Industrial Tribunals Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS:   37/15FET

1340/15

 

 

 

CLAIMANT:                Avril Harte

 

 

RESPONDENTS:     1.       Encirc Limited

                                      2.       John Breen

                                      3.       Brian Cosgrove

 

 

DECISION

 

The unanimous decision of the Tribunal is that the claimant’s claims of unlawful discrimination on the ground of sex, and unlawful discrimination on the ground of political opinion, are dismissed.

 

 

 

Constitution of Tribunal:

 

 

Employment Judge:          Employment Judge Crothers                

 

Members:                             Ms E McFarline

                                                Mr H Stevenson

 

 

Appearances:

 

The claimant appeared and represented herself.

 

The respondents were represented by Mr N McNally, Solicitor, Hill Dickinson LLP, Solicitors.

 

 

THE CLAIM

 

1.            The claimant claimed that she had been unlawfully discriminated against on the ground of her sex.  Furthermore she claimed that she had been discriminated against on the ground of her political opinion.  She had confirmed that on making this claim, she was doing so in relation to “trade union rights”.  In this context the Court of Appeal decision in the case of McKay v Northern Ireland Public Service Alliance and Another [1994], is relevant.  The respondents denied the claimant’s claims in their entirety.  They also contended that the claimant’s sex discrimination claim was out of time although, in final written submissions, conceded that the discrimination claim on the ground of political opinion was in time. 

 

THE ISSUES

 

2.            (i)         The agreed legal and factual issues duly modified, were as follows:-

 

Claims

 

The claimant’s claims are:

 

1.         Direct sex discrimination

 

2.         Direct political opinion discrimination, specifically relating to her trade union rights (McKay v Northern Ireland Public Service Alliance and Another (1994)

 

Legal Issues

 

Time Limits

 

1.         Is the claimant’s claim at 2. above, in time?

 

Direct Sex Discrimination

 

1.         The claimant has identified Stephen McFarlane and Paul Maguire as comparators in relation to her claim of sex discrimination.  In all of the circumstances of the case are they appropriate comparators?  If not, has the claimant identified appropriate real or hypothetical comparators?

 

2.         Did Brian Cosgrove and John Breen conspire to arrange the incidents on 7 and 8 April 2015, complained of by the claimant, with an intention to treat her less favourably than Mr Maguire and/or Mr McFarlane?  If so, did they do this on the ground of her sex?

 

3.         Did Brian Cosgrove treat the claimant less favourably on 7 April 2015 than he would have treated Mr Maguire?  In particular:

 

3.1       In specifically telling a Line Controller to ask the claimant to come and
   see him when he could not find the claimant?

 

3.2       In concluding that mould 29 was in fact not a defect?

 

3.3       In the manner in which he spoke to the claimant in the refuge?

If the Tribunal finds that Mr Cosgrove did treat the claimant less favourably in the above circumstances, was that less favourable treatment on the ground of the claimant’s sex?

 

4.         Did John Breen treat the claimant less favourably than Mr Maguire in the way in which he behaved in the refuge on 7 April 2015?  If so, is the reason for the less favourable treatment on the ground of the claimant’s sex?

5.         Did John Breen treat the claimant less favourably than Mr McFarlane by taking her off QS duties on 8 April and replacing her with Mr McFarlane?  If so, was that less favourable treatment on the ground of the claimant’s sex?

6.         Is the First Respondent vicariously liable for any of the unlawful acts identified in this section?  If so, is the first respondent able to establish a reasonable steps defence?

 

            Trade Union Activities

 

7.         Has the claimant established an appropriate real or hypothetical comparator in the circumstances?

 

8.         Did Brian Cosgrove and John Breen conspire to manufacture the incidents on 7 and 8 April 2015, complained of by the claimant, with an intention to treat her less favourably than an appropriate comparator?  If so, did they do this on the ground of her trade union activities?

 

9.         Did John Breen treat the claimant less favourably than an appropriate comparator in:

 

                        9.1    the way in which he behaved in the refuge during the incident on 7 April 2015?

 

                        9.2    in moving the claimant from Quality Control Supervisor duties on 8 April   2015?

                        If so, was the reason for this less favourable treatment on the ground of the claimant’s trade union activities?

 

            10.       Did Brian Cosgrove knowingly aid John Breen in relation to any unlawful act identified in 9 above?

 

            11.       Is the first respondent vicariously liable for any of the unlawful acts identified in this section?  If so, is the first respondent able to establish a reasonable steps defence?

 

            Agreed Facts

 

1.         The claimant is a Line Controller but it is agreed that she is a multi-skilled operator capable of working in a number of different roles.  On 7 April 2015 the claimant was covering as Quality Control Supervisor.

 

2.         It is further agreed that the claimant has previously been a Shop Steward for Unite the Union, the First Respondent’s recognised trade union.  The claimant left this role and the union on September/October 2014.

 

3.         It is agreed that Mr Cosgrove and the claimant disagreed over a defect that occurred on 7 April.  Mr Cosgrove did not believe it to be a serious defect and as such it did not need to be taken out of the line.  The claimant disagreed and considered the defect sufficiently serious to take it out of the line.

 

4.         As part of the claimant’s grievance the first respondent had the defect in question reviewed and the conclusion was that the defect was commercially acceptable.

 

5.         It is agreed that Mr Cosgrove and the claimant had a discussion in the hot end refuge concerning their difference of opinion.  There is disagreement about the nature of that conversation.

 

6.         During the conversation between Mr Cosgrove and claimant, Mr Breen was present in the room.  There is disagreement between Mr Breen and the claimant over his involvement in and knowledge of that conversation.

 

7.         The following day, 8 April 2015, the claimant was moved from the QS role and replaced by Stephen McFarlane, a charge hand.

 

8.         The claimant complained to John Harrison on 8 April concerning the matters set out above.

 

9.         The claimant subsequently issued a formal grievance concerning the incident which was heard by Kevin McGarry, Production Manager.  Mr McGarry decided not to uphold the claimant’s grievance in an outcome letter dated 22 May 2015.

 

10.      The claimant subsequently appealed Mr McGarry’s decision in a letter dated 27 May.  The appeal was considered by Fiacre O’Donnell, Marketing Manager.  Mr O’Donnell decided not to uphold the claimant’s grievance in a letter dated 5 August 2015.

 

11.      The claimant presented her claim on 10 July 2015.

SOURCES OF EVIDENCE

 

3.            The Tribunal heard evidence from the claimant and, on her behalf from Gabriel McNally, and Ciaran McElroy.  On behalf of the respondents, the Tribunal heard evidence from Brian Cosgrove, Forming Specialist, Fiacre O’Donnell, Head of Strategic Development, John Breen, Shift Manager, and Lorraine Leddy, Human Resources Business Partner.

 

FINDINGS OF FACT

 

4.            Having considered the evidence insofar as same related to the issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-

 

(i)           The first named respondent (“Encirc”), operated a site at Derrylin, Co Fermanagh.  The claimant commenced employment with Encirc on 26 June 2006 and is still employed as a Line Controller and as a multi-skilled cold end operative.  She has the capacity to undertake various duties, which can vary from day to day.

 

(ii)          The claimant was a union Shop Steward and a union member up until in or about September 2014.  The Quality Supervisor, Amanda Neill, was off on maternity leave and was scheduled to return at the end of April 2015.  In her absence, Paul Maguire undertook the QS duties.  When he was absent the claimant was selected on occasions to perform the QS duties.  She did this for approximately 7-14 days in the period from August 2014 until the key dates for the purposes of her claims, namely 7and 8 April 2015. 

 

(iii)         The claimant was performing QS duties on Monday 6 April 2015.  It was usual for John Breen to meet with Charge Hands between 5.30 and 6.30 pm to establish the distribution of work for the next day.  The claimant was not in attendance at the meeting held on the evening of 6 April, but received a text message from Stephen McFarlane, a Charge Hand, that she was to go to the F1 line the following morning.  Paddy O’Brien had been asked by John Breen to perform the QS role.  However it appears that Paddy O’Brien was uncomfortable in this situation and, after discussion with the claimant, the claimant assumed the QS role on 7 April.  Paul Maguire, who regularly performed the QS role in the absence of Amanda Neill, was on leave from 6-9 April inclusive.  He worked a four day shift.  It was part of the claimant’s case, notwithstanding an incident which occurred on 7 April 2015, that she expected to perform the QS duties in the period up until the end of April 2015, when Amanda Neill returned from maternity leave.  However there was no evidence before the Tribunal as to whether Paul Maguire was absent for further periods up until the end of April 2015.  Although not in her claim form or in her witness statement, the claimant maintained before the Tribunal that the 3 months time period for her sex discrimination claim commenced at the end of April as there had been ongoing unlawful discrimination on the ground of sex up until that date.  Both claims were presented to the Tribunal on 10 July 2015. 

 

(iv)         In the course of her QS duties on 7 April 2015, the claimant rejected a particular bottle, designating it as a “bad match”.  However, when this was reported to Brian Cosgrove, he disagreed that it was a bad match but rather a case of a “bruised finish”. 

 

(v)          During cross-examination of Brian Cosgrove, the claimant presented evidence of custom and practice in relation to bottles designated as a “bad match”.  She brought a number of these bottles with her in an effort to show that she had correctly rejected the bottle as a bad match as others had done the same in respect of similar defects.  However Mr Cosgrove rejected the idea that any of the bottles were bad matches.

 

(vi)         On 7 April 2015 the claimant met with Brian Cosgrove and John Breen in a small room called the refuge.  Brian Cosgrove told the claimant that the bottle she had rejected was not a bad match.  It appears that John Breen was sitting separately at one end of the small room observing a line screen.  John Breen claimed in his evidence before the Tribunal that the claimant was cursing at Brian Cosgrove in front of junior operators and that he intervened and told them to calm down.  This is also one of the findings in the grievance outcome letter dated 22 May 2015.  However in his witness statement John Breen refers only to the fact that the claimant’s cursing caught his attention and that he said “that is enough of that”, whereupon the claimant left.  There is conflicting evidence as to precisely what was said during this meeting.  However, the Tribunal is satisfied that the claimant used foul language on at least one occasion.  The claimant clearly felt strongly that she had correctly rejected the bottle as being a bad match and by the fact that Brian Cosgrove as the forming specialist in the plant at Derrylin had disagreed with her decision.  It appears that Brian Cosgrove had asked a Line Controller to send the claimant to speak to him as he wanted to ensure that products were not being incorrectly identified as having defects.  According to his evidence, the product in question was a “bruised finish”, which was still commercially acceptable.  It also appears that the claimant was upset by Brian Cosgrove’s suggestion during the meeting in the refuge that she needed more training.

 

(vii)       The claimant’s case was that Brian Cosgrove and John Breen were anti-union and that they had conspired and plotted prior to 7 April 2015 to remove her from QS duties both on the ground of her political opinion related to trade union activities and on the ground of her sex.  The claimant referred to an incident in August 2014 when Brian Cosgrove sent her a text stating:-

            “they are in the office you Commy bitch keep the red flag flying        Wolfie”. 

 

The Tribunal however accepts that Brian Cosgrove and the claimant had a good working relationship up until 7 April 2015.  It is also satisfied that nothing discriminatory should be read into the       foregoing comment as clearly the claimant and Mr Cosgrove exchanged banter at times.  Furthermore, there was no evidence placed before the Tribunal as to what the claimant’s political opinion was at the material time.  The Tribunal is unconvinced by her contention that there was some plot or conspiracy by John Breen and Brian Cosgrove to remove her from the QS duties.  Furthermore, the fact that John Breen assigned F1 line duties to the claimant on the      evening of 6 April 2015 illustrates that in the absence of Paul Maguire, the claimant was not guaranteed assignment of QS duties.

           

(viii)      On 8 April 2015 Brian Cosgrove was scheduled to cover the Shift Manager’s role for the first time.  He clearly felt that it could be difficult to work with the claimant following the episode on 7 April.  John Breen decided to take the claimant out of the role as QS and assigned the QS duties to a Charge Hand, Stephen McFarlane. 

 

(ix)         Also, on 8 April, the claimant spoke to the Plant Manager, John Harrison about the incident on 7 April.  John Harrison approached Brian Cosgrove in an effort to “make up” with the claimant.  Brian Cosgrove’s evidence in the Tribunal indicated that he did not wish to apologise as he had nothing to apologise for.  He felt aggrieved by the claimant’s use of foul language and by the manner in which she spoke to him. 

 

(x)          John Harrison was clearly anxious to defuse the situation and sent an email to various individuals on 8 April in an effort to do so.  That email reads as follows:-

 

“Subject: Conflict Resolution

 

Guys,

 

As leaders in our plant and as representative of our business ethics, it’s critical that when tensions or confrontation is evident within the team that you defuse it very quickly and take the lead role to do so where applicable and sensitively.

 

If someone says or does the wrong thing you need to read the environment that surrounds the situation regardless of who (especially if it’s a female and male with all respect) guys its very easy to patronise unintentionally, so please be very mindful of this and just deal with the facts.

 

Listen carefully to what’s being said at the time and do not in any circumstance presume or manifest any segments of a statement.  (offer a union rep or witness in any mediation, but all parties must understand the confidentiality surrounding such a situation)

 

We need to be patient, attentive and stand by our company procedures or process, business ethics and general humanity (sensible approach).”

 

(xi)         On the evidence before it, the Tribunal is satisfied that the situation which occurred on 7 April could have been dealt with more expeditiously and effectively by the respondents by taking the initiative in an attempt to defuse the matter which had been blown out of all proportion.  Instead of this taking place, in accordance with John Harrison’s email, the claimant presented a grievance to John Harrison on 9 April 2015 leading to a grievance meeting on 13 April 2015 and to grievance outcome meetings on 6 and 12 May.  In the notes of the outcome meeting on 12 May the claimant is recorded as saying:-

 

         “I am very concerned with JB’s attitude to me, as this rubbed off on BC?  Is it that I am a woman or that I was a TU shop steward.  I will appeal”.

 

(xii)       The grievance outcome letter of 22 May 2015, signed by Kevin McGarry, Production Manager, states as follows:-

 

“Dear Avril

 

Re: Outcome of Grievance Hearing

 

I am writing to confirm the outcome of the grievance hearing held on 13 April 2015 as discussed at the outcome meetings on 6 May and 12 May 2015, which were chaired by myself and also attended by Lorraine Leddy as HR representative and note-taker.  You declined to have a representative at these meetings.

 

The grievance you raised was against Brian Cosgrove who you allege spoke to you in an unprofessional manner and breached your dignity at work and John Breen who you allege failed in his duty of care to you on 7 April 2015.

 

The Company has completed a full investigation into this matter.  Having carefully considered the facts and taken into account your representations and evidence; I have based my decision on the following findings:

 

·                    You advised that when you went to the hot end refuge on 7 April to advise Brian Cosgrove that F1 was packing, Brian started shouting and ranting at you that the defect on F4 was not a bad match and that he advised you that you needed more training to identify defects.  You advised that John Breen witnessed this alleged [attack] on you and did nothing to stop it.

·                    Brian advised that you came to the refuge and he asked you about the defect on F4, he stated that you said it was a bad match and when he disagreed you said “excuse fucking me that is a bad match” and you also told him to “wind his fucking neck in” and not to speak to you in that manner.  Brian advised he did not believe the defect was a bad match and suggested you have some refresher training.  Brian advised he never raised his voice or cursed and felt you were the one being aggressive.

·                John Breen advised he was in the refuge at the flexis while you and Brian were having a conversation, he advised he knew it was about a defect but wasn’t listening until he heard you cursing at Brian and raising your voice.  He stated at that time he interrupted the conversation to calm the situation but you were already leaving the refuge.  John advised he did not hear any bad language from Brian during this conversation but that he did hear you use bad language.

 

·                    Following our investigation it was identified there were two witnesses to the conversation.  We met with both witnesses who were in the refuge at the time and they advised they did not hear anything unusual – no raised voices or cursing but were aware a conversation was taking place about a defect.

·                We have had the defect analysed by an independent party who   advised he “would describe the defect as a bruise coming from         the neck ring match.  That the neck ring match is not perfect but    is commercially acceptable.  A poor match may contribute to the occurrence but a match like this would not alone be expected to      produce this defect.”  Therefore the required action following this would not be to hold ware.

 

·                You suggested at our first meeting you would like a meeting    with Brian and John to resolve the matter, both Brian and John      have confirmed they would meet with you to clear the air and       move forward.  However, you have advised you are not ready           for that meeting yet.  Please contact myself if you wish to avail   of the invite.

 

·                    At our outcome meeting you stated that you believed John Breen had failed in his duty of care to you because you were a woman or because you had previously been a shop steward.  As you only highlighted this during the outcome meeting this allegation was investigated as part of our initial grievance.  I would advise that you have not submitted any evidence to date to support this allegation.

 

I have concluded that there is no evidence to support your claim that Brian Cosgrove spoke to you in an unprofessional manner and breached your dignity at work and that John Breen failed in his duty of care to you on 7 April 2015.  I do, however, acknowledge your feelings and your perception of the issue as you have highlighted in your grievance.

 

You requested a copy of an email from John Harrison that was sent to his management team in relation to conduct of behaviour, as this was a general email to John Harrison’s management team I do not feel it is appropriate to share this email with you as part of this process.

 

You have the right, if you wish, to appeal against this decision.  If you wish to appeal, you should do so in writing within five working days of the date of this letter to a member of the Human Resources Team.  Your written notice should state the grounds for your appeal.

 

Please find a copy of the minutes from the grievance hearing enclosed.  I trust that the discussion we had has been captured accurately, however, should you have any questions regarding the minutes or the content of this letter please contact Lorraine Leddy.

 

If you have any queries in respect of this letter, or about your right of appeal, please do not hesitate to contact me.

 

Yours sincerely

 

Kevin McGarry

Production Manager”

 

 

(xiii)      As part of the grievance investigation Encirc had the bottle defect independently assessed.  The assessment confirmed Brian Cosgrove’s view that although there was a defect it was commercially acceptable.

(xiv)      The claimant appealed the grievance decision on 27 May 2015.  The appeal meeting was held on 2 June 2015, chaired by Fiacre O’Donnell, Encirc’s Marketing Manager.  There is no evidence that the claimant raised unlawful discrimination in the course of that meeting.  The grievance appeal outcome letter was not issued to the claimant until 5 August (both claims to the Tribunal having been presented on 10 July 2015).  The claimant pursued a further unsuccessful grievance during which she alleged unlawful discrimination on the grounds of sex and political opinion relating to her involvement in trade union activities.

 

(xv)       In her sex discrimination claim before the Tribunal the claimant maintained that Stephen McFarlane was less qualified than herself for the role of QS, that he had no previous experience in the role and that he had not been trained for the role.  The other comparator was Paul Maguire.  For the purposes of the political opinion claim under the Fair Employment and Treatment (Northern Ireland) Order 1998, the claimant relied on Stephen McFarlane as a comparator, along with a hypothetical comparator. 

 

(xvi)      At the outset of the hearing, the claimant was afforded an opportunity to obtain guidance from the Labour Relations Agency Officer. 

 

 

THE LAW

 

5.            (1)       The relevant law is contained in the Fair Employment and Treatment (Northern Ireland) Order 1998 (“FETO”).  Article 2(3) provides that:-

 

          “In this Order references to a person’s religious belief or political opinion includes references to –

 

(a)       his supposed religious belief or political opinion; and

 

(b)       the absence or supposed absence of any, or any particular, religious belief or political opinion”.

 

            (2)       Article 3 of the Order contains provisions relating to discrimination and unlawful discrimination on the ground of religious belief or political opinion.

 

            (3)       Regulation 24 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, inserts a new Section 38A in the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003.  It deals with the burden of proof and provides:-

 

                                 “Where, on the hearing of a complaint under Article 38, 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 unlawful discrimination or unlawful harassment against the complainant, or

 

(b)       is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant;

 

(c)       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”.

 

            (4)       The Tribunal considered the legislation relating to sex discrimination contained in Articles 3, and 8 of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) (“SDO”).

 

            (5)       Article 76 of SDO provides:-

 

                                 “(1)        Subject to Article 76A, 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 ...”.

           

            (6)       The Tribunal may also extend time on just and equitable grounds.

 

Harvey on Industrial Relations and Employment Law states at Division T279, as follows:-

 

 “The discretion to grant an extension of time under the just and equitable formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corpn v Keeble, DPP v Marshall, above).  Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of the action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corpn v Keeble [1997] IRLR 336, at para 8).  However, although, in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ (Southwalk London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ).

 

When considering whether to grant an extension of time under the ‘just and equitable’ principles, the fault of the claimant is a relevant factor to be taken into account, as it is under s 33 of the Limitation Act (Virdi v Comr of Police of the Metropolis [2007] IRLR 24, EAT).  But if it is the claimant’s solicitors who are at fault in presenting the claim, then such fault cannot be laid at the door of the claimant; accordingly, if the solicitors are negligent, the mere fact that the claimant may have a potential claim against them will not justify the refusal of an extension of time (Virdi, apply the principles set out in Steeds v Peverel Management Services Ltd [2001] EWCA Civ 419, [2001] All ER (D) 370 (Mar), in relation to an extension under s 33).”

           

 

            (7)       Burden of Proof Regulations

 

                        Article 63A of the SDO provides as follows:-

 

“(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 or harassment 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 or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.

            (8)       Article 2A of FETO provides:-

 

                                 “A person also discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of any provision referred to in paragraph (2B) if –

 

(a)       when either of those grounds he treats that other less favourably than he treats or would treat other persons; or ...

 

(b)       the provisions mentioned in paragraph (2A) are –

 

(a)       in provisions mentioned in paragraph (2A) are –

 

(b)       part iii; (discrimination and harassment in the employment field).”

 

            (9)       Article 3 of SDO provides:-

 

                                 “(2)  In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

 

(a)       on the ground of her sex, he treats her less favourably than he treats or would treat a man ...”

 

            (10)     Case Law on Burden of Proof Regulations

 

(i)      In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlains Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance is now set out at Annex to the judgment in the Igen case.  The guidance is not reproduced but has been taken fully into account, as it also applies to cases of discrimination on the grounds of religious belief and/or political opinions. 

 

(ii)     The Tribunal also considered the following authorities, McDonagh and Others  v  Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy  v  Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing  v  Manchester City Council [2006] IRLR 748 and Mohmed  v  West Coast Trains Ltd [2006] UK EAT 0682053008.  It is clear from these authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

 

“The Court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

 

                        “Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

 

(iii)    The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41.  These paragraphs are set out in full to give the full context of this part of his judgement. 

 

                                    “Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1)        In every case the Tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

                                               (2)        If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

 

                                               (3)        As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

 

                                                ‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

 

                                    If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the Tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

 

                        (4)        The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:-

           

                   ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

 

            Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

                        (5)        It is not necessary in every case for a Tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

                        (6)        It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.”

 

(iv)    The Tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination.  In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

 

 

            (11)     The claimant also relied on the case of Brendan McKay v Northern Ireland Public Service Alliance and Another (19/90FET) (“McKay”) and the subsequent Fair Employment Tribunal decision pursuant to the Court of Appeal decision delivered 28 October 1994.  The unanimous decision of the tribunal was that the respondent unlawfully discriminated against the applicant on the grounds of his political opinion in the arrangements made for the purposes of determining who should be offered the seconded post of Assistant Trade Union Side Secretary with the Northern Ireland Housing Executive but not by their failure to select the applicant for such a post.

 

            (12)     Paragraphs 2 & 3 of the decision state as follows:-

 

“The facts in this case illustrate vividly the difficulties which the legislation can pose for both employers and this tribunal in considering allegations of discrimination on the grounds of political opinion.  The respondent in this case is a trade union and is perhaps not untypical of such organisation in having active members on both ‘right’ and ‘left’ and a substantial number of members who could be described as ‘apolitical’.  Such was the picture painted for us by the evidence.  The applicant was on the ‘left’ and he alleged that the NIPSA Council – which between conference was the ruling body – was composed of a majority which he considered to be of the ‘right’ and opposed to the ‘left’ in general and ‘Broad Left’ in particular.  It was one of the ambitions of the applicant to introduce further democracy to the trade union by introducing elections for full time officials as distinct from appointment.  And it is one of the incongruities in the case that by making this suggestion the applicant was canvassing for the inclusion of political opinions as criteria for appointment by election whilst complaining if they were taken into account otherwise.  It was his ambition to make the union more politically active and it was also the ambition of an organisation of which he was an officeholder.  He and the organisation to which he belonged sought support for his views and political opinions within the union.  But in considering which candidate for the post was the best candidate for the post, the respondent union must disregard totally the political views of the candidates including those of the applicant.  We have to say that employers in such circumstances have an onerous task for it does really stretch credibility to think that an employer will simply ignore outspoken attacks on their views, policies and practices when it comes to appointing someone who must share their responsibilities and serve them loyally and faithfully in executing decisions.

 

...

 

We do not believe that it can be said that the applicant would have been successful in his application but for his political opinions.  Indeed one of his own witnesses testified to the fact that the applicant was an outspoken person at all levels of the union but even if he had not been a member of the Broad Left he would still not have got the post.”

 

SUBMISSIONS

 

6.            Written submissions were provided by both the claimant and the respondents.  Copies are annexed to this decision.  The Tribunal also considered supplemental oral submissions on 11 March 2016.

 

CONCLUSIONS

 

7.         The Tribunal, having carefully considered the evidence and having applied the principles of law to the findings of fact, concludes as follows:-

 

(i)            The Tribunal is not satisfied, on the facts as found, that the claimant can properly contend that the alleged discrimination was ongoing up until the end of April 2015, when Amanda Neill returned from maternity leave.  Although the claimant performed QS duties on 6 April, she was designated to perform F1 line duties, as Line Controller, on 7 April 2015.  In the Tribunal’s view this shows that she could not have had an expectation of performing QS duties on all occasions when Paul Maguire was absent, for whatever reason.  Furthermore, there is no evidence before the Tribunal as to QS duties being available for her in the period up to the end of April 2015 following Paul Maguire’s return to duty.  The Tribunal is therefore satisfied that any alleged discriminatory acts did not extend beyond 8 April 2015.  However, having considered the factors referred to in paragraph 5(6), and its broad discretion, the Tribunal extends time on a just and equitable basis to enable the claimant to present her sex discrimination claim.  She presented this claim to the Tribunal on 10 July 2015 – two days late.

 

(ii)       In the McKay case the claimant had a discernible political opinion.  In this case, there was insufficient evidence before the Tribunal to establish what the claimant’s political opinion was.

 

(iii)      In any event, as paragraph (5) of the Ladele decision states, it is not necessary in every case for a tribunal to go through the two stage procedure.  In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under Stage 1 of Igen.  The claimant is not prejudiced by that approach because in effect the tribunal is acting of the assumption that even if the first hurdle has been crossed by the claimant, the case fails because the employer has provided a convincing non-discriminatory explanation of the less favourable treatment.  In this case, the Tribunal is satisfied that there was no plot or conspiracy by John Breen or Brian Cosgrove, as alleged by the claimant.  She was properly assigned F1 line duties on the evening of 6 April.  Because of Paddy O’Brien’s reluctance to assume the QS duties on 7 April, the claimant ended up performing these duties.  This led to the incident with the “bad match” bottle and to the subsequent meeting in the refuge involving Brian Cosgrove and the claimant, in the presence of John Breen.  The Tribunal is satisfied that it was not unreasonable of Brian Cosgrove in light of the claimant’s attitude to him during the meeting in the refuge on 7 April, to have Stephen McFarlane, a Charge Hand, and therefore at a higher grade than the claimant, to perform the QS duties.  These duties were allocated to him by John Breen who had experience of Stephen McFarlane’s capabilities.  Furthermore this was the first occasion on which Brian Cosgrove was acting as Shift Manager.

 

(iv)      The Tribunal is therefore satisfied that the reason for the claimant’s treatment flowed specifically from the incident on 7 April and was not on the ground of either sex or political opinion relating to her trade union activities.  Moreover, at the material time, the claimant had ceased as a shop steward and as a trade union member from in or about September 2014.

 

(v)       The Tribunal can understand the claimant’s strength of feeling relating to the rejection of her designation of the bottle as a bad match.  Nonetheless, an independent assessment was made as part of the investigation, and Brian Cosgrove’s opinion upheld.  The Tribunal is however satisfied that more

 

 

            expeditious and effective action by the respondents following the incident on 7 April could well have obviated the subsequent grievances and the claims before this Tribunal. 

 

(vi)      The claimant’s claims are therefore dismissed in their entirety.

 

           

 

 

 

Employment Judge:      

 

 

Date and place of hearing:          7 – 11 March 2016, Belfast          

 

 

Date decision recorded in register and issued to parties: