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Cite as: [2013] NIIT 1183_12IT, [2013] NIIT 01183_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1183/12

CLAIMANT: Nuala Kelly Bonner

RESPONDENT: Jennifer McKeever

DECISION

The unanimous decision of the tribunal is that the claimant’s claim she was discriminated against by the respondent by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, is dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Ms J Townsley

Mr J Barbour

Appearances:

The claimant appeared in person and was not represented; but was assisted by her husband, Mr M Bonner, as a ‘McKenzie Friend’.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Hasson & Company, Solicitors.

1.1 The claimant presented a claim to the tribunal on 27 June 2012, in which she claims she had been discriminated against by the respondent by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976. The respondent presented a response to the tribunal on 2 August 2012, in which, inter alia, she denied liability for the said claim of the claimant.

1.2 Following a series of Case Management Discussions, the claimant and the respondent’s representative agreed a statement of issues, which agreement was confirmed at the commencement of these proceedings, and which provided as follows:-

“Issues

Factual

(1) Did the claimant lose her job or her work with Lynch’s Coaches in 2007 and if so was it due to any act or action of the respondent?

(2) Did the claimant lose her job or her work with McGread’s Coaches in 2007 and if so was it due to any act or action of the respondent?

(3) Did the claimant lose her job or her work with J&K Coaches in 2011 and if so was it due to any act or action of the respondent?

Legal

(a) Did (1) above, if it happened, amount to or constitute victimisation under Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) and was it by reason of the claimant having brought a claim against the respondent in or about 2006?

(b) Did (2) above, if it happened, amount to or constitute victimisation under Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) and was it by reason of the claimant having brought a claim against the respondent in or about 2006?

(c) Did (3) above, if it happened, amount to or constitute victimisation under Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) and was it by reason of the claimant having brought a claim against the respondent in or about 2006?

(d) Are any or all of the above issues as claims – out of time? If so, is it just and equitable to extend time?

(e) Is the respondent immune from suit over issues (1), (2), and (3) above because they arise from or are connected to her written statement and evidence in the claimant’s claim against J&K Coaches? (Which issue, at the commencement of the hearing, was agreed to relate to ‘Judicial Proceedings Immunity’.]

(f) Are any or all of the issues (1), (2) and (3) above, particularly (3), cause of action or issue stopped having been effectively adjudicated upon in the claimant’s cases against Lynch’s Coaches, McGread’s Coaches and J&K Coaches?

(g) Alternatively, are any or all of the issues (1), (2) and (3) above, barred from proceeding under the rule in Henderson v Henderson in that they could or should have been adjudicated in the claimant’s cases against Airporter Ltd, Lynch’s Coaches, McGread’s Coaches, J&K Coaches?”

1.3 The tribunal heard oral evidence from the claimant, the respondent and the respondent’s solicitor, Mr John Hasson, of Hasson & Company, Solicitors; and, during the course of the said evidence, was referred by the claimant and the respondent’s representative to various documents contained in the trial bundles prepared by each of the parties. At the conclusion of the hearing, the tribunal also heard oral submissions from the claimant and the respondent’s representative. The tribunal, in light of the forgoing, made certain findings of fact, which are set out in Paragraph 5 of this decision.

1.4 At the commencement of the hearing, the claimant confirmed that her claim was a claim for injury to her feelings and there was no claim for any other financial loss.

2.1 As set out above, the claimant’s claim was one of discrimination by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’).

Article 6 of the 1976 Order provides as follows:-

“(1) A person (the ‘discriminator’) discriminates against another person (the ‘person victimised’) in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Order …

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order …

(c) otherwise done anything under or by reference to this Order … in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act which (whether the allegation so states) would amount to contravention of this Order …

or by reason that the discriminator knows that the person victimised intends to do any of those things or suspects the person victimised has done, or intends to do, any of them.

(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

(3) For the purposes of Paragraph (1) the provision of Part III … framed with reference to discrimination against women shall be treated as applying equally to the treatment of men and for that purpose shall have effect with such modifications as are requisite.”

Article 63A:-

“(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(2) Where, on the hearing of a complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination … against the complainant which is unlawful by virtue of Part III, or

(b) is by virtue of Article 42 or 43 is to be treated as having committed such an act of discrimination … against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

2.2 In relation to the burden of proof provisions set out in the relevant legislation, as referred to above, the English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, applicable under the legislation applying in Great Britain and, it approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Bridget McDonnell & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below). The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25 (see further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy (see below). The Supreme Court, in particular, did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; stating they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to [tribunal’s emphasis] offer where the tribunal was in a position to make positive findings on the evidence one way or the other.

In Madarassy v Nomura International PLc [2007] IRLR 246, the Court of Appeal held, inter alia, that:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination – could conclude in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude from all the evidence before it’. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation, at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”

2.3 In the case of Curley v Chief Constable of the Police Service of Northern Ireland & Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgment of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at Paragraph 8 of his opinion, as follows:-

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.”

(See further Nelson v Newry & Mourne District Council [2009] NICA 24 where Girvan LJ approved the judgment in Madarassy and Laing.)

2.4 The said reversal of burden of proof provisions also apply to cases of victimisation (see further Rice v McEvoy [2011] NICA 9). Further, the House of Lords made clear, in the decision in the case of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, victimisation occurs when in any circumstances relevant for the purposes of the provisions of this act, a person is treated less favourably than others because he/she has done one of the protected acts. Thus, in order to make the necessary comparison it is necessary to compare the treatment afforded to the claimant who has done a protected act and the treatment which was or would be afforded to other employees, who had not done the protected act. This may involve a comparison with an actual or hypothetical comparator. In the Rice case, Lord Justice Girvan, at Paragraph 33 of his judgment, when considering ‘the reason why issue’ stated:-

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious. If under such consideration it appears that the protected act had a significant influence on the outcome victimisation is established (see Lord Nicholls 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 reasons? 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 (per Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at Paragraph 24).”

Lord Scott in the Khan case referred to establishing ‘the real reason’ (‘the core reason’ and ‘the motive’) for the treatment complained of. As Higgins LJ stated in Northern Ireland Fire & Rescue Service & Another v McNally [NICA unreported 29 June 2012], at Paragraph 23 of his judgment:-

“The primary object of the victimisation provisions is to ensure that employees who have taken steps to exercise their statutory rights (under the 1998 Order) are not penalised for doing so (see Lord Nicholls in Khan v Chief Constable of West Yorkshire Police [2001] UKHL 48 at Paragraph 16.”

In relation to whether the ‘protected act’ has a significant influence on the outcome, as referred to by Lord Nicholls in Nagarajan, that expression was interpreted as an influence more than trivial. In Villalba v Merlin Lynch & Co [2006] IRLR 43, Elias J, as he then was, held that, if in relation to any particular decision where a discriminatory influence was not a material influence or factor, then it was trivial and therefore according to the dicta in Igen v Wong [2005] IRLR 258 insufficient to break the principle of equal treatment.

2.5 In order to qualify as a ‘detriment’ it was held in Shamoon by the House of Lords that a tribunal must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances where he thereafter had to work. It further held an unjustified sense of grievance could not amount to a detriment (see further Northern Ireland Fire & Rescue Service & Another v McNally [NICA unreported 29 June 2012].

3.1 However, as set out in the agreed statement of issues, and confirmed by the parties at the outset of the hearing, a major issue which the tribunal required to consider, in light of the facts as found by the tribunal, related to ‘Judicial Proceedings Immunity’.

3.2 As set out in Harvey on Industrial Relations and Employment Law, Volume 3, Part P1, Paragraph 63, this issue and the relevant case law is discussed in some detail, as set out below:-

“63 It is a basic and long established principle of the common law that there is absolute immunity from suit in respect of anything said or done in the course of judicial proceedings, the rationale being the protection of the integrity of the judicial process and hence the public interest. The immunity applies to any type of claim made in respect of such behaviour or statement, except for suits from malicious prosecution, prosecution for perjury and proceedings for contempt of court and it attaches to the proceedings of any type of judicial or quasi-judicial body (see Heath v Metropolitan Police Commissioner [2004] EWCA Civ 493 at Paragraph 17). In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 at 445 – 446, Lord Hope of Craighead described the width of the rule in these terms :

‘When a police officer comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceedings in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done falsely and maliciously and without reasonable and probable cause … The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence.”

“63.01 The test for determining whether a body is ‘judicial’ for the purposes of the Rule is whether it has similar attributes to, or acts in a manner similar to, a court of law and this involves a consideration of four questions, as identified by Lord Diplock in Trapp v Mackie [1979] 1 AER 489:

(i) whether the tribunal is recognised by law;

(ii) whether the issue is akin to that of a civil or criminal issue in the courts;

(iii) whether its procedures are akin to that those in civil or criminal courts; and

(iv) whether the rights of its procedures lead to a binding determination of the civil rights of a party or parties.

These four categories were intended by Lord Diplock to be applied flexibly, so that the satisfaction of one of them would not on its own attract absolute immunity, nor would the failure to satisfy one necessarily be fatal to it.

… .”

“64 The fundamental importance of this Rule is highlighted by the Court of Appeal’s rejection of a number of arguments raised by the claimant under the Human Rights Convention and the Equal Treatment Directive. These were claims:

(a) under Article 6(1) of the Convention that the application of the absolute immunity rule violated the claimant’s right to a fair hearing because it denied her access to the employment tribunal;

(b) under Article 6(1) of the Convention that intrusive questioning of the claimant at the disciplinary hearing was an interference with her right for a private life;

(c) under the Directive that the application of the absolute immunity rule operated as a procedural bar to the claimant’s right to bring a claim for unlawful sex discrimination before an employment tribunal, contrary to the requirements of the Directive. The Article 6 claims was rejected on the ground that the purpose of the immunity rule was legitimate, necessary and proportionate in the public interest for the protection of the integrity of the judiciary system and outweighed the recognition in SDA of the importance of eradicating unlawful discrimination (Paragraph 7.21). The Article 8 claim was rejected on the ground that the police inspector, who was the defendant in the police disciplinary proceedings had a right to a fair trial, and that fact, coupled with the general public interest policy underline the absolute immunity rule, meant that the application of the rule was necessary to protect the rights and freedoms of others and thus was justified under Article 8(2) as an exception to Article 8(1) right (Paragraphs 77 – 78).

Finally, the argument under the Directive was rejected on the ground that there was no basis for saying that the Directive should displace the absolute immunity rule. If it were to do so, it would follow that ‘it should operate so as to disapply other similar rules of general effect, for example, sovereign immunity, res judicata, abuse of process, compromise of claims and estoppel’.

According to Auld LJ, although the eradication of unlawful discrimination was an imperative, it was not of such overriding importance that it should hold sway over other fundamental norms or law on judicial process. In any event, he held that EU law allows for the qualification or restriction of Directives in limited circumstances, where this is considered necessary for procedural or other reasons in the wider public interest, and the Equal Treatment Directive could not be said to be an exception to this principle (Paragraphs 93 – 94).

65 In South London and Maudsley NHS Trust v Dathi [2008] IRLR 350, it was held that absolute immunity from suit attached to two letters written by the (non-lawyer) representatives of the respondents in the context of the claimant’s discrimination claims held by an employment tribunal. The first was a letter of the claimant’s solicitors following case-management directions objecting to disclosure of certain documents, and the second was a letter to the tribunal after the claims had been heard resisting an application for costs. The claimant sought to found a new claim of discrimination and victimisation upon the contents of those letters. In the Employment Appeal Tribunal, Judge McMullan QC held that the tribunal had no jurisdiction to hear the new claim and struck it out. He based his decision on Devlin LJ’s categorisation of the absolute immunity rule in Lincoln v Daniels [1962] 1 QB 237 at 258.

According to Devlin LJ, the absolute privilege which covers proceedings in or before a Court of Justice can be divided into three categories:

‘The first category covers all matters that are to be done [before a court]. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of the documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the Writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v McEwen [1905] AC 480, in which the House of Lords held that the privilege attaching to evidence which a witness gives [before a Court] extended to the … proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v White [1914] 58 SOLJO 670, the privilege was held to attach to what was said in the course of an interview by a solicitor with the person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings’.

65.01 In Dathi, Judge McMullan QC held that both letters fell within the second category, and that it was immaterial that the representatives who wrote them were not lawyers. The costs letter plainly fell into the second category: it was a pleading or other document brought into existence for the purpose of the proceedings, was directed to the tribunal, and was the respondent’s response to the application for costs. Although the disclosure letter was not directed to the tribunal and could not be said to be a pleading, it was conceded that it had come into existence for the purpose of giving effect to the case-management directions. Thus, not only had it been brought into existence for the purposes of the proceedings, in line with the wording of the second category, but it ‘was pursuant to a direct Order of the Tribunal in relation to disclosure and bundle preparation’ (Paragraph 27). Accordingly, it too fell within the scope of the second category.

65.02 The reasoning in Heath was applied by the EAT in rejecting an argument that discrimination by way of victimisation provided an exception to the absolute immunity rule. In Parmar v East Leicester Medical Practice [2011] IRLR 64, Underhill J held that there were no special considerations applying to victimisation more than to other kinds of discrimination; all forms of discrimination fell within the Rule. The claimant’s claims for victimisation based on the contents of witness statements in previous proceedings against his employer had therefore been correctly dismissed by an Employment Judge.”

3.3 In a recent decision of the Employment Appeal Tribunal, in the case of Singh v Reading Borough Council [2013] UKEAT/0540/12 (12 February 2013), Mrs Justice Cox considered the law relating to ‘Judicial Proceedings Immunity’ and the rationale for same in some detail. In the case, the claimant (a former head teacher) had brought a claim alleging a campaign of racial discrimination, harassment and victimisation, by parents, staff and Governors at the school. Before the tribunal hearing began, and while the claimant was still employed as a head teacher, the respondent served a witness statement from the Clerk to the Governing Body. The claimant believed that the statement was the result of improper pressure being put upon the Clerk as part of the campaign of racial discrimination. In consequence she resigned from her employment, claiming that this was the ‘final straw’; and she then applied to amend her claim to include a claim of constructive dismissal. The Employment Appeal Tribunal reviewed the relevant legal authorities, as set out above in the extract from Harvey, in relation to this issue of ‘Judicial Proceedings Immunity’ and, in particular, relied upon South London and Mudsley NHS Trust v Dathi and Darker v Chief Constable of the West Midlands Police and Parmar v East Leicester Medical Practice, referred to above, and held that actions in the preparation of a case for trial, including [tribunal’s emphasis] the preparation of witness statements attracted absolute privilege and could not be relied upon by the claimant in relation to the proposed amended claim of constructive dismissal.

4.1 Again, as set out in the statement of issues, the principle in Henderson v Henderson was also referred to. In general, a litigant must raise all relevant points at the trial of the complaint he has brought. The Courts have along adhered to the principle that when a litigant brings a case he must bring forward his whole case and will not, except in special circumstances, be permitted to bring fresh proceedings in respect of the matter which could and should have been litigated in earlier proceedings. The starting point for this principle is the decision of the Court of Appeal in Henderson v Henderson [1843] 3 HARE 100. In recent years the civil courts have taken a more liberal approach to the principle of Henderson v Henderson. In Johnson v Gore Wood Ltd [2002] 2 AC 1, Lord Millett stated in the course of his judgment:-

“Insofar as the so-called rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that is a distortion of the true position. The burden should always rest upon the defendant to establish it is oppressive or an abuse of process for him to be subjected to the second action.”

Thus the principle in Henderson v Henderson does not provide an automatic bar to a second set of proceedings provided it would not be abusive or oppressive to take that step and the burden is on the party asserting abuse of process to establish it (see Christou and another v London Borough of Haringey [2013] EWCA Civ 178).

In Johnson v Gore Wood Ltd, Lord Millet confirmed that the principle in Henderson v Henderson only applies where a claim is brought between parties who had been parties to the previous proceedings. In view of the decision of the tribunal, as set out below, it was not necessary to further consider the principle in Henderson v Henderson and the matters referred to above.

5.1 The tribunal made the following findings of fact, insofar as relevant and material to the determination of the claimant’s claim, which are set out in the following sub-paragraphs.

5.2 The respondent is a director of a company called Airporter Limited. The other directors are the respondent’s husband and her mother. The claimant is a bus driver.

5.3 The respondent is a member of the Federation of Passenger Transport NI (‘the Federation’). The tribunal is satisfied the respondent has not attended the regular monthly meetings of the Federation for approximately six years; but she has attended, on a number of occasions, in the said period, the Annual Federation Dinner, which is a social occasion attended by members and suppliers and, at such dinners, the respondent has received awards on behalf of Airporter Limited, in her capacity as a director of the said company.

5.4 The claimant, in or about 2006, brought a claim of sex discrimination against Airporter Limited, which was given the Case Reference No: 854/06. At that time, the respondent’s father, now deceased, was also a director of Airporter Limited. Subsequently, in or about October 2007, the said claim was settled as a result of conciliation action by the Labour Relations Agency. The claim was subsequently dismissed by the tribunal, following notification of the conciliated settlement in a decision registered and issued to the parties on 24 July 2008.

5.5 The claimant in or about 2007 worked as a casual driver for McGread’s Coaches; but this worked ceased in or about 2007 after the settlement of the claimant’s claim with Airporter Limited, referred to above. Isobel Dunne, one of the co-owners of McGread’s Coaches, told the claimant there was no work. The claimant did not bring any claim against McGread’s Coaches arising out of the said loss of job and/or work.

5.6 The claimant brought a further claim (the Lynch Coach case) in or about 2008 against Paul Lynch and Lynch Coach Hire, which was given the Case Reference No: 1026/08. The respondent was not a party to those proceedings. By a decision registered and issued to the parties on 21 September 2009, the claimant’s claim was dismissed following notification of conciliation settlement entered into between the parties with the assistance of the Labour Relations Agency.

5.7 The claimant brought another claim (J&K Coaches claim) in or about 2011 of sex discrimination against:-

(i) J&K Coaches;

(ii) Jim Quinn; and

(iii) Kevin Quinn;

which was given the Case Reference No: 206/11, in relation to a claim arising out of the alleged withdrawal of a job offer to the claimant.

5.8 In connection with the defence of the J&K Coaches claim, by the respondents to that claim, the respondent provided a witness statement for use at the hearing of the claim at the request of the said respondents and their representative. The respondent made the witness statement on 30 March 2011, which was served on the claimant, in accordance with the tribunal’s case-management directions/orders relating to the said claim. For the purposes of these proceedings, in light of the tribunal’s decision, as set out below, it is not necessary to set out in full the said statement made by the respondent. In essence, the said statement referred to the history of the proceedings in relation to the claim brought by the claimant against Airporter Limited and the subsequent settlement of the claim; albeit it was accepted the statement referred, in error, and inaccurately to the actual settlement figure agreed between the parties.

5.9 Upon receipt of the said witness statement, the claimant amended her J&K Coaches claim to include a claim of discrimination by way of victimisation against J&K Coaches the said respondents to that claim, namely Jim Quinn and Kevin Quinn, because, as she said in evidence to this tribunal, she believed the witness statement provided proof, which she had not previously had, that the respondent was trying to prevent her obtaining any work as a bus driver in the Derry area because she had brought the previous claim against Airporter Limited.

5.10 By a decision registered and issued to the parties on 19 October 2012, the tribunal found in relation to the J&K Coaches claim:-

“The claims of unlawful discrimination are dismissed.”

In addition to her witness statement, the respondent also gave oral evidence during the course of the three day hearing of the J&K Coaches claim.

5.11 As set out previously, the claimant presented her claim of discrimination by way of victimisation against the respondent, pursuant to the 1976 Order, on 27 June 2012.

5.12 The claimant, in the course of her evidence, acknowledged that in relation to her claim of victimisation against the respondent, the subject-matter of these proceedings, the said witness statement contained the evidential basis for her said claim of victimisation against the respondent; and it showed that the respondent, because she had brought her claim against Airporter Limited, had resulted in her losing her job and/or work with Lynch’s Coaches in or about 2007 and/or McGread’s Coaches in 2007 and/or J&K Coaches in 2011. She further contended, during the course of her evidence to this tribunal, that the making of the witness statement in the J&K Coaches claim was an act of victimisation in itself.

5.13 The claimant, prior to the commencement of these proceedings on 25 June 2012 issued a statutory questionnaire to the respondent. The response to the questionnaire was sent on behalf of the respondent on 31 July 2012 by her solicitor, Mr John Hasson, of Hasson & Company, Solicitors. In the course of the reply to the statutory questionnaire, in answer to questions by the claimant in relation to her knowledge of Isobel Dunne, one of the co-owners with her husband, Bill Dunne of McGread’s Coaches and/or whether the respondent had ever spoken to Isobel Dunne or others about the Airporter Limited claim, the reply was given at Paragraphs 6A of the reply:-

“I do not know Isobel Dunne but I believe that her husband is Bill Dunne, whom I have met in the past. He was a friend of my late husband. I have never met or spoken to Isobel Dunne.”

The tribunal is satisfied this reply was provided by the respondent’s representative on foot of telephone instructions, provided by the respondent to her representative as she was then on holiday, in order to comply with the time-limits relating to the completion of the reply to the statutory questionnaire. Upon the respondent’s return from holiday, in her perusal of the said reply sent by her representative to the claimant, she recognised the above reply was in error. Upon her instructions, the respondent’s representative wrote to the claimant’s then representative on 9 August 2012 to correct the above reply to:-

“I knew and I have met Isobel Dunne; both herself and her husband Bill Dunne were good friends of my late father. I had met both Mr and Mrs Dunne at my father’s wake. I do not recall ever having spoken to Isobel Dunne about Nuala Bonner’s case with Airporter. However if I had ever spoken to Isobel Dunne about the Airporter case it would not have been instigated by me. Similarly, as with Bill Dunne the same situation would apply.”

The respondent’s representative in his said letter confirmed, which the tribunal accepts, the correction was due to his fault in taking the said telephone instructions. Further, the tribunal having been satisfied the said reply was made in error, which was quickly corrected, was not, in the circumstances, an evasive or equivocal answer and it was therefore not appropriate to draw any adverse inference from the said error (see D’Silva v NATFHE [2008] IRLR 412).

5.14 During the course of her evidence, the claimant expressly acknowledged that, in her claim form, in her present proceedings, she had made no claim of victimisation against the respondent in respect of any loss of work by her at McGread’s Coaches; and it was not until after the commencement of proceedings in or about 30 December 2012, during the case-management process, she first alleged the respondent had spoken about her and/or the Airporter Limited claim to Isobel Dunne at the meetings of the Federation.

5.15 The tribunal was satisfied by the respondent’s firm denial, both in reply to the statutory questionnaire but also during the course of oral evidence to this tribunal, that there was no evidence, as alleged by the claimant, that the respondent had discussed the claimant at Federation meetings and/or dinners; and, in particular, she had not discussed at any time with Isobel and/or Bill Dunne of McGread’s Coaches and/or Paul Lynch of Lynch’s Coaches, either the claimant, the Airporter Limited case, or the claimant’s alleged loss of job or work with McGread’s Coaches and/or Lynch’s Coaches and/or J&K Coaches.

5.16 In relation to J&K Coaches, the tribunal was satisfied the respondent’s only involvement in relation to the claimant’s alleged loss of work or job with J&K Coaches was the respondent’s witness statement and oral evidence provided, as set out above, during the course of the proceedings brought by the claimant against J&K Coaches.

6.1 The tribunal reached the following conclusions, in light of the findings of fact made by it, the legislative provisions and the case law referred to in the previous paragraphs of this decision.

6.2 In the absence of any findings of fact by the tribunal of any involvement whatsoever by the respondent in relation to the claimant’s alleged loss of a job and/or work with either McGread’s Coaches and/or Lynch’s Coaches, the tribunal was not satisfied that it could conclude the respondent had discriminated by way of victimisation against the claimant in relation to the said alleged loss of job and/or work with either McGread’s Coaches and/or Lynch’s Coaches (see further Madarassy v Nomura International PLc [2007] IRLR 246).

6.3 The witness statement of the respondent, having been provided by her, together with her oral evidence during the course of the J&K Coaches claim, as set out previously, is, in the tribunal’s judgment, the subject of ‘Judicial Proceedings Immunity’ (see further Paragraphs 3.2 – 3.3 of this decision); and is therefore the subject of absolute privilege and cannot be relied upon by the claimant in these proceedings either as evidence of discrimination by way of victimisation or as an allegation of discrimination by way of victimisation in itself. Therefore, in relation to the claimant’s alleged loss of job and/or work with J&K Coaches, the tribunal was not satisfied it could conclude the respondent had discriminated by way of victimisation against the claimant.

Even if the tribunal is wrong in relation to the issue of ‘Judicial Proceedings Immunity’, the tribunal is not satisfied that, contrary to the claimant’s assertion, the said witness statement provided any proof of discrimination by way of victimisation in relation to her alleged loss of job and/or work with McGread’s Coaches and/or Lynch’s Coaches; or of discrimination by way of victimisation in itself and/or J&K Coaches. In essence, the said witness statement factually recorded, but no more, the claimant had brought a claim of sex discrimination against Airporter Limited, which was subsequently settled following conciliation action by the Labour Relations Agency.

7.1 The claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing: 11 February 2013, Belfast

Date decision recorded in register and issued to parties: