Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF: 2824/16IT

 

 

CLAIMANT: Laura Clough

 

 

RESPONDENT: Education Authority

 

 

DECISION

The unanimous decision of the tribunal is as follows:-

1.               that the claim against the respondent was brought within the statutory time limit and the tribunal therefore has jurisdiction to hear the claim; and

2.               that the claimant was not discriminated against on the grounds of maternity leave and her claim of sex discrimination on maternity grounds is therefore dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Turkington

Members: Mr H McConnell

Mrs J Foster

 

 

Appearances:

 

The claimant appeared and was represented by Mr Wooldridge, a friend.

 

The respondent appeared and was represented by Ms R Best, Barrister-at-Law, instructed by the Education Authority Solicitors

The Claim

 

1. The claimant's claim was of discrimination on the grounds of maternity leave under article 5A of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) ("the SDO").

 

The Issues

 

2. The agreed issues for the tribunal to determine were as follows:-

 

 

Legal Issues

(i)         Was the claimant treated less favourably under article 5A of the SDO on her return from maternity leave in May 2016?

 

(ii)        Is the claimant's claim relating to her return from maternity leave (11 May 2016) and lodged 30 November 2016 presented within the prescribed time and if not is it just and equitable for the tribunal to extend time?

 

(iii)       If the tribunal determine that the acts of discrimination are continuing acts of discrimination, is the reason for the variation of hours in June and September due to the claimant's maternity leave?

 

Factual Issues

(i)         What was the reason for the hours of work allocated to Child 1 being unavailable to the claimant on her return to work in May 2016?

 

(ii)        What was the reason for the change of hours in June 2016?

 

(iii)       What was the reason for the change of hours in September 2016?

 

(iv)       Did the claimant on signing the variation form in September 2016 agree that the reduction in hours suited her as her husband started work at 1.00 pm?

 

(v)        Did the claimant mitigate any loss by applying for redeployment opportunities?

Sources of Evidence

 

3.             The tribunal read witness statements from the claimant and from Louise McMillen Senior Executive Officer, Brooklands Primary School and Catherine Murray, Acting Senior Administrative Officer, Human Resources on behalf of the respondent. Each of these witnesses attended the hearing and were cross examined by the other party.

 

4.             The tribunal also received a very short written statement on behalf of the claimant from Lisa Bruce. This was in the form of an email. Ms Bruce was not available to attend the hearing. The respondent objected to her evidence being admitted in such circumstances. However, the tribunal determined that Ms Bruce's email, which had already been read by the tribunal, should be admitted, but that very little weight could be afforded to that evidence as Ms Bruce was not made available for cross examination.

 

5.             The tribunal was also referred to a number of documents in the agreed tribunal.

 

Findings of Fact

 

6. Having considered the evidence given by all the witnesses and the content of relevant documents referred to by the parties, the tribunal found the following relevant facts:-

 

(1)        The claimant's employment with the respondent began on 25 November 2013. She was employed in Brooklands Primary School, Dundonald, as a temporary Classroom Assistant and Supervisory Assistant initially working 20 hours + 5 hours, the latter in the supervisory capacity.

 

(2)        The claimant was initially providing maternity cover for another classroom assistant. She was engaged as a Special Needs Assistant and was assigned to a particular child referred to in this decision as Child 1. Subsequently, the classroom assistant for whom the claimant was employed to provide cover took a career break and the claimant's temporary appointment was therefore extended. The claimant's hours were also increased to 25 hours as a classroom assistant plus 5 supervisory hours.

 

(3)        The claimant earned £9.45 per hour as a classroom assistant and £6.88 per hour as a supervisory assistant.

 

(4)        The respondent's Statement of Main Particulars of Terms and Conditions of Employment for Classroom Assistant - Special Educational Needs Option 2 issued to the claimant contained the following relevant term:-

 

"Your initial working week is ... hours. Throughout the course of your employment your weekly number of hours will be subject to review and if necessary variation."

 

The Job Description for the post held by the claimant also indicated that:

 

" this may be subject to extension or may be reduced for any valid reason"

 

The claimant accepted under cross examination that it was normal for the hours of a classroom assistant to be varied in line with the funding allocated to a particular child and the school.

 

(5)        The tribunal was referred to a number of other examples of Variation of Contract forms completed by other classroom assistants confirming reductions in hours. For example, Susan Myles accepted a reduction of hours from 25 hours to 15 hours per week effective from 27 August 2015 and Karen Surgeonor accepted a reduction in hours from 25 hours to 20 hours per week at the same time. In both cases, these reductions were accepted unconditionally.

 

(6)        From November 2014, Child 1, to whom the claimant was assigned, was no longer present in the school as he was attending a specialist unit on a trial basis. Since there was a possibility that he might return to the school, the funding allocated for special needs support to Child 1 was retained and accordingly, the funding for the claimant's post continued.

 

(7)        At this time, the claimant was regarded by the respondent as "floating" whilst Child 1 remained away from the school. The claimant's evidence is that, from the beginning of 2015 until she went on maternity leave in May 2015, in practice she spent most of her working time assisting a child referred to as Child 2. The tribunal considered the claimant's evidence on this matter to be straightforward and credible. The respondent did not accept that the claimant was allocated to Child 2, although Louise McMillan accepted under cross examination that it is possible that, in practice, the claimant spent most of her time during this period working with Child 2. In her email dated 23 March 2017, submitted as a witness statement by the claimant, Lisa Bruce indicates that the claimant worked with Child 2 until she left on maternity leave. The tribunal afforded limited weight to this statement from Ms Bruce as she was not available for cross examination.

 

(8)        Nevertheless, taking account of all the available evidence on this point, the tribunal accepts the claimant's evidence which was corroborated to a limited extent by the written statement from Lisa Bruce and not contradicted by the evidence of Louise McMillen. The tribunal therefore finds as a fact that, in practice, the claimant worked mostly with Child 2 in the 4 or 5 months immediately preceding her maternity leave.

 

(9)        However, the tribunal also accepts the respondent's evidence that the formal position was that the claimant remained assigned to Child 1 who was still nominally on the school's roll.

 

(10)     In March 2015, the claimant completed a Maternity Application Form indicating that she intended to commence maternity leave on 21 May 2015 taking
52 weeks and with a planned return date of 20 May 2015. In the event, the claimant suffered a pregnancy related illness towards the end of her pregnancy and had to go on sick leave. This resulted in an adjustment to the dates of the claimant's maternity leave so that her expected date of return to work became 16 May 2016.

 

(11)     During the claimant's maternity leave, there was no contact whatsoever from the school to the claimant. On one or two occasions, the claimant paid a social visit to the school with her baby.

 

(12)     On 9 February 2016, whilst the claimant was on maternity leave, Child 1 was formally transferred from the school to a specialist unit. Therefore, from this date, the funding for special needs support and for supervisory hours for this child ceased.

 

(13)     In February of each year, the respondent commences a redeployment procedure for classroom assistants who require to be redeployed. For the most part, these are assistants who have been assigned to pupils who are in primary 7 and who will therefore be moving on to secondary education at the end of the school year. However, Catherine Murray accepted in her evidence that the process could be used for other assistants who required redeployment.

 

(14)     During the claimant's maternity leave another classroom assistant Susan Myles was assigned to Child 2 who was allocated 15 hours of support per week.

 

(15)     Shortly before the date on which she was due to return to work, the claimant visited the school on 11 May 2016 to find out which class she would be working in. The claimant had a conversation with Louise McMillan about her return to work. There was some dispute about what exactly was said during this conversation. It was agreed that Ms McMillan had explained that Child 1 had now formally left the school and this had meant that the funding for his hours of support had ended. She offered the claimant 12.5 hours per week saying that this was all that was available. Ms McMillan explained that the claimant's supervisory post of 5 hours would be made redundant and she would receive a redundancy payment for this.

 

(16)     The claimant's evidence was that Louise McMillan confirmed that her pay would continue unchanged, that is that she would be paid for 25 hours per week although only working 12.5. The evidence of Louise McMillan was that she did not and could not have given this assurance as she had no authority to do so. On balance, the tribunal found Louise McMillan's evidence on this point to be straightforward and credible and the tribunal accepts her account that she gave no assurance that the claimant would continue to be paid for 25 hours.

 

(17)     The claimant returned to work on 16 May 2016 as planned and began working 12.5 hours per week in a P1 classroom. At this stage, no formal variation form was submitted by the school. Rather, a letter was sent by the Principal to the respondent which stated that the claimant:

 

" has changed her hours to 12.5 per week from Monday 16 May 2016".

 

In reply, Stephen Walsh of the respondent's HR department wrote to Louise McMillan asking:

 

"why are her SEN Classroom Assistant Hours decreasing? Also why is her Supervisory Assistant Post terminating? Has the Principal carried out the "Three Step Procedure"? Is he aware that she has more than two years' service in this post and is therefore due redundancy?"

 

(18)     At this stage, the school appears to have regarded the claimant as allocated to Child 3, although the claimant's evidence was that she was not aware of this.

 

(19)     Under the respondent's redeployment procedure for classroom assistants whose posts were due to end, vacant posts remained embargoed from being publicly advertised until after 25 May 2016.

 

(20)     The claimant received her pay slip on 3 June 2016 which showed pay for 12.5 hours per week and that she had not yet received the redundancy payment in respect of the supervisory post.

 

(21)     On 16 June 2016, the claimant wrote a letter of complaint which was hand delivered to the respondent's offices in Dundonald that same day. This letter was date stamped as having been received in HR on 4 July 2016. In this letter, the claimant refers to the conversation with Louise McMillan on 11 May and complains about the reduction in her hours to 12.5 hours per week. The claimant made it clear that she was seeking to resolve an issue relating to her return to work after maternity leave.

 

(22)     Towards the end of the school term on 30 June 2016, there was a further conversation between the claimant and Louise McMillan about another change in the claimant's hours. On this occasion, the claimant was offered 10 hours per week working with Child 4 in primary 4.

 

(23)     The claimant received a redundancy payment of £321.09 in respect of her supervisory assistant post on 1 July 2016.

 

(24)     On 12 August 2016, Louise McMillan sent the claimant a text in the following terms:

 

" Hi Laura, sorry to bother you over the summer but was just wondering if you had a chance to think about the 10 hours classroom assistant......."

 

The claimant's response was as follows:

 

"Oh no problem. I was away in England the week you had said to call in. Well after talking with [my husband] 10 hours is better than none lol. Just have to work out times as he starts at 1 each day in his work now. Xo"

 

This text conversation then ended with Louise McMillan replying:

 

" No probs ..... you're in ..... class with [Child 4] see you soon x"

 

(25)     The respondent has sought to argue that the reduction in hours suited the claimant due to her husband starting work at 1pm. The tribunal does not accept that this is borne out by the content of this exchange of texts. The tribunal believes it is clear from this exchange that the claimant was reluctantly resigned to this change.

 

(26)     On her return to work at the end of the summer holidays, the claimant began working 10 hours per week with Child 4. On 8 September 2016, the claimant signed a Variation of Contract Form. In this form, she ticked the box to select the following option:-

 

"I confirm that I wish to accept the variation of contract offered to me as detailed above. However, as it remains my preference to obtain a post at my current level of hours, I will complete a Redeployment Application Form and request that I be advised of alternative potential redeployment opportunities until 30/06/17. I understand that after this date I will have automatically accepted this Variation of Contract."

 

Therefore, the tribunal regards this as once again confirming that the claimant's acceptance of this variation was reluctant.

 

(27)     Having received no response whatsoever to her previous letter of complaint dated 16 June 2016, the claimant wrote a further letter of complaint to the respondent dated 23 September 2016. The claimant also followed this up with phone calls to HR.

 

(28)     From 10 October 2016, the claimant went off on sick leave due to work related stress.

 

(29)     On 9 November 2016, Catherine Murray of the respondent's HR Department wrote to the claimant to acknowledge the claimant's letter of complaint and to indicate that she was obtaining all the information required to respond to the issues raised. That same day, Mrs Murray spoke to the new Principal of the school and Louise McMillen by phone. Mrs McMillen referred to the text she had received from the claimant which she interpreted as indicating that the claimant was happy to reduce her hours as her husband now started work at 1.00 pm.

 

(30)     Around this time, the claimant reached the decision that she no longer wanted to return to Brooklands Primary School.

 

(31)     On 23 November Catherine Murray wrote a more substantive response to the claimant. This referred to posts available in 5 local schools which Mrs Murray believed the claimant had expressed an interest in. The claimant was asked to complete a Redeployment Application form so this could be taken forward. Mrs Murray also confirmed that Priory College were willing to consider the claimant's application.

 

(32)     The claimant then submitted the application form to Catherine Murray. Due to the very short time-scale, the claimant, in error, had omitted to include her SEN experience. Mrs Murray contacted the claimant to highlight this and to suggest that her application would have more chance of success if the claimant included this.

 

(33)     The claimant's application to Priory College was not successful.

 

(34)     Save for the application to Priory and one other application to Women's Aid in Bangor, the claimant has not made any other job applications since her return from maternity leave.

 

(35)     The claimant submitted her claim to the tribunal office on 30 November 2016.

 

(36)     The tribunal bundle included a letter from the claimant's GP setting out a list of her contacts with the surgery from October 2016 onwards. This shows a number of telephone and surgery consultations commencing on 6 October 2016, but there was no evidence of the matters which were the subject of these consultations. There was no evidence before the tribunal that the claimant had consulted her doctor about the reduction in her hours in May 2016 or September 2016.

 

Statement of Law

Whether claim was presented in time

7.1 The Sex Discrimination (Northern Ireland) Order 1976, as amended ('the SDO")

 

Article 76 provides:-

 

" (1) A n industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of

 

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

 

...

 

(5) A tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

(6) For the purposes of this Article —

 

(a) .......... , and

 

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

 

(c) ... ."

 

7.2          In this case, the claimant argued that there was a continuing series of discriminatory acts up to and including the reduction of hours in September 2016 so that the claim presented on 30 November 2016 was in time. In the case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, it was held that the claimant must 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 amounting to 'an act extending over a period'. It was also held that in seeking to distinguish between a continuing series of acts and a series of one off incidents, 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. An ongoing policy, rule, practice, scheme or regime are examples of 'an act extending over a period'.

7.3 In the case of Bahous v Pizza Express Restaurants UKEAT/0029/11/DA , the EAT accepted that a grievance process carried out by an employer arising from an act of discrimination could form part of a continuing act of discrimination against the claimant.

 

In determining whether there is a continuing series of acts of alleged discrimination and hence whether the claim is in time, the test to be applied by the tribunal is:-

 

" ... the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426 at paragraph 17." (see Aziz v FDA [2010] EWCA Civ 304 per Jackson LJ)

 

7.4 If the tribunal determines that the claim has been brought out of time, it is then necessary for the tribunal to consider whether it is just and equitable to extend time.

 

The relevant principles were summarised in the judgment of Mrs Justice Laing in the case of Miller and Others v Ministry of Justice and Others [UKEAT/0003/15] 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.)

 

7.5 The ' Keeble Guidance' 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 multifactorial assessment where no single factor is determinative."

 

Direct discrimination - Article 5A of the SDO

 

8.             Article 5 A of the SDO provides as follows:-

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

 

(a) . . . ; or

 

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

 

Burden of Proof

 

9.             Article 63 A of the SDO which applies to the employment provisions of the SDO states as follows :-

 

"Burden of proof: industrial tribunals

 

63A. — (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

 

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

 

(a) has committed an act of discrimination [or harassment] against the complainant which is unlawful by virtue of Part III, or

 

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination [F2 or harassment] against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

10.          In the case of Igen v Wong [2005] EWCA Civ 142, [2005] IRLR 258, [2005] ICR 931, the English Court of Appeal approved, with certain minor modifications, the general guidelines laid down in the previous case of Barton as to the impact of provisions relating to direct discrimination. The Court of Appeal confirmed that a two-stage process is required of tribunals in cases where direct discrimination is alleged. First, the claimant has to prove facts from which the tribunal could conclude there had been unlawful discrimination . Once the tribunal is satisfied on that basis, the burden of proof shifts to the respondent (employer) who has to show that he did not commit (or is not to be treated as having committed) the unlawful act. In considering whether the claimant has proved facts from which the tribunal could conclude that the respondent had committed an act of unlawful discrimination, the tribunal can draw appropriate inferences from the primary facts. In considering what inferences it is appropriate to draw from the primary facts, the tribunal should proceed on the basis that there is no adequate, non-discriminatory explanation for those facts.

11.          The approach which a tribunal should take to the burden of proof was further clarified by the Court of Appeal in the case of Madarassy v Nomura International PCL 2007 IRLR 246 where Mummery LJ stated as follows:-

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

12.          In the case of London Borough of Islington v Ladele 2009 ICR 387 (upheld by the Court of Appeal), the EAT provided the following guidance:-

"(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] ICR 877, 884E - "this is the crucial question". He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

 

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.886F) as explained by Peter Gibson LJ in Igen v Wong [2005] ICR 931, para 37.

 

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

 

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

 

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

 

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne Wilkinson pointed out in Zafar v Glasgow City Council [1997] ICR 120:

 

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

 

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

 

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] ICR 897 paras.28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

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

 

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ashan [2008] ICR 82, a case of direct race discrimination by the Labour Party. ........."

 

Conclusions

 

Whether claim is in time

 

13.          In her claim to the tribunal, the claimant refers to a number of matters. These began with her visit to the school on 11 May 2016 when she was told that her hours would be reduced on her return to work. She also mentioned an issue with her wages paid on 16 June 2016 and her letter of complaint to the respondent that same day. In addition, the claimant complains that she never received a reply to this letter of complaint. The claim form also contains reference to a further discussion regarding hours of work at the end of June when the claimant was asked to consider her position over the summer. The claimant also mentioned that she began working 12.5 hours per week in September 2016 and sent a further letter of complaint to the respondent on 23 September 2016. The claim form was lodged on 30 November 2016.

 

14.          The tribunal looked at these matters in the round and applied the relevant legal principles as set out above. The tribunal concluded that this claim was not focused on a number of one off incidents. Rather, the claim as set out in the claim form raised various matters spanning a period of time beginning in May 2016 and continuing until September 2016. The tribunal considered that this was a series of actions which amounted, on the claimant's case, to an ongoing state of affairs. That being the case, the tribunal determined that the claimant's claim was in time and that it therefore had jurisdiction to hear the claim.

 

Discretion to extend time

15.          Had the tribunal concluded that the claim (or at least that element of the claim relating to events in and around May 2016) was out of time, contrary to the conclusions set out above, the tribunal would not have been inclined to exercise its discretion to extend time. This was on the basis that the tribunal considered that the claimant had failed to show that it was just and equitable to extend time for submission of the claim.

 

Direct discrimination on grounds of maternity leave

 

Reduction in hours in May 2016

 

16.          The tribunal reviewed carefully the events which occurred in and around the claimant's return to work from maternity leave. Originally, the claimant was working 25 + 5 hours per week in a post funded by the hours allocated to Child 1. From the facts found, there was certainly a significant reduction in the claimant's working hours on her return to work from maternity leave in May 2016. In line with the factual issues identified by the parties for determination by it and the relevant legal principles as outlined above, the tribunal found it helpful to focus on the reason behind this change.

 

17.          The tribunal began by considering the reason why the hours previously allocated to Child 1 were no longer available to the claimant on her return to work. The tribunal found that the claimant remained formally assigned to Child 1 when she went on maternity leave. On the basis of the evidence it heard, which was not seriously challenged by the claimant, the tribunal was satisfied that the reason why these hours were no longer available on the claimant's return to work was that the funding for hours of support for Child 1 was no longer allocated to the school. This in turn was simply because Child 1 had left the school in February 2016 and moved to another setting. This would have occurred whether or not the claimant was in school at that time. The claimant herself had candidly accepted that it was normal for the hours of a classroom assistant to be varied, down as well as up, in line with changes in funding and the allocation of support hours to particular children. Evidence was also produced to the tribunal of a number of other instances when the hours of classroom assistants were reduced. There was nothing to suggest in these other cases that maternity leave had been a relevant factor.

 

18.          On the basis of its findings of fact, the tribunal accepted that the reason why the claimant's original working arrangements were no longer available to her on her return was simply that the child she had been allocated to have left the school and hence the hours which had previously funded her post were no longer available.

 

19.          In line with the guidance in the Ladele case, the tribunal was satisfied that this was a case in which it was appropriate for the tribunal to focus on the reason for the treatment of the claimant as this was indeed the crucial question in the case. The claimant did not prove primary facts from which inferences could be drawn that maternity leave was one of the reasons for the change in the claimant's hours. The tribunal was clear that the reasons for that treatment were non-discriminatory reasons which could have and did affect other classroom assistant. Therefore, the tribunal was satisfied that the claimant was not subjected to direct discrimination by reason of maternity leave in respect of the changes to her working hours in May 2016.

 

Proposed changes to hours at end of June 2016

 

20.          The tribunal then turned its attention to the further discussion between the claimant and Louise McMillen at the end of June 2016 regarding the claimant's hours of work from September 2016. At this stage, the claimant was told that her hours would be further reduced from 12.5 hours to 10 hours.

 

21.          In accordance with the agreed factual issues, the tribunal considered the reason for this further change in hours. In the period between her return from maternity leave on 16 May 2016 and the end of the school term on 30 June, the claimant was working in a Primary 1 class. The respondent regarded her as allocated to Child 3, although the claimant was unaware of this particular allocation. There was limited evidence available to the tribunal as to the specific reason for the further change from September, save that it was clear that the postings and hours of classroom assistants were generally reviewed at that time of year and the tribunal did see examples of other changes to the hours of classroom assistants in the school at that time. No specific evidence was produced to show that the claimant was treated less favourably than other classroom assistants in the course of that review.

 

22.          On the basis of the available evidence, the tribunal has concluded that the reason for the further proposed change in the claimant's hours at the end of June 2016 was the general review of classroom assistant hours which occurred at the end of every school year resulting from children moving on from the school and consequent changes of funding and so on.

 

Change in hours September 2016

23.          In September 2016, the claimant began working 10 hours per week. This was in line with the offer made by Louise McMillen to the claimant at the end of June and which was the subject of the exchange of texts between those parties in August. The tribunal has found as a fact that this change was reluctantly agreed by the claimant. This was confirmed by the Variation of Contract form signed by the claimant in which she ticked the box to confirm that her chosen option was to accept the variation, but she still wished to obtain a post at her original level of hours. Through her text reply to Louise McMillen on 12 August and the Variation of Contract form, the claimant was, in the opinion of the tribunal, indicating no more than that the hours offered were "better than nothing".

 

24.          The factual issues for determination by the tribunal included the question whether the claimant on signing the variation form in September 2016 had agreed that the reduction in hours suited her due to her husband starting work at 1pm. The tribunal has found as a fact that the claimant's acceptance of the reduction in hours was reluctant. The tribunal found no evidence to indicate that the reduction in overall hours suited her. The claimant did, however, indicate in her text to Louise McMillen that precise details of working times would have to be worked out.

 

25.          Essentially, the hours the claimant worked from September 2016 were those offered to her by Louise McMillen at the end of June and reluctantly accepted by her. Therefore, the operative reason behind those arrangements remained the general review and reallocation of classroom hours which occurred at the end of every school year.

 

Mitigation of loss by the claimant

 

26.          The claimant accepted in evidence that the only alternative posts which she had applied for were the post in Priory College and a job in Women's Aid in Bangor. Both applications were unsuccessful. The claimant remained absent on sick leave at the date of the tribunal hearing.

 

27.          The tribunal had some sympathy with the claimant's annoyance and frustration regarding the manner in which her return to work and her letters of complaint had been handled by the respondent. The tribunal considered that this fell short of good practice and we return to this point below.

 

28.          However, in light of the facts found regarding the claimant's failure to engage with the respondent's redeployment process, the tribunal had little alternative but to conclude that the claimant failed to discharge the onus on her to seek to mitigate the financial loss arising from the reduction in her working hours.

 

Good HR practice

29.          Whilst it has not found that the claimant was subjected to direct discrimination, the tribunal nevertheless considered that there were a number of areas in this case where the respondent's treatment of the claimant fell short of good HR practice. For instance, the lack of any contact from either the school or HR to the claimant during her maternity leave. The claimant returned to work on the exact date given as her return date in her application for maternity leave. This seems to have come as something of a surprise to the school. It was left to the claimant to come into the school shortly before her planned date of return to work to enquire about arrangements for her return.

 

30.          In her claim to the tribunal, the claimant did not raise any issue about the respondent's response to Child 1 leaving the school in February 2016 and, in particular, the respondent's apparent failure to consider the potential impact on the claimant who was on maternity leave. Accordingly, this issue was not before the tribunal and the tribunal makes no further comment save to say that this is another aspect of the case where the respondent's handling of the matter appears to have fallen short of best practice.

 

31.          The respondent also accepted that the claimant did not receive even an acknowledgement of her letter of complaint dated 16 June 2016 (stamped as received by the respondent on 4 July 2016). The evidence of Catherine Murray was that the delay was due to the workload within HR, the holiday period and so on. The tribunal found Mrs Murray to be an entirely straightforward witness and it accepted that there was no discriminatory reason for the failure to respond to the claimant's complaint. However, the tribunal does consider that the handling of the claimant's written complaint falls far short of the standards of best practice for an employer of this size and resources.

 

Overall conclusions

32.          The tribunal's overall conclusion is that the reasons for the various reductions in the claimant's working hours, which were the main subject matter of this claim, were non-discriminatory reasons. Accordingly, the tribunal has concluded that the claimant was not subjected to direct discrimination on the grounds that she had exercised her right to take maternity leave. The claimant's claim is therefore dismissed in its entirety.

 

 

Employment Judge:

 

 

Date and place of hearing: 14 and 15 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: