British and Irish Legal Information Institute

Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Simpson v Castlereagh Borough Council [2014] NIIT 2147_11IT (08 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/2147_11IT.html
Cite as: [2014] NIIT 2147_11IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 2147/11

CLAIMANT: Jill Simpson

RESPONDENT: Castlereagh Borough Council

DECISION

The unanimous decision of the tribunal is that the claimant did not suffer discrimination by way of victimisation under Article 6 Sex Discrimination (Northern Ireland) Order 1976 as amended and that part of her claim is dismissed.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mrs M Heaney

Mr P Killen

Appearances:

The claimant was represented by Mr M Potter, of counsel, instructed by Savage and Co., Solicitors.

The respondent was represented by Mr C Hamill, of counsel, instructed by Worthingtons, Solicitors.

BACKGROUND

1. The claimant brought a claim before the Industrial Tribunal on 19 September 2011 in which she claimed that she had been constructively dismissed, suffered a breach of contract, suffered discrimination by way of victimisation under the Sex Discrimination (Northern Ireland) Order 1976 as amended and the Disability Discrimination Act 1995 as amended and suffered the loss of outstanding monies, including pay and emoluments owed to her by reason of a breach of contract. The respondent denied the claimant’s claims in their entirety.

2. The claim was heard on 16, 17, 18, 19 and 20 April, 15 and 18 May and 25 June 2012.

3. At the hearing, the tribunal agreed with the proposal from the parties that the tribunal would deal with liability only.

CLAIM

4. The unanimous decision of the tribunal was that the claimant’s claim of discrimination by way of victimisation under the Sex Discrimination (Northern Ireland) Order 1976 as amended and the Disability Discrimination Act 1995 as amended had been dismissed. The tribunal also found that the claimant had been constructively unfairly dismissed.

ISSUE

5. The claimant appealed the decision of the tribunal to dismiss the claimant’s claim for discrimination by way of victimisation under Article 6 Sex Discrimination (Northern Ireland) Order 1976 as amended to the Court of Appeal which remitted the claim to the tribunal on the following terms:-

(1) that the tribunal freshly consider the evidence adduced by the parties in relation to the claim of victimisation;

(2) that the tribunal determine the claim of victimisation in the light of the evidence adduced by the parties and in accordance with the relevant law; and

(3) that the tribunal issue a fresh decision on the victimisation claim.

6. At a Case Management Discussion on 13 June 2013 the parties agreed that the claim would be dealt with by submissions only, having regard to all the evidence adduced on the issue of victimisation. The parties further agreed that they would complete the exchange of submissions by 23 August 2013 and serve copies of the submissions on the Office of the Tribunals. The parties also agreed that if they wished to rely on evidence adduced, but which is not contained within the tribunal’s decision, that they would make specific reference to those pieces of evidence and inform the other party.

FINDINGS OF FACT

7. The matter came on for hearing before the tribunal on 6 September 2013. The claimant did not challenge any of the tribunal’s findings of fact in its original decision. The respondent did not refer to any material outside of the tribunal’s decision. The only material, apart from that contained in the decision, to which the claimant referred was that contained in the claimant’s witness statement at paragraphs 82 to 94 which state:-

“82 – I know of no other employees who have had their grievances dealt with in the following way:

(a) Not resolved in over three 3 years;

(b) An external consultant appointed to undertake responsibility for the grievance at Stage 2;

(c) Failure to hold grievance hearings and reach a decision within two years of the investigatory findings having been completed;

(d) The Chief Executive interfering in the process and alleging bias on the part of the person undertaking the grievance;

(e) Refusal to accept the findings; and

(f) Changing the procedure to facilitate new investigation and new findings at Stage 2.

83. In my experience and to the best of my knowledge, grievances are ordinarily dealt with expeditiously and within the period of one to two months.

84. Further to interlocutory enquiries I am aware that sometimes it takes longer to address a grievance: in the respondent’s replies, one single grievance was resolved in four months.

85. Additionally in 2007-8/2008-9, it took the council approximately 16-17 months to resolve two collective grievances.

86. What happened in my case is extraordinary and unique. I believe that the anomalies in relation to my grievance arise because the council was treating my grievance differently because the report upheld parts of my grievance which alleged discrimination and harassment.

87. In my case I have lodged discrimination proceedings. As is clear from the following the respondent was cognisant of the ongoing proceedings and it is alleged was improperly interfering with the due process of the investigation. For example:

(g) Email of 30 August 2008 from Chief Executive.

(h) Minutes – 16 October 2008.

(i) Email – 22 October 2008 from Chief Executive.

(j) 9 February 2009.

(k) 2 February 2010.

(l) 24 February 2010.

(m) 16 February 2011.

88. I had lodged discrimination proceedings and then on advice had withdrawn those proceedings from the tribunal for the purpose of pursuing a civil claim in the High Court. The civil claim pursued the same discrimination/harassment allegations in the form of a civil claim. The council was acutely aware of this.

89. It is submitted that the manner in which the grievance was addressed was not open, objective and transparent. Rather it was a deliberate attempt to attack the Joynes’ findings, prejudice my position and protect the respondent, its servants and agents.

90. I was being victimised in that I was being subjected to an improper process to avoid an outcome that was detrimental to the council given the grievance and the ongoing civil proceedings.

91. I believe I have been subjected to victimisation and unlawful discrimination:

“I believe the failure to address my grievance promptly was unreasonable. I believe the council failed to adhere to its procedures. I believe the council was not prepared to follow due process and accept the findings of an independent investigator. I believe the procedure was subverted and bias entered the process.

I believe that I was treated less favourably because I had alleged discrimination and brought discrimination proceedings.

I believe the council was not prepared to accept findings prejudicial to its officers and sought to manipulate the grievance process to my detriment. I further believe that the delay in concluding the grievance breached my contract and in particular the implied term of mutual trust and confidence.

92. I believe that a hypothetical comparator would have received a prompt outcome in accordance with procedure; investigator’s findings would not have been queried as they were; and he/she would not have been placed in a position whereby they felt that they had no choice but to resign due to the conduct of the council, its servants and agents.

93. Specifically I believe the council ditched the original procedure because they did not like the results of the investigation and put in place processes that were extraordinary for the purpose of avoiding the investigator’s findings and obtaining more palatable findings. This is discriminatory and amounts to victimisation – less favourable and detrimental treatment because I was alleging discrimination.

94. I believe that the reason that the grievance took so long to complete was the improper interference with the investigation and the determination to ensure no significantly prejudicial findings were reached.”

8. The above extract from the claimant’s witness statement contained statements of fact; belief; and submissions, including that she was victimised. The tribunal accepts the statements of fact.

SUBMISSIONS

Claimant’s Submissions

9. The claimant submitted:-

(1) That applying the relevant law to the evidence and/or the tribunal’s findings of fact inexorably leads to a finding of victimisation.

(2) The main elements of victimisation are:-

(a) less favourable treatment as compared to an actual hypothetical comparator (Article 6(1) Sex Discrimination (Northern Ireland) Order 1976 as amended);

(b) the reason or an important reason for the less favourable treatment lies in the claimant having done a protected act (Article 6(1) Sex Discrimination (Northern Ireland) Order 1976 as amended);

(c) the impugned treatment amounts to a detriment (Article 8 Sex Discrimination (Northern Ireland) Order 1976 as amended); and

(d) the protection against victimisation is not applicable where the claimant has made a false allegation in bad faith or dishonestly (Article 6(2) Sex Discrimination (Northern Ireland) Order 1976 as amended).

This element does not apply to this claim.

(3) The primary object of victimisation provisions is to ensure that persons are not penalised, prejudiced or disadvantaged because they have taken steps to exercise their statutory rights or are intending to do so (Khan v Chief Constable of West Yorkshire Police [2001] ICR 1065).

(4) Detriment is not confined to or defined by the concept of ‘retaliation’. While victimisation is closely associated with ‘retaliation’, as a matter of law, victimisation is broader than retaliation.

Mr Potter did not advance the basis for this distinction or any authority to support it.

(5) There is no dispute that the claimant had done a protected act.

(6) A tribunal determining the question of victimisation must consider, inter alia, three key issues:-

(a) whether the claimant suffered a detriment? Article 8(2)(b) Sex Discrimination (Northern Ireland) Order 1976 as amended?

(b) whether the claimant was subjected to less favourable treatment as compared to an actual or hypothetical comparator?

(c) whether the respondent subjected the claimant to less favourable treatment by reason that the person victimised has done a protected act?

Whether the claimant suffered a detriment?

(7) The tribunal’s findings incontrovertibly established a detriment. The claimant was disadvantaged to a significant extent by the respondent’s response to the Joynes’ findings.

(8) In determining that the respondent fundamentally breached the claimant’s contract the tribunal identified various relevant matters in its decision at paragraphs 9(18) to 9(20). These findings of breach of contract, for the purposes of constructive dismissal, also constitute a ‘detriment’ for the purposes of Article 8(2)(b) Sex Discrimination Order (Northern Ireland) Order 1976 as amended.

(9) The claimant was treated detrimentally and disadvantageously in the period 2009 to 2011. Whether or not these acts amount to ‘retaliation’ is not relevant.

Whether the claimant was subjected to less favourable treatment as compared to an actual or hypothetical comparator?

(10) The claimant relies upon paragraphs 82 to 94 of her witness statement.

(11) The claimant’s case is that her grievance would have been concluded by the end of 2009 if she had not claimed discrimination and in particular sex discrimination.

(12) The reason for the delay was explained by the tribunal in its decision at paragraphs 9(5), (12) and (18). A significant reason for the delay was the respondent’s approach consequential to the fact that:-

“…the respondent did not wish to accept the findings of the Joynes’ report because some of them related to sex discrimination; involved a number of senior council officers; and thereby raised questions about how the respondent conducted its workplace and work environment.”

(13) The comparator is a person who has not alleged sex discrimination and in relation to whom no findings of sex discrimination had been upheld and that person would have been treated differently and more favourably and not less favourably, in that his/her grievance would have been concluded reasonably promptly and there would have been no significant delay, because the delay was essentially the result of the Joynes’ findings on sex discrimination.

Whether the respondent subjected the claimant to less favourable treatment “by reason that the person victimised has” done a protected act?

(14) A number of paragraphs in the original decision are germane to this issue, including paragraphs 9(5), (12) and 9(18) to 9(20).

(15) The reasoning of the tribunal generally, and as applied to the constructive dismissal complaint, if properly considered in the light of the law on victimisation, lends itself to a different outcome on the victimisation complaint.

(16) The correct reasoning, in light of the tribunal’s findings of fact, should have been as follows:-

(a) At paragraph 9(12) the tribunal held that the respondent procrastinated because it did not wish to accept those of the consultant’s findings upholding the appellant’s complaints of sex discrimination. Therefore the reason for the procrastination was that the appellant had made complaints of sex discrimination which had been upheld.

(b) There can be no doubt that the lodging of the grievances, which included those upheld in respect of sex discrimination, were protected acts since that was not disputed (paragraph 9(16)).

(c) Given that the tribunal concluded at paragraph 12 that:-

“…on balance the explanation for the delay is that the respondent did not wish to accept the findings of the Joynes’ report because some of the them related to sex discrimination; involved a number of senior council officers; and thereby raised questions about how the respondent conducted its workplace and work environment.”

A different approach would have been taken with the hypothetical comparator who had not complained of sex discrimination.

(d) The treatment was detrimental since the tribunal found that the treatment amounted to a fundamental breach of her contract of employment.

(17) The claimant has established a case of victimisation for the purposes of Article 63A Sex Discrimination (Northern Ireland) Order 1976 as amended, ie, that she was treated differently than the hypothetical comparator in that the process was changed, the findings shelved and the process not expedited, because she had done a protected act, ie, had made allegations of sex discrimination which the person charged with the grievance decision had upheld.

(18) There is sufficient evidence before the tribunal to justify the tribunal finding that there was a prima facie case of victimisation for the respondent to answer or meet, ie, the complainant has proved facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant.

(19) The legal consequences of the complainant establishing such facts are that the tribunal must uphold the complaint unless the respondent proves that it did not commit or, as the case may be, is not to be treated as having committed that act.

(20) For the purposes of Article 63A Sex Discrimination (Northern Ireland) Order 1976 as amended there was plainly a prima facie case of victimisation. Moreover the respondent’s defence or explanations were found entirely inadequate in the tribunal’s findings of fact and reasoning.

Respondent’s Submissions

10. The respondent submitted:-

(1) That it took issue with a number of the assertions in the submission made by the claimant that:-

(a) the councillors did not accept the investigation report from Mr Joynes in August 2009, as they had not finished considering it;

(b) the assertion that the councillors did not accept the grievance because they were uncomfortable with the findings of the Joynes’ report is not a fact but an opinion;

(c) the evidence for the reason for the claimant’s resignation, as contained in her letter, is the delay not the decision to re-investigate. Had the claimant sought to rely on the decision to re-investigate, as the reason for her resignation, it would have been grossly out of time in relation to the constructive dismissal claim.

(2) At the point when the claimant resigned the respondent had not made any findings on her grievance. The claimant issued her proceedings before the respondent had issued the report on her grievance. The actual victimisation and the ground for claiming constructive dismissal was therefore the delay in dealing with the matter.

(3) The claimant framed a case of victimisation on the grounds of sex and disability, although the latter was effectively abandoned in final submissions.

(4) The respondent, at the outset of the hearing, accepted that the claimant had carried out a protected act thereby bringing the concept of victimisation into play in the case. The issue, on this specific limb of liability, then became whether the claimant could link her treatment, ie, the respondent’s behaviour in dealing or failing to deal with the investigation report to that act. The tribunal has rejected the allegation of victimisation.

(5) The claimant’s submissions are understandably at pains to isolate a specific paragraph of the decision for reconsideration. However, this approach leads to error as the decision needs to be considered in its entirety. The decision was the outcome of an eight day hearing and it is assumed that the evidence heard at the hearing was at the forefront of the tribunal’s mind in determining liability.

(6) The tribunal rejected the claimant’s claim of victimisation. The respondent contends that, when read as a whole, the decision shows that the tribunal did properly consider all relevant issues with regard to victimisation.

(7) The reconsideration of the victimisation element is concerned with the meaning of the four words “related to sex discrimination” in paragraph 9(12) and the reference to discrimination at 9(12)(d) of the decision. The respondent again submits that the correct approach requires the decision to be considered in full.

(8) The tribunal did not conclude that there was “less favourable treatment” of the claimant than a hypothetical employee. The tribunal therefore has concluded that another employee, making 130 allegations against senior management (but not having done the protected act) would not have been treated differently.

(9) The tribunal found that there were many regrettable reasons for the delay but concluded that the delay was not, in all the circumstances, an act of unlawful victimisation. This was a finding of fact based on evidence heard. The tribunal specifically considered and rejected victimisation as the cause of delay and the rejection of the grievance.

(10) The breaches of contract found by the tribunal in its decision to enable it to conclude that the claimant had been constructively dismissed do not automatically amount to detriment for the purposes of victimisation and indeed will not, unless there is first a finding of less favourable treatment on the grounds of gender, which has not been found to exist here. The claimant ignores the bulk of the decision which makes clear that the motivation and intent of the respondent in this regard was one of a number of factors taken into account. In a victimisation case the motivation and intent of the alleged discriminator are clearly relevant matters for the tribunal. Where the claimant is alleging deliberate delay as an act of victimisation then the question of whether that assertion makes any sense is clearly relevant.

(11) The issue of the “reason why” has been considered by the tribunal and it is contended by the respondent that the claimant failed to establish that essential link to a successful victimisation claim.

(12) The respondent submits that the tribunal has not fallen into error in relation to the application of Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 as amended. The claimant asserts that the tribunal found the reason for delay to have been her allegations of sex discrimination. This is based on the “ambiguous” phrasing of 9(12). It seems apparent from the decision that the tribunal has concluded that the reason for the actions of the respondent was its reluctance to accept the findings of the investigator. The tribunal has considered this and concluded that this did not include an unlawful motivation under the Sex Discrimination Order. In other words, the tribunal was satisfied that the respondent did not commit and was not to be treated as having committed the unlawful act. That is what the tribunal is required to do under Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 as amended.

THE LAW

11. Discrimination by way of victimisation

(1) A person “A” discriminates against another person “B” if he treats “B” less favourably than he treats or would treat other persons whose circumstances are the same as B’s and he does so because the person victimised has done any of the following actions:-

(a) brought proceedings against A or any other person under the Sex Discrimination (Northern Ireland) Order 1976 as amended, or

(b) gave evidence or information in connection with such proceedings brought by any person; or

(c) otherwise did anything under or by reference to the Sex Discrimination (Northern Ireland) 1976 as amended in relation to A or any other persons; or

(d) alleged that A or another person has (whether or not the allegation so states) contravened the Sex Discrimination (Northern Ireland) Order 1976 as amended; or

(e) A believes or suspects that the person victimised has done or intends to do any of these things (Article 6 Sex Discrimination (Northern Ireland) Order 1976 as amended).

The protection afforded by Article 6 is for the person victimised because he or she has done a protected act.

(2) Lord Nicholls commented in Chief Constable of the West Yorkshire Police v Khan [2001] IRLR 830, at paragraph 16:-

“The primary object of the victimisation provisions … is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or intend to do so”.

(3) Tolley’s Employment Handbook in the 27^th edition 2013 states at paragraph 10.38:-

“Victimisation

In the United States, this form of discrimination is sometimes known as ‘retaliation’, a word which perhaps more accurately captures its essence than our own term ‘victimisation’.”

(4) A victimisation claim requires:-

(a) The protected act being relied upon;

(b) The correct comparator;

(c) Less favourable treatment;

(d) The reason for the treatment;

(e) Any defence;

(f) Burden of proof.

(Harvey on Industrial Relations and Employment Law L [468]).

The correct comparator

(5) “There is no single ‘right’ answer when it comes to defining the proper comparator, but it would appear that this should not be a difficult hurdle for the complainant to surmount. Where the complaint of victimisation is based on a dismissal, for example, the proper comparator is simply another employee in the same employment who has not been dismissed. Where the complaint is of victimisation by refusal of a reference, the proper comparator is another employee seeking a reference. It is not right to require the comparator to have specific characteristics which make his case and that of the complainant closely similar: see Chief Constable of West Yorkshire Police v Khan, in which Lord Nicholls stated (at paragraph [27]):-

‘The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act’.”

(Harvey on Industrial Relations and Employment Law L [475.01]).

Less favourable treatment

(6) “The question of what amounts to ‘less favourable treatment’ will frequently be a straight forward question. It is proper to draw an analogy with discrimination provisions which require a claimant to show a ‘detriment’, which must be examined from the point of view of the alleged victim – see MOD v Jermiah [1979] IRLR 436 [1980] ICR 13, CA, where it was said that a detriment exists ‘if a reasonable worker would take the view that the treatment was to his detriment’. The need however to show that any alleged detriment must be capable of being objectively regarded as such was emphasised by HL in Saint Helen’s Metropolitan Borough Council v Derbyshire [2007] UKHL 16, [2007] IRLR 540, [2007] ICR 841 applying Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, [2003] ICR 337, where it was held (paragraph 35) that ‘an unjustified sense of grievance cannot amount to ‘detriment’.”

(Harvey on Industrial Relations and Employment Law L [476]).

The reason for the treatment

(7) “The House of Lords, in two decisions (Nagarajan and Khan), considering the elements of victimisation under the SDA 1975 and RRA 1976 …, ruled that while it must in all cases be shown that less favourable treatment of the person victimised was by reason of him having done a protected act, a simple ‘but for’ test was not appropriate. There is however no need to show that the doing of the protected act was the legal cause of the victimisation, nor that the alleged discriminator was consciously motivated by a wish to treat someone badly, either because of their sex or race, or because they had engaged in a protected conduct. Of course, in most cases where victimisation is established this will be the case, but not in all. Where for example, a person is victimised because of the unconscious or subconscious sexual (or racial) prejudice, that person will be entitled to say that the action taken was on the ground of sex (or race). To put it another way, the respondent will not be able to escape liability by showing an absence of intention to discriminate, provided that the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment can be shown to exist.

Nagarajan v London Regional Transport [1999] IRLR 572 HL … The majority view was that conscious motivation was no more needed in the establishing of victimisation-discrimination under RRA than it was in relation to ordinary direct discrimination under RRA … Here it was enough that the employment tribunal had found victimisation to exist on the ground that ‘consciously or sub-consciously’ the interviewers of Mr Nagarajan for the job vacancy had been influenced by the fact that he had previously brought proceedings against the employer. If motivation is taken out of the picture, as it would appear, it must be, establishing the presence of victimisation becomes very much a question of causation …

Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 [2001] ICR 1065 HL a police officer complained of victimisation following his chief constable’s refusal to provide a reference for him for a new job. The Chief Constable’s position was that he was unable to comment as to the officer’s suitability for fear of prejudicing his (the Chief Constable’s) case in proceedings in which the officer was pursuing a racial discrimination claim against him in the tribunal. In other words, the reference was refused because of pending proceedings. It was argued that there was not victimisation, because the same response would have been given in the case of anyone who had brought proceedings against the Chief Constable. The House of Lords, disagreeing with the approach taken in the courts below, accepted that there was not victimisation – on the grounds of how a comparator would have been treated. The proper comparator was another employee of the police service who had requested a reference, not another employee who had brought proceedings under a different type of claim. That approach was helpful to the claimant. But at the end of the day there was no victimisation because the reference had been refused, not because proceedings had been brought, but because proceedings were pending. The House of Lords indicated that if the same action had been taken when the proceedings had been concluded, that might well have been victimisation – but that was not the situation that applied here.”

(Harvey on Industrial Relations and Employment Law L [485]).

(8) In the Khan case, Lord Hoffman distinguishes between the doing of a protected act and the fact that a protected act has been done. He refers in his judgment at page 836 paragraph 58 to the decision of Cornelius v University College of Swansea [1987] IRLR 141 and cites, with approval, comments of Bingham LJ who rejected the complaint for the following reasons at page 145, paragraph 33:-

‘There is no reason whatsoever to suppose that the decisions of the registrar and his senior assistant on the applicant’s request for a transfer and the hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the act. The existence of proceedings plainly did influence their decision. No doubt, like most experienced administrations, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had, so far as the evidence shows, nothing whatever to do with the appellant’s conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied’. [My emphasis.]

Lord Hoffman added at paragraph 59:-

‘…Under s2, however, the commencement of proceedings must be a reason for the treatment and in Cornelius’ case it was not.’

(9) “The importance of establishing a causative link can be seen in cases such as Khan itself, where it is accepted that ‘a protected act’ has occurred and there is no dispute over the ‘less favourable treatment’ but the dispute centres on the reason for that treatment … The key issue … will be the tribunal’s understanding of the motivation (conscious or unconscious) behind the act by the employer which is said to amount to victimisation…”

Harvey on Industrial Relations and Employment Law L [488]).

(10) “… in HM Prison Service v Ibimidun [2008] IRLR 940 EAT … the dismissal of the employee was found to have related not to his bringing of tribunal proceedings complaining of race discrimination but to the way in which he pursued those proceedings, including unreasonable allegations, with a view to harassing his employer to settlement. As the reason for the dismissal was the manner of performing the protected act rather than the protected act itself, this did not amount to victimisation. Such an approach is consistent with the ‘reason why’ test laid down by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL…”

Harvey on Industrial Relations and Employment Law L [488.01]).

(11) It is for the claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976, as amended, is to be treated as having committed such an act of discrimination against the claimant (Article 63A Sex Discrimination (Northern Ireland) Order 1976 as amended).

APPLICATION OF THE LAW AND FINDINGS OF FACTS TO THE ISSUES

12. (1) In compliance with the direction of the Court of Appeal the tribunal has freshly considered the evidence adduced by the parties in relation to the claim of victimisation.

(2) In so doing the tribunal had regard to the findings of fact in its decision and the additional material specifically referred to the tribunal by the claimant’s counsel from the claimant’s witness statement at paragraphs 82 to 94.

(3) The claimant did not challenge any of the tribunal’s findings of fact. Rather it was asserted, on behalf of the claimant, that the tribunal’s findings of fact should have led it to conclude that the claimant had suffered victimisation on the ground of having done a protected act.

(4) In giving this decision on victimisation the tribunal followed the approach suggested in Harvey on Industrial Relations and Employment Law [468] and set out above at paragraph 11(4).

The protected act being relied upon

13. (1) The parties did not challenge the tribunal’s findings at paragraph 9(16) of its decision that the lodging of proceedings for sex discrimination in July 2008 and the submission of a grievance on 3 April 2008 satisfied the requirement of being a protected act.

(2) The claimant therefore has established that she has done a protected act.

The correct comparator

14. (1) The House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR page 1065 stated that the correct comparator is someone who has raised a grievance. Lord Nicholls said:-

“25. As appears from my summary of the authorities, different views have emerged on the correct way to identify the “others”, or the comparators or control group, as they are usually known. One approach is that, to continue with my example, if an employee is dismissed the control group comprises the other employees. The complainant was less favourably treated because he was dismissed and they were not. There may be good reasons for this difference in treatment but, on this approach, that is a matter to be taken into account at the third stage when considering why the employer afforded the employee less favourable treatment. This was the approach adopted in Aziz v Trinity Street Taxis Ltd [1988] IRLR 204. It was the approach adopted at all levels in the present case. Sergeant Khan was treated less favourably than other employees, because references are normally provided on request and Sergeant Khan was refused a reference. It was also the approach adopted in Brown v TNT Express Worldwide (UK) Ltd [2001] ICR 182.

26. The other approach is that when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable. The control group should be limited to employees who have not done the protected act but whose circumstances, in the material respects, are fairly comparable. This approach was adopted by the Employment Appeal Tribunal in Kirby v Manpower Services Commission [1980] IRLR 229 and by the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73, 76, para 13 (this point was not the subject of the subsequent appeal to your Lordships’ House [1999] IRLR 572).

27. There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case [1998] IRLR 204, p 210. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.

28. Applying this approach, Sergeant Khan was treated less favourably than other employees. Ordinarily West Yorkshire police provides references for members of the force who are seeking new employment.”

(2) Therefore, following Lord Nicholls’ approach, the comparator is someone who has made a grievance and not carried out a protected act.

Less favourable treatment

15. (1) The tribunal is satisfied that the claimant suffered less favourable treatment than the hypothetical comparator. In so concluding, the tribunal had regard to the following matters:-

(a) That the proper comparator for the purposes of a claim for discrimination by way of victimisation is someone who had lodged a grievance and not carried out a protected act.

(b) There was not any evidence before the tribunal that the respondent did not adhere, in normal circumstances, to its own grievance policy including time-limits as set out at paragraph 7(6) of the tribunal’s original decision.

(c) The claimant’s unchallenged evidence was that grievances were ordinarily dealt with within one or two months. One grievance took four months to resolve.

(d) The claimant’s unchallenged evidence was also that in cases of collective grievances the respondent had taken 16 to 17 months to resolve them.

(e) The finding of the tribunal, in its original decision, that there was not any delay up until August 2009 was not challenged by either party.

(f) Whilst the respondent did not accept the tribunal’s finding that the respondent had decided to accept the findings in the Joynes’ report on 11 August 2009 the respondent did not allude to any factual matters or evidence or reason that would cause the tribunal to change its finding on this matter.

(g) Nor was the tribunal’s conclusion, that the grievance should have been concluded within a number of months from 25 August 2009 challenged. The tribunal sees no reason to change that finding.

(h) Therefore the delay between the end of 2009 and when the claimant resigned in June 2011 was inordinate and unjustified.

(2) The claimant therefore has satisfied the requirement of establishing less favourable treatment to ground her claim of discrimination by way of victimisation.

The reason for the treatment

16. (1) In order that the claimant succeed on a claim for discrimination by way of victimisation, she has to show that the reason for the less favourable treatment was that she had done a protected act, following the approach of the House of Lords in the Khan case.

(2) The particular conduct of the respondent that the claimant criticises, as manifesting victimisation, is the delay in dealing with her grievance from April 2008 until she resigned on 28 June 2011.

(3) The tribunal, in its original decision, posed the question as to what would be the advantage of the delay to the respondent. Merely delaying the dealing of the claimant’s grievance would not make it go away and in fact, as happened, it aggravated the annoyance of the claimant and impelled her to pursue the matter further.

(4) The tribunal adheres to its reasons for rejecting the respondent’s explanation of not accepting the Joynes’ report. No challenge was made to that in the course of this hearing.

(5) The tribunal’s conclusion is that the respondent was seeking to overturn the adverse findings in the Joynes’ report. The arranging of further hearings with other persons and inviting the claimant to participate in this approach was designed to enable it so to do. The claimant did not have direct experience of that. Her direct experience of the council’s treatment was the delay. However she believed, as she set out in her witness statement at paragraph 94, “that the reason that the grievance took so long to complete was the improper interference with the investigation and determination to ensure no significant prejudicial findings were reached”.

The claimant believed that this amounts to victimisation.

(6) Having reconsidered the evidence afresh the tribunal adheres to its view set out at paragraph 9(12) of the original decision, namely:-

“The tribunal concludes that on balance the explanation for the delay is that the respondent did not wish to accept the findings of the Joynes’ report because some of them related to sex discrimination; involved a number of senior council officers; and thereby raised questions about how the respondent conducted its workplace and work environment.”

(7) The reason for the treatment (the delay) was not because the claimant did a protected act. The reason for the treatment (the delay) was the efforts made by the respondent to overturn the adverse findings against the respondent and its senior officers in the Joynes’ report. Those efforts caused the delay in dealing with the claimant’s grievance.

Any defence

17. It is unnecessary to consider whether there is a defence open to the respondent as without the doing of the protected act being the reason for the less favourable treatment the claimant cannot succeed in a claim of victimisation and therefore it is unnecessary to consider any defence that the respondent may have.

Burden of proof

18. (1) Article 63A of the Sex Discrimination (Northern Ireland) Order 1976, as amended, causes the burden to shift where the employee has established a prima facie case that she has been treated less favourably on the prohibited ground.

(2) In the instant case, the claimant has to show that the reason for her less favourable treatment is that she had done a protected act. As the tribunal has found above that the reason for the claimant’s less favourable treatment was not that she had done a protected act but rather to protect or attempt to protect the respondent and its senior officers from findings of sex discrimination then the claimant cannot establish, to a prima facie level, that the ground for her less favourable treatment is having done the protected act and therefore she cannot benefit from the shift of burden under Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 as amended.

(3) However, even if the claimant had established a prima facie claim of victimisation, thereby causing the burden to shift, the tribunal is satisfied that the reason for the less favourable treatment of the claimant was to protect the respondent and its senior officers.

Despite the fact that the respondent did not advance protection of the council or its senior officers as its reason for its treatment of the claimant the tribunal is satisfied, on balance, that this is the reason, having seen and heard from the witnesses and considered the history of these events, as set out in the findings of fact in its original decision.

The tribunal is fortified in this conclusion as it accords with the claimant’s own view as set out in her witness statement at paragraphs 86, 89, 90, 91, 93 and 94.

(4) Accordingly the claimant has not established the necessary ingredients to persuade the tribunal that she has been discriminated by way of victimisation.

19. The claimant’s claim of discrimination by way of victimisation is therefore dismissed.

Chairman:

Date and place of hearing: 6 September 2013, Belfast.

Date decision recorded in register and issued to parties:

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010