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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hanna v Odyssey Travel (NI) Limited & Anor (Discrimination - Sex) [2018] NIIT 02890_17IT (03 July 2018)
URL: http://www.bailii.org/nie/cases/NIIT/2018/02890_17IT.html
Cite as: [2018] NIIT 02890_17IT, [2018] NIIT 2890_17IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2890/17
CLAIMANT: Zowie Ashleigh Hanna
RESPONDENTS: 1. Odyssey Travel (NI) Limited
2. John Lynn
DECISION
The unanimous decision of the tribunal is:-
(1) the claimant was sexually harassed by the respondents and each of them, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and the Tribunal Orders the respondents, jointly and severally, to pay to the claimant the sum of £4,393.64, by way of compensation.
(2) The claimant was not directly discriminated against by the respondents and each of them, pursuant to Article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr A. Huston
Mrs A Gribben
Appearances:
The claimant was represented by Mr K. Denvir, Barrister-at-Law, instructed by Campbell Stafford Solicitors.
The respondent was represented by Mr R. Cushley, Barrister-at-Law, instructed by Joseph F McCollum and Company Solicitors.
Reasons
1.1 The claimant presented her claim to the tribunal on 22 May 2017, in which she made a claim against the respondents and each of them of sexual harassment and/or direct sex discrimination, pursuant to the Sex Discrimination (Northern Ireland) Order 1976. The respondents presented a response to the tribunal on 5 July 2017, denying liability for the said claims of the claimant.
1.2 At the commencement of the substantive hearing in this matter, the claimant's representative confirmed that the claimant was making a claim, by way of remedy, for compensation for injury to her feelings but also for personal injury. In relation to the claimant's claim for personal injury, the claimant relied on a report by Dr Alan Black, consultant in occupational medicine, dated 20 June 2017. The tribunal admitted, by consent, the said report in evidence, on application by the claimant's representative, without formal proof; but subject to the caveat, which the tribunal emphasised to the said representatives, in relation to the weight, if any, the tribunal might give to such a report, so admitted, which might be limited in the absence of any cross-examination by the respondents' representatives.
1.3 The tribunal heard oral evidence from the claimant and, on behalf of the claimant Ms F. Beattie; and, on behalf of the respondents, the second respondent.
1.4 It was not disputed by the respondents' representatives that, if the claimant was discriminated against and/or was harassed by the second respondent, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order), the first respondent was vicariously liable for the acts of the second respondent, for the purposes of Article 42 of the 1976 Order (see later).
2.1 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 oral and written submissions of the representatives, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as relevant and necessary for the determination of the claimant's said claims.
2.2 The claimant holds a BSc in travel and tourism from the University of Ulster and had some eight years' experience in the travel agency business, prior to her employment with the first respondent. The claimant had an informal interview with the second respondent, the managing director and co-owner with his wife of the first respondent, on 3 February 2017. Following the said interview, she was offered by the second respondent the position of a travel consultant (sales) commencing on 4 February 2017. A probationary period of three months was not discussed during the course of the said interview; albeit it was noted by the second respondent in his diary of the 4 February 2017, the day the claimant commenced employment, that the claimant was employed, subject to such a probationary period. On or about 6 March 2017 the claimant was provided with a statement of main terms of employment, which contained the following term:-
"You are employed on a probationary period of three months during which time your performance will be assessed. The company reserves the right to extend the period at its absolute discretion. Your employment may be terminated by either party at any time during this period (or an extended period were applicable) by giving the notice detailed in the notice section."
2.3 The said statement of main terms of employment also provided, insofar as relevant and material:-
(i) "Notice ...
The company has the right to terminate your employment without notice of payment in lieu of notice in the case of gross misconduct."
(ii) "Disciplinary
The company's rules on the disciplinary procedure are shown in the Employee Handbook. It is your responsibility to familiarise yourself with these."
(iii) "Appeal procedure
If you are dissatisfied with any disciplinary decision taking against you, you should raise this with the managing director. Further details of the procedure as set out in the Employee Handbook."
(iv) "Grievance procedure
If you wish to raise any grievance relating to your employment, you should do so with the managing director. Further details of the grievance procedure as set out in the Employee Handbook."
The Employment Handbook, which was printed in or about February 2017, contained, as referred to in the said statement of main terms of employment, a detailed grievance, disciplinary procedure and an equal opportunity statement. However, the tribunal is satisfied the Handbook was not issued to the staff of the first respondent, including the claimant, with the said statement. However, the second respondent retained a "master copy" in his office, which was available to be read by any member of staff or for a copy to be printed off on request; albeit the second respondent had never so informed the staff. Prior to the events of 6 April 2017 (see later), no member of staff had made such a request.
2.4 The claimant is an insulin dependent diabetic, which was known at all material times to the second respondent, and, as a consequence, she is required to eat on a regular basis at scheduled times. She also suffers from a serious bowel condition, which was also known to the second respondent, and which has resulted in a hospital referral and for which she takes medication. This condition is aggravated by stress. On 4 April 2017, the claimant was eating her lunch in the back office/kitchen, when she alleges the second respondent commented to her that "she was eating again and she looked pregnant". The second respondent denies that he made such a remark, when he was passing through to the back office to have a cigarette in the back service yard. The tribunal, having closely observed the second respondent as he gave his evidence, came to the conclusion that the second respondent did make this remark to the claimant and the remark was consistent with his admitted aggressive management style, where he would regularly shout and swear and use inappropriate language at staff and would have no memory of what he had said. The tribunal further accepts that the claimant was very embarrassed, at the time, by the remark, due to her said medical conditions which made her very weight conscious but, in particular, because she was not pregnant and found the remark very offensive in the circumstances.
Later that day, the claimant, due to lack of training, had difficulty in loading a booking on to the computer system for a customer, which the assistant manager Ms J was unable to resolve. During the course of discussion, the second respondent, consistent again with his aggressive management style, which he frequently exhibited during the course of the claimant's employment, angrily came out of his office and swore at the claimant, in front of the customer and members of staff, saying the claimant was stupid and "we (ie the staff) were f......" He promised to provide the claimant with appropriate training the next day but never did. The tribunal has no doubt that such an outburst from the second respondent was a common occurrence and, in the circumstances, gave further support to the tribunal's conclusion, as set out above, in relation to what the second respondent had said to the claimant, as referred to above, earlier that day.
2.5 The claimant did not raise a grievance about these matters; but given any such grievance would have been against the second respondent, the managing director and owner of the first respondent and whose conduct would have been the subject of any such grievance, the tribunal was not surprised, in these circumstances, that the claimant did not do so. In this context, it also has to be remembered that the claimant had not been provided with her own copy of the Employee Handbook at that time. (See before). It is also necessary to note that the claimant, on occasion, had accepted lifts in his car to work from the second respondent, including, in particular, on 6 April 2017, following the said incident on the 4 April 2017. However, the tribunal is satisfied she did so, as a matter of convenience, as she did not drive and public transport was difficult for her and the second respondent, having offered her a lift, she thought it would be bad manners to refuse any such offer. In any event, the claimant made no complaint about the conduct of the second respondent, when giving her a lift to work in his car either on 6 April 2017 or at any earlier time during the course of her employment.
2.6 In or about early April 2017, the first respondent had placed an advertisement, through Job Centre online for a full-time member of staff. The claimant, as part of her work, on instruction from the second respondent, put up holiday offers on the first respondent's Facebook page, in order to encourage business. This practice is common practice in the travel agency business. On or about the 5 April 2017, Ms B contacted the claimant on this Facebook page of the first respondent, enquiring whether there was any part-time role with the first respondent. The claimant asked the second respondent what she should do and he told her that he was not offering any part-time roles in the shop and to so inform Ms B. The claimant did so by way of the said Facebook. However, in addition to telling Ms B there was no part-time role, she also included, on her own initiative, an advertisement for a part-time role in a petrol station. That evening, Ms J, the assistant manager of the first respondent and Ms M, travel adviser in the first respondent attended an Olly Murs concert, which they had won as an award from a tour operator. At the concert, the claimant's Facebook message, in reply to Ms B, was drawn to the attention of Ms J by other members of the travel trade, attending the concert. Ms J considered it was unprofessional to send such an advertisement as a response and it had made her feel uncomfortable and embarrassed at the concert, so that she reported what had happened to the second respondent. The second respondent told Ms J "to clear the air and get it sorted". At the normal staff meeting on the morning of 6 April 2017, following her discussion with the second respondent, Ms J explained to the claimant how she had been very embarrassed at the concert by the reaction of her colleagues in the travel trade about how the claimant had responded to Ms B, as referred to above; and, in essence, she gave the claimant an informal warning not to do anything similar again. The claimant had not understood, at the time of the meeting, what she had done was wrong, as she had followed the second respondent's instructions and was only trying to assist Ms B by referring to the said advertisement. She was therefore upset by the reaction of Ms J; but, on reflection, she acknowledged, in evidence, it might not have been a professional thing to include the advertisement in the circumstances. The tribunal was not satisfied, on the evidence, that the claimant suggested to Ms J, who did not give evidence, what she had done was a joke as alleged by a second respondent, who was not present at this meeting and for which allegation there was no documentation or other evidence.
2.7 Later on 6 April 2017, the claimant asked Ms J, in the open office, for a copy of the company Handbook. Although she had received a copy of the statement of main terms of employment, referring to the company Handbook, as stated above, she had not been given a copy of the said Handbook. The claimant, at that time, was considering taking a holiday and wanted to check about holiday arrangements in the office and, in particular, on what dates the business would be closed over the Christmas/New Year period, as there had been some suggestion, amongst the staff, that the second respondent was intending to close for a lengthy period over that period. Ms J was unable to clarify the position to the claimant; and, as a result, the claimant asked to see the company Handbook, which Ms J was not in the position to provide. The tribunal, however, accepts the claimant, when speaking to Ms J, after she was unable to get the clarification she was seeking, raised her voice in seeking answers to the above matters; but the tribunal is not satisfied, at that stage, the claimant was shouting. The second respondent, who was in an adjacent office, heard the raised voices and the claimant demanding answers about holidays and times of compulsory closure and stormed out of his office, angrily shouting at the claimant. The discussion became more heated, with the claimant also shouting and demanding answers, with hand gestures, in response to the second respondent's said aggressive manner. They moved into the second respondent's office where the master copy of the Handbook was held by him which the claimant was asking to see. The discussion between the claimant and the second respondent culminated in the second respondent dismissing the claimant from her employment with the first respondent.
2.8 The words used by the second respondent, in dismissing the claimant in the course of the above discussion, was a central issue for the tribunal to determine. It was not disputed that he had dismissed the claimant during this discussion but the second respondent tried to suggest, in evidence, that there was no aggression on his part with him providing answers to the claimant's queries about holidays in a calm and measured way. Although the tribunal has little doubt the claimant did raise her voice and shout, as referred to above, it is satisfied the greater aggression and shouting, including hand gestures, was on the part of the second respondent. This was consistent with his said management style and he clearly did not like, in the judgement of the tribunal, the claimant challenging his authority by demanding answers about the holiday arrangements and when the office would be closed over the Christmas/New Year period, if at all. In the circumstances, the tribunal did not accept the second respondent's evidence that he had acted in a calm and measured way during the course of this discussion. The tribunal is further satisfied that, at the conclusion of the discussion, he angrily dismissed the claimant. The claimant immediately left the premises and the tribunal is satisfied that she was clearly very hurt, embarrassed and upset by what had occurred and what had been said and indeed had been somewhat scared by the second respondent's aggression during the course of the discussion; with the result, that the claimant had to be collected by a member of her family in order to return home. However, the tribunal felt the claimant had exaggerated, during the course of her evidence, her reaction to what had occurred and was not as traumatised as she sought to suggest.
In the claimant's diary entry, for the 6 April 2017, there was no express reference to use of any other expression by the second respondent, other than that referred to previously, when he dismissed her. The claimant maintained, which the tribunal accepts, that she had scribbled her diary entry, whilst upset, in a coffee shop near to the first respondent's premises, as she waited to be picked up by a member of her family and pointed out that she had referred in her said diary entry to abusive language and she further suggested, in evidence, she would not put swear words in her diary.
In a letter dated 11 April 2017, the second respondent wrote to the claimant, stating;
"I am writing to you regarding the decision made by myself to dismiss you on Thursday 6 April 2017. I refer to our discussion on date above and I feel you behaved in an unprofessional and highly inappropriate manner and it was at this point that I made the decision to dismiss you from this date.
You are entitled to one week notice period in lieu and payment of week commencing 3 April 2017 for three days and accrued holiday of 4.8 days ..."
2.9 The claimant subsequently obtained alternative employment with another company and the claimant therefore confirmed during the course of these proceedings, that she was not making any claim in these proceedings for loss of earnings.
By dismissing the claimant for her conduct, the second respondent did not identify in his said correspondence the precise conduct of the claimant relied on by him. The second respondent also accepted, in evidence, he did not follow the statutory dismissal procedure when dismissing the claimant. In the Statutory Questionnaire response, the second respondent referred to various matters about the claimant's conduct, including the Facebook posting, her attitude towards the second respondent but also other alleged conduct matters, which were denied by the claimant. But, given the tribunal's decision in this matter, it was not necessary, to consider these other matters further.
2.10 Following her said dismissal, the claimant, on 19 April 2017 wrote to the second respondent, in response to his letter of 11 April 2918 and, in the said letter, in relation to her said dismissal, she stated, insofar as relevant material to these proceedings:-
".... On 6 April at 5.00 pm, while I was in discussion with LJ querying when I would receive a copy of the company Handbook you came out of your office and started shouting at me. As I was asking if I could have a copy of the days in which the premises would throughout the year, you came out in a very irate manner shouting and using bad language and you referred to me as a bitch alongside using other swear words. Then yelling and telling me to get out of the shop now and return the uniform ie one navy dress.
This incident was witnessed by LJ and CM ..."
[It should be noted neither LJ nor CM were called to give this evidence in this matter by either party].
Later in the same letter, there is a further reference to the second respondent, when the claimant stated - "Your abusive and aggressive behaviour against me, culminating and calling me a "bitch" on 6 April ..." In the Statutory Questionnaire dated 11 May 2017, sent to the respondents, the claimant suggested the second respondent used the words "a f.... bitch".
In her witness statement, the claimant referred to the fact the second respondent was "very aggressive and was waving his hands and shouting he had had enough and "get the f... out now, you bitch and return your uniform ..."
Further, in the course of her evidence, to the tribunal, the claimant referred to the second respondent saying "get out now you f...g bitch and return your dress and scarf."
The tribunal has no doubt that the second respondent regularly used swear words/profanities and indeed there was an admitted culture of using such words in the office, permitted by the second respondent.
2.11 In light of the foregoing, the tribunal considered very carefully whether the second respondent, in dismissing the claimant, used the words "bitch" or "f....g bitch", taking into account, in particular, the claimant expressed herself differently, as referred to above, at different times; and indeed did not expressly do so in her note in the diary entry for 6 April 2017. The tribunal accepts that the diary entry was a scribbled note and does refer to abusive language, albeit not expressly stated. Further, the tribunal found it difficult to accept the second respondent's suggestion, in evidence, that he might have used all of the words alleged but with the exception of "bitch". Indeed, given the second respondent's acknowledgement that he would swear and use bad language, despite his position as managing director, the tribunal did not believe that the second respondent would have made such an exception in these particular circumstances. The tribunal concluded he was only seeking to make such an exception, knowing the potential significance of the use of such a word in these proceedings. Although there was inconsistency by the claimant in the precise words used, including the use of the "F word", the tribunal was satisfied that the second respondent did, when dismissing the claimant, did refer to her as a "bitch" and also used the "F word".
Although the tribunal accepted the claimant may have used herself foul language on occasion, it was not satisfied the claimant used the words "F..... C..." as suggested by the second respondent, in relation to Ms B, at the staff meeting on 6 April 2017, in the absence of any other relevant evidence from anyone else present at the meeting and having regard to the strong denial by the claimant that she used such words.
2.12 At the material time, there were no male members of staff, other than the second respondent himself. Apart from the claimant, the other female staff were Ms J and Ms M, together with a female student intern, none of whom were called as witnesses by either party; albeit all would have seen and/or heard some or all of the events on 6 April 2017. The second respondent, in or about April 2015, dismissed a male employee, who was also on a probationary period, "on the spot", with notice, for gross misconduct, due to his dress and attitude to customers. When dismissing this male employee, he also said to the employee "he had had enough"; but in the case of this male employee, the second respondent insisted he had not used any abusive or foul language.
2.13 The tribunal accepts that, on the day of the receipt by the claimant of the respondent's letter, dated 11 April 2017, the claimant received a Facebook "friend" request from the second respondent. However, the tribunal does not find that this request was in fact made by the second respondent, given the access to the said Facebook account of other staff to the said account, which had been set up for the second respondent by his son. The tribunal also took into account that the second respondent rarely, if at all, had made use of the said Facebook page, about which he had limited knowledge and he left its operation to the other members of staff, who used it on a daily basis. In the light of the tribunal's decision in these proceedings, it was not necessary for the tribunal to consider this matter further.
2.14 The second respondent accepted, in evidence, that in the company Handbook, there was a detailed harassment policy, which referred to "creating a harmonious working environment which was free from harassment and in which every employee was to be treated with respect and dignity and that harassment was unacceptable behaviour and would be treated as misconduct." However, the tribunal was not convinced that the second respondent had ever properly considered the terms of the policy, having regard to his own aggressive management style, as referred to previously. Significantly, in the view of the tribunal, the second respondent accepted, in evidence, if the claimant was correct, in relation to the words she says he used when dismissing her, this would violate her dignity but also such offensive language might constitute harassment under the said harassment policy contained in the Employee Handbook.
2.15 Dr Black, as stated previously, prepared a report in relation to the effect on the claimant of what had taken place in relation to her employment with the first respondent, having regard to her various medical conditions. This report was largely based on what the claimant had told Dr Black and the tribunal noted the absence of any reference by Dr Black, who was a consultant in occupational medicine to sight of relevant GP or hospital notes on which he had based his conclusions. The tribunal would normally have expected such a report to have been supported by such records and/or the subject of an additional report by a relevant specialist; and, in any event, the said report would have been formally proved by Dr Black and being the subject of cross examination. His conclusions in relation to the effect on the claimant, subject to the foregoing, were wide ranging and, potentially, outside his expertise and largely based on what the claimant, told him, without any other relevant supporting medical evidence. In the circumstances, the tribunal was not prepared to rely upon the said report in the circumstances and, in particular, where the respondent's representative had not had an opportunity to cross examine Dr Black. Therefore, the tribunal was not prepared to consider the
claimant's claim for personal injury and decided it should confine itself to the claimant's claim for injury to feelings, if applicable. (See later).
Relevant Law
3.1 The Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) provides, insofar as relevant material:-
Article 3(2) in any circumstances relevant for the purposes of any provision of this order ... a person discriminates against a woman if -
(a) on the ground of her sex, he treats her less favourably than he treats her would treat a man"
Article 8:-
"... (2) it is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her -
(a) and the way he affords her access to opportunities for promotion, transfer or training or to any other benefits, facilities or services or by refusing or deliberating omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment".
Article 63A (Burden of Proof):-
"(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 ... 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 ... against the complainant,
The tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case maybe, is not to be treated as having committed that act"
Article 42:-
"(1) anything done by a person in the course of his employment shall be treated for the purposes as this order is done by its employer as well as by him whether or not it was done with the employer's knowledge or approval
(2) anything done by a person is agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that person shall be treated for the purpose of this order is done by that other person as well as by him
(3) proceedings brought under this order against any person who in respect of an act alleged to have been done by an employee of his it should be a defence for that person to prove that he took such steps as reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of that description"
Article 43:-
"(1) A person who knowingly aids another person to do an act made unlawful by this order should be treated for the purposes of this order as himself do unlawful act of the light description."
Article 6A Harassment, including Sexual Harassment
(1) For the purposes of this order, a person subjects a woman to harassment if -
(a) he engages in unwanted conduct that is related to her sex or that of another person and as the purpose of effect -
(i) of violating her dignity, or
(ii) of creating and intimidating, hostile, degrading, humiliating or offensive environment for her,
(b) he engages any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect -
(i) of violating her dignity, or
(ii) of creating and intimidating, hostile, degrading, humiliating or offensive environment for her, or ...
(2) conduct shall be regarded as having the effect mentioned in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, as she reasonably be considered as having that effect
..."
3.2 In relation to the burden of proof provisions set out in Article 63A of the 1976 Order, 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."
3.3 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.
3.4 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.
3.5 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.
3.6 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.
3.7 The now 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]."
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.
3.8 In relation to the issue of sexual harassment, pursuant to Article 6A of the 1976 Order, it has to be noted harassment prohibited under the said Article is a distinctly different cause of action to direct sex 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 and intimidating, hostile, degrading, humiliating or offensive environment.
As was held in Richmond Pharmacology v Dhaliwal [2009] IRLR36 a race discrimination claim but with application to a sex discrimination case, Underhill J, as he then was, established that the necessary elements to establish liability for a claim of harassment were threefold:-
(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 (i) and (ii) - the proscribed consequences?
(3) Was the conduct on a prohibited ground (ie sex)?
3.9 Underhill J recognised 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.
3.10 In Warby v Wunda Group PLC [2012] EQLR 536, it was held 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.
3.11 In Richmond Pharmacology, Underhill J emphasised that the broad thrust of the statutory provision 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 been violated is quintessentially a matter for the factual assessment of the tribunal, but one question that maybe material is whether it should reasonably be apparent whether the conduct was, or was not, intended to cause offence (or produced the prescribed consequences). If the perpetrator did not evidently intend to cause offence, it may not be reasonable for the claimant to have taken offence.
3.12 In Reed and Bull Information Systems Limited -v- Stedman [1999] IRLR299, 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.
3.13 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 Pharmacology it was "important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase (see also Warby above).
3.14 In Weeks v Newman College of Further Education [2012] EQLR788, it was held that a decision of fact and 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 of the event did not in fact perceive the conduct was having the relevant qualities. While however, tribunals should not place too much weight upon timing: where conduct is directed towards the sex of the victim, it may be very difficult for the victim personally, socially and, in some circumstances, culturally, to make an immediate complaint about it. While a legitimate fact to consider, the fact of there being no immediate complaint cannot prevent a complaint being justified.
3.15 "Environment", as referred to in Article 63A, was held in Weeks to be a state of affairs. It may be created by an incident, but the effects are of longer duration. A tribunal must consider the relevant words spoken in context, including other words spoken in the general run of affairs within the work place. The frequency of the use of the offending words is not irrelevant.
3.16 In these proceedings, given that there was little or no independent evidence to enable the tribunal to determine its findings of fact, the tribunal, as in so many cases brought before the tribunal, had to consider, and did so, the credibility of the parties and their witnesses in making relevant findings of fact, as referred to previously. In R v G [1998] Crim LR483, was held by the Court of Appeal:-
"A person's credibility is not a seamless role any more than is their reliability.
Indeed, a tribunal may take a different view as to credibility or a liability of the evidence of a witness in relation to different issues (see also) R v H [2016] (NICA 41). In Thornton v NIHE [2010] NIQB84 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 for liability of the witness; (that is) his ability to observe or remember facts of events about which the witness is giving evidence."
In assessing credibility the factor is 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 facts;
(2) the preserving independent evidence tending to corroborate or undermine any given statement of fact;
(3) the preserving of contemporaneous records;
(4) the demeanour of witnesses, eg does he equivocate in cross-examination;
(5) the facility of the population at large and accurately recollecting and describing events in the past in detail;
(6) does the witness take refuse in wild speculation or uncorroborated allegations of fabrication?
(7) does the witness have a motive for misleading the tribunal; and
(8) weighing up a witness against the other."
(Followed and endorsed by Stephens J in the case of E S (A Minor) v Savage [2017] NIQB 56.)
3.17 In relation to the issue of the failure of any witness to give evidence, the tribunal relied on the following guidance, found in the case law in Lynch v Ministry of Defence [1983] NI216, Hutton J, as he then was, endorsed the principals which had been stated in O'Donnell v Reichard [1975] VR916 at page 929:-
"Where a party without explanation fails to calls as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then although the jury might not treat as evidence what they may as a matter of speculation think that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that person's case; if the jury draw that inference, then they may properly take it into account against the person in question for the purposes namely (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which a person not called as a witness could have spoken; and (b) in deciding whether to draw inferences and fact which are open to them upon evidence which has been given, again in relation to matters with the respect to which the person not called as a witness could have spoken."
(See further Wldzniewski v Central Manchester Health Authority [1998] P1QR324 and Breslin v McKevitt and Others [2011] NICA 33 and Havinteg Housing Association Limited v Holleron Limited [2015] UKEAT/0274/14.)
(Clearly, in relation to the incident on 4 April 2017, there were no other witnesses. In relation to the events on 6 April 2017, the other members of staff were in the office and would have seen or heard some, at least, of the discussion between the claimant and the second respondent. None were called as witnesses by either party. In the circumstances, the tribunal decided it was not appropriate or necessary to draw any inferences as referred to in Lynch).
3.18 Awards of compensation, pursuant to the 1976 Order, as amended, provide that awards may be made not just against employers, but also individual respondents, who are named in the claim form, such as the second respondent in the present proceedings. In light of the decision and in the case of London Borough of Hackney v Sivanandan [2013] EWCA Civ 22, it has been held, if a tribunal is making an award of compensation against such respondents, pursuant to the said order, where the same indivisible damage is done to a discrimination claimant by two or more respondents, who are either jointly liable for the same act or have separately contributed to the same damage each is jointly and severally liable to the claimant for the same damage. In such circumstances it is not necessary for the tribunal to apportion an award between contributing respondents. However where the injury caused by different acts of discrimination is "divisible", a tribunal can and should apportion to each discriminator responsible for the part of the damage caused by this (see Underhill J in the Employment Appeal Tribunal in Sivanadan).
3.19 In relation to injury to feelings, in the case of De Souza v Vinci Construction Limited [2017] EWCA Civ 879, the Court of Appeal has recently confirmed that the 10% uplift provided for in Simmons v Castle [2012] EWCA Civ 1288 should apply to an award for injury to feelings, with the consequence the Vento bands are as follows:-
(i) Upper band £19,800 to £33,000;
(ii) Middle band £6,600 to £19,800;
(iii) Lower band £600 to £6,600
In De Souza, the Court of Appeal invited the Presidents of the Employment Tribunals in Great Britain to issue fresh guidance, adjusting the Vento figures for inflation and to incorporate the Simmons uplift. No such guidance has been issued in Northern Ireland, but the tribunal is satisfied, and which was not disputed by the representatives, the above Vento bands, as amended, should be applied in this jurisdiction.
3.20 There was no dispute, if the tribunal was to award aggravated damages, as claimed by the claimant, these are an aspect of injury to feelings, and awarded only on the basis of the extent the aggravating features have increased the impact of the discriminatory action upon the claimant and thus her injury to feelings; and are part of the award for injury to feelings. They are compensatory and not punitive and can be awarded where the employer has acted in a "high handed, malicious, insulting or oppressive manner in committing the act of discrimination" ( Alexander v Home Office [1988] ICR685).
The aggravating act does not have to be discriminatory. Examples of conduct which have led to such an award have included attempting to cover up or trivialise a wrong, failing to investigate a complaint, or take them seriously. Post dismissal conduct, whether in the course of proceedings or otherwise may give rise to aggravated damages (see Zaiwalla and Company v Walia (UKEAT451/000 Bungay and another v Saini [2010] UKEAT/0331). Tribunals, however, have to be aware of the risk of double recovery and to ensure that overall any award of injury to feelings and aggravated damages is proportionate to the totality of the suffering caused to the claimant.
3.21 Simple interest can be awarded by a tribunal as awards of compensation, pursuant to the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. Interest is awarded on injury to feelings awards from the date of the act of discrimination complained of to the date of calculations; whereas interest is awarded on all other sums, other than injury to feelings from the mid-point of the date of the act complained of and the calculation date. (The relevant rate of interest is the present judgment rate of 8%.) Where a tribunal considers that serious injustice would be caused if interest were to be so calculated, as referred to above, it can calculate interest in such different periods as it considers appropriate. Interest cannot be awarded in respect of future loss or loss arising before the discrimination complained of.
4.1 In light of the facts as found by the tribunal, and after applying the legislative provisions in the guidance, as set out in the case law referred to in the previous paragraphs, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.
4.2 In relation to the claimant's claim of direct sex discrimination, in relation to the termination of her employment on 6 April 2017, the tribunal was not satisfied the reason why the claimant was so dismissed was because of her sex. The reason why she was so dismissed related to the heated discussion between the claimant and the second respondent about holidays and the closure of the business over the Christmas/New Year period and her demands for answers, which the second respondent saw as a challenge to his managerial authority. His angry reaction, and immediately dismissing her, was consistent with the second respondent's management style. The tribunal had no doubt he would have reacted in the same way, whether the employee was a male or a female employee. Indeed, his reaction was similar to his immediate dismissal of a male employee in 2013. In the circumstances, the tribunal could not conclude, on the balance of probabilities, that the claimant had been treated less favourably, on the grounds of her sex, when she was so dismissed. The fact that such a dismissal might have been unfair was not for the tribunal to determine in these proceedings.
4.3 In relation to the claimant's claim of sexual harassment, this related, in particular, to two incidents, namely on 4 April 2017 and 6 April 2017.
In relation to the incident on 4 April 2017, and when the claimant was told by the second respondent - "she was eating again and she looked pregnant", which the second respondent denied saying, he knew the claimant was an insulin dependent diabetic and had a serious bowl condition and she was required to eat on a regular basis at scheduled times. To suggest the claimant was pregnant, without any basis for any such suggestion, and with the clear inference the claimant looked overweight, in the tribunal's view, was unwanted conduct by the second respondent and was done with the purpose or effect of violating the claimant's dignity; and, in the tribunal's judgement, was clearly done on the grounds of her sex. Since no such remark, with reference to pregnancy, would have been made to a man; and it should have been reasonably apparent to the second respondent, as her employer, it would have such an effect. The tribunal can fully understand why the claimant, as a woman, even if she had not been a diabetic and with a serious bowel condition, found the remark unacceptable and very offensive to her. Issues of pregnancy are very sensitive issues for a woman, which the second respondent would have well known and understood. The fact the claimant did not immediately complain and/or raise a grievance was understandable in the circumstances, in the view of the tribunal, given the remark had been made by the second respondent, the managing director of the first respondent. However the fact the claimant was prepared to take a lift to work with the second respondent, following this event, in the tribunal's view, meant she was not as upset by the remark, as she suggested during the course of her evidence.
In relation to the remark by the second respondent on 6 April 2017, when he called the claimant, inter alia, a bitch, the tribunal was satisfied the remark was unwanted conduct by the second respondent and done with the purpose or effect of violating the claimant's dignity and, in the circumstances, was done on the ground of sex. The second respondent would not have made such a remark to a man and even when dismissing the former male employee in 2013, he had not used any such similar expression. Indeed, the second respondent accepted, if he had made the remark, which at all times he denied, it would have had that effect and therefore would have been contrary to the harassment policy, contained in the company Handbook. In the view of the tribunal, the use of the " f word", in the circumstances, did not alter the tribunal's conclusion in relation to the issue of the sexual harassment itself but was relevant to the issue of remedy (see later). The remark clearly caused offence to the claimant and was unwelcome, which would have been obvious to the second respondent under the circumstances. This was not a case of hypersensitivity on the part of the claimant, who it must be remembered, when the remark was made, was having her employment terminated by the second respondent. In the circumstances, the tribunal was satisfied the claimant had established sufficient material from which a tribunal could conclude the claimant had been sexually harassed on both occasions. The second respondent therefore required to provide a non‑discriminatory explanation. His denials, which the tribunal did not accept, was not such an explanation in the circumstances.
4.4 In light of the foregoing, the tribunal was satisfied the said claimant was sexually harassed, contrary to the 1976 Order, on the said two occasions by the said remarks of the second respondent for which acts of the second respondent the first respondent was vicariously liable. The said acts were therefore not "divisible" and, in the circumstances, the tribunal was satisfied the respondents were jointly and severally liable pursuant to the 1976 Order (see further Sivanandan) for said acts and any award of compensation made by the tribunal. It is not for the tribunal to apportion between the respondents in the circumstances any such award of compensation made by the tribunal. The tribunal has no doubt the claimant suffered injury to her feelings though not as great as she suggested in evidence. The tribunal took into account the two remarks were made within a short time scale and, given the context in which each remark was made, including, in particular, the remark made by the second respondent when dismissing the claimant, which included the "F word", came to the conclusion such remarks made by the second respondent, managing director of the first respondent were also high handed and insulting and the award of a compensation for injury to feelings should reflect this and include a small element of aggravated damages.
4.5 In light of the foregoing, the tribunal came to the conclusion the award for injury to feelings fell within the lower Vento band and the tribunal made the following award, jointly and severally, against the respondents of:- £4,000.00, including £750.00 aggravated damages, together with £393.64, in respect of interest (from 4 April 2017 to 15 June 2018) - Total £4,393.64.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge Drennan QC:
Date and place of hearing: 6, 7 December 2017, Belfast.
Date decision recorded in register and issued to parties: