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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sears v Edel McCusker Ciaran McManus The Governing Body of South We... [2012] NIIT 02645_11IT (17 July 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2645_11IT.html
Cite as: [2012] NIIT 02645_11IT, [2012] NIIT 2645_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2645/11
CLAIMANT: Ruth Sears
RESPONDENTS: 1. Edel McCusker
2. Ciaran McManus
3. The Governing Body of South West College
DECISION
The unanimous decision of the tribunal is that the tribunal has no jurisdiction to hear the claimant’s claim of age discrimination and the claim is therefore dismissed in its entirety. The title of the third-named respondent was amended to that shown above.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr B Heaney
Mrs P Weir
Appearances:
The claimant appeared and represented herself.
The respondents appeared and were represented by Ms Carol Anne Deeny, HR and Legal Adviser of South West College.
The Claim
1. The claim was a claim of age discrimination.
The Issues
2. The issues to be determined by the tribunal were as follows:-
(a) Whether the tribunal had jurisdiction to hear the claim in view of the claimant’s status. The tribunal was required to determine whether the claimant fell within the definition of “employee” or of “contract worker” under the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Age Regulations”). If the claimant did not fall within either definition, then the tribunal would not have jurisdiction to hear the claim.
(b) If the tribunal determined that the claimant was at the relevant time either an employee or contract worker of the third named respondent (“the College”), then the tribunal had to decide whether or not the claimant was discriminated against on the grounds of her age during her engagement with the College, and, in particular, in respect of the termination of that engagement.
Sources of Evidence
3. The tribunal heard oral evidence from the claimant and Clare McNicholl on behalf of the claimant and from Edel McCusker, Ciaran McManus, Deborah Brown, Stephanie Hill and Michael Smith on behalf of the respondents. The tribunal also admitted a witness statement from Pronisas O’Kane on behalf of the respondents. Mr O’Kane was not available for cross-examination by the claimant since, at the time of the hearing, he had emigrated to Australia. The Chairman made it clear that, in the circumstances, the tribunal could only give limited weight to this statement. In the course of the hearing, the parties also referred the tribunal to a number of documents in the tribunal bundle.
Contentions of the Parties
4. The respondents’ representative Ms Deeny contended that the claimant was not employed by the College within the definition of the term “employment” set out in Regulation 2 (3) of the Age Regulations. Ms Deeny further contended that neither was the claimant a “contract worker” within the meaning of Regulation 10 of the Age Regulations. She relied in support of these arguments on the cases of Muschett and Bohill, copies of which the Chairman had provided to both parties in the course of the hearing. The Chairman had invited both parties to address the tribunal on the impact of these cases in their legal submissions.
5. In the event that the tribunal was against her in relation to the issue of employment status, Ms Deeny contended that the claimant had failed to prove in the course of the hearing that she had been discriminated against on the grounds of her age. Ms Deeny argued that the reason for the termination of the claimant’s contract was not her age, but rather her performance.
6. The claimant contended that she was employed by the College. She referred the tribunal to the terms of the Job Description for the post which referred to the NJC Terms and conditions of employment. The claimant argued that she had been discriminated against by the respondents on the grounds of her age. The claimant contended that, in the course of her time at the College discriminatory comments had been made regarding her age and that the reason for the termination of her contract was not her performance in the role but rather her age. The claimant pointed to the fact that no disciplinary procedure was followed prior to the termination of her contract. The claimant believed she was protected under the NJC Terms and Conditions, including the Disciplinary Procedure under those Terms.
Facts of the case
7. In August 2011, the claimant was engaged via Hays Recruitment Agency to work as a Training Support Officer (Mentor) for the SUSE Programme (Step up to Sustained Employment). The claimant had previously been engaged by Hays on other assignments. The claimant’s rate of pay for this assignment was £10 per hour gross and her wages were paid by Hays. The claimant was an experienced educational professional. Two younger mentors were engaged at the same time as the claimant, namely Stephanie Hill, who was a qualified teacher, and Pronsias O’Kane. All three mentors were interviewed by the College before being selected for this role. Following that interview, those in charge of the SUSE programme considered that all three mentors had the appropriate skills and aptitudes to fulfil the role of mentor.
8. There was a written contract between the College and Hays which included the following terms:-
“Scope of Agreement
The parties hereby agree to the introduction and supply by the [Hays] to the [College] of the temporary worker named in the Engagement Letter (“the Temporary Worker”) to provide the services identified in the Engagement Letter (“the Services”) on the following terms (together “the Assignment”).”
“Replacement Temporary Worker
7. The [College] may, on reasonable grounds, terminate the Assignment provided that:
(a) the [College] shall first give prior notice to [Hays] of such termination; and
(b) Hays shall have the right to replace a Temporary Worker with another individual to provide the Services. Any replacement Temporary Worker supplied pursuant to this clause shall be deemed to be supplied under the same terms as governed the original Temporary Worker under this Agreement.”
“No Employment
18. Nothing in this Agreement shall give rise to an employment relationship between the Temporary Worker and either [Hays] or the [College].”
9. On 19 July 2011, the claimant signed Terms of Assignment with Hays which included the following terms:-
“This is a contract between
(1) Hays; and
(2) The claimant”
“Provision of services
2.1 This Agreement governs all Assignments under which the Temporary Worker provides his or her services to [Hays]
2.2 The Temporary Worker is under no obligation to accept any Assignment which may from time to time be offered to him or her by [Hays] from time to time, but on acceptance of any Assignment he/she will supply his/her services to [Hays] in order to enable it to supply services to the [College]
2.3 Throughout the period of this Agreement, the Temporary Worker will be engaged under a contract for services with [Hays]. For the avoidance of doubt, this Agreement does not give rise to a contract of employment between [Hays] and the Temporary Worker, or [the College] and the Temporary Worker. The Temporary Worker is supplied as a worker, and is entitled to certain statutory rights as such, but nothing in this Agreement shall be construed as giving the Temporary Worker rights in addition to those provided by statute except where expressly stated.
2.5 [Hays] shall incur no liability to the Temporary Worker (save in respect of remuneration for hours already worked by the Temporary Worker under this Agreement) if it:
(a) fails to offer a suitable (or any) Assignment; or
(b) terminates an Assignment with or without notice for any reason whatsoever regardless of any previous notification to the Temporary Worker regarding the duration or likely duration of the relevant Assignment. Where notice is required by [the College] it shall be detailed in the Assignment confirmation letter.”
10. The claimant was based at the College’s Omagh campus, whilst Ms Hill and Mr O’Kane were based in Dungannon and Enniskillen respectively. The claimant’s immediate supervisor was Edel McCusker, SUSE programme Co-ordinator, who was also based in Omagh and the other mentors Ms Hill and Mr O’Kane were supervised by Deborah Brown, SUSE Programme Co-ordinator. Ms Brown was based in Enniskillen. Ciaran McManus, Deputy Head of Training, and Maria Hackett, Head of Training for the College, had overall responsibility for the project.
11. The job description for the role of Mentor included the following amongst the main duties and responsibilities of the Mentor:-
(1) To manage a caseload of participants on the SUSE programme
(2) To provide induction to and initial assessment of each participant’s barriers to employment
(4) To publicise the SUSE programme and assist in recruitment to the programme
(9) To engage with employers to secure work placement and employment for participants on the SUSE programme.
The Job Description also stated that “all terms and conditions of employment for this post are those as laid down by the Association of NI Colleges non teaching negotiating committee and are drawn from the conditions of service of the NJC for local authority staff.”
12. The Programme Co-Ordinators Ms McCusker and Ms Brown also had some responsibility for recruiting participants onto the programme.
13. A full day briefing for the Mentors was held on 16 August 2011 when the objectives and requirements of the SUSE programme were outlined along with the programme timetable. Mr McManus delivered a Powerpoint presentation. The Programme was funded by a number of bodies, including the Department of Employment and Learning. The Programme was targeted at two groups, namely young people aged 16 – 18 and the long-term unemployed. The mentors were informed that there was an overall target of 115 participants per year, but they were not given individual targets or time-scales.
14. On 17 August 2011, an induction day was held for all the staff of the College at the Killyhelvin Hotel. The claimant and the other 2 mentors Ms Hill and Mr O’Kane were in attendance.
15. There were some teething problems with the Programme. Publicity materials such as flyers were not immediately available as they had to be approved by other organisations, including the main funders. The programme was also getting under way in August 2011 at a time when a number of contacts were on holiday. Referral forms for participants were also not immediately available.
16. From 18 August, the claimant began work on the programme. She began to make contact with employers and community groups. The claimant called out to see a number of these stakeholders, including visits to rural areas. Ms McCusker was aware in advance of the claimant’s plans for these visits as the claimant had to submit a weekly planner. The claimant prepared and began to populate various databases, including one relating to employers and another relating to community groups. The claimant was told that she should not make contact with major stakeholders, such as the local Careers Service and Job Centre. This was reserved to the Programme Co-Ordinators Ms McCusker and Ms Brown. The claimant had not made contact with other departments within the College.
17. The claimant asked on a few occasions for flyers for the programme. Ms McCusker considered that the claimant should be able to begin promoting the programme without flyers and she told the claimant this. However, temporary flyers were made available to the claimant.
18. On 22 August, the claimant e-mailed some information regarding the programme to a stakeholder, namely Surestart. This information was not accurate. The claimant had initially indicated that the programme lasted 55 weeks, whereas the programme was actually a maximum of 55 hours. The claimant also indicated that the age group for the programme was 17 – 25, which was not accurate. Ms McCusker spoke to the claimant about this matter. The claimant immediately sent further e-mails to Surestart to correct the information furnished.
19. It was alleged by Ms McCusker that the claimant had used the term “hoodlums” in connection with a group of young people who might be potential participants for the SUSE programme. Ms McCusker said that she had to speak to the claimant about the use of this term and remind her that the individuals should be treated with respect. In her evidence, the claimant vehemently denied using this term and pointed out that she had worked with various groups of students over the years, including prisoners, and that she always used appropriate language and treated everyone with respect.
20. Faced with this conflict of evidence, the tribunal was not satisfied on the balance of probabilities that the claimant had used the term “hoodlums”. However, the tribunal believes it is likely that there was some form of clash between the claimant and Ms McCusker in relation to use of language or terminology which Ms McCusker considered was not “politically correct”.
21. It was also alleged by Ms McCusker that the claimant had referred to an IT Support officer of the College by the term “IT Boy”. Once again, this was strenuously denied by the claimant who also asked why she had not been disciplined if she had used such a term. Having heard the evidence on this point and particularly having noted the claimant using similar language to describe young people during the course of the hearing, the tribunal concluded on balance that it is likely that the term “IT boy” or a similar term was used by the claimant.
22. The other mentors also began their work on 18 August. Ms Hill began by using contacts from different programmes within the College, for example, seeking referrals from individuals who had dropped out of other College programmes. She sent out letters on College headed paper to community groups and employers introducing herself and her role along with the SUSE programme. Ms Hill focused her efforts initially on recruiting potential participants for the programme, rather than on recruiting potential employers. Ms Hill made contact with the Careers Service in Dungannon. She did this without the knowledge or prior approval of her supervisor Ms Brown.
23. A meeting of the SUSE programme team was held on 25 August 2011. This was facilitated by a live video conference between the Enniskillen, Dungannon and Omagh campuses. The meeting was attended by Ms McCusker, Ms Brown and all three programme mentors, namely the claimant, Ms Hill and Mr O’Kane. The Agenda for the meeting included “Plan of Programme for the mentors, Review of job description, Forms and Paper-work, Procedures and Training”. The claimant alleged that, in the course of this meeting, Ms McCusker made a comment towards the mentors to the effect of “youse are young. Well, at least 2 of you are”. The claimant further alleged that this was connected with a comment to the effect that “we will see who is fitting in after 3 months”.
24. In the course of her evidence Ms McCusker strenuously denied that she had made this comment. Ms Brown and Ms Hill in giving their evidence denied that any such statement had been made. Mr O’Kane in his written statement indicated that he did not recall any such statement. The claimant argued that it was not surprising that the other witnesses would deny having heard this statement. The claimant also maintained that a video recording of this meeting should be available. The respondents argued that recordings were not routinely made of such meetings and certainly no recording was made on this occasion.
25. The tribunal had little hesitation in accepting that there was never any video recording of the meeting on 25 August since, in the experience of the panel members, it is very unusual for any recording to be made of a meeting via video conference. Special arrangements would be required to allow for such a meeting to be recorded. In the absence of any recording of the meeting, the tribunal had to resolve the clear conflict in evidence in respect of the comments alleged to have been made by Ms McCusker. The tribunal noted that the claimant had complained at a fairly early stage about comments having been made, although she had not raised any complaint immediately after the meeting on 25 August. However, balanced against this was the fact that the evidence of Ms McCusker on this point was corroborated by the evidence given consistently by a number of the respondents’ witnesses. On balance therefore the tribunal reached the conclusion and therefore finds as a fact that the alleged comments set out in para 23 above were not made.
26. When the referral form for the programme was produced, it contained the names and contact details of Ms McCusker and Ms Brown for the Omagh and Enniskillen sites respectively and the name of Ms Hill for the Dungannon site. Neither the claimant’s contact details nor those of Mr O’Kane were included on the form. The respondents’ explanation for this difference in treatment was that this was related to geography. The tribunal accepts the respondents’ explanation for this, that is that the claimant’s name and Mr O’Kane’s name were excluded simply because they were based at the same sites as their supervisors Ms McCusker and Ms Brown whereas Ms Hill alone was based in Dungannon.
27. On Tuesday 30 August 2011, Ms McCusker sent an e-mail to Maria Hackett as follows:-
“Dear Maria, As per our discussion regarding [the claimant] on Friday [ie 26 August], I feel that she isn’t suitable as a mentor for the SUSE programme, although she is driving around to different groups, her tone and manner are not appealing to recruit these particular participants into the programme. I have put through her travel claim for last week and forwarded her hours to [Mr McManus] I do feel bad about this but I feel we really need the correct people on the team to drive this forward. I hope to talk to you soon. Many thanks. [Ms McCusker].”
28. On Friday 2 September 2011, Ms McCusker asked the claimant for an up-date on her progress. The claimant furnished copies of her weekly activity sheet and databases. On the afternoon of the same day, a meeting was held at the Dungannon campus to review progress of the programme. This meeting which was not documented was attended by Maria Hackett, Mr McManus, Ms McCusker and Ms Brown. The performance of the three mentors was reviewed. At this stage, the claimant had not secured any referrals for the programme, that is completed referral forms, although the claimant claims that she would have had referrals the next week. By contrast, Ms Hill and Mr O’Kane had a number of referrals, that is completed forms. The performance and approach of the claimant having been reviewed, it was decided that her assignment should be terminated.
29. Mr McManus then contacted Hays to inform them that the College wished to terminate the claimant’s assignment. The reason given by Mr McManus for the termination was that the claimant was not making satisfactory progress in implementing the programme. Mr Smith of Hays asked Mr McManus if there had been a review meeting with the claimant in the previous weeks to make her aware of this and Mr McManus replied that the claimant’s line manager had recently done this. In fact, the claimant was not made aware before the afternoon of 2 September that termination of her engagement as a Mentor was being considered. A message was relayed to Ms McNicholl of Hays who then telephoned the claimant at approximately 3.40 pm. Ms McNicholl told the claimant that the College wished to finish her assignment that day. The claimant was very annoyed. She told Ms McNicholl that she wanted an explanation for that decision. The claimant felt that she had been doing all that had been asked of her. At that time, the claimant was in the process of leaving the College for the day as the normal finish time on Fridays was 3.45 pm. Ms McNicholl was not aware of this. Ms McNicholl told the claimant that she would try to find out further detail and call the claimant back.
30. Ms McNicholl was not able to make contact with Mr McManus to clarify the position as the College phone lines were closed by that stage. When Ms McNicholl called the claimant back, she was driving on her way home. The claimant was angry and said that she would be attending her place of work on Monday as usual.
31. The claimant did attend at the College on Monday 5 September. She began to carry out her work. Ms McCusker met with the claimant later that morning and told her that since her assignment had been terminated, she must leave the College. The claimant alleged that Ms McCusker offered the claimant a meeting with Mr McManus. The tribunal thinks it is more likely that Ms McCusker told the claimant that she herself would have to ask for a meeting with Mr McManus. On the same day, the claimant sent an e-mail to Mr McManus and Ms Hackett outlining visits and talks which she had arranged for the next week and which would have to be cancelled or re-arranged.
32. On 14 September 2011, the claimant wrote to Hays to complain about the treatment of her whilst she was working as a Mentor for the College. She complained about the alleged comment regarding her age, about disability discrimination and about what she described as her abrupt dismissal which she believed were directly linked. Ms McNicholl of Hays responded to the claimant by letter dated 23 September 2011. In this correspondence, Ms McNicholl said that the College had informed her that the claimant’s temporary assignment was terminated for a number of reasons including “unsatisfactory progress in moving the program forward as a Mentor.” Ms McNicholl also stated that the College was a “committed equal opportunity employer” and that the claimant’s age had no bearing on the termination of the claimant’s temporary assignment. Ms McNicholl further stated that “the client is within their right to terminate a temporary assignment with or without giving notice as are you.”
33. The claimant wrote to Hays again on 28 September making various points which were later reiterated in the claim form lodged with the tribunal. These points included the claimant’s allegation that a comment had been made linking her age and “fitting in”. The claimant also raised the issues of her employment status, saying that if the College was not her employer, then she would have to take her case against Hays. Hays sent a letter in reply dated 4 October 2011 in which Ms McNicholl stated that the claimant was supplied under a contract for services and was not an employee or either Hays or the College. A copy of the claimant’s Terms of Assignment was furnished. Ms McNicholl also stated that it would be inappropriate for her to comment on the College’s actions.
34. It was agreed by both parties that the claimant was replaced by a younger Mentor.
35. Following the termination of her engagement with the College, the claimant signed on for Job Seeker’s Allowance from 6 September 2011. At the date of hearing, the claimant had not yet secured alternative employment. The claimant felt hurt by the manner in which she was treated by the College. She was left with feelings of anger, lack of self-confidence and issues surrounding trust.
Statement of Law
36. By Regulation 7 of the Age Regulations, it is unlawful for an employer to discriminate against a person by dismissing him, or subjecting him to any other detriment.
37. The Age Regulations provide a definition of “employment” at Regulation 2 (3) which is in the following terms:-
““Employment” means employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions (such as “employee” and “employer”) shall be construed accordingly……………..”
38. The Regulations also make it unlawful for a principal to discriminate against a contract worker by not allowing him to do work or to continue to do it or by subjecting the contract worker to any other detriment. The meanings of the terms “principal” and “contract worker” are set out at Regulation 10 (5) as follows:-
““Principal” means a person (“A”) who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A;
“contract worker” means any individual who is supplied to the principal under such a contract.”
39. The Court of Appeal in Northern Ireland recently considered similar definitions in the case of Bohill v PSNI [2011] NICA 2. This case concerned the definitions of “employer and employment” and “contract workers” under the Fair Employment and Treatment Order 1998. The facts of this case were that Mr Bohill was a former Police Officer who had signed up with Grafton Recruitment who supplied staff to the PSNI. Mr Bohill had on a number of occasions sought unsuccessfully to obtain an assignment to the PSNI. He brought proceedings under FETO alleging that he had been discriminated against as a job seeker on the grounds of his religious belief and/or political opinion.
40. The Court of Appeal examined in some detail the terms of the contract which Mr Bohill would have signed had he been successful. The material terms of Grafton’s Terms of Engagement included the following:-
“2.1 These Terms constitute a contract for services between Grafton and the temporary worker and they govern all assignments undertaken by the Temporary Worker. ………
a. For the avoidance of doubt, these terms shall not give rise to a contract of employment between Grafton and the Temporary Worker. The Temporary Worker is engaged as a self-employed worker, although Grafton is required to make statutory deductions from the Temporary Worker’s remuneration …………..”
The terms also provided that Grafton, PSNI or the Temporary Worker could terminate an assignment at any time without prior notice or liability.
41. Having analysed the prospective contractual documents referred to above, the Court of Appeal concluded that “In our view the inability of the appellant to establish that he is seeking an employment relationship with PSNI or that he is in such a relationship with Grafton and to bring himself within the definition of “employee” contained in article 2 of the 1998 Order is fatal to this appeal. In the absence of such proofs, the Tribunal simply did not have jurisdiction”. The Court further stated “For the reasons set out above, this appeal must be dismissed but the case does seem to illustrate how an agency arrangement may deprive potential employees of important protections against discrimination. ……………this is an area that might well benefit from the attention [of the Government department] concerned with legislative reform”.
42. The decision of the NI Court of Appeal in the Bohill case is entirely consistent with the judgment of the English Court of Appeal in the case of Muschett v HM Prison Service [2010] IRLR 451. This case involved a temporary cleaner supplied to the Prison Service by an agency. When his contract was terminated, Mr Muschett claimed that this was discriminatory. The tribunal found that there was no contract directly between Mr Muschett and the Prison Service so that he could not bring his claim under the employment provisions of the Race Relations Act. This finding was upheld by the Court of Appeal leaving Mr Muschett with no remedy. The Court found that it was not necessary to find any implied contract between the Prison Service and Mr Muschett. The tribunal had also found that Mr Muschett could not bring a claim as a contract worker since he was not employed by the agency. This finding was not appealed.
43. Article 42 of the Age Regulations, which applies to the employment provisions of the Regulations, states as follows:-
“Burden of proof: industrial tribunals
42. (1) This regulation applies to any complaint presented under regulation 41 to an industrial tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—
(a) has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or
(b) is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,
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.”
44. The tribunal must approach the question of burden of proof in accordance with the principles set out in the case of Igen Ltd v Wong [2005] IRLR 258. The tribunal should go through a two-stage process. First, the claimant must prove facts from which the tribunal could, apart from Regulation 42, conclude in the absence of an adequate explanation that the respondent has committed the unlawful act of discrimination complained of. The second stage, which only comes into effect if the claimant proves such facts, requires the respondent to prove that he did not commit the unlawful act, otherwise the complaint will be upheld.
45. In the case of Shamoon v Chief Constable of the RUC [2003] IRLR 285, the House of Lords urged tribunals to avoid confusing disputes about the identification of the appropriate comparator in discrimination cases by concentrating primarily on the reason why the claimant was treated as she was. The tribunal should consider whether the treatment was on the unlawful ground or for some other reason.
Conclusions
Employment status
46. The tribunal began by considering the issue of the claimant’s status and therefore whether the tribunal had jurisdiction to hear the claim. The contractual arrangements in this case were a fairly typical agency arrangement whereby there was a written contract between the College and Hays on the one hand and between Hays and the claimant on the other hand. There was no written contract between the claimant and the College.
47. The tribunal carefully considered the case of Bohill and Muschett as set out above and the submissions of the parties in relation to the relevance of these cases to the facts of this case. The tribunal considered that the terms of the contracts in this case were substantially and materially similar to the terms of the potential contract in the Bohill case. As with the terms of Assignment of Grafton in Bohill, the Hays Terms in this case, which the claimant had accepted and signed, confirmed that the claimant was “engaged under a contract for services with Hays”. The tribunal did however note that the Job Description prepared by the College stated that “all terms and conditions of employment for this post are those …………..drawn from the conditions of service of the NJC for local authority staff”. The tribunal considered whether this had any impact on the contractual situation in this case. In considering this point, the tribunal was firmly of the view that the Job Description was a class of document which was not intended to have contractual effect and in this case certainly could not and did not over-ride the express terms of the detailed written contracts between the parties.
48. The tribunal does not believe that there is any need in the circumstances of this case to imply a contract between the College and the claimant. The arrangements between the parties are adequately explained by the two written contracts. This is in line with the approach taken by the Court of Appeal in the Muschett case.
49. This claim was brought against the College and the claimant contended that she was employed by the College. The definition of employment in the Age Regulations as set out at para 37 above requires there to be a contract between the claimant and the respondent. Having considered and taken into account the judgments in the Bohill and Muschett cases, the tribunal is satisfied in this case that there was no contract between the claimant and the College whether express or implied.
50. Accordingly, the tribunal concludes that the claimant was not an employee of the College and is not therefore entitled to bring a claim against the College on this basis.
Contract worker status
51. The tribunal also considered whether the claimant was a contract worker. The definition of contract worker as set out at para 38 above requires that the contract worker is employed another person who supplies them to the Principal. In this case, the Terms of Assignment between the claimant and Hays state at clause 2.3 that there is no contract of employment between the claimant and Hays. These Terms were accepted and signed by the claimant. The claimant did not contend that she was employed by Hays.
52. In the circumstances, the tribunal has concluded that the claimant was not employed by Hays and she was not therefore a contract worker of the College.
53. Accordingly the tribunal has concluded that the claimant is not entitled to bring a claim against the College on this basis.
Jurisdiction
54. The tribunal has therefore concluded that it has no jurisdiction to hear the claimant’s claim of age discrimination against the College and its staff.
Discrimination on the grounds of age
55. The tribunal heard all the evidence in this case and has made relevant findings of fact. We therefore considered it was appropriate for the tribunal to give an indication of what would have been our conclusions if it had found that we did have jurisdiction to determine the substantive claim.
56. The claimant placed significant reliance on the alleged age-related comments made by Ms McCusker. The claimant contended that the making of these comments was of itself an act of discrimination, but the claimant also relied on this conduct as being connected with the termination of her contract a short time later. The tribunal has found on balance that these comments were not made.
57. We have considered the remainder of the facts found as set out above. It was the case that the claimant was older than the other 2 mentors Ms Hill and Mr O’Kane and she was the only one who had her contract terminated. It was also noted that the mentor who replaced the claimant was younger than her. However, the tribunal was also mindful that Ms Hill had demonstrated a contrasting approach to the job to that adopted by the claimant. Ms Hill began by using contacts within the College and had focused her efforts on recruiting potential participants for the programme. The claimant had contacted both employers and community groups, but had not used contacts internal to the College. Ms Hill and Mr O’Kane had both obtained signed referrals by the date of termination of the claimant’s contract. The claimant had no signed referrals.
58. The claimant essentially relied on Ms Hill and Mr O’Kane as actual comparators. In a number of respects, where the claimant relied on a comparison with the treatment afforded to Ms Hill, it was apparent that Mr O’Kane was treated in like manner to the claimant. This was the case, for example, with the names printed on the SUSE programme documentation. In other areas, the tribunal considered that Ms Hill and Mr O’Kane were not appropriate comparators because the facts of their cases were significantly different, for example, the fact that they had obtained signed referrals at the date of termination of the claimant’s contract.
59. In this case, there was a difference in age and a difference in treatment, but there was little or nothing in addition to that to suggest that the claimant had been subjected to discrimination on the grounds of her age. The tribunal did not believe in this case that the claimant had proved facts on the basis of which the tribunal could conclude that the claimant had been subjected to age discrimination. The burden of proof would not therefore have shifted to the respondents in this case to prove that no discrimination had occurred.
60. Furthermore, in accordance with the guidance given by Lord Nicholls in the case of Shamoon, the tribunal focused on the reason why the claimant had been treated as she had, that is why her agency contract had been terminated. Mr McManus accepted in his evidence that the decision to terminate the claimant’s contract had been taken by him. The tribunal found that Mr McManus gave his evidence in a straightforward manner. Mr McManus gave evidence that he was aware that the claimant was an agency worker and not an employee and the College could terminate any assignment simply by giving notice to Hays. Mr McManus told the tribunal that the reason for termination of the claimant’s contract was her performance and her focus and approach in doing the job of mentor, particularly in relation to obtaining participants for the programme.
61. The tribunal accepts Mr McManus’ evidence in this regard and has concluded that the reason for termination was connected with the claimant’s status as an agency worker and her performance in the role. We do not believe that the claimant’s age played any part in the decision to terminate her contract.
62. Accordingly in the event that it had been required to formally determine this point, the tribunal would have concluded that the claimant was not discriminated against by any of the respondents on the grounds of her age.
Chairman:
Date and place of hearing: 8-11 May 2012, Belfast.
Date decision recorded in register and issued to parties: