Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 1149/15

2390/15

 

CLAIMANT: Agnieszka Alina Kijowska

 

RESPONDENTS: 1. Belfast Health and Social Care Trust

2. Margaret Johnston

3. Neil O'Hagan

4. Maureen Coyle

5. Moya Delaney

 

 

 

DECISION

 

The unanimous decision of the tribunal is that of the tribunal is

 

(i) the claimant was not unfairly constructively dismissed by the first respondent.

 

(ii) The claimant was not unlawfully discriminated against on grounds of race by the respondents or either of them, pursuant to the Race Relations (Northern Ireland) Order 1997.

 

(iii) The claimant was not harassed on the grounds of race by the respondents or either of them, pursuant to the Race Relations (Northern Ireland) Order 1997.

 

(iv) The claimant was not discriminated against by way of victimisation by the respondents or either of them, pursuant to the Race Relations (Northern Ireland) Order 1997.

 

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge: Employment Judge Drennan QC

Members: Mr I. O'Hea

Mr D. Walls

 

 

APPEARANCES:

 

The claimant appeared in person and was not represented.

 

The respondents were represented by Mr P. Ferrity, Barrister-at-Law, instructed by the Directorate of Legal Services.

 

 

 

REASONS

 

1.1 The claimant presented a claim to the tribunal on 11 June 2015, in which she made a claim that she had been discriminated against and/or harassed and/or victimised during her employment with the first-named respondent, by the respondents and each of them, pursuant to the Race Relations (Northern Ireland) Order 1997. The respondents presented a response denying liability for the said claims on 20 August 2015.

 

The claimant presented a further claim to the tribunal on 8 October 2015, in which she made a claim that she had been discriminated against, pursuant to the Race Relations (Northern Ireland) Order 1997, in relation to an alleged failure by the respondents and each of them to make certain payments to her, following the termination of her employment with the first respondent. The respondent presented a response denying liability to the said claim on 9 November 2015.

 

By a Consolidation Order, dated 14 October 2015, the above said claims (case reference 1149/15 and 2390/15) were ordered to be considered and heard together.

 

1.2 In a decision on a Pre-Hearing Review, recorded in the register and issued to the parties on 10 February 2016, the tribunal decided:-

 

"1. The claims of the claimant and each of them, did not include a claim for race discrimination and/or a claim of unfair constructive dismissal arising from the termination of the claimant's employment, as set out in the claimant's letter to the respondent's representative dated 20 October 2015.

 

2. The claimant's application for leave to amend her claim (case reference 2390/15) to include a claim of race discrimination and/or unfair constructive dismissal arising from the termination of the claimant's employment, as set out in claimant's letter to the respondents' representative dated 20 October 2015, is granted and the said claim is so amended."

 

1.3 By an email dated 7 March 2016, the respondents presented to the tribunal, an amendment to the respondents' response, dated 9 November 2015, following the said decision on a Pre-Hearing Review allowing the said amendments to the claimant's claim (case reference 2390/15) and, in particular, denying liability for the claimant's claim that the respondents on each of them had discriminated against her, pursuant to the Race Relations (Northern Ireland) Order 1997, in relation to the termination of her employment and/or the first respondent had unfairly constructively dismissed the claimant."

 

1.4 At the commencement of the hearing, it was agreed that the medical evidence provided by the claimant in relation to her claim of personal injury and/or injury to feelings on foot of her claims, pursuant to the Race Relations (Northern Ireland) Order 1997, could be admitted in evidence without formal proof, subject to comment by the respondents' representative in the course of cross examination and/or submission to the tribunal.

 

 

1.5 At the commencement of the hearing, the claimant confirmed that, if the tribunal found the dismissal was unfair, she wished to obtain an award of compensation and, in particular, she did not seek an order of reinstatement or re-engagement, pursuant to the provisions of Articles 147-151 of the Employment Rights (Northern Ireland) Order 1996.

 

1.6 It was not disputed by the representatives of the respondents that the first-named respondent was vicariously liable for the actions of the second, third, fourth and fifth-named respondents together with other employees of the first-named respondent, relevant to the subject matter of these proceedings, subject to the statutory defence, pursuant to the Race Relations (Northern Ireland) Order 1997.

 

1.7 In accordance with normal tribunal Case Management procedures, the parties agreed prior to the commencement of the hearing, an agreed statement of factual and legal issues, dated 18 April 2016, which stated:-

 

"A. Preliminary Legal Issues

 

1. The respondent Trust considers that many of the claimant's allegations are out of time and that the tribunal has no jurisdiction to hear these elements of the claimant's claim. The respondent seeks a preliminary hearing to deal with the following:-

 

Are the claimant's complaints of discrimination, referred to above, part of an act or series of acts extending over a period of time from 2007 to 2015? If not;

 

(i) Are there parts of the claimant's claim out of time?

 

(ii) If so, should the tribunal extend time to allow those claims to be heard on just and equitable grounds?

 

(iii) If not, does the tribunal have jurisdiction to hear those parts of the claimant's claim?

 

[At a Case Management Discussion, prior to the substantive hearing, the tribunal decided that any such issues of time were to be heard and determined in the course of and in the context of the substantive hearing.]

 

2. It is the respondents' Trust's view that the correct respondent in these proceedings is the Belfast Health and Social Care Trust, and the tribunal should remove the other named respondents in the proceedings who are employees of the respondent Trust.

 

[The respondents, in the course of a Case Management Discussion, prior to the substantive hearing, accepted that the second, third, fourth and fifth respondent were proper respondents to the claimant's claims pursuant to the Race Relations (Northern Ireland) Order 1997 and their liability, if any, should be determined in the context of and in the course of the substantive hearing.]

 

B. Substantive Legal Issues

 

(i) Race Relations (Northern Ireland) Order 1997

 

1. Who are the claimant's comparator(s), in respect of any claim of direct race discrimination?

 

2. If there are no named comparators, confirmation that it is the hypothetical comparator who has been relied upon.

 

3. Whether the claimant has been discriminated against and subjected to less favourable treatment on grounds of race, contrary to Articles 3 and 9 of the Race Relations (Northern Ireland) Order 1997.

 

4. Has the claimants suffered harassment on account of her race?

 

5. What is the protected act or acts which the claimant alleges has been breached and further evidence of her claim for victimisation?

 

6. Has the claimant been victimised on grounds of race, contrary to Article 4 of the Race Relations (Northern Ireland) 1997?

 

7. Can the respondent rely on the statutory defence contained in Article 32 of the Race Relations (Northern Ireland) Order 1997 to defend these claims?

 

8. Has the claimant been subject to unfair constructive dismissal?

 

9. Should any or all of the claimant's claims succeed, what detriment(s) loss or damage did the claimant's suffer?

 

10. What is the appropriate remedy (remedies)?

 

(ii) Factual Issues

(1) Whether the claimant has been discriminated against on grounds of her race during the period of her employment as an agency worker, namely November 2007 up until her permanent position with the respondent Trust in March 2008.

 

(2) Whether a claimant has been discriminated against and subjected to less favourable treatment on account of her race, in regards to the allocation of tasks from November 2007 onwards.

 

(3) Whether the claimant complained about such treatment and whether her complaints were ignored by her manager.

 

(4) Whether the claimant has been discriminated against and subjected to less favourable treatment on account of her race, by staff working at Suffolk Day Centre allegedly questioning her about her private matters in general social exclusion.

 

(5) Whether the claimant has been discriminated against and subject to less favourable treatment on account of her race by the staff members conduct on "Polish day".

 

(6) Whether the claimant complained about such treatment, whether such matters were dealt with appropriately by her managers according to the Trust disciplinary and grievance procedures (if invoked) and whether she was subjected to race discrimination as a result of this. In addition, was the claimant subjected to continuing and/or ongoing discrimination based on her race or nationality?

 

(7) Has this ongoing discrimination continued after the termination of the claimant's employment on 31 August 2015 as victimisation, due to the fact that the claimant has felt the need to relocate?

 

(8) Whether the claimant was subjected to harassment by Maureen Coyle in relation to alleged comments regarding her appearance. What comments were made by Maureen Coyle regarding the claimant's appearance?

 

(9) What where the circumstances around the claimant's move from ISU Department to the back corridor Department at Suffolk Day Centre and did it amount to less favourable treatment on account of her race?

 

(10) Whether the claimant was discriminated against and harassed on account of her race, after she moved to the back corridor, in the reporting of her behaviour regarding mobile phone use and the supervision sessions with Maureen Coyle.

 

(11) Whether the claimant has been discriminated against and subject to less favourable treatment on account of her race in the events surrounding the incident of shopping for ingredients for a cookery lesson and Maureen Coyle's involvement in same.

 

 

(12) Whether the claimant has been discriminated against and subjected to less favourable treatment on account of her race and the Trust's handling of a bus driver complaint and the issue of escorting members on the bus.

 

(13) Whether the claimant has been victimised and/or subjected to less favourable treatment on account of her race and the Trust's handling of the disciplinary and grievance procedure (if invoked), concerning matters regarding the claimant's conduct.

 

(14) Whether the claimant has been discriminated against and subject to less favourable treatment on account of her race and the handling of a matter by Maureen Coyle and whether Trust procedures were followed.

 

(15) Did the claimant suffer personal injury from the alleged less favourable treatment by the respondent, servants or agents on account of her race? If so, what was the nature and extent of such personal injury and has the same being independently verified by supporting medical evidence.

 

(16) Did the claimant suffer unlawful racial discrimination in the Trust's handling of an issue regarding two library complaints, which were received from a service user's parent and a member of the public?

 

(17) Did the claimant suffer ongoing unlawful racial discrimination as regards to various incidents from 26 September 2014 until early May 2015?

 

(18) Did the claimant suffer ongoing unlawful racial discrimination as regards the Trust's handling of the incident on 2 June 2015, concerning the claimant's actions while assisting a member of the Suffolk Day Centre during their lunch?

 

(19) Was the placing of the claimant on precautionary suspension with pay following the incident, further evidence of alleged ongoing racial discrimination or reasonable and proportionate response to the incident? Where the correct procedures followed in applying the suspension to the claimant?

 

(20) Whether the Trust are vicariously liable for the ongoing bullying and harassment suffered by the claimant on account of her race by

 

(a) Margaret Johnston

(b) Neil O'Hagan

 

(c) Maureen Coyle

 

(d) Moya Delaney.

 

(21) Did the individuals above fail in their duty of care to the claimant and failing to implement the correct bullying and harassment policies within the workplace?

 

(22) What were the circumstances surrounding the termination of the claimant's employment?

 

(23) Why did the claimant resign?

 

(24) Did the claimant suffer unlawful racial discrimination by Margaret Johnston, as regards any delay and the payment of annual leave due from the respondent Trust to the claimant arising out of her resignation?

 

Additional Issues following the Pre-Hearing Review on 27 January 2016.

 

(25) Did the claimant suffer unlawful racial discrimination leading up to and including her resignation on 31 August 2015?

 

(26) Has the claimant been unlawfully constructively dismissed contrary to the Employment Rights Order 1996 Article 126?

 

1.8 The substantive Hearing had to be adjourned, part heard, during the course of the hearing for the reasons and in the circumstances set out later in this Decision.

 

2.1 The tribunal heard oral evidence from the claimant; and on behalf of the respondents from the second, third, fourth and fifth respondents together with Ms Jane Braiden, Ms Lynn Wade, Ms Martina O'Connor, Ms Angela Fleming, Ms Sinead Hanna, Mr Patrick Pendleton, Ms Cathy O'Neil and Ms Lucy Finnegan, all of whom are from Northern Ireland.

 

Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents in the trial bundle, as amended during the course of the hearing and the submissions of the claimant and the respondent's representatives at the conclusion of the hearing, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary for the determination of the claims of the claimant.

 

2.2 The claimant was employed as a band C Day Care Worker in the first respondent's Suffolk Day Centre for adults with learning disabilities from in or about October 2007, as an agency/temporary worker, and subsequently as a permanent full-time employee with the first respondent from on or about 1 March 2018 until on or about 31 August 2015. It was not disputed the claimant is Polish and/or of Polish nationality.

 

2.3 Ms Margaret Johnston, the second respondent and the Manager of the Suffolk Day Centre since 2000, received a resignation letter, dated 27 July 2015 from the claimant, which was delivered to the centre on 29 July 2015 advising that the claimant would like to terminate her contract of employment from 31 August 2015. Ms Johnston upon receipt immediately completed a Trust leaver form on 29 July 2015, stating the claimant's said finishing date and, in particular, her entitlement to 18 days in total annual leave pay. She processed the form on‑line using the first respondent's new on-line Human Resources payroll travel and subsistence systems (HRPTS), which was the process for removing an employee from the Trust's payroll and further processing the final salary and additional monies due to an employee. The relevant leaver form was sent electronically to the Human Resources Department and forwarded to payroll on 31 July 2015. Ms Johnston wrote to the claimant by recorded delivery on 12 August 2015 confirming she had received her letter of resignation and stating what her annual leave entitlement was, as referred to above. In a telephone call between the claimant and Ms Johnston on or about 17 August 2014, Ms Johnston confirmed to the claimant her annual leave entitlement and how it had been calculated; and, when she was asked by the claimant whether this would be in her pay, she told her it should be as she had completed all the paperwork through the on-line HRPTS system. When Ms Johnston was informed by the claimant in a telephone call on 1 September 2015 she had not received the annual leave payment, Ms Johnston agreed to find out what had happened. When Ms Johnston telephoned the salaries and wages department, she was informed it had not received the paperwork from Human Resources. When Ms Johnston contacted Human Resources, it was ascertained the relevant paper work had in fact been received, as shown on the relevant computer at Human Resources. Ms Johnston was then asked to send an email with the relevant details to Human Resources, which she did on 1 September 2015, for onward transmission to Salaries and Wages, as she was informed the new on-line system did not allow for any such resubmission. Ms Johnston had to again contact Salary and Wages on or about 8 September 2015, as the claimant informed her that the annual leave payment had still not been received by her. Ms Johnston persuaded Salaries and Wages to accept the email which she had sent to Human Resources on 1 September 2015 to enable the said annual leave payment to be made to the claimant. The claimant received her said annual leave payment on or about 11 September 2015.

 

The tribunal accepts there was a short delay in the annual leave payment being received by the claimant, following her resignation and termination of her employment. It was clearly a matter of regret and considerable annoyance to Ms Johnston that this had occurred since she believed that she had sent all the necessary paperwork to enable the said payment to be made to the claimant in time. The tribunal is satisfied that the matter was only resolved, following the various interventions, on behalf of the claimant by Ms Johnston, with Human Resources and/or Salaries and Wages. Ms Johnston had properly sent all the relevant paperwork to enable payment to be made, and the tribunal is satisfied that any subsequent delay arose due to some form of administrative error/problem, as outlined above, the various relevant members of staff in Human Resources and Salaries and Wages, following the introduction of the new on-line system. The tribunal noted that this new on-line system had not been trouble free for the first respondent and evidence was given other relevant employees of the first respondent had had difficulties in receiving their relevant entitlement. The tribunal is satisfied that Ms Johnston was not responsible in the circumstances for the said delay in payment and, in seeking to resolve the situation acted in the same way as she would have done for any staff member for whom she was responsible, regardless of race. The tribunal is further satisfied in the circumstances, the said administrative error/problem had nothing to do with the claimant's race/nationality or any issue that had arisen during the course of the claimant's employment at the day centre.

 

2.4 In relation of the claimant's claim of unfair constructive dismissal, it is necessary to note that, at a Case Management Discussion, as set out in paragraph 2 of the record of proceedings, dated 2 October 2015, where the claimant appeared by telephone link, it is recorded:-

 

"Firstly, the claimant confirmed she is not making any claim of unlawful racial discrimination arising out of the termination of her said employment. She accepts that she resigned in order to accept her place at Uni in London."

 

At the substantive hearing, the audio recording of the Case Management Discussion was played to confirm the accuracy of what was recorded, it did so, but in the course of her evidence, the claimant maintained that what she had said, as recorded, was a "mistake" on her part and she referred, inter alia, to not understanding the question from the Employment Judge about termination of her employment and reason for same, language difficulties, nervousness, the proceedings were conducted by telephone conference when she was on the tube, going to work and that this had resulted in the answer, as recorded above; but she insisted that, despite same, she had always wished to make a claim of unlawful racial discrimination arising out of the termination of her employment, when she resigned in her letter of 27 July 2017.

 

As referred to previously, following a Pre-Hearing Review, the tribunal decided to amend, in the Pre-Hearing Review Decision, dated 10 February 2016, her claim (case reference 2390/15) to include a claim of race discrimination and/or unfair constructive dismissal arising from the termination of the claimant's employment, for the reasons set out in the said decision. However, it is significant to note, in light of the foregoing, that case reference 2390/15 was presented to the tribunal on 8 October 2015, within a week of the Case Management Discussion, the record of which was sent to the claimant on 2 October 2015 but which said claim, as presented to the tribunal on 8 October 2015, did not include any such claim of racial discrimination and/or unfair constructive dismissal arising from the termination of her employment. It only related to her claim of failure to pay her annual leave entitlement; with the consequence that the claim had to be amended as set out above, pursuant to the said Pre-Hearing Review Decision.

 

In her letter of resignation, dated 27 July 2015, sent by the claimant to Ms Margaret Johnston, the Manager of the Suffolk Day Centre, the claimant wrote:-

 

"... I am writing this letter to let you know that I would like to terminate my employment with the date of 31 August 2015. I am giving you a month notice as required in my employment contract."

 

It is apparent that at the date of the letter of resignation, the claimant had no difficulty in understanding the use of the word termination of her contract of employment and, in particular, it is also significant to note, in the said letter of resignation, there is no reference to any allegation of race discrimination by the first respondent or any employee of the first respondent.

 

The claimant, in her evidence, maintained she resigned because of race discrimination and, in particular, she had not resigned in order to accept her place at the University in London, despite what is recorded, as referred to above in the record of proceedings dated 2 October 2015 and the failure to refer to any such allegation in her letter of resignation; or indeed in her claim (case reference 2390/15), when it was first presented to the tribunal on 8 October 2015 and before the Pre-Hearing Review Decision to amend the said claim to include a claim of race discrimination and/or unfair constructive dismissal in relation to the termination of her said employment.

 

Further, in her first claim form (case reference 1114/15), presented on 11 June 20115 and before her said resignation under special arrangements, the claimant noted:-

 

"I will be leaving for London at the end of the month August 2015 as got accepted into University of London. I do not need an interpreter".

 

The tribunal found the claimant's level of English was good and she had no difficulty in understanding, during the course of her evidence, despite trying to suggest otherwise, what was meant by termination of employment in the course of cross-examination by the respondent's counsel. She also acknowledged, in the course of her evidence, that it was known she was leaving to go to the University in London, there was no reason not to have said the reason for her resignation was because of race discrimination in the course of her said employment. Indeed, she had freely told another Care Worker at the day centre in early 2015 she hoped to go to London to study.

 

The claimant failed to give any good reason why she had not referred to allegations of race discrimination in her resignation letter save, unconvincingly in the tribunal's opinion, to suggest that to do so might have made it difficult for her to get future employment if any employer had asked for the reason why she had resigned. Indeed, during the course of her evidence, she said that she now regretted not doing so.

 

The claimant, to her credit was always intent on bettering herself and, in particular, did not wish to remain as a band C Care Worker and for a number of years, from 2013 she had studied and obtained various qualifications, by way of an access course, in addition to her previous educational qualifications obtained in Poland, to enable her to apply to University to study for a degree. In November 2014, she had applied to go on a degree course to a University in London and was accepted for that course in or about February 2015. It has to be noted that this was all before the various incidents ether in the period March - June 2015 as referred to later in this Decision, which the claimant suggested were the last straw and had led to her resignation letter; albeit, as seen above, were not referred to in the said letter. The tribunal has no doubt that from in or about February 2015, following the acceptance of her place at the University in London, the claimant always intended to take up the course at the said University in London. Further, she had obtained her results to allow her to go that University by 11 June 2015, when she presented her first claim to the tribunal and in that document confirmed she was moving to London to go to University. The tribunal also found it was not without some significance that the claimant's elder daughter had also applied to take up a course at the University in London and had accepted the offer of the place made to her. The claimant maintained, again unconvincingly, that she was unaware of this at the relevant time, which the tribunal found difficult to accept in the circumstances. The claimant now lives in London with her younger daughter. Her elder daughter is also living in London but renting elsewhere. The claimant never applied to go to Queens University in Belfast. It is correct that she bought some furniture for her rented accommodation in Belfast, but she did so in December 2014 and prior to her making application to go to the University in London. The furniture was either sold or abandoned when she moved to London and into University accommodation which had its own supplied furniture. In the circumstances, the tribunal is not satisfied her resignation was related to any issue of race discrimination.

 

2.5 The claimant's general practitioner did not give evidence and his notes and records were admitted, by consent, without formal proof, subject to comment by the respondent's representative during the course of the proceedings and subject to the weight to be attached to such notes and records, so admitted. It is correct the said notes and records made reference to stress at work on or about 5 December 2012, but the reason for the said stress is not specified. It has to be noted, that at this time, the claimant's difficulties in her personal life related, in particular, to difficulties in her relationship with her former husband, as referred to in the said notes and records. The tribunal concluded, in the circumstances, in the absence of any other evidence that the prescription of diazepam and citalopram in 2012, related to these difficulties and not to any such stress in her work.

 

It is correct that the notes and records refer to the claimant having cognitive behavioural therapy on 24 April 2012 and again, at various dates in 2015; but no reason for such treatment is provided in the said notes and records and, in particular, there is no reference to the necessity for such treatment because of stress at work. In the circumstances, the tribunal was unable to draw any conclusions, in the absence of the provision, in evidence, of any detailed therapy notes as to the reasons for such treatment. Following the reference to stress at work in 2012, as referred to above, the next and only reference to stress at work is on 29 May 2015, when the general practitioner notes "stress at work; being bullied at work. Feels stress + is moving to London". There is no reference in the said notes and records to any allegation of race discrimination or any problems relating to the claimant's race/nationality in her work, which the tribunal found surprising in the circumstances, especially when the claimant maintained that at all material times the general practitioner was fully aware of these alleged problems of her race at work. In a further entry on 29 May 2015, the general practitioner notes that there was discussion about treatment but, interestingly, the claimant declined medication for the said stress and was, following discussion, prescribed herbal sleeping tablets. Given the level of symptoms which the claimant was describing, in evidence, was present at this time, the tribunal finds it surprising that there is no reference to such problems in the notes and records, especially given the Doctor's alleged knowledge of same; but also, given the level of symptoms she described in evidence, she declined to be prescribed the medication, she had been prescribed previously.

 

As referred to elsewhere in this Decision, the tribunal found the claimant prone to exaggeration which had no basis in fact; the tribunal reluctantly came to the conclusion, in light of the absence of such relevant detail in the general practitioner's notes and records, that this was a further example of exaggeration on the part of the claimant. Further, in this context, during the course of her evidence, the claimant insisted that she had had five miscarriages. If correct, the tribunal found it somewhat surprising that there was only one referred to in the notes and records by the general practitioner and this was in 2012. Again, the claimant in the absence of any other evidence, was willing to refer to such matters in her evidence during the course of these proceedings, which did not appear to have any basis in fact, in the absence of any supporting/corroborative evidence for effect and/or exaggeration, regardless of its accuracy. In any event, the notes and records did not suggest any link between this miscarriage and any difficulties she was having at that time in relation to her work. Indeed, as set out above, this was at a time when the claimant had other difficulties in her personal life. In her evidence, the claimant finally accepted, albeit reluctantly, she could not show this miscarriage or any other miscarriage was caused by the actions of the respondents, despite her earlier assertions to the contrary.

 

2.6 On 2 June 2015, a serious incident occurred at the Day Centre involving the claimant. She was on duty in the dining hall, helping the service users who were attending the Centre to have their lunch. A service user JJ was having her lunch. JJ had severe learning difficulties and, as a consequence, very limited communication abilities. After JJ had finished her yoghurt, the claimant used a piece of paper to clean her mouth and then tied the folded paper at the back of JJ's head so it was like a bandana/face mask covering her face. The claimant insisted JJ enjoyed her actions and it was some form of banter/joke between them; but, in the course of her evidence, the claimant finally accepted, albeit reluctantly her actions were "unacceptable". There was considerable dispute about what happened after the claimant had applied the bandana shaped folded paper across JJ's face, as described above. The tribunal preferred the evidence of the fourth respondent Maureen Coyle, who, having heard a muffled sound from the direction of JJ, saw what the claimant had done with the paper across JJ's face. She approached the claimant and asked her - "what is this about?". The claimant replied - "it is to keep JJ from talking, to which Ms Coyle said - "it was unacceptable". The claimant continued to insist it was a joke. The tribunal does not accept that Ms Coyle shouted at the claimant, although it has no doubt she was very annoyed by the actions of the claimant and, as a result, spoke firmly, albeit calmly, to the claimant since she was very concerned about the claimant's actions, not only for the service user JJ, but also for the other vulnerable service users witnessing the claimant's actions. This was an action which the claimant would have always known was not acceptable and, as seen above, she was only finally prepared to accept that it was not acceptable during the course of her evidence to the tribunal. When removing the bandana/face mask Ms Coyle found that the claimant had tied it so it could never have been removed by JJ. Ms Coyle reported the incident to the fifth respondent, Moya Delaney, the Assistant Manager who then asked to meet with Ms Coyle and the claimant to discuss the incident immediately after lunch. This was a serious adult safe‑guarding incident, which required to be addressed immediately by the line management, pursuant to the policy the first respondent has to ensure that service users are safe. In her office, Ms Delaney asked the claimant to sit down and to calmly explain what had happened. At this point the claimant became very excitable, aggressive and shouted and screamed into Ms Delaney's face, saying she had done nothing wrong and that Ms Delaney was bullying her and she would only talk to someone higher up in the first respondent. Regrettably, the tribunal found that this was typical of the claimant's reaction whenever her actions were questioned by line management. Ms Coyle, who had been sitting down, then stood up with a pen in her hand and tried to calm the situation, but also to stress to the claimant the seriousness of the incident since what had occurred could lead to dismissal. The tribunal does not accept Ms Coyle pointed the pen at the claimant's face or moved in an aggressive manner towards her and concluded this is a further example of the claimant seeking to justify her actions by making false allegations against those in authority were seeking explanations for her actions. Ms Delaney then informed the claimant she would report the matter to the first respondent's operational manager and the claimant left the office.

 

The tribunal found it significant that the claimant, in contrast to her actions at the time, now accepted in evidence that in tying the folder paper as she did was not acceptable and she should not have done it. The tribunal is satisfied Miss Coyle had to take the action that she did and to report the incident to Miss Delaney and further that she would have taken exactly the same action, whoever the employee was and of whatever nationality given the circumstances and there was no breach of contract in their actions in relation to this matter. This was a serious incident involving a vulnerable service user, which could not be allowed to continue and, as now recognised by the claimant, however belatedly, was not acceptable and should never have been done, regardless of whether it began as a joke and whether she believed JJ as enjoying what had been done by the claimant. It has to be remembered, JJ was not, due to her learning difficulties, able to give her consent to any such actions by the claimant. Similarly, the tribunal is satisfied Ms Delaney acted properly in trying to find out from the claimant what had happened, so she could determine what further action to take; but regrettably, and not for the first time in the course of her employment, when asked by line management about her actions the claimant was not in a mood to sit down and calmly respond to the inquiry made by Ms Delaney. Again, the tribunal has no doubt that Ms Delaney would have acted in a similar manner, whoever the employee was, and of whatever nationality, in these circumstances.

 

2.7 Following the incident on 2 June 2015, at sometime between 3 and 4 June 2015, the claimant alleged she had a telephone conversation with her Trade Union representative Mr Lawlor. The claimant was somewhat vague in her evidence about when the call was made or indeed what was precisely said. Mr Lawlor was not called to give evidence by the claimant. The claimant alleged that Mr Lawlor told her that Neil O'Hagan, Assistant Manager at the Day Centre, the third respondent, had told her that Miss Lucy Finnegan, the Operations Manager for the Day Service for people with learning disabilities in the first respondent, had been on the phone with a representative from the Equality Commission in relation to the incident on 2 June 2015 involving JJ; and that somebody from the Equality Commission had then rung the Day Centre, with the consequence, given the involvement of the Equality Commission, the Trade Union were not able to represent her in relation to the matter. Nobody was called to give evidence from the Commission by the claimant. In essence, it became apparent the claimant was alleging the first respondent had sought to prevent her obtaining representation from her Trade Union representative by involving the Equality Commission.

 

The claimant, in making this allegation was prepared, in evidence, to use Mr O'Hagan's and/or Miss Finnegan's name interchangeably, without regard to the accuracy of what she was alleging about the involvement of the first respondent on foot of any representation by her Trade Union in relation to this matter.

 

The tribunal accepts the denial from Mr O'Hagan that he had any such conversation with Mr Lawlor about the claimant and the incident involving JJ, which occurred on 2 June 2015. The tribunal also accepts the evidence of Ms Finnegan as to the sequence of events, which the tribunal is satisfied accurately reflects what happened, as referred to below. In particular, the tribunal is satisfied that on the afternoon of 2 June 2015, Ms Finnegan was informed of the serious allegation relating to the incident involving the service user JJ. Ms Finnegan contacted her line manager, Mr M Kelly, Service Manager and it was decided the incident would be investigated under the first respondent's disciplinary procedures as well as the Regional Adult Safeguarding Policy. On the morning of 3 June 2015, after discussion with Mr Kelly, representatives from Human Resources of the first respondent and the operational manner responsible for adult safeguarding investigations within Learning Disability Service, it was agreed the claimant should be placed on precautionary suspension pending the outcome of the investigations. In view of the circumstances of the incident, as outlined above, the matter had to be dealt with under the said policy and would have occurred in relation to any employee in similar circumstances, regardless of that employee's race/nationality. Ms Finnegan then sought to arrange a meeting with the claimant accompanied by Mr O'Hagan to inform her of these developments and to arrange a meeting with Mr Kelly, where she was entitled to have a Trade Union representative or colleague.

 

At or about 11.00 am on 3 June 2015, the claimant met with Ms Finnegan and Mr O'Hagan. As the claimant entered the room she had a smart phone in her hand and told them she had been in touch with the Equality Commission. The claimant attempted to pass this smart phone to Ms Finnegan and offered her the claimant's phone to speak to the Commission, which Ms Finnegan declined; but she made it clear to the claimant she was entitled to be in contact with the Equality Commission if she wished to do so. Following further discussion, it was agreed the claimant would meet with Ms Finnegan and Mr Kelly at 9.00 am on 4 June 2015. Prior to that meeting, Mr Lawlor telephoned Ms Finnegan and Mr Kelly. During that call, Mr Lawlor was told by Mr Kelly the claimant had told Ms Finnegan she had been in touch with the Equality Commission and, in the course of that discussion, had asked Ms Finnegan to speak to the Commission, which she had declined. He did not tell Mr Lawlor, as alleged by the claimant the Commission had phoned the Day Centre. The tribunal is satisfied that at no time, as alleged by the claimant, did Ms Finnegan and/or Mr O'Hagan and/or Mr Kelly lie to Mr Lawlor about the involvement of the Equality Commission, in relation to this incident; but rather he was told what had happened, as described above. Indeed, it would appear the claimant was wrong in referring to Mr O'Hagan and it should have been Mr Kelly, in light of the tribunal's findings, as referred to above. In particular, whatever may or may not have been said between Mr Lawlor and the claimant, which the tribunal is satisfied has not been accurately reflected in the claimant's allegations, for the reasons set out above, the tribunal is satisfied the respondents played no part in any of the decisions by the claimant's Trade Union not to represent her in relation to this incident relating to the service user JJ; and, if the reasons for this related to involvement of the Equality Commission, any such contact with the Commission was by the claimant and not by any of the respondents and is unrelated to any issue of the claimant's race/nationality.

 

At the meeting on 3 June 2015 with the claimant, the claimant was formally placed on precautionary suspension arising out of the incident involving the service user JJ. The claimant did not return to work following her suspension and the termination of her employment following her resignation, as referred to previously.

 

The Adult Safeguarding Investigation into the alleged actions by the claimant in relation to the service user JJ was taken forward by the Police Service of Northern Ireland. During the course of the Hearing, when Ms Finnegan was giving her evidence, it became apparent that the Adult Safeguarding Investigation had not been concluded at that time by the PSNI and that criminal proceedings might be brought against the claimant. In light of the foregoing, the tribunal decided that the Hearing required to be adjourned for a period, in the interests of justice and to ensure the claimant was not prejudiced in any such proceedings. As a consequence, the Hearing was not resumed until after the conclusion of the investigation by the PSNI and the criminal proceedings subsequently brought against the claimant, which were dismissed, were concluded.

 

The first respondent's investigation of the incident on 2 June 2015 concluded that, had the claimant remained in the employment of the first respondent, there would have required to be a formal referral under the relevant disciplinary procedures of the first respondent. Because of the claimant's said resignation, this did not take place.

 

2.8 In a date in early May 2015, Patrick Pendleton, an experienced Band 3 Day Care Worker, who had worked at the day centre for approximately nearly nine years, was organising in the group room a group cookery session with the service users who were of mixed abilities. Mr Pendleton completed an equality and harassment training seminar on 18 November 2014. This was a regular and popular occurrence with the service users. After discussion with the service users, it was agreed toasties would be made at this particular sessions. The claimant was assigned to work with Mr Pendleton. Mr Pendleton told the claimant he had tried reception to obtain petty cash in order to buy groceries for the session, but there had been no reply. At no time was there any agreement or discussion between them who would go to the shop to buy the ingredients for the session. The claimant then left the room, without telling Mr Pendleton, leaving him on his own and with no knowledge of where she had gone. Mr Pendleton assumed she had gone for a smoke, as she had been known to do previously; although it would now appear she had given up smoking approximately a year earlier. The tribunal noted the claimant, in evidence, had no appreciation of the seriousness and/or the potential consequences of leaving Mr Pendleton on his own, if an incident should occur with a service user when she was absent in such circumstances. The tribunal does not accept the claimant told Mr Pendleton she would go to get the petty cash from reception but first would go to her car to get medication for a headache for stress. It does not accept she ever mentioned to him she had such headache. The claimant returned some ten minutes later and complained Ms Coyle, the Assistant Manager, had questioned her about where she was going and what she was doing. She told Mr Pendleton there was no petty cash and Ms Coyle had offered to pay for the ingredients herself.

 

 

The tribunal accepts Ms Coyle, when in the reception office observed the claimant at reception asking for some petty cash and being told by the receptionist she could not have any petty cash as the safe keys were with someone else and the receptionist was going to the bank. At this point Ms Coyle asked whether the petty cash was needed for buying the ingredients and offered to pay for those herself and to get reimbursed later. The claimant told Ms Coyle she did not need to go to the shops as her lunch was in the car and made no reference for the need for medication for any headache. A short time later, Ms Coyle went into the group room, on her way back to the office, which was opposite the group room and asked the claimant if the shopping issue had been resolved. The claimant angrily replied to her "I do not need to go to the shop, Paddy can go as he is the same as me" (ie the same Band 3 grade). Ms Coyle politely and calmly explained, to the claimant, in a professional manner, it would be better if she went as Mr Pendleton was, in essence the "leading" person in the room in the absence of any Band 5 staff, having been regularly based in that room since 2 July 2007 on most days. The claimant clearly, and wrongly in the tribunal's view, did not accept the reason given by Ms Coyle why she should go to the shop and not Mr Pendleton but, in particular, resented that Ms Coyle, her line manager, was giving her such instruction, when Mr Pendleton was the same grade. Given the confrontation that had developed and to avoid causing any upset to service users in the room, Mr Pendleton decided to go quietly himself to the shop and buy the ingredients for the cookery session. Again, in the tribunal's view, this was a proper decision made by Ms Coyle and had nothing to do with the claimant's race/nationality.

 

It is correct that, shortly after this incident on or about 6 May 2015, the claimant had a supervision session with Ms Delaney. This was part of a regular series of supervision sessions. The claimant agreed to attend, on her own, as her chosen advocate, Ms O'Hanlon, was not at work that day. The tribunal does not accept Ms Delaney gave a lecture about her having a "leading" person in the room but clarified to the claimant the role and practicality of having someone who was familiar and up to date with the care needs of the service users in the group room. The claimant at all times was a "floater" going where required and was not based in any particular room in the same way as Mr Pendleton had been since in or about mid-July 2007. Indeed, the tribunal noted that, although the claimant had not signed the supervision form, despite being asked to do so, the session was felt to be agreeable by Ms Delaney and she felt the claimant had moved forward in her practice and progress and that progress had been made in the session. The tribunal is satisfied that Ms Coyle, as the Assistant Manager was entitled to ask the claimant, as she could and would any member of staff where she was going, what she was doing and further was entitled to decide that the claimant would go to the shop rather than Mr Pendleton. The claimant wrongly resented being given such instruction and sought, in the course of her evidence, to exaggerate what had happened. The tribunal does not accept that at any time that Patrick Pendleton was rude to the claimant. However it accepts Mr Pendleton did, on occasion, have concerns with the claimant's work performance which he referred, in an appropriate manner to line management to be dealt with in supervision sessions with the claimant rather than raising any such issues with the claimant directly. Again, in doing so, the tribunal is satisfied this was solely due to his concerns about her work performance and her race/nationality was not relevant, where he referred it to line management.

 

 

 

2.9 It is necessary to note that the incidents referred to in the previous sub-paragraphs fell within the statutory three month time period for the purposes of any claim brought by the claimant and to which further reference will require to be made later in this decision.

 

2.10 The claimant, on various occasions, in the course of her employment, made insensitive remarks to service users which were witnessed by Ms Jane Braiden, who had worked at the centre for some nineteen years and was an experienced Band 5 Day Care Worker and who completed equality and harassment training on 18 November 2014. These remarks, the tribunal accepts, had to be addressed by Ms Braiden in supervision. The claimant failed to appreciate, during the course of her employment, she could not say what she wanted or do what she liked, especially in front of service users, many of whom had challenging behaviour issues. When challenged by Ms Braiden on these matters, the claimant wrongly considered this was because she was Polish, whereas the tribunal is satisfied it was appropriate supervision/line management of the claimant by Ms Braiden, her Band 5 supervisor.. The claimant, in the view of the tribunal, failed to appreciate the difficulties for staff to care for such service users and the necessity to be careful in what she said or did with them.

 

On one occasion, for example, she pointed at a female service user and asked Ms Braiden why she was giving this female service user a dinner as she was large. The service user overheard the remark and had to be calmed as she was upset by what the claimant had said. Ms Braiden had to tell the claimant the service user was entitled to have a dinner, whether she was overweight or not and she should not have made the remark so it could be heard by the service user.

 

On another occasion, Ms Braiden was working with the claimant escorting a service user and in the hearing of the service user, who has challenging behavioural issues, said he smelt and asked why his mummy didn't wash his top. The service user, who does not like to be washed hit out at Ms Braiden as he clearly understood what had been the said and had to be reassured by Ms Braiden that he was ok. The tribunal is satisfied, despite the claimant's denial, that this was said by the claimant and was correctly challenged by Ms Braiden in the circumstances and, when doing so, it had nothing to do with her Polish nationality, as alleged by the claimant.

 

2.11 The claimant had initially had a good working relationship with Ms Braiden but, unfortunately, this deteriorated after an incident with her about September 2009 when the claimant had had a discussion with another Band 3 care worker at about incidents against people from Eastern and middle-Eastern Europe in the village area of Belfast. The claimant told Ms Braiden she did not like AT as she was a Protestant. AT overheard this remark and reported it to Ms Coyle. The tribunal does not accept Ms Braiden, after she had left Ms Coyle's office having been spoken to about this incident, coerced her into telling her what had been said in the office by Ms Coyle. Ms Braiden properly told the claimant not to speak about religion as she and others were Protestants and this caused offence. Despite being told this by Ms Braiden, the claimant replied - "why are you a Protestant, you are such a nice girl". Ms Braiden emphasised to her that she was not discussing the matter further with her; but it resulted in the claimant only speaking to Ms Braiden about work issues and not about non-work matters, as she had previously, such as about her family. The tribunal, in the circumstances, could not see that what took place, as described above had anything to do with the claimant's nationality as suggested by the claimant in these proceedings.

 

2.12 In or about February 2014, it was reported to Ms Braiden as a Band 5 Care Worker, who has a supervisory role, by the Band 3 worker Ms VR, who is Dutch, who did not give evidence to the tribunal, that the claimant, in an outing to Lisburn with service users, had bought herself a burger in a Burger King restaurant and had eaten it, accompanied by the service user H, who did not get any food. This service user H loves food and drools at the sight of food. The background to this was that the claimant had been told, before the outing, as part of a healthy eating campaign discussion that no burgers were to be purchased at McDonalds on the outing and that, if the service user W, was on the outing that he only got a McDonalds as a treat and therefore staff were not to get a McDonald's burger if W or others could not get it too. The mother of W had asked specifically that W should only be allowed a burger as a treat. When challenged by Ms Braiden, the claimant defiantly replied she had not gone to "McDonalds" but to "Burger King". In the tribunal's view, the claimant's reaction was symptomatic of her attitude that she could do as she liked, regardless of the instructions given to her for good reason, as part of the healthy eating campaign. However, the tribunal also accepts that, as far as Ms Braiden was concerned, it did not matter whether the claimant had bought a Burger King or a McDonalds Burger, but what mattered for her was the breach of instructions. The claimant tried to avoid the issue, as seen by her said response, when properly challenged by Ms Braiden. The incident was correctly properly dealt with by Ms Braiden at a subsequent supervision session and the claimant was reminded the staff must not get fast food if the service users on the particular outing could not get it as well. Again the necessity to be spoken to at the time and subsequently required to be dealt with at supervision had nothing to do with the claimant's race/nationality. The matter had been properly reported to Ms Braiden by Ms VR, who was not from Northern Ireland but Dutch. Given the difficulties of working with such vulnerable service users and the duty of care required to be given, the tribunal is satisfied, where such a breach of instructions has occurred by a Care Worker, and noted by a fellow worker, that the latter will be obliged to refer it to a member of the line management to ensure it does not happen again. Again to do so in a matter of good practice and nothing to do with race/nationality.

 

2.13 In another incident, in or about April 2014, Ms Braiden was with Ms VR, and the claimant entered into the group room and stood close to the radiator. Ms Braiden asked her to move as she was too close to a service user, who has challenging behaviour issues, and in particular, does not like anyone invading his personal space, as he gets distressed; all of which would have been known to the claimant. The tribunal is satisfied that the claimant told Ms Braiden she was cold and unwell. Ms Braiden, in the circumstances, suggested that she should take sick leave. She replied she did not want to use her sick leave as she needed it for the summer time when her child (or younger daughter) was off school. This conversation was witnessed by Ms VR. In or about July 2014, the claimant took sick leave and then went on term leave, returning in September 2014. In light of the previous conversation, Ms Braiden reported the conversation to Ms Coyle under the whistleblowing policy, who in turn passed it on to Ms Delaney. Ms Braiden signed the statement about what the claimant had said to her, as set out above, which was countersigned by Ms VR. In light of what she had been told by the claimant and her subsequent absence, the tribunal is satisfied Ms Braiden felt it necessary to report it to Ms Coyle under the said policy and, in particular, she would have done so, if any other employee had said the same and subsequently, had gone on leave in similar circumstances. Therefore, again, this had nothing to do with the claimant's race/nationality.

 

2.14 On a date unknown in 2008, the claimant was in a group activity when there was some general discussion involving the claimant and some members of staff from Northern Ireland, whom the claimant named in these proceedings; and one of them, whom the claimant could not identify however in evidence, made a remark to the effect "foreigners come to the UK and take our benefits, jobs and homes". The tribunal is satisfied such a remark was probably made by one of the members of the staff from Northern Ireland but found it significant that the claimant did not complain to Mr O'Hagan, an Assistant Manager at the day centre, at the time, about any specific remark made, such as referred to above or, indeed, identify any member of staff who had made such a remark. The claimant did comment at the time to Mr O'Hagan however that staff had hurt her feelings; but did not provide him with any further details about the remark including who said it nor did she ask him to take any further action. Although the tribunal accepts such a remark was made, it is not satisfied it was directed at the claimant, and this was accepted by the claimant at the time. If it had been, the tribunal considers the claimant would have given Mr O'Hagan's specific details and asked him to take further action. Indeed, the tribunal is satisfied Mr O'Hagan, if such details had been given, would have found out exactly what was said and by whom and, if necessary, take further appropriate action.

 

2.15 The tribunal is satisfied that the day centre frequently organised for the service users a variety of cookery demonstrates, including American, African, Dutch, Italian and Irish on St Patrick's Day. This was to help to provide sensory stimulation for the service users and the other members of staff were encouraged to help with flags, banners, music appropriate to the said cookery demonstration taking place. Mr O'Hagan encouraged the claimant, in the summer of 2009, to organise a Polish cookery demonstration. The tribunal is satisfied the claimant was keen to arrange the session and take part in it and obtained the necessary ingredients, and that she did not express any concerns to Mr O'Hagan in arranging such a session because of reaction by others to her doing so. The tribunal is further satisfied that Mr O'Hagan received, by way of feedback, from other staff and service users that the session had gone well. The claimant never complained to Mr O'Hagan that a staff member had told her to switch off that "horrible Polish music" which was playing and that when she put on Chopin was told by the same member of staff, who identity was known to her to switch off all music. The tribunal is not satisfied such a remark was made. This was clearly an inclusive activity, recognising the claimant was Polish and it has no doubt that, if she had felt such a remark had been made with a racial inference, she would have complained to Mr O'Hagan at the time; but significantly she failed to do so.

 

2.16 Mr O'Hagan did have to speak to the claimant, as part of her supervision, on or about 2 October 2008, about the frequency of bathroom breaks, every 10 to 15 minutes, which the claimant was taking. This had been reported to him by other staff members, as her frequent absence meant a service user, whom she had been assigned to and who required one to one support due to his profound and complicate difficulties and challenging behaviour, had to be supported by other members of the team and taken away from their other duties. When questioned by Mr O'Hagan, the claimant said that she required to go to the bathroom so frequently for health reasons. This had never been raised before by her or in health checks. Surprisingly, in the tribunal's view, she felt, as she admitted in evidence, she had never thought it necessary to do so. In any event, the tribunal is satisfied that the fact that this had to be raised as a matter of supervision was nothing to do with her nationality, it was solely because of the difficulties it was causing for other care workers in the team in managing the necessary support for this service user.

 

2.17 Ms Hanna was an experienced Band 5 Day Care Worker at the day centre and was therefore senior to the claimant and had a supervisory role in relation to the Band 3 Care Workers, such as the claimant. On 18 November 2014, Ms Hanna completed her equality and harassment training.

 

Having observed Ms Hanna closely giving her evidence the tribunal was not satisfied Ms Hanna ever called the claimant "a skinny bitch". Indeed, she clearly realised to have done so would have been offensive to the claimant. As part of her frequent exaggeration in giving her evidence, the claimant suggested this remark was made by Ms Hanna on a daily basis; but yet she does not appear to have complained for example, to Mr O'Hagan about such daily remarks made by Ms Hanna.

 

In or about 2014, the claimant took a service user to the library and on that visit showed him a Polish website on the computer at the library. This 31 year old service user has severe learning disabilities, challenging behaviour, autism, as well as the mind of a 5 to 6 year old. He has limited concentration span and his daily routine is very important to him. His mother is main carer. At a review meeting with the mother, shortly after the visit to the library, his mother asked Ms Hanna if there was a Care Worker from Poland. Ms Hanna agreed. The mother of the service user said the claimant had shown her son a Polish website on the computer at the library, which she did not like her doing. His mother explained that her son finds basic English difficult to understand, never mind a foreign language or culture and such a site would be of no use to him as he was unlikely to ever visit Poland. She made it clear she was not making a formal complaint but was asking Ms Hanna to speak to the claimant. Ms Hanna did speak to the claimant and said the service user's mother did not want her to do it again, pointing out the difficulties with this service user and the mother's concern. The claimant suggested, in response, that the service user had enjoyed what she had done. Ms Hanna properly emphasised to the claimant that it was necessary for Care Workers of the day centre to respect the service users and the family/carer's views, even if, at times, they did not agree. The tribunal is satisfied the claimant at the time, following this meeting with Ms Hanna, said she was happy with what had been said and understood. In particular, the tribunal has no doubt that Ms Hanna would have taken the same action, whatever the Care Worker's nationality and was a further example of proper and appropriate supervision, which the claimant has sought, wrongly, in the tribunal's view, to make, in the course of these proceedings, an example of less favourable treatment and/or harassment on the grounds of her race. The tribunal does not accept that she was shouted at by Ms Hanna at this meeting following the visit to the library and review with the service user's mother. Indeed, the tribunal has grave doubts the service user could, given his difficulties, had taken part in the way the claimant suggested, asking questions about, for example language and culture shown on the website. Again, this was a further example of the claimant not liking to be told by those supervising her what to do or how to do her job, when caring for these vulnerable service users.

 

2.18 A further example of the claimant's reluctance to do her job as required and to act upon the instructions of her supervisor Ms Hanna occurred on or about 18 September 2014. The claimant was in a group at the day centre, with approximately five to six service users, and was working on the computer in the room. There was some doubt what the claimant was doing on the computer, whether she was purchasing a computer package for her own PC at home or seeking to write down a code for a particular package or just checking her emails; but, in any event, an incident of challenging behaviour with a service user had occurred in another room and approximately another five/six additional service users came into the room where the claimant and Ms Hanna were working. Ms Hanna asked the claimant, on a number of occasions, to come off the computer and to support her and help her to give out drinks to the large group of service users now in the room, to reassure everyone and to prevent another incident of such behaviour occurring in this room. The claimant wrongly did not come off the computer when asked and ignored Ms Hanna so that Ms Hanna became visibly upset, with the consequence another member of staff felt it necessary to ask Mr O'Hagan to come into the room. Ms Hanna explained to Mr O'Hagan what had happened and Mr O'Hagan emphasised to the claimant that she had to support Ms Hanna. He passed the matter on to be dealt with at supervision by Ms Delaney. The tribunal has no doubt the actions of the claimant annoyed and upset Ms Hanna and she spoke sharply to her in the circumstances; but it does not accept that she shouted at the claimant. Indeed, Ms Hanna apologised to the claimant for speaking sharply, explaining she was under pressure at the time and needed the claimant to give off the computer as she needed support and help. Again, the tribunal has no doubt the claimant's nationality was irrelevant to the reaction of Ms Hanna and is a further example of the claimant "doing her own thing"; and, when questioned, as part of supervision, blaming it on her nationality, when this was irrelevant but arose from her own actions and, in particular, her failure to come off the computer, when asked, because of the difficult situation in the room which had arisen.

 

2.19 Ms Fleming, is an experience Day Care Worker Band 3, who had worked in the day centre from 10 March 2008 following her return from the United States of America. On 18 November 2014, she completed her equality and harassment training session. During her time at the day centre, she worked with Care Workers from different nationalities, without any difficulty. The tribunal is satisfied that, on a number of occasions, Ms Fleming reported the claimant to the Assistant Managers or Band 5 staff because the claimant was not carrying out her routine duties or was delivering poor practice to the service users; but, in doing so, this had nothing to do with the claimant's nationality but the way she carried out her work and her concern for the service users.

 

For example, on or about 22 April 2013, the claimant was organising a cookery session, making pizzas for the service users, in the room she was assigned to that particular day. A Band 3 Care Worker P who was working with the claimant, came into Ms Fleming's room next door and offered her a piece of the pizza. She did not demand it, as suggested by the claimant. Sharing of such food that had been made occurred on occasion. The claimant came in and snatched the pizza from the worktop and spoke very sharply and aggressively to Ms Fleming, to such an extent she became alarmed. Apparently the claimant, unknown to P, had been saving this piece of pizza for a particular service user, who was absent for a period. The tribunal does not accept the claimant calmly explained the situation when she came into the room, which had clearly arisen due to a misunderstanding by P. Ms Fleming was not concerned about not having the pizza but the way the claimant had spoken to her. She spoke to the claimant about the way she spoke to her; but she did not want to know. Ms Fleming reported the behaviour to the Assistant Manager Ms Coyle. Again this was nothing to do with the claimant's nationality but the way she had spoken to a fellow worker. Ms Coyle properly arranged a meeting with Ms Fleming and the claimant about the matter and emphasised the necessity for the Care Workers to work as a team; given their work with the vulnerable service users; but again, the claimant resented any attempt by a line manager to rebuke her about the way she spoke to another member of staff, which had arisen over a simple misunderstanding by P.

 

In a further incident in or about 2014, Ms Fleming was with a group of service users on a library visit, similar to that which had given rise to the incident involving the service user and the Polish website, referred to previously. When the claimant was leaving she was supervising a service user, who had become very vocal and was drawing the attention of other users of the library, some of whom had become concerned the service user was not being properly supported by the claimant. As this was taking place, the claimant was on her mobile phone, apparently dealing with a personal matter; but, despite Ms Fleming having to talk to the service user to calm him down the claimant continued to remain on the phone and not to look after the service user. Ms Fleming reported this to Mr O'Hagan, the Assistant Manager and Ms Braiden, the Band 5, again not because of her nationality but because of her failure to properly look after the service user in the circumstances.

 

2.20 Lynn Wade was also an experienced Band 3 Care Worker at the day centre for approximately nine years. She also completed her equality and harassment training on 18 November 2014. She also had experience of working with Care Workers from outside Northern Ireland without any complaints. The tribunal is satisfied that she and the claimant had had a good working relationship and shared, during conversations, detailed matters relating to their personal life, despite the claimant's denial in the course of her evidence. The tribunal does not accept Ms Wade, as an experienced bus guide, failed to properly engage with the service users, offering support when needed. In particular, the tribunal is satisfied Ms Wade and the other Care Workers, when working on the bus with the claimant, treated her without any distinction, and that the fact that some of the Care Workers on the bus were from Northern Ireland and the claimant was from Poland was irrelevant and did not arise as an issue. In particular, she was not singled out or ignored by the other Care Workers from Northern Ireland, as she suggested in evidence.

 

The tribunal is satisfied that, on occasion, Ms Wade, as an experienced Care Worker did give the claimant informal advice/guidance, reminding her of a particular service user's need and how best to support him/her. Rather than been grateful for such advice/guidance, the claimant would ignore the advice and not speak to the claimant for a period of time. In contrast, Ms Wade was always grateful if the claimant gave her similar advice, if she was working with a particular service user whom the claimant knew better than her. Such giving and taking advice was all part of team working under the Trust's Working Well Together Policy and was of particular importance where the Care Workers were required to work together in a particular challenging working environment, due to the particular needs of the vulnerable service users. The tribunal is satisfied that the giving of such advice, in the circumstances by Ms Wade to the claimant had nothing to do with the claimant's nationality. The tribunal is satisfied Ms Wade, if necessary, would give similar advice to other Care Workers and receive some in return and the situation was not unique to the claimant, and certainly not related to her race/nationality.

 

A particular service user who is registered blind and has severe learning disabilities and challenging behaviour requires to be supported daily by one Care Worker in a room designed her needs, including wall padding as she self‑injures. She can become very agitated and prefers when this happens to be left alone. Under the Personal Care Plans/Guidelines for that particular service user, when this occurs, the staff on duty require to leave the room and observe her through the door window to allow her to relax and have her own personal space so that staff can return in time. On 17 February 2015, the service user became very agitated. Ms Wade called the claimant, who was on duty with the service user, to come out of the room and reminded her of the said Guidelines and how best to support the service user when this occurs. The claimant did not speak to Ms Wade or acknowledge what she had said but immediately entered the room again. The service user became even more agitated to the extent Ms Wade, when she went to the window, could see the service user was hitting her head repeatedly with her fist, making her forehead red and was sweating profusely. Again, Ms Wade asked the claimant to come out of the room and reminded her of the Guidelines. Again, the claimant ignored Ms Wade and went straight back into the room. After a further short period, the claimant did leave and supervised the service user from the corridor, looking through the window, in accordance with the Guidelines. Later the same day, Ms Wade noticed the claimant was walking past the bathroom and the claimant was standing in the corridor with her foot in the door. This is contrary to good practice as it is an affront to this service user's dignity as many others use the corridor. Ms Wade reminded the claimant of the risks involved due to this service user's visual impairment and the hard surfaces in the bathroom and how it was essential, as per the Guidelines, for this service user to be accompanied and supported throughout her personal care in the bathroom. The claimant said to Ms Wade - "I also work with the service user and know her well"; but significantly went into the bathroom and closed the door. The tribunal is satisfied the claimant clearly knew the Guidelines but had decided to ignore them, once again doing the job as she decided it should be done and ignoring appropriate instructions. It was not surprising in the circumstances Ms Wade reported these matters to Mr O'Hagan, the Assistant Manager. In doing so, this had nothing to do with the claimant's nationality/race and the tribunal has no doubt that Ms Wade would have taken the same action if another Care Worker, whether from Northern Ireland or elsewhere, had done the same thing. Ms Wade was clearly a conscientious Care Worker who was anxious to fully and properly comply with the relevant Guidelines for the various service users, fully recognising the problems and difficulties that arise if the Guidelines are not followed. Mr O'Hagan properly dealt with these matters at supervision and, in essence, reminded the claimant of the said Guidelines for this particular service user which the claimant at supervision agreed she understood and was happy to follow. Again such action by Mr O'Hagan was not because of her race but because there had been a failure by her to follow Guidelines, which she had to be reminded about.

 

2.21 Martina O'Connor worked as a Day Care Worker Band 3 at the day centre from in or about 2005 to 2012 with the claimant, before her promotion to Band 5 at a different day centre, working alongside Care Workers from other nationalities, without criticism or complaint.

 

The tribunal is satisfied that Ms O'Connor, in or about 2010, in the course of general discussion and out of interest, as would be normal between staff working together, asked the claimant about Poland, its culture and its food. She may well have referred to how poor the country was. The tribunal, not without some hesitation, concluded Ms O'Connor may also have made remarks, in such discussion, about immigrants coming into the UK and taking their jobs and using the NHS for free; but, it is satisfied that the remarks, which arose in general discussion, were not directed at the claimant or any of her family or friends and the claimant fully understood this at the time. If she had thought otherwise, the tribunal is satisfied she would have made a specific complaint but she did not. The tribunal also noted that, in the course of such general discussion, the claimant was quite prepared to talk about Irish inbreeding and in particular in West Belfast.

 

The tribunal is satisfied Ms O'Connor did find it difficult to work with the claimant as she was not, in her view, a team player and, in her way, did not always pull her weight with the other Care Workers, given she would frequently, for example, be on her mobile phone, talking to another staff member, smoking or eating in the toilet; and, when challenged, about such matters would always say it was to do with her race.

 

2.22 On or about the morning of 15 June 2009, the claimant, with other Band 3 Care Workers, including Mr G. McCusker, were out on a bus outing with service users. The claimant asked the driver to divert from the normal route back to the day centre as she said she wanted to check the heating in her home as her child/her children were at home alone and she wanted to ensure they were not cold. As a result of this diversion, the service users on the bus narrowly missed not having their lunch, which would have been a very serious omission, given difficult needs and since food can only be kept hot at the day centre for a limited period of time before it has to be discarded. During this diversion, the claimant told Mr McCusker and the other Care Workers on the bus the children were underage. Mr McCusker, being concerned about not only the diversion and the time factor involved in relation to lunch became particularly concerned that a child protection issue may have arisen if underage child/children of the claimant were at home alone. He properly, in the tribunal's view reported what happened to Ms Coyle. Ms Coyle consulted human resources before seeing the claimant for a supervision meeting on 16 June 2009, in view of the potential child protection issue. At the meeting, as confirmed in the supervision notes which were subsequently signed by the claimant, she spoke to the claimant about using the Trust bus during working hours to check on her child/children. In the course of this meeting, the claimant insisted she had only been joking about the children being underage and Mr McCusker should have understood it was a joke. Ms Coyle also advised the claimant she needed to ensure she had proper child care in place in order to carry out her duties successfully and securely. The claimant, instead of accepting the correctness of the advice given to her about the incident, was only interested in finding out who had reported her. When she was told by Ms Coyle Mr McCusker had done so, she subsequently went out and confronted him for reporting her. Again, the fact the claimant was reported and required to be the subject of supervision had nothing to do with the claimant's nationality but all to do with her request for the diversion of the bus from its normal route.

 

The tribunal found of some significance that the claimant during her evidence, in relation to this matter, when shown the supervision notes, confirming the matters outlined above and signed by her, sought to deny her signature on the notes, which was patently untrue. The tribunal had serious concerns whether the reason given by the claimant at the time was the true reason for wanting to divert the bus home since it was probable the children were in fact at school at this time. However, this was the reason given by her at the time, as set out in the supervision notes and which had led to the supervision meeting. Whatever the reason for seeking the diversion, the tribunal has no doubt that the claimant's race had nothing to do with why she was reported and the subject of such supervision. During the supervision meeting, Ms Coyle also spoke to the claimant, as set out in the notes, about the frequent use by the claimant of her mobile phone, which as seen in this decision, was a frequent criticism of the claimant by other members of staff at the day centre. Again, for Ms Coyle to raise this at a supervision meeting had nothing to do with the claimant's race but a failure in her work practices which criticism Ms Coyle was entitled to make of any Care Worker doing the same thing. However, again wrongly, in the view of the tribunal the claimant related this to her race and resented any such challenge to the way she was doing her work by anyone in authority. It was a further example of the claimant "doing her own thing", regardless of advice by those required to supervise and/or line manager".

 

2.23 Ms Cathy O'Neill is a Band 3 Care Worker at the day centre for some fourteen years, who had also worked alongside other care staff from other nationalities without any complaint or criticism. She carried out equality and harassment training on 18 November 2014, like a number of other Care Workers, at the centre, as referred to previously.

 

The claimant alleged that Ms O'Neill was involved with Ms Wade in the incident on the bus in January 2013; whereas she did not start to work with Ms Wade until September 2013. This was a further example, in the tribunal's view, the claimant's willingness, in the course of her evidence to make allegations, without regard to the accuracy either as to timing or personnel involved.

 

The tribunal does not accept that Ms O'Neill, as an experienced bus guide of some fourteen years, failed to interact or engage with the service users on the bus as required and necessary, in accordance with good practice in order to meet the individual and specific needs of the service users on the bus at any given time.

 

The tribunal is satisfied that Ms O'Neill did not single out the claimant and ignore her as she has suggested. Rather, the tribunal has no doubt the claimant would have regularly joined the other Care Workers in the group room at lunch, where there was general discussion, including about their families and other personal matters. However, the tribunal is satisfied that, whenever the claimant was challenged by Ms O'Neill about some aspect of her practice which she considered was not correct, the claimant would react by not speaking to Ms O'Neill for a period of time on such an informal basis, save where she was required to do so in the course of her work.

 

In this context, for example, the tribunal noted that Ms O'Neill had been a witness to the events of 17 January 2015, referred to previously and had heard the conversation between Ms Wade and the claimant, as the claimant had clearly realised. Following this, the claimant again did not speak to Ms O'Neill for some weeks, unless she was required to do so as part of their work together. The tribunal does not accept that Ms O'Neill ignored or singled out the claimant; although it accepts the claimant herself chose not to speak to Ms O'Neill or Ms Wade because she did not like any other Care Workers challenging the way she was doing her work, as seen above.

 

Indeed, during the course of her evidence, the claimant admitted that she had stopped speaking to Ms O'Neill because she said Ms O'Neill told lies, which the tribunal does not accept that she did in the circumstances.

 

In a further example, prior to 2015, there was an incident involving the claimant and Ms O'Neill who were working with a particular service user D, who has complex needs and challenging behaviour. The claimant took D to the bathroom for her personal care. Ms O'Neill then discovered D in the corridor on her own, with the claimant nowhere to be seen. Ms O'Neill supported D back to the group room, as the service user has vertigo and is unsteady on her feet. Ms O'Neill, properly in the tribunal's view, challenged the claimant about leaving D on her own but the claimant accused Ms O'Neill, wrongly in the tribunal's judgment, of overreacting and, again, she did not speak to the claimant for some weeks, save when she had to do so in the course of their work together.

 

The tribunal is satisfied that Ms O'Neill did not like working with the claimant but this was not because of the claimant's race but because the claimant, in the opinion of Ms O'Neill was not pulling her weight and doing her job properly by, for example, leaving the room randomly, speaking to other staff when she should have been doing her own job, frequently using her mobile, with the consequence that on occasion Ms O'Neill had to remind the claimant to do the jobs which were part of her duties in any working day and to advise about such bad practice on the part of the claimant when dealing with the vulnerable adults. The tribunal has no doubt that Ms O'Neill, if she had been required to do so, would have said the same to any other Care Worker in similar circumstances and when she did it to the claimant it had nothing to do with the claimant's race/nationality. Again, the claimant resented been told what to do on such circumstances preferring always "to do her own thing" and then to avoid speaking to and/or ignoring Ms O'Neill for a period.

 

It is correct that the claimant, on one occasion accused Ms O'Neill of getting personal shopping whilst at the shops to purchase treats for the service users and/or for one of their cookery sessions. The tribunal is satisfied that Ms O'Neill, at the relevant time, was only purchasing goods for the service users and that, in that, in the circumstances, Ms Coyle, when the matter was reported to her by the claimant, was entitled to accept Ms O'Neill's explanation.

 

2.24 During the period of the claimant's employment at the day centre, the claimant's line managers were Margaret Johnston, the Manager of the day centre together with Maureen Coyle and Moya Delaney the Assistant Managers. All were experienced and long standing Managers at the day centre, dealing with vulnerable service users with complex needs and difficulties and each of them had completed relevant equality and harassment training by in or about November 2014.

 

During the course of her employment, the claimant was the subject of formal and informal supervision in relation to practice issues by each of her said line managers, as referred to previously in some detail. The tribunal is satisfied that other care workers at the day centre were also the subject of such supervision, when required and needed. Indeed, the claimant, in the course of her evidence to the tribunal, never produced any evidence of any relevant comparators who were treated differently to her and in what circumstances other than to make the general allegation that she had been treated differently because she was from Poland.

 

During the course of the hearing, detailed notes prepared by each of the line managers of relevant supervision meetings were produced in relation to these practice issues, which require to be addressed in relation to the claimant; and which the tribunal accepts are accurate notes of these meetings, which are at all times properly and fairly conducted by the said line managers. The tribunal considers it significant and relevant in the context of these proceedings that at no time, following any such supervision, was the claimant the subject of any disciplinary action. However she has, at all material times, resented and has had an adverse reaction to any advice or guidance given to her by her line managers in relation to how she could better do her work and carry out her duties in accordance with good practice; but has wrongly sought to invoke a racial element, for which there was no evidence, from any such supervision by her line managers carrying out their proper supervisory/line manager duties. The tribunal does not accept that this involved harassment by any of them but rather were properly carried out by them in order to ensure that the claimant was fully aware of how she was required to do her duties, for her to improve and to exercise the appropriate duty of care to the vulnerable service users at the day centre. The tribunal has no doubt that during such meetings, Ms Coyle and the claimant may have discussed where she was living and/or the various moves she made during the course of her employment and the different costs in different parts of Belfast and the convenience of some areas to the day centre. However, the tribunal is satisfied all such conversations were part of normal discussion with her line managers, such as Ms Coyle and there was no racial element, as suggested by the claimant.

 

The claimant was not prepared to accept that Band 5 Care Workers, like Ms Hanna, whose role is not unlike a Staff Nurse, as part of that role had to give instructions to all Band 3 Care Workers, including the claimant and, if necessary, give guidance and advice if the Care Worker was not doing their duties correctly. Doing so was not, in the tribunal's judgment bullying or harassment but rather was appropriate supervision/line management. It is correct that Band 3 Care Workers are at the same grade/level as the claimant but given the duties of such workers involved in dealing with groups of vulnerable service users, many of whom had unique requirements, required considerable team work amongst the Band 3 Care Workers. This required interaction between them to ensure the job was done correctly and appropriate care given to the service users. Again, in the tribunal's view, the claimant wrongly resented any such advice/guidance in the way she carrying out her work given by a fellow Grade 3 worker as part of their teamwork together and has wrongly suggested any such advice/guidance given by a fellow Grade 3 worker because of her race/nationality, whereas it was part of normal teamwork and interaction between workers at the same grade caring for vulnerable service users at the day centre.

 

2.25 It is correct that, in or about January 2010, the claimant asked Ms Coyle for a transfer to a different day centre, saying the other centres which she suggested she wished to be transferred had more activities/outings. Ms Coyle fully explained to the claimant that the first respondent did not have a transfer policy and transfers would normally only occur if there was a medical reason for such a transfer or the Care Worker could not deal with a manual handling requirements of the role or the challenging behaviour of the service user, none of which reasons applied to the claimant. The tribunal does not accept Ms Coyle, when explaining the above issues said to the claimant she was "a bad member of staff, nobody wants to work with you nobody likes you". The tribunal is also not satisfied that Ms Coyle said to the claimant at any time "she must starve herself as she was so skinny"; rather the tribunal has little doubt that, on occasion, Ms Coyle complimented the claimant on her appearance, hair style and outfit and, indeed, encouraged the claimant's undoubted interest in fashion to incorporate this in group activities with the service users.

 

2.26 At a meeting on 13 October 2009, Ms Johnston, had with the claimant, who was accompanied by room union representative, she asked for and was given a copy of the Trust's sick absence policy. This had followed a period of sick absence and the claimant was reminded of the necessary for good attendance and that her absence would be monitored. In response, the claimant referred to stress at work and in this context referred to staff having made remarks about benefits and people from other countries taking jobs and overhearing staff staying this. When she did so, she referred to staff who had left or were on maternity leave. However, the tribunal considered it significant that she did not suggest to Ms Johnston that any such remarks were directed at her personally nor did she give any details of the precise remarks made against her. Indeed, her union representative advised that she was referring to issues in the past and that she should move on and make a new start and, in particular, did not suggest to Ms Johnston that there required to be any further action taken in relation to these remarks. The claimant appeared to have agreed at the time with her union representative's approach to this matter.

 

2.27 There was a meeting between Ms Johnston and the claimant on 26 January 2010, again accompanied by her union representative. This was a follow up meeting over her poor attendance at work due to cold/flu and following a referral to Occupational Health who had confirmed there were no significant health issues or child care issues for the claimant and was to ensure her sick leave absence had improved and she was complimented on it. Ms Coyle was not present at this meeting, as suggested by the claimant. In particular, there was no allegation of harassment and bullying by the claimant at this meeting.

 

2.28 The claimant did not call any witnesses to corroborate her claims and in particular did not call the union representative who was present at many of the supervision meetings with Ms Johnston and/or Ms Coyle and/or Ms Delaney which, as set out above, the tribunal is satisfied were conducted properly and fairly and did not involve any bullying and/or harassment against the claimant. Further she did not call as a witness her advocate, a fellow worker, who was also at many of these supervision meetings. Given the claimant's allegation that these meetings were examples of bullying and harassment by the claimant's said line managers because she was Polish, the tribunal would have expected the claimant to have called either her union representative or her advocate to corroborate her allegations against the said line managers.

 

In the course of one meeting with Ms Johnston, the claimant said that a Care Worker from Africa had agreed with her they had both been treated unequally. She gave no evidence of such unequal treatment. It is correct that there was a member of staff from Kenya but she left in November 2008 due to a family bereavement and not because of any allegation or unequal treatment. Indeed, she subsequently kept in contact with Ms Johnston and, contrary to the view expressed by the claimant, thanked the staff and management for their concern and support during her employment at the day centre.

 

2.29 The tribunal found the claimant, as set out in the findings of fact, referred to in the previous sub-paragraphs, to be an unsatisfactory and unreliable witness, who lacked credibility and in particular was prepared, during the course of her evidence to make sweeping allegations about the respondents' witnesses, without regard as to accuracy, timing, personnel involved or indeed the factual basis of the said allegations made by her. Where there was a dispute between the claimant and any of the respondent's witnesses, the tribunal preferred, as set out in the previous sub‑paragraphs the evidence of those said witnesses.

 

RELEVANT LEGISLATION

 

3.1 Race Relations (Northern Ireland) Order 1997 (the 1997 Order)

 

Interpretation

 

2. - In this Order -

 

"Racial grounds" and "racial group" have the meaning given by Article 5;

 

3.- Racial Discrimination

 

A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if

 

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; ....

 

....

 

(3)  A comparison of the case of a person of a particular racial group with that of a person not of that group under paragraph (1) .... must be such that the relevant circumstances in the one case are the same, and not materially different, in the other.

 

4.- Discrimination by way of Victimisation

 

(1)  A person ("A") discriminates against another person ("B") in any circumstances relevant for the purposes of any provision of this Order if -

 

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

 

(b) he does so for a reason mentioned in paragraph (2).

 

(2)  The reasons are that -

 

(a) B has -

 

(i) brought proceedings against A or any other person under this Order; or

 

(ii) given evidence or information in connection with such proceedings brought by any person; or

 

(iii) otherwise done anything under this Order in relation to A or any other person; or

 

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

 

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

 

(3)  Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

 

4.- Harassment -

 

(1) A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, A engages in unwanted conduct which has the person or effect of

 

(a) violating B's dignity, or

 

(b) creating and intimidating, hostile, degrading, humiliating or offensive environment for B.

 

(2) Conduct shall be regarded as having the effect specified in subparagraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B it should reasonably be considered as having that effect.

 

5. - "Meaning of Racial Grounds" "Racial Groups" etc

 

(1)  Subject to paragraphs (2) and (3), in this Order -

 

"Racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

 

"Racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and reference to a person's racial group refer to any racial group into which he falls ....

 

6.- Applicants

 

......

 

(2)  It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee -

 

(a) in the terms of employment which he affords him; or

 

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

 

(c) by dismissing him, or subjecting him to any other detriment.

 

(2A) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment a person whom he employs or has applied to him for employment.

9.- Contract Workers

 

(1)  This Article applies to any work for a person ("the principal") which is available for doing by individuals ("contract workers") who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

 

(2)  It is unlawful for the principal, in relation to work to which this Article applies, to discriminate against a contract worker -

 

(a) in the terms of which he allows him to do that work; or

 

(b) by not allowing him to do it or continue to do it; or

 

(c) in the way he affords him access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them; or

 

(d) by subjecting him to any other detriment.

 

....

 

(3)  It is unlawful, in relation to work to which the Article applies, to subject a contract worker to harassment.

 

32.- Liability of Employers and Principals

 

(1)  Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

 

....

 

(5)  In proceedings brought under this Order against any person in respect of an act alleged to have been done by the employee of his it should be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from -

 

(a) doing that act, or

 

(b) doing, in the course of his employment, acts of that description.

 

33.- Aiding Unlawful Acts

 

( 1)  A person who knowingly aids another person to do an act made unlawful by this Order shall be treated for the purposes of this Order as himself doing the same kind of unlawful act.

 

(2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under article 32 (or would be so liable but for article 32(5) shall be taken to have aided the employer or principal to do the act).

 

52.A- Burden of Proof

 

(1)  This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent -

 

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f) or Part IV in his application to those provisions; or

 

(b) has committed an act of harassment.

 

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

 

(a) has committed such an Act of discrimination or harassment against the complainant;

 

(b) is by virtue of Article 32 or 33 to be treated as having committed such an Act of discrimination or harassment against the complainant,

 

The tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case maybe, is not to be treated as having committed, that Act.

 

65.- Period within which proceeds to be brought

 

(1)  An industrial tribunal shall not consider a complaint under Article 52 unless it is presented to the tribunal before the end of -

 

(a) a period of 3 months beginning when the act complained of was done;

 

....

 

(7) A court or 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.

 

3.2 The Employment Rights (Northern Ireland) 1996 (the 1996 Order) provides:-

 

Article 126 of the 1996 Order:-

 

"(1) An employee has the right not to be unfairly dismissed by his employer."

 

Article 127 of the 1996 Order:-

 

"(1)  For the purposes of this Part an employee is dismissed by his employer if ...

 

(c) the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without reason by reason of the employer's conduct."

 

RELEVANT LAW - CLAIMS, PURSUANT TO THE 19960 ORDER

 

4.1 As stated in Harvey on Industrial Relations and Employment Law, Volume 2, Section D1, at Paragraph 403, it has long been held that:-

 

"In order for an employee to be able to claim constructive dismissal four conditions must be met -

 

(1)           There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

 

(2)           That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify him leaving. Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3)           He must leave in response to the breach and not for some unconnected reason.

 

(4)           He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract."

 

(See further Western Excavating v Sharp [1978] QB 761.)

 

4.2 It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normal for a tribunal, in order to make a finding of unfair constructive dismissal, to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances ( Stevenson & Company (Oxford) Ltd v Austin [1990] ICR 609).

 

4.3 Even if an employee cannot establish a breach of an express term of a contract, it has also been recognised that a contract of employment includes an implied obligation that an employer would not, without reasonable and proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee. This is often referred to as the Malik term (see Malik v Bank of Credit & Commerce International SA [1997] UKHL 23 and Baldwin v Brighton & Hove CC [2007] IRLR 232).

 

Baldwin confirmed that the original formulation of 'calculated and likely', as set out in some cases (including the leading case of Malik) was a slip. The test is objective: an intention to damage the relationship is not required (see further Leeds Dental Team v Rose [2014] IRLR 8).

 

4.4 However, as seen in Amnesty International v Ahmed [2009] ICR 1450 and Ministry of Justice v Sarfraz [UKEAT/0578/10] the phrases 'without reasonable and proper cause' and 'destroy or seriously damage' must be given their full weight. As Lord Steyn stated in Malik, the term is there to protect 'the employee's interest in not being unfairly and improperly exploited'; the conduct must, objectively speaking, if not destroy then seriously damage trust and confidence - mere damage is not enough.

 

In Abbey National PLC v Fairbrother [2007] IRLR 320 the Employment Appeal Tribunal set out the following useful guidance:-

 

"(30) ... conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:-

 

1. What was the conduct of the employer that is complained of?

 

2. Did the employer have reasonable and proper cause for that conduct?

 

If he did have such cause then that is an end of it. The employee cannot claim that he has been constructively dismissed.

 

3. Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?"

 

A failure, for example, to adhere to a grievance procedure or, in particular, hold a proper appeal, in respect of a grievance, may be a significant breach of the implied term of trust and confidence, entitling the claimant to claim constructive dismissal, even if there is no issue as to the original grievance hearing. (See Blackburn v Aldi Stores [2013] IRLR 846).

 

In Frankel v Topping [2015] UKEAT/01606/15, Langstaff P, in the EAT, held:-

 

"The test is a demanding test. It has been held (see, for instance, the case of BG v O'Brien [2001] IRLR 496 at Paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying 'damage' is 'seriously'. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik ... as being 'apt to cover the greater diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited.' Those last few words are again strong words. Too often we see in this tribunal a failure to recognise the stringency of this test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the appeal tribunal in Morrow v Safeway Stores [2002] IRLR 9."

 

4.5 The above authorities established it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature. In assessing whether or not there has been a breach, what is significant is the impact of the employer's conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see further Woods v WM Car Services Peterborough [1981] IRLR 3) and the Malik decision. In the more recent decision of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal emphasised that a tribunal should determine the matter by reference to the law of contract and not by reference to the fairness and/or merits of the case:-

 

"the range of reasonable responses test is not appropriate to establish whether an employer has committed a repudiatory breach of contract entitling an employee to claim constructive dismissal";

 

and thereby confirming the test for establishing constructive dismissal remains objective (see Western Excavating v Sharp [1978] ICR 221). In the case of Tullett Prebon PLC v BGC Brokers LP [2011] IRLR 420, it was confirmed that the test for determining whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, ie from the perspective of the reasonable person in the position of the innocent party. Applying the Malik test therefore does not import a range of reasonable responses (as applied when determining the fairness of any dismissal) (see further Sharfudeen v T J Morris Ltd T/a Home Bargains [2017] UKEAT/0272/16).

 

4.6 In the decision of the Court of Appeal in the case of Nottingham County Council v Meikle [2005] ICR 1.

 

Keane LJ held:-

 

"It has long been held by the EAT in Jones v Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach of the employer need not be the sole cause of the employee's resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of control and that the employee may leave because of both those breaches and another factor such as the availability of another job. It suggested the test to be applied was whether the breach or breaches were the 'effective cause' of the resignation. I see the attractions of that approach but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other; see the Western Excavating case. The proper approach therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract as at an end. It must be in response to the repudiation but the fact that the employee also objected to other actions or inactions of the employer not amounting to a breach of contract would not vitiate the acceptance of the repudiation ... Once it is clear the employer was in fundamental breach ... the only question is whether [the employee] resigned in response to the conduct which constituted that breach."

 

This dicta was followed by Elias J, as he then was, in the case of Abbeycars (West Horndon) Ltd v Ford [UKEAT/0472/07], when he stated:-

 

"On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal ... "

 

and

 

"It follows that once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole host of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon."

 

and also was followed in the case of Logan v Celyn Home Ltd [UKEAT/0069/12] where HHJ Shanks stated:-

 

" ... It should have asked itself whether the breach of contract involved in failing to pay the sick pay [the relevant breach] was a reason for the resignation not whether it was the principal reason."

 

Elias J emphasised that there must be a causal connection between the breach of contract relied on and the resignation (see further Ishaq v Royal Mail Group Limited [2016] UKEAT/0156/16).

 

This approach was again recently confirmed and followed by Langstaff P in the case of Wright v North Ayrshire Council [EATS/0017/13] where he emphasised that it is an error of law for a tribunal, where there is more than one cause, to look for the effective cause in the sense of the predominant, principal, major or main cause and in doing so he raised concerns how the relevant law is expressed in Paragraph 521 of Harvey on Industrial Relations and Employment Law, Volume 1, Section D1.

 

In the 'summary head note', Langstaff P stated:-

 

"In order to determine a claim for constructive dismissal, a tribunal had applied to a test, referred to in Harvey, whether the contractual breach by the employer was 'the effective' cause 'of an employee's resignation'. It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration. The definite article 'the' is capable of being misleading. The search is not for one cause which predominates over others, or which on its own would be sufficient but to ask (as Elias J put it in Abbey Cars v Ford) whether the repudiatory breach 'played a part in the dismissal'. This is required on first principles and by Court of Appeal authority ( Meikle). The tribunal here appeared to seek for 'the' cause rather than 'a' cause ... ."

 

In Buckland v Bournemouth University Higher Education Authority [2010] EWCA Civ 121, Sedley LJ in the Court of Appeal acknowledged that:-

 

"No decided case holds, in terms, that a repudiatory breach, once complete (that is not a merely anticipatory breach) is capable of being remedied so as to preclude acceptance ... absent waiver or affirmation, the wronged party has an unfettered choice of whether to treat the breach as terminal, regardless of his reasons or motive for so doing. There is, in other words, no way back.

 

Albeit, with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party's option of acceptance, it could only be on grounds that are capable of extension to other contracts and for reasons I have given I do not consider that we would be justified in doing this. This does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation: a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends ... ."

 

Further, Jacob LJ, although not sharing Sedley LJ's regret that a repudiatory breach of contract, once happened can be 'cured' by the contract breakdown held:-

 

"Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party's right to go. He should have a clear choice: affirm or go. Of course the wrongdoer can try to make amends - to persuade the wrong party to affirm the contract. But the option ought to be entirely at the wronged party's choice."

 

As held by Langstaff P, in Lochuack v London Borough of Sutton [2014] UKEAT/0197/14 said there may well be concurrent causes operating on the mind of an employee; that is not fatal to a claim of constructive dismissal (see further Carreras v United First Partners Research [2016] UKEAT/02655/15).

 

4.7 In relation to the implied term of terms and conditions, to which there has been previous reference, Lord Nicholls in Eastwood v Magnox Electric Plc [2004] UKHL 35 stated the terms and conditions term meant that an employer must act responsibly and in good faith in the conduct of the employer's business and the employer's treatment of his employees.

 

In the case of Cantor Fitzgerald International v Bird [2002] IRLR 867, it was held by the High Court, over-aggressive promotion of proposed changes to terms and conditions by a particular manager, including threatening and intimidatory behaviour, can amount to conduct calculated or likely to seriously damage or destroy the relation of trust and confidence between employee and employer. The case also held that the fact an employee has lost confidence in management is not the same as conduct by the employer calculated to destroy or seriously damage trust and confidence between employer and employee in the sense of the implied term.

 

4.8 As has long been recognised (see further Paragraphs 480 - 481.01 in Harvey on Industrial Relations and Employment Law, Section D1), many constructive dismissal cases which arise from the undermining of trust and confidence, can involve the employee contending that he left in response to a course of conduct carried on over a period of time, but the particular instance which caused the employee to leave may in itself be insufficient to justify his taking that action; but nevertheless, when viewed against a background of such incidents, it may be considered sufficient by the courts to warrant treating the resignation as a constructive dismissal ('the last straw' doctrine).

 

As was made clear in the case of London Borough of Waltham Forest v Omilaju [2005] IRLR 35, in order to result in a breach of the implied term of trust and confidence, a 'final straw' which is not itself a breach of contract, must be an act in a series of earlier acts which taken together amount to a breach of the implied term.

 

The Court of Appeal, at Paragraph 14 of the judgment, set out, in particular, the following in relation to the relevant principles to be adopted in relation to a claim of unfair constructive dismissal, namely:-

 

"(1) The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.

 

(2) It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee : see, for example, Mahmud v Bank of Credit & Commerce International SA [1997]ICR 606 , ... . I shall refer to this as 'the implied term of trust and confidence'.

 

(3) Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 ... . The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship [original emphasis].

 

(4) The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nichol said in Mahmud at Page 610H the conduct relied on as constituting the breach must -

 

'Impinge on the relationship in the sense that looked at objectively [emphasis added by Dyson LJ], it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have with his employer'.

 

(5) A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put in Harvey on Industrial Relations and j Employment Law, Paragraph D1(or 80) :

 

'Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the Courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship'.

 

Further, at Paragraph 16 of his judgment, Dyson LJ said this :

 

'(16) Although the final straw may be relatively insignificant, it must not be utterly trivial : the principle that the law is not concerned with very small things (more elegantly expressed in the maxim 'de minimise non curate lex') is of general application.'

 

Further, at Paragraph 19 Dyson LJ said :

 

'(19) ... the quality of that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts, on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.'."

 

The Court of Appeal held in particular:-

 

"The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts upon which the employee relies, it amounts to a breach of the terms of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial. Thus, if an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence but the employee does not resign and affirms the contract, he cannot rely on those acts to justify a constructive dismissal if the 'final straw' is entirely innocuous and not capable of contributing to that series of earlier acts. The 'final straw', viewed in isolation, need not be unreasonable or blameworthy conduct. ... Moreover an entirely innocuous act on the part of the employer cannot be a 'final straw', even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer. The test of whether the employee's trust and confidence has been undermined is objective."

 

See further Pan v Portigon AG London Branch [2013] UKEAT/0116 where the tribunal followed the said principles set out in Omilaju and found a return to work letter sent by the respondent to the claimant as 'innocuous', insofar as it was relied upon by the claimant, as the last straw entitling him to regard himself as discharged from further performance; and the said principles were again followed in Nicholson v Hazel House Nursing Home Ltd [2016] UKEAT/024/15.

 

The passage from the Court of Appeal in Omilaju, emphasised above, has given rise to some dispute in some recent cases eg Addenbrook v Princess Alexandra Hospital NHS Trust [2014] UKEAT/0265 and Vairea v Reech Business Information Ltd [2017] ICRD9, Pets at Home Ltd v MacKenzie [2017] UKEAT/0146; and, in particular, where there is subsequent conduct which, taken together with the employer's earlier fundamental breach, causes the employee to resign or plays a part in the decision to resign, can the latter act effectively reactivate with the earlier fundamental breach, which had been affirmed and not acted upon at the time.

 

In the recent decision of the Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust [2018] EWCA Civ 978, Underhill LJ, followed Omilaju and held that an employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer's acts notwithstanding a prior affirmation by the employee. He held, following Omilaju that if the conduct in question is continued by a further act or acts, in response to which the employee does resign, he or she can still rely on the totality of the conduct in order to establish a breach of the Malik implied term. To hold otherwise would mean that, by failing to object at the first moment that the conduct reached the threshold of breaching the Malik term of trust and confidence, the employee lost the right ever to rely on all conduct up to that point. This would in his judgement be unfair and unworkable.

 

At paragraph 55, Underhill provided the following guidance namely:-

 

(1) what was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

 

(2) Has he or she affirmed the contract since that act?

 

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

 

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which viewed cumulatively, amounted to a (repudiatory) breach of the Malik term [breach of the Malik terms is of its nature repudiatory - see paragraph 14(3) of Omilaju]. (If it was, there is no need for any separate consideration of a possible previous affirmation ......)

 

(5) Did the employee resign in response (or partly in response) to that breach."

 

4.9 In the Western Excavating case, Lord Denning referred to the necessity for an employee to 'make up his mind' soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged'. Issues have arisen in this context in relation to whether an employee can be such to have 'waived the breach' or affirmed the contract and therefore lost the ability to claim constructive dismissal. Indeed, in many cases/textbooks, the terms are often used interchangeably. Indeed, in many claims, even where there is a breach, the employee may choose to give an employer an opportunity to remedy it (see further W E Cox Toner (International) Ltd v Crook [1981] IRLR 443, which was recently referred to with approval in the case of Colomar Mari v Reuters Ltd [2015] UKEAT/0539/13 and more recently in Novakovic v Tesco Stores Ltd [2016] UKEAT/0315/15.)

 

In (Colomar) Mari, HH Judge Richardson also referred with approval to the more recent decision of the Employment Appeal Tribunal in Hadji v St Luke's Plymouth [2013] UKEAT/0095/02 - where it stated:-

 

"The essential principles are that:-

 

(i) the employee must make up his/her mind whether or not resign soon after the conduct of which he complains. If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed. ( Western Excavating v Sharp ... as modified by W E Cox Toner ... and Cantor Fitzgerald International v Bird [2002];

 

(ii) mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the Employment Tribunal to infer implied affirmation from long delay - see Cox Turner;

 

(iii) if the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the EAT may conclude there has been an affirmation - see Fereday v South Staffordshire NHS Primary Care Trust [2011] UKEAT/0513;

 

(iv) there is no fixed time-limit in which the employee must make up his mind; the issue of affirmation is one which subject to these principles the Employment Tribunal must decide on the facts; affirmation cases are fact sensitive - see Fereday."

 

As seen in the recent decision in the case of Adjei-Frempong v Howard Frank Ltd [2015] UKEAT/0044/15, after again referring with approval to Cox Toner, the Employment Appeal Tribunal made it clear, in determining this issue, 'context is everything'. Further, the EAT referred with approval to the guidance of Langstaff P in the case of Chindove v William Morrisons Supermarket PLC [2013] UKEAT/0201/13 when he stated, inter alia:-

 

" 25. ... the matter is not one of time in isolation. The principle is whether the employee has demonstrated that he has made the choice. He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer's repudiation as discharging him from his obligations, have had to do.

 

26. He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time. ... But there is no automatic time; all depends upon the context. Part of that context is the employee's position. As Jacob LJ observed in the case of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, deciding to resign is for many, if not most, employees a serious matter. It will require them to give up a job which may provide them with their income, their families with support, and be a source of status to him in his community. His mortgage, his regular expenses, may depend upon it and his economic opportunities for work elsewhere may be slim. There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force. It would be entirely unsurprising if the first took much longer to decide on such a dramatic life change as leaving employment which had been occupied for some eight or nine or ten years than it would be in the latter case, particularly if the employment were of much shorter duration. In other words, it all depends upon the context and not upon any strict time test. ... "

 

The cases of (Colmar) Mari, Fereday, Hadji and Chindove, on their own particular facts, did raise issues whether, if a period of delay arises where an employee is off sick and in receipt of sick pay, can this be a relevant fact in relation to the issue of affirmation. As seen in Harvey on Industrial Relations and Employment Law, Volume 1 Section D (534 - 538):-

 

" ... there may still be cases where there is no affirmation in spite of receipt of sick pay but that will be as a matter of fact (as in Chindove) with no particular rule of thumb as to the length of an acceptable period. On the other hand, a finding of affirmation must be seen as a distinct danger for the employee in this difficult position, with the illness absence being in itself no reliable excuse for an ever-lengthening delay, especially where there are other acts or omissions of the employer relevant to the question, in addition to continuing receipt of sick pay."

 

5. Relevant Law - Claims pursuant to the 1997 Order

 

5.1 In relation to the burden of proof provisions, 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 to article 52g 1997 Order; and, it 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) when determining the burden of proof provisions contained in similar anti-discrimination legislation which applied in Northern Ireland. 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.

 

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 ... ."

 

In Igen the Court of Appeal cautioned Tribunals, at Paragraph 51 of the judgment, 'against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground'.

 

Even if the Tribunal considers that the conduct of the employer requires some explanation before the burden of proof can shift there must be something to suggest that the treatment was less favourable and by reason of the protected characteristic (eg disability) (see B and C v A [2010] IRLR 400 and Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 later in this decision).

 

5.2 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 amount to a discriminatory one." [Tribunal's emphasis]

 

 

In S Deman v Commission for Equality and Human Rights and Others [2010] EWCA Civ 1279, the issue of "something more" and the shifting burden was referred to by Sedley LJ at paragraph 19 of his judgment, when stated:-

 

"We agree with both counsel that the 'move' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

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."

 

5.3 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:-

 

"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' ... ."

 

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 ... ."

 

In Effa v Alexandra Health Care NHS Trust [1999] (Unreported) Mummery LJ held:-

 

"It is common ground that an error of law is made by a Tribunal if it finds less favourable treatment from which it can properly make such an inference ... . In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the Tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a Tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to rise from conscious or subconscious influences operating in the mind of the alleged discriminator."

 

Further, as seen in R (on the application of E) v Governing Body of JFS and Others [2010] IRLR 136, Lady Hale ( Paragraphs 62 - 64) emphasised that, in all but the most obvious cases involving direct discrimination, a Tribunal requires to consider the mental processes, whether conscious or subconscious, of the alleged discriminator.

 

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.

 

5.4 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.

 

5.5 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 complainant's 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 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

In Ayodele v Citylink and Another [2017] EWCA Civ 1913, the Court of Appeal confirmed that it remains in relation to the burden of proof (albeit the Court was interpreting the burden of proof provisions under the Equality Act 2010, which does not apply in this jurisdiction but is to the same effect to the provisions in this jurisdiction) - "a claimant" is required to bear the burden of proof at the first stage. If he or she can discharge that burden (which is only to show that there is a prima facie case that the reason for the respondents' act was a discriminatory one) then the claim will succeed unless the respondents can discharge the burden placed on it at the second stage.

 

In the recent decision of the Court of Appeal, the decision in Adoyele was followed and buding on the Court.

 

In the course of the judgment the Court emphasised the judgment of Mummery LJ in Mudarassy in relation to low evidence adduced by the employer might be relevant, noting that it could even relate to the reason for any less favourable treatment (see paragraphs 70-72).

 

5.6 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 sex discrimination and/or religious discrimination 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.

 

In Shamoon it was further held, in order for a disadvantage to quality as a 'detriment' it must arise in the employment field in that the court or tribunal must find that by reasons of the act or acts complained of a reasonable worker would or might take the view that he had been thereby disadvantaged in the circumstances in which he thereafter had to work. An unjustified sense of grievance cannot amount to detriment.

 

In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 the Court of Appeal held a person may be less favourably treated on the grounds of a 'protected characteristic' either if the act complained of is inherently discriminatory or if the characteristic in question influenced the mental processes of the putative discriminator, whether consciously or unconsciously, to any significant extent.

 

It further held that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must have been motivated by the 'protected characteristic'. There is no basis on which his act can be said to be discriminatory on the basis of someone else's motivation.

 

In a recent decision of the Employment Appeal Tribunal in the case of Metropolitan Police v Denby [2017] UKEAT/0314/16 Kerr J emphasised the ratio of CLFIS is simple:-

 

"52. ... where the case is not one of inherently discriminatory treatment or of joint decision-making by more than one person acting with discriminatory motivation is liable; an innocent agent acting without discriminatory motivation is not. Thus where the innocent agent acts on 'tainted information' (per Underhill LJ at Paragraph 34), ie 'information supplied, or views expressed, by another employer whose motivation is or is said to have been discriminatory', the discrimination is the supplying of the tainted information, not the acting upon it by the innocent recipient."

 

Kerr J gave a warning, however, that the CLFIS decision should not become a means of escaping liability by deliberately opaque decision-making which masks the identity of the true discriminator such as the involvement of senior employers in decisions made by junior employees.

 

5.7 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 Ahman [2008] 1 AC 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 each case should be (or assumed to be) the same as, or not materially different from, those of the complainant.

 

(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 comparator would have been treated ... 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."

 

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] EQ LR 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 approached 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."

 

In Chief Constable of Greater Manchester v Paul Bailey [2017] EWCA Civ 425 Underhill LJ made the following observations or issues relating to "culture of discrimination" in an organisation.

 

"99 ... authoritative material that discriminatory conduct or attitudes are widespread in the institution may, depending on the case, make it more likely that the alleged conduct occurred, or that the alleged motivations were operative. Or, there may be some more specific relevance. For example, in the present case, it is not unplausible the fact that the GMP had been the subject of two recent reports of racist conduct or attitudes by the members might have several to increase the insensitivity or embarrassment which the tribunal found had influenced ACC Sheard's thinking. But such material must always be used with care, and the tribunal must in any case identify with specificity the particular reason why it considers the material to have probative value as regards the motivating of the alleged discriminator(s) in any particular case .... There is "no doctrine of transferred malice".

 

Applying these observations in Efobi the Court of Appeal held, as the facts, there was no evidence of widespread discrimination or systemic discrimination in the recruitment process; there was also no evidence of a link between the manager's found to leave victimised and harassed the claimant and the recruiters and line managers who considered his applications, who were in entirely different departments. It held in such circumstances it would have been wrong for the tribunal to have given weight to the fact others in the organisation discriminated against the claimant. However, the Court accepted that where there is positive evidence of a culture of discrimination within an organisation it can carry some weight and be material, but even then the evidence is likely to be of limited value ( GMP v Bailey).

 

5.8 In the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336 Underhill P stated, in a case brought under Section 3A of the Race Relations Act 1976, which is in similar terms to the 1997 Order in Northern Ireland, made observations concerning the approach to be taken by tribunals when considering claims of harassment under the 1976 Act and the equivalent provisions in the legislation relevant to other forms of discrimination:-

 

"10. As a matter of formal analysis, it is not difficult to breakdown the necessary elements of liability under Section 3A. They can be expressed as threefold:-

 

(1) The unwanted conduct

 

Did the respondent engage in unwanted conduct?

 

(2) The purpose or effect of that conduct

 

Did the conduct in question either:-

 

(a) have the purpose; or

 

(b) have the effect of either -

 

(i) violating the claimant's dignity; or

 

(ii) creating an adverse environment for her?

 

(We were referred to (i) and (ii) as 'the proscribed consequences'.)

 

(3) The grounds for the conduct.

 

Was that conduct on the grounds of the claimant's race (or ethnic or national origins)?

 

11. But that formal breakdown conceals the fact that there are - or will at least in some cases be - substantial overlaps between the questions that arise in relation to each element. To take one obvious example, the question of whether the conduct complained of was 'unwanted' will overlap with the question of whether it creates an adverse environment for the claimant. There is also evidently a considerable overlap between the two defined proscribed consequences, notwithstanding that they are expressed as alternatives: many or most acts which are found to create an adverse environment for an employee will also violate her dignity (though it might be less general for the reverse to apply). The tribunal's eventual decision may often depend on what are, in practice, undifferentiated factual issues which cover more than one element in the analysis. Nevertheless, it would be a healthy discipline for a tribunal in any case brought under this Section (or its equivalent in the other discrimination legislation) specifically to address it in its reasons each of the elements which we have identified, in order to establish whether any issue arises in relation to it and to ensure that clear factual findings are made on each element in relation to which issue arises.

 

12. We make four other points which we hope may be of assistance to tribunals seeking to apply Section 3A.

 

13. First, such case law as there was in relation to 'harassment' as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful. We did not say there may not be some general observations to be found in that case law which are equally applicable to claims under the new legislation. But the old law was constructed somewhat uncomfortably out of the general statutory definitions of discrimination. The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps. Still less is assistance likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated cases ...

 

14. Secondly, it is important the formal breakdown of 'Element (2)' in to two alternative basis of liability - 'purpose' and 'effect'. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not to have been shown to have done so). It might be thought that successful claims of the latter kind will be rare since in a case where the respondent has intended to bring about the proscribed consequences, and his conduct had a significant impact on the claimant for her to bring proceedings, it will be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent's purpose (though that does not necessarily exclude consideration of the respondent's mental processes because of 'Element (3)', as discussed below.

 

15. Thirdly, although the proviso in Sub-section (2) is rather clumsily expressed, its core thrust seems to us to be clear. The 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. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that that being so the phrase 'having regard to ... the perception of that other person' was liable to cause confusion and to lead tribunals to apply a 'subjective' test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the punitive victim: that is, the victim must have felt or perceived, her dignity was being violated or an adverse environment to have been created. That can, if you like, be described as introducing a 'subjective' objective; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then if she did genuinely feel her dignity to have been violated, there would have been no harassment within the meaning of the Section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially, a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or precisely to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at Paragraph 22 below.

 

16. Fourthly, 'Element (3)' involves an enquiry which will be very familiar to tribunals for other types of discrimination claims. There is ample case law in the nature of the enquiry required by the 'interchangeable' statutory phrases ('on the grounds of' or 'by reason that' - see classically the speeches of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501 at Pages 510 - 513, ... and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at Paragraph 29 (Page 1072) ...) ... the inquiry into the perpetrators grounds for acting as he did - or to use Lord Nicholls' phrase 'the reason why he acted' - is logically distinct from any issue which may arise for the purpose of 'element (2)' about whether he intended to produce the proscribed consequences : a perpetrator may intend to violate a claimant's dignity for reasons other than her race (or indeed any of the other reasons proscribed by discrimination legislation).

 

...

 

In some cases the 'ground' of the action complained of is inherently racial. The best known example in the case law ... is the decision of the House of Lords in James v Eastleigh BC [1990] 2 AC 751) ... Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes."

 

It is also relevant to have regard to the observations of Underhill P at Paragraph 22 of his judgment in the above Richmond Pharmacology case, when he stated:-

 

"Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the Cognate Legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase ... ."

 

In this context, in particular, of racial harassment the guidance in the case of Law Society and Others v Bahl [2003] IRLR 640 is relevant when Elias J (as he then was) emphasised that unreasonable treatment is not 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."

 

However at Paragraph 101 of his judgment, Elias J 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 the following words of caution:-

 

" ... But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provides another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nevertheless give a false reason for the behaviour. They may rightly, for example, consider that the true reason casts them in a less favourable light, perhaps because is 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 a finding of unlawful discrimination itself ... ."

 

In Insitu Cleaning Co Ltd v Heads [1995] IRLR 4, it was held whether a single act of verbal sexual harassment is sufficient to furnish a complaint is a matter of act and degree and "unwanted conduct", relevant to such a claim does not mean a single act can never amount to harassment is that it cannot be said to be "unwanted" until it is done and negated. The word "unwanted" is essentially the same as "unwelcome" or "uninvited".

 

5.9 In Weeks v Newham College of Further Education [2012] Eq LR 788 it was held a decision of fact in a harassment case must be sensitive to all the circumstances ... the fact that unwanted conduct was not itself directed at the claimant is a relevant consideration. The timing of an individual's objection to conduct also has evidential importance. It may mean the individual complaining of conduct after the event did not in fact perceive the conduct as having the relevant offensive qualities. However tribunals should not place too much weight upon timing: where conduct is directed towards the sex of the victim it may be difficult for the victim personally, socially and, in some circumstances, culturally to make an immediate complaint about it. While a legitimate factor to consider, the fact of there being no immediate complaint cannot prevent a complaint being justified.

 

Further, it was held the term 'environment' in Article 6A of the 1976 Order, means '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 [and presumably also conduct] in context, including other words spoken [and conduct] and the general run of affairs within the workplace. The frequency of the use of the offending words [or conduct] is nor irrelevant.

 

In Warby v Wunda Group Ltd [2012] EQ LR 536, it was confirmed in a claim of unlawful harassment, a tribunal must have regard to context. Context is everything. It is for the tribunal to decide what the context of the acts complained of is and to contextualise what has taken place. It may be a mistake to focus upon a remark in isolation. A tribunal is entitled to take the view that a remark, however unpleasant and however unacceptable is a remark made in a particular context; it is not simply a remark standing on its own.

 

In Evans v Xactly Corporation [2018] UKEAT 0128, HH Judge Stacey emphasised that harassment claims are highly fact sensitive and context specific.

 

In Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299, the Employment Appeal Tribunal emphasised that 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. Further, because it is for each person to define their own levels of acceptance, the question would be whether, by words or conduct, she made it clear she found the conduct unwelcome. Provided any reasonable person would understand her to be rejecting the conduct, continuation of the conduct would generally be regarded as harassment.

 

In Chawla v Hewlett Packard Ltd [2015] IRLR 356, it was confirmed the perception of the claimant, as referred to in Article 6A(4) requires an objective finding of the claimant's subjective feelings about the act complained of and the issues relating it reasonableness in the said which require an objective assessment by the tribunal (however Chawla was a case pursuant to section 26(4) of the Equality Act 2010, which is not in the same terms as Article 6A(4); but, in essence, is of the same effect).

 

In Conteh v Parking Partners Ltd [2011] EQLR 332 the EAT confirmed that "unwanted conduct" can include inaction. If the conduct complained of is a failure to act then it has to be shown that that action was wanted. An example would be where a failure to act when an employee required that that there be action had itself contributed to the atmosphere in which the employee worked, as far where she felt unsupported, to the extent that the failure to support her actively made the position very much worse. (See reference to "unwanted conduct" in Equality Commission/LRA Guidance on Harassment and Bullying in the workplace (March 2006).

 

In a recent decision, in the case of URSO v Department for Work and Pensions [2017] IRLR 304 the EAT held that dismissal is capable of amounting to harassment; but a constructive dismissal is different from an "actual" dismissal. Prior acts of harassment may give rise to a constructive dismissal but the constructive dismissal itself is not an act of harassment: it may occur as a result of an act taken by the employee in response to acts of harassment. There is no good reason for excluding an actual dismissal from the harassment jurisdiction.

 

In Quality Solicitors CMHT v Tunstale [2014] Eq LR 679, the Employment Appeal Tribunal emphasised that when considering a claim of racial harassment based on a single remark, it must have regard to (Regulation 6(2)) and to consider whether it was reasonable for the single remark to have the effect in question. On the facts, it held it did not, and it was merely an introductory remark to a client.

 

5.10 The said reverse burden of proof provisions also apply to cases of discrimination by way of victimisation (see further Rice v McEvoy [2011] NICA 9). Further, the House of Lords made clear, in the decision in the case of Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, discrimination by way of victimisation occurs when in any circumstances relevant for the provisions of this Act, a person is treated less favourably than others because he/she has done one of the "protected acts", as defined in Article 69 of the 1976 Order. Thus, in order to make the necessary comparison it is necessary to compare the treatment afforded to the claimant who has done a "protected act" and the treatment which was or would be afforded to other employees who had done the protected act. This may involve comparison with an actual or hypothetical comparator. In the Rice case Girvan LJ said in order to establish victimisation:-

 

(a) circumstances relevant for the purposes of the provision of the Order must apply

 

(b) the alleged discrimination much leave treated the person allegedly victimised less favourably than in those circumstances be treated or would treat other persons in similar circumstances

 

(c) he must have done so by reason of the fact the person victimised has done are of the protected acts ("the reason why issue").

 

In the Rice case, Lord Justice Girvan at paragraph 33 of his judgement, when considering "the reason why issue" further stated:-

 

"In determining the reason why issue, it is necessary for the tribunal to consider the employers mental processes, conscious and unconscious. If on such consideration it appears the protected act had a significant influence on the outcome, victimisation is established (see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 575, 576), the question is why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? Unlike causation this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact (Per Lord Nicholls in Chief Constable of West Yorkshire v Khan [2001] IRLR 830 at paragraph 24)".

 

 

 

Lord Scott in the Khan referred to establishing the "real reason", the "core reason" and "the motive" for the treatment complained of

 

Higgins LJ stated in Northern Ireland Fire and Rescue Service and Another v McNally [NICA unreported 29 June 2012] paragraph 23 of his judgement:-

 

"The primary object of the victimisation provisions is to ensure that employers who had taken steps to exercise their statutory rights (under the 1998 Order) are not penalised for doing so (see Lord Nicholls in Khan v Chief Constable of West Yorkshire Police [2001] UKHL 48 at paragraph 16)".

 

In the case of Simpson v Castlereagh Borough Council [2014] NICA 28, Girvan LJ, in paragraph 18 of his judgement stated:-

 

"A person discriminates against alleged to have been victimised if he treats the person less favourably "by reason that the person victimised" has (inter alia) done anything under or by reference to the 1976 Order or the Equal Pay Act. "By reason that" simply means "because" (see Lord Neuberger in Derbyshire v St Helen's Metropolitan Borough Council [2007] ICR 841 at 865 paragraph 76). As Mr Potter pointed out in argument, in determining whether an act is done because the victimised did one or some of things set out in Article 6(1)(a)-(b), the test to be applied may be expressed in somewhat different ways though it should lead to the same answer. The tribunal can ask the question "why did the respondent act as he did?" See for example Nagarajan v LRT [1999] IRLR 57 at paragraphs 13-18. In Derbyshire Lord Neuberger put the matter thus:

 

"The words "by reason that" require one to consider why the employer has done the particular act .... and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused a detriment, one much view the issue from the point of view of the alleged victim"

 

Alternatively the tribunal may pose the questions "would the respondent have acted as it did but for the fact that the victimised party did what he she did acting under Article 6(1)(a)-(d)". (See for example Lady Hale in R v Governing Body of JFS [2010] IRLR 136 paragraph 58 and Lord Clarke ( IBID) at paragraphs 131-134). Alternatively, it may pose the question, as Lord Mance did in JFS, whether the impugned act was inherently discriminatory.

 

5.11 In relation to whether the "protected act" had a significant influence on the outcome, as referred to by Lord Nicholls in the Nagarajan, that expression was interpreted as an influence more than trivial. In Villalba v Merrill Lynch and Company [2006] IRLR 437 Elias J, as he then was, held that, in finding the victimisation was 'a very small factor, not a significant influence in the decision to remove the claimant, the tribunal, the tribunal properly applied Nagarajan and, in particular, that discrimination is made out if the prohibited ground had a significant influence on the outcome. Further, although that wording was interpreted in Igen as meaning an influence more than trivial, if in relation to any particular decision a discriminatory influence is not a material influence or factor, it is trivial.

 

 

5.12 In relation to time-issues for the commencement of proceedings by the claimant in this matter, pursuant to the 1977 Order and/or the 2006 Regulations, it was not disputed by the parties that there has been considerable case law on the interpretation of the relevant legislation.

 

It has long been held, as seen in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, that the burden is on the claimant to prove either by direct evidence or by inference from primary facts that alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. It further held that in determining whether there was an act 'extending over a period' distinct from a succession of unconnected or isolated specific acts, which time will begin to run from the date when each specific act was committed, the focus should be on the focus of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period and should not be treated as complete and constricting statement of the indicia of 'an act extending over a period'. However this has to be distinguished from the consequences of a one-off decision (see Owusu v LFCDA [1995] IRLR 574).

 

In Richman v Knowsley Metropolitan BC [2013] EQLR 1164, it was held, in determining whether there was evidence of 'conduct extending over a period', it is not sufficient to consider only whether there was evidence of a discriminatory policy, rule or practice, in accordance in which decisions were taken from time to time. The tribunal must consider whether there was something more, such as an ongoing process of proceedings or a continuing state of affairs (see also Lyfar v Brighton & Sussex University Hospitals Trust [2006] EWCA Civ 1548). The mere repetition of a request similarly cannot convert a single managerial decision into a policy, practice or rule ( Cast v Croydon College [1997] IRLR 14). However, as noted in Cast, application of a discriminatory policy or regime, pursuant to which decisions may be taken from time to time, is an act extending over a period. There can be a policy even though it is not of a formal nature when expressed in writing, even though it is confined to a particular post or role.

 

'An ongoing situation' as referred to by Mummery LJ in Hendrick can include a grievance process carried out by an employer arising immediately from an act of discrimination (namely suspension) and thereby form part of a continuing act ( Bahous v Pizza Express Restaurants [2012] EQLR 4).

 

Further, when determining whether separate incidents form part of conduct extending over a period one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents (see Aziz v FDA [2010] EWCA Civ 304 per Jackson LJ).

 

5.13 If a claim is brought out of time, it is then necessary for the tribunal to consider whether it is just and equitable to extend time.

5.14 When considering issues of extension of time in relation to an 'original' claim and whether time should be extended on 'just and equitable' grounds , in the case of Miller and Others v Ministry of Justice and Others [UKEAT/0003/15] Mrs Justice Laing in her judgment set out points of general application, as follows:-

 

"There are five points which are relevant to the issues in these appeals:-

 

(i) The discretion to extend time is a wide one: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434, Paragraphs 23 and 24.

 

(ii) Time-limits are to be observed strictly in ETs.  There is no presumption that time will be extended unless it cannot be justified; quite the reverse.  The exercise of that discretion is the exception rather than the rule (ibid, Paragraph 25).  In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327 Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it.  It follows that I reject Mr Allen's submission that, in Caston, the Court of Appeal "corrected" paragraph 25 of Robertson. ...

 

(iii) If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, "perverse", that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence.  No authority is needed for that proposition.

 

(iv) What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET (DCA v Jones [2007] EWCA Civ 894; [2007] IRLR 128).  The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is "customarily" relevant in such cases (ibid, Paragraph 44).

 

(v) The ET may find the checklist of factors in section 33 of the Limitation Act 1980 ('the 1980 Act') helpful (British Coal Corporation v Keeble [1997] IRLR 336 EAT; the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smith J (as she then was) recorded, at paragraph 8 of her Judgment, that nobody had suggested that this was wrong.  This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Southwark London Borough Council [2003] ICR 800; [2003] EWCA Civ 15, at Paragraph 33." (See Paragraph 10 of the judgment.)

 

(The principle in Afolubi was subsequently endorsed by the Court of Appeal in Governing Body of St Albans Girls School v Neary [2010] IRLR 124.)

 

Further, it was established in Apelogun-Gabriels v London Borough of Lambeth [2002 IRLR 116, that there is no principle that an extension of time will be granted where the delay is caused by an internal grievance or appeal hearing.

 

The decision in Miller subsequently was appealed, as part of the part-time judiciary litigation to the Supreme Court, where a hearing is awaited; but the general principles set out above by Laing J remain in the judgment of the tribunal good law.

 

5.15 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 once he or she knew of the possibility of taking action."

 

(In Lindsay v London School of Economics and Political Science [2014] IRLR 218 the Court of Appeal held that:-

 

"An extension of time will not automatically be granted simply because it results in no prejudice to the respondent in terms of a fair trial. If a claim is brought out of time it is for the claimant to show that it is just and equitable for the extension to be granted. This is a multifactoral assessment where no single factor is determinative."

 

5.16 When considering the exercise of the relevant discretion, it is necessary for the tribunal to identify the cause of the claimant's failure to bring the claim in time - see Accurist Watches Ltd v Wadher [2009] UKEAT/102/09 and ABM University Local Health Board v Morgan [2013] UKEAT/0305/13 where the EAT stated:-

 

"Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 at Paragraph 25 per Sedley J) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so and the exercise of the discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 (A). A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time-limit has not been met; and insofar as it is distinct the second reason is why after the expiry of the primary time-limit the claim was not brought sooner than it was ... ."

 

(approved in British Transport Police v Norman [2015] UKEAT/0348/14).

 

In Morgan, the EAT also confirmed it may not always be appropriate to give more than summary reasons for a conclusion that it was just and equitable to extend time and that the precise date of an act or omission may not be material to that question (see further Paragraph 50 of Morgan).

 

As seen above, the reason why a claimant delayed in bringing a claim is a relevant consideration, but noting the test to be applied in not one of reasonable practicability (see  Biggs v Somerset County Council [1996] ICR 364).

 

In Miller, Laing J identified two types of prejudice which a respondent may suffer if the limitation period is extended. The first is the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence. The second is what she described as the 'forensic prejudice' which the respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and losing touch with witnesses (see Paragraph 12 of the judgment). She acknowledged that if there is 'forensic prejudice' to a respondent, that will be 'crucially relevant' in the exercise of the discretion, against an extension of time and it may well be decisive; but if there is no 'forensic prejudice' to the respondent that is:-

 

"(a) not decisive in favour of an extension; and

 

(b) depending on the tribunal's assessment of the facts may well not be relevant at all. It will depend on the way the tribunal sees the facts."

 

5.17 In this matter as confirmed in the course of submissions, the claimant and the respondents' representatives.

 

Gillen J in Thornton v NIHE [2010] NIQB 4 stated:-

 

"Credibility of a witness embraces not only the concept of his truthfulness, ie whether the evidence of the witness is to be believed but also the objective reliability of the witness [that is] his ability to observe or remember facts and events about which the witness is giving evidence."

 

In a recent decision in the case of ES (a minor) by Rachel Ann Savage, her mother and next friend v Emma Savage and Others [2017] NIQB 56 (a civil case) Stephens J in Thornton, namely:-

 

"(a) the inherent probability or improbability of representation of fact;

 

(b) the presence of independent evidence tending to corroborate or undermine any given statement of fact;

 

(c) the presence of contemporaneous records;

 

(d) the demeanour of witnesses, for example, does he equivocate in cross-examination;

 

(e) the frailty of the population of large in accurately recollecting and describing events in the distant past;

 

(f) does the witness take refuge in wild speculation of uncorroborated allegations of fabrication;

 

(g) does the witness have a motive for misleading for court; and

 

(h) weighing up one witness against another."

 

In R v G [1998] Crim LR 483, the Court of Appeal in England and Wales said that:-

 

"a person's credibility is not a seamless robe, any more than in their reliability."

 

A tribunal is entitled, if appropriate, to take a different view as to the credibility or the reliability of a witnesses' evidence in relation to different issues (see further R v H [2016] NICA 41).

 

In the case of Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, Elias LJ set out some helpful guidance for employers faced with "diametrically" conflicting accounts of an incident.

 

"73. The second point raised by this appeal concerns the approach of employers to allegations of misconduct were, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even were that does not appear to be so, there will be cases where it is perfectly proper for the employer to say that they are not satisfied they can resolve the conflicting evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employee to give the alleged wrongdoer the benefit of the doubt without feeling compelling to have to come down in favour of one side or the other."

 

As confirmed in Parkes v BC Softwear Ltd (UKEAT/0213/17) although this is helpful guidance for an employer, it does not lay down any rule of law for a tribunal, faced with conflicting evidence in a tribunal hearing sitting, in relation to a key issue in the case. The tribunal is entitled to make an assessment of the evidence and resolve the issue and is not bound to resort to the burden of proof; and if there is primary evidence on both sides a tribunal will usually be able to reach a conclusion on that evidence.

6.1 In light of the facts as found by the tribunal and after applying the legislative provisions and the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, and after considering the submissions and the claimant and the respondents' representative, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

6.2 As referred to previously in this decision (paragraph 2.9) the claimant relied on the considerable number of incidents which occurred outside the statutory three month time period required to bring any claim to the tribunal, subject to any extension that might be allowed by the tribunal on just and equitable grounds. The claimant's claim of unlawful discrimination, in essence, was a claim that, throughout her period of employment, there was a "culture" and/or campaign" of such discrimination, carried out against her by her line managers/supervisors but also fellow Band 3 Care Workers from Northern Ireland and it was not a series of unconnected or isolated or specific acts. The tribunal, not without some hesitation, concluded that, if the incidents relied upon by the claimant over the period of her employment had occurred, as alleged by her, then there may have been such a "culture and/or campaign" of unlawful discrimination taking place at the day centre and that there was therefore a continuing discriminatory state of affairs (see Hendricks); and the tribunal therefore had jurisdiction to consider and determine any such claims made by the claimant, the subject matters of these proceedings and which were therefore not out of time. However as set out below, the tribunal is not satisfied, on the findings of fact made by it that the claimant has established she was unlawfully discriminated against on the grounds of her race at any time during the course of her employment. If the tribunal is wrong and the incidents relied upon by the claimant, for the purposes of these proceedings, were one off/isolated/unconnected incidents, outside the three month statutory time period, the tribunal would have had to consider whether to exercise its discretion to extend time on "just and equitable" grounds. The claimant accepted, in evidence, she was aware she could bring proceedings to a tribunal, during the course of her employment, in relation to these out of time incidents; but she decided not to do so because she felt if she did so it would be hard to get another job/obtain references and she remained in hope "things would change". If it had been necessary to do so, the tribunal would not have been prepared to extend time on just and equitable grounds in relation to those incidents outside the three month time period, given the claimant's knowledge of the ability to bring proceedings and her failure, with such knowledge, to take any action to bring proceedings at an earlier time.

 

6.3 In light of the findings of fact made by the tribunal, the tribunal does not consider the claimant has shown sufficient or any evidence from which the tribunal could conclude the claimant has been discriminated against and/or harassed on the grounds of her race and/or discriminated by way of victimisation pursuant to the 1997 Order. In particular, as set out in the findings of fact, the claimant did not give evidence of the "something more", as seen in Madarassy, other than the fact that she was of Polish nationality and the persons against whom she was making such allegations of discrimination/or harassment and/or victimisation were from Northern Ireland.

 

6.4 The tribunal further, in light of the findings of fact made by the tribunal, is not satisfied the claimant was constructively dismissed. The claimant has not shown there was any repudiatory breach of contract at any time by the first respondent during the course of her employment; and, in particular, the tribunal is not satisfied that the claimant resigned because of any racial discrimination by the respondents or either of them, which as set out above she has not established in the circumstances.

 

6.5 The claimant's claims are therefore dismissed.

 

 

 

 

Employment Judge:

 

Date and place of hearing: 22 June, 2016, 23 June 2016, 24 June 2016, 27 June 2016, 28 June 2016, 29 June 2016, 30 June 2016, 27 April 2017 and 28 April 2017, Belfast.

 

Date decision recorded in register and issued to parties: