Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   831/14

 

 

 

CLAIMANT:                      Dr Melissa McCullough

 

 

RESPONDENT:                Queen’s University Belfast

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the application for a strike-out of the claims of indirect discrimination and victimisation in relation to the 2011/2012 promotion competition is refused.

 

Constitution of Tribunal:

Vice President (sitting alone):              Mr N Kelly

 

Appearances:

The claimant was represented by Mr R Donaghy, Barrister-at-Law, instructed by P R Hanna, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed Pinsent Mason LLP, Solicitors.

 

Background

 

1.       The claimant was employed as a lecturer in the Centre for Medical Education in Queen’s University Belfast.  That was one of seven centres (four research centres and three teaching centres) in the relevant School of Medicine, Dentistry and Biomedical Sciences. 

 

2.       The claimant lodged an industrial tribunal claim on 14 May 2014 alleging direct gender discrimination, indirect gender discrimination and victimisation contrary to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’).

 

3.       That tribunal claim raised a range of matters:-

 

(i)       The criteria (profiles) were set in 2008 for promotion in the respondent organisation which the claimant alleged indirectly discriminated against her and two non-clinical, ie teaching colleagues, on grounds of gender.

 

(ii)      The claimant applied for promotion to the post of Senior Lecturer in 2010/2011 and was unsuccessful. 

 

(iii)      The claimant complained in writing on 28 September 2011.  This letter was prepared on the advice of the respondent’s Equal Opportunities Officer and concluded:-

 

“Myself and my female colleague Dr Corrigan see this as a very big issue and are working to capacity against profiles that either directly or indirectly discriminate against us.”

 

                    (iv)      That allegation of discrimination was denied on 21 October 2011.

 

(v)      The claimant applied again for promotion in October 2011 and was refused in February 2012 (‘the 2011/2012 competition’).

 

(vi)      The claimant complained to Professor Johnston in a feedback meeting following that promotion competition.

 

(vii)     The claimant appealed internally against the result of that promotion competition and was unsuccessful.  The appeal letter was dated 17 February 2012 and was detailed.  It did not raise alleged sex discrimination although it did set out alleged unfairness. 

 

(viii)    The title of the promotion post was changed.

 

(ix)      The claimant applied again for promotion in October 2013 and was informed on 14 February 2014 that she had been unsuccessful (‘the 2013/2014 competition’).

 

(x)      The claimant appealed that decision internally.  She objected to the criteria.  The appeal was dismissed on 21 March 2014. 

 

(xi)      The claimant also alleged victimisation contrary to the 1976 Order but did not outline the instances of alleged victimisation in the claim form.

 

4.       The claim was discussed in a Case Management Discussion which was spread over two days, on 4 – 5 August 2014, to enable certain matters to be clarified.  Issues for determination by the tribunal were agreed between the parties and were set out in writing.  These issues were, in summary, alleged direct gender discrimination, alleged indirect gender discrimination and alleged victimisation contrary to the Sex Discrimination (Northern Ireland) Order 1976.  The allegation of victimisation was clarified as an allegation in relation to the claimant’s failure to be promoted in the 2011/2012 and 2013/2014 competitions.  The claimant made it plain in that Case Management Discussion that she was not pursuing a claim of unlawful discrimination in relation to the first promotion application in the 2010/2011 competition. 

 

5.       The pre-hearing review was fixed to determine:-

 

“(i)      Whether the claimant’s claim of direct and indirect sex discrimination relating to a promotion procedure in 2011/2012 had been lodged within the statutory three month time-limit?

 

 (ii)     If not, is it just and equitable in all the circumstances to extend the time-limit?

 

(iii)(1)     In relation to the claimant’s claim of victimisation, were the claimant’s claims in respect of the following alleged protected acts:-

 

            (a)     September 2011 – complaint to the Human Resources Director regarding alleged sex discrimination in the promotions procedure; and

 

(b)     February 2002 – the claimant suggesting to Professor Johnston that ‘her card was marked’, lodged within the statutory three month time-limit.

 

   (2)       If not, is it just and equitable in all the circumstances to extend time?”

 

6.       The claimant also sought to amend her claim form to include the following matter:-

 

                    “In November 2013 the claimant made an application to the Staff Training and Development Unit for partial funding for a doctorate course at Loyola University which was refused on 20 December 2013 by Professor Johnston.  The claimant claims that this is a further act of victimisation”.

 

          The pre-hearing review was also directed to determine that amendment application.

 

7.       In the event, the claimant made it plain in oral evidence to the pre-hearing review that she was relying on an alleged medical condition, ie depression, in support of her application to amend the claim form.  The substance of her application to amend was that as a result of that particular medical condition, she had been unable to fully or correctly to recall all the relevant instances of alleged victimisation at the time of lodging her original claim form.  The medical evidence was             non-specific and unsatisfactory.  Furthermore, it had not been fully disclosed to the respondent and had not identified as the basis of any amendment application.

 

          The application to amend was therefore postponed generally.  If the claimant wishes to pursue this application to amend the claim form on medical grounds, further medical evidence will have to be obtained and disclosed properly to the respondent’s representative.  At that point any amendment application may be resumed.

 

8.       At the start of the pre-hearing review on 22 October 2014, I asked both counsel to, first of all, outline the claim and the response before I proposed to move onto the subject-matter of the pre-hearing review.  As has been held by the appellate courts (see the Coutts & Co and the Moseka decisions later), the first step for a tribunal considering this issue is to ensure that it fully understands the nature of the claim.  In the course of the claimant’s submission, it was made plain, despite the clear terms of the earlier Case Management Discussion, that there was no claim of direct gender discrimination.  The only claims before the tribunal were one of alleged indirect gender discrimination arising out of the application of criteria for promotion and a claim of victimisation contrary to the 1976 Order both in respect of the failure to be appointed in the last two promotion competitions.

 

9.       Essentially, therefore, the questions remaining for determination in this pre-hearing review were:-

 

“(1)     Whether or not the claim of unlawful indirect gender discrimination in relation to the application for promotion in October 2011 and the refusal of that application in February 2012 (the 2011/2012 competition) was out of time and, if so, whether time should be extended?

 

 (2)     Whether the claim of unlawful victimisation contrary to the 1976 Order in respect of the application for promotion in October 2011 and the refusal of that application in February 2012 (the 2011/2012 competition) was out of time and, if so, whether time should be extended?

 

Findings of fact

 

10.     Criteria were set in 2008 for promotion from the Lecturer grade to the Senior Lecturer grade.  Those criteria required that applicants should be PIs (Primary or Preliminary Investigators); that they should be first supervisors of PhD students; and that they should attract £120,000.00 of grant funding with the publication of 30 articles in high impact journals. 

 

11.     The claimant alleges that those criteria effectively excluded non-clinical lecturers from promotion to the Senior Lecturer grade.  She alleges that this adversely impacted on her and two female colleagues in the same centre. 

 

12.     The claimant complained of the potential adverse impact when the criteria were first formulated.  The complaint was put forward on subsequent dates.  The claimant tried unsuccessfully for promotion to the Senior Lecturer grade in the 2010/11, 2011/12 and 2013/14 promotion competitions.  The claimant is not pursuing a claim of unlawful discrimination in relation to the 2010/11 competition.  Only the two later competitions are relevant.

 

13.     For the purposes of the current claim, the claimant alleges both unlawful indirect gender discrimination and also unlawful victimisation contrary to the 1976 Order in respect of those two competitions, ie 2011/2012 and 2013/2014. 

 

14.     As the case law indicates, tribunals can go wrong if they direct their focus on whether or not there had been a policy or procedure and not on identifying the act or acts complained of by the claimant. 

 

15.     The general issues raised in this matter are:-

 

                    (i)       The introduction of the promotion criteria in 2008/2009.

 

                    (ii)      The maintenance of those criteria thereafter.

 

                    (iii)      The 2011/2012 promotion competition.

 

                    (iv)      The 2013/2014 promotion competition.

 

16.     Essentially the issue for determination in this pre-hearing review is:-

 

“Whether the matters raised in this claim referring to the 2011/2012 promotion competition were one-off acts from which time separately began to run or, whether there had been an act extending over a period for the purposes of the legislation; what Mummery LJ in Hendricks called a continuing state of affairs.”

 

Relevant law

 

17.     Section 76 of the Sex Discrimination (Northern Ireland) Order 1976 provides as follows:-

 

“(1)     An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of –

 

(a)      the period of three months beginning when the act complained of was done; or

 

                    ...

 

(5)      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.

 

(6)      For the purposes of this Article —

 

...

 

(b)      any act extending over a period shall be treated as done at the end of that period, and

 

... .”

 

18.     The consideration of whether or not matters are acts extending over a period for the purposes of this legislation or for the purposes of parallel Great Britain legislation has been the subject of extensive jurisprudence.  Most recently it has been considered by the Great Britain Court of Appeal in Okoro and Another  v  Taylor Woodrow Construction Ltd and Others [2012] EWCA Civ 1590, [2013] ICR 580.  In that case, the Court considered a ban issued by the respondents against the employment of the claimants.  The issue was whether the ban had been a one-off act where time ran from the date of that act or whether it had been an act extending over a period and that the time-limit for lodging a claim did not run while the ban was still in operation. 

 

19.     In summarising the submissions of the parties, the Court summarised the existing and extensive case law on this subject.  It referred, in particular, to the decision of Judge McMullen QC in Coutts & Company PLc  v  Cure [2005] ICR 1098:-

 

“The factual circumstances in which discrimination occurs had been illustrated in the authorities as falling into one of the following categories.

 

(1)      A one-off act of discrimination, such as the refusal to promote, which has continuing consequences for the disappointed candidate.

 

(2)      An act extending over a period of time, constituting a rule or policy, by reference to which decisions are made from time to time.

 

(3)      A series of discriminatory acts, whether or not set against a background of a discriminatory policy.

 

A complaint in relation to category (1) must be made within three months of the act or, where specific statutory provision is made for a deliberate omission to act, within three months from the date when the relevant less favourable treatment was ‘decided on’.  Time runs for category (2) complaint when the discriminatory rule is abrogated; and it will also run in the case of the specific application of the rule to any given employee, eg in refusing promotion, from that date of that application.  Time runs in the category (3) complaint where there is a specific statutory provision for this from the last in a series of acts.”

 

20.     In the Okoro case the Court determined that the act complained of, within the terms of the legislation, was the ban imposed by the respondents on the employment of the claimants in April 2008.  It determined:-

 

“That was a one-off act and was equivalent, in that respect, to dismissal of an employee by an employer.”

 

Determining the nature of the complaint

 

21.     In Coutts & Company PLc and The Royal Bank of Scotland  v  Cure and Fraser [2004] UKEAT/0395/4 the EAT stated:-

 

“31     In every case, the essential question is ‘what is the discriminatory act of which the complaint is made’ (Paragraph 51).  When looking at the way in which the complaint was made, tolerance must be given to the fact that Tribunals are ‘shop floor’ Courts, whose procedures and approaches must be attuned to the needs of litigants-in-person.  Accordingly, a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched.”

 

          In the same case the EAT said at Paragraph 35:-

 

“We bear in mind the generous interpretation which must be given to Originating Applications drafted by litigants-in-person.  These were drafted upon specialist advice, but, in our judgment, the same principle applies, at any rate where agreed facts have been presented to a tribunal.”

 

22.     In the case of Moseka  v  Sheffield Teaching Hospital NHS Foundation Trust [UKEAT/0517/13], the EAT stated at Paragraph 48:-

 

“Turning to the preliminary hearing itself, it is apparent that as per the guidance in Kaur, the Employment Judge first sought to ensure that he had properly ascertained the nature of the complaints as put by the claimant.”

 

23.     In City of Edinburgh Council  v  Kaur [2013] CSIH 32 [2013] EqLR 632 the EAT stated:-

 

“In this case, time bar was raised by the respondent’s as a preliminary issue to be decided at a pre-hearing review.  The Employment Judge’s task at that stage was simply to ascertain the nature of the complaint from the terms of the claimant’s form ET1; the relevant question being ‘what the ET1 meant to the reasonable reader’ (Charles  v  Tesco Stores Ltd [2012] EWCA Civ 1663, Mummery LJ at Paragraph 20).  Where it is clear, on a fair and reasonable reading of the ET1 as a whole, that the claimant is alleging continuing discrimination and that the final specific allegation in that context is at a time within the primary time-limit, that may be sufficient, to determine that a claimant’s case is potentially timeous.”

 

Acts extending over a period

 

24.     In Hendricks  v  Commissioner of Police for the Metropolis [2003] IRLR 96, Mummery LJ stated in the Court of Appeal:-

 

“48     On the evidential material before it, the tribunal is entitled to make a preliminary decision that it has jurisdiction to consider the allegations of discrimination made by Ms Hendricks.  The fact that she was off sick from March 1999 and was absent from the working environment does not necessarily rule out the possibility of continuing discrimination against her, for which the Commissioner may be held legally responsible.  Ms Hendricks has not resigned nor has she been dismissed from the service.  She remains a serving officer entitled to the protection of Part II of the Discriminations Act.  Her complaints are not confined to less favourable treatment of her in the working environment from which she was absent from after March 1999.  They extend to less favourable treatment of Ms Hendricks in the contact made by her by those in the service (and also in the lack of contact made with her) and in the course of her continuing relationship with the Metropolitan Police Service : she is still a serving officer, despite her physical absence from the workplace.  She is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’.  I regard this a legally more precise way of characterising her case than the use of expressions such as ‘institutionalised racism’, ‘a prevailing way of life’, a ‘generalised policy on discrimination’ or ‘climate’ or ‘culture’ of unlawful discrimination.

 

49      At the end of the day, Ms Hendricks may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more than isolated and unconnecting acts of less favourable treatment by different people and different places over a long period and that there was no ‘acts extending over a period’ for which the Commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the service and matters raised in sex discrimination.  It is, however, too soon to say that the complaints have been brought too late. 

 

50      I appreciate the concern expressed with the practical difficulties that may well arise in having to deal with so many incidents alleged to have occurred so long ago; but this problem often occurs in discrimination cases even when the only acts complained are very recent.  Evidence can still be brought of long past incidents of less favourable treatment in order to raise or reinforce an inference that the ground of the less favourable treatment is race or sex.

 

51      In my judgment, the approach of both the Employment Tribunal and the Appeal Tribunal to the language of the authorities on ‘continuing acts’ was too literal.  They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case – where there was an ‘accumulation of events over a period of time’ and a finding of a ‘climate of racial abuse’ of which the employers were aware, but had done nothing.  That was treated as ‘continuing conduct’ and a ‘continuing failure’ on the part of the employers to prevent racial abuse and discrimination, and is amounting to ‘other detriment’ within the meaning of Section 4(2)(c) of the 1976 Act.

 

52      The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period.  They should not be treated as a complete and constricting statement of the indicia of an act extending over a period.  I agree with the observations made by Sedley LJ in its decision on the paper exercise for permission to appeal, that the Appeal Tribunal allowed itself to sidetracked by focusing on whether a policy could be discerned.  Instead the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which the female ethnic minority officers in the service were treated less favourably.  The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts from which time would begin to run from the date when each specific act was committed.”

 

25.     In Lyfar  v  Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548:-

 

“10     I turn to the first issue: the test to be applied by the ET.  In Hendricks  v  Metropolitan Police Commissioner [2002] EWCA Civ 1686 Mummery LJ (with whom the other members of the Court agreed) set out the test to be applied at a preliminary hearing [now a Pre-Trial Review] when the claimant, otherwise out of time, seeks to establish that a complaint is part of an act extending over a period.  The claimant must show a prima facie case.  Miss Monaghan submitted that the ET must ask itself whether the complaints were capable of being part of an act extending over a period.  I, for my part, see no meaningful difference between this test and the prima facie test.

 

 11     To resolve that issue it may be advisable for oral evidence to be called ... .”

 

26.     In Aziz  v  FDA [2010] EWCA Civ 308 the Court of Appeal stated:-

 

“36     Another way of formulating the test to be applied at the pre-hearing review is this : the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked and has to be continuing acts or to constitute an ongoing state of affairs ... .”

 

27.     In Sourgin  v  Haringey Health Authority [1992] ICR 650 the decision stated:-

 

“An act does extend over a period of time, however, if it takes the form of a rule, scheme, practice or policy from which decisions are taken from time to time : for example, an employer’s pension scheme, as in Barclays Bank PLc  v  Kapur [1991] ICR 208, or a scheme providing for mortgage subsidies for employees and restricting the benefit of them in such a way that some qualify for the benefits, while others are denied them.  In those cases, as long as the scheme, rule, policy or practice is in operation, it may properly be said that there is an act extending over the period of its operation and a complaint may be brought during that period or, at the latest, before the end of the expiration of three months after the rule, scheme, practice or policy has ceased to operate.”

 

28.     In Calder  v  James Finlay Corporation Ltd [1989] ICR 157 the Court stated:-

 

“By constituting a scheme under the rules of which a female could not obtain the benefit of a mortgage subsidy in our judgment the employers were discriminating against the applicant in the way they afforded her access to the scheme.  It follows, in our judgment, that so long as the applicant remained in the employment of these employers there was a continuing discrimination against her.  Alternatively it could be said that so long as her employment continued, the employers were subjecting her to any other detriment within Section 62B.”

 

29.     In Rovenska  v  General Medical Council [1998] ICR 85 the Court stated:-

 

“In those cases the discriminatory act complained of is not a one-off act of refusal : it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities, or services, or out of the employer refusing or deliberately omitting to afford employees access to them.  In these circumstances the Courts have held that, if an employer adopts a policy which means that a black employee or female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employees who fall into these categories until the offending policy is abrogated.”

 

30.     In Cast  v  Croydon College [1998] ICR 500, Auld LJ stated in a situation where the complainant complained of a series of decisions refusing an application to job share or work part-time which was allegedly the result of a sexually discriminatory policy:-

 

“Accordingly I would hold that on the primary facts found by the industrial tribunal the applicant had clearly complained of a policy constituting an extended act up to the time she left her employment within Section 76(6)(b) and that, by virtue of that provision, it was to be treated as done to her up to that time.”

 

Decision

 

31.     The original claim form had alleged direct discrimination, indirect discrimination and victimisation contrary to the 1976 Order.  The claim of direct discrimination has been dropped.  The victimisation has been clarified as referring to the last two promotion competitions in 2011/12 and 2013/14.  The claimant has also stated that no claim is made in respect of the 2010/11 promotion competition. 

 

32.     The claim form contained extensive detail of the promotion criteria which had originally been set out in 2008 and had been applied thereafter, ie had been applied in relation to the promotion competitions in 2011/12 and 2013/14. 

 

33.     The legal issues agreed at the Case Management Discussion on 4 – 5 August 2014 made plain that the promotion criteria for the two promotion competitions in 2011/12 and 2013/14 were essentially the same and that they were the basis of an allegation of unlawful indirect discrimination. 

 

34.     It is therefore clear that the core of the claimant’s case of alleged unlawful indirect discrimination is that a policy, ie the promotion criteria, had been repeatedly applied to her, to her detriment and contrary to the 1976 Order. 

 

35.     Turning to the pre-hearing review questions, the first question relates to the claims of direct and indirect discrimination relating to the promotion competition in 2011/12.  As indicated above, the claim of direct sex discrimination is not being pursued.  The claimant has established a prima facie case that there has been an act extending over a period for the purposes of the 1976 Order.  The prima facie case is that the promotion criteria had been applied to the claimant’s detriment and that this involved a continuing act rather than a series of isolated and unconnected acts. 

 

36.     I should stress that this is not a matter which has been effectively determined at this stage.  My decision is solely that a prima facie case has been established at this stage and that it would not be appropriate to determine, in the context of a                     pre-hearing review, that the claim of unlawful indirect sex discrimination in relation to the 2011/12 competition should be struck-out as being out of time.  The tribunal determining the substantive case will look again at all arguments.  Adopting the terminology used in Hendricks et al, this is no more than a preliminary decision that the claims are potentially timeous.

 

37.     The second question is therefore no longer applicable at this stage. 

 

38.     The third question relates to the claims of alleged victimisation.  The agreed legal issues set out alleged protected acts.  The time-limit, of course, does not run from any alleged protected acts, it runs from the alleged acts of victimisation.  Again, in Paragraph 9 of the agreed legal issues, it is made plain that the allegations of unlawful victimisation relate to her failure in the two relevant promotion competitions. 

 

39.     It is not entirely clear why the fourth alleged protected act apparently postdates the two allegations of unlawful victimisation and it is equally not clear why the third alleged protected act postdates the first alleged act of victimisation.  In any event, however, the substance of the allegation of unlawful victimisation appears to be that the claimant had complained about the alleged adverse impact on women of the promotion criteria and as a result of that the claimant had been victimised in the following promotion competitions.  It is very difficult to separate the allegations of victimisation from the allegations of indirect sex discrimination in this case.  I therefore conclude that it would be inappropriate to order the strike-out of any or all of these allegations at this stage without having had the benefit of a substantive hearing at which all necessary evidence can be adduced.  The application for a strike-out is therefore refused.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing:         22 October 2014, Belfast

 

 

Date decision recorded in register and issued to parties: