A v B [2014] NIIT 413_13IT (21 January 2014)

THE INDUSTRIAL TRIBUNALS

CASE REF: 413/13

CLAIMANT: A

RESPONDENT: B

Certificate of Correction

In this decision issued on 21 January 2014, ‘Date and place of hearing’ on Page 10 should read:-

23 – 24 September 2013, Belfast

Chairman:

Amendments recorded in Register and issued to the parties on:

____________________________

for Secretary

THE INDUSTRIAL TRIBUNALS

CASE REF: 413/13

CLAIMANT: A

RESPONDENT: B

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of constructive dismissal, sex discrimination, sexual harassment and victimisation are well-founded. In the absence of agreement between the parties on the amount of compensation, the matter will be re-listed for hearing.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Smyth

Mrs T Madden

Appearances:

The claimant was represented by Ms C Devlin, Barrister-at-Law, instructed by Louise McShane & Company, Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Babington & Croasdaile, Solicitors.

1(i) The claimant, A, by a claim form presented to an industrial tribunal on 21 February 2013 alleged that she had been constructively dismissed, discriminated against on the ground of her sex, sexually harassed and victimised by her employer, B.

The issues for determination by the tribunal were agreed at a Case Management Discussion held on 14 May 2013, and are set out, in full, together with a Record of Proceedings of that Case Management Discussion, at an Appendix to this decision. In relation to the alleged sex discrimination, there is a time-issue.

(ii) In order to determine this matter, the tribunal heard evidence from the claimant, A, and from the respondent, B, and both of his parents. It also had regard to the documentary evidence adduced, and referred to, by the parties.

The tribunal was faced with a situation where it was effectively one person’s word against another’s in relation to the incidents which allegedly took place. It was acknowledged by the respective counsel that the outcome of the case largely depended on our assessment of the credibility of the claimant and the respondent.

We have not approached this task lightly, for we are conscious of the dangers of making findings of fact on the basis of evidence which is largely uncorroborated, notwithstanding the absence of any legal requirement of corroboration. Ultimately, the tribunal was of the view that it preferred the evidence of the claimant to that of the respondent.

While two members of the tribunal did have some reservations that she may have taken the opportunity to embellish or exaggerate some of her allegations, we all nonetheless found it improbable, having regard to the specific nature of some of those allegations, and taking them all in their entirety, that she made up her account of what took place in any material respect. She would also have to be an extremely devious and malicious person to concoct some of the allegations she made. We also have to say that we found some of the evidence of the respondent completely disingenuous.

(iii) The respondent unfortunately suffers from cerebral palsy and it was agreed at the Case Management Discussion on 14 May 2013 that his mother would act as an intermediary. It was explained to her at that Case Management Discussion that her role was to assist the respondent in understanding the questions and providing answers, but that the answers to any questions must be his answers and his evidence must be his evidence. Notwithstanding this adjustment, it was clearly a difficult and stressful experience for the respondent in giving evidence. In this regard we want to emphasise that we did not take into account his demeanour, or any hesitation on his part in his evidence, in assessing his credibility.

(iv) We found the facts set out in the following paragraphs.

2(i) The claimant started work with the respondent sometime in March 2005 and remained in employment with him until she resigned on 23 November 2012.

Her last day at work was 4 October 2012 and from then until 23 November 2012 she submitted sick lines to cover her absence.

She initially started work for the respondent on a part-time basis. She was employed as a personal assistant/secretary in his architect’s office. As her employment progressed, she undertook surveys for him. She had also taken various examinations and, in her words, was working hard towards acquiring qualifications as a architectural technician.

The claimant and the respondent were the only persons working in this office. That is where most of the alleged incidents giving rise to these claims took place, and that is why the tribunal was faced with the difficulty in determining the facts to which we have made reference at Paragraph 1(ii) above.

(ii) The claimant and the respondent had known each other from their childhood days – their respective grandparents lived beside each other, and at work they initially (and subsequently, albeit periodically) got on well, and would have considered themselves to be friends. The respondent, as mentioned, had cerebral palsy which affected his speech and balance, and although he prided himself on his independence (something which the claimant acknowledged) circumstances dictated that there was inevitably some degree of dependence in the relationship.

Unfortunately, the relationship between the parties deteriorated as time went on.

3(i) Around 2008 the respondent asked the claimant to wear a uniform at work, which he would pay for, at least as far as the initial outlay was concerned. We are satisfied that he was insistent about this, notwithstanding there were only the two of them in the office, that in practice few clients visited the office, and that a fair amount of the work took place outdoors. We use the word ‘uniform’ loosely here.

Essentially we are talking about smart clothing, to give an appearance of professionalism. The claimant had no great issue about this. The respondent wanted her to wear a blouse and skirt, whereas she would have felt more comfortable in, and would have preferred, trousers. Ultimately both trousers and skirt were bought.

(ii) We find that the respondent developed, and had an obsessive interest in the clothing the claimant was wearing, particularly in relation to the ‘uniform’. This obsession verged on the bizarre in some respects and persisted throughout the course of her employment.

When the clothing arrived, he in effect wanted her to model it in front of him, he expressed a preference for her to wear skirts rather than trousers, he had views on the desirable length of her skirts (preferring them to be worn above the knee rather than below), he commented on the wearing of a vest under a blouse, and the denier of her tights (preferring low) and asking her to wear skin-coloured as opposed to dark tights.

The claimant felt most uncomfortable about all of this, though she did not raise a grievance or complaint.

(iii) The respondent also frequently gave the claimant what she described as ‘the silent treatment for days on end’. On one occasion, at least, this was linked to her clothing in that he was annoyed that she did not wear a coat which he had said he liked.

(iv) The respondent engaged the claimant in discussion about intimate details of her private life, which we do not set out here. He also made inappropriate comments of a sexual nature, though we accept that he did not indulge in the latter conduct with any degree of frequency.

(v) He leered at the claimant at her place of work, and asked her to lift down stationery which was stored on the highest shelf in the office.

(vi) On occasions he touched her inappropriately.

4 The respondent told the claimant that he had strong personal feelings for her and he expressed these feelings in writing, in a letter which he wrote to her in March 2012. The claimant made it clear that these feelings were not reciprocated. In his evidence, the respondent denied that he had any romantic feelings for the claimant, as opposed to feelings of care and affection for her as a friend. However, this is not consistent with the language of the letter where he spoke about ‘fancying’ her, and the fact that after she got the letter he pressed her to discuss its contents. The reality is that we found his evidence and explanations about this matter disingenuous, and it strengthened our view that he had an obsessive attitude towards the claimant, and tended to support her allegations against him.

5 In April 2012 the claimant had a discussion with the respondent about the issues between them. She decided to give work another chance. She was very reluctant to give up her job because of the difficulties of finding another post in the current economic climate. This also has to be seen against a volatility in the respondent’s conduct, and in June that year she still believed that things would improve. However, as it turned out, that was not to be.

6(i) On 18 September 2012 she and the respondent were in Derry on business. When walking together through the Foyleside Shopping Centre the respondent slapped her on the bottom. In his witness statement the respondent denied this allegation, saying:-

“It is physically impossible for me to slap.”

However, in evidence before the tribunal he changed his account and attributed any physical contact to an involuntary movement of his hand caused by his condition. We do not find this subsequent account credible in the light of his previous denial.

(ii) On 1 October 2012, the respondent asked the claimant to go up into an attic roof space to look for a folder. Access to the roof space was by way of an extendable ladder. The respondent stood at the bottom of the ladder and looked at the claimant as she went up and down. On this occasion she was wearing a skirt with a length just above the knee. It began to slip upwards around her backside and she asked the respondent to look the other way. This caused him to become very angry.

(iii) Subsequently, at work on 4 October 2012, there was a discussion between the claimant and the respondent about the ladder incident. In their witness statements and at the hearing each accused the other of being angry and aggressive, but we accept the evidence of the claimant that it was the respondent who behaved in this manner. The claimant asked the respondent if she could go home, he permitted her to do so, and she never returned to work after that date, submitting sickness absence forms up until her resignation on 23 November 2013.

(iv) Almost immediately after the claimant left work on 4 October 2012 the respondent instigated disciplinary proceedings against her. On that date he wrote to her alleging that he had felt threatened and intimated by her behaviour and he invited her to a meeting to be held on 10 October 2012 to discuss their working relationship. On 9 October 2012 he cancelled that meeting, and suspended her on full pay pending an investigation into her conduct. The respondent made the point that, in the claimant’s medical notes, the only reference to ‘sexual’ harassment was one made on 9 October 2012, the day she received her suspension letter, and it was only from then she made such an allegation. However, her medical notes contain more general references to bullying and harassment. Subsequently on 18 October 2012, he wrote to her giving further details of her alleged misconduct, and inviting her to a disciplinary meeting on 24 October 2012.

The claimant informed the respondent that she would not be attending, and submitted further sick lines.

(v) We are satisfied that the respondent invoked the disciplinary procedure against the claimant in an attempt to draw attention away from his own behaviour – a point which the claimant made in her subsequent letter of resignation.

7(i) That resignation letter was sent on 22 November 2012. We set it out in full below:-

“Dear B

Resignation

I regrettably write to inform you that I am resigning from my position as PA/secretary with immediate effect.

I have for the past number of years now been subjected to inappropriate comments and requests from you as regards my clothing to the extent that I have felt harassed and humiliated.

On Thursday 4 October you engaged in a tirade of verbal abuse towards me in a most aggressive manner which I found demeaning, terrifying and humiliating. This arose out of what I was wearing and the fact that I had asked you on Monday 1 October 2012 to step aside from the bottom of a ladder I had climbed to allow me to come back down.

Your behaviour toward me in the workplace has left me feeling intimidated humiliated and harassed to the detriment of my health and you have now commenced disciplinary proceedings against me citing that I have been harassing you. I believe you are attempting to use the disciplinary process as a means of deflecting attention from your own behaviour and to intimidate and harass me further.

As a result of all of the above I feel that I cannot return to the workplace and have no option but to resign. Your behaviour and attitude toward me has resulted in a complete erosion of the trust which is essential to any working relationship. I believe that if I were to participate in the disciplinary process or return to the workplace that you would continue to subject me to harassment.

Yours sincerely

A.”

(ii) We find that the claimant did not leave her work because she wished to avoid the disciplinary proceedings which had been started against her. Rather, it was because these proceedings had not been commenced in good faith and that was part of the combination of factors which led her to resign from her employment.

(iii) Her resignation letter was acknowledged by the respondent’s solicitors on 5 December 2012. They maintained, on the respondent’s behalf, that it was the claimant who had been abusive to him, and not the other way round. They also advised her to contact the respondent directly if she wished to avail of a grievance procedure, something she did not do.

8(i) We now set out briefly the relevant applicable law. We preface this by stating that it is accepted that the claimant’s claim of constructive dismissal is in time. This is not accepted in relation to the claims under the Sex Discrimination (Northern Ireland) Order 1976, (We deal with this at Paragraph 12 below.)

(ii) In relation to a claim of constructive dismissal, the tribunal reminds itself that in order to establish constructive dismissal, an employee must show that there has been a fundamental breach of the contract of employment by the respondent, that the employee accepted that breach and resigned because of it and that he or she did not waive the breach, and thus affirm the contract of employment.

It is for the employee to establish these matters.

(iii) Where there has been a potential breach of the implied term of mutual trust and confidence, it has been suggested that the breach will ‘inevitably’ be fundamental. See : Morrow v Safeway Stores PLc [2002] IRLR 9 at 14 per Ms Recorder Cox QC. If we accept the claimant’s evidence, there can be no doubt that such a fundamental breach has taken place.

As far as causation is concerned there may be more than one reason why an employee resigned his or her position, and in such circumstances, the tribunal must decide whether the repudiatory breach played a part in the resignation. Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which among them is the effective cause. (See : Wright v North Ayrshire Council [2014] IRLR 4.)

9(i) In relation to claims under the Sex Discrimination (Northern Ireland) Order 1976, Article 76(4) thereof provides that they should generally be presented to an industrial tribunal within three months of the alleged act of discrimination. Article 76(5) provides that a tribunal may extend the time for bringing a complaint of, having regard to all the circumstances of the case, it is just and equitable to do so. The just and equitable ‘ground’ for extending time is wider than the ‘reasonably practicable’ ground found in relation to other employment rights such as unfair dismissal. However, time-limits are there for a purpose, and should generally be observed, and it is for a claimant to persuade a tribunal that it should exercise its discretion to extend time in her or his favour. (See : generally : Robertson v Bexley Community Centre [2003] IRLR 434 CA; Mills v Marshall [1998] IRLR 494 EAT.)

(ii) Articles 3 and 8 of the Sex Discrimination (Northern Ireland) Order 1976 as amended, make it unlawful to discriminate against a woman in the context of employment by treating her less favourably than one would treat a man in the same circumstances.

Article 63A sets out the now familiar provision found in anti-discrimination legislation providing that where a claimant proves facts from which a tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination, the tribunal must uphold the complaint unless the respondent proves that he did not commit that act.

Victimisation is covered by Article 6 of the 1976 Order. This form of discrimination applies where the claimant has performed a protected act, in this case the making of a grievance. The claimant must identify an appropriate comparator, and the doing of the protected act must be the cause of the less favourable treatment. The appropriate comparison is between the claimant and someone who has not done a protected act. See : Chief Constable of West Yorkshire Police v Khan [2007] ICR 2065 HL.

(iii) Article 6A of the 1976 Order, as amended, provides:-

“(1) For the purposes of this Order, a person subjects a woman to harassment if –

(a) he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect –

(i) of violating her dignity; or

(ii) of creating an intimidatory, hostile, degrading, humiliating or offensive environment for her … .”

Guidance for tribunals on the corresponding English provision was provided in Reed and Bull Information Systems v Stedman [1999] IRLR 299.

10(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlain Solicitors and Another v Emokpae, and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out in an Annex to the judgment in the Igen case, op.cit 269.270.

We therefore do not set it out again, but we have taken it fully into account.

(ii) In short, the claimant must provide facts from which a tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or fall an essential witness.

If the claimant does not prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must shown, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground. The tribunal must assess not merely whether the respondent had proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that (in this case) sex was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will expect cogent evidence to discharge that burden of proof.

(iii) Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer.

(See: Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International PLc [2007] IRLR 27; and Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25.)

(iv) These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24, to which we have had regard.

(v) Although we have kept the provisions relating to the burden of proof firmly in mind, this case, as we have pointed out at the outset of our decision, largely comes down to one person’s word against another’s, and we accept the claimant’s version of events.

11(i) As far as the allegation of constructive dismissal is concerned, we find she did not resign to avoid the disciplinary proceedings which the respondent had begun to initiate. As stated at Paragraph 7(ii) above, we are satisfied that these disciplinary procedures were not, in any event, taken in good faith but were a device by the respondent to gain the upper hand over the claimant following the incident with the roof ladder and her complaints about his behaviour. We think the initiation of disciplinary proceedings in the circumstances, and the overall manner in which it was done, was consistent with the respondent’s controlling behaviour.

(ii) The reason for the claimant’s resignation was the sustained nature of the harassment she had suffered over the years in the respondent’s employment, and the roof space incident was effectively the last straw as far as she was concerned. She could take no more.

(iii) Clearly, the behaviour of the respondent had been going on for a protracted period of time, and the issue arises as to why the claimant delayed in resigning from his employment. In other words, did she waive the breach of contract on his part? We are satisfied, having regard to the following matters, that she did not. The claimant and the respondent worked together in the office. There were just the two of them. Initially they had got on well, and the claimant clearly had sympathy for him because of his disability, notwithstanding his volatile nature. Even when their relationship deteriorated, she always hoped that things would improve, and indeed there were improvements on occasions.

There was also the consideration that their two families knew each other and that she was conscious of the potential upset her resignation would cause. Another factor which weighed with the claimant was her desire to obtain a qualification linked to her job. She worked in an area with traditionally high levels of unemployment, and she felt that without any relevant qualification, her job prospects were considerably lessened in the current harsh economic climate.

12(i) As far as the allegation of sex discrimination and sexual harassment are concerned, these depend largely on the same factual matrix as the claim of constructive dismissal, although there is an issue as to whether or not the former claims have been brought in time. The claim form was presented on 21 February 2013. The claimant alleges that there was a continuing series of acts, the last of which occurred on 5 December 2012. This alleged act of discrimination was the letter, already referred to, sent on that date to her by the respondent’s solicitors in response to her resignation letter.

That letter disputes the contents of the claimant’s resignation letter, and expresses surprise that she had not lodged a grievance. We find that the respondent’s solicitors’ letter cannot on any reasonable interpretation constitute an act of harassment or discrimination. It merely offered the claimant the use of a grievance procedure. It is convenient to record here that insofar as the respondent’s case is that, in the event of a finding of liability, we should reduce any compensation payable to the claimant on account of her failure to follow the grievance procedure, we reject that contention. It is unrealistic to expect the claimant to have taken part in, and submitted to, a grievance procedure which was effectively under the control of her harasser.

(ii) Consequently, it follows from this that the claims under the Sex Discrimination Order, as amended, are out of time. However, having regard to the factors which we have set out above at Paragraph 11(ii) when discussing the claimant’s delay in resigning, we consider it just and equitable to extend the time for bringing these complaints.

The claimant had also sought legal advice and advice from the Citizens Advice Bureau shortly after receiving the respondent’s letter in March 2012, and had been advised by the former, in her words, “to put her head down and see if [she] could last another 6 months or so until [she] at least finished [her] training”.

13(i) Overall in this case we are satisfied that there is evidence of a consistent pattern of behaviour on the part of the respondent towards the claimant, that he was a controlling person, and that the allegations she makes against him are well-founded. It was contended, in submissions on behalf of the respondent, that the specifics of all these allegations were not put to the claimant. However, we are satisfied that the gist of the fundamental and essential allegations were put to her, and that she had the opportunity to deal with them in her cross-examination.

(ii) We therefore find that the claimant was constructively dismissed, unlawfully discriminated against and harassed on the ground of her sex, and victimised, by the respondent.

14 In the absence of agreement between the parties, it will be necessary to hear further evidence on the issue of compensation in respect of the claimant’s claims.

Chairman:

Date and place of hearing: 23 – 24 November 2013, Belfast

Date decision recorded in register and issued to parties:

A P P E N D I X

(i) Record of Proceedings of a Case Management Discussion held on 14 May 2013

(ii) List of agreed legal and factual issues

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	Industrial Tribunals Northern Ireland Decisions
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Industrial Tribunals Northern Ireland Decisions