine the first-named respondent extensively on alleged inconsistencies in his evidence between the first and second tribunal hearings, and given the lateness of the application and the potential for further substantial delay, the application was refused as being inconsistent with the overriding objective.
Relevant findings of fact
21. The claimant had been offered a written contract in or around 2000 when she was appointed a salaried partner in the practice. She did not sign that contract. The claimant states in her written evidence that she ‘declined’ to sign it. The first-named respondent says she ‘refused’ to sign it. There does not appear to be a material difference in all the circumstances of this case between ‘refusing’ and ‘declining’. Neither party retained a copy of the draft contract which had been offered to the claimant some 11 years ago. The claimant stated clearly in evidence that she had not read the draft contract which had been offered to her. She was therefore not in a position to say what had or had not been in that draft contract. The first-named respondent was also not in a position to give evidence in relation to this.
22. In 2000, there had been two other salaried partners in the practice, Mr Leo Morrison and Mr Nigel Broderick. Both left the practice shortly thereafter, about eight years before the relevant period. They left the practice on good terms to set up their own practice.
23. The claimant seeks to draw some comfort from the fact that Mr Broderick’s contract as a salaried partner contained a specific term allowing three months full pay during sick leave. However, the claimant cannot say whether the draft contract that she had been offered and which she had, in any event, declined to sign, contained such a provision. The first-named respondent gave unchallenged evidence that Mr Broderick had negotiated his own contract with the assistance of independent advice and that Mr Broderick’s individual contractual terms had resulted from those separate negotiations. Mr Broderick’s contract also contained a clause relating to an insurance policy for disability and death. The claimant accepted that no such insurance policy had been in place for her and that she had never requested such a policy. Mr Morrison did not have a written contract and the evidence of the first-named respondent was that he would have been treated in the same way as the claimant in relation to sick pay.
24. It is also clear that the percentage annual profit share bonuses given to Mr Broderick, Mr Morrison and the claimant had been different.
25. The claim lodged by the claimant which led to the first tribunal hearing, alleged that the first-named respondent had systematically ill-treated the claimant since December 2008. It alleged, inter alia, that the first-named respondent had:-
(i) ‘systematically and arbitrarily’ entered the claimant’s office (an office in the practice in which the first-named respondent was the principal);
(ii) used threatening and derogatory comments;
(iii) removed the claimant from the role of money laundering officer;
(iv) further undermined and demoralised the claimant;
(v) allowed a male employee six and a half weeks’ leave;
(vi) used the fees generated by the claimant to determine her worth within the firm;
(vii) was abusive, offensive and insulting;
(viii) indulged in bullying and harassing behaviour;
(ix) asked her to undertake criminal law work;
(x) threatened the claimant with redundancy; and
(xi) victimised the claimant by placing her on statutory sick pay.
26. It was common case that the claimant’s allegations, with the exception of the last allegation, which is now the only remaining issue before the tribunal in the present hearing, were dismissed by the first tribunal and equally common case that that dismissal was not appealed by the claimant. During the present hearing, the claimant repeatedly said that she ‘accepted’ the first tribunal’s decision; but equally repeatedly made it plain that she did not agree with that decision.
27. For the purposes of the present hearing, the tribunal must focus on the decision by the first-named respondent to place the claimant on statutory sick pay and on those matters which are relevant, or which could be relevant, to that decision and which were raised in evidence in the present hearing.
28. The tribunal has taken the view that it should not read the first tribunal’s decision and that it should not consider the first tribunal’s findings of fact or its reasoning. It is important that the present tribunal approached the one remaining issue afresh and that its consideration was not influenced or tainted by the approach taken by the first tribunal.
29. That said, the tribunal was asked by the parties to read the original witness statements, the original questions and replies and the Court of Appeal decision. It did so.
30. The claimant’s attitude to this litigation and her evidence was difficult to follow and difficult to understand. The claimant’s original (undated) witness statement made it plain that, in her view, she was entitled; that is entitled as a matter of contract, to a minimum of three months full pay when on sick leave. The (undated) replies forwarded by the claimant to questions which had been issued by the respondents on 30 October 2009 stated that:-
“It was custom and practice for all members of professional staff to be paid during sick leave. In the previous year a female member of staff was absent from the office for depression for approximately eight to ten weeks and was paid full pay during her absence.”
The reference to a ‘female member of staff’ was a reference to another employed solicitor, Doris Sherlock.
31. In the claimant’s witness statement dated 8 September 2011, exchanged for the present hearing, the claimant stated:-
“3 When I became a salaried partner I was given the opportunity to sign such a partnership agreement. I was content to proceed on a basis of trust.
4 Whilst I did not sign such a partnership agreement, it was my firm understanding that all salaried partners were entitled to the same and no less favourable terms of employment.”
It is clear that Mr Broderick, Mr Morrison and the claimant were given different profit bonus rates. It is also clear that Mr Broderick negotiated his contract and that that contract contained specific provisions for sick pay and insurance. The basis for the claimant’s ‘firm understanding’ that she was entitled to the benefit of the same employment terms was never explained.
32. The claimant’s diary entries and the claimant’s oral evidence confirm that the first-named respondent received the grievance on Thursday, 26 February. On that day, he had earlier greeted the claimant in a normal manner. She had handed the letter of grievance to him and had then gone into her office.
33. She records that the first-named respondent later entered her office, asked if she was alright, and asked her:-
“Why are you in such bad twist?”
The claimant told the first-named respondent that she did not want to speak to him and continued with her work. She was speaking to somebody on the telephone and did not look at the first-named respondent or say anything further to him. She records that the first-named respondent said words to the effect of:-
“I’m so sorry can we talk?”
The claimant shook her head and did not look up and did not speak. The first-named respondent then stated that he would proceed to deal with the grievance and would take advice.
34. There was no evidence that the first-named respondent had been angry or that he had reacted badly in any way to the receipt of the grievance. It certainly was not put to the first-named in respondent in cross-examination that he had lost his temper with the claimant at this point or that he had said or done anything inappropriate on receipt of the grievance on 26 February 2009.
35. Much of the cross-examination of the first-named respondent and of the claimant related to a e-mail or note from Kalena McCann, the book-keeper in the practice, which issued to the claimant after her first week’s absence on sick leave. It enclosed a cheque for the claimant’s profit share bonus which was in excess of £8,000.00 and her previous week’s pay-slip. It also advised the claimant in the following terms:-
“I also wanted to let you know that I have been told to put you on statutory sick pay effect [sic] immediately despite telling Joe that when Doris (Sherlock) and others were off they were paid normally. So pay will go to about £80.00 to £85.00 per week in next week’s pay-slip I’ll just post you out the pay-slips as we go.”
The claimant relied heavily on this document to support her claim of unlawful victimisation. In her mind, it supported her belief that she was being singled out for special treatment by being placed on SSP by the first-named respondent. The claimant’s evidence was that Miss McCann, in a conversation on 20 February, had told the claimant that Miss Sherlock had received full pay when sick for 8 – 10 weeks.
36. Wages were normally prepared by Miss McCann on a Monday for each week and were then paid into employees’ bank accounts on the Thursday of each week.
37. Miss McCann did not give evidence to the first tribunal. She gave evidence to this tribunal and the panel has found her evidence to be clear, convincing and truthful. It is also clear to the tribunal that she was friendly with the claimant and sympathetic to her position.
38. Miss McCann had been aware that the claimant’s first day of absence was Friday, 27 February 2009. She had the responsibility of preparing the wages on the following Monday, 2 March 2009. She asked the first-named respondent if there were any changes to wages and asked specifically:-
“Do I need to put Yvonne (the claimant) on SSP?”
The first-named respondent replied:-
“Just run it on through.”
It is therefore clear that the first-named respondent, some four days after receipt of the grievance, told Ms McCann to pay the claimant in full for the first week of her sick absence, in exactly the same way as Miss Sherlock had been given full pay for the first week of her sick absence before being placed on SSP and in the same way as other staff who had previously been on sick leave for less than a week, such as the claimant, had been paid full pay.
39. Miss McCann was due to go on leave on the following Monday and therefore arranged for that following week’s wages to be prepared on the preceding Friday, 6 March 2009. That was the second week of the claimant’s sick absence. On that occasion, Miss McCann again approached the first-named respondent to ask:-
“What about Yvonne?”
He replied:-
“Put her on SSP.”
Miss McCann stated:-
“What about Doris (Sherlock) and others - they were paid when they were off?”
The first-named respondent replied:-
“Put her on SSP.”
40. Miss McCann’s evidence, which the tribunal accepts as truthful and accurate, was that she had known at all times that Doris Sherlock had not been paid full pay when she had been off for 8 to 10 weeks with depression. However, the claimant had told Miss McCann during the earlier conversation on 20 February 2010 that Miss Sherlock had been paid full pay when off sick. Miss McCann believed that if the claimant, as a salaried partner, said this, it had to be correct. She therefore thought that the claimant must have been referring to another period of sick leave which had been taken by Miss Sherlock. Miss McCann stated in evidence that she did not want to contradict what the claimant had said to her on 20 February 2010 or ‘call anyone a liar’.
41. The tribunal therefore concludes that the claimant told Miss McCann that Doris Sherlock had been paid full pay when off sick and not, as the claimant has repeatedly maintained throughout this litigation, the other way round. The claimant stated, for example, in Paragraph 11 of her supplementary witness statement for the purposes of the first tribunal hearing that:-
“For the purposes of clarification Kalena indicated that Doris Sherlock, a Solicitor, was paid sick pay for a period. For this reason I initially used her as a comparator in my victimisation claim. However it later emerged that Doris did not receive sick pay. I believe she did not get her car tax or insurance paid either.”
42. In the claimant’s statement for the present hearing, she stated at Paragraph 8:-
“The book-keeper, Kalena McCann, prepared all staff wages on Monday of every week. She would not have known that I was on sick leave when she did the wages for Monday, 2 March. I believe and understand that I received my normal wage for that reason.”
This statement is also entirely inaccurate. Furthermore, the claimant did not explain in her witness statement how she came to the ‘belief and understanding’ that she had received her normal wage for the first week of her sick absence solely because Miss McCann had been at that point and for some reason unaware that she was off sick. Like her assertions earlier that Doris Sherlock had received full pay when she had been on sick leave, this appears to be a statement by the claimant, on an important issue, which was not based on fact, had not been checked by the claimant, and was entirely self-serving.
43. The claimant alleged that there were serious inconsistencies in the evidence given by the first-named respondent in relation to sick pay policy in his witness statements and under cross-examination during both the first and second tribunal hearings. This can be said equally of both the claimant and the first-named respondent.
44. The response stated:-
“Statutory sick pay is being paid and this has been the custom and practice for both secretarial and professional staff, including female solicitors within the respondents’ office and this was a policy that was actually drawn up by the claimant.”
It is clear that this statement was not completely correct. The first-named respondent has acknowledged that the policy drawn up by the claimant applied to administrative and support staff only.
45. The claimant was equally inaccurate in her replies to the respondents’ Notice for Additional Information where she asserted:-
“It was the custom and practice for all members of professional staff to be paid during sick leave … (Doris Sherlock) was paid full pay during her absence.”
It is clear, and is now common case, that it was not custom and practice for all solicitors to be paid during sick leave. It is also clear, and equally common case, that Miss Sherlock was not paid full pay during her absence.
The claimant has therefore also resiled from her initial assertions in relation to sick pay policy.
46. The first-named respondent, in his original witness statement for the first tribunal hearing, again stated, incorrectly, that the sick pay scheme drawn up by the claimant applied to all staff including solicitors:-
“As I understood it, our contractual situation covering all staff was for statutory sick pay only to be paid.”
The first-named respondent resiled from the initial assertion.
47. The Court of Appeal decision at Paragraph 17(b) stated:-
“In cross-examination before the tribunal the [first-named respondent] did not limit himself to the initial explanation based on the [claimant’s] lack of contractual entitlement to sick pay. He said that he did not want to make the pitch more difficult and said that he was trying to stimulate her to come back to work.”
The first-named respondent stated in evidence to this hearing that he had become confused in relation to the questions which had been put to him. He had been asked by the Chairman what he had intended for the claimant at that stage and had said that he did not want to make it difficult for the claimant to come back to work in a small office.
48. The claimant in her sworn witness statement of 8 September 2011 at Paragraph 25 stated:-
“I do not believe that I was paid sick pay for a short period in accordance with such a contention. I do not understand Doris Sherlock to have been paid sick pay for one week.”
The claimant no longer asserts that she and Miss Sherlock were not paid full pay during the first week of their sick absences. The claimant has resiled from the initial assertion which had been maintained until the second tribunal hearing.
49. As indicated earlier in these written reasons, neither party can identify exactly when the claimant commenced employment with the practice or exactly when she became a salaried partner. That suggests a lack of employee records. There was no written or formalised sick pay scheme for professional staff. Professional staff appeared to operate without written contracts, eg Mr Morrison and the claimant. While the tribunal would not doubt for a moment that both the first-named respondent and the claimant carried out their professional duties competently, the practice in 2008/2009 appears to have been run on a relatively informal basis.
50. The tribunal has carefully observed the first-named respondent giving evidence and has considered the content of both the response and his witness statements. It is clear that there was no written or formal sick pay policy. It does not seem to matter whether a settled but unwritten sick pay policy was consciously formulated by the first-named respondent at some fixed point in time, or whether, as seems more likely than not, such a policy has evolved as an exercise in consistency of treatment between Miss Sherlock and the claimant. The evidence before this tribunal is however clear; where a solicitor was sick they were paid full pay for the first week of absence and thereafter were paid statutory sick pay.
51. The tribunal has concluded that the first-named respondent was not lying under oath, as suggested by the claimant. He was clearly initially inaccurate in relation to the sick pay policy for solicitors in the practice. That level of inaccuracy and the failure on his part to properly check the position before preparing his witness statement was a level of inaccuracy and a failure to check facts which was shared, if not surpassed, by the claimant.
The first-named respondent clearly, in the opinion of this tribunal, got confused under cross-examination at the first tribunal hearing. The fact that a witness is a skilled and experienced lawyer does not mean that that witness is immune from confusion. It does however suggest that if the first-named respondent had set out to lie under oath he would have made a better job of it.
The tribunal is therefore satisfied that the first-named respondent did not deliberately set out to misrepresent the position.
52. The claimant has argued that the first-named respondent could have exercised his discretion, as the principal of the practice, to pay her more than statutory sick pay and to treat her more favourably than he had treated Miss Sherlock. Clearly he could have done so. However, the tribunal does not see any reason why he should have done so. The tribunal also sees no reason why his failure to treat her more favourably than he had treated Miss Sherlock and more favourably than her contractual entitlement could, on its own, permit an inference of victimisation.
Relevant Law
53. Both parties have set out the relevant law in some detail in the written submissions and it was in any event summarised by the Court of Appeal in its decision.
54. As the Court stated in Paragraph 22 of its decision:-
“In order to establish that discrimination by way of victimisation has occurred –
(a) circumstances relevant for the purposes of the provisions of the order must apply;
(b) the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances (the less favourable treatment issue); and
(c) he must have done so by reason of the fact that the person victimised has done one of the protected acts (the reason why issue).”
55. In Paragraph 33 of its decision, the Court stated:-
“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious. If on such consideration it appears that the protected act had a significant influence on the outcome, victimisation is established. (See Lord Nichols in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576.). The question is why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? Unlike causation this is a subjective test.”
56. The burden of proof provisions which apply to other areas of discrimination law also apply to claims of victimisation. Without rehearsing in detail the lengthy case law relating to this area, with which both parties are completely familiar, a claimant must prove facts upon which the tribunal could reasonably conclude, in the absence of an adequate explanation, that the respondent had unlawfully victimised the claimant. In other words, the claimant must have established a prima facie case before the burden of proof shifts to the respondent and the respondent then has to provide a satisfactory explanation.
Decision
57. The claimant originally relied on Doris Sherlock as a comparator. She now relies on a hypothetical comparator who would be a salaried partner or possibly a senior salaried solicitor who was also on sick leave but who had not lodged a grievance.
58. The manner in which the claimant approached the issue of a comparator is perhaps illustrative of the manner in which she has approached this litigation. It is clear that the claimant, and not Miss McCann, had decided that Miss Sherlock had received full pay when she was off on sick leave and that she had done so without any evidence to support that conclusion. Once it was made clear to the claimant that Miss Sherlock had not received full pay throughout her sick absence but had in fact, and exactly like the claimant, received full pay for the first week for absence and then statutory sick pay thereafter, the claimant did not withdraw her claim but pursued the matter citing a hypothetical comparator.
59. The manner in which the claimant chose to address this matter in her supplementary witness statement for the purposes of the present hearing is also illustrative of her attitude to this litigation. She stated at Page 548 of the bundle that:-
“It transpires that Doris Sherlock was paid SSP after receiving her full wages for one week. This was a stand-alone arrangement. I believe that is evidence of gender discrimination.”
There was no acknowledgement by the claimant that it was her who had been incorrect about Miss Sherlock’s sick pay. There was no explanation of how she arrived at the incorrect conclusion on which she had based her initial claim other than to try to put the blame on Miss McCann. The statement that this had simply ‘transpired’ does not address the issue at all. Further, and on some completely unexplained basis, the claimant asserts that Miss Sherlock’s sick pay is further evidence of gender discrimination. It is difficult to understand that statement. No male comparator who was actually treated more favourably than Miss Sherlock has been identified and Miss Sherlock has not complained of sex discrimination. Furthermore, the claimant’s allegations of gender discrimination were dismissed by the first tribunal and are not an issue for this tribunal.
60. In relation to the claimant’s allegation that she was treated less favourably than a hypothetical comparator would have been treated, the claimant seeks to draw some comfort from Mr Broderick’s particular contractual position. However, Mr Broderick, and indeed Mr Morrison, left the practice some eight years before the relevant period, ie before the current economic recession and collapse in conveyancing. On that ground alone, Mr Broderick and the claimant could not be said to be in similar circumstances. Furthermore, the contract entered into with Mr Broderick had been individually negotiated by him with the first-named respondent. Mr Broderick had chosen to negotiate on the terms of his individual contract and had chosen to do so with the benefit of independent advice. His negotiated contractual terms contained a specific entitlement to three months full pay on sick leave and also a specific entitlement to various insurance protection. The first-named respondent had also offered the claimant a contract which he was appointed as a salary partner. She had declined to sign that contract. She had declined to negotiate that contract. She had declined to read that contract. She did not retain a copy of that draft contract. She cannot say and the first-named respondent cannot say what was offered at that time in or around 2000. However, it is clear that whatever had been offered by the first-named respondent in 2000 had not been accepted by the claimant.
61. There is no basis on which a tribunal could conclude that the claimant had, as she continued to maintain in this hearing, a contractual right to be paid sick pay for three months, or even that there was a prima facie case that such a contractual right had existed.
62. Mr Potter sought to rely on the three month sick pay provision in Mr Broderick’s contract and fact that the claimant had been offered a contract. He argued that he claimant “might reasonably expect” to be treated similarly in those circumstances. In his final written submission, he referred to:-
“The fact that equality of treatment would surely hallmark the treatment of partners as regards terms such as sick pay.”
In the collective experience of this tribunal, professional practices do not operate on a strictly egalitarian basis. Some partners are always, or nearly always, more equal than others. Even in the present case, all parties accept that when there were other salaried partners, ie Mr Morrison and Mr Broderick, they were paid differing bonus rates and the claimant also appeared to suggest in her evidence that they had been paid different salaries. Furthermore, it is clear that they had different terms relating to insurance. The claimant can hardly be unaware that partners in solicitor’s practices or in other professional practices do not necessarily have the same partnership agreements as each other in relation to any point such as pay, sick pay, holidays, profit share, etc. The proposition that equality of treatment must therefore ‘hallmark’ the treatment of partners in a professional practice and would therefore entitle any partner to expect exactly the same conditions as any other partner who had been employed some eight years previously is fanciful and misconceived.
63. When assessing what treatment a hypothetical comparator would receive it, is always useful to look at the treatment that was received by actual individuals in analogous circumstances. Miss Sherlock had been treated in exactly the same way as the claimant. Another solicitor to whom reference was made, Mr Lewis, was paid full pay during brief periods of employment of less than one week in exactly in the same way as the claimant and Miss Sherlock. He had never been off sick for longer than one week and therefore would never have been in a similar circumstance to the claimant or Miss Sherlock. The individually negotiated sick pay terms of another salaried partner who had left the employment of the practice some eight years earlier are nothing to the point.
64. The claimant has chosen to believe, or chosen to state that she believes, that a hypothetical comparator would have been treated differently. However, there is insufficient evidence before this tribunal upon which it could reasonably infer that this would have been the case.
65. Therefore, this claim must fail. Facts have not been proven in front of this tribunal on which the tribunal could reasonably infer that a hypothetical comparator would have been treated differently or more favourably than the claimant in relation to sick pay.
66. Even if the claimant had passed this hurdle (ie the hurdle of a prima facie case of less favourable treatment being established on all the evidence before the tribunal) the claim would inevitably have failed on the next hurdle, ie, whether facts have been proved on which a tribunal could reasonably infer that the first-named respondent had consciously or unconsciously been motivated by the claimant’s grievance, in reaching his decision to place the claimant on statutory sick pay.
67. The evidence before the tribunal, from the claimant’s own statement and from the claimant’s diaries showed that the first-named respondent was not angry, aggressive or upset on receipt of the grievance. The evidence from Miss McCann showed that the claimant had been treated in exactly the same way as Miss Sherlock in that she had been paid full pay which had been expressly sanctioned, some four days after receipt of the grievance, by the first-named respondent for the first week of absence and had then been placed on statutory sick pay thereafter. It is also of some significance that, at exactly that time, the first-named respondent sanctioned the payment of an annual bonus of over £8,000.00. If, as the claimant suggests, the first-named respondent had been sufficiently angry to interfere with what she regarded as a contractual right and to have indulged in what, on her submission, would have been an incredibly petty act, it is inexplicable that the payment of over £8,000.00 was not in some way delayed or withheld.
68. Therefore, even if facts had been proved on which the tribunal could have reasonably inferred that a hypothetical comparator would have been treated more favourably in relation to sick pay, the tribunal would have concluded that no facts have been proved upon which it could reasonably infer that the first-named respondent had been motivated consciously or unconsciously by the claimant’s grievance. The claimant has therefore failed to discharge the burden of proof.
69. The claim of unlawful victimisation is therefore dismissed.
Vice President:
Date and place of hearing: 5, 6 and 7 December 2011, Belfast
Date decision recorded in register and issued to parties: