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Boyd v OCS Support Service Northern Ireland & Anor (Unfair Dismissal/Sex Discrimination) [2002] NIIT 1157_01 (25 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1157/01

APPLICANT: Maureen Boyd

RESPONDENT: 1. OCS Support Services Northern Ireland Ltd

2. Anne Barrett

DECISION

The unanimous finding of the Tribunal is that:

1. The title of the respondents be amended as set out above to OCS Support Services Northern Ireland Ltd and Anne Barrett.
2. The applicant was not unfairly dismissed pursuant to the Employment Rights (Northern Ireland) Order 1996 and was not unlawfully discriminated against on the grounds of her sex contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976 and her claims are dismissed.

Appearances:

The applicant in person

The respondents were represented by Mr C Barr, Consultant of OCS Group Ltd

In accordance with the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 the reasons for this decision are given in full form.

3. The applicant in her Originating Application dated 16 January 2001 claimed that she had been forced to resign from her job with OCS Support Services Northern Ireland Ltd because of unfair treatment and also that she had been unlawfully discriminated against on the grounds of her sex. Anne Barrett, Denis Davies and Geraldine Sloane named as respondents were all employees of OCS Support Services Northern Ireland Ltd. The applicant did not make any claim of unlawful sex discrimination against either Denis Davies or Geraldine Sloan. The title of the respondents was therefore amended as set out above pursuant to S42 of the Sex Discrimination (NI) Order 1976.
4. The respondents in appearances dated 20 February 2001 denied sex discrimination and less favourable treatment and also that the applicant had suffered any breach of contract.
5. The following facts were not in issue:
3.1 OCS Support Services Northern Ireland Ltd are a Cleaning Company who have contracts for provision of cleaning services to schools, offices and other large buildings.
3..2 The applicant was employed with them from May 1994 until 10 November 2000. She worked on 3 separate contracts; one with Lagan College, another with Shandon Park Golf Club and a third with Ulster Weavers.
3..3 From 1999 the applicant was site supervisor at Lagan College and also at Shandon Park Golf Club. At Lagan College she was in charge of 16 cleaners.

3.4 Anne Barrett became Service Manager in June 1999 and the applicant's line manager.

3.5 Ellen Day was Branch Manager from April 1999 and Anne Barrett reported to her.

3..6 Geraldine Sloan was General Manager and Ellen Day reported to her.
3..7 The applicant and Ellen Day had been friends since 1994 and shared a home from 1995.
6. The applicant's case against the respondents was that problems began in June 1999 when Anne Barrett was made Service Manager, that Anne Barrett spread rumours amongst the cleaners at Lagan College and Shandon Park Golf Club that the applicant had a lesbian relationship with Ellen Day; also that Anne Barrett "picked on her". The applicant referred to a number of instances where she felt that the respondent company had treated her badly but it was the allegations about her relationship with Ellen Day which were the main problem which led to her resignation.
7. Having heard the evidence of the applicant and Ellen Day, the evidence of the respondent's witnesses Geraldine Sloan, Kate Skillen and Anne Barrett the tribunal found the following facts:
5.1 The applicant had a hysterectomy and was off work for 4 weeks in the latter part of 1999. That it was in 1999 rather than in 2000 was consistent with the evidence and was confirmed by the applicant's evidence that the incident in March 2000 when she lost her temper and swore at Anne Barrett was after her return to work.
5.2 It was part of the applicant's contract that she worked weekends at Shandon Park Golf Club and she was paid extra for this. In or about October 1999 Anne Barrett discovered that the applicant had not been working weekends but had been paid for same. She had arranged for one of the other cleaners to work Saturdays and Sundays in her place.
5.3 A meeting was held at the Golf Club. The applicant thought that the meeting was also called to deal with a complaint that she was not "pulling her weight". The Tribunal was satisfied it was to deal only with the matter of the applicant not working weekends and that there was no complaint about her work.
5.4 As a result of the meeting the applicant was required to repay the company some £300 in instalments of £13 per two weeks to cover the period April-October 1999. The applicant said she had paid the other cleaner herself. This was not accepted by the company.
5.5 Following an anonymous telephone call in March 2000 to Geraldine Sloan complaining about the applicant's treatment of her staff at Lagan College and requesting that someone be sent to the school, Geraldine Sloan asked Anne Barrett to go to Lagan College, to call a meeting of the cleaning staff and investigate. She did not ask Ellen Day as she felt her friendship with the applicant would make it difficult for the cleaners to voice any complaint against the applicant. It was agreed Kate Skillen, Service Branch Manager, could go with Anne Barrett as a witness. Geraldine Sloan instructed them to tell the applicant what had happened but not to have her in the meeting.
5.6 The applicant was not informed in advance of the meeting. Before the meeting Anne Barrett told the applicant she had been sent by Geraldine Sloan to call a meeting of the cleaning staff but that the applicant was not invited to it; that she would be told after the meeting what it was about. After the meeting she was told that it was held to investigate an anonymous complaint made about her but that none of the cleaners voiced any complaint about her.
5.7 The respondent company had a minibus to transport the cleaners to and from Lagan College. There were 16 cleaners plus the applicant who was site supervisor. The applicant was the nominated driver and was paid extra for this. The insurance covered the minibus to carry 15 passengers and the driver. If there were more than 15 passengers the driver was supposed to do an extra run.
5.8 In or about March 2000 Anne Barrett discovered that the applicant was not driving the minibus but was taking her own car and had arranged for another cleaner to drive the minibus. Anne Barrett gave instructions that the applicant was to drive the minibus. The applicant telephoned Anne Barrett who confirmed she had to drive the minibus. There was a heated exchange and the applicant used abusive language to Anne Barrett. The Tribunal was satisfied that while Anne Barrett ordered the applicant to drive the minibus she did not order her to take 16 passengers in one run. The Tribunal did not accept the applicant's evidence on this point; viz that she was refusing to drive the minibus because she was not prepared to break the law by taking 16 passengers.
5.9 Following this incident the applicant was given a verbal warning for refusing to obey an order and for using abusive language to her manager. The applicant accepted the warning was appropriate in relation to the abusive language. She did not appeal it.
5.10 The applicant said that Anne Barrett's allegations about her relationship with Ellen Day were ongoing. Anne Barrett denied ever making any such allegations to the other cleaners or to anyone else. The applicant referred to one specific allegation which she found particularly hurtful; viz that Ellen Day dressed her wound which had become infected after her hysterectomy. Anne Barrett said that Ellen Day had told her and another about bathing the applicant's wound. Ellen Day denied dressing the applicant's wound. Both she and the applicant confirmed that the applicant attended her health centre to have the wound dressed. While the Tribunal accepted that this was more probable it did not preclude the possibility of Ellen Day having washed the wound and if she did so that there was anything improper in this.
5.11 In May/June 2000 the applicant telephoned Geraldine Sloan and said she wanted to have a chat with her. When they met the applicant referred to the problem between Anne Barrett and Ellen Day, in particular when Anne Barrett went to Lagan College and found anything wrong the applicant was caught between the two of them.

The applicant asked if Geraldine Sloan could do without sending Anne Barrett to Lagan College. Geraldine Sloan explained she could not do this as Anne was the Service Manager and was responsible for the day to day running of the contract with the College. The applicant accepted this and asked her not to mention to Ellen Day that she had been to see her. The applicant made no other complaints, in particular she did not make any mention about Anne Barrett spreading rumours about her relationship with Ellen Day.

Geraldine Sloan was aware of gossip about Ellen Day but only because Ellen had previously been to see her about it. The Tribunal accepted that Geraldine Sloan did not relate this gossip to the content of her meeting with the applicant.

5.12 The applicant accepted that the only person she spoke to about her complaints that Anne Barrett was spreading rumours about her relationship with Ellen Day was Ellen Day. Ellen Day did not speak to Anne Barrett or to Geraldine Sloan about the applicant's complaints.
8. Sexual harassment ie unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work includes sexually discriminatory remarks.
6.1 The Tribunal considered the applicant's allegations of sexual harassment but found on the facts that her complaints against Anne Barrett were not proved. There was no evidence before the Tribunal to corroborate the applicant's allegation that Anne Barrett spread rumours about her sexual relationship with Ellen Day to other workers at Lagan College or Shandon Park Golf Club. Her evidence was that she was told by other workers that Anne Barrett had spread such rumours about her. None of the other workers were called to confirm this. Ellen Day's evidence did not indicate that Anne Barrett had ever said anything to her about the applicant's sexual orientation or relationship with her.
6.2 The applicant complained only to Ellen Day about sexual harassment by Anne Barrett. Obviously she could not complain to her Line Manager who was Anne Barrett. Equally Ellen Day was not the appropriate person for her to complain to as the complaint concerned her relationship with Ellen Day. She did not complain to Geraldine Sloan or any other member of Management about sexual harassment by Anne Barrett.

There was therefore no official complaint to Management and consequently no investigation by Management.

6.3 Apart from remarks alleged to have been made by Anne Barrett about her relationship with Ellen Day, the applicant referred to only one specific matter, viz that remarks had been made about Ellen Day treating her infected wound after her hysterectomy. Anne Barrett's evidence was that Ellen Day, when asked how the applicant was doing after her operation, told her she had washed the applicant's wound. The Tribunal also could not see anything wrong with this or it being told to others unless it was connected to an allegation of a sexual relationship between the applicant and Ellen Day. There was no direct evidence that this was repeated or the manner in which it was repeated.
6.4 Had the Tribunal found the applicant's complaint of sex discrimination proved, it would then have had to consider whether or not such discrimination was unlawful.

In Smith v Gardener Merchant Ltd [1998] IRLR510 a homosexual barperson complained he had been sexually harassed and taunted because of his sexual orientation and that this amounted to less favourable treatment. The Court of Appeal upheld the decision of the Tribunal and the E.A.T that discrimination on grounds of sexual orientation was not discrimination on ground of sex and dismissed his case.

In the more recent case of Pearce v Governing Body of Mayfield Secondary School [2001] IRLR 669 the Court of Appeal followed the decision in Smith v Gardener Merchant Ltd and held that a lesbian teacher who was subjected to gender specific homophobic abuse by pupils was not discriminated against on grounds of sex because she was not treated less favourably than a male teacher subjected to homophobic abuse would have been treated. Lady Justice Hale referred to S(1) of the Sex Discrimination Order 1975 which is replicated in S3(1) of the Northern Ireland Sex Discrimination Order and provides: "In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a worman if – (a) on grounds of her sex, he treats her less favourably than he treats or would treat a man". She then said "But discrimination is only unlawful if it is on the particular grounds prohibited by statute – race, sex (including gender re-assignment) or disability. There is at the moment, no legislation expressly prohibiting discrimination on grounds of sexual orientation although the Treaty of Amsterdam will require it to be in place before 2 September 2003. Furthermore, discrimination is defined as treating a person less favourably than an actual or hypothetical comparator of the opposite sex."

In this case the alleged harassment of the applicant was not because she was female, nor because she was a lesbian but because she was perceived to be a lesbian ie perceived sexual orientation. The Tribunal is of the view that even if her claims had been proved, she would not have had a remedy under current Sex Discrimination law.

9. Article 126(1) Employment Rights (NI) Order 1996 provide "An employee has the right not to be unfairly dismissed by his employer". The applicant was not dismissed but resigned. As formulated by Lord Justice Denning in Western Excavating (ECC) Ltd v Sharp 1978 [IRLR] 483 constructive dismissal comprises 4 elements:

(i) Conduct by the employer amounting to a significant breach going to the root of the contract and which shows the employer no longer intends to be bound by one or more of the essential terms of the contract.

(ii) The employer's conduct must be sufficiently serious to justify the employee leaving immediately.

(iii) The employee terminates the contract by reason of the employer's conduct.

(iv) The employee has not delayed his decision too long.

7.1 The applicant referred to the incident when a deduction was made from her pay. The tribunal was satisfied the applicant was in breach of one of the terms of her contract viz to work weekends at Shandon Park Golf Club and her employer was entitled to seek a refund of monies paid to her for work not done by her. It was not accepted by the employer that she herself had paid another cleaner to work weekends for her. Whether she did or not, the tribunal was of the view she should not have entered into such an arrangement and was not unfairly treated by the employer in the matter.
7.2 In relation to the minibus incident, the applicant did not dispute that her employer was correct to give her a verbal warning for using abusive language to her line manager. The tribunal was satisfied she had failed to obey instructions to drive the minibus and the verbal warning in this respect was not unfair.
7.3 The General Manager had to investigate the anonymous telephone complaint about the applicant and send Anne Barrett to call a meeting of the cleaning staff at Lagan College to see if there was any cause for complaint. The tribunal accept that because of the immediacy of the problem, it was not possible to inform the applicant in advance of the meeting and as the complaint was about her she had to be excluded from the meeting. The complaint was not upheld and the applicant was told. It may be she should have been given more detail of the complaint before or after the meeting than was the case but failure to do this would not amount to a breach of contract never mind a significant breach of contract by the employer.
7.4 The tribunal accepted the employer did not make any complaints about the applicant's work. The applicant said that Anne Barrett "picked on her". When asked to explain, she said that when Ellen Day gave Anne Barrett "a hard time" Anne Barrett gave her "a hard time". When she went to see Geraldine Sloan, her complaint was that there was a problem between Ellen Day and Anne Barrett at Lagan College. When Geraldine Sloan explained that Anne Barrett had to go to Lagan College as part of her job, the applicant accepted this. The tribunal could not find there was any breach of contract here to justify the applicant resigning.
7.5 In relation to the allegations of sexual harassment by Anne Barrett: as the applicant did not make a proper or full complaint to appropriate management, management cannot be said to have failed to investigate or take steps to support or protect her.
7.6 The tribunal had no doubt the applicant decided to leave her job because she was unhappy at the way she felt she was being treated, in particular that she believed Anne Barrett was making allegations that she and Ellen Day had a lesbian relationship. She told the tribunal the allegations were ongoing from June 1999. When pressed as to what was the final straw that led to her resignation she could not specify. She mentioned her upset when she learned that her teenage sons had heard of the allegations but could not say when this was. She mentioned the remark about Ellen Day dressing her wound after her hysterectomy. Accepting that her hysterectomy was in late 1999, this was a considerable time before she gave her notice. Finally she admitted she did not give her notice till she had secured another job.
7.7 Having considered the facts as set out in paragraph 5 and the submissions made the tribunal was satisfied the applicant had not established grounds for constructive dismissal.

Accordingly the tribunal dismissed the applicant's complaints of unfair dismissal and sex discrimination.

Chairman:

Date and place of hearing: 24 and 25 June 2002, Belfast

Date decision recorded in register and issued to parties:

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