McEvoy v John Joseph Rice [2010] NIIT 06564

THE INDUSTRIAL TRIBUNALS

CASE REF: 6564/09

CLAIMANT: Yvonne Elizabeth McEvoy

RESPONDENT: John Joseph Rice

DECISION

The unanimous decision of the tribunal is as follows:

(A) The claim of unlawful deduction of wages was withdrawn and is therefore dismissed.

(B) The claims of unlawful sex discrimination are not well-founded and they are dismissed.

(D) The claim of victimisation discrimination brought under the sex discrimination legislation is well-founded. It is ordered that the respondent shall pay the claimant the sum of £11,019 (consisting of a principal sum of £10,226 and interest of £793) in respect of that discrimination.

(E) The claim of victimisation discrimination brought under the age discrimination legislation is not well-founded and is dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Ms T Hughes

Mr A Crawford

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Savage and Company Solicitors.

The respondent was represented by M Wolfe, Barrister-at-Law, instructed by Campbell Fitzpatrick Solicitors.

REASONS

1. The claimant and respondent are solicitors. They both practise within the firm of John J Rice and Co Solicitors (“the firm”). The respondent is the sole principal of that firm. Among the firm’s employees, the claimant is the most senior in terms of status. She is a “salaried partner”. No other member of staff of the firm is a salaried partner.

2. The respondent’s special area of expertise is in the field of criminal defence work. The claimant’s special area of expertise is conveyancing. The claimant has been an employee within the firm for more than 15 years. Throughout that period, until December 2008, the claimant and the respondent had an excellent working relationship. As a result of interactions between the claimant and the respondent during the period from December 2008 to February 2009, the relationship between the two of them broke down. The claimant became ill. She has been off on sick leave since February 2009.

The acts complained of

3. Throughout the period of the claimant’s sickness absence, the respondent has paid her no more than the amount of statutory sick pay which the law requires him to give to her. That omission and refusal is one of the acts which is the subject of complaint in these proceedings.

4. The claimant also complains in respect of a miscellaneous category of other acts (“the other acts”). Those other acts are as follows. First, the claimant complains in respect of what the respondent said to her during meetings, or encounters, which took place on 10 December and 17 December 2008, and on 29 January, 4 February and 20 February 2009. She also complains in relation to the failure of the respondent to increase her salary at the end of 2009. She also complains in respect of the respondent’s removal, from her, of responsibilities which she had had, as Laundering Officer and as the person with managerial responsibility in respect of the firm’s administrative staff.

The causes of action and the defences

5. In the claimant’s claim form, she complains of unlawful deduction of wages. However, that claim has been withdrawn by her in the course of these proceedings. Accordingly, that claim must be dismissed.

6. Article 8(2) of the Sex Discrimination (Northern Ireland) Order 1976 provides that it is unlawful for a person, in the case of a women employed by him, to discriminate against her in the way he affords her access to benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or by subjecting her to detrimental treatment (“any other detriment”).

7. Regulation 7(2) of the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the 2006 Regulations”) makes provision, in the context of the definition of “discrimination” in the 2006 Regulations, which is exactly parallel to the provisions in Article 8(2) of the 1976 Order.

8. In the 1976 Order, the term “discrimination” includes sex discrimination within the meaning of that Order and victimisation discrimination within the meaning of that Order. In the 2006 Regulations, the term “discrimination” includes age discrimination within the meaning of those Regulations and victimisation discrimination within the meaning of those Regulations.

9. The claimant claims that the withholding of occupational sick pay (the decision not to pay any sick pay beyond the amount of sick pay which is required to be paid pursuant to the statutory sick pay legislation) constitutes unlawful victimisation discrimination within the meaning of the 1976 order. She also contends that the same act or omission constitutes unlawful victimisation discrimination within the meaning of the 2006 Regulations.

10. She claims that, by carrying out the “other acts”, the respondent has acted in a sexually discriminatory manner.

11. The claimant also asserts that by carrying out the other acts, the respondent has behaved in an age-discriminatory manner (that discrimination taking the “indirect” form of that particular type of discrimination).

12. The claimant says that, by failing to pay the sick pay, the respondent fails to honour her contractual or moral entitlements. The claimant goes on to argue that, in those circumstances, we should infer that the fact that the claimant had asserted rights under the 1976 order was a factor in the relevant decision-making of the respondent. The claimant goes on to argue that we should infer that the assertion by the claimant of her rights under the age discrimination legislation was a significant factor in the context of the relevant decisions made by the respondent in respect of sick pay.

13. The respondent says that the omission to provide any occupational sick pay (any sick pay beyond the statutory sick pay minimum) was an appropriate action. It is also claimed, on his behalf, that there is no adequate evidence upon which the tribunal could infer either that the assertion of rights under the 1976 Order was a factor, or that the assertion of rights under the 2006 Regulations was a factor, in that connection.

14. The claimant claims that in carrying out the other acts, the respondent has subjected her to sexually discriminatory detrimental treatment or has discriminatorily refused or deliberately omitted to afford her access to benefits, facilities or services. She says that these various acts and omissions have been carried out in a sexually discriminatory manner. According to the claimant, a man in the same relevant circumstances would have been treated better. She says that her gender was a factor in the context of all of those “other” acts.

15. In the context of age discrimination, the claimant relies on the “indirect” limb of the 2006 Regulations definition of age discrimination. That is to be found in Regulation 3(1)(b). According to Regulation 3(1), for the purposes of the 2006 Regulations, a person (“A”) discriminates against another person “(B)” if:

“(b) A [without justification] applies to B. a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but –

(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and

(ii) which puts B at that disadvantage.”

16. According to Mr Potter’s argument (on behalf of the claimant), the position is as follows. The relatively large extent of the claimant’s salary (in comparison to the salaries paid to other employees in the firm) was a significant cause of the relevant detrimental treatment. Because size of salary was a reason for the relevant actions and omissions, the respondent put people of the same age group as the claimant at a particular disadvantage when compared with persons who were younger, and he also put the claimant at that disadvantage, and the action which he took was not action which he can show to be a proportionate means of achieving a legitimate aim.

17. According to the respondent, the targeting of people with higher salaries does not constitute indirect age discrimination. In any event, the claimant’s relatively high remuneration was not a significant reason for the treatment which she received. Furthermore, according to the respondent, the relevant treatment, in general in broad terms, was not inappropriate.

The amendment application

18. At the beginning of this hearing, Mr Potter (on behalf of the claimant) sought leave to amend the claimant’s claim form so as to include a claim that the respondent had indirectly discriminated against the claimant contrary to the age discrimination legislation by subjecting her to the treatment which constitutes the subject-matter of the sex discrimination claim.

19. It was agreed between the parties that we should receive evidence in relation to that age discrimination claim, and that the question as to whether or not leave to amend should be granted could be left for determination at the conclusion of the hearing, in light of the submissions of the parties.

20. We have decided to grant the leave which is sought in this application for leave to amend. We need only to provide brief reasons for that determination, because we have dismissed the age discrimination claim on the merits. (See below).

21. In our respectful view, “Tolley’s Employment Handbook”, at paragraph E6525, accurately summarises the relevant legal principles. According to that paragraph, an application for leave to amend may be made at any time. If the amendment only seeks to alter the basis of an existing claim, the tribunal will apply the test of the balance of injustice and hardship, without taking account of any statutory limitation period. Thus, an application to re-label facts already pleaded in the claim form will stand a relatively better chance of succeeding. However, if the amendment seeks to add, or to substitute, an entirely new complaint, based upon facts that have not been pleaded, then the tribunal will also have to consider whether the application is within the primary time limitation period, and, if not, whether it is possible to extend time.

22. In this case, we have assumed that the claimant’s proposed age discrimination claim does not involve mere re-labelling. In deciding that the application for leave should be granted, we have taken account both of the legal interest in certainty and of the circumstance that, as Mr Wolfe realistically accepts, the respondent will have suffered no prejudice as a result of the delay in properly making the age discrimination claim (as distinct from any prejudice which may have resulted to the respondent from the making of that claim at all).

The sources of evidence

23. We received oral testimony from the claimant. On behalf of the respondent, we received oral testimony from the respondent himself and from Mr Hugh Leslie (an assistant solicitor in the firm). We also saw witness statements from Ms Arlene Loney, Ms Doris Sherlock and Ms Kristina Murray. (The latter group of statements was received by us, without objection from the claimant’s side of the case, on the basis that the assertions in those statements were not being controverted on behalf of the claimant).

24. We also saw a bundle of documents, along with some miscellaneous documents which were provided to us during the course of the hearing. We told the parties that we would not take account, for evidential purposes, of the content of any document within the bundle unless that document had been specifically drawn to our attention by one or more of the parties.

The liability arguments

25. With the agreement of both parties, we were provided with written submissions from each party (“Submissions”).

26. Each party was at liberty to subsequently respond to the opposing party’s Submission, by way of subsequent written comments (“Comments”). The claimant did send Comments. The respondent did not send Comments. (However, the respondents Submission, which was provided after the respondent had received the claimant’s Submission, took full account of the claimant’s Submission).

27. We made it clear to the parties that we were willing to hold an oral hearing, for the purpose of considering any oral arguments, if either party asked us to do so (the deadline for any such request being the same as the deadline for the receipt of Comments). Neither party requested an oral hearing.

28. Prior to the exchange of Submissions, we drew the attention of the parties to the statements of legal principles which are set out in two employment tribunal decisions (Carlin v Social Security Agency, case 250/02FET, decision issued on

4 March 2008; and McNally v Northern Ireland Fire and Rescue Service, case 46/07FET, decision issued on 29 May 2009).

29. A Case Management Discussion (“CMD”) was held on 31 August 2010, for the purpose of clarifying certain issues which had emerged as a result of the drafting of the Submissions and Comments. The outcomes of that CMD were as follows:-

(1) The parties have agreed that Article 63A of the 1976 Order applies to unlawful victimisation discrimination within the meaning of that Order, and that Article 42 of the 2006 Regulations applies to complaints of unlawful victimisation discrimination.

(2) The claimant’s representative confirmed that the financial loss element of the claimant’s victimisation discrimination claims in these proceedings consists of a claim for three months’ net pay.

(3) In the context of the respondent’s arguments in relation to the alleged failure to “grieve”, the attention of the parties was drawn to the line of Employment Appeal Tribunal case law which began with the case of Plummer v DMC Business Machines plc UKEAT/03/881/06. The parties confirmed that they wished to make supplementary arguments in respect of the implications, if any, of that line of case law, in the context of the respondent’s pre-litigation grievance point. The parties also confirmed that they did not require an oral hearing for the purpose of presenting those additional arguments. It was agreed and directed that the respondent would be at liberty to provide a supplementary written submission (an “Additional Submission”) which would address the relevant line of case law, and that the claimant would also have the opportunity to present an Additional Submission for that purpose. It was also agreed that the respondent’s Additional Submission should reach the Secretary of the tribunals by 7 September 2010 and that the claimant’s Additional Submission should reach the Secretary by 9 September 2010. (In each instance, the party who provided a particular Additional Submission was to provide a simultaneous copy of that Additional Submission to the opposing party.)

30. In view of the existence of the Submissions, the Comments and the Additional Submissions, it is unnecessary, in this Decision, to comprehensively list all of the liability arguments, on each side of the case, in any detail. We refer to some aspects of those arguments later in this Decision.

31. We have noted certain observations which were made during the course of the claimant’s Submission and Comments. Those observations could be construed as being critical of Mr Wolfe. For the avoidance of any doubt, we make it clear that we are satisfied that Mr Wolfe, in his role as representative, has not acted in any way improperly.

The facts

32. In this paragraph, we set out findings of fact which are relevant to the liability issues which we have decided. In the interests of clarity, and with a view to minimising avoidable duplication, we also set out additional findings of fact elsewhere in this Decision:

(1) The claimant was born in 1954. The respondent is also middle aged.

(2) The claimant has been employed in the firm for more than 15 years.

(3) The claimant is a diligent and capable solicitor. Her main area of expertise is conveyancing, although she also has significant experience in some areas of civil litigation.

(4) When the claimant first commenced employment with the respondent, it was on the clear understanding that she would not be carrying out criminal work.

(5) Criminal defence work is the respondent’s main area of personal legal expertise. That area of work is the field of legal activity in which the firm is mainly engaged. Most of the solicitors in the firm are mainly engaged in criminal defence work. Most of those solicitors (the firm’s criminal defence solicitors) are male.

(6) For some years now, the claimant has been a salaried partner within the firm, the only salaried partner within the firm. Although she is a salaried partner, she is nevertheless an employee. Her remuneration consists of a salary and a small share in the profits of the firm.

(7) For most of her period in the firm, the claimant and the respondent have got on very well together. There has been a relationship of trust between them. However, their relationship broke down as a result of what was said and done during, and in connection with, a series of meetings (or encounters) between them, beginning with a meeting which took place on 10 December 2008 and ending with a meeting which took place on 20 February 2009. Soon after the 20 February meeting, the claimant lodged a grievance and went on sick leave.

(8) There were five meetings, which took place on:

10 December

17 December

29 January

4 February, and

20 February

(9) Neither the claimant nor the respondent kept contemporaneous notes of the

10 December or 17 December meetings. The respondent didn’t make a note of the meeting on 29 January, although the claimant did. By 2 February, the claimant had obtained advice from an employment law practitioner. Each of the parties made contemporaneous notes, separately, in relation to the

4 February and 20 February meetings.

(10) In our view, by February at the latest, the parties had the potential for an eventual employment tribunal hearing very much in mind when they were interacting with one another. In considering the accounts which each party gives, in relation to the various contemporaneous notes, about the meetings, we have borne the latter consideration very much in mind.

(11) The claimant was comfortable in her chosen areas of expertise. The prospect of carrying out criminal defence work appalled her. The claimant’s knowledge and expertise of criminal work was very limited. The clientele in respect of criminal defence work was very different from the clientele in respect of conveyancing work. As part and parcel of criminal defence work, there was a necessity to engage in “PACE” work. The PACE work was carried out within the firm on a rota basis. So, if it was your turn on that rota, you might have to go to a police station, at short notice, even overnight and at weekends, if a PACE call came to the firm. The claimant considered that she was “too old” to get involved in this work.

(12) The current recession had begun by late 2008. There was a marked decline in the selling and buying of property. This had a knock-on effect on conveyancing. By the end of 2008, the claimant had much less conveyancing work than she had had in previous years.

(13) During the good years, conveyancing had been very remunerative for the firm. By Christmas 2008, the criminal defence work continued to be relatively plentiful, and relatively remunerative.

(14) In the context of the claimant’s detrimental treatment age discrimination claim, it is her case that, towards the end of 2008, the respondent arrived at the view that the claimant was bringing in far less fees than the firm’s criminal law practitioners and that there was an unsustainable incongruity between this commercial reality and her salary and financial package. In our view, having heard all of the evidence in this case, the true position is that, by that time, the respondent had indeed arrived at the view that the claimant was bringing in far less fees than the criminal practitioners and that something had to be done about that disparity (probably by reallocating some of the criminal workload to the claimant). However, we are satisfied that the respondent would have taken exactly the same view if the conveyancing work had been carried out by a male, or if the conveyancing work had been carried out by a solicitor who is 30 years of age.

(15) In arriving at that latter conclusion, we have of course taken full account of all of the evidence which we have received. However, we have also noted that it is commonplace, in any business, for the owner to want to re-allocate workloads if one member of staff has too little work to do and another member of staff, on the other hand, has a plentiful supply of work (in the latter’s area of speciality). We consider that those natural tendencies, of owners in general, will have been reflected in the actual practice of solicitors firms in Northern Ireland, in the difficult economic circumstances of the winter of 2008/2009.

(16) According to paragraph 8 of the claimant’s Submission, the claimant had a perception of gender based attitudes within the firm in relation to criminal work. We are sure that she did have that perception. We have no doubt that there was a special camaraderie among those lawyers within the firm who specialised in criminal defence work (just as there tends to be camaraderie, for example, among employment lawyers). But the existence of such camaraderie, coupled with the circumstance that most of the criminal defence lawyers were males, does not provide adequate evidence of sexism. According to paragraph 8 of the claimant’s Submission, the claimant had not been asked to attend criminal trials even in busy periods. However, the reality was that the claimant never showed any great desire to attend criminal trials. (She was nervous about criminal work, and she did not enjoy her brief encounters with that area of law.)

(17) According to paragraph 9 of the claimant’s Submission, in relation to gender, the greatest contrast lies in respect of the way the Claimant (and to a lesser extent, another female solicitor in the firm, Ms Polley) were dealt with in the relevant period as compared to the male staff. We think that Mr Potter (on behalf of the claimant) is here referring mainly to the various meetings which were held with all of the members of staff of the firm, on an individual basis, during the month of February 2010. However, in considering whether the respondent was sexist, we derive little insight from the notes of those meetings, because we are sure that those meetings were held mainly because of the possibility that the claimant would initiate these tribunal proceedings. (The meetings were intended to remove any impression that the claimant was being singled out for attention.)

(18) We have no doubt that a number of the men who carried out criminal defence work within the firm were telling the respondent, in the winter of 2008/2009, that, because of the mismatch between her availability and the availability of conveyancing work, the claimant should be joining the PACE rota. In expressing those views, the men were acting reasonably and rationally. It was perfectly understandable that they would want assistance from the claimant, in the circumstances prevailing in 2008/2009, in carrying out the PACE rota. (It was of course equally understandable that the claimant would not want to join that rota).

(19) There has been some controversy between the parties, in the context of this hearing, as to whether the claimant’s position, during the relevant interactions with the respondent, was that she did not want to do criminal work at all, or simply that she did not want to do the PACE rota. We have no doubt that the respondent got the impression, during the course of those interactions, that the claimant wanted neither to do criminal work nor to do PACE work. We have no doubt that he had good reason for getting that impression.

(20) We must consider the various controversial meetings in some detail. First, we consider the meeting of 10 December 2010.

(21) That meeting started off with the claimant asking for a pay rise. As a response to that request, the respondent talked to the claimant about her declining workload. When, the claimant pointed to her responsibilities as the money laundering officer in that context, and as the person with immediate managerial responsibilities for administrative staff, the respondent told her that he intended to remove both of those responsibilities from her. He confirmed that decision in an email the following day.

(22) Why did he remove those responsibilities? We are sure that he removed those responsibilities because he wanted to put into stark relief the problem which had been created by the lack of conveyancing work. We have no doubt that, in the same situation, if the conveyancer had been a male, and that conveyancer had been using administrative or extra-legal responsibilities as a reason for resisting a change to his workload, the respondent would have taken the same action (and would, accordingly have removed those “non-legal” responsibilities).

(23) The next meeting in this series occurred on 17 December 2009.

(24) In the course of that meeting, there was an acrimonious discussion regarding the claimant’s holidays. When the claimant had been earning good money for the firm in her conveyancing role, the respondent had had a relaxed attitude to the number of holidays which she took. During the period of 12 months which was under discussions during this meeting, the claimant had taken more than six weeks holidays. During this meeting, the respondent suggested that her contractual annual holiday entitlement was only four weeks. Naturally enough, she construed this as an attack upon her.

(25) The reality was that there had been vagueness about the extent of the holiday entitlements of many of the firm’s employees. In the context of the

17 December discussion, the claimant, wrongly as it turns out, drew a comparison with the holiday leave of Mr Hugh Leslie, who is an assistant solicitor in the firm.

(26) According to the claimant, during the 17 December meeting, the respondent made various comments which were unpleasant, sarcastic, and which she felt undermined her position. We have no doubt that, during the course of that meeting, the respondent did make some comments which were unpleasant or sarcastic. That is unfortunate and regrettable. The context was that he was attempting to persuade the claimant to broaden her workload, and that he was encountering resistance from the claimant in that context. The inappropriate aspects of the respondent’s comments were a reflection of his resulting frustration.

(27) We accept that, at around that time, the respondent did take steps to make sure that the claimant became aware of the extent of the reduction in her fee-earnings. We also note that he placed newspaper clippings of redundancies (relating to other solicitors firms) on her desk. The respondent, in his evidence to us, asserted that, in following those practices in relation to the claimant, he was not acting out of line with the practices which he was simultaneously following in relation to other solicitors. We think that the respondent’s recollection is not accurate in this connection. We think that he made special efforts to draw the seriousness of the conveyancing situation to the attention of the claimant (both through informing her of her fee-earnings and by providing her with the newspaper clippings).

(28) The next meeting in this series occurred on 29 January 2009. According to paragraph 24 of the claimant’s Submission, the claimant’s evidence was that the respondent “berated her” in relation to conveyancing fees as compared to criminal fees. We think that this meeting was an acrimonious meeting and that it would have been entirely possible for the respondent to have got his various points across while following a more conciliatory style of dialogue. However, on the basis of all the available evidence, we are satisfied that it is unfair and inaccurate to say that the respondent “berated” the claimant at that meeting.

(29) There is a disagreement between the parties on the question of whether or not, at that meeting, the respondent informed the claimant that she was going to be placed on the PACE rota when it was next revised. We have decided that the respondent’s evidence is more accurate on this issue. We are satisfied that the true position (as the respondent has now asserted) was that, at this meeting, he was urging the respondent to go onto the PACE rota, but that he was not purporting to instruct her to do so. Nevertheless, the effect of what the respondent said at that meeting was to put pressure on the claimant to “voluntarily” agree to go on to the PACE rota, even though the respondent knew that she did not want to do so. That was a very unpleasant tactic from the claimant’s point of view. However, it was not an unreasonable approach, given the dire state of the then prevailing market for conveyancing services.

(30) The meeting on 4 February 2009 was the next meeting in this series of meetings.

(31) The parties are agreed that the meeting of 4 February 2009 did not commence in a hostile fashion. However, it is clear there was firm speaking, both on the part of the claimant and on the part of the respondent, during the course of that meeting. The respondent used that meeting in order to emphasise, once again, that he was concerned about the decline in the conveyancing workload, and that he was keen for the claimant to branch out into criminal work. The claimant again made it clear that she was most unwilling to take that course of action and that, in particular, that she did not want to do PACE work. She pointed out, correctly, that when she had first been employed, she had been assured that she would not have to do criminal work. She made it clear that she felt that she was too old to start attending police stations at night.

(32) The next meeting in this series of meetings, and the crucial meeting in this series, was the meeting on 20 February 2009. This was a very acrimonious meeting. At the beginning of the meeting, the respondent demanded proposals from the claimant as to how the economic consequences of the decline in demand for conveyancing services could be addressed. She declined to make any proposals. Instead, she told the respondent that it was up to him to decide. She also told the respondent that she was very unhappy about the attitude which he had displayed during the course of the previous meetings. His response was that she was “always the victim”. During the course of the meeting, the respondent asked the claimant to think about her position over the week-end. The claimant construed this as an implied request for resignation. However, in reality, the respondent was talking about the “claimant’s position” regarding the PACE rota and regarding criminal defence work. It was the claimant who took action to terminate that conversation. On the following day, Saturday 21 February, she recorded a contemporaneous note of what had occurred during the 20 February meeting.

(33) During the 20 February meeting, the respondent raised the possibility that the claimant might wish to go onto a three or four day week. In the claimant’s Submission, at paragraph 44, there is a frank and realistic recognition that, in the context of an economic crisis:

“It would not have been improper for Mr Rice to suggest a short term arrangement to the Claimant whereby she reduced her salary and/or worked fewer hours so long as that was done in an appropriate manner”.

(34) At paragraph 45 of the claimant’s Submission, there is an implicit recognition of the economic reality, which was that, because of the decline in the conveyancing workload, there was a real issue as to whether or not there was a need to consider redundancy. In our view, in such a situation, there would also have been a real issue as to whether or not the claimant was the appropriate candidate for redundancy.

(35) At paragraph 47 of the claimant’s Submission, it is recognised (entirely realistically) that it was “wholly reasonable” for the respondent to suggest that the claimant should undertake PACE rota duties (even though the claimant was not contractually obliged to do so). And for the avoidance of any doubt, we also agree with the comment which was also made a paragraph 47 of the claimant’s Submission, in the following terms:

“Equally it was entirely reasonable for the Claimant to take issue with doing the PACE rota given her age and circumstances”.

(36) However, we cannot endorse the conclusion which is suggested at paragraph 48 of the claimant’s Submission, given the primary facts which we have found, and given the overall factual context. According to paragraph 48:

“In short it is claimed that if the Claimant had been a man and/or if she had been receiving a substantially lower salary, she would not have been targeted in the period December to February”.

(37) It was entirely appropriate to target the claimant, given the decline in her personal workload. She was the obvious person to focus attention upon, because she was the firm’s conveyancing solicitor.

(38) We have great sympathy for this claimant. In our view, she clearly has considerable expertise as a solicitor. She used that expertise to the considerable financial advantage of the firm, over many years. She worked diligently in the firm for many years. She never wanted to be a criminal defence lawyer. In the winter of 2008/2009, she found the prospect of expanding her role, so as to encompass PACE work or general criminal defence work, to be extremely distasteful. That was a reasonable view, given her background, her personality and her domestic situation.

(39) Nevertheless, it was reasonable for the respondent to seek to persuade her to expand into the field of criminal defence work. In our view, aspects of what the respondent did, in that connection, lacked grace and sensitivity. However, having looked at what he said and did, during the course of, and in connection with, the various controversial conversations, we have concluded that the respondent’s behaviour did not generally step beyond the limits of what can be expected when two senior people within a firm explore, with candour and firmness, matters which are of considerable importance, both for the firm in general and for the relevant worker in particular.

(40) When the claimant went on to sick leave, she received statutory sick pay. Her medical certificates showed that she was suffering from psychological ill-health. The respondent, quite understandably in light of the available evidence, accepted, for statutory sick pay purposes, that the claimant was indeed genuinely unfit for work.

(41) Nevertheless the respondent did not make any payment of occupational sick pay to the claimant, in relation to any part of any sickness period. (In this Decision, we refer to “occupational sick pay” as the sick pay, if any, which an employer pays in respect of a period while the employee is sick, over and above the amount which the employer is in any event obliged to pay under statutory sick pay legislation.)

The law and our conclusions (sex discrimination)

33. In the claimant’s Submission, Mr Potter drew our attention to the definition of detrimental treatment which is to be found at paragraphs 571 and 572 of “Harvey on Industrial Relations and Employment Law”. As “Harvey” makes clear (at paragraph 571), “detriment” requires nothing more than treatment of such a kind that a reasonable worker would or might see it as being to their detriment. (In particular, there is no need for any relevant disadvantage to have either physical or economic consequences). Shamoon v Chief Constable of the RUC [2003] ICR 337 shows that a detriment within the meaning of Article 8(2) of the 1976 Order exists if, by reason of the act, or acts, complained of, a reasonable worker would or might take the view that she had thereby been disadvantaged in the circumstances in which she had thereafter to work. (See Shamoon, at paragraphs 34, 91 and 104). We accept that, in applying those criteria, it is appropriate to consider the issue from the point of view of the claimant (see Shamoon, at paragraph 105). Nonetheless, an unjustified sense of grievance cannot amount to a detriment (see Shamoon at paragraph 35).

34. Having applied those principles to the facts we have found in this case, we have concluded that the claimant was not subject to detrimental treatment within the meaning of Article 8 of the 1976 Order.

35. There had been a dramatic collapse in the demand for legal services in the area of legal work in which the claimant mainly worked. There was a pressing need for action to be taken, in relation to the claimant’s areas of work activity, to address the mismatch between her current workload and the availability of work. We have already expressed some criticisms of some aspects of the interactions with the claimant, during the month of December, January and February 2008 and 2009. Nevertheless, in discussions between two senior solicitors, regarding a work matter which was of central importance to both of them, there must be some margin of appreciation, open to the employer, regarding the way in which the employer discusses the issues with the employee. In our view, what the respondent said and did, in the course of the relevant encounters, fell below the threshold level of bad or unfavourable treatment which is sufficient to constitute “detriment”, in the present context, even when one views the situation, as we have done, from the perspective of this claimant.

36. What was that perspective? The claimant was middle-aged. She was a very experienced solicitor. She was comfortable in her area of specialism, (conveyancing). As the respondent well knew, her home circumstances were challenging, and were likely to make her more sensitive to workplace difficulties, discomforts or stresses. She had a sensitive and vulnerable personality. We have no doubt that the claimant was very upset about the respondent’s efforts to pressurise her into doing PACE work. However, in the circumstances, we do not consider that he acted unreasonably in seeking to change her mind about her unwillingness to do that type of work.

37. In the context of sex discrimination, two elements of the definition of discrimination have to be satisfied. First, there must have been less favourable treatment of the claimant (in comparison with the treatment accorded to an appropriate statutory comparator). Secondly, although the prohibited ground (“the ground of her sex”) does not need to be the main reason for that treatment, that prohibited ground must be a substantial and effective cause. In other words, it must be an important, or significant, factor. (See Igen Ltd v Wong [2005] IRLR 258, at paragraphs 35 and 37 of the judgement).

38. In the claimant’s Submission, it is suggested, in the context of the sex discrimination claim, that the proper statutory comparator is a hypothetical comparator, who was a male conveyancer/civil law practitioner and partner “in the same situation and circumstances”. In that Submission, it is claimed that such a person “… would not have been treated in the way the Claimant was [treated]”.

39. By citing a hypothetical comparator in this context, the claimant’s legal representatives are, in effect, focusing the tribunal’s attention on the “reason why”. (Why did the respondent treat the respondent the way he did? Was her gender a substantial and effective cause of the relevant treatment? Was it an important or significant factor in that connection?)

40. According to the claimant’s Submission (at paragraph 61), the way in which the respondent treated various males, in various respects, is evidence as to how the respondent would have treated the true statutory comparator, who is a hypothetical comparator.

41. At paragraph 63 of that Submission, it is suggested that, in the course of their meetings with the respondent in February 2009, Mr Eamon O’Connor, Mr Paul Dougan, Mr Connor Houston and Mr Hugh Leslie were treated more favourably than the respondent (during the various meetings with the claimant in December 2008, January 2009 and February 2009) had treated the claimant.

42. However, the February meetings with those various assistant solicitors were not spontaneous. They were not arranged primarily for the purpose of satisfying any direct business need of the firm. Instead, they were arranged and conducted (by the respondent) primarily to show fairness and even-handedness, in the expectation that, in due course, this claimant’s disagreement with the respondent would result in proceedings in an industrial tribunal. (In particular, we note that the claimant had already sought employment law advice by 2 February; and that the claimant had taken notes of the 29 January and 4 February meetings; and that the respondent took contemporaneous notes in respect of the meetings of 4 February and

20 February). Against that background, we think that the style and content of the various February meetings with the assistant solicitors is unlikely to reveal much about how the respondent would have treated a hypothetical male salaried partner who found himself in a situation analogous to that which was then facing the claimant.

43. At paragraph 67 of the claimant’s Submission, it is suggested that there are a number of primary facts which provide an evidential basis for an inference that the relevant treatment (the treatment which is the subject-matter of the sex discrimination claims) was meted out to the claimant “on the ground of her sex”. We can now deal briefly with each of those sets of primary facts, as set out at paragraph 67 of the claimant’s Submission:

(1) We have already considered the possible implications of the differences in the content and tone of the meetings between the respondent and the claimant on the one hand, and the meetings between the respondent and various assistant solicitors on the other hand.

(2) Bearing in mind that we are satisfied that the meetings in February with the assistant solicitors were held with the possibility of subsequent tribunal proceedings very much in mind, we consider that a comparison of the notes about the various meetings (the notes of the Polley meeting and the notes of the meetings with other, male, assistant solicitors) provides no significant help to us in arriving at conclusions as to whether or not there is a prima facie case that the allegedly detrimental treatment was carried out on the ground of the claimant’s sex.

(3) Because of the decline in the conveyancing workload, there was bound to be some discontent, among those who were already carrying out mainly criminal defence work, about the claimant’s continuing “immunity” from the PACE rota. It was entirely natural that the respondent would take account of those views in making his various points during the course of his various dialogues with the claimant. The fact that those views were held by workers who happen to be predominately male did not necessarily make those views inappropriate or sexist.

(4) At paragraph 67(d) of the claimant’s Submission, Mr Potter makes the following point:

“the nature of the comments attributed to Mr Rice on [20 February] 2009 (particularly sarcastic and nit-picking, and threats of redundancy etc) [are] the sort of comments that a male is less likely to make to a male partner ….”

We do not share the view that a male would be less likely to make comments, of the type attributed to the respondent on 20 February, to a male salaried partner.

(5) We accept that any decision by the respondent to make occupational sick pay available to Mr Leslie, “while” withholding it from Ms Doris Sherlock and from the claimant, is a factor which can properly be taken into account in deciding whether or not any relevant sexually discriminatory detrimental treatment was meted out to the claimant on the ground of her gender.

(6) Having had regard to the overall context of this case, we reject the proposition that whether the claimant was invited, or was not invited, to a particular social event at Armagh, on a particular date, has any significant evidential power, in determining whether or not the relevant treatment in this case was affected, to a sufficient extent, by a prohibited ground.

(7) We reject the proposition that the respondent indicated gender bias by raising the issue of part-time working with the claimant, while omitting to raise it with any of the male members of staff. After all, the claimant’s main area of workload was conveyancing, it was demand from customers for conveyancing which was in decline, while the demand from customers for criminal defence work was not in decline, or was not in much decline.

44. At paragraphs 68 and 69 of the claimant’s Submission, reference is made to various views as to whether criminal defence work was viewed as “man’s work”, as to whether undertaking civil work was regarded as “more female” and as to whether there was a view that men were “bringing in the bacon”. All such views reflect the claimant’s subjective perceptions, rather than providing helpful evidence on the question of whether or not the relevant treatment was affected, to a significant extent, by gender.

45. At paragraph 71 of the claimant’s Submission, it is suggested that the disparate profit percentages (paid to the claimant on the one hand and to the previous male salaried partners on the other hand) “… constitute evidence of gender differentiation on the part of Mr Rice”. In our view, they constitute no evidence that gender was a reason for the differentiation. And they do not help us, in determining whether or not gender was a significant factor in the circumstances of this particular case, because there are too many potential non-sexist variables. As Mr Wolfe points out (at paragraph 50 of the respondent’s Submission) the claimant never made an issue about her remuneration as a salaried partner, as compared with that which was paid to Mr Broderick and to Mr Morrison, until she submitted her evidence in these proceedings. And there are potentially a whole range of non-sexist factors that could influence the respective profit shares of partners within any one legal firm, such as experience, fee-generating capacity, the nature of the work, and different weights of responsibilities. (See paragraph 50 (a) of the respondent’s Submission).

46. Why did the respondent put pressure on the claimant to carry out PACE work? It seems to us that the answer to that question is clear. He did so because the bottom had fallen out of the conveyancing market, and the conveyancing market was the area in which the claimant had, over many years, been mainly engaged.

47. Why did the relevant interactions, between the respondent and the claimant, involve some intemperate conduct on the part of the respondent? In our view, the answer is clear. That conduct occurred because the respondent was concerned about the economic implications, for the firm, of the mismatch between the claimant’s then current areas of work and the available workload, and because he was frustrated because he (rightly) took the view that the claimant was not willing to “branch out” to any significant extent or for any significant period of time, into the field of criminal defence work.

48. When a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment. As Lord Nicholls stated at paragraph 11 of Shamoon:

“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 of 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”.

49. Furthermore, the unreasonableness of the treatment complained of is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was, or was not, accorded on a proscribed ground. See Bahl v Law Society [2004] IRLR 799.

50. Article 63A of the 1976 Order is in the following terms:

“(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 [has committed an act of unlawful discrimination or is to be treated as having committed such an act], 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”.

51. As was pointed out at paragraph 57 of the judgement in Madarassy v Nomura International plc [2007] IRLR 246, the phrase “could … conclude …” (in the context of the Great Britain equivalent of Article 63A of the 1976 Order) means “a reasonable tribunal could properly conclude”.

52. As was implicitly noted, in the context of Article 63A, at paragraph 23 of the judgement in Nelson v Newry and Mourne District Council [2009] NICA 24, a tribunal “could” not, apart from that Article, properly conclude, even in the absence of adequate explanation, that the respondent has committed an unlawful act of sex discrimination, or has to be treated as having committed such an act, unless there is prima facie evidence that such discrimination has been carried out (either by the respondent or by someone for whom the respondent has secondary legal liability).

53. Accordingly, in this case, even if the treatment was detrimental treatment within the meaning of the 1976 Order (and even if, therefore, we are wrong in the conclusions which we have set out above in respect of detriment), the position is as follows. Even if we assume that there is no “adequate” explanation, the claimant’s claim for sex discrimination has to fail, because there is no prima facie evidence that any of the conduct complained of was affected to a significant extent by the relevant prohibited ground (the ground of the claimant’s gender).

54. In arriving at that conclusion, we have taken account of all our findings of fact, and not just those conclusions which have been set out in the immediately preceding paragraphs above.

The law and our conclusions (age discrimination)

55. In the claimant’s Submission, it is asserted that the age discrimination claim is one of indirect age discrimination, contrary to Article 3(1) of the 2006 regulations. As is indicated at paragraph 80 of that Submission, indirect age discrimination requires the following:

(a) A factor, which must be a provision, criterion or practice must be identified.

(b) The identified factor must cause disproportionate disadvantage to persons of a certain age;

(d) The application of the factor must not be justifiable”.

56. We generally agree with the main thrust of that analysis.

57. According to paragraph 81 of the Submission, a discriminatory practice can include a discretionary management decision which relates only to the claimant and which does not relate to others. According to paragraph 82, there is no reason why a series of acts and/or omissions by a respondent cannot form a “practice” for the purposes of the 2006 Regulations.

58. Paragraph 83 of the claimant’s Submission goes on to purport to apply those principles to the facts of this case, in the following words:

“In this case the practice is the alleged pressure that was brought to bear on the Claimant by reason of her higher salary in the particular circumstances of

JJ Rice and Company in December to February 2009. It is alleged that because criminal law was more remunerative and conveyancing had become quite unremunerative (making criminal law comparatively much more remunerative) there was tension in relation to the Claimant’s salary because (a) Mr Rice did not think the claimant deserved her salary and (b) the other employed solicitors were practising significantly in criminal law which yielded high fees but were not enjoying such an income. The claimant’s position in the firm was subjected to targeting in the form of criticism, sarcasm, removal of duties, suggestions of closure and redundancy and pressure to do criminal law/PACE rota, or in the alternative come up with proposals. It was all directly related to her salary”.

59. According to this argument, the position was as follows. The claimant got a higher salary than the other employed solicitors in the firm. She was older than those other employed solicitors. People who are older tend to get higher salaries in solicitors firms. Therefore, it is argued, the respondent’s allegedly detrimental treatment of the claimant constituted indirect age discrimination.

60. That argument is based upon the proposition that the respondent would have treated the claimant differently if she hadn’t been earning a relatively high salary. However, we are satisfied that the respondent would have acted in exactly the same way as he did act in this case, if the claimant had been earning no more than most of the firm’s assistant solicitors. Accordingly, this argument fails on that ground alone.

61. In any event, as already noted above in the context of the sex discrimination claim, we are satisfied, on balance, that the treatment accorded to the claimant did not constitute detrimental treatment within the meaning of the age discrimination legislation. (The definition of detrimental treatment, in the context of the age regulations, is, for practical purposes, identical to the definition of detriment in the context of the sex discrimination legislation).

The law and our conclusions (victimisation discrimination)

62. It is agreed between the parties that, by lodging a grievance, the claimant carried out a protected act, in the sense that term is used within the context of the 1976 Order’s definition victimisation discrimination.

63. In deciding whether or not there was less favourable treatment, with whom is the comparison to be made? That question was addressed in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065. In Khan, the claimant was a police officer who had made an industrial tribunal claim of racial discrimination. That claim had been brought against the Chief Constable. Against that background, the Chief Constable refused to provide him with a reference. The claimant alleged that this refusal constituted less favourable treatment by reason that he had brought the industrial tribunal claim. The respondent in Khan argued that, in determining whether there had indeed been less favourable treatment, the correct comparison was with the treatment accorded to other persons who had issued proceedings against the Chief Constable under other statues. It argued against a comparison with the treatment which would have been accorded to those who had issued no proceedings at all. However, the House of Lords judgements in Khan make it clear that the latter view was rejected by the House. Accordingly, Khan is clear authority for the proposition that the relevant comparison (the comparison to be made in the context of a victimisation discrimination claim) is a comparison between the treatment accorded to the claimant (who has done the relevant protected act) and the treatment that has been, or would have been, accorded to other employees (who had not done a protected act); and that no other features need to be factored into the comparison.

64. Accordingly, in comparing the treatment accorded to the claimant in this case (the withholding of sick pay other than the statutory sick pay which the respondent was obliged to pay in any event), a comparison has to be made with the treatment which would have been accorded to a hypothetical salaried partner, who had carried out years of diligent service, who then had to go on sick leave, and who had never taken any grievance of any kind against the respondent.

65. We have decided that the withholding of occupational sick pay constituted an unlawful act of victimisation discrimination contrary to the 1976 Order. We have so decided because:

(1) We are satisfied that the claimant has established facts which, in the absence of an adequate explanation, constitute prime facie evidence that the relevant act was indeed an act of unlawful victimisation discrimination.

(2) The respondent has not discharged the onus of proof which Article 63A imposes upon him.

66. The claimant had carried out many years of diligent service for the respondent. She had rarely been sick during all those years. Then she fell sick. Even though she was a salaried partner, the respondent immediately took steps to ensure that she would not be paid more than the minimum which he was obliged, under the general law (the statutory sick pay legislation), to pay to her. The respondent did this, even though he knew that the claimant was off because of psychological ill-health. And he did this even though he had in the past explicitly agreed, through contract, to pay at least one salaried partner up to three months contractual sick pay in the event of that partner becoming sick. The background to that act was that, throughout many years beforehand, the respondent had been decent and reasonable with the claimant, in all his dealings with her, in his capacity as her employer. Furthermore, the alleged act of retaliation occurred nearly immediately after the protected act was carried out.

67. In our view, the combination of facts and factors set out in the last preceding paragraph provide prima facie evidence that the relevant treatment constituted less favourable treatment (in the relevant sense) which was accorded to the claimant by reason that she had carried out the relevant protected act.

68. We turn then to the respondent’s explanation. We find that explanation to be unsatisfactory.

69. The respondent’s first attempt at an explanation was provided at paragraph 15 of the respondent’s witness statement in these proceedings. In that paragraph, the respondent made the following points:

“In relation to sick pay, our sick pay scheme was drawn up by [the claimant] and applied equally to all staff members, including solicitors, secretaries and any additional staff. As I understood it our contractual situation covering all staff with statutory sick pay only to be paid. There was no basis for her to be given full pay while she was off sick”.

70. That paragraph fails to adequately address the true factual situation. First, the firm had no “sick pay scheme”, because, as late as the spring of 2009, the firm had no comprehensive written details of how staff would be treated in the event of them being sick; and details of any sick pay entitlements, or as to the limits of any sick pay entitlements, had not even been orally communicated to most staff. The claimant had not drafted any sick pay scheme. Instead, in her administrative role, she had arranged for the statutory sick pay legislation to be implemented. How could the sole principal of a business, especially a principal who was an experienced solicitor, only “understand” what the contractual sick pay “situation” of his staff was? Surely he should have known? Indeed, we are satisfied that he must have known. According to paragraph 15 of the respondent’s witness statement, “there was no basis” for the claimant to be given full pay while she was off sick. However, compassion, gratitude for past services, and good industrial relations practice, would each provide such a basis. Furthermore, a precedent had been provided by the contractual entitlement of a previous partner (Nigel Broderick), whose written contract had explicitly provided that he would be entitled to his full pay for the first three months of any period of sickness. We note that, in his witness statement, the respondent did not address the Boderick sick pay entitlement issue, even though this had been implicitly referred to in the witness statement which the claimant had lodged in these proceedings.

71. Furthermore, on one occasion, despite the alleged lack of contractual entitlements, the respondent had paid Mr Hugh Leslie contractual sick pay over and above the amount of Mr Leslie’s statutory sick pay entitlements.

72. In his oral testimony, in the course of cross-examination, the respondent did not limit himself to the explanation which was contained in paragraph 15 of the witness statement. In the course of answering a line of questioning in respect of the payment of sick pay to Mr Leslie, he told us that he had exercised discretion in favour of Mr Leslie, and that the same discretion was not exercised in favour of the claimant and that he didn’t want to “make the pitch more difficult” for the claimant in coming back. He also told us that he was “trying to stimulate her to come back to me”. That, according to the respondent’s oral testimony, was why he was not paying any occupational sick pay to the claimant.

73. We agree with some of the criticisms which have been made, in the course of the claimant’s Submission, in the present context. It is not clear to us why the “pitch” would have been made more difficult for the claimant if she had been given pay during the first three months of her absence.

74. The implication of the respondent’s testimony, when he suggested that he was “trying to stimulate her to come back”, is that he had had doubts about the genuiness of her illness and, that he had seen her illness as possibly amounting to a ploy, at either a conscious or sub-conscious level, to increase the pressure which had already been exerted upon him through the lodging of the grievance.

75. However, it has never been explicitly asserted in this case that the claimant’s illness was not genuine, or that the respondent had ever taken the view that it was not genuine. The implication that there was a doubt about the genuineness of the illness (whether a well founded doubt or not) is an implication which was made very late in the day. It is a self-serving implication, because the respondent, as a solicitor, will well know that non-discriminatory bad behaviour on his part could provide a “good” explanation for prima facie discrimination (provided, of course, that the bad behaviour is genuinely non-discriminatory). In that connection, we have reminded ourselves that self-serving accounts are often true, but that the self-serving nature of an account is something to which one can have regard in arriving at an overall assessment as to the reliability of that account. In any event, even if one were to accept the accuracy of the “stimulate” explanation, such an explanation is not inconsistent with there also being, alongside it, a retaliatory reason for the withholding of the additional sick pay. (As already noted above, the retaliatory reason will still meet the relevant requirement of the victimisation discrimination definition, even if it is not the main reason for the according of the relevant treatment).

76. In the respondent’s Submission, the point is made that it is agreed between the parties that, apart from the question of sick pay, there were some acknowledged “other” differences (between the terms of the employment relationship between

Mr Broderick and the respondent on the one hand and the terms of the employment relationship between the claimant and the respondent on the other hand), for example in relation to the percentage of profit-share. However, as noted elsewhere in the respondent’s Submission, the extent of a salaried partner’s share in the profits must be highly sensitive to a number of variable factors, such as the fee-earning capacity of a particular partner, whether or not there is a need to provide incentives in order to prevent that particular partner from leaving, and the prevailing economic state of the firm, and of the legal market, at the time each particular partnership agreement was being finalised. On the other hand, entitlements to sick pay reflect more generalised factors, such as a particular individual’s length of service in the firm, and her status within the firm (whether as an employee or a partner).

77. In determining this aspect of the case in favour of the claimant, we arrive at no conclusions, and we need to arrive at no conclusions, on the question of whether or not the claimant was, or was not, contractually entitled to three months sick pay. Even in the absence of any contractual entitlement, considerations of decency, and considerations of good industrial relations practice, dictated that (to paraphrase the form of words used by him in the course of his oral testimony) the respondent should exercise his discretion in her favour, as regards sickness pay, rather than exercising his discretion “against” her.

78. The claimant had never previously had any lengthy periods of illness, during the entire course of her lengthy period of employment with the firm. However, she had been “sick for a day here or a day there” and had always received her full pay during those periods. We accept, of course, that Ms Doris Sherlock was not paid anything other than her statutory sick pay when she was off sick during a lengthy period in March and April 2006. But Miss Sherlock was an assistant solicitor, not a salaried partner, and she did not have the very lengthy service record which the claimant had.

79. We are satisfied that, at the time the respondent decided not to make any payment to the claimant in respect of occupational sick pay, the claimant had not asserted rights under or by reference to the age discrimination legislation. Accordingly, we conclude that, by that time, she had not done any “protected act” in the sense in which that term is used in context of the victimisation discrimination definition in the 2006 Regulations. That conclusion is fatal to the claimant’s 2006 Regulations victimisation discrimination claim.

Remedies

80. Article 65 of the 1976 Order contains a list of Orders and other remedies, at paragraph (1) of that Article. Article 65 provides that, where an industrial tribunal finds that a complaint of victimisation discrimination is well-founded, the tribunal must make such orders and/or recommendation as it considers just and equitable. If the tribunal decides to make an Order requiring the respondent to pay compensation, the amount of any such compensation is to correspond to the damages which the respondent could have been ordered (by a county court) to pay to the claimant if the claim had been a goods, facilities or services discrimination claim.

81. In our view, in the circumstances of this case, the types of damages potentially recoverable are the following: (1) compensation for injury to feelings and (2) compensation for financial loss.

82. Having carefully considered the medical evidence in this case, we are not satisfied that the claimant has sustained personal injuries as a result of the withholding of occupational sick pay. In our view, the claimant does have a serious psychological illness, which arose within the context of her concerns, frustration and despair, regarding the process and outcome of her interactions with the respondent regarding possible changes to her workload. This was an established illness by the time the respondent carried out the act of victimisation discrimination. In our view, there is insufficient evidence to support any proposition that the extent of the claimant’s illness, or the duration of that illness, or the symptoms of that illness have been worsened as a result of that act of discrimination.

83. In the course of this case, reference was made to the case of Vento v Chief Constable of West Yorkshire Police [2003] ICR 318. The parties both agreed that the “Vento” bands, as updated by a more recent Employment Appeal Tribunal judgement, provide an appropriate framework for consideration of the assessment of compensation for injury to feelings in this case. As updated, the three Vento bands are as follows:

(1) £500 to £6,000 (formerly £500 to £5,000);

(2) £6,000 to £18,000 (formerly £5,000 to £15,000);

(3) £18,000 to £30,000 (formerly £15,000 to £25,000).

84. The claimant was very upset about the discussions which she had with the respondent and with the outcome of those discussions. The need to leave her job upset her deeply. Against that background, the respondent’s refusal to pay more than the irreducible minimum of statutory sick pay undoubtedly caused her further distress, and caused her further upset, but it is difficult to compartmentalize that aspect of the claimant’s upset and distress, and to differentiate that aspect from the upset and distress which the claimant felt within the context of (1) of the threat (as she saw it) of a change of workload, (2) the breakdown of her working relationship with the respondent, and (3) her enforced departure from work.

85. In our view, the victimisation discrimination which occurred in this case falls roughly in the middle of the first band of Vento. Accordingly, we award £3,000 in respect of injury to feelings.

86. The claimant is also entitled to recover the financial loss which she sustained as a result of the failure to pay her sick pay, during the first three months of her illness, other than statutory sick pay. (In arriving at the latter conclusion, we have taken account of the fact that the respondent thought it appropriate to allow Mr Broderick a contractual entitlement to receive his full pay for the first three months of any illness. Accordingly, we think that the claimant would have received full pay during the first three months of her illness if no act of victimisation discrimination had occurred).

87. The claimant asserts, and the respondent accepts, and we determine, that the amount of any financial loss sustained by the claimant, by reason of the withholding of occupational sick pay, amounts to the difference between the net salary (at £635 per week) which the claimant would have received if occupational sick pay had been given to her, throughout a period of three months, less the amount of statutory sick pay (£79.15 per week) actually paid to her during that period. Accordingly, the principal amount of financial loss sustained by the claimant is £7,226.

88. We have noted the provisions of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 [SRNI 1996/581]. We are not of the opinion that, in relation to the relevant award, there are circumstances which have the effect that serious injustice would be caused to the respondent by awarding interest in respect of the entire award, or in respect of the entire period.

89. Applying the rules which are contained within the 1996 regulations, the position is as follows. First, in respect of the injury to feelings aspect of this award, we award interest at 8% per annum on £3,000, from date of injury to date of calculation. That amounts to £408.

90. Secondly, we award interest at 8% per annum in respect of the financial loss element of the claimant’s compensation, throughout the duration of half of the period from the date of the act of discrimination until the date of calculation. That amounts to £385.

91. Therefore, to allow for the interest which is referred in the last two preceding paragraphs, the overall award must be increased by £793. The overall award then becomes £11,019 (£3,000 plus £7,226 plus £793).

The grievance issue

92. According to the respondent, this tribunal is deprived of jurisdiction to entertain the claimant’s claims of victimisation discrimination, because she did not set out a grievance in writing about such a matter and sent it to the respondent, either 28 days before the presentation of these proceedings, or at all.

93. In the context of this issue, the relevant statutory provisions are Article 19 of the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. Article 19 has to be read in conjunction with the 2004 Regulations.

94. The effect of Article 19(2) and Article 19(3), in the context of this case, was to impose a requirement on this claimant to set out her victimisation complaints (her complaints that the respondent had unlawfully victimised her by withholding occupational sick pay) in writing, and to send that written grievance to the respondent.

95. We are satisfied that those Article 19(2) and (3) requirements have not been complied with in this case. However, that is not the end of the matter. The next question is whether or not the claimant’s failure to comply with those requirements deprives this tribunal of jurisdiction.

96. In considering that issue, we have taken full account of the arguments which are set out in the Additional Submissions of the parties.

97. We are satisfied that this tribunal is not deprived of jurisdiction, in relation to the victimisation discrimination complaints, unless either of the situations contemplated in sub-paragraphs (a) and (b) of paragraph (6) of Article 19 exists.

98. Article 19(6) is in the following terms:-

“(6) An industrial tribunal shall be prevented from considering a complaint presented in breach of paragraph (2) to (4), but only if –

(a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or

(b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with these provisions in accordance with regulations under Article 9 of the Industrial Tribunals Order (industrial tribunal procedure regulations)”.

99. We are satisfied that Article 19(6)(a) does not deprive this tribunal of jurisdiction to entertain the complaints of discriminatory withholding of sick pay in this case, against the following background and for the following reasons.

100. The breach is not apparent to the tribunal “from the information supplied to it by the employee in connection with the bringing of the proceedings”, because, at paragraph 5 of the claim form, the claimant confirmed that she had put her complaint in writing to the respondent and had allowed at least 28 days between the date she sent her complaint to the respondent and the date she was sending her claim form to the Office of the Industrial Tribunals.

101. Accordingly, this tribunal will only be deprived of jurisdiction to entertain the victimisation claims if the tribunal is satisfied of the breach as a result of the employer “raising the issue of compliance … in accordance with regulations under Article 9 of the Industrial Tribunals Order …” So has the respondent raised the Article 19(6) issue “in accordance with”industrial tribunals regulations”?

102. In our judgement, that question must be answered in the negative. In arriving at that conclusion, we have taken account of the line of Employment Appeal Tribunal case law which includes DMC Business Machines plc v Plummer UKEAT/08881/06, Arnold v Sandwell Metropolitan Borough Council [2008] UKEAT0332/08, Glasgow City Council v Stefan Cross Claimants [2009] UKEAT0007/09 and Dandpat v The University of Bath [2009] UKEAT0408/09.

103. As Elias P commented, in Arnold (at paragraph 16), the underlying purpose of the statutory grievance procedure provisions is to seek to encourage conciliation and to avoid the disputes having to be resolved by a tribunal, and the provisions of the relevant legislation are to be construed having that underlying purpose in mind.

104. We have noted the comments of Lady Smith in the Stefan Cross Claimants case. In our respectful opinion, the view of the law which was set out by Elias P in Arnold (at paragraph 84 of the judgement), on the proper construction of the requirements of the Great Britain equivalent of Article 19(6) (b), is the true position. At sub-paragraphs (2) and (3) of paragraph 84 of Arnold, Elias P commented on the requirements of the GB equivalent of Article 19(6)(b), in the following terms:

“(2) In my judgement, since it is a defence to the action, it should in the normal way be raised in the response form: see rule 4(3) [of the Employment Tribunal Rules] which requires an employer to identify all the grounds on which he wishes to rely to defend the claim. If it has not been raised in that way then in my judgment any later attempt to raise it ought to be by way of an amendment to the response. I note that some observations of Underhill J in Plummer v DMC Business Machines plc … support that view.

(3) Even if that is not so, and the point can also be raised by way of an application under rules 10 and 11 [of the Employment Tribunal Rules] … there would still – as Ms Ellenbogan also accepts – be a discretion conferred on the tribunal whether or not to allow the application. In my judgement any such discretion would have to be exercised in precisely the same manner as it would with respect to a proposed amendment of the response. It would make no sense to adopt different principles for regulating what is essentially the same discretion depending upon which procedural route was adopted. Accordingly, nothing turns on the first question in any event.”

We note that those observations may not have been part of the ratio decidendi, but the observations nonetheless constitute the considered view of Elias P.

105. Against that background, we are satisfied that the respondent will only have validly raised the issue of non-compliance (in the manner envisaged in Article 19(b) of the 2003 Order), in accordance with the industrial tribunals procedures regulations, if we now allow him to do so (either by granting him leave to amend his response, or simply by permitting the point to be pursued).

106. We have decided not to allow the respondent to do so, against the following background and for the following reasons.

107. The question of whether he should be allowed to do so is a question which has to be considered in light of the principles, relating to amendment applications generally, which were set out in Selkent Bus Company v Moore [1996] IRLR 661.

108. In broad terms, the Selkent test involves balancing the injustice and hardship to the claimant (which would be created if a particular amendment application is granted) and to the respondent (which would be caused if the amendment application is refused).

109. As part of that test, it is necessary to consider the prejudice, if any, which has been sustained by the claimant on account of the lateness of the raising of the compliance issue. In our view, the failure on the part of the respondent to raise the issue in a timely fashion is a failure which might well have the potential to prejudice the claimant.

110. In this case, the respondent did not raise the question of non-compliance in its response form (entirely understandably, because the solicitor for the respondent does not seem to have appreciated, or agreed, that the complaint did include any claim of victimisation discrimination). The question of non-compliance, in the context of the victimisation discrimination claims, was not raised by the respondent until many months after the commencement of the proceedings. If the issue had been raised at an early stage, the claimant would have been able, “as an insurance policy”, to lodge a fresh grievance and to subsequently lodge a new industrial tribunals claim form. However, because of the relative lateness in taking the grievance point, the position is that, if we were now to grant this respondent leave (so as to allow an explicit objection on the grievance point), the outcome would be that the claimant could not litigate her victimisation complaint in the course of these proceedings, and if she wished to pursue her victimisation discrimination complaints, she would have to do so in the course of freshly brought proceedings, and any such new proceedings would be commencing at a time long after the expiration of the relevant primary limitation periods.

111. We note that if we were to grant leave (or allow the grievance point to be raised), the respondent would have a cast-iron defence to the victimisation claims, in these proceedings, but that that defence would not relate to the merits of the claims. We also note that the availability of that defence would not further the policy of the dispute resolution legislation (which, after all, is designated to facilitate the internal resolution of disputes).

112. We are satisfied, that if the claimant had complained of victimisation discrimination within a written grievance, at least 28 days prior to the commencement of these proceedings, there would have been no internal resolution of that dispute, so, apart from compliance with the law, no other useful purpose would have been served if the claimant had presented a proper written grievance about her victimisation claims.

113. In view of the conclusions which we have reached in respect of the principles emerging from the Plummer line of authority, we do not consider it to be necessary to address the other arguments which have been made, on each side of this case, in relation to the grievance issue.

Interest

114. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 28 June 2010-2 July 2010, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McEvoy v John Joseph Rice [2010] NIIT 06564_09IT (30 September 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/06564_09IT.html Cite as: [2010] NIIT 6564_9IT, [2010] NIIT 06564_09IT

Industrial Tribunals Northern Ireland Decisions