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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ritchie v Queen's University Belfast [2014] NIIT 1760_13IT (04 September 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1760_13IT.html
Cite as: [2014] NIIT 1760_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1760/13
CLAIMANT: Marion Richie
RESPONDENT: Queen’s University Belfast
DECISION
The unanimous decision of the tribunal is that the claimant’s claims are dismissed in their entirety.
Constitution of Tribunal:
Employment Judge: Employment Judge Knight
Members: Ms G Ferguson
Mr D Walls
Appearances:
The claimant was represented by Mr A Higgins, Barrister-at-Law, instructed by Donnelly & Kinder Solicitors.
The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Pinsent Masons LLP.
CLAIMS
1. The claimant lodged her originating claim form with the Office of the Tribunals on 2 October 2013 in which she made the following claims:
(a) Constructive dismissal pursuant to Articles 126 and 127 of the Employment (Northern Ireland) Order 1996 (“the 1996 Order”) as amended.
(b) Direct sex discrimination based on a number of alleged detriments other than alleged constructive dismissal, contrary to Articles 3 & 8 of the Sex Discrimination (Northern Ireland) Order 1976 (“ the 1976 Order”).
(c) Direct sex discrimination contrary to Articles 3 & 8 of the 1976 Order as amended based upon the alleged constructive dismissal.
(d) Discrimination on the grounds of pregnancy and/or illness related pregnancy and/or maternity leave, contrary to Article 5A of the 1976 Order as amended by reason of two alleged detriments during maternity leave and/or maternity related sickness absence
(e) Automatically unfair dismissal pursuant to Article 131 of the 1996 Order and Article 20 of the Maternity and Parental Leave Regulations (Northern Ireland) 1999, on the basis that it is alleged that the reason for dismissal was pregnancy, child birth, maternity or taking/seeking time off for a dependent.
(f) Unlawful detriment contrary to Article 70 (C) of the 1996 Order for having sought leave for a dependent.
(g) Unlawful detriment contrary to Article 70 (E) of the 1996 Order for proposing to make an application for flexible working.
(h) Victimisation within the meaning of Article 60 of the 1976 Order for having raised alleged discriminatory actions with the Respondent at a meeting on 24 July 2014.
(i) Indirect sex discrimination contrary to the provisions of Article 3 and Article 8 of the 1976 Order.
LEGAL ISSUES
2. The legal issues to be determined by the tribunal were agreed by the parties at a Case Management Discussion and confirmed by the parties’ representatives at the beginning of the hearing as follows:-
A. Time Limit and Jurisdictional Issues – Discrimination
(a) Whether there was a continuing act of discrimination from 15 March 2012 culminating in the dismissal of the claimant or were some of the claimant’s complaints presented outside of the time limits specified in Article 76(1) of the Sex Discrimination (NI) Order 1976 (as amended), and if so;
(b) whether in all the circumstances it is just and equitable for the tribunal to entertain these complaints even though they are made out of time?
The tribunal determined at the outset of the hearing with the agreement of the parties that it was in the interests of justice that the tribunal should not deal with the jurisdictional matters as a preliminary issues but should hear the entire evidence in the case before reaching its conclusions.
B. Direct Sex Discrimination Articles 3(2)(a) and 8 of the 1976 Order
Was the claimant subjected to less favourable treatment on the ground of her sex by reason of the following matters:
a) The claimant was reminded of absence procedures during her maternity leave.
b) Changes to her duties and in particular in relation to her position managing the travel contract (Also alleged pregnancy discrimination).
c) Email circulated to claimant and her colleagues reminding them of procedure for booking annual leave.
d) Not supporting the claimant’s application for flexible working.
e) At a meeting on 21 March 2013, Ms Massey:-
i. informed claimant that she had 6 weeks to improve/would be subject to capability procedure.
ii. suggested she seek work elsewhere.
iii. failed to support for the claimant to reduce her hours.
f) Claimant refused permission to work from home.
g) Two of claimant’s colleagues were advised of the opportunity for promotion to Senior Buyer.
h) Mr Currie transferred and/or appointed to role of senior buyer.
i) Comment – claimant would be naive to think her complaint would have no effect on line manager.
j) Increase in criteria for the Senior Buyer post.
k) Not appointing the claimant to the permanent position of Senior buyer.
l) Not offering the claimant the opportunity to act up in the temporary position of Senior buyer.
m) Application of the disciplinary procedure for accessing the premises following her resignation.
n) Deducting a day’s pay from the claimant (also alleged victimisation).
C. Indirect Sex Discrimination Article 3(1)(b)
Was any one or more of the following a provision criterion or practice?
a) Practice of reminding employees of the absence procedures whilst off sick.
b) Practice of altering duties without consultation while on maternity leave.
c) Practice of reminding employees of the procedure for booking dependent and other forms of leave.
d) Requirement to work full time.
e) The policy of stating that the request for part time or flexible working would be refused or not supported.
f) The policy of applying the respondent’s capability procedure for having utilised dependent leave.
g) The policy of not allowing work from home.
h) The practice of allowing the transfer of individuals into senior buyer roles without competition.
If so, was any applied by the respondent and did that application put women at a particular disadvantage compared with men?
Did the claimant suffer from a disadvantage?
Was the PCP so applied a proportionate means of achieving a legitimate aim?
D. Pregnancy Discrimination
a) Did the respondent remind the claimant of absence procedures during her maternity leave and make changes to her duties in relation to her position managing the travel contract and if so, did this amount to less favourable treatment contrary to Article 5A of the 1976 Order on the grounds of the claimant’s pregnancy and/or maternity leave/pregnancy related illness?
b) Was the claimant unfairly dismissed contrary to Article 131 ERO 1996 and Article 20 MAPLE Regulations (NI) for a prescribed reason being either (i) pregnancy, childbirth or maternity or (ii) time off under Article 85A (Time off for dependents).
E. Victimisation
Was the claimant victimised within the meaning of Article 6 of the 1976 Order for having raised allegedly discriminatory actions of the respondent in a grievance meeting on 24 July 2013 by:
a) Application of the disciplinary procedure for accessing the premises following her resignation.
b) Deducting a day’s pay from the claimant.
F. Detriment
Was the claimant subjected to a detriment contrary to the provisions of:
a) Article 70E ERO 1996 for proposing to make an application for flexible working under Art 112F?
b) Article 70C for having sought time off under Article 85A dependent leave?
c) If so were the claimant’s claims presented within the statutory time limit in relation to alleged detriment suffered more than 3 months before 2 October 2013?
G. Constructive Dismissal
Was any contractual breach on the part of the respondent an effective cause or did it play a part in the dismissal of the claimant? If so:
(a) Whether any such breach was repudiatory so as to have entitled the claimant to have treated herself as dismissed pursuant to Article 127(1)(c) of the Employment Rights (NI) Order 1996 and contrary to Article 126 of the 1996 Order;
(b) Did the claimant affirm her contract or waive any breach?
(c) Whether the dismissal of the claimant was also unfair having regard to the provisions of Article 130 of the 1996 Order, and if so
(d) What if any compensation the tribunal should in those circumstances award to the claimant having regard to those factors set out in Articles 152-161 of the 1996 Order (including any reduction to be applied by reason of the contributory fault of the claimant; and
(e) Whether it is just and equitable for compensation to be adjusted because of the claimant’s failure to comply with the LRA Code of Practice on Disciplinary Procedures, and if so, by what percentage (subject to a maximum of 50%).
EVIDENCE
3. The tribunal considered the witness statements and oral evidence of the claimant, Mrs Ritchie, and Mr Hugh Lewsley, Security Supervisor and Shop Steward for UNITE the Union, on behalf of the claimant and Mrs Patricia (Tricia) Massey, Head of Purchasing and Ms Cathy Robson, Personnel Officer, on behalf of the respondent. The tribunal also took into account documentation to which it was referred during the course of the hearing. Where there was a conflict, the tribunal preferred on balance the evidence of the respondent’s witnesses as it found the claimant’s evidence to be vague and contradictory.
FINDINGS OF FACT
4. The tribunal found the following relevant facts to be proven on a balance of probabilities:-
(1) The claimant was employed by the respondent from 2 January 2006 as Grade 4 Buyer in the Purchasing Department, within the Finance Directorate.
(2) At the relevant time the claimant reported directly to her Team leader/Line Manager Mr Declan Fitzsimmons. His line manager was Mrs Jackie Glackin, the Purchasing Manager, who in turn was line managed by Mrs Tricia Massey, Head of Purchasing. The claimant worked on a number of contracts and tenders, including the travel contract, vehicle hire, the Microsoft campus agreement and vehicle and taxi hire services. The claimant and Mrs Massey were the only two people who worked on the travel contract. Mrs Massey had overall strategic responsibility for the travel contract and the claimant reported to her in relation to the day to day operation of the contract both prior and subsequent to her maternity leave.
(3) Generally the claimant had a good working and personal relationship with Mrs Massey. During 2007 and 2008 concerns about the claimant’s attendance were raised by Mr Fitzsimmons and Mrs Glackin, who was then acting Head of Purchasing in the absence of Mrs Massey. The claimant was spoken to about her attendance including poor absence record, booking leave which had not been accrued, late notification of absences and substituting annual leave for sickness absence. No further action was taken against the claimant as there was an improvement in her attendance from October 2008 onwards. Also in September/October 2007 the claimant complained in an email that she was being discriminated against because, unlike other colleagues, she was being required to work up study leave taken for her CIPs qualification. The matter was resolved informally in the claimant’s favour and she did not have to make up the time. Mrs Massey was made aware of these matters.
(4) There was however no issue about the quality of the claimant’s work. The claimant was appointed by Mrs Massey to act up as a Grade 6 Senior Buyer to cover for the absence of a colleague, Ms Julie-Anne McGregor, who was on secondment from 7 July 2009 until 5 March 2010 and again for her maternity leave from 18 October 2010 until 14 October 2011. On these occasions the claimant was the only person who expressed an interest in acting up.
(5) The claimant became pregnant with her first child in 2011. Her maternity leave commenced on 21 November 2011 and ended on 25 March 2012. Her baby daughter was born on 4 January 2012. She was unable to return to work and went on sick leave due to post natal depression until 24 September 2012. The claimant received full sick pay during her sickness absence.
(6) Mrs Massey volunteered, as she lives in close proximity to the claimant, to deliver a baby gift to the claimant from her work colleagues. She called out on 8 March but the claimant was not at home. Mrs Massey called with her again on 22 March 2012 and spent time with the claimant nursing her daughter and chatting about their dogs. She thought that the claimant looked unwell. This was confirmed when the claimant informed Mrs Massey that she had not been able to get dressed that day and was suffering from post natal depression. She said she would be submitting a four week sick line as she would not be fit to return to work at the end of her maternity leave. Mrs Massey empathised with the claimant as she had also suffered from post natal depression and had consequently taken sick leave following her own maternity leave. The next day Mrs Massey informed colleagues that the claimant was unwell and unlikely to return to work in the near future. This was done for operational reasons.
(7) The tribunal rejected the claimant’s evidence that during this visit Mrs Massey told her that she “did not look depressed” and informed her that the respondent university had become a lot more stringent about their absence policy and that she should “think about that before she went on long term sick leave”. The tribunal noted that there had been no change in the respondent’s sickness absence procedures since 26 August 2008 and accepted Mrs Massey’s evidence that there was therefore no reason why she would have made such a comment to the claimant. Further Mrs Massey had noted that the claimant looked unwell. The tribunal further noted that the claimant did not complain about this matter either formally or informally at any stage prior to lodging her complaint with the tribunal.
(8) The claimant continued to submit sick lines and on 18 April 2012 Mrs Massey referred the claimant to Dr Todd of the respondent’s Occupational Health Service (“OH”) at the request of Personnel Officer Ms Lisa Moore. This was in accordance with the respondent’s Sickness Absence Policy. Dr Todd saw the claimant on 1 May 2012 and he confirmed she was still unfit for work but was to be reviewed in one month with view to phased return to work over summer. The claimant was seen again by Dr Todd on 30 May 2012 who noted that there was no significant improvement in her condition. Her GP had changed her medication and referred her for counselling. Dr Todd advised the claimant that she could avail of the services of Carecall pending the GP counselling referral.
(9) On 17 September 2012 the claimant had a further appointment with Dr Todd which took place by telephone attendance as the claimant had a respiratory tract infection. Dr Todd confirmed that the claimant would be fit to return to work as from Monday 24 September 2012. He recommended “a phased return for the claimant over two weeks, working to lunchtime for several days, before returning gradually to normal working hours, the phasing to be discussed with her line manager”. He also recommended that she be given time off to see her therapist “at relatively infrequent intervals, perhaps once a fortnight or thereabouts”.
(10) The claimant duly returned to work on 24 September 2012 to her role as Grade 4 Buyer. Prior to going on maternity leave there was a review of and the claimant was involved in drafting proposals for changes to the tender specification for the travel contract, including the use of an online booking tool, under the supervision of Mrs Massey. The proposed changes to the travel strategy were referred to the University Operating Board to ensure that they met with the respondent’s governance requirements which approved the changes in February 2012. Consequently Mrs Massey was required by the Director of Finance to perform a more hands on role in the implementation of the changes to the travel contract. This remained the case when the claimant returned from maternity and sickness leave. However the claimant remained the point of liaison between the travel company and the university, had responsibility for dealing with KPIs, handling complaints and arranging training. She also attended and minuted contract review meetings. Her duties in relation to work on other contracts were unchanged.
(11) Mrs Massey did not receive Dr Todd’s recommendations until after she met with the claimant on the date of her return to work. Mrs Massey agreed with the claimant that from 26 until 28 September 2012 the claimant would work until lunchtime; from 1 until 4 October 2012 until 3pm and that she would work a three day week to use up the 42 days’ annual leave accrued by her during her maternity leave and sickness absence until January 2013 and then take additional leave in January 2013, returning to full time hours from February 2013.
(12) The claimant was also to be permitted to take time off on Monday afternoons to attend appointments with her therapist. However in the event, after an initial assessment, the claimant’s therapist was unable to give her appointments for approximately four months and the claimant advised Mrs Massey accordingly. On 16 October 2012 Mrs Massey emailed Dr Todd, seeking his advice as to how much time claimant could have for these appointments and “more importantly the affect which the four month delay of these appointments is likely to have on the improvement of her condition”. In the same email she commented “Whilst it may appear cynical it would seem odd that the reinstatement of her programme of appointments coincides roughly with the date on which she is due to return to work on a full time basis”. Dr Todd did not respond.
(13) The claimant was reviewed finally by Dr Todd on 11 December 2012. He recorded that as the claimant informed him that her therapist “may not be available for many months”, his recommendation was that the claimant should contact Carecall to request counselling sessions. The claimant did not avail of Carecall’s services.
(14) The claimant commenced a cognitive behavioural therapy programme over 12 weekly appointments arranged by her own GP on 4 February 2013. Mrs Massey learned about this on 11 February 2013. This required the claimant to leave the office on Mondays at 3pm. Mrs Massey had already informed the claimant on advice from personnel that she would either have to take leave or work up the time. Mrs Massey emailed Dr Todd to ask whether any action should be taken with regard to the fact that the claimant had not followed up his recommendation to contact Carecall. Dr Todd responded that staff “may or may not follow his recommendations as they choose how to address their illnesses”. There was no further action taken by Mrs Massey following receipt of this email.
(15) The claimant’s case was that these emails sent by Mrs Massey to Dr Todd revealed a discriminatory attitude towards the claimant and contributed to her perception that she was being singled out and discriminated against because of her pregnancy and maternity and pregnancy related sickness leave. The claimant however did not become aware of these emails until they were disclosed for the purposes of her complaints to the tribunal.
(16) Between her return to work on 24 September 2012 and March 2013, the claimant had 12 days unplanned absences from work upon which she rang into work on the date of absence to request leave without prior notice. Mrs Massey sought advice about this from Ms Robson and arranged to meet with the claimant on 21 March 2013 to discuss these unplanned absences. During the discussion, Mrs Massey specifically clarified that the matters of concern did not include any leave arranged at the advice of Dr Todd to phase the claimant back to work in order to use up accrued holidays, any of the claimant’s further absences on sick leave or any agreed absences due to her attendance at CBT and doctor’s appointments. Mrs Massey acknowledged that most of the unplanned leave taken by the claimant was associated with the claimant’s need to look after her daughter when she was sick. There was no allegation of misconduct against the claimant. However Mrs Massey informed the claimant that the fact that she had chosen to work full time meant that she must be able to work full time and advised that her unplanned absences were having a detrimental effect on the work of department. She suggested that the claimant should put in place contingency plans for the care of her daughter when she was unable to attend the crèche due to illness. She gave the claimant until the end of April 2013 to put these plans in place and informed her that, following advice from Ms Robson, if there was no improvement, she may have to consider reluctantly initiating the capability procedure against the claimant. Ms Robson had informed Mrs Massey that in the absence of an allegation of misconduct, the capability procedure would be the appropriate course to take in the event of lack of improvement.
(17) The possibility of a reduction of the claimant’s working hours was also discussed. Mrs Massey suggested that if the claimant wished to make such a request, she may wish to consider a move to another area in the Directorate or university as it was unlikely that such a request to reduce her working hours could be agreed within the Purchasing Department to the nature of the work, although she said a job share might be considered. The claimant said she was not interested in job sharing as she would not be able to afford it.
(18) The claimant told the tribunal initially that she had specifically requested a reduction of her working hours by one hour each day at this meeting which was met with refusal. She then changed her evidence and stated that her request for and the refusal of a reduction in her working hours was in fact made during a conversation with Mrs Massey in February 2013 when she recalled having informed Mrs Massey that she would be obliged to buy a car if her working hours were not reduced. The claimant said she had also informed Mrs Massey that she thought she was being discriminated against as colleagues had been permitted to reduce their working hours and that Mrs Massey had responded that this was agreed by her predecessor before she had taken up the post of Head of Department. Mrs Massey denied that this conversation took place. In cross examination the claimant gave evidence for the first time that Mrs Massey knew that she had a need for the reduction in her hours because on 25 September 2012 she had raised a query with Personnel about whether the claimant was permitted to bring her baby into the office to wait until the university crèche opened. The claimant was told that this was not permitted on health and safety grounds. Despite being aware of this need the claimant asserted that Mrs Massey refused her request. The tribunal had regard to documentation which showed that on 8 June 2006 Mrs Massey had in fact approved the reduction of Kirsty Telford’s hours by one hour for childcare reasons. The tribunal therefore accepted Mrs Massey’s evidence that she would probably have looked favourably had the claimant made a request for reduction in her working hours by one hour, as that could most likely have been accommodated within the Department but no such request was ever made by the claimant. Contradictorily the claimant also accepted that she did not investigate the possibility of and had not in fact made a request for flexible working as she considered it would be a waste of time.
(19) At the March meeting the claimant raised that she thought a document entitled “Absence Guidance for Purchasing team” which had been issued by Mrs Massey on 25 January 2013 had been produced with her in mind. Although it had been given to all team members, the claimant thought the document was directed at her. At the hearing it was suggested that the guidance was issued specifically because on 23 January 2013 the claimant had submitted a request for dependent leave form in respect of leave taken by her on 21 January 2013 to look after her daughter. Mrs Massey said that it was not directed at her and informed the claimant that the guidance was produced in response to a number of queries about leave received from staff members in the Purchasing team, including the claimant. Mrs Massey’s intention to issue the guidance had been discussed at a team briefing the previous Wednesday. It summarised the key points of the respondent’s various existing policies including dependent leave under the Work Life Balance arrangements, time off for attending hospital, doctors, dental other related appointments; time off for attending appointments with a dependent, annual leave and specifically the notice requirements and working from home. It did not introduce any new measures but provided links to the actual policies on the respondent’s website. The claimant agreed that the guidance was a useful document.
(20) Following this meeting there was an improvement in the claimant’s attendance as fortunately there was an improvement in her daughter’s health. No further issues arose concerning the claimant’s attendance and the capability procedure was never invoked against her. The claimant did not raise any issue or grievance in relation to the matters raised at this meeting by Mrs Massey at the time.
(21) In May 2013, Julie-Anne McGregor a Grade 6 Senior buyer, responsible for Student Plus Procurement, resigned from her post. Jeremy Currie, another Grade 6 Senior Buyer in Estates Procurement expressed an interest in working in Student Plus and Mrs Massey moved him across in a sideways transfer. This left a vacancy for a Grade 6 Senior Buyer in Estates Procurement. Mrs Massey met on the morning of 31 May 2013 with Mrs Pamela Rodgers and Mrs Betty Robinson, the two Grade 4 team members who were directly affected to inform them about the decision to transfer Mr Currie. Later that afternoon Mrs Massey informed the rest of team including the claimant of her decision.
(22) Afterwards the claimant requested to meet with Mrs Massey in private. She queried the decision to transfer Mr Currie instead of advertising the post when she had previously acted up in the role and was capable of performing the role. The claimant felt that an opportunity had been removed from her and that she was being discriminated against by actions taken to transfer Mr Currie. Mrs Massey advised the claimant if she continued to make such claims, she would not discuss the matter further with her and suggested that she should contact the Equal Opportunities Manager. Mrs Massey explained that she had made the decision to ensure business continuity and it was best to meet the needs of the service. She did not accept the claimant’s suggestion that Mr Currie should have been required to apply for the post when he was already in a Grade 6 Senior Buyer role and had transferable skills. She pointed out that there was still a vacancy for a senior buyer albeit with responsibility in Estates. The claimant asked her whether it would be necessary to have experience of Estates Procurement. Mrs Massey advised her that this could be used as a “desirable criterion” depending on the number of applicants for the position and that as chairperson of the interviewing panel she would have discretion as to whether it should be used. The claimant felt aggrieved and expressed the view that she would not be able to apply for the post because she did not have estates experience. Mrs Massey suggested that the claimant could contact Ms Robson if she was dissatisfied. The claimant said she would not contact personnel but that she would be contacting the union instead. Mrs Massey responded that she thought this would be a good idea as it would give the claimant an opportunity to discuss the situation with an independent and unbiased person. The claimant’s evidence was that she then told Mrs Massey that she hoped that it would not affect their professional relationship and Mrs Massey responded that it would be ”naive for you to think that”. The tribunal preferred Mrs Massey’s evidence that she had candidly clarified, as the claimant had simply referred to their “relationship”, she felt it could affect their personal relationship but that their professional relationship would not be affected. Likewise the tribunal did not accept the claimant’s allegation that Mrs Massey warned her when she mentioned that she intended to contact the union, that she should consider her options carefully as it may impact upon her ability to apply for the senior buyer post of which she was the chair. The claimant did contact her trade union and she was put in touch with Mr Lewsley.
(23) There was an email exchange between Mr Lewsley and Mr Massey between 5 and 29 June 2013 to arrange a meeting. Mrs Massey asked Mr Lewsley to provide details of the points to be discussed at the meeting. Mr Lewsley initially objected to this as he felt that this would place the meeting on a formal footing but eventually he advised by email of 28 June that the points for discussion included changes in the travel contract role, unplanned absences and potential instigation of capability procedure, the refusal to consider changes to working hours, the transfer of senior buyer role and the requirement of senior buyers to have MCIPS but not adhered to within the dept. Mrs Massey responded to Mr Lewsley that she was surprised at some of the matters that had been included for discussion as the claimant had not previously raised any issues with her concerning the travel contract and had not made an application to change her hours of work.
(24) The Senior Buyer’s post was advertised on 3 June 2013. The short listing criteria specified that it was essential that candidates should have full membership of Chartered Institute of Purchase and Supply (CIPS). The claimant queried why this was the case when previously the criterion was to be a “fully qualified member of CIPS”. It was explained that these terms meant the same thing. Consequently the claimant had to pay a £200.00 fee to renew her membership of CIPS which she told the tribunal she could ill afford. The claimant also complained that one of the desirable criteria, namely “at least one year’s experience in last 7 years of construction buying”, placed her at a disadvantage. However in the event there as there were only three applicants for the post, the desirable criteria were not applied and the claimant was the only candidate shortlisted for interview.
(25) The claimant was interviewed for the position of Senior Buyer on 1 July 2013. The interview panel comprised Mrs Massey who chaired the Panel, Mrs Glackin, Mr Peter Erwin, Estates Service Manager with Ms Robson in attendance. The interview questions had been agreed in advance by the panel. The claimant raised no objection to the constitution of the panel. The claimant performed poorly at interview and was not appointed. Mrs Massey met with her later the same day and gave the claimant detailed feedback on her performance. The claimant accepted that she had not performed well at the interview. Mrs Massey provided the claimant with information as to how she should have answered certain questions. The tribunal accepted that this would have put the claimant at an advantage over other candidates had she decided to reapply for the role when it was advertised. Only two of the fourteen questions asked focused on procurement for estate services and the tribunal accepted that even these were fairly general in nature. The remaining twelve questions related to the generic responsibilities of the Senior Buyer role. At the hearing the claimant alleged that her performance at interview was impaired by the alleged “threat” made to her by Mrs Massey at their meeting on 31 May as outlined above and other harassment and victimisation. This was not raised by her at the feedback interview or at any other stage prior to lodging her complaint to the tribunal.
(26) After the claimant’s unsuccessful interview, it was decided to readvertise the post. In the meantime, Mrs Massey, following consultation with the Head and Deputy Head of Finance, decided to cover the vacant post through the use of agency staff rather than offer the role as an acting up opportunity to existing staff on this occasion. Mrs Massey’s view was that it was inappropriate to offer the role on an acting up basis to the claimant as she had just been unsuccessful at interview and she thought that neither of the other Grade 4 buyers would be interested in acting up.
(27) On 24 July 2013 a meeting took place as arranged between the claimant and her union representative, Mr Lewsley and Mrs Massey with Ms Robson in attendance. The meeting was initially difficult. Mr Lewsley stated in his view it was “unusual” for him to have been asked for an agenda because this rendered the process “formal”. Ms Robson tried to reassure him that this was an informal process and that it was not unreasonable to request details of the matters to be discussed. The tribunal accepted that Mrs Massey initially appeared defensive and resentful that she was being asked questions about her decisions. However as the meeting progressed the atmosphere became more positive and constructive as a direct discussion developed between the claimant and Mrs Massey.
(28) The claimant complained that she had been informed by her line manager upon her return to work in September 2012 that there had been changes to and she was no longer in charge of the day to day management of the travel contract. Mrs Massey pointed out that the claimant had been aware before she went on maternity leave of the changes to the travel contract because of the new procurement strategy, which the claimant had helped initiate. She explained that the requirements had changed since the claimant’s input into the original tender specification and that governance issues had come into play with the appointment of the service provider. It was therefore not deemed appropriate for a Grade 4 to have day to day management of a contract that was being scrutinised by the Director and Deputy Director of Finance. This would have been the case had the claimant not been absent from work on maternity leave. Mrs Massey pointed out that in any event the changes had been advised to the claimant through the proper structure i.e her line manager and expressed amazement that this was the first time that this issue was being raised with her.
(29) The claimant again complained that she felt singled out and bullied when there had been a change of policy concerning requests for leave and by the guidance note issued concerning leave. She stated that she had to take leave at short notice because of her child’s illnesses and because there was no one else available to look after her daughter. She suggested that it was unreasonable to expect her to give the notice specified in the annual leave policy. Ms Robson asked what the respondent could have done and the claimant suggested that she could have been permitted on these occasions to work from home. It was pointed out that there had been no change in leave policies and that the claimant’s responsibility for childcare was not unique. It was suggested that working at home was not compatible with looking after a child. The claimant was reminded that leave issues had been discussed with her previously in 2008.
(30) The claimant stated that she felt under threat because Ms Robson had advised Mrs Massey that she could invoke the capability procedure as a mechanism of dealing with the claimant’s absences. She raised that Mrs Massey had previously suggested that she may wish to consider transferring to another area within the Directorate or elsewhere within the university. It was explained that had the pattern of attendance continued capability would have been the appropriate route, in the absence of an allegation of misconduct, in order to give her an opportunity to improve. In the event it had not been invoked. Mrs Massey expressed the view that there was probably less flexibility within purchasing than other offices and that she had suggested this for the claimant’s benefit.
(31) The claimant objected to the amount of notice that was required for taking annual leave which she thought was unreasonable and suggested that if she were permitted to take holidays and not sick leave she would be able to manage her situation better. Mrs Massey pointed out that the level of the claimant’s absence was such that she was required to act. The claimant indicated that she wished to move on and that she needed to “look for something else”. The claimant asked why she had not been given the opportunity to apply for Ms McGregor’s post, given that she had previously acted up in that role and had no experience of construction. Further she questioned why Mrs Massey then decided to approach an agency to provide temporary cover rather than giving her an acting up opportunity. Mrs Massey explained that she had exercised her discretion to move territorial responsibilities and that following discussion with Finance senior management it was felt inappropriate to offer the Grade 6 role on an acting up basis to someone who had been unsuccessful in a recruitment exercise for that role. Mrs Massey explained that she was sure that the two other Grade 4 buyers in the office would not be interested in the position.
(32) The claimant told the tribunal she had hoped that the meeting would provide a resolution for her but that as a result of the responses she received from Mrs Massey and Ms Robson, she decided that she could no longer work for the respondent and decided to seek other employment. However the claimant had already applied prior to this meeting for a position outside of the university. On 27June 2013 the claimant was successfully interviewed for post with Business Services Organisation which she accepted. Mrs Massey provided her with a reference.
(33) On 25 July 2013 the claimant emailed Mrs Massey and Ms Robson to enquire why she had not been offered the opportunity of acting up when she understood that this had been offered to her two colleagues, who according to Mrs Massey were not interested in the role. Ms Robson confirmed that the explanation offered at the meeting still applied.
(34) By letter dated 7 August 2013 the claimant tendered her resignation with notice which expired on 6 September 2013. The letter stated that she felt she had no option but to resign as she had been discriminated against following the birth of her child, due to “a number of events” and the “recent decision” not to offer her the opportunity to act up into the Senior buyer role. She stated that she believed that the recent treatment was “on the grounds of her pregnancy and/or maternity and sex” and that there was “irreparable damage to her trust and confidence in her employer by reason of the events and the recent meeting”. The claimant’s employment terminated on 6 September 2013.
(35) On Saturday 7 September 2013 the claimant went into her former place of employment to remove personal photographs and emails from her computer. As her swipe card did not allow her access, she followed another person into the office. She was seen by Mrs Massey who was also in the office that morning. They did not speak. Mrs Massey reported this to personnel on Monday 9 September 2013 after being told that the claimant’s line manager had noticed files were missing from the claimant’s computer. The claimant asserted that she had informed her line manager that she had deleted a personal folder containing only personal files the previous Thursday. The ensuing investigation, instituted by personnel, did not establish the date upon which the folder was actually deleted from the claimant’s computer. The claimant refused to attend a meeting as part of the investigation to discuss the deletion of the folder. It transpired that the folder included work related as well as personal files. Fortunately the IT department was able to restore the deleted files and the technician expressed his unsolicited opinion that there had been “no wrongdoing” on the part of the claimant. The respondent took no further action against the claimant in relation to this matter.
(36) The claimant lodged her originating claim with the Office of the Tribunals on 2 October 2013 claiming unlawful constructive dismissal, unlawful direct and indirect discrimination, discrimination on grounds of pregnancy and maternity leave and discrimination by way of victimisation.
LAW
5. (1) Time limits in discrimination cases
Article 76(1) of the Sex Discrimination (Northern Ireland) Order 1976 (hereinafter referred to as the “The 1976 Order”) provides that:-
“An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal “before the end of the period of three months beginning when the act complained of was done.”
Article 76(5) of the 1976 Order provides:
“A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
Article 76(6)(b) provides that “any act extending over a period shall be treated as done at the end of that period.”
(2) Sex Discrimination against Women
Article 3 (2) of the 1976 Order provides that in any circumstances relevant for the purposes of a provision other than which this paragraph applies, a person discriminates against a woman directly if –
.
(a) On the ground of her sex, he treats her less favourably than he treats or would treat a man;
or indirectly, if,
(b) He applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –
(i) which puts or would put women at a particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.
(3) Discrimination on the ground of pregnancy/maternity leave
Article 5A (1) of the Sex Discrimination (Northern Ireland) Order 1976 [“the 1976 Order”] provides that:-
“(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if-
(a) At a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably; or
(b) On the ground that the woman is exercising or has exercised or sought to exercise a statutory right to maternity leave, the person treats her less favourably ...”
For the purposes of paragraph 1 the protected period begins each time a woman becomes pregnant and ends at the end of her maternity leave entitlement or if earlier when she returns to work. If she is not entitled to maternity leave, the protected period ends at the end of a two weeks beginning with the end of the pregnancy.
Article 5A (3) (b) provides:
“where a person’s treatment of a woman is on grounds of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of pregnancy.
(4) Victimisation
Article 6 (1) of the 1976 Order prohibits discrimination by way of victimisation and provides:
“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-
... (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act [or under Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995],
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.”
(5) Discrimination in the Employment Field
Part III of the 1976 Order prohibits discrimination by employers in the employment field.
Article 8 (2) provides that:-
“It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her-
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment.”
(6) Burden of Proof: Industrial Tribunals
Article 63A of the 1976 Order as amended provides in relation to any complaint presented under Article 63 to an industrial tribunal:-
“(2) Where, on the hearing of the 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 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.”
Guidance on application of the burden of proof is set out in Wong v Igen Limited and Others cited below. In pregnancy/maternity discrimination cases there is no requirement for a male comparator, although Madarassy is authority for the proposition that a tribunal may compare the claimant’s treatment with that of a hypothetical male comparator to decide whether or not pregnancy was the reason for the alleged less favourable treatment. If the reason for the treatment is pregnancy, then the detriment resulting is unlawful sex discrimination even though other employees in the same circumstances are or would be treated the same way. If during the protected period, a woman is treated less favourably because of her absence due to pregnancy or miscarriage related illness this will also amount to unlawful pregnancy or sex discrimination. There are two routes open to the tribunal-the first is to identify the attributes of the hypothetical male comparator and the second is to go straight to the question of why the claimant was treated the way she was.
(7) Unfair Constructive Dismissal
An employee has the right not to be unfairly dismissed pursuant to Article 126 of the Employment Rights (NI) Order 1996 (as amended). The circumstances in which an employee is dismissed is set out in Article 127(1) of the 1996 Order which provides that
“For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) ... only if -
...
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”
Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 Paragraph 403 as follows:
“In order for the employee to be able to claim constructive dismissal four conditions must be met:
(a) There must be a breach of contract by the employer, either and actual or anticipatory breach.
(b) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. A genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.
(c) The employee must leave in response to the breach and not for some other unconnected reason.
(d) He must not delay too long in terminating the contract in response to the employer’s breach otherwise he will be deemed to have waived the breach and agreed to vary the contract”.
Article 131(1) of the 1996 Order provides that:-
“An employee who is dismissed shall be regarded... as unfairly dismissed if –
(a) the reason or principal reason for the dismissal is of a prescribed kind, or
(b) the dismissal takes place in prescribed circumstances.”
Article 131(3) provides
“A reason or set of circumstances prescribed under this Article must relate to –
(a) pregnancy, childbirth or maternity,
(b) ordinary, compulsory or additional maternity leave,
...
(c) parental leave,
... or
(d) time off under Article 85A;
and it may also relate to redundancy or other factors.”
Regulation 20 (1) of the Maternity and Parental Leave etc Regulations (Northern Ireland 1999 provides that
“An employee who is dismissed is entitled under Article 131 of the 1996 Order to be regarded for the purposes of Part XI of the 1996 Order as unfairly dismissed if –
(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3).”
Regulation 20(3) provides:
“The kinds of reason referred to in paragraphs (1) and (2) are connected with –
(a) the pregnancy of the employee;
(b) the fact that the employee has given birth to a child;
(c) ...
(d) the fact that she took, sought to take or availed herself of the benefits of ordinary maternity leave;
(e) the fact that she took or sought to take
(i) parental leave
(ii) time off under Article 85A of the 1996 Order ...”
(8) Detriments
Article 70 (C) of the 1996 Order provides that an employee has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer for having sought leave for a dependant.
Article 70 (E) of the 1996 Order provides that an employee has the right not to be subject to any detriment by any act or any deliberate failure to act by his employer on the grounds that the employee:-
made (or proposed to make) an application under Article 112 (f) (flexible working).
Article 71 of the 1996 Order provides that an Industrial tribunal shall not consider a complaint under this Article unless it is presented:-
(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a similar acts or failures, the last of them, or
(b) within such further period as a tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
Where an act extends over a period, the date of the act means the last day of that period, and a deliberate failure to act shall be treated as done as when it was decided on.
Article 112 (f)(i) provides that a qualifying employee may apply to his employer for a change in his terms and conditions of employment in relation to the hours he is required to work, the times when he is required to work, where as between his home and a place of business of employee he is required to work or such other aspect of his terms and conditions of employment as the Department may specify by the regulations where the purpose of applying for the change is to enable him to care for someone else, including a dependent child who has not reached 18 years of age.
Article 112 (f)(ii) prescribes the manner in which a qualifying employee must make an application for flexible working.
RELEVANT CASE LAW
6. Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 CA; Webb v Emo Air Cargo (UK) Limited [1993] IRLR 27, Wong v Igen Limited and others [2005] 3 All ER 812; Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327; Madarassy v Nomura International Plc [2007] IRLR 264; Laing v Manchester City Council [2006] IRLR 748; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337; McDonagh v Thom T/A The Royal Hotel Dungannon [2007] NICA 3; Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24; Nagarajan v London Regional Transport [1999] IRLR 572; Whitley v Thompson EAT 1167/97; Vento v Chief Constable of West Yorkshire Police (No 2) 2003 IRLR 102; McConnell v Police Authority for NI [1997] IRLR 635; Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 Wolstoncroft –v- Waste Cycling Group Limited [2009]; Western Excavating (ECC) Limited –v- Sharpe [1978] IRLR 27; Mahmud –v- Bank of Credit and Commerce International SA [1997] IRLR 462; Courtaulds Northern Spinning Limited-v -Sibson [1987] ICR 329; Hutchings –v- Coinseed Limited [1998] IRLR 190; Mayer –v- British Broadcasting Corporation [2004] all ER (D) 34 November EAT; Lewis-v- Motorworld Garages Limited [1985] IRLR 46; Wright-v- North Ayrshire Council [2014] IRLR 4; Bolton School-v- Evans [2006] IRLR 500; NHS Manchester –v- Fecitt [2012] IRLR 64 CA; Curley –v- Chief Constable of the Police Service of Northern Ireland [2009] NICA 8; Ladele –v- London Borough of Islington [2009] EWCA CIV 1357 and Chamberlain –v- Emokpae [2004] IRLR 592.
CONCLUSIONS
7. The tribunal reached the following conclusions:
(1) The claimant’s case was advanced on the basis that the events leading up to and including the termination of her employment amounted to less favourable treatment simultaneously and interchangeably on the grounds of her sex (both directly and indirectly), her pregnancy and pregnancy related illness and the fact that she had taken maternity leave.
(2) It was further contended that the alleged discriminatory treatment of the claimant by the respondent leading to a breakdown in the mutual duty of trust and confidence between an employer and employee amounted to a fundamental breach of the claimant’s contract of employment and which led to the claimant’s resignation in circumstances which entitled her to be treated as if she had been unfairly dismissed by the respondent.
Indirect Sex Discrimination
(3) The claimant did not advance any evidence to enable the tribunal to make any findings as to whether the respondent had applied to her a provision criterion or practice which it applied equally to men, that such a PCP put or would have put women as compared with men at a particular disadvantage and that the claimant was in fact put at that disadvantage. The entire thrust of the claimant’s case was that she had been subjected to direct discrimination.
(4) This being the case, the tribunal dismisses the claimant’s claim of indirect sex discrimination.
Pregnancy Related Discrimination
(5) Only two of the alleged acts of discrimination occurred within the “protected period” and as such were specifically identified by the claimant as being pregnancy related discrimination. Firstly, the tribunal has found that Mrs Massey did not make the comments attributed to her during the visit to her home on 22 March 2012. Secondly the tribunal concludes that any changes to the claimant’s duties occurred due to the changes in the travel contract and the requirement that Mrs Massey take a more “hands on role” in the day to day management of the contract and not because the claimant had been on maternity leave. The process of change started before the claimant went on maternity leave with the knowledge and involvement of the claimant. The claimant’s claims pursuant to Article 5A(1)(a) of the 1976 Order are therefore also dismissed.
Direct Sex and Maternity Leave Related Discrimination
(6) The remaining alleged acts of discrimination occurred outside of the “protected period”. In order to succeed the claimant must at the first stage show facts from which the tribunal could conclude (in the absence of an adequate explanation) that she has been treated less favourably on either the ground of her sex (Article 3(2)(a) and/or, the fact that she has taken maternity leave (Article 5A(1)(b)).
Leave Issues
(7) The claimant’s case was that she was subjected to a detriment within the meaning of Article 8 in January 2013 when:
(i) the Leave Guidance sheet was issued by Mrs Massey which made her feel bullied and singled out. This was clearly not the case as the document was issued to all staff members within the purchasing department. The tribunal accepted that the document provided useful guidance to staff, including the claimant, following a number of queries about leave entitlements. The guidance covered a whole range of leave matters and not just dependents’ leave and therefore the tribunal does not infer that it was issued simply in response to the claimant’s leave request form submitted on 23 January 2013. The tribunal concludes that the claimant was not treated less favourably in the issuing of the guidance document.
(ii) in the refusal of her application for flexible working. The tribunal has found that the claimant did not make a request for the reduction of her hours by one hour per day, either formally or informally in either January or March 2013 or at any time subsequently. There is no statutory right per se to flexible working. Provided an employee complies with the statutory requirements concerning the request, an employer is obliged to give proper consideration to that request and not to refuse it unreasonably. This did not happen in this case. The tribunal is of the view that the fact that Mrs Massey informed the claimant that it was unlikely that a formal request for a reduction in hours was unlikely to be accommodated within the purchasing department does not amount to less favourable treatment, particularly as she suggested that some flexible working may be possible albeit in the form of a job share. The tribunal also took into account that the claimant would have been able to appeal had a formal request been refused.
(iii) In informing the claimant that if her unplanned absences did not improve that the capability procedure may be invoked. The fact is that the claimant did have a high level of unplanned absences which had triggered the respondent’s absence management policy. The tribunal concluded that Mrs Massey was influenced by the previous issues with the claimant’s attendance in 2007 and 2008 but that she acted in accordance with that procedure on further advices from Personnel. The respondent did not follow a disciplinary process. It appears to the tribunal that the respondent was not trying to penalise the claimant by informing her that the attendance policy may be invoked but was offering her a chance to improve. The tribunal took into account that a large proportion of the claimant’s unplanned leave was associated with the need to look after her child. The tribunal did not consider that it was unreasonable for Mrs Massey to ask the claimant to make contingency childcare plans in circumstances where the need for the absence had become a regular occurrence rather than an “emergency”. The tribunal also took into account that the claimant’s absences linked with the leave accrued by her during her maternity leave and subsequent sickness absence due to post natal depression and authorised absences were specifically discounted by Mrs Massey. It was submitted that Mrs Massey’s emails to Dr Todd revealed an intention to discriminate against the claimant. Although the tribunal accepted that the emails did reveal scepticism on the part of Mrs Massey about the arrangements made for the therapy appointments, it was of the view that she was influenced by the previous issues concerning the claimant’s attendance. The claimant was unaware of the emails at the time so the tribunal rejected her contention that these gave rise to a perception at the time that she was being singled out and bullied. In the event the attendance policy was not invoked as the claimant’s attendance improved and no further issues arose in this regard after the meeting which took place on 22 March 2013.
Promotion Opportunities and Recruitment Issues
(8) The tribunal considered the claimant’s contention that the respondent discriminated against her in the manner in which she was offered access to opportunities for promotion and in the arrangements made for determining who should be offered the Grade 6 post.
(i) The claimant’s contention that two of her colleagues were advised of the opportunity for promotion to Senior Buyer but she was not is factually incorrect. The two colleagues in question were simply informed of the decision to transfer Mr Currie to the senior buyer role previously occupied by Ms McGregor. This was because they were the two members of staff directly affected by the decision. The claimant was also notified of this decision later on the same day. In Shamoon the House of Lords held that “for a disadvantage to qualify as a “detriment”, it must arise in the employment field in that the court or 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 in which he had thereafter to work. An unjustified sense of grievance cannot amount to “detriment”.....it is not necessary to demonstrate some physical or economic consequence.” The tribunal does not consider that the short delay in advising her of the decision could be reasonably viewed in the circumstances to amount to a detriment and that any sense of grievance felt by the claimant is entirely unjustified.
(ii) The claimant’s contention is that she was disadvantaged and treated less favourably when Mrs Massey transferred Mr Currie into the post previously occupied by Ms McGregor. The tribunal accepted that this decision was made for operational reasons and was within the discretion of Mrs Massey as the Head of the Purchasing Department. Although advertising the post would have been one option open to Mrs Massey, Mr Currie was already a Grade 6 and had therefore had immediately transferable skills. The claimant was a Grade 4 albeit she had acting up experience at Grade 6 level. The decision did not deprive the claimant of the opportunity to apply for promotion as there was still vacancy for a Grade 6 Senior Buyer position which had been vacated by Mr Currie and there was no evidence from which the tribunal could infer that this decision was in any way connected with the claimant’s previous absence on maternity leave or that a male grade 4 buyer who had previously acted up would have been treated more favourably than was the claimant.
(iii) The claimant also complained that she was disadvantaged by the shortlisting criteria when the Grade 6 Senior Buyer Estates post was advertised. The tribunal was satisfied that there was not in fact a change in the requirement that applicants should have full membership of CIPS. In any event there were no facts from which the tribunal could infer that this criterion was intended to deter the claimant from applying for the post. The claimant was not disadvantaged in any way by the desirable criterion of one years experience in construction buying. It was not used in the event and the claimant was in fact the only person short listed out of the three candidates who applied.
(iv) The claimant contended that she was treated less favourably in not being appointed to the Grade 6 buyer post. The claimant did not challenge the assessment of the interview panel and there was no evidence that the way she was scored was adversely affected by any alleged bias on the part of Mrs Massey. The claimant accepted that she did not perform well at interview and the tribunal did not accept the claimant’s evidence that the claimant’s performance was adversely affected by anything said by Mrs Massey.
(v) The claimant further alleged that she was less favourably treated in not being permitted to act up because it was decided to bring in agency staff to provide cover for the Senior Buyer Estates post pending the further recruitment exercise. The tribunal accepted that the reason for this decision was because it was felt that it was inappropriate to ask a person who had recently been unsuccessful at interview to act up in that role. Further the claimant’s Grade 4 colleagues were equally affected by this decision.
(9) The tribunal determines that, in relation to the matters complained of by her, the claimant has not established facts from which it could infer that she was treated less favourably by the respondent on the ground of her sex or the fact that she previously went on maternity leave.
(10) Accordingly the tribunal dismisses the claimant’s claims pursuant to Article 3(2) (a) and Article 5(A) of the 1976 Order.
Victimisation
(11) The claimant alleges that she was victimised within the meaning of Article 6 of the 1976 Order when the respondent instituted a disciplinary investigation against her after the termination of her employment and in deducting a day’s pay from the claimant. It was contended that the “protected act” occurred during the meeting of 24 July 2013. The tribunal notes that the claimant did not in fact make an allegation of unlawful discrimination during the July meeting, however such an allegation was made in her letter of resignation and the tribunal considered the claims of victimisation in this context.
(i) It was not disputed that the claimant’s access to the respondent’s premises on the 7 September 2013 was unauthorised, although she did not believe that she was doing anything wrong. It was subsequently discovered that work files had been deleted from a folder on the claimant’s computer. Although Mrs Massey initially reported the matter, it was a Personnel Officer who decided to instigate an investigation and who wrote to the claimant to invite her to an investigatory meeting. The tribunal’s view is that it was not unreasonable for the respondent to investigate these matters. The respondent did not take any further action following receipt of the claimant’s letter of explanation. There was no evidence that the claimant’s resignation letter played any part in the decision to instigate the investigation.
(ii) The claimant has not discharged her burden in relation to the claim that she was victimised by the deduction of one day’s pay as there was no direct evidence from the claimant in this regard.
(12) The tribunal therefore determines that the claimant has not established facts from which it could infer that she was treated less favourably within the meaning of Article 6 of the 1976 Order and her claims of unlawful victimisation are therefore dismissed.
Time Limitation and Jurisdictional Issues
Discrimination
(13) It was contended by the respondent that the acts of discrimination which allegedly occurred prior to the 2 July 2013 had been presented out of time. In Hendricks –v- Metropolitan Police Commissioner (2003) IRLR 96 EWCA it was held that the claimant was entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged incidences of discrimination (in that case) were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.
(14) In the present case the tribunal was not satisfied that the earlier acts of discrimination which were alleged by the claimant were part of an ongoing act of discrimination but rather considered that they were in fact a series of separate and discrete acts. These earlier acts were the alleged comments of Mrs Massey at the claimant’s home on 22 March 2012; the allegations concerning the change in the claimant’s duties with regard to the travel contract which the claimant alleged she learned about on her return to work in September 2012; the alleged refusal of a request for flexible working in February 2013; the issues concerning the claimant’s unplanned absences and requests for dependent leave which arose in January 2013 and again at the meeting of 21 March 2013. The claimant’s evidence was that on each of these occasions she felt that she was being singled out and being treated less favourably, however she did not raise any issues at the time. The tribunal considered that the different nature and the timing of these allegations were incompatible with the concept of a continuing act.
(15) After the meeting on 21 March 2013 no further alleged less favourable treatment occurred until the end of May 2013. The tribunal took into consideration that by the time the claimant did raise some (not all) of the earlier matters with Mrs Massey through her trade union representative on 28 June 2013, the statutory time limit had already expired. The tribunal does not consider that the mere fact that the claimant raised these matters with the respondent at a later date renders them part of a “continuing act” by the respondent. The tribunal therefore determines that the complaints in relation to these earlier matters were presented out of time. There was no evidence before the tribunal as to the reason for the late complaint, therefore the tribunal declines to exercise its discretion to extend the time limit for presenting the claim in relation to these matters.
Detriments
(16) Similarly the claimant’s claims under Article 70 (E) and Article 70 (C) of the Employment Rights Northern Ireland Order 1996 arose out of the events which allegedly occurred on the claimant’s own evidence in or about February 2013 and March 2013 but the originating claim was presented to the Office of the Tribunals on 2 October 2013, outside of the statutory three month period. No evidence was given as to why it was not reasonably practicable for the claimant to present these claims within that period and therefore the tribunal declines to exercise its discretion to extend the time limit for presenting the claim in relation to these matters. This being the case the tribunal does not have jurisdiction to determine her complaints of detriment which are accordingly dismissed.
Unfair dismissal
(17) The claimant contended that the respondent acted so as to breach her contract of employment by reason of the following matters:-
(i) She was treated less favourably because she had taken maternity leave.
(ii) She was treated less favourably because she was on a long dated period of sickness absence.
(iii) She was treated less favourably because she required additional medical support post her return from sick leave and the same involved attending appointments during her working day.
(iv) She was denied a fair opportunity for promotion.
(v) She was denied a fair opportunity to act up.
(vi) She was denied a reasonable request for flexible working hours.
(vii) She was less favourably treated when applying for dependent leave.
(viii) It was indicative that the respondent’s intent that the claimant was unfairly accused of unlawful entry into her former work premises and was unfairly accused of destroying confidential information, although it was conceded that these matters post dated the termination date.
(18) In summary it was contended that the respondent unlawfully discriminated against the claimant on the grounds of her sex and/or pregnancy and/or pregnancy related illness and/or maternity leave, thus leading to a breakdown of the duty of mutual trust and confidence as between an employer and employee.
(19) The tribunal has found that the claimant was not subjected to unlawful discrimination and therefore there has not been a breach of contract by the respondent as alleged by the claimant. It follows therefore that the claimant’s claim of unfair constructive dismissal is not well founded.
(20) The claimant’s claims are therefore dismissed in their entirety.
Employment Judge:
Date and place of hearing: 23-26 June 2014, Belfast.
Date decision recorded in register and issued to parties: