Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1402/15

 

 

 

CLAIMANT:                          Lisa Mary McGurnaghan

 

 

RESPONDENTS:               1.         Grafton Recruitment Limited

                                                2.         Police Service of Northern Ireland

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant’s claims are dismissed.

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Greene       

Members:                             Mrs A Gribben

                                                Mr A Kerr

 

Appearances:

The claimant appeared in person.

The first respondent was represented by Ms L Toolan of EEF Northern Ireland.  The second respondent was represented by Ms R Best, of counsel, instructed by the Crown Solicitor’s Office.

 

1.         The tribunal heard evidence from the claimant and on behalf of the respondents from Nadine McCrory, Gail Prew, Alan Glendinning, Ashleigh Bennett,
Colin Crymble, Stephen Marks, Vicky Campbell and Sharon McKinley.  The witness statements of Stephen Cooke, Tara Morgan and Christine Drain were admitted in evidence by consent.  The tribunal also received eight bundles of documents comprising 584 pages approximately, written submissions and a number of legal authorities.

THE CLAIM AND COUNTERCLAIM

 

2.         The claimant claimed discrimination on the ground of her maternity and for a loss of earnings as a result.  Grafton Recruitment Limited (the first respondent) denied any discrimination against the claimant and asserted that she was a temporary agency worker engaged by Grafton Recruitment Limited to provide services to PSNI (the second respondent).  PSNI denied that it discriminated against the claimant on the grounds of her sex or pregnancy.

 

THE ISSUES

 

3.         The final list of issues was agreed by the parties on 23 February 2016.  The issues are as follows:-

 

            Preliminary Issue

 

            (1)       Has the claimant presented her claim to the Employment Tribunal within three months of the acts complained of?

 

            Legal Issues

 

            (2)       Did Grafton Recruitment Limited (the first respondent) discriminate against the claimant on grounds of pregnancy contrary to Article 5A(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976, in withdrawing her from a range of assignments and/or not offering her work as a role-player during the protected period as referred to in Article 5A(3)(a)(iii)?

 

            (3)       Whether PSNI’s (the second respondent) policy of treating pregnant role-players the same as pregnant student police officers in the removal of their participation from role-plays involving physical activity, is less favourable treatment on the grounds of pregnancy contrary to Article 5A of the Sex Discrimination (Northern Ireland) Order 1976?

 

            (4)       Did PSNI (the second respondent) discriminate against the claimant on the grounds of pregnancy contrary to Article 5A(1) of the Sex Discrimination (Northern Ireland) Order 1976, in refusing her participation in all role-plays during the protected period as referred to in Article 5A(3)(a)(iii)?

 

            (5)       Was the withdrawal of the claimant from role-plays done for the purpose of protecting her on health and safety grounds in accordance with Article 52 of the Sex Discrimination (Northern Ireland) Order 1976?

 

            Factual Issues

 

            (6)       Why did Grafton Recruitment Limited (first respondent) withdraw the claimant from arranged assignments as a role-player in October 2014?

 

            (7)       Why did Grafton Recruitment Limited (first respondent) not offer the claimant role-play assignments after October 2014?

 

            (8)       Why did Grafton Recruitment Limited (first respondent) not assign the claimant theft/victim/ witness role-plays? 

 

            (9)       Why did PSNI (second respondent) refuse participation of the claimant from an arranged scenario dated Monday 14 October and Tuesday 15 October 2014?

 

            (10)     Did PSNI (second respondent) refuse pregnant role-players’ participation in all role-plays from 8 October 2014?  If so, why?

 

            (11)     Did PSNI (second respondent) restrict participation of pregnant role-players on 16 March 2015 to theft/victim witness practicals?  If so, why?

 

            (12)     Whether PSNI’s (second respondent) policy is to protect the health and safety of the participants?

 

            (13)     Whether PSNI (second respondent) indicated its willingness to allow the claimant to participate in the theft victim/witness practicals as this involved recording statements in an office environment, i.e. the sections that did not involve physical involvement and if so, on what date did PSNI indicate its willingness?

 

            (14)     Whether the claimant was then offered any of these practicals after the date they changed their decision to allow pregnant role-players to participate.

 

            (15)     Whether the claimant presented herself fit and available for work throughout this time?

 

            (16)     What is the claimant’s loss?

 

4.         At the outset of the hearing, the tribunal permitted the claimant to submit an amended witness statement, with the consent of the respondents, on 24 February 2016.  The tribunal also permitted the claimant to present to the tribunal a medical report from her General Practitioner, dated 23 February 2016.

 

5.         After conclusion of the hearing of this claim on 25 November 2016 but before making its decision, the tribunal sought clarification, on 13 April 2017, from the parties in relation to three issues:-

 

(1)          The nature of the legal relations between the claimant and the two respondents and between the first and second respondents,

 

(2)                      Whether Article 12 of the Sex Discrimination (Northern Ireland) Order 1976 applies to this claim, particularly in view of the decision of the Northern Ireland Court of Appeal in Bohill v Police Service of Northern Ireland [2011] NICA 2, and

 

(3)          Any submissions, authorities or otherwise on the interpretation of Article 52(1)(ii) of the Sex Discrimination (Northern Ireland) 1976 and Article 5 of the Health and Safety at Work (Northern Ireland) Order 1978.

 

6.         At a Case Management Discussion on 8 May 2017 leave was given to the parties to serve additional witness statements and adduce further oral evidence.  For a number of reasons it was not possible to take that evidence until 26 January 2018.

 

7.         At the end of the hearing on 26 January 2018 counsel for the claimant indicated that there was an appeal before the Supreme Court in the spring of 2018 called Pimlico which was scheduled to address issues on the meaning of employee and worker which the claimant’s counsel believed could impact on the legal position in relation to the current claim.  She had drawn this to the attention of the representatives of the respondents and they did not oppose awaiting the outcome of the decision in Pimlico which it was hoped would clarify the issues before the tribunal.  The hearing was therefore adjourned, by consent, and further interim steps were to be taken by the parties.

 

8.         As the decision from the Supreme Court in Pimlico was expected in May 2018, a date for submissions was arranged for 31 July 2018.

 

FINDINGS OF FACT

 

9.         (1)       The claimant was employed full-time by Noonan Ltd which supplies support staff for PSNI (second respondent).  The claimant worked for Noonan Ltd as a station enquiry assistant.  Previously the claimant had worked for some 15 years as a police officer with RUC and then PSNI, leaving PSNI in 2011 under the Patton arrangements. 

 

            (2)       Grafton Recruitment Limited (first respondent) is a recruitment agency which, inter alia, provides role-players or actors to PSNI (second respondent) for the scenarios used by PSNI for the training of student police officers under a contract between both respondents.

 

(3)          PSNI (second respondent) provides the policing service throughout Northern Ireland and, inter alia, trains student police officers for full-time work by the use of scenarios depicting different aspects of police work for which it uses role-players or actors supplied to it by Grafton Recruitment Limited (first respondent).

 

(4)          Grafton Recruitment Limited and PSNI (first and second respondents) had a contractual relationship for the supply of contract workers on demand.

 

            (5)       In addition to her full-time employment, in or about 8 May 2014 the claimant became a role-play actor, engaged by Grafton Recruitment Limited (first respondent), to provide temporary services for the training of student police officers for PSNI (second respondent).  The claimant had successfully applied for this position with Grafton Recruitment Limited. 

 

(6)                      On 8 May 2014 the claimant signed a contract for services with Grafton Recruitment Limited (first respondent) whereby she was defined as a temporary worker and Grafton Recruitment Limited was described as the employment business.  The terms of the contract stated that it constituted a contract for services between the employment business and the temporary worker (the claimant) and that the terms governed all assignments undertaken by the temporary worker.  It further stated that no contract would exist between the employment business and the temporary worker between assignments (Clause 2.1).

 

(7)                      At Clause 1.1 of the contract assignment is stated to mean, “the period during which the temporary worker is supplied to render services to the client”.  Client is defined as “the person, firm or corporate body requiring the services of the temporary worker together with any subsidiary or associated company as defined by the Company’s Act 1985”.

 

(8)       The contract for services further provides that the temporary worker acknowledges that the nature of the temporary work means that there may be periods when no suitable work is available and agrees, that the suitability of the work to be offered shall be determined solely by the employment business; that the employment business shall incur no liability to the temporary worker should it fail to offer opportunities to work in the above category or in any other category; and that no contract shall exist between the temporary worker and the employment business during periods when the temporary worker is not working on an assignment (Clause 3.2).

 

(9)       The temporary worker is not obliged to accept any assignment offered by the employment business but if he does so during every assignment and afterwards where appropriate he will:-

 

(i)        co-operate with the client and the employment business reasonable instructions and accept the directions, supervision and control of any responsible person in the client and employment business organisations;

 

(ii)       observe any relevant rules and regulations of the client and employment business establishment including normal hours of work to which attention has been drawn or which the temporary worker might reasonably be expected to ascertain;

 

(iii)     take all reasonable steps to safeguard his or her own health and safety and that of any other person who may be present or be affected by his or her actions on the assignment and comply with the health and safety policies and procedure of the client and employment business;

 

(iv)     not engage in conduct detrimental to the employment business;

 

(v)       not at any time divulge to any person or use for his own or any other person’s benefit any confidential information relating to the client’s or the employment business employees, business affairs, transactions of finances.  (Clause 8.1).

 

(10)       If the temporary worker is unable, for any reason, to work during the course of an assignment he should inform the client and/or the employment business within one hour of the commencement of the assignment or shift.  (Clause 8.2).

 

(11)       The employment business or the client may terminate the temporary worker’s assignment at any time without prior notice or liability (Clause 9.1).

 

(12)       The temporary worker may terminate an assignment at any time without prior notice or liability (Clause 9.2).

 

(13)       If the temporary worker does not inform the client or the employment business [in accordance with Clause 8.2], should they be unable to attend work during the course of an assignment, this will be treated as termination of the assignment by the temporary worker in accordance with Clause 9.2 unless the temporary worker can show that exceptional circumstances prevent him or her from complying with Clause 8.2 (Clause 9.3).

 

(14)       If the temporary worker is absent during the course of an assignment and the contract has not been otherwise terminated under Clauses 9.1, 9.2 and 9.3, the employment business will be entitled to terminate the contract in accordance with Clause 9.1, if the work to which the absent worker was assigned is no longer available for the temporary worker (Clause 9.4).

 

            (15)     The claimant was able, by the use of her leave and by swapping shifts with fellow employees of Noonan Ltd, to undertake role-playing or acting for PSNI (second respondent), as arranged by Grafton Recruitment Limited (first respondent).

 

            (16)     Grafton Recruitment Limited (first respondent) arranged role-players or actors for PSNI (second respondent) six weeks in advance of the scenario date.  The role-players were selected, dependent on the type of scenarios, in relation to sex and age, as required. 

 

            (17)     On or about 11 August 2014, Nadine McCrory, an employee of Grafton Recruitment Limited (first respondent), sought information from PSNI (second respondent) as to the list of role-plays that someone who is currently pregnant could undertake.  This query did not relate to the claimant but to another role-player. 

 

            (18)     By email of 11 August 2014 Joanne Gibson, on behalf of PSNI (second respondent), wrote to Martin Greer of Grafton Recruitment Limited (first respondent), and set out the requirements of each of the scenarios for which it required role-players.  In the email Ms Gibson offered to provide additional information required by Grafton Recruitment Limited in order that it could carry out a risk assessment in relation to its pregnant role-player.

 

            (19)     By email of 3 September 2014 Nadine McCrory responded to PSNI (second respondent) and enquired if any risk assessment had been carried out by  PSNI in relation to each of the practicals, i.e. the scenarios and asked to be provided with information about any risks that PSNI had identified.

 

            (20)     The particular pregnant role-player, on whose behalf Grafton Recruitment Limited (first respondent) was making the enquiry, did not pursue her interest in undertaking role-plays whilst pregnant and this discussion between Grafton Recruitment Limited and PSNI (first and second respondents) was not taken any further.

           

            (21)     The normal procedure for organising scenarios is that two to three weeks before the date of the scenario PSNI (second respondent) would contact Grafton Recruitment Limited (first respondent) and give a list of the role-acting requirements including some practical requirements such as the sex, age or description of the role-actor required. 

 

            (22)     The allocation of individuals from the pool of current role-actors was managed solely by Grafton Recruitment Limited (first respondent) and PSNI (second respondent) has no input whatsoever into the selection.  Grafton Recruitment Limited selects the individuals and forwards the names to PSNI in advance of the date of the specific scenarios.

 

            (23)                 On 8 October 2014 the claimant informed Grafton Recruitment Limited (first respondent) that she was pregnant.  Her understanding was that Grafton Recruitment Limited then informed PSNI (second respondent).

 

            (24)     Before 8 October 2014 the claimant had accepted an assignment, to participate in role-plays on 14 and 15 October 2014, on some date between 23 September 2014 and 8 October 2014.

 

            (25)     Following the claimant’s advice to Grafton Recruitment Ltd (first respondent) that she was pregnant, Nadine McCrory, by email of 8 October 2014, contacted Dawn Rainey at PSNI (second respondent) to ask if she could advise her if there were any risks to someone who is pregnant completing a theft practical.

 

            (26)     On 8 October 2014 Sergeant Glendinning was informed that
Nadine McCrory, from Grafton Recruitment Limited (first respondent), had asked if there was any risk to a pregnant role-actor completing a theft practical.  The identity of the individual was not mentioned to
Sergeant Glendinning. 

 

            (27)     Sergeant Glendinning was attached to the Police Training College.  His main duties included the day-to-day planning and co-ordination of PSNI’s (second respondent) Student Officer Training Programme in which scenarios are acted with the use of role-play actors

 

            (28)     The theft practical was a three part exercise over three days.  The role-actors discharged different roles as victims, witnesses or suspects.  There could be a degree of physical force by student police officers in relation to the role-actors which could expose a pregnant role-actor to risks.  PSNI (second respondent) also liked the flexibility of changing actors around where, for example, a role-actor failed to turn up as required or was late and this could be limited if a role-actor were pregnant.

 

            (29)     Sergeant Glendinning indicated that he saw the role-actors’ role like that of the student police officer.  PSNI’s (second respondent) procedure was that, on notification that the student police officer was pregnant, she would not be involved in the scenarios.  Sergeant Glendinning did not see any significant difference between the role carried out by the student police officers and the role-actors in the course of the practical scenarios and therefore pregnant role-actors, he determined, would be excluded from the scenarios also.  Sergeant Glendinning made this decision as he believed by so doing that he was safeguarding the health and welfare of the individual role-actor.

 

            (30)     PSNI’s (second respondent) Risk Assessment declared that pregnant employees must not undertake any form of Practical Scenario training.  That assessment was reviewed on 15 June 2015.  The risk assessment stated at the start of the document:-

 

                                 “A specific Risk Assessment using this template MUST be conducted for each female employee within this category.”

 

            (31)     The PSNI (second respondent) did not carry out a specific risk assessment for the claimant or a general one for role players.

 

            (32)     Dawn Rainey from PSNI, replied by email to Nadine McCrory on 8 October 2014.  She said that she had discussed this issue with Sergeant Glendinning.  She advised Nadine McCrory that as pregnant student police officers would not be permitted to participate in any practicals, the same restriction would apply to role-play actors.  She added, “Better safe than sorry”.

 

            (33)     Nadine McCrory then queried with her line manager, Martin Greer, on 9 October 2014, if there was any cause for concern, in relation to not allowing pregnant role-actors to take part in assignments, on foot of the email from Dawn Rainey of 8 October 2014.

 

            (34)     Martin Greer replied to Nadine McCrory by email of 9 October 2014.  In the email, he commented,

 

                                 “That looks like they have carried out a risk assessment in this role-play and realised that there is a risk to pregnant participants, whether that be the police student officer or the role actor.

 

                                 It could well be the arrest element with handcuffing of the role actor.  Suppose it could be dangerous if either party in the scenario is too aggressive??

 

                                 Just for completeness, I would ask Dawn to provide a list of which upcoming role plays are viable for our pregnant role actor, we can then do our utmost to ensure the pregnant role actor is not disadvantaged” ...

 

            (35)     Nadine McCrory replied to Martin Greer on 9 October 2014 and posed the question,

 

                                 “Do you think it is ok for me to take her out of this particular assignment with there being no risk to ourselves?”

 

            (36)     Martin Greer replied on the same date, to Nadine McCrory, to indicate that the pregnant role-actor should be removed from the role-play.  He encouraged Nadine to be transparent in her email and to outline the steps that Grafton Recruitment Limited (first respondent) would take to ensure that the pregnant role-actor would not be disadvantaged in any forthcoming role-plays.  He added in his email,

 

                                 “We would be on a sticky wicket if we ignored the advice given by the College, never mind how horrible you would feel if something went wrong!!”

 

            (37)     Nadine McCrory did not initiate any follow-up with PSNI (second respondent) to enquire if PSNI could provide a list of upcoming role-plays which were viable for pregnant role-actors as her line manager, Martin Greer, had suggested in his email of 9 October 2014.

 

            (38)     On 9 October 2014 Nadine McCrory sent an email to the claimant in the course of which she stated,

 

                                 “... As you are probably aware a number of the role-play scenarios involve a lot of aggressive behaviour and the client has taken the decision that a pregnant student officer or role-player will not be permitted to participate in any of these practicals.

 

                                 At present you have been booked in to complete a theft practical on Monday 14 October 2014 which is interlinked into Tuesday 15 October 2014.  Unfortunately, due to client instruction, I will have to withdraw you from both of these role-plays due to the risk which is associated with the role-play.

 

                                 I understand that this may be disappointing and if you wish to discuss further “please do not hesitate to contact myself.”

 

            (39)     It appears that the claimant did not make contact with Nadine McCrory to discuss this matter further.    

 

            (40)     The claimant said that she had followed this up with a number of telephone conversations but the outcome was that she was not engaged for any further role-plays. 

 

            (41)     By email of 3 March 2015 the claimant wrote to Nadine McCrory and stated in her email:-

 

                                 “I haven’t been booked in or offered anything since October 2014.  I was told because I was pregnant I would not be able to do certain roles.  But I was assured that roles I could do would be offered to me.  This has never happened.  All I receive is generic texts when a place can’t be filled.”

 

            (42)     On the same day Nadine McCrory sent an email to Dawn Rainey, of PSNI (second respondent), enquiring if a pregnant role-player would be able to complete ‘witness’ for role-playing and asked could Dawn advise if this were possible. 

 

            (43)     On 3 March 2015 Sergeant Glendinning’s office received the query from Grafton Recruitment Limited (first respondent) about the use of pregnant role-actors.  The request specifically referred to role-actors participating as witnesses.  Initially Sergeant Glendinning’s response was the same as he had given, by email of 8 October 2014, ie that if pregnant student police officers could not participate in the scenarios then pregnant role-actors could not also.

 

            (44)     Dawn Rainey replied to Nadine McCrory on 3 March 2015 and stated:-

 

                                 “I’ve been advised that on the basis that we remove student officers from the course upon reporting they’re pregnant, we are unfortunately unable to facilitate pregnant role-actors either.”

 

            (45)     Later on 3 March 2015 Nadine McCrory reported to the claimant, by email, the outcome of her enquiry from PSNI (second respondent) and stated that PSNI was unable to facilitate pregnant role actors. 

 

            (46)     On 3 March 2015 the claimant sent a further email to Nadine McCrory around 8.54 pm and stated:-

 

                                 “I understand that pregnant PSNI students are removed from the course due to the fact that they are required to do physical activity i.e. marching, PE, arrests and PSP.

 

                                 However, i do not understand why I cannot roleplay in RTC’s or none contact situation.

 

                                 I am both disappointed and surprised at the PSNI decision.  Can you clarify that this is their decision and not Grafton’s as I was of the understanding that it is Grafton who decide what I can and cannot do.  Furthermore, was a pregnant roleplayer risk assessment carried out in support of this decision and can you forward this to me. 

 

                                 In addition could you confirm who within the PSNI has made this decision and informed you of such.”

 

            (47)     On 4 March 2015 Nadine McCrory contacted Dawn Rainey by email and asked her why a pregnant role-play actor was unable to complete the witness roles.  She re-stated in the email that she had informed the role-player that  PSNI (second respondent) was treating a role-player in exactly the same way as it treated a pregnant student police officer.  She also mentioned that the particular role-player is not content with this response and asked for a copy of the risk assessment which says that she is unable to complete role-plays. 

 

            (48)     Because the role-actor obviously felt strongly about it Sergeant Glendinning spoke to a number of training staff and one of his health and safety risk assessors to establish if there were any risks involved in the theft practical scenario and would it be appropriate to amend his previous decision.

 

            (49)     By email of 9 March 2015 Nadine McCrory again contacted Dawn Rainey seeking a response to her email of 4 March 2015. 

 

            (50)     Arising from the email exchange Sergeant Glendinning caused his office to inform Grafton Recruitment Limited (first respondent) by email on 16 March 2015, that he would be happy to accept any of the pregnant role-actors for the role of witness/injured party on the theft practical.  Sergeant Glendinning also relaxed the age restrictions for the role-actors.  He did this in order to make a reasonable adjustment to his practice to facilitate a pregnant role-actor who obviously felt strongly that she still had a role to play. 

 

            (51)     Following the amendment of his previous decision to the claimant Sergeant Glendinning did not amend the generic requirements to reflect or include this change. 

 

            (52)     By email of 20 April 2015 the claimant wrote again to Nadine McCrory stating that it was six weeks since the last email from Nadine McCrory to her and she asked for a response to her complaint as she had not received anything by post or email.  She also asked for an update on the delay.

 

            (53)     By email of 22 April 2015 Nadine McCrory confirmed to the claimant that a pregnant role-actor can participate in certain scenarios where the role-actor will only play the part of the witness.  Nadine McCrory further indicated that she was about to book dates for May 2015 and that once the dates were confirmed she would contact the claimant to give her a first refusal on any role-plays which she is available to complete.  She also pointed out that  PSNI (second respondent) had reduced the number of role-plays available due to budget cuts. 

 

            (54)     Nadine McCrory contacted the claimant by email, on 1 May 2015, to indicate that when she was booking the role-plays for May 2015 she noticed that PSNI (second respondent) required role-actors to be 21 years old.  She then went back to PSNI to ask if there were any further role-play scenarios in which the claimant could participate.  She indicated that she would be in touch with the claimant in due course.

 

            (55)     The claimant had intended to lodge a complaint with the tribunal in early May but on 10 May 2015 she had to undergo an emergency caesarean section in the Royal Victoria Hospital.  After the birth of her son she had to come to terms with the knowledge that her child had inherited a genetic heart condition.  She also required time to recover from the emergency surgery.  She says in her witness statement that she lodged her claim form at the earliest opportunity on 24 July 2015.

 

            (56)                 On 26 May 2015 the claimant sent a grievance to Nadine McCrory.  In the email she set out the history of her non-participation since October 2014.  She also stated in her email:-

 

                                 “...

 

                                 As a result, I believe that the treatment I have received amounts to unlawful discrimination on the grounds of sex/pregnancy contrary to the Sex Discrimination (Northern Ireland) Order 1976, as amended, and/or relevant European Law, in particular the Equal Treatment Directive and/or The Pregnant Workers Directive.

 

                                 Please accept this as a formal grievance contrary to the legislation quoted above and as such, investigate and respond forthwith.”

 

            (57)     By email of 2 June 2015 Nadine McCrory explained to the claimant that she had escalated the claimant’s complaint to the account manager who would be in touch with her in due course. 

 

            (58)     By letter of 14 September 2015 Gail Prew, account manager with Grafton Recruitment Limited (first respondent), forwarded to the claimant the outcome of her complaint.  The investigation did not uphold the claimant’s complaints.  Ms Prew also found that there was no evidence to support the claimant’s allegations that she had been the victim of unlawful discrimination on the grounds of sex or pregnancy.  She also advised the claimant of her right of appeal.

 

            (59)     Nadine McCrory contacted the claimant again on 19 November 2015 enquiring as to her availability for role-plays and if she had any restrictions in respect of the types of role-plays.  By email of 25 November 2015 the claimant indicated to Nadine McCrory that she could not participate in any further role-plays as there was then an ongoing legal case. 

  

            (60)     PSNI’s (second respondent) records indicate that the claimant was involved in role-acting on four occasions between 6 August 2014 and 8 October 2014; in two sets of arrests and Article 34 practicals; one justice and security practical; and one RTC practical.  She also attended on 8 October 2014 for a cordon practical but due to an administration error the role-actors were brought to Garnerville instead of the Prison Service Complex in Millisle.  The claimant left of her own accord without participating in the scenarios on that date. 

 

            (61)     The claimant did not stop working with Noonan Ltd until April 2015 when she took some annual leave to use prior to her maternity leave.  She remained fit for work up until the birth of her son.  She was driving up until the birth.  Her work involved 10 hour shifts most of which consisted of standing and dealing with demanding and urgent matters.  At no point did she report unfit for work. 

 

            (62)     The claimant’s baby was born on 10 May 2015.  Following the birth the claimant was fit again for work from 22 June 2015. 

 

            (63)     The claimant criticises PSNI (second respondent) for failing to carry out a specific risk assessment in relation to her and her pregnancy with regard to her participation as a role-actor.

 

            (64)     The claimant did not lodge her claim for sex discrimination until 24 July 2015. 

 

            (65)     The claimant feels aggrieved that from the outset of her complaint neither respondent has accepted any responsibility for the unfairness that she believes she suffered.  Neither respondent offered an apology to the claimant and nor PSNI (second respondent) offer her an apology when it reversed its decision. 

 

            (66)     Arising from this failure to engage her as a role-player the claimant felt distressed and a lack of interest from individuals within both respondent organisations.  She felt she was not being treated equally and felt vulnerable as this was ongoing.  She felt that both respondents’ actions lacked transparency. 

 

            (67)     She felt that whilst she had hitherto had a very high opinion of PSNI (second respondent) and had enjoyed her time as a police officer she felt that her trust in both respondents had been damaged by their treatment of her.  It had a detrimental effect on her, making her feel like a lesser person.

 

            (68)     The claimant claims a financial loss of £12.30 per hour for 7.5 hours per shift for two days per month between October 2014 and April 2015.  She calculated this at 409 hours at £12.30 per hour which totals £5030.70.

 

            (69)     Both respondents deny the claimant’s claims in their entirety and further assert that her claims were made outside the time prescribed by the legislation and therefore should be dismissed as being out of time and that the tribunal should not exercise its discretion to extend time to enable her to continue with her claims. 

 

            (70)     On 16 March 2016 the claimant revised her financial loss claim to the following.  She based attending all theft (witness Day 1 scenarios and RTC scenarios excluding double accounting” where both scenarios took place on the same day for the period from 9 October 2014 until 28 April 2015.  She calculated her total loss at £4,138.95.  This is made up of the following:

 

                                    42 days at 7.5 hours x £12.30 per hour               =          £3874.50

 

                                    One day at 6.5 hours x £12.32 per hour              =          £    79.95

 

                                    Three days at 5 hours x £12.30 per hour             =          £  184.50

 

THE LAW

 

10.      (1)       A person discriminates against a woman if at a time in the protected period and on the ground of the woman’s pregnancy the person treats her less favourably (Article 5A(1)(a) Sex Discrimination (Northern Ireland) Order 1976 as amended).

 

            (2)       In relation to a woman, a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers, if she is not entitled to ordinary maternity leave in respect of the pregnancy, ends at the end of the two weeks, beginning with the end of the pregnancy (Article 5A(3)(a)(iii) Sex Discrimination (Northern Ireland) Order 1976, as amended).

 

(3)                      It is unlawful for a person, in the case of a woman employed by him, to discriminate against her by dismissing her or subjecting her to any other detriment (Article 8(2)(b) Sex Discrimination (Northern Ireland) Order 1976, as amended).

 

(4)          Employment means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly.  (Article 2(2) Sex Discrimination (Northern Ireland) Order 1976, as amended).

 

(5)          Broadly speaking, the definition applies to those who are (in the loose sense) employed as opposed to being entirely independent contractors.  The self-employed can fall within the definition provided they undertake to perform their work personally (Harvey on Industrial Relations and Employment Law Section L [553]).

 

(6)          The definition is therefore broad although it is far from being as comprehensive as it could be and in London Borough of Camden v Peg UKEAT/0590/11 (13 April 2012, unreported), there was an attempt to argue for an interpretation of the interaction between this definition and that applicable to contract workers, to whom protection was extended (relevantly to Ms Peg’s case) by virtue of s 4B DDA, that could have materially diminished the protection for agency workers facing discrimination.

 

London Borough of Camden v Peg UKEAT/0590/11: Ms Peg worked for the council as a temporary school planning officer, her services being provided by an agency with which she had a contract stating that she was self-employed and did not have to take any particular work offered to her, although if she did so, then she must work under the supervision of the client.  Payment was to be made through the agency but there was no contracts subsisting between engagements.  When subsequently seeking, to pursue a complaint of disability discrimination, a preliminary issue arose as to who-if-anyone-was the correct employer.  The Employment Tribunal found that there was a contract between Ms Peg and her agency when she took up an engagement and, although it was a contract for services, it qualified under
s 68 DDA as a contract ‘personally to do any work’.  Further, she was also employed by the council within s 4B(9) DDA, which defined a principal as ‘a person (A) who makes work available for doing by individuals who are employed by another person who supplies them under a contract made with A’.  On appeal, the council argued that s 4B(9) required the individual to be ‘employed by another person’, which here meant the agency but the tribunal had been wrong to find that this was the case because of a lack of obligation of personal service under s 68 – it was expressly stated that she did not have to accept any work offered and so there was no overall personal service obligation to the agency.  Ms Peg was thus not employed by the agency and therefore could not be a contract worker under s 4B.  In support of this, the council relied on the ‘taxi case’, Mingeley v Pinnock [2004] EWCA Civ 328, [2004] IRLR 373 [2004] ICR 727, CA, where a self-employed taxi driver with his own vehicle whose only contractual obligation to the taxi service operator was to pay a monthly fee to participate in the radio booking service was held not to be an employee (under the parallel provision of the RRA 1976) because otherwise he ran his business as he wanted and did not know any obligation of personal service.  The EAT (HHJ Richardson presiding) disagreed.  Such an argument would limit the reach of the legislation in such cases and would be contrary to the intention of Parliament.  In the instant case it was sufficient that, once the claimant did accept a particular assignment, she was under an obligation to the agency to perform the work personally (for which the agency paid her).  Mingeley was distinguishable because of the complete control of the driver over his work (Harvey on Industrial Relations and Employment Law L [553.01]).

 

(7)          Usually ‘direct’ discrimination will be intentional, but not always.  It is possible for an employer to discriminate unconsciously but directly”.  (Harvey on Industrial Relations and Employment Law L [275]).

 

(8)          Similarly motive is irrelevant.  If, for example, an interviewer asks a woman questions which he would not have asked were he dealing with a man, that could be direct discrimination, provided that less favourable treatment and detriment results.  It matters not that, in asking such questions, the motives or reasons of the persons asking were wholly admirable – such considerations being relevant to issues of compensation and not liability.  See Chief Constable of Greater Manchester v Hope [1999] ICR 338, EAT and O’Neill Governors of Saint Thomas More Roman Catholic Voluntarily Aided Upper School [1996] IRLR 373, [1997] ICR 33 per Mummery J at 43”.  (Harvey on Industrial Relations and Employment Law L [275.02]).

 

(9)          Pursuant to Article 8 Sex Discrimination (Northern Ireland) Order 1976, as amended, the duties of an employer in relation to employees are set out.  The Article provides as follows:-

 

8(1)       It is unlawful for a person in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman –

 

(a)       in the arrangements he makes for the purpose of determining who should be offered that employment, or

 

(b)      in the terms in which he offers her that employment, or

 

(c)       by refusing or deliberately omitting to offer her that employment.

 

(10)       Pursuant to Article 12 Sex Discrimination (Northern Ireland) Order 1976, protection is given in certain circumstances to contract workers against different forms of sex discrimination.  The Article provides as follows:-

 

   “12 (1)       This Article applies to any work establishment in Northern Ireland, 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 woman who is a contract worker –

 

(a)      in the terms in which he allows her to do that work, or

 

(b)      by not allowing her to do it or continue to do it, or,   

 

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

 

(d)      by subjecting her to any other detriment.

                           

 

(11)       An employee may be employed by one employer and work for another: take the typical case of the office ‘temp’.  She is employed by an agency which lends her to various offices.  If there is discrimination by her ‘real’ employer, the agency, she may complain under the foregoing provisions.  But she may alternatively, or additionally have a claim against the ‘temporary’ employer to whom she is sent by the agency.  The temporary employer is not strictly speaking the employer of the victim at all, so the discrimination legislation designates him as the ‘principal’ of the worker concerned.  And the worker is called by the legislation a ‘contract worker’; … (Harvey on Industrial Relations and Employment Law L [717]).

 

(12)       Agency workers are within the scope of these provisions, if there is no contractual relationship between the worker and the principal … .  If however there is no contractual relationship as the worker or employee of the agency, nor of the end user, individuals will be left without any remedy; as seen in the tribunal case of Alderson v Meridian Business Support Limited and East Lancashire Hospitals NHS Trust [2010] EqLR 113, in which a cleaner whose engagement ended when she told the agency and end user that she was pregnant, was found to be in a position where there was no jurisdiction to hear her complaint.  For an example of a case which went the other way, however, see London Borough of Camden v Peg UKEAT/0590/11 (13 April 2012), unreported).  (Harvey on Industrial Relations and Employment Law L [718]).

 

(13)       Once an employee has accepted an offer unconditionally, the contract is binding and the employer cannot unilaterally withdraw the offer.  If it does, then it could face a claim of breach of contract from the employee.  This is so even if the employee has not yet started working under the contract.  In Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR673, EAT employment was offered and accepted in August but it was agreed that the employee would not start work until October.  The employer was in breach of contract when, in September, it sought to withdraw the job offer.  The EAT rejected the employer’s argument that, before October, there was merely an agreement to enter into an employment contract.  The proper analysis was that the contract of employment had been formed in August and the parties had merely agreed to delay its performance.  This analysis met with the approval of the President of the EAT, Mr Justice Langstaff in Welton v Delux Retail Limited, t/a Madhouse (In Administration) [2013] ICR 428 EAT (Contracts of Employment, IDS Employment Law Handbook, paragraph 1.14 at page 7).  (See also Harvey on Industrial Relations and Employment Law H [118]).

 

(14)       This issue came before the Court of Appeal in Northern Ireland in the case of John Kevin Bohill v Police Service of Northern Ireland [2011] NICA 2 where Coghlin LJ delivering the judgment of the Court stated at paragraph [13]:-

 

              “In our view the inability of the appellant to establish that he is seeking an employment relationship with PSNI or that he is in such a relationship with Grafton and to bring himself within the definition of “employee” contained in Article 2 of the 1998 Order is fatal to this appeal.  In the absence of such proof the tribunal simply did not have jurisdiction”.

 

(15)       Coghlin LJ reiterated the finding of the Court of Appeal when he said at paragraph [15]:-

 

              “… However, in the absence of any contract with either Grafton or the respondent the tribunal does not have jurisdiction …”.

 

(16)       A question came before the Court of Appeal in England in CLFIS (UK) Limited v Reynolds [2015] EWCA Civ 439 as to whether liability for discrimination in a situation in which there was a contract worker lay with the real employer or with the end user.  The Court of Appeal ruled that when deciding whether an individual has been dismissed for a discriminatory reason the Employment Tribunal should only consider the motivation of the person who makes the decision to dismiss, not other employees who may be indirectly involved.  For a claimant to succeed with a discrimination claim in these circumstances the person who decided to dismiss must have made the decision because of a protected characteristic, in the instant case, the claimant’s maternity.

 

(17)       In the course of giving the decision of the Court of Appeal Underhill LJ stated:-

 

              “11 …, it is now well-established that a person may be less favourably treated “on the grounds of” a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the “mental processes” of the putative discriminator, whether consciously or unconsciously, to any significant extent:

 

Underhill LJ continued at paragraph 14 of the decision:-

 

              “14 … But, in short, the primary liability for discrimination is placed by Regulation 7 [Article 8 SDO] on the employer, who will be liable for the acts of his employees acting in the course of their employment (Regulation 25(1)) [(Article 42(1) Sex Discrimination Order (Northern Ireland) 1976, as amended]).

 

(18)       Having considered the competing analyses of the duty and liability of a decision maker influenced by another person, a third party, Underhill LJ concluded at paragraph 46:-

 

                 “I accordingly believe that the correct approach in a tainted information case is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it”.

 

            (19)     It is not unlawful for a person to do any act in relation to a woman if it was necessary for that person to do it in order to comply with the requirement of an existing statutory provision concerning the protection of women or it was necessary for the person to do it in order to comply with the requirement of a relevant statutory provision (within the meaning of Part II of the Health and Safety at Work (Northern Ireland Order 1978) and it was done by that person for the purpose of protection of the woman in question (or of any class of women that included that woman).  (Article 52(1)(i) and (ii) Sex Discrimination (Northern Ireland) Order 1976, as amended).

 

            (20)     Article 5 of the Health and Safety at Work (Northern Ireland) Order 1978 requires every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons, not in his employment who may be affected thereby, are not thereby exposed to risks to their health or safety.

 

           

            (21)     In the case of Page v Freight Hire (The Haulage) Limited [1981] 1 All ER at page 394, the effect of the comparable English provision to Article 5 of the Health and Safety at Work (Northern Ireland) Order 1978 was considered.

 

            (22)     In that claim Ms Page, a 23 year old woman was employed as a lorry driver by a firm of carriers engaged in the transport of chemicals between various chemical plants.  The employers acting on the instruction of the manufacturers of the chemicals, refused to allow the complainant to transport a particular chemical which was potentially harmful to a woman of child-bearing age.  The complainant made a complaint to an industrial tribunal that she had been unfairly discriminated against contrary to s 1 of the Sex Discrimination Act 1975.  The tribunal held that the employers had discriminated against the complainant but, since they had done so in the interests of safety, there was no breach of the statute.  The complainant appealed to the Employment Appeal Tribunal.  The Employment Appeal Tribunal held that the fact that discriminatory action by an employer was taken in the interests of safety did not of itself provide the employer with a defence to a complaint of unlawful discrimination under the 1975 Act.  However, if the employer’s action was necessary in order to comply with another, earlier statute, the employer was then protected by s 51(1) of the 1975 Act.  Since the employers were under a statutory duty by virtue of s 2 of the Health and Safety at Work etc Act 1974, to ensure, so far is reasonably practicable, the health, safety and welfare of their employees, which include, in particular, ensuring safety and absence of risk to health in the use, handling, storage and transport of substances, they were, in the circumstances, entitled to take the view that the only way they could comply with s 2 of the 1974 Act was to refuse to allow the complainant to transport a chemical which was potentially dangerous to her.  The employers were accordingly protect by s 51(1) of the 1975 Act and the appeal was dismissed.

 

            (23)     Slynn LJ giving the decision of the EAT stated at page 398 e-h:-

 

                                    “Counsel for the Equal Opportunities’ Commission and, indeed, counsel for Mrs Page had submitted that the proper approach here  is to ask oneself: was it necessary for the employer to do what he did in order to comply with the requirements of the Health and Safety at Work etc Act 1974? Counsel for the Commission submits that, as a matter of principle, it has to be shown that there is no other way of protecting a woman, or a man, in a case where a man is involved (other than be debarring her (or him)) from taking up a job.  He says that, when the matter is considered as a whole the conclusion must inexorably lead to a need to debar the individual from doing the job, otherwise it cannot be said that it is necessary for the purposes of satisfying the requirements of the 1974 Act.

 

                                    It seems to us that it is clearly right that it is not an answer, under s 51(1) of the 1975 Act, for an employer to say:

 

                                             “There was a risk, and, accordingly, I am not going to allow you, a woman [or, in the appropriate case, you, a man] to do this particular job because you, a woman [or, if there is such a case, you, a man], are particularly vulnerable to risk because of your sex.  It is important to consider all the circumstances of the case, to consider the risk involved and the measures that it can be said are reasonably necessary to eliminate the risk.  It may well be that the wishes of the person who it is desired to protect give a factor.  Here it was said that Mrs Page did not want to have a child and did not anticipate becoming pregnant, as she was divorced.  We accept that the individual’s wishes may be a factor to be looked at, although, in our judgment, where the risk is to the woman, of sterility, or to the foetus, whether actually in existence or likely to come into existence in the future, these wishes cannot be a conclusive factor.

 

                                    We feel that counsel for the Commission has put the matter too high.  It does not seem to us that an employer, in order to satisfy the test of s 51 of the 1975 Act (read with s 2 of the 1974 Act), has to show that inexorably this was the only method available to him.  It is to be remembered that the duty is to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees …”.

 

            (24)     This approach was endorsed in the decision of the EAT in Amnesty International v Ihmed [2009] IRLR at 884.  The head note records:-

 

                                             “(2) the defence in s 41 [Article 52 SDO 1976 as amended] applies where the acts complained of were necessary in order to comply with the statute, even where the act complained of is not as such, required by the statute, but is nevertheless done in the course of compliance with an obligation imposed by it.  It is enough that the employers could show that the act complained of was necessary on the information available to them, although the availability of the defence is not to be judged by reference to the reasonableness of the employer’s assessment.  The tribunal’s task is to make its own assessment, doing so on the basis of what the employer knew, or should reasonably have known, when the decision failed to be made …”.

 

            (25)     Where a person making a complaint under the Sex Discrimination (Northern Ireland) Order 1976 as amended, proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that a respondent has acted in a way unlawful under the Order, the tribunal shall uphold that complaint unless the respondent proves that he did not commit or as the case may be, is not to be treated as having committed that act.  (Article 63A  Sex Discrimination (Northern Ireland) 1976, as amended). 

 

            (26)     A tribunal shall not consider a complaint of sex discrimination unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.  A tribunal may nevertheless consider any complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.  (Article 76(1) and (5), Sex Discrimination (Northern Ireland) Order 1976 as amended).

 

            (27)     It has been noted that under some jurisdictions the tribunal is empowered to grant an extension of time ‘if, in all the circumstances of the case, it considers that it is just and equitable to do so’, ….  Where these words appear, it has been held that they give the tribunal ‘a wide discretion to do what it thinks just and equitable in the circumstances … they entitle the … tribunal to take into account anything which it judges to be relevant’: Hutchinson v Westward Television Limited [1977] IRLR 69 [1977] ICR 279, EAT.  The discretion is broader than that given to tribunals under the ‘not reasonably practicable’ formula: Hawkins v Ball and Barclay’s Bank PLC [1996] IRLR 258 EAT; British Coal Corporation v Keeble [1997] IRLR 336, EAT; Mills and Crown Prosecution Service v Marshall [1998] IRLR 494, sub nom DPP v Marshall [1998] ICR 518, EAT.  Notwithstanding the breadth of the discretion, it has been held that ‘the time-limits are exercised strictly in employment … cases’, and that there is no presumption that a tribunal should exercise its discretion to extend time on the ‘just and equitable’ ground unless it can justify failure to exercise the discretion; as the onus is always on the claimant to convince the tribunal that it is just and equitable to extend time, ‘the exercise of discretion is the exception rather than the rule’ (Robertson v Bexley Community Centre [2003] EWCA Civ 596, [2003] IRLR 434, at paragraph 25, per Auld LJ); Department of Constitutional Affairs v Jones [2007] EWCA Civ 894, [2008] IRLR 128, at paragraphs 14-15, per Pill LJ).  (Harvey on Industrial Relations and Employment Law PI [277]).

 

            (28)     The discretion to grant an extension of time under the ‘just and equitable’ formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corporation v Keeble, DPP v Marshall above).  Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular:-

 

(a)          the length of 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 requests for information;

 

(d)          the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

 

 

(e)          the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.  (See British Coal Corporation v Keeble [1997] IRLR 336 at paragraph 8).  However, although in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’.  (Southwark London Borough v Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at paragraph 33 per Peter Gibson LJ).  This point was reiterated by Laing J in Millar v Ministry of Justice UKEAT/0003/15 (15 March 2016, unreported) …, where she rejected any suggestions that if a tribunal does not expressly rehearse the factors and ‘balance them off’ appropriately, it will err in law.  She emphasised that it is for the employment tribunal to decide (subject to Wednesbury) what factors are relevant to the exercise of its discretion and what weight to give to them, and not for the EAT to give detailed instructions on the matter (paragraphs 29-20).  (Harvey on Industrial Relations and Employment Law P [279]).

 

(29)     Where a claimant asserts ignorance of the right to make a claim, the same principles that are relevant to the ‘not reasonably practicable’ escape clause … apply when considering a just and equitable extension ….  Accordingly the assertion must be genuine and the ignorance – whether of the right to make a claim at all, or the  procedure for making it, or the time within which it must be made – must be reasonable.  It is not enough, in a case where ignorance is relied upon, for a tribunal to conclude that a claimant has not acted reasonably and promptly without specifically addressing the alleged lack of knowledge ….  Nor is it correct to say that the only knowledge that is relevant when considering an extension of time is knowledge of the facts that could potentially give rise to a claim, not knowledge of the existence of a legal right to pursue compensation in respect of those facts; as a matter of law both kinds of knowledge are relevant and should be taken into account ….  (Harvey on Industrial Relations and Employment Law P1 [279.02]). 

 

(30)     In the Wall’s Meat case, Brandon LJ dealt with the matter as follows:

 

                     ‘The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance.  The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters.  Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three  months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.  Either state of mind will, further not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of is solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him’.  (Harvey on Industrial Relations and Employment Law P1 [206]).

 

(31)     Brandon LJ then expanded on the circumstances in which ignorance, as opposed to mistaken belief, might give grounds for a finding of reasonable impracticability:

 

                     ‘With regard to ignorance operating as a similar impediment, I should have thought that if any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an [employment] tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned. 

 

                     For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time in which to exercise it.  In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant. 

 

                     While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the case or difficulty with which a finding that the relevant ignorance is reasonable may be made.  Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it.  By contrast, if he does know of the existence of the right, it may in many cases though not necessary all, be difficult for him to satisfy an [employment] tribunal that he behaved reasonably in not making such inquiries. 

 

                     To that extent, therefore it may, in general, be easier for a complainant to avail himself of the “escape clause” on the ground that he was reasonably ignorant of his having a right at all, that on the ground that, knowing of the right, he was reasonably ignorant of the method by which, or the time limit within which, he ought to exercise it’.  (Harvey on Industrial Relations and Employment Law P1 [206.01]).  

 

 

APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES

 

11.      (1)       The claimant had a contractual relationship with Grafton Recruitment Limited (first respondent) to provide role-play services for PSNI (second respondent).  Grafton Recruitment Limited had a contract with PSNI to provide role-actors for training scenarios organised by PSNI.

 

            (2)       PSNI (second respondent) set out for Grafton Recruitment Limited (first respondent) its requirements for role-plays and Grafton Recruitment Limited selected the role-players.  The role-player’s name and car registration were provided by Grafton Recruitment Limited to PSNI.

 

(3)                      The claimant’s contractual relationship with Grafton Recruitment Limited (first respondent), according to the contract, is a contract for services which exists only during the assignment to which the role-play relates.

 

(4)                      At some date prior to 8 October 2014 and after 23 September 2014 Grafton Recruitment Limited (first respondent) offered to the claimant two assignments on 14 and 15 October 2014 which the claimant accepted.  Applying the analysis of when a contract commences set out in Sarker v South Tees Acute NHS Trust and approved by the President of the EAT Laingstaff J in Welton v Delux Retail Limited, t/a Madhouse (In Administration) the contract becomes binding once the employee  has accepted an offer unconditionally with its performance delayed to a later date.  Therefore by 8 October 2014 the claimant already had a binding contract with Grafton Recruitment Limited.

 

(5)          The claimant did not have any contractual relationship with PSNI (second respondent) nor was she seeking to have one.

 

(6)          Grafton Recruitment Limited (first respondent) cancelled the claimant’s assignments for 14 and 15 October 2014 because PSNI (second respondent) told them they would not accept pregnant role-players in their training scenarios as it was their policy and practice to exclude pregnant student police officers from the scenarios and they saw no difference between student police officers and the role-players.

 

            PSNI (second respondent)

 

(7)          PSNI (second respondent) say the reason for their decision was health and safety for the protection of women.  It relies on Article 52 of the Sex Discrimination Order (Northern Ireland) 1976, as amended to provide legal justification for what it did.

 

(8)          Article 52 of the SDO renders not unlawful an otherwise unlawful discriminatory act done for the purpose of the protection of women.

 

(9)          PSNI (second respondent) relies specifically on Article 52(1)(ii) which requires PSNI to show in relation to the cancellation of the claimant for the assignments on 14 and 15 October 2014 that:-

 

            “it was necessary for [PSNI] to do it in order to comply with a requirement of a relevant statutory provision (within the meaning of Part II of the Health and Safety at Work (Northern Ireland) Order 1978) and it was done by … [PSNI] for the purpose of the protection of the … [claimant], or of any class of woman that included … [the claimant].

 

(10)       Article 5 of the Health and Safety at Work (Northern Ireland) 1978 provides:-

                       

            “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”.

 

(11)       The comparable English provision is s 5 the Health and Safety at Work Act 1975 and is in similar terms.  The English provision was considered in the case of Page v Freight Hire (The Haulage) Limited [1981] 1 ALL ER at page 394.  The EAT concluded, as stated in the head note:-

 

                                      “The fact that discriminatory action by an employer was taken in the interests of safety did not of itself provide the employer with a defence to a complaint of unlawful discrimination under the 1975 Act.  However if the employer’s action was necessary in order to comply with another statute, the employer was protected by s 51(1) of the 1975 Act (Article 52(1) SDO)”.

 

(12)       Slynn J giving the decision of the EAT stated at page 398f:-

 

                 “It is important to consider all the circumstances of the case, to consider the risk involved and the measures which it can be said are reasonably necessary to eliminate the risk”.

 

(13)       This approach was endorsed by the EAT in Amnesty International v Ihmed [2009] IRLR 884.

 

(14)       The tribunal is satisfied that some activities within the training scenarios which required physical contact organised by PSNI (second respondent) could pose a risk to pregnant police offices and role-players.

 

(15)       The tribunal is not satisfied that it was necessary for PSNI (second respondent) to refuse to accept the claimant as a role-play actor in order to comply with its duties under the Health and Safety at Work (Northern Ireland) Order 1978.  In so concluding the tribunal had regard to the following matters:-

 

(a)          When Sergeant Glendinning refused to accept the claimant as a role-player on 8 October 2014, on being informed that she was pregnant, PSNI had not carried out any risk assessment on the claimant or role-players.  It had merely applied the conclusion it had already reached in relation to pregnant police officers to the claimant.

 

(b)          Following an enquiry from Grafton Recruitment Limited (first respondent) on 4 March 2015 if the claimant could complete the witness role in the scenarios Sergeant Glendinning consulted with the training staff and the Health and Safety risk officer and he informed Grafton Recruitment Limited that a pregnant role-actor could discharge the role of witness or injured party in the theft practical.  He conveyed this information to Grafton Recruitment Limited on 16 March 2015.

 

(c)          PSNI did not seek advice from the trainer or health and safety assessors before cancelling the claimant as a role-actor on 8 October 2014.

 

(d)          There was not any evidence before the tribunal to suggest that had  PSNI made the enquiry in October 2014 that it made in March 2015 that the advice would have been different.

 

 

(16)       The statutory exemption for discriminatory acts done for the purpose of the protection of women (Article 52 SDO) is not available to PSNI in the circumstances of this claim.

 

(17)       The claimant does not have a contractual relationship with PSNI (second respondent).  However, contract workers, such as the claimant, are given protection against unlawful discrimination done by PSNI as a principal in the three-way relationship of the claimant, her employer, Grafton Recruitment Limited (first respondent) and the principal, PSNI, under Article 12 Sex Discrimination Order (Northern Ireland) 1976, as amended.

 

(18)       The cancellation of the claimant’s work as a role-player by reason of her pregnancy by PSNI (second respondent) on 8 October 2014 falls under Article 12(2)(b) of the SDO, “by not allowing her to do it or continue to do it” and amounts to unlawful sex discrimination.

 

(19)       But can the claimant successfully bring a claim against PSNI?  The respondents argue, following the decision in Bohill v PSNI [2011] NICA 2, that the claimant cannot show that she is seeking a relationship with PSNI (second respondent) and is not in a relationship with Grafton Recruitment Limited (first respondent) on 14 and 15 October 2014 following the statement by Coghlin LJ where he stated at paragraph 13 of the Court of Appeal’s decision:-

 

“In our view the inability of the appellant to establish that he is seeking an employment relationship with PSNI or that he is in such a relationship with Grafton and to bring himself within the definition of “employee” contained in Article 2 of the 1998 Order is fatal to this appeal.  In the absence of such proofs the tribunal simply did not have jurisdiction”.

 

            The same point is made in Harvey on Industrial Relations and Employment Law L [718] where the learned author states:-

 

                     “… If however there is no contractual relationship as the worker or employee of the Agency, nor of the end user, individuals will be left without any remedy: as seen in the tribunal case of Alderson v Meridian Business Support Limited and East Lancashire Hospitals NHS Trust [2010] EqLR 113 in which a cleaner whose engagement ended when she told the Agency and end user that she was pregnant was found to be in a position where there was no jurisdiction to hear her complaint”.

 

(20)       Both respondents rely on the provision of the claimant’s contract with Grafton Recruitment Limited (first respondent) where it states that the claimant’s contract only exists during assignments (paragraph 9(6) above).

 

(21)     In this case although the work to be discharged by the claimant was on 14 and 15 October 2014 the offer and acceptance occurred on a date between 23 September 2014 and 8 October 2014.  Following the approach in this decision of Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR 673 a contract subsisted on 9 October 2014 when Grafton Recruitment Limited withdrew the claimant from assignments on 14 and 15 October 2014 on foot of PSNI’s instructions (second respondent).

 

(22)       Therefore on 9 October 2014 the claimant was in a contractual relationship with Grafton Recruitment Limited (first respondent) and therefore can avail of the protection afforded to her by Article 12 SDO.

 

(23)       The claimant is claiming for future days during police scenarios on the basis that for two months prior to 14 and 15 October 2014 she had done two days per month.

 

(24)       The claimant cannot claim successfully against PSNI (second respondent) for not getting future work as a role-player with it as the protection afforded to a contract worker against a principal who is not an employer does not cover, under Article 12 SDO, the arrangements made for the purpose of determining who should be offered employment.  That protection falls under Article 8 of SDO and is only available to persons in employment and the claimant did not have a contract of employment with PSNI.

 

(25)       Both claimants advocate that the claimant’s claim should not succeed by reason of it being late and that therefore the tribunal does not have jurisdiction to entertain the claim.  I will return to this point later.

 

            Grafton Recruitment Limited (first respondent)

 

(26)       The claimant was employed by Grafton Recruitment Limited (first respondent) under a contract to personally execute work or labour, ie, role-playing in scenarios organised by PSNI (second respondent).  Her contract only existed when on assignment, according to the terms of her contract with Grafton Recruitment Limited.  As stated above, however, the tribunal concluded that a contract with Grafton Recruitment Limited existed from the time the claimant accepted the offer of employment from Grafton Recruitment Limited at some date between 23 September 2014 and 8 October 2014.  Performance of the contract was delayed until 14 and 15 October 2019.  This analysis is pursuant to the decision in Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR 673 EAT which was approved by Langstaff J in Wilton v Delux Retail Limited, t/a Madhouse (In Administration) [2013] ICR 428 EAT.

 

(27)       Grafton Recruitment Limited (first respondent) withdrew the claimant from the scenarios scheduled for 14 and 15 October 2014 on 9 October 2014 for which the claimant had been personally contracted to undertake.  It withdrew the claimant because the PSNI (second respondent) had taken the decision that a pregnant role-player was not permitted to participate in any of the practicals.

 

(28)       As stated above, the decision of PSNI (second respondent) not to permit the claimant because of her pregnancy to take part in the scenarios on 14 and 15 October 2014 did not attract the protection afforded by Article 52 SDO and was therefore an unlawful discriminatory act.

 

(29)       The tribunal accepts that in withdrawing the claimant from the scenarios on 14 and 15 October 2014 by Grafton Recruitment Limited (first respondent) it was following and relying on the instruction of the PSNI (second respondent).

 

(30)       By withdrawing the claimant from the scenarios on 14 and 15 October because she was pregnant Grafton Recruitment Limited (first respondent) treated the claimant less favourably on the ground of her pregnancy (Article 5 SDO) which action amounts to unlawful sex discrimination.

 

(31)       The question arises does Grafton Recruitment Limited (first respondent) escape or avoid liability because it was acting on the instruction and decision of PSNI (second respondent) or did not itself want to discriminate against the claimant?

 

(32)       This is not a case of “tainted information” as described by Underhill J in CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439.

 

(33)       As Underhill LJ said in CLFIS at paragraph 11:-

 

                     “11. As regards direct discrimination, it is now well established that a person may be less favourably treated “on the grounds of” a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the “mental processes” of the putative discriminator, whether consciously or unconsciously, to any significant extent:”

 

(34)       Here Grafton Recruitment Limited (first respondent) withdrew the claimant from the scenario with the PSNI (second respondent) on 9 October 2014 following the PSNI decision not to permit the claimant to participate in the scenarios because she was pregnant.  An email from Nadine McCrory on 9 October 2014 stated:-

 

                        “… As you are probably aware a number of the role-play scenarios involve a lot of aggressive behaviour and the client has taken the decision that a pregnant student officer or role-player will not be permitted to participate in any of these practicals.

 

At present you are being booked in to complete a theft practical on Monday 14 October 2014 which is interlinked into Tuesday 15 October 2014.  Unfortunately, due to client instruction, I will have to withdraw you from both of these role plays due to the risk which is associated with the role-play …”

 

(35)       To withdraw the claimant from the scenarios because she was pregnant is inherently discriminatory and was clearly influenced by the decision of the PSNI (second respondent).

 

(36)       It is clear that Grafton Recruitment Limited (first respondent) had concerns with this development.  Nadine McCrory queried, with her line manager on
9 October 2014, if this was a cause for concern in not allowing pregnant role-actors to take part in assignments.

 

(37)       Nadine McCrory’s line manager, Martin Greer, followed up the internal enquiry from Nadine McCrory by suggesting to her in his email of 9 October 2014:-

 

                        “… I would ask Dawn [Dawn Rainey at PSNI] to provide a list of which upcoming role-plays are viable for our pregnant role actor, we can then do our utmost to ensure that the pregnant role actor is not disadvantaged.  …”

 

(38)       Nadine McCrory seemed to share Martin Greer’s concerns for she replied by email of the same date:-

 

                     “Do you think it is ok for me to take her out of this particular assignment with there being no risk to ourselves?”

 

(39)       Martin Greer decided that the claimant should be removed but he also added that the claimant should be told the steps that Grafton Recruitment Limited (first respondent) would take to ensure that the claimant would not be disadvantaged in any forthcoming role-plays.  However, it appears, Nadine McCrory did not follow up with the PSNI (second respondent) Martin Greer’s recommendation.

 

(40)       Therefore by 9 October 2014 Grafton Recruitment Limited (first respondent) was raising the issue internally about an analysis of the scenarios to ascertain what role-plays a pregnant role actor could undertake.  This is in effect what happened in March 2015, when Sergeant Glendinning, having been pressed by Grafton Recruitment Limited, undertook such an analysis through his advisors and Health and Safety Officer.

 

(41)       There was not any evidence before the tribunal to suggest that the query raised by Martin Greer could not have been raised by Grafton Recruitment Limited (first respondent) with the PSNI (second respondent) on 9 October 2014.  Nor was there anything to suggest that had such an enquiry been acted on by the PSNI that the outcome would have been any different to what happened in March 2015 when the query was made.

 

(42)       The tribunal accepts that Grafton Recruitment Limited (first respondent) did not intend to discriminate against the claimant nor had any motivation so to do.  However, can the absence of an intention to discriminate or a lack of motivation to discriminate or even a reliance on information provided to it by the PSNI enable the first respondent to escape from the provisions of the Sex Discrimination (Northern Ireland) Order 1976, as amended.  The answer is clearly no.  As Mummery J put it in  O’Neill v Governors of Saint Thomas More Roman Catholic Voluntarily Aided Upper School [1997] ICR 33 at 43C and D:-

 

                     “(a)    It is established by the authority of the House of Lords that the test to be applied in determining whether treatment is directly discrimatory on the ground of sex is not one of subjective mental processes of the respondents, i.e., as to their intentions, motives, beliefs or subjective purposes.  Those considerations may be relevant to remedies for discrimination, but they are not relevant to liability.  A condition of liability in the expression “on the ground of her sex” is an objective test of causal connection.  According to the ruling of the House of Lords on the similarly worded Race Relations Act 1976, the relevant question is:

 

                                        “would the applicant have received the same treatment but for her sex?  See James v Eastleigh Borough Council [1990] ICR 554, 568A, 572C-E and 576C-E”.

 

(43)       Of course from the point of view of Grafton Recruitment Limited (first respondent) the situation is less straightforward in that it is clear that the people within Grafton Recruitment Limited had reservations and concerns about the decision to withdraw the claimant from the scenarios on 14 and 15 October 2014 because she was pregnant. 

 

(44)       The decision of Grafton Recruitment Limited (first respondent) to withdraw the claimant from the scenarios on 14 and 15 October 2014 was an act of unlawful sex discrimination.  The consequence of that was that the claimant did not work for two days on 14 and 15 October 2014 for which she had been previously been booked under a binding contract.

 

(45)       The claimant is making a claim for a loss of two days’ work per month doing scenarios from October 2014 until March 2015.  She cannot recover for these other days as a loss attributable to the act of unlawful discrimination committed on 9 October 2014 because she was only employed under that contract until the conclusion of the assignment on 15 October 2014.

 

(46)       However, it is open to the claimant to claim for future days that she hoped to work by virtue of Article 8(1)(a) of SDO.  That provision states:-

 

                     “8 (1)      It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman –

 

(a)       In the arrangements he makes for the purpose of determining who should be offered that employment, or …”

 

(47)       Clearly Grafton Recruitment Limited (first respondent) had decided that by reason of the claimant’s pregnancy she was not eligible for future assignments with the PSNI for the duration of her pregnancy.

 

            Time Issue

 

(48)       The claimant’s claim was lodged on 24 July 2015.

 

(49)       Both respondents argue that on 9 October 2014 the claimant knew that she was being withdrawn from the scenarios on 14 and 15 October 21014 on the ground of her pregnancy and her cause of action therefore arose at that date.  The primary limitation period therefore would have expired on 9 January 2015 and her claim was some 6.5 months’ late.

 

(50)       The claimant argues that the operative date from which time begins to run is 22 April 2015 when she was informed that pregnant role-play actors could participate in witness scenarios.  The primary period of three months therefore, on the claimant’s submission, expired on 22 July 2015.  On her own submission the claimant’s claim form is two days late and therefore in order to be able to continue with the claim she needs the tribunal to exercise its ‘just and equitable discretion’ in her favour.

 

(51)       The tribunal prefers the claimant’s contention in relation to the running of time because when the claimant was informed on 9 October 2014 by Grafton Recruitment Limited (first respondent) that she was being withdrawn from the scenarios it was clearly with a view to protect her against aggressive behaviour that they may be part of the scenarios.  Committing an act that would otherwise be unlawful sex discrimination which is necessary for the protection of women provides an exemption to the normal approach of the SDO.  While it is not clear if the claimant was aware of these provisions on 9 October 2014 the tribunal is satisfied that had she raised the issue of unlawful sex discrimination at that time she would have been told that the reason was for her protection and we believe that she would have accepted that explanation.  The tribunal accepts that it was only on 22 April 2015 when she was told that she could participate in some aspects of the scenarios as a witness or indeed note-taker that a potential claim for sex discrimination crystallised. 

 

(52)       It is the claimant’s contention, supported by medical evidence that she was fit for work on 22 June 2015 following the birth of her baby on10 May 2015.  Furthermore, the claimant asserts that she was fit for work up until April 2015 when she took leave prior to her maternity leave commencing. 

 

(53)       The claimant lodged a grievance with Grafton Recruitment Limited (first respondent) on 26 May 2015 in which she asserted:-

 

                     “… As a result, I believe that the treatment I have received amounts to unlawful discrimination on the grounds of sex/pregnancy contrary to the Sex Discrimination (Northern Ireland) Order 1976, as amended, and/or relevant European Law, in particular the Equal Treatment Directive and/or The Pregnant Workers’ Directive.

 

                     Please accept this as a formal grievance contrary to the legislation quoted above and as such, investigate and respond forthwith”.

 

(54)       The inescapable conclusion is that the claimant was aware of a potential claim against Grafton Recruitment Limited (first respondent) for unlawful discrimination on the ground of sex or pregnancy from 26 May 2015.  Allowing for the demands and pressure on someone during the later stages of pregnancy the claimant should have been in a position from 22 June 21015 when she returned to work to lodge her claim, in the absence of any other explanation.

 

(55)       The claimant sought to explain the delay in lodging her claim on a number of grounds.  She was taken into hospital on 10 May 2015 for an emergency caesarean section.  The child inherited a genetic heart condition and the claimant had to come to terms with that.  She also submitted to the tribunal that she was unaware of the three months’ time-limit.  She said she lodged the claim form at the earliest opportunity.  She was also pursuing an internal grievance and making requests under the Freedom of Information Act 2000.

 

(56)       In this claim in order that the claimant’s claim gets off the ground she has to rely on the ‘just and equitable discretion’.  Her claim is two days’ late.  The authorities make it clear that the onus is on the claimant to persuade the tribunal to exercise its discretion in her favour in order that her claim can continue.

 

(57)       The tribunal is not persuaded that it should exercise its discretion in the claimant’s favour.  In so concluding the tribunal had regard to the following matters:-

 

(a)         The tribunal accepts that the time runs for the claimant from
22 April 2015, when she was of the view that she was the victim of unlawful discrimination.

 

(b)         She worked up until April 2015 when she took some annual leave prior to her maternity leave.

 

(c)       The baby was born on 10 May 2015.

 

(d)      The claimant lodged a grievance with Grafton Recruitment Limited (first respondent) on 26 May 2015.

 

(e)      The claimant returned to work on 22 June 2015.

 

(f)        Pursuing an internal grievance or making a Freedom of Information request are not reasons for not lodging a claim, particularly when the claimant in her witness statements states that it was her intention to lodge her claim in early May 2015.

 

(g)      The tribunal accepts that up until 26 May 2015 the claimant was preoccupied with the birth of her baby and some medical difficulties that were occurring at that time.

 

(h)      Likewise ignorance of time-limits in order to justify not lodging a claim in accordance with the prescribed time-limits must itself be reasonable.  The claimant does not satisfy that test.  By 26 May 2015 the claimant had considerable information about the type of claim she was grieving about.  She had clearly researched or sought advice.  It is hard to believe that in the course of seeking such advice or doing research that she did not come upon anything to do with time-limits.

 

(i)        The claimant returned to work on 22 June 21015.  She did not advance any reason to the tribunal that prevented her from lodging her claim from 22 June 2015 to 24 July 2015.

 

(58)       The tribunal therefore does not have any lawful basis to exercise its discretion in the claimant’s favour by extending time to enable her claim to proceed.  Her claim therefore is out of time and it is dismissed.

 

            Remedy

 

(59)       In view of the tribunal’s decision to dismiss the claimant’s claim it is not necessary to say anything further about remedy.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  23, 24 and 25 February, 16 March, 17 June and
25 November 2016, 26 January 2018 and 31 July 2018.

 

 

Date decision recorded in register and issued to parties: