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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> A v XY Ltd [2007] NI 557_05 (27 April 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/557_05.html Cite as: [2007] NI 557_05, [2007] NI 557_5 |
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CASE REFS: 557/05
612/05
621/05
CLAIMANT: A
RESPONDENT: XY Ltd
The unanimous decision of the tribunal is as follows:-
(A) The respondent unfairly dismissed the claimant.
(B) The respondent unlawfully discriminated against the claimant, contrary to Article 8 of the Sex Discrimination (Northern Ireland) Order 1976, by dismissing her.
(C) None of the claimant's other claims is well-founded. Accordingly, all of those other claims are dismissed.
Constitution of Tribunal:
Chairman: Mr Buggy
Members: Ms Torrens
Ms Madden
Appearances:
The claimant was represented by Mr K Denvir, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The respondent was represented by Mr R White, Barrister-at-Law, instructed by L'Estrange & Brett, Solicitors.
REASONS
The cases
(1) Case 557/05 ('Case 1');
(2) Case 612/05 ('Case 2'); and
(3) Case 621/05 ('Case 3').
The complaints
(1) The claimant complains of unfair dismissal, contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order').
(2) The claimant asserts that the respondent unlawfully discriminated against her by dismissing her, contrary to Article 8(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order').
(3) The claimant asserts that the respondent unlawfully discriminated against her, contrary to Article 8(2)(b) of the 1976 Order by subjecting to her, in various specified respects, to ' … any other detriment …' (within the meaning of that Article).
The claims and the defences
(1) According to the claimant, the real reason for her dismissal was victimisation discrimination; this is unlawful discrimination and furthermore it is not a potentially fair reason for dismissal (in the sense in which that concept is used within the context of the 1996 Order).
(2) The dismissal was substantively outside the range of reasonable responses (in the sense in which that concept is used in the context of the 1996 Order).
(3) The claimant was threatened with termination of employment after only a month's search for alternative employment.
(4) There was unwarranted delay in the notification of the outcome of the claimant's internal appeal against her dismissal.
(5) The claimant was not properly supported in her search for alternative roles.
(6) The claimant should have been transferred (without competition) to an alternative role.
(7) The internal decision-making process (which ultimately led to the dismissal) was flawed because of bias, because the process was pre-determined, and because improper pressure was put on the claimant not to appeal against her dismissal.
(8) The claimant should have been appointed to one of the three alternative posts for which she competed.
(1) The claimant's dismissal was unaffected by victimisation discrimination; there was no such discrimination.
(2) The respondent maintains that there were two alternative potentially fair reasons for dismissal, either medical incapability or 'some other substantial reason'.
(3) The dismissal was fair, both substantively and procedurally.
(1) The progress of the claimant's recovery was adversely affected by the "unreasonable" level of repeated inquiry and work related demands of the respondent. This conduct included telephone calls, e-mails and directions to attend meetings and other business-related matters.
(2) After the claimant's dismissal appeal, she was told to arrange a performance review meeting despite the fact that she was in a clearly distressed condition.
(3) The claimant wrote to Dr C on 9 February 2005 seeking direction, support and advice. No suitable direction, support or advice was provided in a timely fashion, or at all.
(1) The claimant found that after her complaint became known, her team arrived for meetings and field visits without preparation and in an unco-operative manner. For example, D and E both attended an appraisal meeting without any preparation. Their attitude was dismissive and failed to show a professional approach and the respect a line manager would have been entitled to expect in terms of meeting preparation.
(2) Contrary to established practice, some of the claimant's team sidelined the claimant by going above her head to the next line manager without consulting her. For example, E went to F about matters he should and could have raised with the claimant.
(3) The claimant's team did not turn up on time for field visits after her complaint against Mr B became known. They attended meetings late and without explanation. On a number of occasions meetings were commenced as much as one and a half hours late because of the late arrival of the claimant's staff. Even on such occasions proper explanations were not proffered. Little attempt was made to make contact with the claimant as line manager as a matter of courtesy or good practice to explain such delays. In addition, telephone calls asking about their whereabouts went unanswered or were not responded to. Some telephone calls about other matters the claimant wanted to raise as part of their duties were ignored completely.
(4) There was no initiation of phone calls to the claimant herself from the team itself. This became a significant change in the way the relationship between the claimant and her team developed after it became known that she had made a claim against her line manager.
(5) A leaving card was sent to the claimant to her home address from a customer in September 2004 expressing sorrow that she was "leaving". This was not true but the claimant believes that it may have been based on company rumour. Nothing was ever done about it.
(6) Another significant change in the way the relationship between the claimant and her team developed after it became known that she had made a formal complaint was in the coldness displayed towards her. Post-complaint, the claimant's team members did not want to be in a social or work context with her.
(7) In particular, the team did not want to go out with the claimant for the traditional work night out in Christmas 2004.
(8) The claimant believes that the strained and hostile atmosphere was partly based on the fear she felt was rife in the company over her complaint. During the course of the investigation into her internal complaint, and afterwards, colleagues were keeping "their heads down". This was particularly evident in the case of the employee who had represented her at her internal disciplinary hearing.
(9) The claimant was not copied into e-mails regarding the outcome of the disciplinary case for fraud for one of her own team members, a Mr E.
(10) The claimant was ignored at local meetings by the Northern Ireland team in Cookstown in January 2005. (In this regard, reference is made to G, H and I). There were around 40 employees at this event and those present made deliberate efforts to avoid interaction with the claimant. Some avoided her by moving off sharply as she approached a group. Others made excuses that they had to go to the toilet or make a telephone call. Particularly in a social context, she was not welcome to join individual groups and those colleagues present were even avoiding eye contact.
(11) The claimant was separated from other managers and representatives within the Northern Ireland team at a meeting held in St Andrews, Scotland, in February 2005. She tried to speak to other managers such as Mr G, Mr J and Ms K. She was ignored and given a cold response. Her team and herself were put in a different hotel, well away from the main party, which had the effect of isolating her team from the other Northern Ireland team members.
(12) She had to walk on her own to and from the conference centre. Socially, a similar situation to the Cookstown meeting was prevalent. (In this context, the claimant makes reference to Mr D, Mr L and Ms M). There was a hostile atmosphere.
(13) The claimant was ignored at management meetings. In this connection, the claimant refers to N at a meeting at the Elstree Moat House, England, in November 2004. As she approached him, Mr N left to make a phone call and at the table she was not included in conversations and eye contact was avoided. In particular, when she tried to contribute to a conversation, this was ignored and no effort was made to include her.
(14) The claimant's appointment with Occupational Health, on a date in January 2005, was deliberately timed to coincide with a managerial meeting at the Celtic Manor Hotel, Wales.
(15) When the claimant asked a fellow employee, O, to provide support for her at the internal "dismissal" meeting with Mr P, he asked that she not get him any further involved as he feared "repercussions" from Mr P. Furthermore, she had difficulty in getting Mr O to produce agreed notes of that meeting. Mr O failed to provide her with the support she might have been entitled to expect from a colleague in such circumstances. He was more concerned about how his participation in the hearing would affect his career in the company.
(16) Prior to the investigation into internal complaints, she had received regular telephone calls, conversations and meetings with members of her team and other managers in the course of her work. These largely ceased after the claimant returned to work in September 2004, and after interviews (held in connection with the internal complaints) with the staff concerned had been concluded. In particular, prior to the investigation she had spoken to Mr G daily by telephone. After she returned to work in September 2004, she had no more than a dozen telephone calls with Mr G. Furthermore, from that time onwards, whatever conversations that did take place were characterised by their functional nature. There was no interaction at meetings and no humour in the telephone calls.
(1) The respondent failed to take her Complaint seriously. It failed to protect her against the action of other employees. It tolerated a culture of distrust and fear. It failed to allow a fair and transparent grievance system to operate. The decision of Mr Q, at the second stage of the internal grievance procedure, was notified to the claimant with indecent and inappropriate haste; indeed, that decision had been pre-determined before the meeting on 17 December. The claimant was inappropriately advised, by Ms R, by Mr Q and by Mr S, not to pursue the internal grievance appeal processes.
(2) The claimant complains in respect of aspects of her interview for an SMA post, which was held on 11 March 2005. The interview was delayed and the claimant was treated rudely in that connection. The interview was not nearly long enough. The demeanour of the interviewers was very dismissive.
(3) The respondent pursued the claimant, in a petty and vindictive manner, about telephone bill expenses.
(1) She asserts that her performance was not fairly assessed.
(2) She asserts that the pay review was not conducted in a timely fashion.
(1) In many instances, the relevant allegation is not factually well-founded.
(2) The claimant was treated fairly by XY.
(3) In any event, the claimant was not treated less favourably than the respondent would have treated an appropriate comparator. Furthermore, the treatment which was accorded to the claimant was in no way affected by victimisation discrimination.
The questions for determination at this stage of the case
(1) The liability issues.
(2) Any 'Polkey' issue which might arise (in the light of our conclusions on liability) in the context of unfair dismissal.
"10A. However, at this stage of the case the Polkey issue is deemed not to include any implications arising out of Project . Any such implications will be left for determination at the next stage of the case (if any)."
The sources of evidence and the arguments
(1) SMA and SMB are both first level ('Level 1') sales management posts.
(2) SMAs and SMBs report to a higher level ('Level 2') sales management post, the L2SM post.
(3) L2SM post holders report to a higher level ('Level 3') sales management post, the L3SM post.
(4) XY provides goods to a particular service industry. That industry consists of two main sectors. An SMA deals mainly with sales within one of those sectors ('sector A') while an SMB deals mainly with sales within the other main sector ('sector B').
(1) Mr G (XY's SMB in Northern Ireland)
(2) Mr T (the respondent's Vice President in Global Marketing)
(3) Ms U (XY Level 2 Sales Manager : L2SM)
(4) Mr I (Sales Representative within the respondent company)
(5) Mr W (Human Resources Officer within XY).
(6) Mr O (a Professional Relations Manager within XY)
(7) Ms Z (Level 3 Sales Manager : L3SM, with the respondent company)
(8) Ms AA (an L2SM within the respondent company)
(9) Mr BB (an 'Employee Relations Consultant' with XY)
(10) Ms F (an L2SM within the respondent company in Scotland)
(11) Dr C (a Consultant Occupational Health Physician employed by XY)
(12) Mr N (an SMB within the respondent company)
(13) Mr S (a trade union representative who was also an employee of XY)
(14) Ms CC (an 'Employee Relations Consultant' within XY)
(15) Mr H
(16) Ms R (an L3SM within the respondent company)
(17) Mr P (an L3SM within XY)
(18) Mr J (an SMB within the respondent company)
(19) Ms K (an SMA in XY)
(1) eight bundles of documents, consisting of over 2,000 pages in total;
(2) and various miscellaneous documents.
We told the parties that we would only have regard to any document within a bundle if our attention was specifically drawn to that document.
The facts
(1) The claimant has an honours degree in biochemistry. Until her dismissal in March 2005, she had been working for XY and for its pre-merger predecessor, company X, for 13 years.
(2) Initially, the claimant worked as a sales representative for company X. However, she became an XY SMA in Wales in February 2000. In January 2002, she became the SMA for Northern Ireland. She held the latter post until the beginning of February 2005.
(3) The main function of an SMA is to lead a team which is responsible for selling products (within the geographical area for which that particular SMA team is responsible) to the sector for which SMAs are responsible. An SMB carries out a similar role, but an SMB's team sells within a different sector. (See paragraph 22 above.)
(4) Typically, an SMA leads a small team. In her Northern Ireland role, the claimant had four people reporting to her. Typically, an SMA has more direct reports than that. However, teams no greater than ten staff are the norm.
(5) The claimant is an extremely good salesperson. She is ambitious and dedicated and conscientious. She showed great commitment to XY. She usually met the sales targets which had been set for her and, under her leadership, her team often significantly over-achieved in relation to such targets. She was praised on many occasions, by a number of senior officials of XY, for her performance.
(6) Because of the nature and extent of the claims in these proceedings, it was necessary for the claimant to provide us with lengthy oral testimony. Throughout her testimony, the claimant never suggested, or accepted, that, in her management role, she had any shortcomings. Having considered that aspect of her testimony carefully, we are convinced that, in that connection, her evidence was what she genuinely believed.
(7) In reality, she did have shortcomings. She was a somewhat autocratic manager. She was self-absorbed. She had little insight into the impact of her own behaviour on others. Her management style was rather inflexible. It is likely that, from time to time, some members of the claimant's team will have found her management style uncomfortable (because of the shortcomings which we have mentioned above). However, none of this mattered much to her superiors within XY, who were mainly concerned about sales results. The relevant shortcomings were of limited significance in the context of an SMA post.
(8) The claimant was never the subject of any disciplinary action, in relation to any aspect of her behaviour, at any time during her period of employment with XY and its predecessor company. Until the end of January 2007, no direct or indirect line manager of the claimant ever wrote to the claimant to express concern regarding any aspect of her people-management or leadership roles.
(9) SMAs and SMBs report to an L2SM. There was a vacancy for the Northern Ireland L2SM at the end of 2003. The claimant and Mr B were both candidates for that post. Mr B was the successful candidate. So Mr B became the claimant's boss. At all material times, the claimant has believed that she had been by far the better candidate for the vacancy. She has never become reconciled to the outcome of the relevant recruitment process.
(10) Mr B became the claimant's line manager in January 2004. In March 2004, the claimant protested vigorously about feedback which Mr B had provided, regarding the claimant's management performance, for the purposes of a management development course on which the claimant was engaged. (Mr B had provided that feedback when he was still the claimant's peer, as distinct from being her direct or indirect line manager.)
(11) Also in March, the claimant made it clear that she was unhappy with the outcome of her 2003 salary review (which had graded her performance as 'good', and had not graded her performance as 'excellent' or 'distinguished'). In May 2004, she wrote to Mr DD, to complain about that grading. Mr DD was a very senior official of XY. He was the overall boss of more than 1,500 employees. Ultimately, the 2003 grading was left unchanged. The claimant was very bitter about that outcome.
(12) Mr P was Mr B's immediate line manager. On 6 July 2004, the claimant met Mr P to discuss various work-related concerns which she had. First, she continued to complain in respect of the 2003 salary review grading. Secondly, she complained about aspects of the management style of Mr B. Thirdly, she complained about Mr B's contribution to the management development feedback which has already been mentioned above.
(13) At a meeting with Mr B on 7 July 2004, the claimant wept in his presence. She told him he was causing her stress; he was sending her too many e-mails; he was talking about her behind her back with the Northern Ireland SMB and he was getting himself too involved in the management of the claimant's SMA team.
(14) By 7 July 2004, XY was obviously already concerned about the possibility of the claimant instigating litigation arising out of her working relationship with Mr B. On 7 July 2004, 'at 11.25 am', Mr B compiled a detailed manuscript note, extending to three pages, regarding the detail of his meeting with the claimant earlier that morning. On that note, he took the trouble to note the date and time of compilation .
(15) From 8 July 2004, the claimant was certified by her GP to be unfit for work. Her medical certificate showed that she was suffering from work-related stress.
(16) On 2 August 2004, she complained to Mr P's immediate line manager, Mr Q, about the behaviour of Mr B. She complained by e-mail. The e-mail was as follows:-
"I wish to make a formal complaint under the XY Harassment policy as a consequence of the conduct of my line manager, [B] …
This has left me under considerable stress and seeking medical attention, as his behaviour in front of my team, other work colleagues and external customers has left me feeling bullied, harassed, sexually harassed and discriminated in a demeaning, insulting and degrading manner. I have also been prejudiced as a result of the delay to answer my concerns regarding my salary review for 2003.
Given these concerns I would like to initiate these proceedings to investigate these matters, and await your response to this complaint."
(17) XY treated the claimant's complaint against Mr B (referred to in this Decision as 'the Complaint') as a grievance and dealt with it under the respondent company's employee grievance procedure. However, in processing the Complaint under that procedure, XY paid careful regard to the terms of its Harassment policy (which the respondent refers to as its 'Dignity at Work' policy).
(18) Ms R was appointed by XY to adjudicate in respect of the claimant's grievance. At the relevant time, Ms R held the post of L3SM.
(19) Ms CC and Ms R constituted the investigatory team. Ms CC was an 'Employee Relations Consultant' within XY. (In other words, she was a senior, directly employed, personnel officer of XY.)
(20) The initial statement of the Complaint (as set out in the e-mail of 2 August 2004) was amplified by a 14 page statement which set out the grounds of Complaint in detail. That document made it clear that the Complaint was being made under 'the [XY] Harassment policy' and that, in essence, the gist of the grievance concerned alleged misbehaviour on the part of Mr B which had left the claimant:-
" … feeling bullied, harassed, [sexually] harassed and discriminated [against] …"
(21) The claimant confirmed to us that the document had been produced with the assistance of a solicitor. We are sure that when they first read it, both Ms CC and Ms R already strongly suspected that the relevant document had been prepared with the assistance of a solicitor. The format, structure and language of the document is strongly indicative of the involvement of a lawyer, especially to individuals who (like Ms R) have considerable experience in management and to individuals who (like Ms CC) have considerable experience in personnel matters.
(22) The document sets out a considerable number of accusations. In essence, these can be classified into two categories:-
(1) a complaint of sexual misconduct at Galway in 2002;
(2) and various accusations of insensitive or bullying behaviour.
(23) The investigatory team sought information from XY employees who were identified by the claimant as having seen the Galway incident, or as having been present along with Mr B and the claimant at breakfast the morning after the incident. The team did not approach any external individual who was identified by the claimant as having witnessed the incident. On balance, we were satisfied that this omission on the part of the team was reasonable in all the circumstances. (The claimant had identified several XY employees as witnesses in connection with the Galway incident. Involvement of external individuals, in relation to an internal sexual harassment investigation, was likely to be commercially difficult for a sales organisation.)
(24) In the context of the second category of allegations, the investigatory team made appropriate enquiries of an appropriate range of those XY employees who had been identified by the claimant as being significant witnesses.
(25) Therefore, overall, we consider that the scope of the investigation was appropriate and reasonable.
(26) Ms R decided not to uphold any aspect of the claimant's Complaint.
(27) In relation to the Galway incident, the claimant had first officially notified the company in 2004, in respect of an incident which allegedly occurred in 2002. (There may often be good reason why a woman delays in notifying an employer of a sexual harassment complaint. However, any delay may, as a practical matter, make it more difficult for the woman to prove the truth of the relevant allegation, regardless of the extent of its intrinsic merits.) A variety of XY employees were interviewed in the course of the investigation. None of them confirmed seeing anything untoward. Some of them provided information to the investigatory team which was not consistent with aspects of the claimant's version of events. Against that background, Ms R's decision not to uphold the allegation in relation to the Galway incident was a reasonable decision.
(28) In relation to the other category of complaints, it has to be borne in mind that these were not simple complaints of mistreatment. Instead, they were complaints of bullying, harassment, sexual harassment and sex discrimination. The matters complained of in this category, even if true, were not necessarily related to the claimant's gender, nor were they unambiguously associated with a bullying approach. Against that background, Ms R made a reasonable decision in deciding not to uphold the second category aspects of the Complaint.
(29) Ms R's decision was notified to the claimant in a letter dated 16 November 2004. That letter was supplemented by a document which set out a detailed response to the claimant's various allegations.
(30) Ms R's decision notified the claimant of the fact that she had the right, under the employer's grievance procedure, to appeal that decision. She decided to avail of that entitlement. At this second stage of the grievance procedure, the appeal was heard by Mr Q. Ms CC was appointed to assist Mr Q in connection with the grievance appeal.
(31) In practice, at both the first and second stages of the grievance, Ms CC carried out much of the detailed spade-work and drafted most of the correspondence.
(32) Mr Q held a grievance appeal hearing on 6 December 2004. He met again with the claimant on 17 December 2004.
(33) By the latter date, he had arrived at a provisional decision. However he met with the claimant on 17 December 2004 so that he could explain his provisional conclusions to her and give her the chance to comment on them. The meeting was in two parts. During the first part, Mr Q summarised the claimant's grounds for her appeal and explained the evidence which he had in relation to each ground. The claimant commented on this as the discussion progressed. There was a break of some minutes during which Mr Q and Ms CC considered whether any of the claimant's comments should make any difference to Mr Q's decision. They decided that the claimant had not put forward anything at the 17 December meeting which should materially affect Mr Q's decision. So he went back into the meeting and read from a detailed response document, which rejected all the claimant's grounds of appeal.
(34) The claimant had been off work from July 2004 until 24 September 2004 pursuant to GP certificates which advised her to refrain from work because of workplace stress. On 24 September 2004 she returned to work on a phased basis. From 24 September 2004 onwards, Ms F, a Scottish-based L2SM, began to act as the claimant's line manager (in place of Mr B) on an interim basis. Those interim arrangements persisted until the end of the claimant's employment with XY.
(35) From 24 September until late November, the claimant's range of management responsibilities were curtailed, with her full agreement, as an XY response to the fact that the claimant had been off work because of stress.
(36) The claimant complained within XY, and she has complained to us, of unwarranted work demands which Ms F allegedly imposed upon the claimant during the phasing-in period. We reject that allegation. The demands which Ms F made of the claimant during the phasing-in period were reasonable, proportionate and entirely in line with the available medical advice.
(37) The claimant has also complained that XY pursued the claimant in a petty and vindictive manner, about telephone bill expenses. In her witness statement, the claimant dealt with this matter (at paragraph 70) in the following terms:-
"[F] spoke to me in October 2004 and asked me to highlight all calls over the previous three months on my mobile phone with names and reason for call. I felt that this undermined me as a manager in terms of trust."
For much of the previous three months, the claimant had been on sick leave. Nevertheless, while on sick leave, she apparently had incurred significant expenses on her company mobile phone bill. Against that background, it was entirely appropriate for Ms F to make enquiries about the mobile phone bill. We are satisfied that those enquiries were pursued in a proportionate and polite manner.
(38) The claimant asserts that those enquiries constituted retaliatory action which was taken because the claimant had made the Complaint. However, prior to the making of the Complaint, the claimant was already expressing vociferous opposition to what she then considered to be inappropriate and vindictive queries by Mr B in relation to various aspects of her expenses.
(39) The claimant was entitled to pursue her internal grievance appeal to a third stage. However, she decided not to do so.
(40) In the course of their investigations, both Ms R and Ms CC came to the conclusion that the various accusations were not well-founded. Ms R came to the conclusion that the claimant was being deliberately untruthful. Ms CC was left uncertain on the question of whether the claimant did or did not, subjectively, believe her own allegations. They sought internal legal advice on the question of whether or not disciplinary proceedings could or should be brought against the claimant in respect of the allegedly false allegations. They were advised that it would be difficult to prove that the claimant had made false allegations in bad faith. For that reason, Ms R did not recommend the commencement of relevant disciplinary proceedings against the claimant.
(41) Ms R in particular was angry about the fact that the claimant had (as Ms R thought) made false allegations in bad faith. She told us that, nevertheless, she never discussed the matter, at any relevant time, with any officers of the company other than the human resources professionals and the legal professionals. This aspect of Ms R's testimony is extremely hard to believe. It is inherently improbable. We do not believe it.
(42) On the balance of probabilities, we are satisfied that, by the end of 2004, XY had explored the possibility of disciplining the claimant on the ground that (as senior managers within XY saw the situation) she had made false allegations in bad faith. However, they did not proceed to launch disciplinary proceedings because they came to the conclusion, in the light of the available legal advice, that the legal risks flowing from that course of action were too great.
(43) XY make independent counselling services available to employees who are off work with stress. While the claimant was off sick in 2004, she availed of that facility. She saw a Dr Michael Paterson, a consultant clinical psychologist. By September 2004, the claimant was keen to get a transfer, so that she would not longer have Mr B as her line manager and so that she would be able to move to Scotland where her partner (who has since become her husband) then lived. That was the background to Dr Paterson's report of 24 November 2004, which was provided to the claimant, at her request, for the purpose of assisting her in pursuing her grievance.
(44) Although aspects of the report are written in somewhat lurid language, the ultimate conclusion of the report is merely a 'recommendation' that the claimant not be placed in a position of having to work under the management of the man who she alleged bullied her. According to the report:-
"[The claimant] is keen to return to work but is fearful of being placed in a position where she feels she may be bullied. In terms of the brain's information processing this could lead to the same fear experienced by a rape victim having to work under the management of her rapist.
It is my recommendation that [the claimant] should not be placed in a position of having to work under the management of the man who she alleges bullied her. During her therapy sessions, she felt that she could work alongside him but, given her recent experience with management, this may require some more therapeutic work. [Emphasis added]."
(45) The claimant's grievance process came to an end just prior to Christmas 2004. Early in the new year, on 11 January 2005, Ms CC wrote to Dr C, the respondent's internal occupational health adviser, drawing attention to Dr Paterson's recommendation, and posing the following question in that context:-
"I would be grateful for your assessment as to whether you believe she could ever work for [B] again."
(46) On 13 January 2005, Dr C had a consultation with the claimant. Subsequently, on 19 January 2005, he produced a draft medical report arising from that consultation. According to the draft:-
"In my opinion there has been an irretrievable breakdown of the management relationship with her former line manager with significant elements of post traumatic stress disorder attached to this such that she is not considered fit to report in a line management relationship with this individual as a permanent medical recommendation.
I would also have some concern over future co working relationship which will prove a psychological challenge to [the claimant] and ideally this should be avoided but if essential it should be able to be treated and supported through further psychotherapeutic support.
Should relocation to another territory within the UK be possible for the business this would be a significant help in allowing [the claimant] to achieve closure on this past circumstance and move forward and I would give my strong support to this on medical grounds."
(47) The draft e-mail was sent to the claimant, for the purpose of seeking her consent to release the report to Ms CC.
(48) However, the claimant took the opportunity to suggest changes to it. Her suggested changes were intended to bolster her case for obtaining a transfer. She proposed the amendment of the last paragraph of the report so as to reads as follows:-
"Should relocation to another [ ] similar position within the UK such as in Scotland so [the claimant] can start afresh with her partner be possible for the business this would be a significant help in allowing [the claimant] to achieve closure on this past circumstance and move forward and I would give my strong support to this on medical grounds."
(49) Dr C readily accepted the claimant's suggested amendment to his medical report.
(50) The report was drafted by Dr C, and it was edited by the claimant, in the mutual expectation that, as a result of the report, the most that would happen is that the claimant would be facilitated in obtaining a transfer which she would find acceptable.
(51) As Dr C pointed out in his witness statement (at paragraph 8):-
"My expectation is that dismissal is the last resort, when the business has explored and exhausted all other options, and would not be based solely on my medical report … ."
(52) Mr P seized upon Dr C's report as a pretext for dismissing the claimant. Dr C's report was provided on 25 January 2005. On 27 January 2005, there was a meeting between Ms CC and Mr P for the purpose of discussing the way forward in light of the C report. In the course of that meeting, Mr P made clear to Ms CC his view as to the way forward. That was the background to the e-mail of 1 February 2005, (often referred to as the 'options memo') which Ms CC sent to Mr P. It is a lengthy memo. However, because of its significance, it will have to be quoted in full:-
"As discussed on Thursday please find below the options with regard to the resolution of the Complaint raised by [the claimant] under the Dignity at Work policy. As you were aware we now have the report from [C] which clearly states that "there has been an irretrievable breakdown of the management relationship with her former line manager with significant elements of post traumatic stress disorder attached to this, such that she is not considered fit to report in a line management relationship with this individual as a permanent medical recommendation". The next step is to meet with [the claimant] and outline the preferred option at a 1:1 meeting:-
1. Give her one month to find an alternative role within [XY], take her out of the business so she has ample opportunity to look for other roles, work on her CV etc.
If she does not find an alternative role then dismiss her with notice under 'some other substantial reason' – irretrievable breakdown with Line Manager (NOTICE IS 6 MONTHS DUE TO SALARY).
Risks
She takes us to an ET for Unfair Dismissal, potential cost £56,800 plus basic award. The fact that we have not provided her with the opportunity to take her 6 months notice as garden leave could render the dismissal unfair if jobs that meet her skills set appear within 6 months window.
For us to win the claim we would have to prove that she would not have been a suitable candidate for these roles and that she would have had to go through the recruitment process as anyone else, so there would have been no guarantees. Very difficult to say now what roles if any are likely to come up in the next 6 months, although I am aware of the potential roles in [ ]'s and [ ]'s teams come 1 April 2005.
Risks
She could still take us to an ET for Unfair Dismissal but the fact that we provided her with 6 months to look for alternative roles would be looked at favourably by the ET Panel.
The Business risk is that she could apply and be successful in obtaining a very similar role in Scotland.
3. Let her take 3 months garden leave to look for other roles, and then dismiss with 3 months notice.
Risks
Very similar to those in option 2, however whether the ET Panel would render the dismissal unfair because we did not have give her 6 months is still the question. Again we would probably have to prove that the roles that appeared after the 3 months would not have been suitable and she would not have been successful.
Hope the above sets out the options quite clearly, should you have any questions please come back to me. I have also attached a draft of the letter to be sent to [the claimant] once you have advised me after talking with [Q] and [T] on the preferred option."
(53) A number of aspects of the options memo are highly significant.
(54) First, the options are being formulated in connection with 'the resolution of the Complaint raised by [the claimant]'. The focus is on the fact that she made the Complaint. The medical unfitness (in connection with her Northern Ireland post) is not regarded as being of primary importance.
(55) According to the memo (which was obviously intended to reflect the understanding that had been arrived at between Ms CC and Mr P because of the earlier meeting), the 'Business risk' of option 2 is that the claimant could actually be successful in obtaining suitable alternative internal employment. The implication is that such an outcome is a situation which XY wants to avoid. In testimony presented to us on behalf of the respondent, it was suggested to us that the risk being referred to, in the context of option 2, was that the claimant would end up in a job which would involve regular interaction with Mr B (and which would thus be harmful to the claimant's psychological health). We do not accept that strained interpretation of that part of the memo.
(56) As a result of the memo, it is clear that, before they had committed themselves to option 1, both Ms CC and Mr P were well aware of the fact that, by following option 1, they were treating the claimant unfairly, at least in the dictionary sense of the word 'unfairly'. (See the heading 'Risks' under option1.)
(57) The final paragraph of the options memo shows that it was contemplated that, before deciding on the appropriate option, Mr P would consult with Mr Q (Mr P's immediate line manager) and with Mr T (Mr Q's immediate line manager). According to the testimony made available to us on behalf of the respondent, no such prior consultation with Mr T took place. Why no such prior consultation took place has never been satisfactorily explained to us. It is inherently improbable that Mr P would make such an important decision without consulting more senior management. We are satisfied that prior consultation with Mr T did indeed take place before Mr P committed himself irrevocably to 'option1'.
(58) Mr P chose option 1 because that option was more likely than option 2 or option 3 to achieve an outcome in which the claimant would fail to obtain alternative internal employment within XY.
(59) First there had to be a meeting with the claimant. That meeting was arranged by letter dated 2 February 2005. Ostensibly, the purpose of the meeting was to discuss a situation of grave misfortune (consisting of the medical inability of the claimant, a successful and hardworking employee of many years standing, to continue in her present position). Against that background, the letter is notable for its cold tone. The second paragraph of the letter is the key paragraph:-
"I understand that you are currently seeking alternative roles within [XY] and this is one area that I will discuss with you in more detail at the meeting. You should be aware however, that if another role is not forthcoming that we will have no option but to terminate your employment. The reason for this, as stated in [C's] report, is that there has been an irretrievable breakdown of the relationship with [B]. He also states that in his medical opinion you are not consider fit to report in a line management relationship with [B] or indeed to co-work with him."
(60) The dismissal meeting occurred on 7 February 2005. Ms CC was present along with P, At the meeting, the claimant was accompanied by Mr O, a Professional Relations Manager within XY who had reluctantly agreed to accompany the claimant to the meeting as her representative. After some introductory comments, Mr P made it clear that the claimant would be dismissed if she had not found herself suitable alternative internal employment within a period of one month; upon dismissal she would be paid six months pay in lieu of notice.
(61) He also made it clear that she would have to compete for any roles for which she applied. Given the context of the claimant's inability to continue to carry out the duties of her Northern Ireland post, the cold tone of Mr P's comments at the meeting is remarkable.
(62) In the course of these proceedings, it has been suggested to us that XY were open to discussion about any of the points which were raised by Mr P. However, that is not how we read the official note of the meeting. In particular, we note that, when Mr P adjourned the meeting for 20 minutes, the avowed purpose of that adjournment was to:-
" … provide [the claimant] and [Mr O] time to consider what has been outlined and to come back with any questions [Emphasis added]."
So the purpose of the adjournment was to allow the claimant to ask questions relating to the implications of what had been decided (as distinct from making representations as to what should be decided).
(63) The outcome of the dismissal meeting with Mr P was that the claimant had been given notice that she would be dismissed, with effect from 11 March 2005, if she could not obtain suitable alternative employment in the meantime.
(64) The day after the P dismissal meeting, the claimant was certified by her GP to be unfit for work for a period of eight weeks. She immediately told Ms CC about this.
(65) The claimant appealed against Mr P's dismissal decision. She appealed, under XY internal procedures, to Mr T. The appeal meeting took place on 25 February 2005. Apart from the claimant and Mr T, Ms CC was present.
(66) At the meeting, Mr T's attitude was one of detachment. He showed no empathy for the situation in which the claimant found herself. He exhibited no concern regarding her psychological well-being. He sought, with some success, to deflect the claimant from pursuing the central issue of principle, so that she focused instead upon implementation issues. (The issue of principle was whether or not the claimant should be required to obtain alternative internal employment through competition, or whether such employment would be made available through a transfer. The issues of implementation related to the timing and manner in which the P decision, regarding the requirement to enter into selection competitions, would be implemented). In essence, Mr T rejected the claimant's appeal, but marginally extended the dismissal deadline (until 31 March 2005).
(67) Mr T (like Mr P before him) showed an amazing lack of curiousity about the nature of the medical incapacity which prevented the claimant from continuing to carry out the duties of a Northern Ireland SMA, and about the potential (if any) for XY to take measures which might prevent the claimant having to leave her current post. In his evidence, Mr T told us that he had never seen Dr C's report. However, according to Ms CC he did see it. We accept that he did.
(68) According to Mr P, he did not enquire, at any time prior to the claimant's dismissal, as to the particular nature of the Complaint or whether anybody in authority thought that the Complaint was honestly or dishonestly made. We consider such a lack of curiousity to be unbelievable. We are satisfied that, when he decided upon dismissal, Mr P knew very well that Ms CC and Ms R thought that many of the accusations made in the course of the Complaint were false and that Ms R thought that those allegations had not been made in good faith.
(69) According to Mr T, he never enquired as to the nature of the Complaint, or whether anybody in authority thought the Complaint was honestly made or dishonestly made. We find such a lack of curiousity to be unbelievable. We are satisfied that, when he decided upon the appeal, Mr T knew very well that Ms CC and Ms R thought that many of the accusations made in the course of the Complaint were false and that Ms R thought that those allegations had not been made in good faith.
(70) Throughout the dismissal process, there was an emphasis upon the 'failed' grievance, even though the respondent's avowed reason for dismissal was the claimant's medical unfitness (regarding the carrying out of her duties as Northern Ireland SMA).
(71) The official record of the dismissal meeting of 7 February 2005 (which we have no doubt was prepared with future tribunal proceedings in mind) identified two purposes of the meeting, one of which was the 'follow-on' from the outcome of the grievance. In his very brief handwritten notes of that meeting, Mr O twice records a reference by Mr P to the fact that the claimant's grievance had not been upheld. When Mr T wrote to the claimant (on 9 March 2005) to inform her that the P dismissal decision was, in essence, being confirmed, he made the following comment:-
"The situation is not of our making, your Grievance was not upheld … ."
(72) After the dismissal appeal hearing, as the claimant was leaving the building, Ms CC asked her if a performance review meeting, in respect of her grading for 2004, could be arranged. The claimant had in the past made much of any perceived procedural deficiencies in respect of the grading assessment process. Furthermore, a dismissal process in respect of the claimant was already under way. Against that background, it was not unreasonable of Ms CC to make the relevant enquiry, although the timing was, of course, most unfortunate.
(73) By 19 February, XY had informed the claimant's SMA team that:-
" … as from Monday 14 January, [the claimant] will no longer continue in her role as [SMA] for Northern Ireland.
[The claimant] is currently seeking alternative roles within [the marketing division of XY] and we wish her well, as she pursues other opportunities".
(74) XY is a very big employer. It employs several thousand staff in the United Kingdom; more than 1,500 of those staff are employed in the marketing division of XY (to which the claimant belonged). Approximately 100 SMAs and SMBs are employed in the company.
(75) The respondent company paid the claimant half a year's salary, to compensate for its failure to provide her with her due notice. There was no business advantage to the employer in failing to provide due notice, apart from the significant factor that, by paying the claimant the sum in lieu, the company was able to make the termination of her employment irrevocable immediately. If the case put forward on behalf of XY were to be believed, it made no economic sense for the company to terminate the claimant's employment, as distinct from requiring her to work out her notice, while seeking alternative employment internally. If XY had taken the latter approach, they would have received some productivity, on the part of the claimant, in return for the six months pay. Accordingly, if the respondent's version of events were to be believed, the respondent (by terminating the claimant's employment without giving due notice) has acted in a manner which, from an economic self-interest point of view, is perverse.
(76) The company's policies and practices on recruitment did not present any obstacle for the employer if it had been willing to transfer the claimant to an equivalent post (as an SMA or an SMB).
(77) According to Mr White, his instructions are that the respondent company has no document which sets out rules for the appointment and promotion of employees. The claimant was appointed to her post as an SMB in Wales in the year 2000, even though she had not been an applicant for that post. The claimant was moved to become the Northern Ireland SMA in 2002 without any competition in respect of the SMA vacancy. (We are aware that the claimant's Northern Ireland appointment was given to her against a background of organisational restructuring. However the fact remains that the post was given to her without competition). In March 2005, when Ms AA was impressed by an XY employee, one Ms EE, Ms AA considered 'offering' Ms EE a particular permanent SMA post, even though Ms EE had not put in an application form, in time for the closing date, in respect of that post. Although Ms EE had very little management experience in March 2005, she was at that time offered a temporary role as a SMA in Scotland, covering for someone who was off sick. Less than three months later, when her temporary Scottish assignment was coming to an end, Ms EE was offered, and accepted, the relevant permanent SMA post (which had remained vacant in the meantime). According to Ms AA, during the intervening months, Ms EE had obtained management experience which was adequate for the duties of the permanent post.
(78) On the other hand, the claimant (who had been a very successful SMA and SMB for many years), was unsuccessful in her applications for the three alternative internal posts (as an SMA) for which she applied. In each instance, the selection panel decided that the claimant's answers to interview questions showed that she was incapable of meeting the minimum standards for each relevant post (and that she would therefore have been unappointable even in the absence of any competition).
(79) Those conclusions, on the part of the relevant selection committees, are remarkable because of the fact that they are so out of line with XY's actual experience of the way the claimant had performed, over lengthy periods, in equivalent posts.
(80) We appreciate that the claimant was sick at the time of the interviews. However, even allowing for the effects of sickness, it seems to us to be very unlikely that the claimant could have performed so badly that any fair and sensible selection panel would conclude that this particular candidate, a successful practitioner as an SMA over many years, was unappointable to the relevant SMA roles.
(81) According to XY, the outcome of the claimant's applications for the alternative internal employment (the three SMA vacancies) was a shock to Mr P and Mr T, who had both expected her to be successful in one of the relevant applications. However, we do not accept the truthfulness of that testimony. In arriving at that conclusion, we have taken account of the fact that there was no review of the original decision to dismiss, despite the outcome of the interviews for the alternative posts.
(82) We do not regard the claimant's medical incapability as putting her into a situation which was practically the same as the situation in which a redundant individual would find himself. However, the situations are analogous in some respects. According to XY's policy, a redundant candidate would be transferred to a vacant post, if there were no other redundant candidates who were interested in that post, without competition, provided he or she was assessed as meeting the basis competences necessary for appointment to the relevant alternative post. On any fair assessment, the claimant would have been assessed as being appointable to any SMA post.
(83) The respondent company has a policy document which deals with the problems which arise when there is a close personal relationship or a family relationship between a line manager and one of that manager's immediate subordinates. We regard that situation as being more closely analogous to a situation in which an individual cannot work with her line manager because of her medical condition.
(84) The relevant policy, issued on 2 December 2002, entitled 'Direct Line Reporting Relationships', clearly envisages that, in those circumstances, if the line-management connection cannot continue, the jobs of the affected individuals will not be in jeopardy; and that options such as redeployment, transfer, or changes in the reporting relationship, will be considered.
(1) Throughout her evidence to us, the claimant was unwilling to agree that she had any imperfections whatsoever in her role as a sales manager.
(2) She asserted that she had not provided adequate consent to the disclosure of Dr C's report, when it was obvious that she had provided perfectly adequate consent for that process.
(3) She told the tribunal that she had not received any written feedback from Ms U, but neglected to point out that she had however received extensive oral feedback from Ms U.
(4) The Northern Ireland SMA team was very small. In Christmas 2004, one of the members of that team was the subject of serious disciplinary action, which had been instigated by the claimant. Nevertheless, she was affronted when there was a reluctance on the part of the members of the team to have a Christmas function for the team, and she asserted that this constituted victimisation discrimination on their part, and she wanted to be awarded compensation in respect of that alleged discrimination.
(5) On many occasions, she knowingly breached the obligation to provide timely disclosure (to the respondent) of all relevant documents and, in particular, of all relevant documents upon which she intended to rely.
(1) We have noted the contents of the CC 'options' memorandum.
(2) Ms R inaccurately told the tribunal that, apart from human resources professionals and legal advisers, she had never, up to the time of the drafting of her witness statement, told any officer of XY of the fact that she thought that the claimant had invented the allegations which were the subject-matter of the Complaint.
(3) According to their evidence, Mr P and Mr T had an incredible lack of curiousity as to the precise nature and extent of the claimant's illness and as to the availability, or non-availability, of potential for making work modifications which might avoid the need for her to permanently leave her existing post.
(4) In their pre-termination interactions with the claimant, Mr T and Ms CC adopted a cold tone. Furthermore, in their various interactions with the claimant in the pre-termination contexts, the approaches taken by Ms CC, by Mr P and by Mr T were notable for the lack of any signs of sympathy, understanding or compassion.
(5) In his dismissal interview with her, Mr P emphasised the fact that the claimant had made a grievance which had not been upheld. In his own interaction with the claimant, Mr T also drew attention to that matter.
(6) The respondent company imposed a very tight timescale within which the claimant was (allegedly) expected to successfully compete for alternative internal employment. However, XY knew very well that there would have been no additional cost to the company if it had allowed her a six month period for the relevant job searches.
(7) XY tolerated a situation in which the claimant was applying for alternative posts (against a background which prominently included the threat of imminent dismissal) even though she had been certified by her doctor as being medically unfit, because of stress, to be at work.
(8) Ms CC was assigned to be the chief personnel adviser both in connection with the Complaint and in respect of the dismissal process.
(9) According to the evidence of XY witnesses, Mr P and Mr T never enquired, and were never informed, prior to the claimant's dismissal, as to the particular nature of the Complaint, or in relation to the question of whether or not the investigators regarded the Complaint as genuine. Such a lack of curiousity is inherently improbable and we do not believe that Mr P and Mr T never enquired, and were never informed, as to those matters. (See paragraph 26 above.)
(10) Potentially there was a large number of suitable alternative posts within XY, even if due allowance is made for any relatively restricted turnover among the relevant posts and even if due allowance is made for the fact that the claimant would obviously only be willing to accept a transfer to posts in some parts of Great Britain. (See paragraph 26 above.)
(11) An organisation the size of XY would necessarily, at any given time, have a variety of needs for temporary replacements for people who are on temporary absence, on maternity leave and on sick leave.
(12) The recruitment policies and practices of XY were very flexible and non-prescriptive. As a result, there was no policy impediment if XY had wanted to transfer the claimant to a post without any prior competition.
(13) The respondent company failed to keep comprehensive records of the assessments made in the course of the March 2005 selection processes (for which the claimant was forced to compete) even though it was by then perfectly obvious that the relevant processes would probably ultimately become the subject of intensive scrutiny in employment tribunal proceedings.
(14) In their testimony to this tribunal, Mr P and Mr T both told us that they had expected the claimant to be the successful candidate in respect of one of the three alternative posts for which she applied. But she was not the successful candidate in respect of any of those posts. In that supposedly unexpected situation, XY never reviewed the decision to dismiss.
(1) Dr C's opinion stated that the claimant could not work with Mr B as her line manager. It did not definitively state that she could never safely have work-related interactions with him.
(2) We accept that the temporary arrangements, whereby the claimant was being managed by Mr F, could not sensibly be continued indefinitely. However, there was no pressing economic or business need to discontinue them within the space of less than two months.
(3) After the initial pre-dismissal meeting with Mr P, there was no doubt that the claimant would no longer be carrying out the duties of the Northern Ireland SMA. Accordingly, in reality the claimant's job search was not engendering any important uncertainty for Mr B or for the Northern Ireland SMA team.
(4) The reality is that, in the limited time allowed to her by XY, there were, for practical purposes, only three posts for which the claimant could apply. One of the posts mentioned in Mr White's Submission was situated far from where the claimant's partner was living. Two of the posts cited by Mr White were promotional grades.
(5) Once the claimant knew that her grievance had not been upheld, she was on the look-out for other work. However, there is a considerable difference between being 'on the look-out' for other work, and needing to get other work. Until the 7 February meeting with Mr P, the claimant did not know that she was going to have to obtain other work.
(6) If 'closure' for the claimant really was necessary (in the context of the interactions between the claimant and Mr B), such closure had already been achieved once Mr P told her that she would no longer be staying in the Northern Ireland SMA post. Against that background, there was no need to truncate the timescale available for an alternative job search, for the purpose of obtaining 'closure'.
The law (the discrimination claims)
(1) According to article 1(1) of the Directive, its purpose is:-
" … to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions … "
(2) Article 5(1) of the Directive stated:-
"Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex."
(6) Article 6 of the Directive requires member states to:-
" … introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment … to pursue their claims by judicial process after possible recourse to other competent authorities."
(7) Pursuant to Article 7 of the Directive, Member States are to:-
" … take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment."
"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –
…
(b) by dismissing her, or subjecting her to any other detriment."
"6.(1) A person ( "the discriminator") discriminates against another person ( "the person victimised") in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has —
(a) brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act [or Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995], or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order or the Equal Pay Act [or Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995], or
(c) otherwise done anything under or by reference to this Order or the Equal Pay Act [or Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995] in relation to the discriminator or any other person, or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act [or under Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995],"
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.
(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
(3) For the purposes of paragraph (1), a provision of Part III or IV framed with reference to discrimination against women shall be treated as applying equally to the treatment of men and for that purpose shall have effect with such modifications as are requisite."
(1) There must have been a protected act (in the sense in which that concept is used in the context of Article 6(1) of the Order).
(2) The claimant must have been treated less favourably than the alleged perpetrator treated, or would have treated, an appropriate comparator (who may be an actual comparator or a hypothetical comparator).
(3) The less favourable treatment must have been accorded 'by reason that' the claimant had carried out the relevant protected act.
" … are the same, or not materially different …".
However, Article 7 does not apply to victimisation discrimination.
" … is a person who had not performed a protected act but was likewise unable to work in their existing job for a reason related to themselves, not the employer. Furthermore, the hypothetical comparator must be taken to have the skills and abilities of [the claimant]. In the circumstances of this case it would not be enough to postulate as a hypothetical comparator … merely a person who had not performed the protected act. By the time of the detriment relied on a further factor had intervened – [the claimant's] medical inability to work with her line manager."
"Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. … The phrase "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
" … [This case] stands or falls by reference to well established law in relation to direct discrimination. That recognises that treatment complained of is not on the ground of sex if it is on some other ground, which is not gender specific. Although the 'but for' test is often helpful in identifying whether treatment is on the ground of sex, and in circumstances such as those in James v Eastleigh Borough Council … may be determinative, it is worth remembering that the focus of the enquiry is as to the reason for the treatment – the 'reason why?' as it has been described in Shamoon (see paragraph 7 in the speech of Lord Nicholls of Birkenhead). The 'but for' test has limitations in resolving disputes as to causation upon which rights to compensation depend. For example, the claim that 'but for' my leaving home in the country to travel to London I would not have been knocked down by a car in Fleet Street may entitle the philosopher to muse that my doing so was the cause of my injuries, but such musing is completely unhelpful in determining the cause of the accident for the purposes of deciding whether I or the driver of the car should be financially responsible for the damage to man and to car involved in the accident. Thus for these purposes a court adopts what has been termed a robust, or pragmatic, approach to causation. Such an approach often leaves a broad margin within which a decision may fall. Courts and tribunals alike are entitled to the respect of the appellate courts when they give an answer as to the reason why treatment has happened, unless the approach is obviously wrong or the answer clearly perverse".
"From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but … 'almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
"1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."
"63A. (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent —
(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."
The employment provisions of the 1976 Order are contained within Part III.
(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
(1) The code recommends that every stage of the recruitment process should be documented. (See paragraph 9.8 of the code.)
(2) The code points out that all relevant documentation should be retained for 12 months in order to be in a position to deal with any subsequent complaints about the implementation of selection procedures. (See paragraph 9.8 of the code.).
"This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."
"The requirement necessary to establish less favourable treatment … is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."
In Zafar, the courts were dealing with a claim of direct racial discrimination. However, it seems clear to us that the general thrust of Lord Morison's comments is equally applicable to victimisation discrimination.
The law (unfair dismissal)
"130. — (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show —
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it —
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.
(3) In paragraph (2)(a) —
(a) "capability", in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
(b) "qualifications", in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) —
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
(1) In deciding on the reasonableness of the employer's conduct, we are not entitled to substitute our own views for those of the employer and decide whether we ourselves would have dismissed in the circumstances of this case.
(2) Instead we have to make a wider enquiry.
(3) This approach (the 'range of reasonable responses' approach) is based on the premise that in many cases there is a band of reasonable responses to the factual context, within which one employer might reasonably take one view and another quite reasonably take another.
(4) Against that background, the function of this tribunal is to act as an industrial jury and, in that capacity, to determine whether, in the particular circumstances of this particular case, the decision to dismiss the employee, in the relevant context, fell inside, or fell outside, the band of reasonable responses which a reasonable employer might have adopted.
The law (jurisdiction)
(1) The provisions of the 1976 Order have to be construed as applying only to acts carried out within Northern Ireland, unless it is necessary, for the purpose of complying with any applicable requirements of EU law, to construe any relevant provision as applying to acts carried out elsewhere in the United Kingdom.
(2) In Clydesdale, the relevant acts had occurred in Great Britain. In that case, the Court of Appeal concluded that the claimant had the right to make a complaint (in respect of the relevant acts) under Section 4 and Section 13 of the Sex Discrimination 1975 (which applies in Great Britain). Therefore, in the circumstances of that case, the court concluded that, there would be no breach of Article 6 of the Equal Treatment Directive if the provisions of the 1976 Order were construed as being inapplicable to the acts complained of in that case.
"In some respects territory is irrelevant to the question whether an employee is protected by Part II of the 1976 Act. The fact that, for example, an act of race discrimination is alleged to have been committed by an employer against an employee outside Great Britain does not of itself deprive the employment tribunal of jurisdiction to determine the complaint. If the employment of the employee is regarded as being at an establishment in Great Britain, Part II of the 1976 Act applies. It does not cease to apply simply because the employee was outside Great Britain, either at work or even away from work, at the time when the alleged racial discrimination occurred or because the alleged acts of discrimination took place outside Great Britain."
"Because the appellant could not maintain a claim in the Republic of Ireland, her case is obviously distinguishable from the decision in Clydesdale. As we have said above … if this court had concluded in that case that no remedy was available to the applicant in England, it would have felt it necessary to construe the legislation in a way that would allow the applicant to rely on acts of discrimination that had occurred outside this jurisdiction. Given that the appellant in the present case will not have a remedy in the Republic of Ireland, we consider it necessary in her case to so construe articles 6, 8 and 43 of the 1976 Order."
" … in relation to employment by [the relevant employer] at an establishment in Great Britain …".
Conclusions (general)
Conclusions (discriminatory dismissal)
(1) Was the fact that the claimant had made the Complaint a significant factor in the decision to dismiss the claimant?
(2) If so, did XY, by dismissing the claimant in those circumstances, treat the claimant less favourably than XY would have treated an appropriate statutory comparator?
(3) Has the claimant proven facts from which this tribunal could properly conclude (in the absence of an adequate explanation) that XY has committed a relevant act of unlawful victimisation discrimination against the claimant, or is to be treated as having done so?
(4) If so, has the respondent proven that it did not commit, or is not to be treated as having committed, that act?
(1) First, we are satisfied that the claimant was dismissed because she had made the Complaint.
(2) Secondly, we are satisfied that if the claimant had not made the Complaint, but her circumstances had otherwise been the same, she would not have been dismissed.
(1) There was a protected act.
(2) The claimant was dismissed because of the fact that she had made the Complaint.
(3) Therefore it follows that an appropriate hypothetical comparator would have been transferred to an alternative post without competition (and as a result) would not have been dismissed. Accordingly, by dismissing the claimant, XY treated her less favourably than XY would have treated an appropriate hypothetical comparator.
Conclusions (unfair dismissal)
(1) Has XY established the principal reason for the dismissal and shown that this principal reason falls within the category of potentially fair reasons?
(2) If so, was the choice of dismissal (as the decision option), in the circumstances of this case, within the range of reasonable responses?
(1) The claimant was sick at the time.
(2) It would have cost the employer nothing extra to have allowed her six months to carry out any internal job search for alternative employment (because of the claimant's contractual notice entitlement).
(1) There was no unwarranted delay in the notification of the outcome of the claimant's internal appeal against her dismissal.
(2) No pressure was put on the claimant to refrain from appealing against her dismissal.
(3) This was a wrongful dismissal because the claimant was not given due notice (in the form of her contractual entitlement to six months notice) of termination. However, that lack of due notice is not a factor which makes the dismissal unfair.
Conclusions on alleged lack of support in managing stress
(1) Contrary to the claimant's assertion, she was not subjected to any unreasonable level of enquiry or work-related demands while she was recovering from stress. (See paragraph 26 above.)
(2) For reasons which have already been given above, it was appropriate, in all the circumstances, for XY to approach the claimant, at the end of the dismissal appeal, with a view to scheduling a performance review meeting,. (See paragraph 26 above.)
(3) The main function of Dr C, as an Occupational Health Adviser, was to advise the employer. He himself underwent surgery during the course of February 2005. Against that background, we are satisfied that the fact that the claimant had done a protected act was a matter which had no bearing on the extent of any relevant direction, support or advice which Dr C gave, or failed to give, to the claimant.
Accordingly, the claimant has not established a prima facie case on the question of whether any relevant treatment constituted less favourable treatment on the relevant prohibited ground.
Conclusions on the 'sidelined, isolated and ignored' allegations
"(1) The claimant found that after her complaint became known, her team arrived for meetings and field visits without preparation and in an unco-operative manner. For example, D and E both attended an appraisal meeting without any preparation. Their attitude was dismissive and failed to show a professional approach and the respect a line manager would have been entitled to expect in terms of meeting preparation."
"(2) Contrary to established practice, some of the claimant's team sidelined the claimant by going above her head to the next line manager without consulting her. For example, Mr E went to Ms F about matters he should and could have raised with the claimant.
"(3) The claimant's team did not turn up on time for field visits after her complaint against Mr B became known. They attended meetings late and without explanation. On a number of occasions meetings were commenced as much as one and a half hours late because of the late arrival of the claimant's staff. Even on such occasions proper explanations were not proffered. Little attempt was made to make contact with the claimant as line manager as a matter of courtesy or good practice to explain such delays. In addition, telephone calls asking about their whereabouts went unanswered or were not responded to. Some telephone calls about other matters the claimant wanted to raise as part of their duties were ignored completely."
"(4) There was no initiation of phone calls to the claimant herself from the team itself. This became a significant change in the way the relationship between the claimant and her team developed after it became known that she had made a claim against her line manager."
"(5) A leaving card was sent to the claimant to her home address from a customer in September 2004 expressing sorrow that she was "leaving". This was not true but the claimant believes that it may have been based on company rumour. Nothing was ever done about it."
"(6) Another significant change in the way the relationship between the claimant and her team developed after it became known that she had made a formal complaint was in the coldness displayed towards her. Post-complaint, the claimant's team members did not want to be in social or work context with her."
"(7) In particular, the team did not want to go out with the claimant for traditional work night out in Christmas 2004."
"(8) The claimant believes that the strained and hostile atmosphere was partly based on the fear she felt was rife in the company over her complaint. During the course of the investigation into her internal complaint, and afterwards, colleagues were keeping "their heads down". This was particularly evident in the case of the employee who had represented her at her internal disciplinary hearing."
"(9) The claimant was not copied into e-mails regarding the outcome of the disciplinary case for fraud for one of her own team members, a Mr E."
"(10) The claimant was ignored at local meetings by the Northern Ireland team in Cookstown in January 2005. (In this regard, reference is made to G, H and I). There were around 40 employees at this event and those present made deliberate efforts to avoid interaction with the claimant. Some avoided her by moving off sharply as she approach a group. Others made excuses that they had to go to the toilet or make a telephone call. Particularly in a social context, she was not welcome to join individual groups and those colleagues present were even avoiding eye contact."
"(11) The claimant was separated from other managers and representatives within the Northern Ireland team at a meeting held in St Andrews, Scotland, in February 2005. She tried to speak to other managers such as Mr G, Mr J and Ms K. She was ignored and given a cold response. Her team and herself were put in a different hotel, well away from the main party, which had the effect of isolating her team from the other Northern Ireland team members."
(1) Mr G, Mr J and Ms K did not ignore the claimant or give a cold response.
(2) The claimant was not put in a different hotel well away from the main party. (Instead, she was put in a different building, within the same hotel as the main party, and within easy walking distance of the main building within that hotel.
(3) The accommodation arrangements did not have the effect of isolating her team.
"(12) She had to walk on her own to and from the conference centre. Socially, a similar situation to the Cookstown meeting was prevalent. (In this context, the claimant's makes reference to Mr D, Mr L and Ms M). There was a hostile atmosphere."
"(13) The claimant was ignored at management meetings. In this connection, the claimant refers to N at a meeting at the Elstree Moat House, England, in November 2004. As she approached him, Mr N left to make a phone call and at the table she was not included in conversations and eye contact was avoided. In particular, when she tried to contribute to a conversation, this was ignored and no effort was made to include her."
"(14) The claimant's appointment with Occupational Health, on a date in January 2005, was deliberately timed to coincide with a managerial meeting at the Celtic Manor Hotel, Wales."
"(15) When the claimant asked a fellow employee, O, to provide support for her at the internal "dismissal" meeting with Mr P, he asked that she not get him any further involved as he feared "repercussions" from Mr P. Furthermore, she had difficulty in getting Mr O to produce agreed notes of that meeting. Mr O failed to provide her with the support she might have been entitled to expect from a colleague in such circumstances. He was more concerned about how his participation in the hearing would affect his career in the company."
"(16) Prior to the investigation into internal complaints, she had received regular telephone calls, conversations and meetings with members of her team and other managers in the course of her work. These largely ceased after the claimant returned to work in September 2004, and after interviews (held in connection with the internal complaints) with the staff concerned had been concluded. In particular, prior to the investigation she had spoken to Mr G daily by telephone. After she returned to work in September 2004, she had no more than a dozen telephone calls with Mr G. Furthermore, from that time onwards, whatever conversations did take place were characterised by their functional nature. There was no interaction at meetings and no humour in the telephone calls."
(1) In general, as indicated above, we consider that the claimant has been an unreliable witness in relation to several aspects of her testimony. In particular, we consider the claimant to be unreliable on a number of matters of subjective impression. We bore these matters in mind while considering this allegation.
(2) We consider that there was a change in the intensity of the claimant's interactions with colleagues and with peers after her return to work in September 2004. However, this was because of two factors. First, the claimant was less inclined to interact constructively with the relevant people, because of the inner turmoil which she felt as a result of having made the Complaint. Secondly, for a lengthy period from September 2004 onwards, the claimant's managerial responsibilities were curtailed. (See paragraph 26 above.)
Conclusions on the 'undermined' allegations
"(1) The respondent failed to take her Complaint seriously. It failed to protect her against the action of other employees. It tolerated a culture of distrust and fear. It failed to allow a fair and transparent grievance system to operate. The decision of Mr Q, at the second stage of the internal grievance procedure, was notified to the claimant with indecent and inappropriate haste; indeed, that decision had been pre-determined before the meeting on 17 December. The claimant was inappropriately advised, by Ms R, by Mr Q and by Mr S, not to pursue the internal grievance appeal processes."
"(2) The claimant complains in respect of aspects of her interview for an SMA post which was held on 11 March 2005. The interview was delayed and the claimant was treated rudely in that connection. The interview was not nearly long enough. The demeanour of the interviewers was very dismissive."
"(3) The respondent pursued the claimant, in a petty and vindictive manner, about telephone bill expenses."
Conclusions on the 2003 salary review allegation
Conclusions on the 2004 pay review allegations
(1) She asserts that her performance was not fairly assessed.
(2) She asserts that the pay review for 2004 was not conducted in a timely fashion.
(1) Mr P (who unlawfully discriminated by way of victimisation against the claimant, by dismissing her) had a crucial role in determining the claimant's grading in the context of the 2004 salary review.
(2) In his testimony during this hearing, he explained the basis upon which the claimant had been graded in that context. However, he is a witness whose evidence we have found to be unreliable in another context. (See paragraph 29 above.)
(3) The grading system lacks transparency and XY has fostered a culture of secrecy in relation to individual officers' gradings.
(4) Mr P in particular, and XY in general, had a powerful incentive to grade the claimant's 2004 performance as 'good', as distinct from grading it as 'excellent' or 'distinguished'. A merely 'good' grading fitted more comfortably with the XY argument that the claimant had failed to obtain an alternative post because she had exhibited serious management deficiencies in the course of her interviews for such posts.
(1) The grading which the claimant received in respect of the 2004 pay review was the same as the grading which she had received in respect of the 2003 pay review; the 2003 pay review was undertaken at a time when the claimant had not yet carried out any protected act.
(2) Mr P's evidence on this topic was internally consistent.
(3) The claimant was away from work, or carrying out a curtailed range of management duties, for much of the year 2004.
Conclusions (jurisdiction)
The Response amendment application
"There was no 'protected act' in that the claim of discrimination/ sexual harassment made in the Claimant's e-mail of 2.8.04 and amplified in her written document of 25 pages was false and not made in good faith and so by virtue of Section 6(2) does not qualify for the protection offered by Section 6(1) of the Sex Discrimination (Northern Ireland) Order 1976."
(1) The proposed amendment was required in the interests of justice, for the purpose of permitting the respondent to advance the full defence available to it on the evidence before the tribunal, and so to allow the tribunal to deal fairly with the proceedings.
(2) The tribunal would in any event " … be asked to determine whether the [relevant] allegation … in fact occurred in determining whether the respondent's alleged witnesses to that act have told the truth … and whether [Ms R] … was justified in believing that the Claimant had fabricated the claim."
"If the application for leave to amend is made at the hearing, it should be made at the outset. A tribunal has power to allow an amendment at any stage of the hearing, but it is less likely to permit a substantial amendment once the hearing has begun."
The restricted reporting order
"(1) Prohibiting the publication in Northern Ireland of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Northern Ireland.
(2) In this Order, 'identifying matter' is any matter likely to lead members of the public to identify [Mr B] as a person affected by a relevant allegation which is under consideration in Case Reference Nos: 557/05, 612/05 or 621/05."
(1) On behalf of the claimant, Mr Denvir was unable to point to any personal disadvantage, or to any personal detriment, which the claimant would suffer if we were to make the full order.
(2) We were aware that, because of the considerable number of complaints being made by the claimant, it was unlikely that it would be possible to arrive at a final decision in the proceedings within a short number of weeks.
(3) No representations (against the making of the order) were made by or on behalf of any media organisation.
Rule 49
"49 In any proceedings involving allegations of the commission of a sexual offence the tribunal, the chairman or the Secretary shall omit from the Register, or delete from the Register or any decision, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation."
Some general comments
(1) She proves the allegation to the satisfaction of the ultimate decision-maker (which may be the employer or an employment tribunal).
(2) The ultimate decision-maker refuses to accept that the allegation is well-founded even though the evidence is perfectly adequate and even though, in reality, the allegation is well-founded.
(3) She fails to prove the allegation to the satisfaction of the ultimate decision-maker because, although the allegation is, in reality, well-founded. the evidence is inadequate.
(4) She fails to prove the allegation to the satisfaction of the ultimate decision-maker, because the allegation is not well-founded, although she genuinely believes that it is well-founded.
(5) She fails to prove the allegation to the satisfaction of the ultimate decision-maker because the allegation is untrue and she knows it.
" … introduce into their national legal system such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment … to pursue their claims by judicial process … [Emphasis added]."
Chairman:
Date and place of hearing: 16 – 27 April 2007;
4 – 14 June 2007; and
31 August 2007, Belfast
Date decision recorded in register and issued to parties:
