Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2014/1615_05IT.html
Cite as: [2014] NIIT 1615_05IT, [2014] NIIT 1615_5IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1615/05

CLAIMANT: Robert James Peifer

RESPONDENTS: 1. Drumglass High School

2. Southern Education and Library Board

DECISION

1. The unanimous decision of the tribunal is that the claimant is entitled to an award of £3,428.61 (to include interest of £1,428.61) in relation to injury to feelings.

2. The tribunal also refers to the claimant’s claim of victimisation in its findings of fact and in its conclusions, and unanimously dismisses any such claim.

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr F Murtagh

Ms E McFarline

Appearances:

The claimant appeared in person and represented himself.

The respondents were represented by Miss Finnegan, Barrister-at-Law, instructed by the Education and Library Board Solicitors.

Issue before the tribunal

1. (i) The issue before the tribunal was as follows:-

What remedy, if any, is the claimant entitled to pursuant to the respondents’ admission of liability as recorded in the tribunal’s decision issued on 9 September 2013, a copy of which is annexed to this decision?

(ii) In his evidence before the tribunal, the claimant also raised the issue of victimisation which had been included as a factual issue only in the Case Management Discussion on 10 December 2012. He contended that it had not been included in the hearing held on 2 September 2013 during which the respondents admitted liability for discrimination on the ground of sex. The respondents’ counsel cross-examined the claimant on his claim of victimisation at this hearing held on 18 August 2014, which was listed as a Remedy Hearing. For the removal of doubt the tribunal has therefore addressed this issue in both its findings of fact and conclusions.

Sources of evidence

2. The tribunal heard evidence from the claimant. The respondents did not call any witnesses. The tribunal was also presented with a bundle of documentation from the claimant, which he adopted as part of his evidence, together with a separate bundle furnished by the respondents.

Findings of fact

3. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) In correspondence to the claimant dated 7 July 2014 the respondents articulated the admission of liability made at the hearing on 2 September 2013 as follows:-

‘The Respondents admit liability on the basis for the post of classroom assistant at Drumglass High School that two female candidates in the second recruitment exercise were shortlisted on 6 October 2005 when neither candidate had received training in autism, ADHD, or dyslexia whereas the Claimant was not shortlisted against that criterion. After a period of 8 years the Respondents are not in a position to offer any explanation as to why this happened and therefore the Respondent admits liability on the grounds of sex discrimination’.

(ii) In his evidence to the tribunal the claimant referred to an amendment to the factual issues made at a Case Management Discussion held on 10 December 2012 as follows:-

“Was the claimant victimised by the respondents because he had made previous complaints of sex discrimination?”

(iii) In the course of cross-examination of the claimant, Miss Finnegan raised the above issue. The shortlisting had taken place on 6 October 2005. The interviews were held on 18 October 2005. The claimant sent a statutory questionnaire to the respondents on 22 October 2005. There was no evidence before the tribunal that there was a causal nexus between any of the claimant’s previous complaints and his failure to be shortlisted on
6 October 2005, or that any of the relevant personnel involved knew of any such complaints. The claimant acknowledged that he had not made any complaint against the respondents in advance of dating and serving the statutory questionnaire on 22 October 2005.

(iv) The tribunal was shown an exchange of correspondence between the claimant and the respondents’ representative relating to the claimant’s alleged loss. The claimant stated in his response to the respondent’s solicitor dated 4 July 2014 that he could not have applied for jobs from 18 October 2005 as “my job has been the continuing overlapping litigation of 13 cases, including their many appeals”. The tribunal does not accept that this is a valid reason for not pursuing other jobs and finds that the claimant failed to mitigate his loss from 18 October 2005 until the date of the tribunal hearing. Furthermore, the claimant acknowledged in the correspondence to the respondents’ solicitor dated 4 July 2014 that he had no earnings during this period and had not received any benefits for the period of one year prior to 18 October 2005 or thereafter. He produced no evidence of any internet job search results from job websites he may have been registered with from 18 October 2005 to the date of the hearing.

(v) The claimant furnished documentation relating to his medical history from 2008-2013. He did not furnish any medical report linking any of his health issues to the case before the tribunal. However he did give evidence to the tribunal that he had felt hurt. The claimant also referred to having missed time with family and friends and also relied on the fact that during the litigation his parents had died. He maintained that he had been deprived of spending time with them, having been deliberately “locked out” of employment. However, the claimant had chosen to live in the United Kingdom from 1985 and, apart from two years subsequently spent in the USA, he has also chosen to live in Northern Ireland for just over 11 years. Furthermore the fact that he may have a very limited social life and feels robbed of social ties, cannot be categorised as part of a claim for injury to feelings in the circumstances of this case.

The Law

4. (i) The three bands for injury to feelings compensation set out in Vento v Chief Constable of West Yorkshire Police (2003) IRLR 102, have been updated in Da’Bell v NSPCC (2010) IRLR 19 as follows:-

(1) Lower Band – up to £6000

(2) Middle Band - £6000 to £18000

(3) Higher Band - £18000 to £30000

Since inflation has remained low since 2010, the tribunal is satisfied that the above bands remain applicable. An injury to feelings award is compensatory and not punitive.

(ii) In relation to mitigation of loss, the onus of proof is on the respondents. They must show that the claimant has acted unreasonably in failing to seek alternative work, or in turning down a job offer; and the test is objective in all the circumstances of the case (Wilding v BT plc [2002] IRLR 524).

Submissions

5. (i) Miss Finnegan submitted that the entire recruitment exercise had been ultimately aborted, no appointment had been made, and the claimant had not been shortlisted because he did not have specific autistic training. She further submitted that even if he had been interviewed the process would have been audited by the Board and he would not have been appointed as he did not meet the specific training criteria in relation to autism. Counsel also submitted that all that the claimant had lost was an opportunity to be interviewed and therefore there would have been no loss of earnings claim. She referred to the fact that the claimant had not sought any other employment, and had not produced any medical evidence to support his assertion that his medical condition was linked to this case. She submitted that any award for injury to feelings should be towards the lower end of the lower Vento band.

(ii) The tribunal also considered the claimant’s submissions which largely focused on reopening liability issues.

Conclusions

6. The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-

(1) The tribunal accepts that there is some degree of injury to feelings in this case as a result of the claimant not being shortlisted for the Classroom Assistant post on 6 October 2005. The medical history relied on by the claimant was unsatisfactory in that it did not show a connection with this case and appeared to commence, in any event, in 2008. The tribunal is also satisfied that the claimant acted unreasonably in failing to seek alternative work from 18 October 2005 to the date of hearing.

(2) The tribunal awards the claimant £2000 in relation to injury to feelings. It also awards interest on this sum from 6 October 2005 to the date on which interest is calculated at the applicable rate of 8%. The tribunal calculates interest at £1,428.61. The total award under this heading is therefore £3,428.61.

(3) The claimant raised the issue of victimisation which was the subject of cross examination by the respondents’ counsel. The tribunal considered the claimant’s claim of victimisation and the protected acts referred to in the Case Management Discussion on 10 December 2012, and in his evidence before the tribunal. As referred to in paragraph 3(iii) of the findings of fact, the tribunal is not satisfied that the causal nexus has been established by the claimant between the fact of having done any of the protected acts he referred to in his evidence and the decision by the respondent not to shortlist him for the Classroom Assistant post on 6 October 2005. In this respect the tribunal had regard to the cases of St Helens Metropolitan Borough Council v Derbyshire (2007) IRLR 540 HL, Nagarajan v London Regional Transport (1999) IRLR 572 HL, Villalba v Merrill Lynch and Co Inc (2006) IRLR 437 EAT, and Chief Constable West Yorkshire Police v Khan (2001) IRLR 830 HL.

(4) The claimant’s claim of victimisation is therefore dismissed.

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge:

Date and place of hearing: 18 August 2014, Belfast.

Date decision recorded in register and issued to parties:

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