Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2460/15

 

 

 

CLAIMANT: Carolyn Donnelly

 

 

RESPONDENT: Belfast City Council

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claim is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Ó Murray

 

Panel Members: Mr E Grant

Ms E McFarline

 

 

Appearances:

 

The claimant represented herself.

 

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Legal Services Department, Belfast City Council.

 

 

The claim

 

1. The claimant claimed sex discrimination, in that she alleges that she was treated less favourably due to her having taken a period of maternity leave on two occasions.

 

The issues

 

2. The issues for the tribunal at hearing were therefore as follows:-

 

(1) Was the refusal to let the claimant return to her old duties as a temporary Personal Assistant (PA) following her return from maternity leave in 2013 tainted by illegality because it was connected to her having returned from maternity leave and amounted to a refusal to let her return to her old job?

 

(2) Was the decision in 2012/2013 to recruit the PA post on a permanent basis (but to be filled on a temporary basis) an act of discrimination in that it was designed to keep the claimant from returning to that post?

 

(3) Following the claimant's return from her second maternity leave in April 2015 was there an attempt to prevent her from returning to her old duties in favour of two temporary members of staff; was the claimant's role thereby effectively diminished; and, if so, was this connected in the requisite way to her having taken one or more periods of maternity leave?

 

(4) Were the alleged acts of discrimination connected so as to constitute a continuing act or were they discrete acts meaning that some of them were out of time and, if necessary, should time limits be extended on just and equitable grounds?

 

Sources of evidence

 

3. The tribunal heard evidence from the claimant on her own behalf and heard evidence from the following witnesses for the respondent: Jacqueline Wilson, Business Manager; Rose Crozier, Assistant Director; Andrew Hassard, former Director Parks and Leisure; and Gail Wright, Principal HR Adviser. The tribunal also had regard to the documentation to which it was referred and had the witness statements from all witnesses.

 

The law

 

4. The claimant's claim is under the Sex Discrimination (Northern Ireland) Order 1976, (as amended) referred to below as SDO.

 

5. Article 5A of the SDO states as follows:-

 

" 5A (1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if —

 

(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably; or

 

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably.

 

6. The respondent's representative submitted that, as the claimant had returned from maternity leave, she could not avail of Article 5A and that her claim was for sex discrimination generally. The reason that this is important is that sex discrimination requires a male comparator whereas a claim under Article 5A does not require a comparator. We reject that argument and find that part of the legislation applicable in this case is Article 5A. It is the claimant's case firstly, that she was treated detrimentally because she had taken a period of maternity leave and was not allowed to return to her old role, and secondly, that her role was diminished in favour of two temporary staff who were taken on when she was off on maternity leave. In these circumstances the issues for us are whether or not there was any detrimental treatment and whether the reason for any such treatment was the fact that she was returning from maternity leave.

 

7. We were referred to the case of Johal v Commission for Equality and Human Rights UKEAT/0541/09 and, in particular, paragraphs 23 and 24 which set out the approach in these cases following an analysis of the authorities including the Supreme Court decision in the case of R v Jewish Free School Governing Body [2009]. The relevant part of the Johal case states as follows:-

 

"(23) In simple terms, where an act is inherently discriminatory, for example, the difference in ages between men and women pensioners entitled to free swimming in Eastleigh Council's pools, the detriment suffered by the claimant will be on the prohibited ground without more. The discriminator's motive for that discrimination, whether benign or malicious, is immaterial. However, where the act complained of is not in itself discriminatory, as we accept Ms Stone's submission applies in the present case, it may become so by discriminatory motivation, whether conscious or subconscious; the Nagarajan type of case.

 

(24) Thus, the critical question we think in the present case is the reason why question posed by Lord Nicholls: 'Why was the claimant treated in the manner complained of?'."

 

8. It is for the claimant to prove facts from which the tribunal could conclude that an act of less favourable treatment on grounds of sex occurred. If the claimant proves such primary facts the burden of proof shifts to the employer to prove that any detrimental acts were in no sense whatsoever related to her sex. It is not enough for a claimant to show a difference in status and a difference in treatment but she must show something more in order that the tribunal could conclude that any detrimental acts were because of her sex. This is the import of the Madarassy decision and the following appellate decisions illustrate how tribunals should approach the shifting of the burden of proof in these cases.

 

9. The Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and when applying the provisions relating to the shifting of the burden of proof. The Court stated:

 

" 22 The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The Court stated:-

 

' The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 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 an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [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."

 

10. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof.

 

11. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

" (71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

 

(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage."

 

12. The Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 (CA) case establishes the principle that a series of acts can be linked together to establish whether there was:

 

"an ongoing situation or a continuing state of affairs in which the group discriminated against (be it defined by sex or race) and including the claimant was treated less favourably ."

 

13. The claimant was held to be entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged instances of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period".

 

14. The time-limit for presenting the discrimination claims is three months from the date the act complained of was done. Where a claim is presented outside that time-limit a tribunal may consider it if, in all the circumstances of the case, it considers it just and equitable to do so.

 

15. The Employment Appeal Tribunal, in the case of British Coal Corporation v Keeble [1997] IRLR 636, held that the discretion to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in this jurisdiction is the Limitation (Northern Ireland) Order 1989. At article 50(4) of that Order are outlined the matters which can be considered and these include the extent of the delay; the reasons for the delay; whether advice was sought and whether action was taken as a result; and the effect of the delay on the cogency of the evidence.

 

16. The Court of Appeal in the case of Robertson v Bexley Community Centre [2003] IRLR 434 stated as follows in relation to the issue of extension of the time limit.

 

"An employment tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider everything that it considers relevant. However time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify the failure to exercise the discretion. On the contrary the tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule."

 

17. The House of Lords decision in Shamoon v The Chief Constable of the Royal Ulster Constabulary 2006 UK HL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings and gives guidance to tribunals on the approach to adopt. The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment. It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment. It is therefore an objective test which must be applied.

 

Findings of fact and conclusions

 

18. The claimant is a Secretarial Assistant and, at the time relevant to these proceedings, she worked in the Parks and Leisure Department of the respondent council. The claimant went on her first maternity leave in November 2012; returned to work in August 2013; went on her second maternity leave on 1 August 2014; and returned from that on 8 April 2015. She is currently on a career break which is due to end in October 2016.

 

19. Essentially, the claimant's case is that, following her first maternity leave, there was a determination by Andrew Hassard and others to ensure that she would not return to her former role as his temporary Personal Assistant (PA) as there was a decision that the temporary appointee FC should be retained instead of the claimant. It is the claimant's case that, firstly, there was no justification for the decision in 2013 to have a recruitment exercise to fill the PA post on a temporary basis and, secondly, that it was more than a coincidence that the recruitment exercise took place shortly after she returned from maternity leave in August 2013 as the requisition to fill that post was taken "off hold" by Mr Hassard on 2 September 2013 after having been put on hold by him on 29 April 2013.

 

20. In essence, the respondent's case was that the claimant happened to return from maternity leave during a period when the volume of work had increased hugely because of several projects and re-organisations which had a bearing on staffing and workload as follows:-

 

(1) There was the Local Government Reform Programme which affected all Councils. The preparation for Local Government Reform began on 1 November 2012 and the reorganisation ulimately came into effect on 31 March 2015. The latter date was key to several decisions relating to posts in this case.

 

(2) Within Belfast City Council there was the Leisure Transformation Project which was a huge re-organisation of leisure facilities and assets which ultimately resulted in those functions, facilities and assets being transferred to a Charitable Trust.

 

(3) There was a review of the Parks and Leisure Department and Health and Environmental Services Department.

 

(4) There was the retirement of the Director of Parks and Leisure Department, Andrew Hassard, in February 2015 and the fact that Ms Crozier the Assistant Director had to deal with the remainder of his workload as well as her own increased workload in a period of great change when the future structure of the organisation was in a state of flux and people and functions were in the process of moving to new organisational structures.

 

21. It is therefore the respondent's case that any of the decisions taken in relation to posts were connected to that re-structuring, period of change and extra work and were nothing to do with the claimant having been on maternity leave. We accept the Respondent's case on this as set out in this decision.

General

22. We assessed the claimant to be articulate, capable and sincere but there were several points on which we found the claimant's evidence to be unreliable as follows:-

 

(1) In relation to the time-point, the claimant gave evidence that she spoke to a trade union representative in 2013 about her concern about the unfairness in the recruitment process and she e-mailed him on several occasions without eliciting a response. One of the points made by the claimant as to why she did not go back to him with her concerns and why she did not think about making a claim was that she "never saw him" because he was based in the crematorium. The claimant however also made the point that she saw him several times when he walked passed her and ignored her. The claimant's evidence on how much contact she had with this trade union representative was therefore contradictory. We found the claimant to be very articulate and able to press her point in hearing and we do not accept that she would have allowed the representative to ignore her on several occasions and to ignore her e-mails without her going back to him to ask him to respond, to ask for further advice or to ask him what she should do about what she perceived to be unfairness.

 

(2) In relation to the time-point on whether or not the claimant had sought advice from any source during the period, the claimant gave evidence that she only sought advice from the trade union representative and that that was in general terms and not related to discrimination. At the end of the case during submissions, the claimant revealed for the first time that she had gone to the Equality Commission in September 2015. It would have been relevant to have mentioned this when she was asked direct questions about when and where she sought advice and the fact that she did not mention this affected her reliability adversely in our view.

 

(3) The claimant also gave conflicting evidence at various points on when she first knew that the unfair treatment she felt had been meted out to her might amount to unlawful discrimination.

 

(4) The claimant appeared to be inconsistent in her evidence in relation to whether or not the office was busy in 2015. Whilst the claimant disputed throughout her evidence and in cross-examining the respondent's witnesses that the office was busy in 2015 she also contended that she should have been offered an honorarium (that is an increase in her pay to deal with any extra work) as it is her case that the extra work did not warrant two other members of staff being kept on. In submissions the claimant conceded that the office was busy in 2015. We therefore found the claimant's evidence on this point to be contradictory.

 

(5) The claimant alleged that there was no connection between the managers being busy and the PA and Secretarial Assistant being correspondingly busy. However, no challenge was made to the evidence of Ms Crozier on this point and we therefore accept her evidence that there was a hugely increased volume of work which had a knock-on effect on the requirement for increased PA and secretarial support and justified her bid for the two temporary staff to have their contracts extended.

 

23. The claimant obtained a temporary PA post working to Director Andrew Hassard on 13 February 2012 following a trawl which was limited to her department following an expression of interest. This was an appointment for one year subject to review. The claimant was appointed to the temporary PA role to cover the absence by Ms Sharon Hewson on a career break. The reason for the post being temporary was therefore the absence on career break of Ms Hewson.

 

24. The claimant had worked as a Secretarial Assistant to Rose Crozier since 2010 and the temporary appointment to PA post to the Director was therefore a promotion with extra salary.

 

25. The claimant went on maternity leave on 9 November 2012 and FC was taken on on a temporary basis to cover her temporary PA role during that maternity leave.

 

Return from First Maternity Leave

26. On 12 August 2013 the claimant returned from maternity leave and was given a choice of either returning to her temporary PA post duties or taking on duties connected with the Leisure Transformation Project which was in train. This was the early stage of that Project which ultimately led to the creation of a temporary post of Project Support Assistant.

 

27. The claimant freely chose to go for the Leisure Transformation Project work as she believed that it was a development opportunity for her and she was assured that she could go back to the temporary PA duties at any time. The claimant was therefore content to take the developmental role in 2013 when she came back from maternity leave. Her uncontested evidence was that she therefore remained in a PA role but was carrying out different duties.

 

28. Part of the claimant's case is that she was "sold" the Leisure Transformation Project duties on false pretences, as it is her case that Mr Hassard at this stage was determined that she would not return to be his temporary PA and he was assisted in that by Ms Wilson and Ms Minne. The claimant's reason for putting this forward was that in effect, there was not the amount of work that she had expected in that role and she therefore asked to return in November 2013 to her temporary PA duties and was refused. On the claimant's own evidence she did return to her post after her maternity leave but to different duties which she chose to carry out. The height of the claimant's point therefore is that this was evidence of a desire to keep her from her former duties because she had been off on maternity leave. The issue therefore is whether or not, when the claimant asked in November 2013 to go back to her PA duties, she should have been allowed to do so.

 

29. The claimant has not shown to our satisfaction that the refusal to switch her back to her role was detrimental as the height of her point was that she was not as busy as she expected. The claimant's point was that she was embarrassed in front of others as she was not "visible" as the Director's PA. This does not meet the Shamoon threshold for detriment in our view as any lack of visibility applied whether or not she actually was busy in the Project duties she had chosen to undertake. We also do not find any link between that and the claimant having returned from maternity leave.

 

30. The reason given to us by Mr Hassard for refusing to let the claimant change duties was that, as the recruitment process for the permanent post was in progress and the interviews were due to take place within a few weeks, it would have been disruptive to switch her back to those duties. We find that reason to amount to a reasonable management decision related to likely disruption of work as the recruitment process was imminent and the circumstances were that the claimant had freely chosen the duties in which she was engaged.

 

Recruitment Exercise 2012/2013

31. The PA post interviews were on 7 January 2014 and FC was the successful candidate. FC was appointed on 13 January 2014 on a temporary basis to the PA post until 31 March 2015 (being the date of Local Government Reform). The claimant does not impugn the recruitment process and does not criticise the decision to appoint FC: rather, her case is that she should have been extended in the temporary PA post and no recruitment exercise was necessary.

32. It is the claimant's case that the refusal to let her return to her old duties at that point and the decision to recruit for the PA position rather than to extend the claimant's role, shows that there was an intention to keep her out of the role. We reject that argument as set out below.

 

33. We accept Mr Hassard's evidence that circumstances had changed some months before the claimant's return from maternity leave in that Ms Hewson had resigned on 12 December 2012 and this had triggered a procedure whereby a requisition was submitted in April 2013 by management to HR to ask for the PA role to be filled permanently due to that resignation. We accept the respondent's case that the reason for the claimant's temporary occupation of that post therefore had disappeared, in that Ms Hewson's career break had ended.

 

34. We also accept the reasons given by the respondent for the delay in processing the recruitment requisition as those reasons primarily related to the Local Government Reform reorganisation. One of those reasons related to a Vacancy Control Process which applied to all Local Government and there was an issue as to whether or not that applied to Belfast City Council as (in contrast to other Councils) its number of employees was going to increase with Local Government Reform rather than decrease.

35. In the event the PA recruitment exercise was put on hold on 29 April 2013 and only taken off hold on 3 September 2013 following a decision which was reached by Jill Minne (following discussion with Mr Hassard) that the permanent PA post should only be filled temporarily given the uncertainty relating to Local Government Reform. We accept the respondent's evidence on the reasons for proceeding with the recruitment in this way as it is consistent with the paperwork, and it makes sense in the context of the reorganisation. We find that the decisions in this regard were entirely unconnected to the claimant and her maternity leave for the reasons set out below.

36. Mr Hassard could have pushed the recruitment forward while the claimant was on maternity leave to keep her out but did not do so. It is clear to us from the evidence that the recruitment exercise was not triggered by the claimant's return from maternity leave as she alleged.

 

37. The claimant had originally been recruited to the temporary PA post on a limited trawl, that is, it was limited to the Department. The second time the PA post had to go to a wider trawl because there was a new policy in force, there was the impact of Local Government Reform on filling posts generally and there was the Leisure Transformation process in prospect. These reasons are unconnected to the claimant's maternity leave. We therefore do not accept that that recruitment was triggered because of the claimant's maternity leave. We also reject the claimant's contention that she should have been extended on her temporary PA contract as the reason for her temporary post (Ms Hewson's career break) had disappeared.

 

38. We reject the claimant's point that there was something sinister in the apparent change in this post from permanent to temporary. Under the relevant internal policy this was classed as a permanent post which was termed a "temporary review post" as it had to be filled on a temporary basis because of review due to the imminency of Local Government Reform. As it was also envisaged to last more than 6 months (until March 2015 being the implementation date of Local Government Reform) it had to go out to wider trawl. These were the reasons for the recruitment exercise and the reason why the claimant's tenure could not simply be extended quite apart from the fact that the reason for her temporary PA post in the first place had disappeared. Neither of these reasons was tainted by discrimination.

 

39. Mr Hassard decided to delay the interviews until January 2013 so that he would not have to relay bad news to any of the candidates in Christmas week. The claimant made the point that the interviews for the Project Support Assistant post were not delayed from Christmas in the same way and her case is that this difference in approach to the two recruitment exercises was to her detriment and/or supports her claim that there was discrimination under way in her case. The claimant alleged that she was being "pushed towards" the PSA post to see if that would "satisfy her" when she was not going to get the PA post.

 

40. We find nothing untoward in the fact that the interviews were delayed by two weeks especially as Mr Hassard was not on the panel of the PSA interviews which did go ahead before Christmas. We also find that putting off the interviews until January 2013 does not amount to a detriment to the claimant as the claimant has not proved detriment to our satisfaction in the following circumstances. The claimant went ahead with her interview for the temporary PSA post and was notified that she was successful in the temporary PSA post on 18 December 2013. This did not stop her continuing with her application for the temporary PA post by going through the interview shortly afterwards.

 

"Diminishment" of the Claimant's Secretarial Assistant Post 2015

41. The claimant was appointed to the temporary PSA post to work on the Leisure Transformation Project until 31 March 2015. The claimant then went on her second maternity leave on 28 July 2014 returning on 8 April 2015.

 

42. Mr Hassard retired in February 2015 and was not replaced and Ms Crozier covered his role at that point as well as her own role. The claimant returned from maternity leave on 8 April 2015 to her substantive role as Secretarial Assistant working to Ms Crozier. At that stage, FC was still in post as temporary PA to the Director, despite Mr Hassard's retirement, but effectively working to Ms Crozier, and TG was also still in post as a temporary cover for the claimant's maternity leave from her Secretarial Assistant post.

 

43. The claimant's return from maternity leave was on a 6-week phased return due to health issues and that phased return ended on 20 May 2015. There then ensued a further handover period whereby TG would have been due to complete the handover of the Secretarial Assistant role to the claimant and then TG would have gone back to her substantive post elsewhere in the organisation. The claimant also took some leave. It is the claimant's case that the fact that TG was being kept on in addition to FC shows that the claimant's post was being diminished, that her post was not being handed back to her and that this related to her having returned from maternity leave. In the claim to the tribunal the claimant's focus at this point was on Ms Crozier, Ms Wilson and those in HR who supported them. The claimant further alleged that the fact that in her absence on career break no-one else was recruited to fill her place meant that her role was diminished.

 

44. We do not accept the claimant's point in relation to the alleged diminishment of her post in 2015 for the principal reasons set out below.

 

45. We accept the respondent's case that there was a huge increase in work due to the effect of the Local Government Reform, other re-organisation and structural changes, (particularly in relation to Leisure Transformation and the review of the crematorium services) and the retirement of Director Andrew Hassard. (See para 20 above).

 

46. The fact that Mr Hassard the Director retired in February 2015 did not mean that all the work related to his role stopped immediately at that point. We accept the evidence of Ms Crozier that there was still work relating to his job that required the support of the PA.

 

47. We accept the evidence of Ms Wilson and Ms Crozier that it was the higher volume of work that prompted them to make a business case in June and July 2015 to HR to ask for the two temporary appointees (FC and TG) to be extended to cover the remaining work of the retired Director, and to deal with the extra volume of work. It is clear to us from the e-mails exchanged at that time between them and HR that there was a robust exchange of views as to whether the retention of the two temporary employees was required or not in view of the strict control on vacancies because of Local Government Reform. It is also clear from the e-mails that the arguments by managers related to the volume of work because of the huge number of changes resulting from organisational change and Local Government Reform.

 

48. We accept Ms Crozier's evidence that the claimant's post was not in issue in this exchange with HR as the claimant's was a substantive post and that is the reason why the business case for increased resources related only to the two temporary members of staff. We find that this exchange between managers and HR reflects normal practice in business generally and there is nothing in it to indicate to us that there was any connection to the claimant as it did not concern the claimant but involved wider issues which meant that the volume of work increased.

 

49. In relation to the busyness of the office, we accept the respondent's witnesses' evidence. We accept that it was the volume of work which justified a bid for the two temporary staff to stay on, especially as the claimant was on a phased return when she came back from maternity leave and there then ensued a further handover period. The requirement for the temporary staff to stay on became even more pressing when the claimant applied for her career break on the 24 July 2015.

50. We reject the claimant's claim that the fact that only FC and TG remained in post during her career break means that the office did not require 3 people. The fact that managers "pitched" for 3 staff but following robust exchanges with HR were only successful in getting 2 staff does not seem untoward to us in the circumstances of this case.

 

Alleged Discrepancies

 

51. We accept Mr Hassard's evidence that the internal recruitment process was triggered with the requisition form in April 2013, following the resignation of Ms Hewson in December 2012 and that that internal process then proceeded. The added layer of Local Government Reform meant that there was another "Vacancy Control" form that had to be completed for that purpose and that was done separately but did not have a bearing on the progress of the internal process. We therefore find nothing untoward in the date of the Vacancy Control Form which was a form which required completion for Local Government Reform.

 

52. The height of the claimant's point on this was that this was a discrepancy from which we could conclude (along with other discrepancies) that the real reason for decisions was the claimant's return form maternity leave and specifically a desire to prevent her from returning to her previous duties.

 

53. There was a management request to extend FC and TG in June and July 2015. On 31 July 2015, FC was extended to 31 August 2015 and then on 8 September 2015 she was further extended to 31 March 2016. TG was similarly extended on both occasions. The reasons given in their extension letters were wrong and the respondent's case is that that was an error. At its height, it is no more than a breach of procedure to give the wrong reason but it did not disadvantage the claimant and she therefore has failed to prove that it amounted to a detriment given our findings that the volume of work justified the bid to extend them and did not detract from the claimant's role. In these circumstances, we find that the fact that wrong reasons were given is not a fact from which we could conclude discrimination.

 

54. The claimant made the point that backdating the extensions of FC and TG was in breach of procedures and was another defect which showed a picture of covering up the real reason for keeping them on which the claimant alleged was to keep her out and to diminish her role. We reject the claimant's point as, in our experience, whilst this is not ideal, such backdated extensions happen in organisations and, in this case, the backdating was understandable in circumstances where things were in such a state of flux. The backdating had no bearing on the claimant's position given our findings on the workload issue.

 

55. The claimant alleged that it was suspicious that there was no formal assessment of the volume of work carried out before Ms Crozier and Ms Wilson applied to extend FC and TG. Those managers did an assessment from their own knowledge and we accept that it was not necessary to talk to secretaries as they were the senior managers and were well placed to assess the workload. From our experience there was nothing untoward in this.

 

56. The honorarium issue does not amount to discrimination as it does not amount to detriment. It was a management decision to extend the temporary staff in 2015 to do any extra work rather than to offer that work to the claimant, there was no requirement to offer an honorarium to the claimant, and therefore no detriment is shown. In addition there is no evidence that any failure to offer an honorarium was connected to her having returned from maternity leave.

Complaint by the claimant of her concerns.

 

57. On 11 June 2015 the claimant had coffee with Mrs Crozier and it was then that she raised concerns about her duties. Mrs Crozier immediately acted on those and the claimant was moved back to a desk outside Ms Crozier's room on 16 June 2015. This fact detracts from the claimant's case that Ms Crozier was determined not to have her back in her old post and was actively engaged with others in diminishing her role. We reject the claimant's allegation that Ms Crozier acted to diminish her role. We found Ms Crozier to be a particularly impressive witness who clearly was something of a mentor for the claimant and had high regard for her abilities and potential. Given our assessment of Ms Crozier as a reliable witness and given our concern over the reliability of the claimant's evidence on some points, we accept
Ms Crozier's evidence that the claimant did not raise further concerns after that point.

 

58. The claimant submitted her career break request on 24 July 2015, her career break started on 30 September 2015 and is due to expire on 1 October 2016. Her reasons for applying for the career break were related to the cost of childcare. The claimant did not at any stage complain that one of her reasons for applying for the career break related to her conviction that her role was being diminished. This is relevant to the respondent's case that the lack of complaint meant that they had no opportunity to address concerns. Lack of complaint is not a reason for us to find that no discrimination occurred, however as set out in this decision the claimant's claim fails on other grounds.

 

Time point

 

59. The claimant applied for her career break on 24 July 2015 and presented her claim to the tribunal on 23 October 2015.

 

60. We find that first maternity leave aftermath and the recruitment exercise allegations constitute a discrete claim unconnected to later allegations due, firstly, to the nature of the claims and, secondly, to the fact that Mr Hassard was primary focus of those claims. The burden is on the claimant to persuade us to extend time on just and equitable grounds and we find that she has failed to do so for the following principal reasons:

 

(1) Her argument was unsupported by medical evidence that her ability to pursue a claim was affected by any medical condition;

 

(2) The claimant was unreliable in her evidence on whom she consulted and when she realised that she might have a claim and we find that she did not act quickly enough in that claim;

 

(3) The claimant seems to have been "egged on" after her career break began by someone in HR and the claimant then tried to connect events over a long period to paint a picture of discrimination.

 

61. The remainder of the claimant's claim relates to alleged diminishment of her role in 2015 after her second maternity leave. The claimant alleged that the last act in relation to that claim was the extension of FC and TG in July 2015 and she also alleged ongoing diminishment of her role right up to her application for her career break on 24 July 2015. We find that that claim is in time but fails on the merits.

Summary

62. This is not a case of an inherently discriminatory act. This is a case where the acts complained of namely, firstly, having a recruitment exercise in 2012 instead of allowing the claimant to resume her former duties and extending the temporary PA post and, secondly, the alleged diminishment of the claimant's role of Secretarial Assistant in 2015 following her second maternity leave, are not in themselves discriminatory. However those acts may become discriminatory by virtue of a discriminatory motivation whether conscious or subconscious. The question for us is, why was the claimant treated in the manner complained of. If the reason or part of the reason for the treatment was that she had returned from maternity leave then she succeeds in her claim for discrimination. If the reason was not tainted by discrimination the claimant's case fails.

 

63. The claimant urged us to look at the alleged discrepancies and coincidences, the alleged breaches of procedure and the motivations of the individuals involved to find that there were facts from which we could conclude that the real reason for her treatment was because she had returned from maternity leave.

 

64. We accept the respondent's case, which is that the decisions were taken for reasons related to the wider reorganisation and that the claimant's return from maternity leave was not in any way a motivating factor for the decisions that were taken. We therefore do not find facts from which we could conclude that discrimination occurred. Even if we had found such facts and the burden of proof shifts, we accept the explanations given by the respondent's witnesses.

 

65. It was the claimant's absence on her first maternity leave that meant that FC was taking on originally. There then ensued a fair recruitment process triggered by Ms Hewson's resignation which meant that FC got the permanent post on a temporary basis. The claimant did not impugn the decision to appoint FC to the post in January 2013.

 

66. We accept the respondent's evidence that the recruitment for the PA post in 2012/2013 would still have happened, whether or not the claimant had taken maternity leave, because the trigger for that recruitment was the resignation of Ms Hewson who had been on a career break. This post was then permanently filled on a temporary basis because of the impact of the Local Government Reform; the Vacancy Control procedure and the internal procedure which applied.

67. One of the points made by the claimant throughout her case was that if she had not taken her maternity leave she would still have been in the temporary PA post. We find that this is not correct as her temporary PA post ended with Ms Hewson's resignation. Aside from that, whilst we understand that it is tempting for the claimant to think in that way, we reject entirely the suggestion that this must mean that discrimination occurred as what we must assess is the surrounding evidence to discern the reasons for the decisions taken and whether they were tainted by discrimination.

 

68. We suspect that that the claimant's personal disappointment and annoyance is one of the drivers for the claimant's sense of grievance about her perceived treatment. This sense of grievance was then encouraged by unnamed persons in HR after the claimant's career break began in September 2014. Whilst we acknowledge the claimant's feelings of disappointment and annoyance when she ultimately ended up with FC as her line manager it is not enough in law for the claimant to say as she did: "But for my periods of maternity leave I would not have been in that position". We have assessed carefully the evidence to discern the reasons for any impugned decisions and, as set out in this decision, we find that relevant decisions were taken for valid reasons which were unconnected in the requisite way to the claimant's having taken two periods of maternity leave periods.

 

69. The claimant's claim therefore fails and is dismissed.

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 4, 5, 6 and 7 April 2016, Belfast

 

 

Date decision recorded in register and issued to parties: