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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Scott v Police Service of Northern Ire... [2011] NIIT 02179_10IT (02 August 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/2179_10IT.html
Cite as: [2011] NIIT 02179_10IT, [2011] NIIT 2179_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2179/10
CLAIMANT: Samantha Scott
RESPONDENT: Police Service of Northern Ireland
DECISION
The unanimous decision of the tribunal is that the claimant’s claims are not well-founded. Accordingly, they are dismissed.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Mr H McConnell
Mr B Heaney
Appearances:
The claimant was self-represented.
The respondent was represented by Ms N Murnaghan, Barrister-at-law, instructed by the Crown Solicitor’s Office.
Reasons
1. The Disability Discrimination Act 1995 (“the Act”) deals with employment discrimination against disabled persons throughout the United Kingdom, including Northern Ireland.
2. Subsection (2) of section 4 of the Act, when read in conjunction with subsection (5) of section 4, makes it unlawful for an employer to “discriminate” (within the meaning of the Act) against its employee:
(1) in the terms of employment which it affords her;
(2) in the opportunities which it affords her for promotion, transfer, training or receiving any other benefit;
(3) by refusing to afford her, or deliberately not affording her, any such opportunities; or
(4) by dismissing her, or by subjecting her to “any other detriment”.
3. For the purposes of the Act, “discrimination” includes victimisation discrimination.
4. Section 55 of the Act defines victimisation discrimination for the purposes of the Act. According to subsection (1) of section 55, a person (“A”) discriminates against another person (“B”) if:
“(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and
(b) he does so for a reason mentioned in subsection (2)”.
5. Subsection (2) of section 55 is in the following terms:
"(2) The reasons are that—
(a) B has—
(i) brought proceedings against A or any other person under this Act; or
(ii) given evidence or information in connection with such proceedings brought by any person; or
(iii) otherwise done anything under this Act in relation to A or any other person; or
(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or
(b) A believes or suspects that B has done or intends to do any of those things".
6. The claimant is a civilian employee of the PSNI. She was off work through sickness, for several months, from late 2007 until mid-2008. The relevant period of absence ended in August 2008. In respect of the period from 12 May to 11 June 2008, the respondent withheld Occupational Sick Pay from her.
7. The claimant’s GP had certified her as being unfit for work at all material times. However, the employer’s Occupational Health Advisers, in the early summer of 2008, advised the employer that the claimant was in reality fit for work throughout the period from 12 May until 11 June 2008.
8. During the period prior to July 2008, the claimant’s GP’s sickness certificates referred solely to “work-related stress”. (The claimant had experienced what she considered to be difficult interactions with some individuals within the section in which she was based prior to the commencement of the 2007/2008 sick leave). Against that background, the employer offered the claimant various transfers, to alternative posts, which were located elsewhere within the PSNI. By 12 May 2008, the claimant had, in particular, rejected two of those offers of transfer.
9. Against the background of that opinion having been expressed by the employer’s Health Adviser (regarding the claimant’s fitness) and against the background of the rejection of those offers of transfer, the relevant HR Manager of the respondent, Ms Elaine McFarland, wrote to the claimant on 12 May 2008 in the following terms:
“I refer to above subject in relation to your current absence and advise that this correspondence constitutes formal notification of suspension of your Occupational Sick Pay. Our telephone conversation of Friday 9th May refers, wherein two postings within Lisnasharragh were offered to you with an effective start date of 12 May 2008. A failure to report for work has resulted in your Occupational Sick Pay entitlement being suspended.
If you disagree with the OHW assessment, and in accordance with Management of Sickness Absence Policy Directive 08/07 you are entitled to appeal the assessment. If the appeal is upheld, Occupational Sick Pay will be restored, however, if the appeal is not upheld you will be required to return to work and failure to return, may be subject to disciplinary proceedings”.
10. The employer’s view as to the claimant’s fitness for work during the period from 12 May to 11 June 2008, was based on medical advice which was recorded in notes completed by two medical advisors of the employer, Dr Crowther and Dr Humphries, respectively.
11. Dr Crowther’s comments, on 8 May 2008, were in the following terms:
“This lady attended today. She does not accept the accuracy of the SAP referral and wishes this made clear. She states that she is willing to return to work if a suitable post is identified (the post in Lisnasharragh now being filled). There would appear to be no medical impediment to returning to work at this stage”.
12. The note from Dr Humphries was made on 19 May 2008. That note was as follows:
“I reviewed Samantha at OHW today. I note Dr Crowther’s previous SAP comments and I have to hand a report from her GP. She feels a return to work in Lisnasharragh was not achievable due to the issues in her BH1, although a return to an alternative location will be possible. It would be difficult to state medical grounds for her being unfit to work in one location rather than another unless there were grounds that would suggest unreasonable management action of more than a minor nature. I must therefore leave this matter in your hands. She will continue to be followed up by our ESO service and I have arranged some additional input with one of my own specialist colleagues. [Our emphasis].”
13. We note that the advice of Dr Humphries, on 19 May 2008, was influenced by Dr Crowther’s advice of 8 May 2008. We also note that the Humphries advice of 19 May was based on a presumption that there had been no unreasonable management action of more than a minor nature.
14. The claimant was again seen by an Occupational Health Advisor in July 2008. At that point, she was judged by the OHA to be then unfit for work.
15. The respondent employer reinstated the claimant’s Occupational Sick Pay, but only in respect of the period from 12 June until the end of her 2008 period of sick leave.
16. Under the respondent’s Sickness Absence policy, the claimant received a written warning in relation to unsatisfactory attendance. The warning related to the entire period of the 2007/2008 sickness absence, including the May/June period of absence in respect of which sick pay had been withheld. The present proceedings are the second of two sets of proceedings which the claimant has brought against the employer. The first proceedings were commenced in September 2009. In those earlier proceedings, the claimant asserted that she was a disabled person within the meaning of the Act, and that, by issuing a written warning to her in relation to her 2007/2008 absence, the respondent had subjected her to unlawful disability discrimination.
17. The outcome of those proceedings was that the case was settled, in May 2010, on a confidential basis. Under the terms of settlement, the employer was to rescind a written warning which had been issued in relation to the relevant absence and it was to pay the claimant the sum of £3,500. The terms of settlement included statements that the employer did not admit liability and that it did not admit there had been any breach of contract.
18. The claimant had been absent from work, on the basis of GP’s certificates which stated that her absence was due to stress, from 30 October 2007 until 2 November 2007 and from 6 December 2007 until 8 August 2008. She had always argued that the illness from which she suffered was related to stress at work. Therefore she applied for an “injury on duty” award under the Civil Service Injury Benefit Scheme (Northern Ireland) [CSIBS(NI)]. That scheme is available to civilian employees of the PSNI. The effect of that scheme is that it supplements contractual or statutory sick pay for those employees who are off work due to an “injury” (or illness) which they sustained at work.
19. The claimant applied for the Injury on Duty award in October 2009, but she did not receive a decision in respect of that application until 9 June 2010. That decision was favourable to the claimant.
20. According to that decision:
“I wish to confirm that [this claimant] is considered to have suffered a qualifying injury (mainly attributable) under CSIBS(NI). An award under CSIBS(NI) is therefore considered appropriate in respect of any period for which [the claimant] has been in receipt of reduced pay because of this qualifying injury. (Periods of absence – 30 October 2007 to 2 November 2007 and 6 December 2007 to 8 August 2008).
Temporary Injury Benefits (TIB) is the term used … in respect of that part of the Injury Award payable while you are “in service”. Under the rules of the CSIBS(NI) a TIB may be payable for any period during which the individual received reduced pay due to the injury considered to have met one of the conditions of rule 1.3 …”
21. The decision was made by the
Civil Service Pensions section of the Department of Finance and Personnel,
which has been authorised by the PSNI to make such decisions, in respect of
civilian employees of the respondent, on behalf of the respondent.
22. In July 2010, the claimant was working in Human Resources Operation Support at Castlereagh. On 9 July 2010, having received the notification of the Injury on Duty decision, she wrote to Ms Iris McVicker (the respondent’s HR Manager for Operational Support Department) in the following terms:
“Iris, Please see below email for your info.
Can you confirm as my injury award was accepted for dates 30/10/07 & 06/12/07 - 08/08/08 that my pay for that month will be reinstated as per the DFP letter?
Once pay is
reinstated can you confirm that I am now entitled to receive the
2 days annual leave I lost.
Thank you for your help in resolving this”.
23. The reply was sent on 16 July and was as follows:
“Your IoD [Injury on Duty] is a separate issue from the suspension of pay from 12/5/2008 to 11/06/2008 …
Your pay will not be reinstated for that period.
I trust this assists”.
24. In a memorandum dated 16 July, addressed to Richard McMillan (the respondent’s HR Officer Manager at Castlereagh), the claimant told the respondent that she was raising an Informal Grievance in respect of the decision not to reinstate the sick pay in respect of the relevant period. Initially, the respondent declined to entertain that grievance, on the basis that it was out of time. That initial refusal to entertain the grievance was the result of a determination made by, or guidance given by, Ms Tabitha Ramsey, the Head of Human Resources for the Operation and Support Department of the PSNI.
25. That initial determination/guidance was based on Ms Ramsey’s view that a grievance ought to be brought in a timely manner, and that this grievance related to events which had occurred as far back as 2008. However, upon reflection, Ms Ramsey, noting that the claimant could not reasonably have known about the outcome of her Temporary Injury Benefit award until June 2010, concluded that it was reasonable to progress the informal grievance process. She advised Ms McVicker of that revised determination. Accordingly, during the course of July 2010, the claimant was told that her informal grievance would be entertained after all. At that time, and until she received the witness statement of Ms Ramsey in the present proceedings, the claimant did not know that Ms Ramsey was the person who had initially refused to entertain her grievance.
26. Pursuant to the informal
grievance process, Ms Ramsey had meetings with the claimant on 16 September
2010. Ms Ramsey’s decision in relation to that informal grievance was
notified, in due course, to the claimant. She was informed that Ms Ramsey had decided
that sick pay in respect of the relevant period would not be reinstated. In
essence, the ostensible reasons for that decision were as follows. First, Ms
Ramsey took the view that there was nothing inherently inconsistent between the
awarding of Temporary Injury Award Benefit in respect of a particular period,
and the withholding of Occupational Sick Pay in respect of the same period. Secondly,
Ms Ramsey declined to request any review, by the respondent’s medical advisors,
of the advice which had been given by them in the summer of 2008, regarding the
claimant’s fitness for work during the relevant period. Thirdly,
Ms Ramsey took the view that the reason for the withholding of the pay, in
respect of the relevant period, was the claimant’s refusal to accept the two
offers of alternative employment.
The acts complained of
27. In these proceedings, the claimant complains in respect of two acts:
(1) Ms Ramsey’s initial refusal to entertain her grievance.
(2) Ms Ramsey’s refusal, in 2010, to ask the respondent’s medical advisors to review the question of whether the claimant had been unfit for work during the May/June 2008 absence.
The claims and the defences
28. The respondent accepts that, by bringing the 2009 proceedings, the claimant carried out a protected act which is within the scope of subsection (2) of section 55 of the Act.
29. The respondent accepts that there has been unlawful discrimination within the meaning of section 4 of the Act if the initial refusal to accept the grievance was an act of victimisation discrimination.
30. The respondent also accepts that there has been unlawful discrimination, within the scope of section 4, if the decision not to ask the medical advisors to review their advice was an act of victimisation discrimination.
31. Accordingly, in relation to each of the two alleged acts of unlawful discrimination, the main issues between the parties are as follows:
(1) In making the relevant determination, did Ms Ramsey treat the claimant less favourably than she would have treated other persons who had not asserted rights under the Act, but whose circumstances were otherwise analogous to those of the claimant?
(2) If so, was the bringing of the earlier proceedings an important factor in the context of each relevant determination?
The position of the parties, in relation to each of those issues, in respect of each of the acts complained of, can be summarised as follows.
32. The claimant asserts that the initial refusal to entertain her informal grievance was contrary to the respondent’s grievance policy, was unreasonable, and was done as a means of retaliating against her for having brought the 2009 proceedings.
33. The respondent says that the initial decision to refuse to entertain the informal grievance was a perfectly reasonable decision for Ms Ramsey to make, that it was in line with the spirit of the respondent’s grievance policy and that it was entirely unaffected by any retaliatory motive.
34. The claimant says that the ultimate determination of Ms Ramsey not to re-open the question of whether or not the claimant, according to the respondent’s medical advisors, was fit or unfit for work during the relevant period in May and June 2008, was unreasonable, and that an important reason for that determination was the circumstance that she had brought the 2009 proceedings.
35. The respondent’s defence in relation to that claim is as follows. First, it is asserted that it was appropriate and reasonable for Ms Ramsey not to have allowed a re-opening of the medical advice issue. Secondly, in any event, according to the respondent, Ms Ramsey acted in good faith, in deciding not to allow the issue to be re-opened. Thirdly, the respondent says that, in any event, the circumstance that the claimant had brought the 2009 proceedings had no effect in the context of the making of the relevant decision (the decision on the part of Ms Ramsey not to allow a re-opening of the medical advice issue).
36. It will be recalled that these
are claims for breaches of section 4 of the Act. The combined effect of
Article 18 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”),
and of statutory rules made pursuant to the 2003 Order, is as follows. First,
in some situations, a claimant will be precluded from pursuing a non-dismissal
section 4 claim unless she has pursued an internal grievance process
beforehand; secondly, if she has failed to complete a grievance process
beforehand, the amount of her compensation may be reduced. On behalf of the
respondent,
Ms Murnaghan has confirmed that the respondent does not seek to argue either
point in these proceedings. Accordingly, any failure on the part of the
claimant to exhaust her internal grievance is not the subject of any defence in
these proceedings (either in terms of the tribunal allegedly having no
jurisdiction, or as a means of reducing the amount of any compensation which
would otherwise be payable).
37. The claimant says that, if the medical advisors had been asked to review their previous advice (regarding her fitness for work in respect of the relevant period), the inevitable outcome would have been that the medical advisors would have revised their previous opinions, and that they would, upon review, have concluded that she was unfit for work throughout the relevant period. Against that background, the claimant, in her claim form, made claims for breach of contract and for unlawful deduction of wages in respect of wages and holiday leave entitlements (leave entitlements) which have been withheld from the claimant because of the decision to withhold her Occupational Sick Pay in respect of the relevant period). However, in the course of this hearing, the claimant confirmed that she did not want to pursue any claim in these proceedings other than the claim of unlawful victimisation discrimination.
38. An industrial tribunal does not have jurisdiction to entertain a claim of breach of contract from an individual who continues to be employed by the respondent. Accordingly, for that reason, any claim for breach of contract, in this tribunal, could never have succeeded.
39. The claim for unlawful deduction of wages, which is made pursuance to Article 55 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) is mainly a claim in relation to the wages withheld from the claimant because of the continued withholding of the May/June 2008 sick pay. If the claimant had pursued a claim for unlawful deduction of wages, any such claim would have been doomed to failure, in light of the fact that the Crowther May 2008 medical advice has never been withdrawn or revised.
The sources of evidence and the course of the hearing
40. We received oral testimony from the claimant. On behalf of the respondent, we received oral testimony from Ms Ramsey. We also saw a bundle of documents, along with some miscellaneous documents which were provided to us during the course of the hearing. We told the parties that we would not take account, for evidential purposes, of the contents of any document within the bundle unless that document had been specifically drawn to our attention by one or both of the parties.
41. The evidence in this case was completed on 10 May. Later during the month of May, the decision of the Court of Appeal in Rice v McEvoy [2011] NICA9 became available. We re-convened the hearing on 8 July, for the purpose of providing the parties with the opportunity to comment on the implication, if any, of Rice for this case.
The facts
42. In this paragraph, we set out findings of fact which are relevant to the issues which we have decided. In the interests of clarity, and with a view to minimising avoidable duplication, we also set out findings of fact elsewhere in this Decision. The claimant’s claim form contains “Details of claim” which are admirable in their clarity. Much of the following account is taken from those “Details”.
(1) In May 2008, the employer concluded that the claimant was fit to return to the workplace, despite her protestations about that workplace, and despite her protestations about the way in which, as she saw it, stress there had caused or exacerbated the symptoms of her illness. That conclusion also ran contrary to the claimant’s own GP’s views as to her fitness for work.
(2) The claimant disobeyed the employer’s instruction to return to work.
(3) Against that background, the employer suspended her salary for the month of May 2008, but reinstated it from early June 2008. Soon afterwards, it was accepted, by the respondent’s Occupational Health Advisor, that the claimant had again become unfit for work.
(4) As already stated above, on 9 July 2010, the claimant received confirmation that her illness was accepted as having mainly attributable to an injury at work, and the entire period from 6 December 2007 until August 2008 was then declared to be in principle appropriate for an injury at work supplement.
(5) That determination had not been made by anybody within the employer itself. However, it had been made by the Pensions Branch of the Department of Finance and Personnel, which was the authority which was recognised by the employer as being the appropriate authority for determining whether or not a PSNI civilian worker’s particular absence was wholly or mainly attributable to an injury at work.
(6) As already stated above, in July 2010, the claimant applied for reinstatement of her sickness pay in respect of the disputed period. When this was not immediately done, she attempted to raise a grievance about that refusal. Her grievance was met with the response that it was too late to initiate a grievance, because the time period she was complaining about was May 2008.
(7) However, soon afterwards it was accepted by Management within the employer that, because the claimant had only received the information or grounds to support her claim for reinstatement through the letter of 9 July 2010 (in which she had been informed that her Injury on Duty award claim was successful), and because her grievance had been raised a short time thereafter, it was appropriate to consider her grievance.
(8) There is still dispute between the claimant and the employer as to whether or not she was refused permission to initiate the formal grievance progress. On balance, we are convinced that she was not refused permission to initiate a formal grievance. Instead, in our view, what happened is that her informal grievance was treated in the same way as a formal grievance would have been; the employer made its position clear upon the conclusion of the informal grievance; and the claimant then, quite understandably, decided not to initiate any formal grievance.
(9) Throughout this hearing, on both sides of the case, much attention was devoted to the question of whether or not the claimant had been reasonable or unreasonable in refusing offers of alternative employment which had been made to the claimant immediately prior to the period in respect of which Occupational Sick Pay was withheld (“the disputed period”).
(10) However, in reality, it seems to us that the central issue is whether or not the claimant was fit for work during the disputed period. If she was fit for work, she had an obligation to work, and she was not entitled to be paid if she did not work. If she was not fit for work, as the last paragraph of Ms McFarland’s letter of 12 May 2008 makes clear, she was entitled to be paid in respect of the disputed period. (See paragraph 9 above)
The legal principles
43. In the following paragraphs, we set out a statement of what we considered to be the applicable law.
44. Earlier in this Decision, we have set out some key statutory provisions. We now need to mention section 8 (1C) which provides as follows:
“(1C) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.
45. In J P Morgan Europe Ltd v
Chweidan [2011] EWCA Civ 648, which was a direct disability discrimination
case, Elias LJ commented on the effect of
section 8(1C), at paragraph 6 of his judgement, in the following terms:
“In practice a Tribunal is unlikely to find unambiguous evidence of direct discrimination. It is often a matter of inference from the primary facts found. The burden of proof operates so that if the employee can establish a prima facie case, i.e. if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawful protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason …”
46. Section 8(1C) is cast in similar terms to the provisions of Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”). Both sets of provisions provide for situations in which the burden of proof is reversed in discrimination cases, and both are intended to implement the requirements of a European Directive. Clearly, section 8(1C) is intended to achieve the same result as Article 63A of the 1976 Order.
47. It is now settled law, in the context of section 8(1C), and in the context of the equivalent provisions of the various employment discrimination enactments in Great Britain and in Northern Ireland, that the phrase “could … conclude …” means a reasonable tribunal could properly conclude; and that a tribunal could not properly conclude, even in the absence of adequate explanation, that the respondent has committed an unlawful act of discrimination, or has to be treated as having committed such an act, unless there is prima facie evidence that such discrimination has been carried out (either by the respondent or by someone for whom the respondent has secondary legal liability).
48. In Rice v McEvoy [2011] NICA 9, Girvan LJ delivered the judgment of the court. At paragraphs 22-35 of that judgment, the law on victimisation discrimination, in the context of the Sex Discrimination Order, has been authoritatively summarised. That statement of the law is equally applicable in the context of the victimisation discrimination provisions of the 1995 Act. We gratefully adopt that summary:
(1) In order to establish that discrimination by way of victimisation has occurred:
(a) 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
(b) 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”).
(2) In the absence of a true comparator, it is necessary to approach the less favourable treatment issue hypothetically.
(3) The primary object of the victimisation provision is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights.
(4) In determining whether the alleged victim has been less favourably treated than others, the comparison is a simple comparison between the treatment actually afforded to the claimant (who has done the relevant protected act) and the treatment that has been, or would have been, afforded to other employees (who have not done any protected act).
(5) While, in many cases, it is convenient and helpful to adopt a two-stage approach to the less favourable treatment issue and to the reason why issue, there is essentially one single question: did the claimant on the proscribed ground receive less favourable treatment than others. Sometimes, the less favourable treatment cannot be resolved without at the same time deciding the reason why issue; the two issues are intertwined.
(6) A claimant who complains of discrimination must satisfy the fact-finding tribunal that, on the balance or probabilities, she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material as to how she would have been treated if she had not been a member of the protected class (if she had not carried out the protected act). Actual comparators may constitute evidential material, but they are only a tool which may, or may not, justify an inference of unlawful discrimination. (Their usefulness as a tool will depend on the extent of the similarities between the circumstances of the comparators and the circumstances of the alleged victim. The more significant the difference is, the less cogent will be the case for drawing influences).
(7) In the absence of comparators of sufficient evidential value, some other material must be identified that is capable of supporting the requisite inference of discrimination. Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some cases suffice.
(8) In deciding the issue as to whether the claimant has been treated less favourably by the alleged discriminator, the conduct of a hypothetical reasonable employer is irrelevant. (The alleged discriminator may be, or may possibly not be, a reasonable employer.)
49. Although the unreasonableness of the treatment complained of is irrelevant in the context of the less favourable treatment issue, it is of considerable importance in the context of the reason why issue. (See Bahl v Law Society [2004] IRLR 799. See also Nelson v Newry & Mourne District Council [2009] NICA 24, at paragraph 28 of the judgment). However, as the Court of Appeal emphasised in Rice (at paragraph 44 of the judgment), the unreasonableness of the act complained of cannot, in itself, be determinative of the reason why issue.
50. We also consider it to be appropriate to draw attention to paragraph 33 of the judgment in Rice:
“[33] 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. … 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. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact … [Our emphasis].”
Two points are worthy of note in the context of that paragraph:
(1) It is only necessary for the protected act to have had a significant influence on the outcome. (In order for the claimant to be successful on the reason why issue, it is not necessary for the protected act to be the main reason for the outcome).
(2) Victimisation discrimination can occur even if the discriminator’s decision is influenced by the protected act only at a subconscious or unconscious level.
51. As Girvan LJ points out, at paragraph 33 of Rice, the authority for the latter proposition is to be found in the speech of Lord Nicholls in Nagaragan v London Regional Transport [1999] IRLR 572, 576. In the course of that speech, Lord Nicholls made the following observations:
“I turned to the
question of subconscious motivation. All human beings have preconceptions,
believes, attitudes and prejudices on many subjects. It is part of our
make-up. Moreover, we do not always recognise our own prejudices. Many people
are unable, or unwilling to admit even to themselves that actions of theirs may
be racially motivated. An employer may genuinely belief that the reason why he
rejected an applicant has nothing to do with the applicant’s race. After
careful and thorough investigation of a claim members of an employment tribunal
may decide that the proper inference to be drawn from the evidence is that,
whether the employer realised it at the time or not, race was the reason why he
acted as he did. It goes without saying that in order to justify such an inference
the tribunal must first make findings of primary fact from which the inference
may properly be drawn. Conduct of this nature by an employer, when the inference
is legitimately drawn, falls squarely within the language of [the section of
the Race Relations Act 1976 which defines direct racial discrimination]. The
employer treated the complainant less favourably on racial grounds. Such
conduct also falls within the purposes of the legislation
…
Thus far I have been considering the position [in relation to direct racial discrimination]. I can see no reason to apply a different approach to [the victimisation discrimination under the 1976 act] … The considerations mentioned above regarding direct discrimination … are correspondingly appropriate [in the context of victimisation discrimination]. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts (“protected acts”) listed in section2(1), the case falls within the section. It does so, even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act … Although victimisation has a ring of conscious targeting, this is an insufficient basis for excluding cases of unrecognised prejudice from the scope of [the victimisation discrimination provisions of the 1976 act]. Such an exclusion would partially undermine the protection section 2 seeks to give to those who have sought to rely on the Act or been involved in the operation of the Act in other ways. [Our emphasis].”
52. It will be noted that Lord Nicholls made it clear that an inference of unconscious discrimination can only be made if the tribunal has made findings of primary fact from which such an inference may properly be drawn.
Conclusions
53. In cross-examination, the claimant stated that she could think of no reason why Ms Ramsey would have wanted to discriminate against her. However, as Ms Murnaghan realistically accepted, the reality is that the claimant has persisted in her claims of victimisation discrimination. So the crucial issue in the present context is not whether the claimant can think of a reason, but whether the tribunal considers it to be appropriate to conclude that the decisions complained of were in reality affected by the fact that the claimant had done the protected act.
54. We ourselves consider that it is by no means implausible that a senior human resources professional would resent the fact that another human resources worker had instigated proceedings against the employer in the industrial tribunals.
55. The claimant must be treated
as asserting that each of the acts complained of (the initial refusal to
entertain the grievance and the subsequent refusal to ask
Dr Crowther to give fresh consideration to the question of whether the claimant
had been unfit for work) constituted victimisation discrimination at both
conscious and unconscious levels.
56. During the course of her evidence, Ms Ramsey told us that she was in no way consciously affected by the fact that the 2009 proceedings had been brought by the claimant. We believe that this was truthful testimony. Our belief in that regard is fatal to the claimant’s claims of conscious victimisation discrimination.
57. In deciding that we believed that testimony, we had regard to Ms Ramsey’s demeanour and manner of giving evidence. However, we also had regard to all of our findings of fact in this case.
58. The remaining issues are whether, in relation to either or both of the decisions complained of, the fact that the claimant had brought the 2009 proceedings had a significant influence, at a subconscious or unconscious level. (If discrimination occurred at a subconscious or unconscious level, Ms Ramsey will not have been aware that this was happening. Therefore, she was in no position to assure us, in the course of her oral testimony, that no such influences existed).
59. In our view, there are insufficient findings of primary fact from which an inference of subconscious or unconscious discrimination can properly be drawn in this case.
60. It will be recalled that the first of the acts complained of is the initial failure to entertain the July 2010 grievance. In our view, Ms Ramsey acted entirely reasonably in that context. The reasonableness of that behaviour is a powerful indicator that the carrying out of the protected act did not have a significant influence in the context of the initial decision to refuse to entertain the grievance. Her initial reaction was to regard the grievance as being brought far too late, given that the withholding of the sick pay had occurred in 2008, and that the grievance was being raised for the first time in 2010. That was a perfectly reasonable reaction. She speedily revised that decision, and the speed with which she revised that decision is also an indicator of reasonableness. Indeed, it implies a serious-minded and diligent approach to the issues which she was having to address.
61. For reasons which are explained below, we have concluded that Ms Ramsey acted unreasonably in declining to ask Dr Crowther to give fresh consideration to his previous advice regarding the claimant’s fitness for work during the relevant period. However, apart from that unreasonableness, what other findings of primary fact are available for the purpose of supporting any inference that the decision not to refer the issue back to Dr Crowther was influenced by the fact that the claimant had carried out the protected act?
62. First, there is the circumstance that Ms Ramsey had a senior position in human resources, that the claimant had a more junior position in human resources, and that the claimant had challenged the employer, relatively successfully, in the industrial tribunals. Secondly, there is the circumstance that the act complained of occurred very soon after the settlement of the 2009 proceedings. Apart from those matters, we can think of nothing which tends to support the proposition that the decision not to refer this back to Dr Crowther was subconsciously influenced by the bringing of the 2009 proceedings.
63. Furthermore, although we ourselves are convinced that the only appropriate action was to refer the matter back to Dr Crowther, we can see that, in light of the more limited information which was available to Ms Ramsey in 2010, there may then have appeared to be a tenable argument that the claimant’s success in obtaining an Injury on Duty award, in respect of the disputed period, was not necessarily inconsistent with Dr Crowther’s 2008 medical fitness advice.
64. In the following paragraphs, we explain our reasons for concluding that the failure to refer the issue back to Dr Crowther was unreasonable.
65. First, the decision not to refer the matter back seems to have been based on the view that sick pay had been withheld, in respect of the disputed period, because of a failure on the part of the claimant to co-operate with those members of Management who were managing her sickness absence. However, there are two flaws in that argument:
(1) The alleged failure of co-operation was a failure on the part of the claimant to accept alternative postings, which were offered to her at short notice. We have been referred to various contractual provisions and to various policy provisions. In our view, none of those provisions is apt to impose an obligation upon an employee to accept an alternative posting, at short notice, regardless of whether or not the claimant regarded those suggested alternatives as being unreasonable offers.
(2) In any event, the penultimate paragraph of Ms McFarland’s letter of 12 May 2008 shows that the claimant would have had her sick pay reinstated, in respect of the disputed period, if the employer had concluded that she was, after all, medically unfit for work during that period. (The relevant paragraph includes the following statement: “If you disagree with the OHW assessment … you are entitled to appeal the assessment. If the appeal is upheld, Occupational Sick Pay will be restored …”).
66. Secondly, as is clear from the Injury Benefit Scheme itself, Temporary Injury Benefits could only be awarded in respect of a period if the relevant employee’s absence during that period was mainly attributable to an “injury”. Accordingly, by awarding TIB in respect of a period which included the disputed period, the relevant PSNI delegated decision maker (the Civil Service Pensions Branch of the Department of Finance and Personnel) was clearly concluding that the claimant’s absence during the disputed period was mainly attributable to a medical problem. Therefore, the implication was that Civil Service Pensions Branch was concluding that the claimant had been unfit for work during the relevant period.
67. Thirdly, Ms Ramsey knew, or should have known, that any such conclusion (on the part of the Pensions Branch) would have to be based on advice from somebody with medical expertise. (During the course of this hearing, as a result of seeing a document which was brought to our attention by the claimant, it became clear to us that the relevant decision had been based on medical advice which had been provided by Dr Crowther himself, in April 2010. That medical advice was contained in a form which included the following question: “Does the medical evidence support the claim that an injury, which is wholly, mainly attributable to the incidents described by the applicant, has occurred?” Dr Crowther answered that question in the affirmative. At question 4d of the same statement, Dr Crowther stated that the two absences listed in the claimant’s Temporary Injury Benefit application form were both attributable in part to the “injury” complained of).
68. During the course of this hearing, this tribunal raised the question of whether or not the provisions of the respondent’s “Management of Sickness Absence” document were incorporated into the claimant’s individual contract of employment (as distinct from merely constituting provisions which were part of a statement of policy). As a response to that query, we were provided with another Sickness Absence document, which we were assured certainly did constitute part of the claimant’s individual contract of employment. Paragraphs 4.712 and 4.713 of the latter document deal, apparently exhaustively, with the “Circumstances in which Occupational Sick Pay (OSP) is not payable”. Paragraph 4.712 provides that OSP will be withheld if an officer does not comply with the rules of the scheme “in terms of notification of absence, production of satisfactory evidence of incapacity … or where it is clear that the absence is not due to genuine illness”. Paragraph 4.713 provides an additional list of situations in which OSP ceases to be payable. That list of situations are as follows:
(1) If there is not a reasonable prospect of recovery.
(2) Should an officer fail to attend for an appointment with OHS or with line management.
(3) Should an officer fail to return to work within two weeks of the OHS having found her fit for duty.
(4) During the trial period following the issue of a formal warning due to unsatisfactory attendance under the inefficiency procedures.
In our view, paragraphs 4.712 and 4.713 appear to set out an exhaustive list of the situations in which OSP can be withheld. Failure, at short notice, to accept offers of redeployment, in situations in which the employee does not consider those offers to be reasonable, are not included within that list.
General comments
69. The claimant, who is self-represented, may well be perplexed that she has lost this case, even though this tribunal has concluded that the decision not to refer the medical fitness issue back to Dr Crowther was unreasonable.
70. Industrial tribunals do not have freestanding powers to deal with cases of actual or perceived injustice. Instead, in the circumstances of the present case, we are confined to adjudicating in respect of the question of whether or not there has been victimisation discrimination. On the evidence, we have concluded that there was no such discrimination.
71. The claimant strongly believes that the decision not to refer her case back to Dr Crowther was unjust, and that this injustice occurred because of bias. We do agree that the failure to re-refer was unjust. However, there is no adequate evidence that the relevant determination was affected by relevant bias (bias on the part of Ms Ramsey because of the fact that the claimant had previously asserted her rights under the disability discrimination legislation).
72. In the claim form as originally presented, one of the claimant’s claims was that the withholding of the pay (or, possibly the failure to re-refer the medical issue) constituted a breach of her contract. In the circumstances of this case, we do not have powers to entertain any such claim for breach of contract (because the claimant continues to be employed by the respondent) but the County Court does have such powers.
73. As has been emphasised to us in the course of the respondent’s submissions, Ms Ramsey made the decision not to refer the fitness issue back to Dr Crowther at a time when she was not aware of the content of the medical evidence which had been provided by Dr Crowther in April 2010. Now, as a result of these proceedings, she has of course become aware of the content of that advice.
74. Our impression of Ms Ramsey as a witness was that she was a conscientious person, who considers issues in considerable detail, and who is always keen to do “the right thing”. We also got the impression that she now knew much more about the background, context and detail of this case (as a result of the information which had had to be collated in advance of the hearing and because of the information which emerged during the course of the hearing) than she had known in July 2010. In light of that additional information, it would of course now be open to the employer, if it thinks fit, to reconsider its position on the question of whether or not to refer the medical fitness issue back to Dr Crowther, so that he can now consider whether he continues to be of the view that the claimant was unfit for work during the disputed period.
Chairman:
Date and place of hearing: 9-10 May and 8 July 2011, Belfast.
Date decision recorded in register and issued to parties: