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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCalister v South Eastern Health & Social ... [2017] NIIT 00741_16IT (13 December 2017)
URL: http://www.bailii.org/nie/cases/NIIT/2017/00741_16IT.html
Cite as: [2017] NIIT 00741_16IT, [2017] NIIT 741_16IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 741/16
CLAIMANT: Hazel Margaret McCalister
RESPONDENT: South Eastern Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that the claimant was not directly discriminated against or harassed by the respondent on the grounds of age, pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006. The claimant's claim to the tribunal is therefore dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr B Collins
Mr J Hughes
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by John Boston & Company, Solicitors.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Mrs C McClean, Solicitor, of Directorate of Legal Services.
Reasons
1.1 The claimant presented to the tribunal on 29 February 2016 a claim of age discrimination and unauthorised deduction of wages. The respondent presented a response to the claimant's claim on 26 April 2016, in which it denied liability in relation to the said claims of the claimant. The claimant's claim of unauthorised deduction of wages was dismissed, following withdrawal by the claimant at a Case Management Discussion on 8 November 2016.
1.2 In accordance with the tribunal's normal case-management procedures, a statement of legal and main factual issues was agreed by the parties at a Case Management Discussion on 8 June 2016, as set out in the Record of Proceedings dated 9 June 2016. However, prior to the commencement of the substantive hearing in this matter, the issues identified in the said statement were the subject of some amendment/clarification between the parties and their representatives.
Subject to what is stated above, the following agreed amended issues were identified, which still require to be determined by the tribunal, as set out below:-
"A. Preliminary Legal Issues
(1) The respondent Trust considers that many of the claimant's allegations are out of time and that the tribunal has no jurisdiction to hear these elements of the claimant's claim. The respondent required the tribunal to deal with the following:
Are the claimant's complaints of discrimination, referred to above, part of an act or series of acts extending over a period of time from January 2015 to May 2015? If not:
(i) are there parts of the claimant's claim out of time?
(ii) if so, should the tribunal extend time to allow those claims to be heard on just and equitable grounds?
(iii) if not, does the jurisdiction have jurisdiction to hear those parts of the claimant's claim?
B. Substantial Legal Issues
(1) Age discrimination
(1) Who are the claimant's comparator(s), in respect of any claim of direct age discrimination?
(2) If there are no named comparators, confirmation it is the hypothetical comparator who is being relied upon.
...
(4) Whether the claimant has been discriminated against and subjected to less favourable treatment on grounds of age, contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006?
...
(6) Has the claimant suffered bullying (ie harassment on grounds of age) on account of her age?
(7) Should any or all of the claimant's claims succeed what detriments, loss or damage did the claimant suffer?
(8) What is the appropriate remedy (remedies)?
...
Factual Issues
(1) Whether the claimant has been discriminated against and subjected to less favourable treatment on account of her age in the handling of a matter by Labour Ward Manager Mary Graham in or about January 2015 relating to alleged hours owed.
(2) Whether the claimant has been discriminated against and subjected to less favourable treatment on account of her age in the handling a matter by Labour Ward Manager Mary Graham in or about April 2015 relating to proof of NMC registration.
...
(6) Whether the claimant has been discriminated against and subjected to less favourable treatment on account of her age in relation to an incident on the night of 6 th/7 th of May 2015, regarding the claimant falling asleep on night duty and the respondent's decision to invoke the disciplinary process.
(7) Did the claimant suffer personal injury from the alleged less favourable treatment by the respondent, its servants or agents, on account of her age? If so, what was the nature and extent of such personal injury and has same been independently verified by supporting medical evidence?
(8) Whether the claimant was bullied on account of her age by the Labour Ward Manager Mary Graham.
... ."
Further to the above, it was confirmed by the respondent's representative at the hearing that the respondent was no longer seeking to rely on the statutory defence, in accordance with Regulation 26(3) of the Age Regulations (ie that the respondent took all reasonable steps to prevent any and all such acts of discrimination from occurring); and further the respondent, if the claimant was found to have been treated less favourably on the grounds of age, was not seeking to objectively justify any such treatment for the purposes of Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ('the Age Regulations'). It was not disputed by the respondent's representative that, if the claimant was discriminated against on the grounds of age, the respondent was vicariously liable for the acts of the servants and agents of the respondent relevant to any such acts of discrimination, for the purposes of Regulations 26 - 27 of the Age Regulations
1.3 Subject to liability, it was agreed by the representatives that the claimant's financial loss was in the sum of £1,621.00 in relation to the period 28 May 2015 to 23 December 2015 (see later).
2.1 During the course of the hearing, the claimant's representative made an application for the tribunal to give leave to enable one of her witnesses, Ms K Robertson, who had already provided a witness statement, in accordance with the tribunal's case-management orders, to provide an additional witness statement and/or give additional oral evidence by way of examination-in-chief in relation to an issue, which had been drawn to the attention of the claimant's representatives, prior to this witness commencing her evidence to the tribunal; and which the claimant's counsel submitted was relevant to the issues to be determined by the tribunal. He also emphasised, which the tribunal accepted, in making this application, that neither he nor his solicitor had been aware of this additional evidence previously and he also pointed out that the witness had provided her 'original' witness statement, without any consultation or involvement by the claimant's solicitor.
2.2 In accordance with the normal practice of the tribunal, a timetable for the preparation and exchange of witness statements between the parties had been previously ordered by the tribunal. The representatives agreed that, in the absence of consent, which was not forthcoming from the respondent's counsel, any such additional evidence by this witness could only be given with leave of the tribunal. In particular, the respondent's representative questioned the relevance of this additional evidence on the limited basis set out by the claimant's counsel in making this application.
Following discussion, and in order for the tribunal and the respondent's counsel to obtain some clarity on the nature of the additional evidence sought to be admitted, the tribunal ordered that the said witness should prepare, during the overnight break in the proceedings, a draft additional witness statement, which it was proposed by the claimant's counsel would to be admitted in evidence if leave was granted, and that the draft witness statement should be shown to the respondent's representatives before the resumption of the hearing and, in particular, before the witness came to give her evidence. The said Order having been complied with, the respondent's counsel confirmed his previous strong objection, relying, in particular, on issues of relevance, and the tribunal's previous orders, in relation to timetabling for the preparation and exchange of witness statements. However, he acknowledged that, if the statement was admitted by the tribunal he was in a position to cross-examine the said witness and, subject to calling some further limited oral evidence by one of his witnesses, which was properly agreed by the claimant's representative, there would be no need to adjourn the proceedings.
2.3 In the event, the tribunal having reserved to consider the matter, agreed to give leave to admit the said additional evidence by Ms Robertson, as set out in the said additional draft witness statement; and it was further agreed by the representatives of the parties the tribunal would set out its reasons for doing so in this decision rather than further delay the conduct of the substantive hearing.
2.4 An Employment Judge, in a Case Management Discussion on 31 August 2016, as set out in the Record of Proceedings dated 1 September 2016, made standard orders for the preparation and exchange of witness statements between the parties in this matter, including a relevant timetable. These orders included the following, insofar as relevant:-
"(d) A witness statement must be a complete statement of the evidence relating to the issues, in respect of both liability and remedy, in the case, that the witness wishes to give to the tribunal. Witness statements must not contain the parties' submissions or arguments. The parties will be given the opportunity to make submissions at the conclusion of the evidence. A witness will not be permitted to add to his/her statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so. [Tribunal's emphasis]
... ."
Clearly, the application to admit this additional statement was outside the said timetable ordered by the tribunal. For good and practical reasons, the fact that this issue arose during the course of the hearing was unsatisfactory but this, in itself, could not be determinative of the matter, provided relevant steps could be taken to ensure that a fair trial for both parties could still take place.
2.5 Under Rule 59 of the Industrial Tribunals Rules of Procedure 2005, it is provided:-
"(1) Subject to the provisions of these Rules and Practice Directions, a tribunal or chairman may regulate its own procedure."
Further, under Rule 14 of the said Rules of Procedure it is provided that:-
"(1) ...
(2) So far as it appears to be appropriate to do so, the tribunal or a chairman shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts. [Tribunal's emphasis]
(3) A chairman or a tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings."
2.6 A tribunal regularly, whether, for example, at a pre-hearing review or in the course of a substantive hearing, has to consider and determine whether to admit or exclude evidence under its powers relating to evidence sought to be used by a party in the course of proceedings. In exercising its discretion under the said Rules of Procedure, which as seen above are very wide, a tribunal also has to give effect to the terms of the overriding objective.
In Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, it is provided:-
"(1) The overriding objective of these Regulations and the Rules in Schedule 1 ... is to enable tribunals and chairmen to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable -
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issue;
(c) ensuring that it is dealt with expeditiously and fairly;
(d) saving expense.
(3) The tribunal or chairman shall seek to give effect to the overriding objective when it or he -
(a) exercise any power given to it or him by these Regulations or the Rules in Schedule 1 ..., or
(b) interprets these Regulations or any Rule in Schedule 1 ...
(4) The parties shall assist the tribunal or the chairman to further the overriding objective."
2.7 In Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, Morgan LCJ approved the judgment of Girvan LJ in Peifer v Castlederg High School and Another [2008] NICA 49, when he stated, with reference to the terms of the overriding objective:-
" ... Dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues and ensuring that the case is dealt with expeditiously and fairly and the saving of expense.
... Parties and practitioners are bound to conduct themselves in a way which further those overriding objectives. Having regard to the imperative nature of the overriding objectives, tribunals shall strive to avoid time-wasting and repetition. Parties should be required to concentrate on relevant issues and the pursuit of irrelevant issues and questions should be strongly discouraged ... The overriding objectives, which are, of course, always intended to ensure that justice is done compel a tribunal to exercise its control over the litigation before it robustly but fairly. Tribunals shall expect the appellant, supervisory courts to give proper and due weight to the tribunal's decision made in the fulfilment of their duty to ensure the overriding objectives. The tribunal should not be discouraged from exercising proper control of proceedings to secure these objectives through fear of being criticised by a higher court which must itself give proper respect to the tribunal's margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of cost ... ."
2.8 In relation to the issues, the subject-matter of this application, helpful guidance is to be found, in particular, in the judgment of Underhill J, as he then was, in the case of HSBC Asia Holdings BV and Another v Gillespie [2010] UKEAT/0417.
In the HSBC Asia Holdings case, Underhill J, having confirmed that any evidence, to be admissible, must be relevant also stated that the basic rule is if evidence is relevant it is admissible; and, if it is irrelevant, it is inadmissible. He also stated:-
"Relevance is not an absolute concept and evidence may be, as it is sometimes put 'logically' or 'theoretically' relevant but nevertheless too marginal, or otherwise unlikely to assist the court, for its admission to be justified."
Further, Underhill J also indicated that what would be done in any particular case may vary, depending on the circumstances; but he also reiterated the warnings previously referred to in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265 (see further the authorities referred to in the decision in the case of Crockett v Police Federation of Northern Ireland and Another [2013] NIIT 9 October 2013).
In Paragraph 13(7) and (8) of his judgment, Underhill J stated, as follows:-
"(7) The fact that evidence is inadmissible because it is insufficiently relevant does not, however, mean that it is necessary to take steps to exclude it in every case, and certainly not to seek to do so interlocutorily or at the outset of a hearing. On the contrary, Employment Tribunals are constantly presented with irrelevant evidence; but most often it is better to make no fuss and simply disregard it or, if the evidence in question is liable to prejudice the orderly progress of the case, to deal with it by a Ruling in the course of the hearing. In the generality of cases, the cost and trouble involved in a pre-hearing ruling are unjustified. Further, where there genuine room for argument about the admissibility of the evidence, a tribunal at a preliminary hearing may be less well placed to make the necessary assessment as Mummery LJ observed in Beazer Homes Ltd v Stroud ... at Paragraph 9:
'In general, disputes about the inadmissibility of evidence in civil proceedings are best left to be resolved by the judge at the substantive hearing of the application or the trial of the action, rather than at a separate preliminary hearing. The judge at a preliminary hearing on non-admissibility will usually be less well-informed about the case. Preliminary hearings can also cause unnecessary costs and delays'.
(8) Notwithstanding the general position as stated at (7) above, there will be cases where there are real advantages in terms of economy (in the broader sense of that term) in ruling out irrelevant evidence before it is sought to be adduced and, more specifically, in advance of the hearing ... but it may also come up by way of a frank application to exclude evidence as a matter in case-management - for example where if the evidence in question is called it will seriously affect the estimate for the hearing or where its introduction may put the other party at substantial expense or inconvenience. That seems to be the basis of the order which was upheld in McBride, where the claimant wished to call no fewer than seven witnesses all of whose proposed evidence the judge held to be irrelevant.
... ."
2.9 In the present proceedings, the tribunal was required to consider a case of age discrimination and Underhill J emphasises, in HSBC Asia Holdings, that discrimination cases constitute a particular class of case in which it may be appropriate to decide questions of admissibility at a preliminary stage. However, he warned such cases are notorious for the tendency of claimants to adduce evidence of very many incidents of alleged ill-treatment often extending over long periods of time, which can lead to very long hearings, imposing enormous burden on the parties and the tribunal and carry risk of the essential issues being obscured in a morass of detail (see Chattopadhyay v Headmaster of Holloway School [1981] IRLR 485) where Browne-Wilkinson J emphasised that, in order that enquiries under the discrimination legislation do not become too wide-ranging over matters only indirectly relevant to the main issue, there is very heavy burden on legal advisers and the [EHRC] to ensure that such matters are not introduced into a case 'except where they are satisfied that there is a real probability that they will affect the outcome'). These are observations, Underhill J held, applied whether the incidents occurred before or (as was the case in Chattopadyay) subsequent to the acts complained of.
Underhill J concluded that whether a preliminary ruling on admissibility should be made in a particular case will depend on the circumstances of the case. Caution, he observed, was necessary when determining whether to exclude evidence at a preliminary stage because it will not always be possible to make a reliable judgment on the issue of relevance at that stage and, in discrimination cases because of the need to bear in mind the generally fact-sensitive nature of such cases. Prior instances which are not complained of in their own right (typically because they are out of time) may still be important in shedding light on whether the acts complained of occurred or constituted discrimination (see, in particular, Anya v University of Oxford [2001] IRLR 377 ). However caution should not be treated as an excuse for pusillanimity, and if a judge is satisfied on the facts of a particular case that the evidence will not be of material assistance in deciding the issues and that its admissible will cause inconvenience, expense, delay or oppression, so that justice will be best served by its exclusion, he or she should be prepared to rule accordingly.
In the course of his judgment Underhill J also emphasised that any difference in the language used in the authorities as to whether the exclusion of evidence is on the basis that the evidence is not relevant at all or not sufficiently relevant, is one of terminology only; nor was there any substantial difference between describing the determination of this question as an exercise of judgment or the exercise of discretion. He considered there was no distinction in principle between the powers of the Civil Courts in this regard and those of tribunals, but he suggested Employment Tribunals might be rather more willing to exclude irrelevant, marginally relevant evidence.
Obviously, in the present proceedings, this was an application which was made during the course of the hearing, and not at a pre-hearing review; and, as seen above, required to be determined by the tribunal, before Ms Robertson came to give her evidence. However, subject to this, the guidance by Underhill J, as set out above, in HSBC Asia Holdings case remains of relevance in relation to the exercise of the tribunal's discretion in determining such an application. (See further Harvey on Industrial Relations and Employment Law, Volume 4, Section P1, Paragraphs 876 - 878.)
2.10 In Cross on Evidence, 18 th Edition, Chapter 12, there is further helpful guidance and, in particular, in relation to the operation in Great Britain of the Civil Procedure Rules and, in particular, Rule 32, as amended in 2013, about the control of evidence in civil proceedings.
In Rule 32.1 of the Civil Procedure Rules in Great Britain it is provided, as follows:-
"(1) The court may control the evidence by giving directions as to -
(a) the issues to which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which evidence is to be given.
(2) The court may use its powers under the Rule to exclude evidence that would otherwise be admissible.
(3) The Court may limit cross-examination."
In Rule 32.2, it is provided -
"(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements."
(This provision was introduced following Lord Justice Jackson's Review of Civil Litigation Costs.)
In Rule 32 it is provided:-
(3) a witness giving oral evidence at tribunal may with the permission of the Court -
(a) amplify his witness statement; and
(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.
(4) The Court will give permission under Paragraph (3) only if it considers there is good reason not to confine the evidence of the witness to the contents of his witness statement.
(5) If a party who has served a witness statement does not -
(a) call the witness to give evidence at trial; or
(b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence."
2.11 In Northern Ireland the above Civil Procedure Rules do not apply and there is no similar Rule to Civil Procedure Rule 32 under the Rules of the Court of Judicature (Northern Ireland) 1980, as amended, in relation to directions in relation to giving of evidence by witness statements. This is somewhat unfortunate in the circumstances. Indeed, in this jurisdiction, the only relevant Rules of Procedure relating to the provision of evidence by way of witness statements is to be found in Rule 10(2)(r) of the Industrial Tribunals Rules of Procedure giving the tribunal power to order a witness statement be prepared or exchanged. As a consequence, use of witness statements in the industrial tribunals in Northern Ireland is now the normal practice in these tribunals, and their use has been supported and approved by the Court of Appeal in Northern Ireland in a number of cases (see Veitch Red Sky Group Ltd [2010] NICA 39). In these circumstances, and given that a similar Rule to Rule 10(2)(r) applies to Employment Tribunals in Great Britain, the guidance to be found in the decisions of the Courts and Tribunals in Great Britain in relation to the use of witness statements in those Courts and Tribunals is clearly of relevance to any application about their use in the Industrial Tribunals in Northern Ireland. However, in this context, it should also be noted that, in Northern Ireland, the general practice in the courts is not to require the provision of witness statements and their exchange prior to trial and there are therefore not the relevant court guides, such as the Chancery guide and the Admiralty and Commercial Court guide to be found in Great Britain. In addition, the practice of simultaneous exchange of witness statements is widely exercised in Great Britain, including in Employment Tribunals, even where the claim is a claim of discrimination. In Northern Ireland, in the industrial tribunals, the normal practice is that simultaneous exchange of witness statements only occurs in unfair dismissal claims, whereas, in discrimination cases, there is a practice of sequential exchange of witness statements. It has been frequently suggested the necessity for supplementary witness statements may more frequently arise where there has been simultaneous exchange of witness statements rather than sequential exchange of witness statements, due to the contents of the other side's witness statement, which had not been seen prior to any exchange of witness statements. However each application has to be considered on its own merits and the particular reasons advanced for the use of such a supplemental witness statement.
2.12 Upon the initial introduction of the use of witness statements in the industrial tribunals in Northern Ireland, the tribunal, under its standard case-management orders, allowed for the use of supplementary witness statements. However, this was found not to be satisfactory. All too often such statements were full of repetition, submissions and irrelevant matters. As a result, the standard order was amended and such statements have to be applied for and good reason shown (see Paragraph 2.4 above).
As seen in documentary evidence by Charles Hollinger QC, 11 th Edition, Paragraph 26.04, Civil Rule 32.1 has been used in a wide set of circumstances to exclude and/or control evidence.
In Paragraph 12.02, in Phipson on Evidence (18 th Edition), it is stated:-
"(b) Witness statements as evidence-in-chief
Where a witness is called to give oral evidence, his witness statement stands as his evidence-in-chief unless the court orders otherwise. For this reason oral examination-in-chief are now rare. The courts still retain a discretion in this regard, and there may be circumstances where it will wish to hear the evidence of a witness vie voce, either in relation to all of that witness' evidence, or a part of it. Where there is a conflict of fact, particular where the witness' credibility may be an issue and his evidence is contentious it may be appropriate for the trial judge to direct that at least part of the evidence-in-chief should be given orally.
A witness giving oral evidence at trial requires the courts' permission in order to amplify his witness statement and/or give evidence in relation to new matters which have arisen since the witness statement was served on the other parties (CPR Rule 32.5(3)).
The court should only give permission if there is ' good reason' not to confine the evidence of the witness to the contents of his witness statement (CPR Rule 32.5(4)). The court will wish to be given a reason why a witness should be allowed to amplify his witness statement. The court will consider the interest and having the full factual picture before it, and to this end will take into account the relative importance of the new facts sought to be canvassed. The court will be careful to ensure that other parties are not prejudiced by the adducing of new evidence at this time. It may wish to take into account the reasons the evidence was not contained in the witness statement, the ability of other parties to check the facts stated and respond if appropriate (see Mander v Evans [2001] 1 WLR 2378, where the judge refused to permit a party to amplify a statement to remedy deficiencies. One example of where it may be appropriate is where relevant events occur after the date for service of witness statements; or where a witness wishes to respond to unanticipated matters in another witness statement served.
Paragraph 12.03 :-
"If important new evidence is sought to be introduced and the court considers that other parties may be unfairly prejudiced if the evidence is given while the case is presently being heard, then the court may adjourn the hearing to give other parties time to consider this evidence, conduct any necessary enquiries and adduce their own evidence dealing with the matter. The court may punish the party who adduced new evidence late by appropriate Costs Orders; in particular, ordering that the costs occasioned by the adjournment be paid by the party who adduced new evidence late.
... ."
2.13 In Disclosure, 5 th Edition, Matthews and Malek, Paragraph 21.25, it is stated, commenting on the Civil Procedure Rules -
"The Court has power to permit the amendment of any document used in proceedings, which includes the witness statement. If there is an error in the witness statement or further matters have arisen since the witness statement, these may be dealt with by way of supplemental witness statement. The most common circumstances where supplemental witness statements are used or where it is appropriate to set out in advance of trial a response to matters which have arisen upon the service of the other side's witness statements or to deal with events in service of the original witness statement. In these cases, supplementary witness statements should if practicable be served as soon as possible. Permission to adduce the evidence contained in the supplemental witness statement will be needed unless the other party consents. However, this need not be sought prior to service. In the commercial court, a supplemental witness statement should normally be served where the witness proposes materially to add to, alter, correct or retract from what is in his original witness statement. Again, permission will be required in the absence of consent from the opposing party for the service of a supplemental statement. ... [Supplemental] statements should be strictly confined to dealing with additional evidence which arises from the other party's statements and not an opportunity to re-state the highlights of that witness' evidence ... ."
2.14 In essence, the additional evidence referred to in the additional witness statement of Ms Robertson, the subject-matter of this application by the claimant's representative, related to something that this witness alleged had been said by the respondent's principal witness, Ms Graham, at a meeting, at which this witness was present, which it was submitted had relevance to the allegation of age discrimination, the subject-matter of these proceedings. As a consequence of the tribunal's determination of this application, as set out later in this decision, the said additional evidence will be referred to in more detail later in this decision.
2.15 The tribunal, having considered the guidance in the above legal authorities, the submissions by both representatives, the terms of the additional draft witness statement prepared by Ms Robertson, in relation to the matters set out above, and after taking into account that this was a case of age discrimination, the tribunal concluded that the evidence, the subject-matter of the application, was of sufficient potential relevance, which could only be properly determined by admitting the additional witness statement in evidence and the respondent's representative having an opportunity to cross-examine Ms Robertson, as appropriate and necessary, on the matters set out therein. Having noted, in particular, that the respondent's representative was in a position to deal with the matters raised in the additional witness statement, without the necessity for any adjournment, the tribunal determined that, in the exercise of its discretion, this additional witness statement should be admitted in evidence, as part of the evidence-in-chief of Ms Robertson. After doing so, the tribunal, by consent, also gave leave to the respondent's representative to call such further limited additional oral evidence as it required to do so in relation to these additional matters.
3. Relevant law
3.1 The Age Regulations provide, insofar as relevant and material:-
Regulation 3 - Discrimination on grounds of age
3-(1) For the purposes of these Regulations a person ('A') discriminates against another person ('B') if -
(a) on the grounds of B's age, A treats B less favourably then he treats or would treat other persons, or
...
and A cannot show the treatment ... to be a proportionate means of achieving a legitimate aim.
(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(3) In this Regulation -”
(a) 'age group' means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and
... .
Regulation 7
...
(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person -”
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.
Regulation 42 - Burden of proof : Industrial Tribunals
(1) This Regulation applies to any complaint presented under Regulation 41 to an industrial tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent -”
(a) has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or
(b) is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,
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.
Regulation 6 - Harassment on ground of age
6-(1) For the purposes of these Regulations a person ('A') subjects another person ('B') to harassment where on grounds of age, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in Paragraph 1(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.
Regulation 26 - Liability of employers and principals
(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
...
(3) In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.
Regulations 27 - Aiding unlawful acts
(1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purpose of these Regulations as himself doing an unlawful act of the like description.
...
Regulation 48 - Period within which proceedings to be brought
(1) An industrial tribunal shall not consider a complaint under Regulation 41 (jurisdiction of industrial tribunals) unless it is presented before the end of the period of three months beginning when the act complained of was due.
...
(4) A ... tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(5) For the purposes of this Regulation ...
(a) ...
(b) any act extending over a period shall be treated as done at the end of that period ...
3.2 These Regulations are in similar terms to the Employment Equality (Age) Regulations 2006, which applied in Great Britain, prior to the commencement of the Equality Act 2010 on 8 April 2010. The Equality Act 2010 sets out various 'protected characteristics', which includes indirect age discrimination. This is defined in similar terms to that at out in the Age Regulations. In Northern Ireland it has long been recognised decisions of the EAT, but also decisions of the Court of Appeal in England and Wales and Court of Session in Scotland and relevant decisions of the Supreme Court in non-Northern Ireland appeals are of highly persuasive authority but are not strictly binding upon this tribunal; but would generally be followed, where it is appropriate to do so and, in particular, where the relevant legislation, upon which any such decisions are based, as is the situation in relation to age discrimination, are in the same or similar terms (see Beaufort Developments (NI) Ltd v Gilbert Ash [1997] NI 142).
3.3 As set out previously 'age group' is defined in Regulation 3(3)(a) as meaning 'a group of persons defined by reference to age, whether by reference to a particular age or a range of ages'. Neither the Regulations nor the case law has provided any guidance in relation to this issue of age group.
In the 2010 EHRC Statutory Code of Practice - relating to similar wording in the Equality Act 2010 - it was stated:-
"An age group can mean people of the same age or people of a range of ages. Age groups can be wide (for example, 'people under 50'; under 18s). They can also be quite narrow (for example, 'people in their mid-40s'; 'people born in 1952'). Age groups may also be relative (for example, 'older than me' or 'older than us')."
Thus the tribunal, given the lack of further definitions in the Age Regulations and the width of the term, as defined, was satisfied, as referred to later, the claimant was entitled to define herself as being within a particular age group; and which she relied upon for the purposes of this claim under the Age Regulations.
3.4 In relation to the burden of proof provisions set out in Regulation 42 of the Age Regulations the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, relating to sex discrimination, applicable under the legislation applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].), and where it did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the tribunal was in a position to make positive findings on the evidence one way or the other. (See further Martin Devonshires Solicitors [2011] ICR 352.)
In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-
"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 [tribunal's emphasis], 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 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 allegation 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 contesting the complaint. Subject 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 to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant's evidence of discrimination ... ."
At Paragraph 72 of the judgment Mummery LJ emphasised that:-
"Such evidence from the respondent could, if accepted by the tribunal be relevant as showing that, contrary to the complainant's allegation of discrimination, there is nothing in the evidence from which the tribunal could infer a prima facie of discrimination on the proscribed ground. As Elias J observed in Laing ... para 64, it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of evidence, had not take place at all."
3.5 In relation to what is to be included by the expression 'something more' - guidance is to be found in the judgment of Elias J in The Law Society v Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799).
In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-
"94. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.
96. ... Nor in our view can Sedley LJ (in Anya v University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference. ... No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination."
In particular, in Paragraph 101 of Elias J's judgment explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-
"The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour. They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself."
At Paragraph 113 of his judgment, he also stated:-
"There is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... ."
At Paragraph 220 he confirmed:-
"An inadequate or unjustified explanation does not of itself [tribunal's emphasis] amount to a discriminatory one."
In the recent decision in the case of The Solicitors Regulation Authority v Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way ( Paragraph 46):-
"(i) In appropriate circumstances the 'something more' can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.
(ii) If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another non-discriminatory reason, it cannot make a finding of discrimination."
Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions. In Maksymiuk v Bar Roma Partnership [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-
"The guidance in Igen v Wong has been carefully refined. It is an important template for decision-making. As Laing and Madarassy have pointed out however, a tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it. That would not to be apply the words of the statute appropriately. Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required."
Further, in Birmingham City Council v Millwood [2012] UKEAT/0564 , Langstaff P stated:-
"17 The process logically that [Article 45] requires of a tribunal is somewhat artificial. It requires a two-stage approach in logic, which is not usually reflected in the way in which evidence is received by the tribunals. Though the analysis must be in two parts the evidence comes in one bit. In a reflection of factual circumstances Elias J ... in Laing v Manchester that a tribunal is drawing the inferences that it might have to draw could legitimately consider, and should legitimately consider, all the evidence put before it prior to concluding whether the burden of proof had shifted so as to require an explanation from the employer that the acts complained of had in no way been taken on the ground of [age], and cogently establishing that, he drew a distinction between facts - that is evidence - on the one hand and explanation on the other. He noted that a tribunal did not necessarily fall into error merely because it failed to adopt a two-stage approach though (see Paragraph 73) no doubt in most cases it would be sensible for a tribunal formally to analyse a case by reference to those two stages. He reminded tribunals that the focus of their analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination.
26 What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.
Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain - China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination. Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.
27 ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct."
On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent's witness, which was found to lack credibility and could therefore constitute the 'something more'; and the tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-
"The tribunal asked the reason why the claimant had been treated as she was. It was not simply a question of the respondent putting forward no explanation but having given a false explanation. This was clearly capable of being 'something more' ... ."
In Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279, Sedley LJ suggested the 'more' needed to create a claim requiring an answer need not be a great deal and could include a non-response, or an evasive or untruthful answer to a statutory questionnaire or can be furnished by the context in which the act has allegedly occurred.
This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK v Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-
"all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... ."
It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee's ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.
In Gallop v Newport City Council [2016] IRLR 395 held a lie is highly likely to shift the burden; but, however, the Court of Appeal emphasised each case depends on its own facts. The fact of a dishonest explanation will not necessarily shift the burden in a particular case. This case was an example of this where lies were told to cover up a perfectly innocent explanation.
3.6 In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-
"Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue".
Lord Nicholl's opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls' opinion). Indeed, Lord Nicholls' opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.
In Pnaiser v NHS England [2016] IRLR 170, Simler J stated:-
"Although it can be helpful in some cases for tribunals to go through the two-stages suggested in Igen v Wong, as the authorities demonstrate, it is not necessarily an error of law not to do so and, in many cases, moving straight to the second stage is sensible ... ."
In Shamoon it was further held, in order for a disadvantage to qualifying as a detriment, it must arise in the employment field, in that a court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he thereafter had to work. An unjustified sense of grievance cannot amount to a detriment (see further Derbyshire and Others v St Helen's Metropolitan BC and Others [2007] ICR 841). As held in Bowler v Chief Constable of Kent Constabulary [2017] UKEAT/0214, following Shamoon and Derbyshire, the grievance must be objectively reasonable as well as perceived as such by the claimant.
3.7 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words 'could conclude' are not to be read as equivalent to 'might possibly conclude'. He said " the facts must lead to the inference of discrimination". He also stated:-
"24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used 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 probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [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 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 63 A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."
In Laing v Manchester City Council [2006] ICR 1519 Elias J emphasised the distinction between 'facts' and explanation, in applying the burden of proof provisions:-
...
59. ... In our view the reference to 'the claimant proving facts' ... does not mean that it is only the facts adduced by him (plus supporting facts adduced by the respondent) that can be considered; it is merely indicating that at that stage the burden rests on the claimant to satisfy the tribunal, after a consideration of all the facts, that a prima facie case exists sufficient to require an explanation.
...
Laing was approved and followed in Madarassy. The said legal authorities therefore confirm that it is only the explanation that cannot be considered at the first stage of the analysis. Evidence produced by a respondent can properly be taken into account by a tribunal in deciding the facts to see if a prima facie case of discrimination has been made out by a claimant.
3.8 Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the tribunal to look at the matter, in the light of all the facts as found:-
"3. Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts."
Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the tribunal, to determination of claims of discrimination pursuant to the Age Regulations and the other discrimination legislation and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales .
3.9 The new classic test for discrimination was contained in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 and later summarised by Lord Hoffman in Watt (Carter) v Ahsan [2008] 1AC 693 at Paragraph 36, as follows:-
"(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the 'statutory comparator') actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant: section 3(4).
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the 'evidential comparator') to those of the complainant and all the other evidence in the case."
At the heart of any discrimination case is a comparison, as referred to above.
Rimer LJ in Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195, stated:-
" ... The whole purpose of the comparison is as an aid to seeing whether or not the way in which the comparator was, or would have been, treated in the relevant circumstances supports the claimant's allegation that he was subjected to less favourable treatment on the ground of [age]."
Under Regulation 3(2) of the Age Regulations the relevant circumstances for the purpose of any such comparison is that in the one case they are the same or not materially different in the other.
This has been the subject of some legal guidance. For example, in Amnesty International v Ahmed [2009] ICR 1450 reference was made to cases where the treatment itself is inherently discriminatory so examination of the respondent's reasoning becomes irrelevant and the use of a comparator may be dispensed with. Similarly Hewage held that the 'no material difference rule' does not mean the comparator needs to be identical to the claimants whether the comparator is appropriate is a question of factual degree. Even where the comparator's circumstances differ materially from those of the claimant, the comparator may still be useful in constructing a hypothetical comparator (see as referred to previously Watt v Ashan [2008] ICR 82).
However, helpfully, in Islington London BC v Ladele [2009] ICR 387, Elias J, in light of Ashan and Shamoon (see before) stated that 'employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was'.
(See further D'Silva v NATFHE [2008] IRLR 412, Chondol v Liverpool City Council [2009] UKEAT/0298 and Dr Kalu v Brighton & Sussex University Hospital NHS Trust [2014] EqLR 488 - where the approach in Ladele was endorsed.)
In GMB v Henderson [2015] IRLR 451, Simler J - concluded that where a decision is tainted by discrimination the comparative approach will be 'a meaningless comparison that produces the wrong answer. The focus should be on the reason for the treatment bearing in mind that there may be more than one'.
Clearly, the above guidance is of particular relevance when considering how, in a particular case, the burden of proof provisions should operate, as referred to previously.
3.10 In recent cases, there has been an analysis of the issue whether the tribunal considers the mind of the individual decision-maker or whether a tribunal can look at the motivation (conscious or unconscious) of other individuals.
In IPC Media v Millar [2013] IRLR 707, Underhill LJ, in a disability discrimination case, concluded you cannot be influenced (consciously or unconsciously) by something of which you are unaware and the starting point is to identify the individual responsible for the act or omission in question.
In Lewis v HSBC Bank PLc [2006] UKEAT, HH Peter Clark, in a discrimination case, rejected a suggestion there was a principle of 'unconscious' (as distinct form 'sub-conscious') discrimination. He emphasised to so hold would amount to establishing strict liability for unlawful discrimination, to hold a discriminator for a state of affairs of which he has no knowledge. In his judgment this was not the effect of discrimination legislation.
3.11 In the recent Court of Appeal decision in the case of CLFIS (UK) Ltd v Reynolds [2015] ICR 1010, a claim of age discrimination, the Court of Appeal looked at the issue of sole/joint decision-makers. Underhill LJ acknowledged that, if the decision to terminate the claimant's contract had been made jointly by X and Others, the tribunal would have had to be concerned with the motivation of all those responsible, since a discriminatory motivation on the part of any of them would be sufficient to taint the decision. On the facts it was found X reached his decision as a result of information provided and opinions expressed by others, which were passed up a chain of management to X. Underhill LJ said that was not the same as them being parties to the decision. Supplying information or opinions which are used for the purpose of someone else does not constitute participation in the decision. He accepted it may be difficult on occasions to distinguish between the two situations.
He therefore held, on the facts, this was not a joint decision-making situation but was a situation where an act, which is detrimental to the claimant was done by an employee who was innocent of any discriminatory motivation but who had been influenced by information supplied or views expressed, by another employee whose motivation was or was said to have been, discriminatory. Underhill LJ identified two possible approaches to this situation the composite approach where the acts of X could be brought together with the motivation of Y and the 'separate acts' approach which focuses on each stage of the decision-making separately.
Underhill LJ decided the separate acts was the correct approach. On the facts, applying this approach the claim did not succeed.
He therefore held that a person may be less favourably treated on the grounds of a protected characteristic either if the act complained of is inherently discriminatory or if the characteristic in question influence the mental processes of the putative discriminator, whether consciously or unconsciously, to any significant extent. Further, fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means the individual employee who did the act complained of must himself have been motivated by the protected characteristic. There is no basis on which his act can be said to be discriminatory on the basis of someone else's motivation. Accordingly, the correct approach in a tainted information case is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it.
In a recent decision, Kerr J, in the case of Metropolitan Police v Denby [UKEAT/0314/16] referred to the decision in CLFIS in the following terms:-
"The ratio of CLFIS is simple: where the case is not one of inherently discriminatory treatment or of joint decision-making by more than one person acting with discriminatory motivation, only a participant in the decision acting with discriminatory motivation, is liable; an innocent agent acting without discriminatory motivation is not. Thus where the innocent agent acts on 'tainted information' (per Underhill LJ at Paragraph 34), ie 'information supplied, or views expressed, by another employer whose motivation is or is said to have been discriminatory', the discrimination is the supplying of the tainted information, not the acting upon it by the innocent recipient."
3.12 In relation to the issue of harassment on grounds of age, pursuant to Regulation 6 of the Age Regulations. It has to be noted harassment prohibited under the Age Regulations is a distinctly different cause of action to direct discrimination. It is not comparative and focuses on the conduct of a particular nature - that is unwanted conduct which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.
As was held in Richmond Pharmacology v Dhaliwal [2009] IRLR 36, a race discrimination claim but of application to an age discrimination case, Underhill J established that the necessary elements to establish liability that the necessary elements to be establish liability for a claim of harassment was three fold:-
(1) Did the respondent engage in unwanted conduct.
(2) Did the conduct in question either (a) have the purpose or (b) the effect of either (i) violating the claimant's dignity or (ii) creating an adverse environment for the claimant - the proscribed consequences.
(3) The grounds for the conduct (ie age).
(Since the Equality Act 2010, in Great Britain, related to age. There have also been further amendments in the Equality Act 2010 to the definition contained in the Age Regulations which do not apply in Northern Ireland and case law in Great Britain under the 2010 Act must, where appropriate, be considered, in light of those amendments. Under the 2006 Regulations, for example, where the conduct would only be considered to have the effect of violating dignity or of creating the proscribed environment of the claimant where " ... having regard to all the circumstances including in particular the perception of B (ie the claimant) it should have that effect". Under the 2010 Act regard must be had to the perception of B, the circumstances of the case and whether it is reasonable for the conduct to have the necessary effect - so in Great Britain it is no longer a pre-condition for proving harassment that the conduct be reasonably considered to have the necessary effect.
Underhill J recognised that there can be substantial overlap between the questions that can arise in relation to each element, identified in Richmond Pharmacology. In particular, whether conduct was unwanted will overlap with whether it created an adverse environment for the claimant. In most cases acts that are found to create an adverse environment for an employee will also violate her dignity.
It was held in Warby v Wunda Group PLc [2012] Eq LR 536, it is necessary in such a case to have regard to context. 'Context is everything'. It is for the tribunal to decide what the context of the acts complained of is and to contextualise what has taken place. It may be a mistake to focus upon a remark in isolation. A tribunal is entitled to take the view that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own.
In Richmond, Underhill J emphasised that the broad thrust of the statutory proviso is that a respondent should not be held liable merely because his conduct has the effect of producing a proscribed consequence; it should be reasonable that that consequence has occurred. Whether it was reasonable for the claimant to have felt her dignity to have been violated in quintessentially a matter for the factual assessment of the tribunal, but one question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or produce the proscribed consequences). It the perpetrator did not evidently intend to cause offence, it may not be reasonable for the claimant to have taken offence.
In Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299, it was confirmed the essential characteristic of [sexual] harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves what is acceptable to them and what they regard as offensive.
While recognising it was very important for employers and employees to be sensitive to the hurt that can be caused by [racially] offensive comments and conduct, Underhill J also stated in Richmond it was ' important not to encourage a culture of hypersensivity or the imposition of legal liability in respect of every unfortunate phrase' (see also Warby above.)
In Weeks v Newham College of Further Education [2012] Eq LR 788 it was held a decision of fact in a harassment case must be sensitive to all the circumstances. If the unwanted conduct was not itself directed at the claimant is a relevant consideration. The timing of an individual's objection to conduct also has evidential importance. It may mean the individual complaining of conduct after the event did not in fact perceive the conduct as having the relevant qualities. While a legitimate factor to consider, the fact there was no immediate complaint cannot prevent a complaint being justified.
An 'environment', as referred to in Regulation 6 of the 2006 Regulations was held in Weeks to be a state of affairs. It may have created an incident but the effects are of a longer duration. A tribunal must consider the relevant words spoken in context including other words spoken and the general run of affairs within the workplace. The frequency of the use of the offending words if not irrelevant.
3.13 In relation to the time-issues for the commencement of proceedings, the subject-matter of the agreed issues, as set out previously, it was not disputed by the representatives that there has been considerable case law on the interpretation of Regulation 48 of the Age Regulations, which is in similar terms to the provisions relating to time for commencing proceedings contained in other discrimination legislation.
3.14 It has long been held, as seen in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, that the burden is on the claimant to prove either by direct evidence or by inference from primary facts, that alleged incidents 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', It further held that in determining whether there was 'an act extending over a period', as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. However that has to be distinguished from the consequences of an one-off decision (see Owusu v LFCDA [1995] IRLR 574).
In Richman v Knowsley Metropolitan BC [2013] Eq LR 1164, it was held, in determining whether there was evidence of 'conduct extending over a period', it is not sufficient to consider only whether there was evidence of a discriminatory policy, rule or practice, in accordance with which decisions were taken from time to time. A tribunal must consider whether there was something more, such as an ongoing process or proceedings or a continuing state of affairs (see also Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548). The mere repetition of a request similarly cannot convert a single managerial decision into a policy practice or rule ( Cast v Croyden College [1997] IRLR 14). However, as noted in Cast, application of a discriminatory policy or regime, pursuant to which decisions may be taken from time to time, is an act extending over a period. There can be a policy even though it is not of a formal nature or expressed in writing, and even though it is confined to a particular post or role.
An 'ongoing situation', as referred to by Mummery LJ in Hendricks can include a grievance process carried out by an employer arising immediately from an act of discrimination (namely suspension) and thereby form part of a continuing act ( Bahous v Pizza Express Restaurants [2012] Eq LR 4.
Further, when determining whether separate incidents form part of 'conduct extending over a period' one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents (see Aziz v FDA [2010] EWCA Civ 304 per Jackson LJ)
3.15 If a claim is brought, out of time, it is then necessary for the tribunal to consider whether it is just and equitable to extend time.
In the case of Miller and Others v Ministry of Justice and Others [UKEAT/0003/15] Mrs Justice Laing in her judgment set out point of general application, as follows:-
"There are five points which are relevant to the issues in these appeals:-
(i) The discretion to extend time is a wide one: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434, Paragraphs 23 and 24.
(ii) Time-limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule (ibid, Paragraph 25). In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327 Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it. It follows that I reject Mr Allen's submission that, in Caston, the Court of Appeal "corrected" paragraph 25 of Robertson. ...
(iii) If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, "perverse", that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence. No authority is needed for that proposition.
(iv) What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET (DCA v Jones [2007] EWCA Civ 894; [2007] IRLR 128). The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is "customarily" relevant in such cases (ibid, Paragraph 44).
(v) The ET may find the checklist of factors in section 33 of the Limitation Act 1980 ("the 1980 Act") helpful (British Coal Corporation v Keeble [1997] IRLR 336 EAT; the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smith J (as she then was) recorded, at paragraph 8 of her Judgment, that nobody had suggested that this was wrong. This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Southwark London Borough Council [2003] ICR 800; [2003] EWCA Civ 15, at Paragraph 33." (See Paragraph 10 of the judgment.)
(The principle in Afolubi was subsequently endorsed by the Court of Appeal in Governing Body of St Albans Girls School v Neary [2010] IRLR 124.)
Further, it was established in Apelogun-Gabriels v London Borough of Lambeth [2002 IRLR 116, that there is no principle that an extension of time will be granted where the delay is caused by an internal grievance or appeal hearing.
3.16 The Keeble advice (see above) is as follows:-
"8 ... It requires the Court to consider the prejudice which each party would suffer as the result of the circumstances of the case and, in particular, inter alia, to:-
(a) the length 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 requirements for information;
(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;
(e) the steps taken by the plaintiff to obtain appropriate professional advice area he or she knew of the possibility of taking action.
(In Lindsay v London School of Economics and Political Science [2014] IRLR 218 the Court of Appeal held that:-
"An extension of time will not automatically be granted simply because it results in no prejudice to the respondent in terms of a fair trial. If a claim is brought out of time it is for the claimant to show that it is just and equitable for the extension to be granted. This is a multifactoral assessment where no single factor is determinative."
3.17 When considering the exercise of the relevant discretion, it is necessary for the tribunal to identify the cause of the claimant's failure to bring the claim in time - see Accurist Watches Ltd v Wadher [2009] UKEAT/102/09 and Morgan where the EAT stated:-
"Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 at Paragraph 25 per Sedley J) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so and the exercise of the discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 (A). A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time-limit has not been met; and insofar as it is distinct the second reason is why after the expiry of the primary time-limit the claim was not brought sooner than it was ... ."
In Morgan, the EAT also confirmed it may not always be appropriate to give more than summary reasons for a conclusion that it was just and equitable to extend time and that precise date of an act or omission may not be material to that question (see further Paragraph 50 of Morgan).
As seen above, the reason why a claimant delayed in bringing a claim is a relevant consideration, the test to be applied in not one of reasonable practicability (see Biggs v Somerset County Council [1996] ICR 364).
In Miller, Laing J identified two types of prejudice which a respondent may suffer if the limitation period is extended. The first is that obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence. The second is what she described as the 'forensic prejudice' which the respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and loosing touch with witnesses (see Paragraph 12 of the judgment). She acknowledged that if there is forensic prejudice to a respondent, that will be 'crucially relevant' in the exercise of the discretion, taking against an extension of time and it may well be decisive; and if there is no forensic prejudice to the respondent that is:-
(a) not decisive in favour of an extension; and
(b) depending on the tribunal's assessment of the facts may well not be relevant at all.
3.18 In the recent case of Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, HH Judge Clark referred to a potential conflict of approach emerging in recent case law in the EAT as seen in the case of Pathan v South London Islamic Centre [2014] UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd [2015] UKEAT/029/14 and, by way of contrast the decision of Langstaff P, as he then was, in the case of Habinteg Association Ltd v Holleran [2015] UKEAT/0274/14 in relation to how to exercise the discretion where a claimant does not put forward evidence in support of his application for an application of time, explaining the delay.
In Habinteg, there was no explanation for the delay. Langstaff P said that the first consideration from the ' Keeble list' is the reason for and extend of the delay. There had to be some evidence, even by inference; since there was no explanation for the delay he held he could come to no other conclusion then the extension be refused. There was no basis upon which it could be permitted. He followed a similar approach in Smith-Twigger v Abbey Protection Group Ltd [UKET/0391/13]. In Pathan, the tribunal held the claimant had shown no good reason for leaving it until she presented her claim. She was intelligent and had taken advice in order to find out the time-limit. On appeal, the EAT held the tribunal had erred because it had not considered relative prejudice, which was an important factor which should normally be considered by an Employment Tribunal.
In Rathakrishnan the EAT, decided the decision in Habinteg was strictly, per incuriam, and held that the exercise of the wide discretion involves a multifactoral approach and failure to provide a good excuse for a delay will not inevitably result in an extension of time being refused. No single factor was determinative. In particular, it held that failure to provide a good reason for the delay in bringing a claim will not inevitably result in an extension of time being refused. Further, the question of balance of prejudice and potential merits of the claim before the tribunal were relevant considerations for the tribunal and it had been wrong not to have weighed these factors in the balance and instead to have terminated the exercise, having rejected the claimant's application for the delay.
In both Pathan and Pathakrishnan the tribunal heard the claim on the merits at the same time as it heard the time-point. In the earlier case of Bahous v Pizza Express Restaurants [2012] Eq LR 4 (where again merits and time-points were heard by the tribunal at the same time) HH Judge Clark had similarly held that the merits of the complaint did not require separate consideration but were 'part of the prejudice balancing exercise' likely to be suffered by the respective parties should time not be extended.
3.19 In a further recent decision by Laing J in the case of Edomobi v La Retraite RC Girls School [UKEAT/0180/16], she preferred to follow the approach in Habinteg - stating she found it difficult to see ' how a claimant can discharge the burden of showing that it is je to extend time if he or she simply does not explain the delay, nor do I understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved'. In neither case, in my judgment, is there material on which the Employment Tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay.
The above difference of approach by the different divisions of the EAT may, in due course, require to be resolved by the Court of Appeal. Of course, none of these decisions are binding on this tribunal, albeit would normally be persuasive. Insofar as it may be necessary for this tribunal to resolve this difference of approach, it preferred the approach seen in Pathan v Rathakrishnan and the multifactoral approach and the necessity, in essence, before reaching any conclusion to put all the relevant factors, as assessed by the tribunal, in the balance; albeit recognising that the absence of any or proper explanation for the delay may be, subject to the other factors, as found on the facts, it weighs heavily against the granting of any extension - remembering at all times the dicta seen in Robertson - exercise of the discretion in the exception rather than the rule and time-limits are to be exercised strictly in tribunals (see further support for a multifactoral approach in Lindsay v LSE [2014] IRLR 218).
3.20 When assessing whether time should be extended to allow a discrimination claim to be heard out of time, the fault of the claimant is a relevant factor to be considered but a claimant is not to be held culpable for what is properly to be regarded as the fault of his or her legal advisers (see Elias J in Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 and also HHJ McMullen QC in Chohan v Derby Law Centre [2004] IRLR 685).
3.21 As in so many cases brought before this tribunal, in making findings of fact, a tribunal has had to consider the credibility of the parties and their witnesses. In R v G [1998] Crim LR 483 it was held by the Court of Appeal:-
"A person's credibility is not a seamless robe, any more than is their reliability."
Indeed a tribunal may take a different view as to the credibility or reliability of the evidence of a witness in relation to different issues, (see also R v H [2016] NICA 41). In Thornton v NIHE [2010] NIQ 84 Gillen J, as he then was, stated:-
"The credibility of a witness embraces not only the concept of his truthfulness, ie whether the evidence of the witness is to be believed but also the objective reliability of the witness (that is) his ability to observe or remember facts or events about which the witness is giving evidence."
In assessing credibility the factors as set out by Gillen J in Thornton, are of particular relevance and assistance in determining such issues:-
"(1) the inherent probability or improbability of representation of fact;
(2) the presence of independent evidence tending to corroborate or undermine any given statement of fact;
(3) the presence of contemporaneous records;
(4) the demeanour of witnesses, for example, does he equivocate in cross-examination;
(5) the frailty of the population at large in accurately recollecting and describing events in the distant past;
(6) does the witness take refuge in wild speculation or uncorroborated allegations of fabrication;
(7) does the witness have a motive for misleading the tribunal; and
(8) weighing up one witness against the other."
These factors have recently been endorsed and followed by Stephens J in the case of ES (a minor) v Savage [2017] NIQB 56.
4.1 The tribunal heard oral evidence from the claimant and, on behalf of the claimant, Ms Katherine Robinson, Ms Rosemary Wasson; and, on behalf of the respondent, Ms Mary Graham, Ms Zoe Boreland, Ms Fionnuala McCluskey. The witness statements of Ms Jacqueline Rodgers, Ms Jennifer Gregg, Ms Lynda McAree and Mr Martin O'Toole, on behalf of the respondent, were admitted in evidence, without formal proof, subject to the caveat as to the weight, if any, to be attached by the tribunal in the circumstances to any such statement, so admitted in evidence. Further, the medical evidence produced by the claimant, namely the report of Dr Brian Mangan, Consultant Psychiatrist, dated 4 October 2016 and relevant GP notes and records were agreed and admitted in evidence, without formal proof.
4.2 Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the trial bundle, as amended, to which the tribunal was referred during the course of the hearing, together with the submissions of the representatives, the tribunal made the following findings of fact set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant's said claim of age discrimination.
4.3 The claimant was born on 7 March 1954 and, at the time of the events, the subject-matter of these proceedings was aged approximately 60/61 years. She was employed as a midwife (Band Grade 6) by the respondent and, at the material time, was based in the labour ward within the Ulster Hospital Maternity Unit. The Head of Midwifery for the respondent was Ms Zoe Boreland, who was aged about 55 years at the material time. The Unit structure comprised the labour ward manager, Ms Mary Graham (since 17 June 2009), who at the material time was aged approximately 53 years. There were, in the Unit, six labour ward sisters (Band Grade 7) and 40 midwives (Band Grade 5 and mostly 6). Ms Graham was the claimant's line manager.
4.4 On or about 28 July 2014, a computerised health roster system was introduced by the respondent, which was designed for use by managers, rostering staff to an agreed demand, to manage staff availability and contracts and to allow clear visibility of Departmental staffing levels. The health roster system also tracked and produced reports for absence, leave, additional duties and temporary staff usage (Bank, Agency, Overtime, etc).
4.5 Under the system introduced, Labour Ward staff were provided with the opportunity to select the relevant shift patterns. There were four shift patterns, namely:-
(i) long day - 12 hours;
(ii) early - 6 hours;
(iii) late - 7 hours; and
(iv) night duty - 11 hours
Labour Ward staff worked a pro rata shift pattern of a combination of day and night rotation. The health roster was drafted by the Labour Ward sister, Ms Rodgers, as part of her administrative duties on a four-weekly sequence. For various reasons, staff did not always get to work the shift pattern/hours which had been selected.
4.6 The process involved allocation of day/night duty rotation, skill mix, level of staffing, and required skills and competencies on each shift. In order to provide safe effective care, Ms Graham agreed the level of annual leave and study leave, depending on sickness and maternity leave figures.
4.7 On completion of the health roster, Ms Graham undertook monitoring and auditing of the roster to ensure it was appropriate in the circumstances, prior to formal approval by the Head of Midwifery, Ms Zoe Boreland. At the end of each calendar month, the health register was sent to payroll for payment of salaries.
4.8 The Labour Ward staff were aware that, during the eight week pro rata shift pattern, hours can accumulate over or under their contracted hours. This could result in staff working an additional shift to make up these hours or allocated 'time back'. If a Labour Ward staff member had worked over their contracted hours during a three month period and was unable to get the time back on their over-contracted hours they were offered payment (if outside the three month period); although this would not occur on a regular basis.
4.9 Labour Ward staff, who worked full-time hours (37.5 hours) in a four week period, such as the claimant, could accumulate six hours under their contracted hours depending on days/night duty rotation, shift pattern and study leave. The staff have a record of their net hours at the end of each four week period on the health roster. This could be viewed on their personal health roster. Managers were responsible to monitor the accrued hours on a eight week cycle.
4.10 An issue arose in or about October 2014/November 2014 about the claimant's hours that she had apparently worked. The tribunal, in light of the documentary evidence produced by the respondent, is satisfied this matter occurred in or about October 2014/November 2014, and not January 2015, as the claimant mistakenly stated. The claimant was called into Ms Graham's office, her line manager. It was pointed out to her by Ms Graham that she had accumulated 12.5 hours, as indicated on the health roster and showed her the accumulative hours on the said roster. The tribunal accepts that Ms Graham may have been somewhat short/brusque and firm in her manner and spoke to the claimant in a loud and sharp voice, about this issue. However, Ms Graham printed a hard copy from the claimant's personal roster report from 28 July 2014 and give it to the claimant to check her personal roster report and her personal diary to ensure all shifts were correct and to identify to her any discrepancies and report back to her to amend. The tribunal has no doubt the claimant was annoyed and upset and found it hard to accept that it appeared she owed these hours. However, it is also satisfied that, on the basis of what she had been shown to her by Ms Graham and explained, as referred to above, that she then reluctantly agreed to work the relevant accumulated hours of 12.5 hours; with Ms Graham suggesting the claimant work two early shifts (six hours) over the next few weeks of 31 October 2014 and 6 November 2014, rather than an additional long day shift of 12 hours. The claimant then took up and followed this suggestion. The tribunal has no doubt that Ms Graham strongly emphasised, in her conversation with the claimant that, as the relevant information, as shown to the claimant, indicated the claimant had underworked hours over the previous three months it was important for her to clear these hours before the amount increased. It was further apparent that both the claimant and Ms Graham, at this meeting, accepted what the records appeared to show; albeit the claimant remained annoyed and upset it could have happened as set out in the said record. Faced with the evidence of the documentary records shown by her to the claimant, and no response from the claimant to show otherwise, other than she did not believe it could be correct, Ms Graham was not prepared to alter her view that the hours required to be worked. However, the tribunal does not accept she did so in a derogatory fashion as alleged by the claimant.
4.11 In an e-mail, dated 17 November 2014, the claimant having carried out further researches into the position, and, in particular, in relation to the records that had been produced to her by Ms Graham, wrote to Ms Graham stating the personal roster report was incorrect, as provided to her previously; and, in particular, by Ms Graham, there were missing shifts not recorded on E-Roster. These were identified as 30 August 2014 and 11 October 2014. Further, the claimant requested, by way of reimbursement payment, for the extra hours in her monthly pay, despite her initial denial, in evidence, to the tribunal that she had ever made such a request.
4.12 In an e-mail to the claimant, dated 18 November 2014, Ms Graham explained to the claimant how the mistakes/errors had occurred and also the action required to correct her personal roster report. In particular, Ms Graham pointed out that she herself had not been personally responsible for the mistakes/errors that had occurred, which involved failure to properly record relevant information by the relevant Ward Sisters and appropriate checks to be made before e-rostering was sent to the payroll. The claimant did not dispute, in evidence, that when the mistakes/errors were properly identified, the matter was quickly resolved; and, in particular, in an e-mail sent by Ms Graham on 24 November 2014, she confirmed that the records had been amended, as appropriate, and an instruction to payroll to reimburse payment to the claimant. It is correct Ms Graham did not give to the claimant an apology for what had happened. She considered it was not necessary to do so as she had requested the claimant to work a deficit in her contracted hours and not extra shifts and that the claimant had agreed to do so at the time; albeit it subsequently emerged that a mistake had occurred. This mistake was not by Ms Graham and involved a failure of agreed proper record-keeping by Sister staff and the claimant in the circumstances outlined above. The tribunal has no doubt that some form of apology for the mistakes made, albeit not her personal fault, by Ms Graham would have been helpful in the circumstances as clearly Ms Graham would not have required the claimant to have worked the hours, if the mistakes had been discovered at an earlier time. However, the tribunal is satisfied that the failure by Ms Graham to give any form of apology was an example of Ms Graham's firm and somewhat brusque management style, which was also observed by the tribunal as she gave her evidence; and is satisfied she would not have given an apology to any of her staff, young or old, where a similar situation had arisen.
4.13 In the course of her evidence, it became apparent, in relation to this matter, the claimant was complaining, in particular, about Ms Graham's manner, rather than her requiring the claimant to work, wrongly as it turned out due to the mistakes/errors, the additional hours. She accepted, in evidence, such mistakes had occurred before, albeit not to such an extent and she had no evidence to suggest that this happened to any particular age group. She further suggested, but again without any evidence, that Ms Graham would not have spoken in that way to a younger person.
4.14 The claimant acknowledged that Ms Graham had been her line manager for approximately seven years at the time of this matter. She suggested, unconvincingly, in evidence, there had been earlier incidents of such behaviour by Ms Graham in the above period, prior to October/November 2014; albeit these had not been set out in her witness statement. She suggested that she had not complained or raised a grievance about such matters on the grounds that she just put up with them as she was older and less confrontational. The tribunal has no doubt that, if there had been any earlier or similar incident, the claimant would have included it in her witness statement. By raising it during the course of cross-examination it made such evidence less than credible and, in the tribunal's view, was an improper attempt by the claimant to try to bolster her claim of age discrimination in relation to this matter.
4.15 The claimant, raised this issue in her tribunal proceedings, presented on 29 February 2016. However, her only explanation, in evidence, for not bringing such proceedings at the time of the incident was she was non-confrontational, and she was prepared to put up with it until the issue arose about the disciplinary proceedings, to which reference is set out later in this decision, and which was clearly, on her own evidence, her principal complaint in these proceedings. Again the tribunal found this explanation less than convincing in the circumstances.
4.16 It was not disputed the Labour Ward staff comprises approximately 90% female staff and 10% male staff of various ages and backgrounds. In the said Labour Ward, ages of staff ranged between 21 and 64. Ms Graham had three members of staff who were over 60 years of age working in the Labour Ward, which is the same age group as the claimant. There was no evidence that the staff were not able to work satisfactorily under the management of Ms Graham and, in particular, there was no evidence of any other complaint against her, in the context of these proceedings of age discrimination.
4.17 The Nursery and Midwifery Council ('NMC') is the professional regulatory body for nurses and midwives in the United Kingdom. NMC exists to protect the public by regulating nurse and midwifery standards and practices. The NMC sets the standards of education, training, conduct and performance so that nurses and midwives can deliver high quality healthcare throughout their career. The NMC ensures nurses and midwives keep their skills and knowledge up-to-date and uphold professional standards. The NMC have clear and transparent processes to investigate nurses and midwives who fall short of these standards. The NMC maintain a register of nurses and midwives who are permitted to practice in the United Kingdom. It is a legal requirement to be registered, as set out in the relevant legislation. It is also the responsibility of the individual midwife/nurse to ensure their registration is maintained and updated. A midwife cannot practice if not registered at the material time.
4.18 Ms Graham, as line manager of the Labour Ward, sent a series of e-mails, dated 26 February 2015, 10 March 2015 and 1 April 2015 to various members of staff, including the claimant, as a reminder of their professional renewal due to expire on 31 March 2015 and also requested copies of NMC registration for their personnel files. The age ranges of the said staff written to by Ms Graham ranged from three in the range 58 - 65 years, four in the range 48 - 52 years and the claimant at 62 years. Again, consistent with Ms Graham's management style, the e-mails were short and to the point. Under the NMC registration and verification SET/GEN (90) 2012 Version 2.3 protocol for recording nurse registration status on HRMS Human Resources management systems:-
"The line manager or designated deputy should arrange for a copy of the verified registration information to be forwarded to the NIMS Nursing Information Management Systems User so that the HRMS nursing/NIMS can be updated appropriately."
The tribunal is satisfied Ms Graham, as the line manager, was entitled to request such a copy from all her staff, including the claimant. The fact that it appeared from evidence that other managers, in other Departments of the respondent, might not have enforced this requirement of the respondent, with the same rigidity as Ms Graham, was, in the view of the tribunal, not relevant. As line manager, in accordance with the said Trust procedures, Ms Graham was entitled to enforce it with her staff in her Department. Further, given the importance and significance of any failure of registration, the tribunal could well see the sense of obtaining such a hard copy on file by the line manager. The tribunal further was satisfied that Ms Graham required all her staff, irrespective of age, to provide a copy of the registration documentation, which included the nine staff to whom the said e-mails were sent.
4.19 In or about March 2015, in the presence of Sister Rodgers and a number of other staff, the claimant was present in the Central Station of the Labour Ward. Ms Graham highlighted to all staff the above policy to which reference has been made above, which had been displayed in the staff room and e-mailed to staff. She also highlighted to the staff that a new version of the NMC registration and verification policy was soon to be published, which included aspects of re-validation and the consequences of failing to maintain registration. She also pointed out that recently two members of staff (not the claimant) within the Labour Ward had assumed they had renewed their registration with the NMC but they had not followed up and checked their NMC personnel profile online. They were identified as not having renewed their registration and were sent off duty until registration was updated and renewed. The tribunal is satisfied that, during the course of this discussion, Ms Graham clarified the importance of staff to follow up and check their NMC personnel profiles and not to make assumptions and highlighted the good practice to print a copy of their professional registration for their own records but also for their line manager. The tribunal has no doubt that Ms Graham strongly emphasised the necessity for maintaining registration and the consequences for not doing so, which included not being able to practice and the consequences for any member of staff in not doing so, including suspension of pay and potential disciplinary action. This was in the form of a general warning of potential disciplinary action, to those present and not directed specifically at the claimant, as she sought to suggest in evidence. Ms Graham then asked the claimant for a copy of her NMC registration document, which she had asked for previously in the said e-mails but to which the claimant had still not responded unlike the other members of staff who had been written to in the said e-mails. In the circumstances, the tribunal accepts Ms Graham, consistent with her said management style, was forceful and blunt in making this request but it does not accept the claimant's description that Ms Graham was ranting and was an exaggeration on the part of the claimant. There were a number of other staff present but no other member of staff present gave evidence of Ms Graham ranging, as described by the claimant. The only reason that such a request had had to be made orally to the claimant by Ms Graham was because the claimant had not responded to the earlier request in writing. If any other member of staff of whatever age had failed to respond, as the claimant had done, the tribunal has no doubt that Ms Graham would have also spoken to that member of staff and in the same manner. Further, the tribunal has no doubt the claimant, as illustrated in her evidence, believed the request to provide such a copy of the registration document was somewhat unnecessary as Ms Graham could easily check for herself the registration information on other systems available to her. Indeed the tribunal is satisfied it was this belief that was of particular relevance to why the claimant had failed to respond to the earlier written request. Following this oral request, which the claimant knew she had to act upon as a matter of urgency in light of what she had been told by Ms Graham, the claimant was undoubtedly stressed and upset, which the tribunal considers was compounded by the fact she was unsure how to obtain and print off the relevant copy documentation. The claimant, surprisingly, did not ask either Ms Graham or Sister Rodgers or any other member of staff present but subsequently asked Sister Robinson in another Department for assistance. Fortunately, Sister Robinson was able to assist and the claimant was able to obtain and print off quickly a copy of the relevant documentation which she then immediately provided to Ms Graham. When doing so, Ms Graham thanked her for a quick response and said, when doing so, patting her hand 'good girl'. The tribunal does not accept this was in any way an ageist or indeed a patronising remark; but arose from the custom in the midwifery ward for male staff and female staff to refer to themselves as 'the boys' and 'the girls' and, on occasion, when smaller groups of female staff refer to themselves as the 'girlies'. Indeed, in the judgment of the tribunal, it was not, without some significance, in this context, that the claimant herself in an e-mail to Ms Graham had referred to another member of staff as 'one of the other girls'. This matter arose and was concluded in March 2015.
Further, the tribunal is satisfied that part of the claimant's upset and distress when Ms Graham made this oral request was she was embarrassed to have her failure to comply with Ms Graham's request pointed out in front of the other staff. Undoubtedly, Ms Graham could have spoken to her on her own but, as line manager she was entitled to do so in the course of a discussion about registration issues with all the staff, of various ages, who were then present. Ms Graham clearly expected the claimant to act immediately on her oral request, despite her earlier failures and that this would quickly resolve the matter, as it subsequently did.
4.20 The claimant suggested, in evidence, that a younger member of staff, under the line management of Ms Graham, had been allowed to practice unregistered and she had not been asked for a copy of her registration document. However, the tribunal accepts that the circumstances in relation to this younger member of staff were not similar to that of the claimant. The other member of staff had produced the relevant documentation, but due to an administrative error by the respondent, this had not been recorded on the respondent's computer system, which had gone unnoticed for some considerable period of time, and as a consequence, she had not been registered for a period; whereas the claimant was always registered but had failed to produce the copy registration document to her line manager, when requested.
4.21 Earlier in this decision, reference was made to the admission of an additional witness statement by Ms Robinson. The evidence related to a weekly informal meeting, which are normally held most Friday mornings in Ms Boreland's office of all of the Band 7 managers who are available. This particular meeting, the subject-matter of this additional evidence, took place in or about April 2016. No minutes are kept of these informal meetings, in contrast to the formal minuted monthly meetings. At this particular meeting, Ms Graham, Ms Robinson and Ms Boreland, together with other relevant managers were present.
Issues that arose at this meeting included staff vacancies, high maternity rates and sickness levels. Due to a combination of these issues, staff in post were being asked to work extra shifts as bank or overtime on a weekly basis to cover the Unit to ensure the safety and well-being of mothers. Ms Robinson had advised the meeting that, due to high maternity rates in 'Home from Home', she was concerned how these additional pressures were impacting on staff health and morale. Ms Graham responded that the issues were similar in the 'Delivery Suite' and described the impact on staff as 'unavoidable wear and tear'. Ms Robinson was upset by the language and tone used and felt Ms Graham was referring to staff as a piece of furniture no longer fit for purpose. The tribunal is satisfied that Ms Graham, when making this somewhat colourful and blunt remark, was doing so merely to illustrate what she also believed was the serious impact on the health and morale of all staff, of whatever age, being required to work such additional hours in the circumstances outlined. Undoubtedly, this was not an expression or use of language that would have been used by Ms Robinson; but it is clear that both Ms Graham and Ms Robinson, in their own ways, were genuinely concerned about the impact on all staff of such pressures. The tribunal did not consider this remark made by Ms Graham in such circumstances was of any assistance in determining the issues of age discrimination, the subject-matter of this decision.
4.22 The claimant, following a meeting with Ms Boreland, went off work with stress on or about 28 May 2015. (See later.) During the period of sick leave the claimant was diagnosed with advanced glaucoma in or about September 2015. Her General Practitioner signed her off, due to her stress, until on or about 23 December 2015; but, after taking account of unused holiday leave etc the claimant did not return to work until or about 15 February 2016. The claimant's glaucoma is not relevant to the claimant's claim of age discrimination. The claimant regained partial sight in or about November 2015 but, unfortunately, due to her said eye condition, she could no longer practice in a clinical role as a midwife and, upon her return to work in February 2016, she carried out an administrative role. In light of the tribunal's decision, it was not necessary to consider these issues further (see also Paragraph 1.3 of this decision).
4.23 The principal allegation of the claimant, in relation to her claim of age discrimination, as emphasised by her representative and herself, in evidence, related to a decision by the respondent to submit the claimant to a disciplinary process, arising out of a complaint/allegation made against the claimant in respect of her work as a midwife, which occurred on the night of 6/7 May 2015. The claimant admitted in evidence that her main reason for bringing her claim of age discrimination on 29 February 2016 related to this disciplinary issue and she had not brought an earlier claim, in relation to the overtime issue and/or the NMC registration issue, referred to earlier, which had occurred in or about October/ November 2014 and March 2015, respectively, as she did not consider them as serious as the disciplinary issue.
4.24 On the evening of 6 May 2015, the claimant was on duty as a midwife in the Labour Ward. At or about midnight, the claimant was asked by the sister-in-charge, Ms Rodgers, to take over the care of a high-risk patient ('AB'). Ms Rodgers informed the claimant that the patient she was to care for had made a previous complaint against the respondent, arising out of a previous delivery. Clearly, Ms Rodgers had no concerns in asking the claimant to take on this duty, and that the claimant, with her considerable experience, would be able to treat this patient in an appropriate and proper manner. The claimant took over care of this patient at or about midnight on 7 May 2015. This was on the basis of one-to-one caring and the relevant records showed the observations, administration of appropriate drugs and analgesia the claimant gave to this patient. The claimant was relieved at or about 03.30 hours by another midwife, Ms JS, to enable the claimant to have a cup of tea. Upon returning from this tea break and subsequently going out to the medicine cupboard to get some antibiotics for the patient, Ms Rodgers informed the claimant that a comment had been passed to the midwife, Ms JS, who had relieved her for the tea break, by the patient's partner in relation to the claimant falling asleep. The claimant, understandably, was very shocked and upset by this complaint/allegation by the patient's partner. However, she properly continued, with the consent of Ms Rodgers, to care for the patient to the best of her ability; and was not relieved of her duty until her shift ended and she handed over to the day staff. Further, neither the patient nor her birthing partners (her mother and partner) did not ask for the claimant to be relieved of her duty and/or for another midwife to take over; nor did any of them make reference to the claim/allegation referred to previously. The claimant left the Ulster Hospital, upon the end of her shift at or about 8.00 am and was not due to return to the hospital until the evening of Saturday 9 May 2015. It is also necessary to emphasise that, at all times during the course of this hearing, both the claimant and her representative accepted that it was proper for the complaint/allegation to be the subject of investigation. However, for the purposes of this complaint of age discrimination, the subject-matter of these proceedings, both the claimant, and her representative, relied on the actions of the respondent thereafter, not the commencement of the investigation itself.
4.25 On 7 May 2015, Ms Graham made contact with the claimant, on the instructions of Ms Boreland. Ms Boreland, on 7 May 2015 at or about 1.00 pm, had received a report of the incident from the sister-in-charge of the Labour Ward (Ms McMechan). Ms Boreland interviewed Ms McMechan who advised Ms Boreland that the patient (AB) had reported that the claimant had fallen asleep while looking after her and that the patient had produced a photograph to Ms SS, the midwife who had taken over care of the patient from the claimant the following morning. Ms Boreland gave relevant instructions to ensure the patient was appropriately cared for and asked that she should be interviewed when the baby was safely born. At or about 3.50 pm on 7 May 2015, Sister McMechan advised Ms Boreland that the patient's baby had been safely delivered and that the patient wanted to meet Ms Boreland. Ms Boreland then interviewed the parents of the new-born baby at or about 4.00 pm on 7 May 2015.
4.26 In her interview with the parents of the new-born baby on 7 May 2015, as referred to previously, Ms Boreland asked them to describe the way the claimant had been sitting. They replied that the claimant had been sitting on a chair with her head bowed. Ms Boreland asked if this was a single incident and they responded that it had occurred several times during the night. Ms Boreland suggested that the claimant could have been merely resting her eyes but they insisted she had 'nodded off'. Further, AB informed Ms Boreland that her mother had taken a photograph on her phone. She accepted that the claimant would not have been aware that the photograph had been taken. Ms Boreland asked to see the photograph but was informed this was not possible as it was on the patient's mother's phone which was not on the premises. Ms Boreland asked if the image could be sent to her. However the patient declined because she thought the incident was funny and she did not wish to make a formal complaint. Ms Boreland explained that this was a serious allegation that would have to be investigated. However, the patient and her partner stated that the claimant had looked after them well and they did not want to get her into trouble. Ms Boreland reiterated that, given the nature of the incident, an investigation would have to be carried out. Following the meeting with the parents, Ms Boreland spoke with Ms SS and asked her to describe the image that had been shown to her by the patient. Ms SS informed her that the image showed the claimant sitting with her head bowed.
Ms Boreland then informed the Assistant Director for Women and Acute Child Health (Mrs Eileen McEneaney) and the Director of Nursing, Mrs N Patterson, reflecting the importance and concern she felt about this matter. She considered the said allegation/complaint was very serious and required to be treated as such, having regard to the critical role of a midwife, in relation to any birth.
Ms Boreland asked Ms McMechan to do a follow-up interview with the patient the following day and to find out if the patient would forward a copy of the photograph to Ms Boreland. Ms McMechan subsequently met with the parents. During this interview she saw the photograph of the claimant. Following this interview, Ms McMechan reported to Ms Boreland that the photograph showed the claimant with her head bowed in a sitting position. However, from the image, she could not confirm the claimant's eyes were open or closed. She also confirmed that the parents had declined to forward the photograph to Ms Boreland. Ms Boreland subsequently contacted the patient, AB, by telephone on 17 June 2015 to inform her that the respondent was formally investigating the allegation. She also asked if the patient still had the photograph. She replied that she was not sure. Ms Boreland explained that it would be beneficial for all parties if the respondent had a copy; but she stated that, even if she did have a copy, she would not be prepared to share it with the respondent. Ms Boreland informed the patient that she would not contact her again about this issue, but if the patient changed her mind she could contact Ms Boreland at the hospital.
It is important to note that neither patient or her partner, in their interviews with Ms Boreland, made any reference to Ms Boreland about the claimant's age, nor did Ms Boreland herself refer to the claimant's age.
4.27 The tribunal found Ms Boreland a credible and convincing witness and accepts her evidence that she decided to conduct an investigation into this matter under the Trust's Disciplinary Policy for the following reasons, namely:-
• "As an incident had been reported under the Trust's reporting system it had to be dealt with appropriately as inactivity was not an option.
• I was also aware that an allegation of sleeping whilst on duty was a gross misconduct issue in the Trust Disciplinary Policy.
• In addition the reported incident raised a potential patient safety issue as patient care could have been compromised.
• I was concerned that if the report and the photograph has been put on the public domain the Trust could suffer reputational damage.
• I was aware the patient had a history of pursuing legal action against the Trust following the birth of her last baby. Therefore there was a real possibility of a complaint being raised by the Trust and possibly the Ombudsman."
The tribunal is satisfied that, at this stage, Ms Boreland had drawn no conclusions about the veracity or otherwise of the allegation/complaint made by the patient. However, in light of the foregoing, she considered inaction would have been inappropriate and the disciplinary process would provide the claimant with an opportunity to state her case.
Further, the tribunal further is satisfied that, in deciding to proceed with the investigation, Ms Boreland took no account of the claimant's age.
4.28 Ms Graham, the claimant's line manager, having been appointed by Ms Boreland as the investigating officer, contacted the claimant in or about the late afternoon of 7 May 2015, as she had been instructed to do so by Ms Boreland. Ms Graham was fully aware the claimant had been on night duty and the tribunal is satisfied she apologised for contacting her at that time but had informed her that an allegation had been made that she had been falling asleep and nodding off during the night when the claimant cared for patient AB in the Labour Ward. She also told her a photograph had been taken when the claimant was alleged to be asleep and had been shown to midwife, Ms SS. Ms Graham also informed the claimant that an investigation would take place arising out of the above matters. Understandably, the claimant was shocked and upset by this allegation and the tribunal accepts that she immediately denied it. The claimant was informed by Ms Graham that Ms Boreland, in order to provide her with relevant rest and respite, had advised that she would not be required to work on night duty for the remainder of the week or any further night duty; but could continue to work on day duty and that she was not being suspended from duty. Annual leave was also offered. In the event, with the agreement of Ms Boreland, the claimant did not work on that Saturday night but worked the day duty hours in the following period.
4.29 An investigation was thereafter carried out by Ms Graham, interviewing relevant members of staff, including the claimant, after having regard to relevant records and she then compiled a disciplinary report, following her said investigations. The investigation took some considerable period of time, which undoubtedly was very stressful for the claimant. The terms of reference of the said report stated:-
"Members of staff raised a concern brought to them by AB who had reported 'Staff Midwife Hazel McCalister had allegedly had been falling asleep and nodding off during the night while providing one-to-one care during labour'."
Insofar as relevant and material, in the report, the following description of the allegation was set out:-
" ...
4. Incident report
Incident reported by Staff Midwife SS on 7/5/15 at 0930 to Sister Melanie McMechan. 'Midwife on night duty was sleeping while looking after AB'. The photograph taken on a mobile phone was shown to Staff Midwife SS on day duty.
This incident was raised to the Labour Ward manager, Mary Graham, and Head of Midwifery, Zoe Boreland, for advice. Sister Melanie McMechan and Zoe Boreland met with and spoke to AB. Incident report completed on 7/07/15 at 1000 hours and sent to Governance Facilitator for information and data collection.
5. Staff interviews and statements
The staff on duty reported the allegation that Staff Midwife Hazel McCalister had allegedly been falling asleep and nodding off while providing one-to-one care during labour. This had been brought to the attention of Staff Midwife JS while she provided tea relief for Staff Midwife Hazel McCalister on 7/05/15 at 0330 hours. It stated that AB made a general comment in a joking manner to her partner that Staff Midwife Hazel McCalister had been falling asleep as indicated in statements from staff. This was reported by Staff Midwife JS to Sister Jackie Rodgers on 07/05/15 at 0400 hours. Sister Jackie Rodgers spoke verbally to Staff Midwife Hazel McCalister and informed her that AB had made a comment to Staff Midwife JS about her (Staff Midwife Hazel McCalister) sleeping while caring for her in labour.
During the course of the morning AB continued to make reference to staff that, this was brought to the attention of Staff Midwife SS who was providing one-to-one care during labour. A photograph taken on a mobile phone was shown to Staff Midwife SS. This was reported to Sister Melanie McMechan on duty at 07/15 at 0930 hours.
6. AB interview at 08/05/15 at 1800 hours
It states that AB felt safe with Staff Midwife Hazel McCalister, put her at ease, explained everything fully, kept her well informed and responded promptly.
AB claims that, on several occasions that Staff Midwife Hazel McCalister 'appears to be falling, nodding off for short periods when room quiet or nothing pressing to do'.
According to AB a photograph taken on a mobile phone was taken by her mother ... with a flash. Staff Midwife Hazel McCalister appears to be asleep. When questioning AB states that Staff Midwife Hazel McCalister was not aware or informed of the photograph taken on a mobile phone. The photograph taken on a mobile phone was seen by Sister Melanie McMechan was able to confirm Staff Midwife Hazel McCalister:
• Sitting at a desk in the labour room
• Side angle profile
• Arms folded across her chest
• Head bent down
• Legs crossed
• Unable to clearly identify eyes
A copy of the photograph on the mobile phone has been requested from AB. Zoe Boreland and Sister Melanie McMechan. A copy of the photograph on a mobile phone is not available to this investigation.
7. Interview and statement - Staff Midwife Hazel McCalister
Staff Midwife Hazel McCalister is aware of the allegation made by AB that she was asleep and nodding off during the night while providing one-to-one care in labour to AB.
Staff Midwife Hazel McCalister states that she was unaware of a photograph having been taken during the night on a mobile phone. It would have been taken without her knowledge or consent. Staff Midwife Hazel McCalister informed that the photograph had been shown to Staff Midwife SS and Sister Melanie McMechan on two separate mobile phones and identified as Staff Midwife Hazel McCalister.
A description of the photograph seen on two mobile phones was given to Staff Midwife Hazel McCalister. The original photograph seen on AB mother's phone by Staff Midwife SS. Second time photograph seen was by Sister Melanie McMechan on AB own phone. A copy of the original photograph seen had been sent from another phone to AB phone as recorded in statement.
Staff Midwife Hazel McCalister is aware that a copy of the photograph has been requested. However the Trust does not have a copy of the photograph, the original photograph remains with AB and her mother ...
Staff Midwife Hazel McCalister denies sleeping or nodding off to sleep while providing one-to-one care during labour to AB."
4.30 The following relevant extracts, for the purposes of these proceedings, were set out in the report, following interviews with certain staff, in particular:-
(A) "Midwife SS - who had taken over from the claimant at the end of her shift.
... SS describes in her own words how the allegation came to her attention.
During the course of the morning AB (patient) made a flippant remark to SS whilst Sister McMechan was present in the room attending to intravenous infusion.
Patient AB stated:-
'Midwife sleeping most of the night and kept nodding off.'
SS ignored the comment, unsure if Sister McMechan heard the remark.
Patient stated :-
'Hazel was a lovely midwife, mentioned her age 61, it must be hard. '
[Tribunal's emphasis]
SS made no comment.
Patient stated throughout the morning about 'Hazel sleeping and nodding off during the night'.
SS responded 'I'm sure the midwife did not sleep or nod off'.
Patient's mother ... took out phone and showed SS a photograph of Hazel sleeping, AB and her mother ... laughed as they thought it was funny.
SS asked to describe what she saw on the phone.
Identified as S/M H McCalister.
Side profile of Hazel.
Sitting at the desk in the labour room.
Legs crossed.
Arms folded across her chest.
Head bent down.
S/M SS made no comment to AB or her mother.
SS came out of the delivery room and notified Sister M McMechan regarding the comments/allegation and the photograph that she had seen.
Later that day when AB had been commenced on ... for analgesia, AB at times went to sleep and nodded off. AB's mother ... made a comment to AB's partner ... she's doing a Hazel."
(B) "Sister J Rodgers
... J Rodgers in her own words how the allegation came to her attention. During the course of the night between 0400 hours - 500 hours, following, SMJS providing a quick 10 minute tea relief for SM H McCalister. SMJS reported to J Rodgers that AB and her family had commented to her that S/M H McCalister had been falling asleep during the night and they were laughing about it.
J Rodgers spoke to S/M H McCalister and told her that AB had made a comment to S/M JS about her sleeping while caring for her in labour. Hazel made no comment. Hazel kept herself busy through the remainder of the night and kept coming and going out of the delivery room to get things. No further discussion with S/M J Smith or with AB.
... 'I was on night duty 6 th May 2015 in charge of Labour Ward.
S/M H McCalister was assigned to care for AB during her labour.
At approximately 4.30 to 5 o'clock I asked S/M JS to relieve S/M H McCalister for 10 minutes prior to bringing her next patient to the labour ward.
After having done the tea relief S/M S asked to speak with me and stated the patient and her birthing partner had laughed and stated that S/M McCalister was nodding off to sleep.
I then spoke to S/M McCalister and made her aware of these comments and advised her to be careful."
(C) "S/M JS - who had provided cover when the claimant was on her tea break
' ... S/M JS had been asked by J Rodgers to provide a tea break for S/M McCalister at 0300 hours for 15 - 20 minutes.
S/M JS describes in her own words how the allegation came to her attention.
S/M JS introduced herself to AB and asked in general how she was getting on. During this time AB passed a general comment in a joking manner to her partner that 'S/M H McCalister had been falling asleep'. S/M JS passed no comment to AB. During this time AB passed comment to S/M JS and asked 'could she not stay in the room'.
S/M H McCalister returned from her break after about 10 minutes, outside the labour room. S/M H McCalister mentioned to S/M JS that AB had a claim against the Trust for a previous pregnancy therefore I felt needed to inform J Rodgers. S/M JS informed J Rodgers what AB had said. J Rodgers stated that she would deal with it. Half an hour later J Rodgers had spoken to S/M H McCalister. I apologised to S/M H McCalister for having to report it to J Rodgers.
(D) "Interview on 8 th of May 2015 by Sister McMechan with AB
'Discussion :
AB states 'That Hazel was a lovely, but old midwife, felt safe with her care, but unsure of her ability if the situation was more stressful. When Hazel sat down, her head dropped, Hazel did not know that the photography was taken on AB mother's phone. Did not waken when flash went off. AB and her family thought Hazel nodding was funny'. [Tribunal's emphasis]
Photography taken on 7/05/15 at 332 hours, copy of photograph on AB mobile phone, sent to AB by her mother ... shown to M McMechan.
AB states that she reported to SMJS that Hazel nodding off when she relieved Hazel for tea.'
AB states 'that Hazel provided her with care, put her at ease, gave antibiotics and increased the ... at 0315 and 0330 hours.
Following the ... injection for pain relief at 435 hours, AB uncertain if Hazel had nodded off. Only nodded off for short periods when the room was quiet when nothing pressing to do.'
AB states 'Hazel frequently checked heartbeat on the CTG machine and contractions. Hazel explained everything fully kept her well informed of what was happening and responding promptly.'
AB states 'Does not feel that Hazel was ever deeply asleep more like nodding off. Hazel slow but caring, not fit, did not feel Hazel could work at quick enough pace if anything happened.'
Copy of photograph had been requested from AB and her mother ... to be sent to S Boreland HOM on the day before 07/05/15. At the time of this interview this had not been actioned'."
4.31 During the course of her evidence, it became apparent that a central issue for the claimant, in relation to this claim was the reference in the report to the statement by AB to Midwife SS to the claimant's age and her reference, in particular, to Sister McMechan by the claimant was 'old'. She suggested, in evidence, that this statement by AB to Sister McMechan should have been questioned at that time by Sister McMechan and was an assault on her character by failing to protect her from this allegation by AB. She also contended, by allowing what had been said by the patient in full, including the word old, this should not have been used as part of the evidence contained in the report which recommended disciplinary action by Ms Graham. By including it, the claimant contended, the respondent was agreeing with what the patient had stated and were saying that the claimant was old; and that to allow this statement of the patient, including the word old to be included this whole disciplinary process was thereby tainted by age discrimination. Indeed, the claimant, in her evidence, suggested that a younger person would not have been treated in the same way and went onto allege that 'management thought I was passed my sell-by date'. When this was strongly challenged, in the course of cross-examination, she acknowledged that she had no evidence for this suggestion other than the reference to the inclusion of the word 'old' as part of the evidence included by Ms Graham in her said report, which culminated in the recommendation for disciplinary action to be taken against the claimant. The claimant did not dispute that both Midwife SS and Sister McMechan had accurately recorded what AB had said.
4.32 At the conclusion of her report, Ms Graham stated:-
"In summary, there are concerns:-
"(1) AB alleges that Staff Midwife Hazel McCalister fell asleep and nodded off while receiving one-to-one care in labour.
(2) Staff Midwife JS and Staff Midwife SS verbally report to Sister Jackie Rodgers and Sister Melanie McMechan allegations that Staff Midwife Hazel McCalister allegedly falling asleep and nodding off while providing one-to-one care during labour.
(3) A photograph on two mobile phones seen by Staff Midwife SS and Sister Melanie McMechan of Staff Midwife Hazel McCalister.
(4) The potential impact of Staff Midwife Hazel McCalister allegedly falling asleep influences the patient's expectation and experience of the care received.
Recommendations
I would recommend that formal disciplinary proceedings be instigated for the following breaches under Trust's Policies and Procedures:
(1) Non-authorised sleeping on duty.
(2) Bringing the Trust into disrepute.
NSC - The Code, Professional Standards of Practice and Behaviour for Nurses and Midwives :
(1) Preserve patient and client safety.
(2) Promote professionalism and trust."
4.33 At a meeting on 12 August 2015 attended by the claimant, her union representative and Ms Graham, the claimant was informed of the findings and recommendations by Ms Graham, namely:-
"1. AB alleges that Staff Midwife Hazel McCalister fell asleep and nodded off while receiving one-to-one care in labour.
2. Staff Midwife JS and Staff Midwife SS verbally reported to Sister Jackie Rodgers and Sister Melanie McMechan an allegation of Staff Midwife Hazel McCalister falling asleep and nodding off while providing one-to-one care during labour.
3. A photograph on two mobile phones seen by Staff Midwife SS and Sister Melanie McMechan identify Staff Midwife Hazel McCalister perceived to be asleep. This photograph has potential to enter the public domain and social media.
4. The potential impact of Staff Midwife Hazel McCalister allegedly falling asleep and nodding off -
(a) That AB perceives that Staff Midwife Hazel McCalister asleep and nodding off therefore unable to provide continuous monitoring.
(b) That AB high risk of pregnancy requiring constant monitoring therefore any event/factors which prevent this occurring has potential to affect client safety.
(c) That AB perceived that Staff Midwife Hazel McCalister to be asleep and nodding off while responsible for her care."
Recommendation
This is considered to be a serious allegation. The action recommended is that formal disciplinary proceedings be instigated for the following breaches under the Trust Disciplinary Procedure:
Gross misconduct
1. Unauthorised sleeping on duty.
2. Bring the Trust into disrepute.
NMC Code of Professional Standards of Practice and Behaviour of Nurses and Midwives
1. Preserving patient and client safety.
2. Promoting professionalism and trust."
4.34 Both Ms Graham, the author of the report, who made the said recommendation of formal disciplinary action, together with Ms Boreland, who reviewed the findings, together with the supporting evidence, that came with the report, were satisfied that there was enough contained therein to warrant this matter going to a disciplinary hearing. In essence, both were satisfied that 'there was a case to answer'. This was the test set out in the respondent's disciplinary procedure ( Paragraph 6.3(a)). Both strongly refuted the suggestion put to them during the course of cross-examination, that recommending such action was an act of age discrimination. It was not disputed that AB had, in the course of her statements, referred to the claimant's age, as set out previously. However, she had not in her statement, and, in particular, in her interview with Ms Boreland, given age as the reason for the claimant sleeping/nodding off.
The claimant was adamant, in the course of her evidence, that a younger person would not have been the subject of a recommendation for disciplinary hearing where a complaint/allegation had been made of sleeping and/or nodding off when looking after a patient but she was unable to provide any evidence that such an allegation would not have been similarly treated, in relation to any midwife of whatever age, given the serious nature of such an allegation when looking after a patient in the Labour Ward, who was due to give birth and was a high risk patient.
4.35 In the course of her evidence, the claimant agreed that she was not making any claim of age discrimination against the members of the disciplinary panel, who held a disciplinary hearing on 19 November 2016 in relation to the following allegations - unlawful sleeping on duty, bringing the Trust into disrepute and preserving patient and client safety and promoting professionalism and trust. The panel considered each of the allegations made against the claimant and concluded that three of the four allegations, as set in 3. above were unproven and recommended and no further action be taken against the claimant. In a letter dated 19 November 2015, sent to the claimant, after referring to the said allegations, it was stated:-
"The panel considered the allegations made against her and concluded three our of the four points were not proven stated, in particular, while there is no evidence presented to the panel that you were sleeping on duty, there is evidence that this was the perception of the patient and her family and therefore could bring the Trust into disrepute. However the patient felt safe and there is evidence that the care provided was of the standard expected of a midwife. Taking account of all the evidence, your previous unblemished professional record and references and support, the panel concludes that no further action is required."
Ms McCloskey, the chairman of the panel, noted, in particular, in regard to this finding in the course of her evidence that, since the photograph remained in the public domain, this could bring the Trust into disrepute.
The claimant, as she was entitled to do, appealed this decision and the disciplinary appeal panel sat on 18 February 2016 and concluded that none of the allegations were proven and there should be no action taken against the claimant. Again, the claimant confirmed, in evidence, that she was not making any claim of age discrimination against the members of the appeal panel in relation to the decision taken by them. At all material times, before the tribunal, the focus of her said complaint was the action of Ms Graham and/or Ms Boreland to recommend disciplinary action, as referred to in the said report following the investigation. In light of the foregoing, it was not necessary for the tribunal to further consider the actions of the disciplinary panel and/or the disciplinary appeal panel, for the purposes of these proceedings.
4.36 The tribunal shares the concern of the claimant of the delay between the incident on 6/7 May 2015 and the conclusion of the investigation and the making of the report by Ms Graham recommending disciplinary action in August 2015. However, it accepts that there were a large number of persons who required to be interviewed for the purposes of making this report and there were the attempts, as referred to above, to obtain the said photograph which resulted in some delay. In addition, the tribunal recognises that this process had to be carried out while relevant members of staff, who required to be interviewed, carried out their normal duties. However, the tribunal has little doubt that, if the process could have been carried out more expeditiously, then the claimant would have suffered less stress. In this context, the tribunal is also aware that, during this period, the claimant had other personal matters to contend with. The tribunal is satisfied that, when the claimant spoke to Ms Boreland on or about 28 May 2015, following the death of a relative, which required her to go to a funeral in Canada, that, during the course of this conversation, Ms Boreland explained that the investigation had not yet been completed at that time. Understandably, in the circumstances, the claimant pressed Ms Boreland for an answer as to what would happen, in particular given she was about to go to Canada for the funeral and would have liked to know before she left. Ms Boreland clearly had sympathy for the position of the claimant and indicated to her that there was a possibility, not a probability as the claimant suggested, that the matter could result in a disciplinary hearing. This response by Ms Boreland was undoubtedly correct and was intended to give the claimant some reassurance, in light of her personal circumstances. However, it had certain dangers where the claimant clearly misunderstood what had been said and has convinced herself, wrongly, that Ms Boreland had said that she would be going to a disciplinary hearing. The tribunal has no doubt that Ms Boreland did not say this, Indeed as a senior and experienced manager, she knew not to say such a thing and, in circumstances where she still awaited the report and recommendation by Ms Graham, following interview with staff, which had not been completed at the time of this meeting with Ms Boreland on 28 May 2015.
5.1 In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision and considering the oral submissions of the representatives, the tribunal reached the following conclusions as set out in the following sub-paragraphs.
5.2 In relation to the issue of the hours owed in October/November 2014, as an act of age discrimination, the said act was 'prima facie' out of time, subject to what is set out below, given the claimant's claim was presented to the tribunal on 29 February 2016. Similarly, the issue of the NMC registration, as an act of age discrimination, which occurred in or about April 2015, was also 'prima facie' out of time, subject to what is set out below. It is correct both these matters related to the actions of Ms Graham the claimant's manager. She was also involved with the issue of the investigation report and recommendations for disciplinary action, arising out of the allegations made by AB, which are also acts of age discrimination relied upon by the claimant and which it was not disputed were not acts which were out of time (see later). The fact Ms Graham was so involved is a relevant factor but not a conclusive factor; and it is also significant that Ms Boreland approved the recommendation for disciplinary action (see Aziz v FDA). The claimant contended all these matters were acts of continuing discrimination, as set out in Hendricks v Commissioner of Police for the Metropolis, and the claims were all therefore in time.
The tribunal concluded that Ms Graham's decision in relation to the hours owed and the NMC registration were one-off acts, albeit with continuing consequences, rather than continuing acts of discrimination establishing something akin to a continuing state of affairs (see Sougrin v Haringey Health Authority [1992] IRLR 416). Therefore the said claims relating to each of those matters were out of time.
5.3 If the claims relating to the hours owed and the NMC registration were therefore out of time, it was necessary for the tribunal to consider whether time should be extended on 'just and equitable grounds'. Having regard to the guidance set out in Paragraph 3.15 of this decision, the tribunal was not satisfied time should be extended. There was nothing to prevent the claimant bringing her claim in relation to either of these matters in time. She clearly decided not to do so at the material time and only decided to raise these complaints when faced with the serious allegations of sleeping on duty and the subsequent investigation and disciplinary process. She decided not to pursue these matters, probably because she is not confrontational by nature, but this did not, in the tribunal's view, allow an extension on just and equitable grounds.
5.4 However, if the tribunal is wrong in relation to the said claims, relating to the hours owed and/or the NMC registration, the tribunal could find no evidence that the decisions taken were because of the claimant's age and the tribunal was satisfied, in light of its findings of fact, Ms Graham would have taken the same decision in similar circumstances in relation to any of the staff for whom she was responsible whatever their age.
5.5 In relation to the claimant's claim of bullying against Ms Graham, an account of her age, this, in essence, was a claim of harassment on the grounds of age and, indeed, focused on her manner when handling the out of hours issue the NMC registration issue, and in relation to the investigation and recommendations made by her arising from the allegation/complaint of sleeping on duty. Not without some hesitation, the tribunal was prepared to accept that, in relation to this claim of harassment on the grounds of age, the claimant had established a continuing state of affairs and therefore continuing discrimination in relation to this issue. It was apparent from the tribunal's findings of fact, Ms Graham's manner was consistent throughout the material period and the said claims were therefore in time. However, the tribunal was satisfied that, although Ms Graham's manner could be the subject of some criticism in respect of her handling of each matter, as found by the tribunal, it did not amount to bullying or harassment. It was typical of her blunt/brusque/forceful management style and would have been the same for all her members of staff, whether young or old, and, in the circumstances, did not amount to harassment on the grounds of the claimant's age (see further Richmond Pharmacology Ltd).
5.6 In relation to the claimant's claim for age discrimination, arising from the investigation and recommendation for disciplinary action the tribunal is satisfied the reason for the investigation and the recommendation for disciplinary action, following the complaint/allegation of AB that the claimant was sleeping/nodding off on duty, was for the reasons set out in Ms Graham's report and approved by Ms Boreland, both of whom were not significantly younger then the claimant (see further Paragraphs 4.33/4.34 of this decision). This claim was not out of time as the complaint/allegation was made in May 2015 and the appeal process concluded on or about 18 February 2016. It was a very serious allegation which had to be investigated. Given what the patient had alleged and what was set out in the report, following investigation by Ms Graham, the tribunal is of the view that Ms Graham and Ms Boreland, as senior managers in the Labour Ward, could not be faulted for deciding there was a 'case to answer'. In doing so the tribunal is satisfied the claimant's age played no part in their decisions and each of them would have taken the same decision if the same allegation had been made against any member of the midwife staff, of whatever age. It is correct that the patient, AB, had referred to the claimant as 'old' and 'aged 61', in the course of making the allegation. However, this was not said by Ms Boreland or Ms Graham. In the judgment of the tribunal it would not have been for either of them to 'redact' what had been said by AB, when investigating the complaint/ allegation; and it therefore had to be part of the evidence to be so. The reference to age was not made by either Ms Graham or Ms Boreland; but solely by AB, the patient (see further CLFIS (UK) Ltd v Reynolds). In the judgment of the tribunal, in light of its findings of fact, there was no evidence that these references to age were the reason for their said decision, but were for the reasons referred to above.
5.7 In light of the foregoing and having carefully considered the evidence given by both the claimant and the respondent, the tribunal, having reminded itself, as set out in Curley v Chief Constable of the Police Service of Northern Ireland and Another, that the focus of this claim was on a claim of age discrimination/ harassment, concluded the claimant had not shown sufficient or any evidence, for the reasons set out above, from which the tribunal could conclude the claimant had been discriminated against and/or harassed on the grounds of her age.
6. The claimant's claim is therefore dismissed.
Employment Judge
Date and place of hearing: 21 - 24 November 2016, Belfast
Date decision recorded in register and issued to parties: