Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1470/16

 

 

 

CLAIMANT: Muire Sweeney Ahern

 

 

RESPONDENT: Western Health and Social Care Trust

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claims of unlawful discrimination by way of victimisation on the ground of her sex is dismissed as set out in paragraph 11 of this decision.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr J Barbour

Mrs G Ferguson

 

Appearances:

The claimant was represented by Mr D Ahern.

The respondent was represented by Ms S Bradley, Barrister-at-Law instructed by Directorate of Legal Services.

 

BACKGROUND

 

1. (i) This case was the subject of a Case Management Discussion on 30 September 2016, the record of which contains the following paragraphs:-

 

"I explained to the claimant's representative that the tribunal is a statutory tribunal with a very narrow focus. It does not have power to direct the reinstatement of the claimant as sought by the claimant. I also stated that the tribunal has no power to direct that " the dental therapist position in Enniskillen [be] retained for at least three days per week and (the claimant) be facilitated in moving position in the same manner other staff have been.

 

I stressed that as a statutory tribunal with a narrow focus, I did not have power to undertake a public enquiry into dental therapist provision in Enniskillen".

 

(ii) The case was then timetabled for hearing at a Case Management Discussion held on 8 December 2016, for 25, 26 and 27 April 2017. The hearing was scheduled to commence at 12 noon on 25 April 2017. The record of proceedings of the Case Management Discussion under the heading of "Timetable" contains the following:

 

"The parties should liaise and try to agree a timetable to ensure that the cross-examination of witnesses and closing submissions are completed within the allocated time. If the parties are unable to do so the Employment Judge will set the timetable with the parties at the outset of the Hearing".

 

(iii) It transpired, after the cross-examination of the claimant on the afternoon of 25 April 2017 and on the morning of 26 April 2017, that it was unlikely that the case would finish within the allocated time as the respondent had three witnesses to call. The claimant's husband, as her representative, was afforded considerable flexibility and time in accordance with the tribunal's overriding objective to complete his cross-examination of the respondent's main witness, Dr Grainne Quinn (Dr Quinn). Her evidence began at 13.57 pm on 26 April 2017, when she adopted her witness statement as evidence. The tribunal then afforded the claimant's representative until 3.28 pm on 27 April 2017 to complete his extensive cross-examination of this witness. The claimant's representative acknowledged that the tribunal should ignore the statement at paragraph 34 of the claimant's final written submissions that:-

 

"The claimant also outlined other unfair treatment in her witness statement, which due to time constraints it was not possible to put to Dr Quinn in cross-examination".

 

Mr Ahern was in fact afforded the opportunity of making an application to recall Dr Quinn but he declined to do so. His further oral submissions on
2 June 2017 relating to the claimant struggling with the legal aspects of the claim and to the fact that she did not have a legal representative prefaced a submission that on two occasions the claimant's representative sought to intervene on her behalf but was prevented from doing so. Again the tribunal carefully explored this matter and was satisfied that there was no real substance in what was being suggested. Both parties had had very considerable time to properly prepare their respective sides of the case.

 

(iv) The tribunal is therefore entirely satisfied that the case was conducted throughout in accordance with its overriding objective. It transpired that two further days had to be set aside to complete the hearing, on 31 May 2017 and 2 June 2017 respectively.

 

THE CLAIM

 

2. (1) The claimant claimed that she had been victimised contrary to the Sex Discrimination (Northern Ireland) Order 1976, as amended ("the 1976 Order"). She relied upon an alleged protected act arising out of a grievance in 2012. The claimant's allegations of victimisation mainly concerned the reorganisation of dental therapist provision in Enniskillen pursuant to retirement of the dental therapist in September 2015. She alleged that the various acts complained of were motivated at least in part by the grievance. The respondent denied the claimant's allegations in their entirety.

 

THE ISSUES

 

3. The following factual and legal issues were agreed by the parties at the outset of the hearing as follows:-

Factual Issues

 

(1) What was the reason for the consultation paper issued on
16 December 2015?

 

(2) Whether the Claimant had been denied the opportunity of a transfer to a post more desirable to her as a result of the decision to reduce the dental therapist post in the South West Acute Hospital, Enniskillen from 5 days per week to 1 day.

(3) Is the person who expressed an interest in Voluntarily Early Retirement (VER) in 2012 an appropriate comparator for the act of victimisation?

 

Legal Issues

 

(1) Was the Claimant subjected to victimisation in the decision to re-configure the Dental Therapist post in Enniskillen, by the Respondent on the ground of her sex as a result of having lodged a grievance in 2012?

 

(2) If so, what is the appropriate remedy?

 

 

SOURCES OF EVIDENCE

 

4. The tribunal heard evidence from the claimant, and on the respondent's behalf from Dr Quinn, Clinical Director of Community Dentistry, Pamela Crozier, Assistant Director of Human Resources, and Catherine McDaid, Assistant Director of Women and Children's Health Care from July 2007 until March 2016. The tribunal received a bundle of documentation together with other documents in the course of the hearing.

 

5. (i) At the outset of the hearing the tribunal referred the parties to the judgement of Girvan LJ in the Northern Ireland Court of Appeal decision of Jill Simpson v Castlereagh Borough Council (Ref: GIR9206, delivered 25/03/14) ("Simpson"). In the section of the judgement headed "conclusions" Girvan LJ states as follows:-

 

"[14] As the agreed terms of the remittal of the Tribunal show a Tribunal determining the question of victimisation must address the issues, firstly, whether the claimant suffered a detriment and, secondly, whether she was subjected to less favourable treatment as compared to an actual or hypothetical comparator by reason of the fact that she had done a protected act.

 

[15] The appellant has not sought to pursue an argument that she was discriminated against on the grounds of disability and the case thus turns on whether she was victimised on the grounds of having brought a sex discrimination claim or grievance. ... The case turned on whether the doing of the protected acts was the cause of the alleged victimisation.

 

[16] The Tribunal concluded that the relevant comparator would be a person who lodged a grievance and had not carried out a protected act. The respondent did not challenge that decision. It was satisfied that the appellant suffered less favourable treatment than such a hypothetical comparator would have received.

 

...

 

[18] A person discriminates against the person alleged to have been victimised if he treats the person less favourably "by reason that the person victimised" has (inter alia) done anything under or by reference to the 1976 Order or the Equal Pay Act. "By reason that" simply means "because (see Neuberger in Derbyshire v St Helen's Metropolitan Borough Council [2007] ICR 841 at 865 paragraph 76). As Mr Potter pointed out in argument, in determining whether an act is done because the party victimised did one or some of the things set out in Article 6(1)(a)-(d) the test to be applied may be expressed in somewhat different ways though it should lead to the same answer. The Tribunal can ask the question "why did the respondent act as it did?" See, for example Nagarajan v LRT [1999] IRLR 57 at paragraphs [13] and [18]. In Derbyshire Lord Neuberger put the matter thus:

 

"The words 'by reason that' require one to consider why the employer has done the particular act ... and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused a detriment, one must view the issue from the point of view of the alleged victim".

 

Alternatively the Tribunal may pose the question "Would the respondent have acted as it did but for the fact that the victimised party did what he or she did acting under Article 6(1)(a)-(d)". (See for example Lady Hale in R v Governing Body of JFS [2010] IRLR 136 paragraph [58] and Lord Clarke (ibid.) at paragraphs [131]-[134]). Alternatively, it may pose the question, as Lord Mance did in JFS, whether the impugned act was inherently discriminatory".

 

(ii) The claimant had crystallised the general nature of her victimisation claim at paragraph 7.4 of her claim form as follows:-

 

"I am making a claim on the grounds of victimisation when the Western Health and Social Care Trust decided to reduce a Dental Therapist post in Enniskillen from five days per week to one day per week. I was informed of this decision by letter dated 11th March 2016, received on April 4 ^th 2016. I am currently a dental therapist working for the Trust in Omagh and had hoped to be able to fill this position and had made this known to management. I believe the decision to downgrade this post is an unfair denial of opportunity to me and the result of a grievance I took in 2012 of sexual discrimination while on maternity leave".

 

(iii) It was common case that the claimant's claim had been presented to the tribunal on 5 June 2016 and that the claimant was relying on events prior to that date.

 

FINDINGS OF FACT

 

6. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

 

(i) The claimant was employed by the respondent as a Dental Therapist MTO 3 Band 6 working in Community Dental Services and based at Omagh. She worked 22.5 hours per week. She was employed in this capacity at all times material to her case before the tribunal.

 

(ii) Whilst on maternity leave, the claimant submitted an SC1 application form to her manager, Dr Quinn, Clinical Director for Dentistry, in March 2012 for approval to attend the British Association of Dental Therapists' annual conference. The claimant was refused funding for "financial reasons/on maternity leave". Two of her colleagues did receive funding to attend. Upon returning to work in September 2012, the claimant, having expressed concerns to Dr Quinn that she had been discriminated against because she was on maternity leave, sent a grievance by way of email to Kate McDaid, Assistant Director, on 19 September 2012. The respondent agreed that this constituted a protected act for the purposes of the claimant's victimisation claim.

 

(iii) Dr Quinn wrote to the claimant on 3 October 2012 in the following terms:-

"3/10/12

 

Dear Muire

 

Re: British Association of Dental Therapists Annual Conference

 

I refer to your request to attend the above Annual Conference which was not approved by the Trust, and to the subsequent e-mails and discussions we have had concerning this matter.

 

I can confirm that Kate McDaid, Assistant Director and myself have had the opportunity to consider the circumstances in which this request was not supported.

 

On 16/2/12 discussions took place between Kate McDaid and myself concerning identifying funding for Dental Therapy staff training and CPD. There is no identified funding source for Dental Nurses and Dental Therapists training and CPD. It was agreed at that time that a maximum of 2 members of staff would be supported by the Trust to attend the British Association of Dental Therapist Conference this year. However whilst Kate McDaid and I reached this decision, I fully accept these arrangements were not communicated to staff.

 

I acknowledge that the refusal to support your SC1 application has led to your dissatisfaction, and you were unaware of the Trust position with regard to this matter. In addition I recognise that you could not have provided me with your request to attend the Conference prior to the commencement of your Maternity Leave, since details relating to the Conference were not available at that time.

 

Accordingly I can confirm that, given these circumstances I have reconsidered the matter and can confirm the Trust will reimburse you the expenditure of the conference fee and give you the time in lieu, the same as was granted to the other staff members. I trust this brings the matter to a satisfactory close.

 

Yours sincerely

 

 

Grainne Quinn

Clinical Director CDS"

 

(iv) The claimant's subsequent email to Kate McDaid dated 10 October 2012 highlights her feelings and attitude at that stage:-

 

"Dear Ms McDaid

 

I received a reply to my complaint regarding SC1 refusal from Dr Quinn yesterday, having been advised by her earlier that it was on its way. I gather from the letter that I should not be expecting any further response from you to my correspondence.

 

I just wanted to let you know that I accept that this should lead to the matter coming to an end as it brings some fairness to the situation. However I think that I should make you aware that I am somewhat disappointed with the response for the following reasons:

 

1. The series of explanations for the refusal, including in the recent letter, are bizarre.

 

2. I was clearly discriminated against, the solution reverses this, but there has been no acknowledgement of this or any apology for the whole episode from the person(s) responsible.

 

Thank you for your assistance in providing an equitable solution in this matter.

 

Regards

 

Muire"

 

(v) The tribunal carefully considered the evidence relating to relevant events and correspondence from 10 October 2012 until the date of presentation of the claimant's claim to the tribunal on 5 June 2016. The tribunal is satisfied that the claimant relied on events and correspondence subsequent to the grievance outcome as background material only until the act of victimisation relied on emerged following the retirement, in September 2015, of a Dental Therapist based in Enniskillen. This retirement was communicated to staff by Dr Quinn as Clinical Director on 2 September 2015. The claimant was clearly annoyed by the fact that Dr Quinn had not directly approached her regarding this post. The claimant's email to Dr Quinn (copied to Kate McDaid), dated 8 September 2015 indicates her strength of feeling regarding the matter:-

 

"Dear Grainne,

 

I am disappointed that following my email of 22 ^nd June this year you did not feel the need to contact me on this matter prior to or since the staff meeting on Wednesday last where you announced the retirement of the current post-holder in Enniskillen. As a victim in the past of harassment and discrimination while on maternity leave and bearing in mind the defamatory nature of your failed consultation paper on abolishing a dental therapist post I had hoped that you might have treated me with more courtesy on this occasion.

 

My reply to the consultation document extensively outlined the benefits to the Trust and the cost effectiveness involved in having a dental therapist with their many skills holding posts. This is done through the flexibility we provide with our extensive skill mix. It think this has been proven in Enniskillen where you have utilised my services paid on a Band 6 and a dental nurse, giving oral health education and occasionally applying varnish, being paid on a Band 5 since the previous post-holder took ill. I think you would find it difficult to disagree with me when I say the cost to the Trust has actually been significantly less to employ me than the dental nurse even though I am carrying out more highly skilled work a lot of the time. I am a mother of four young children who has shown exemplary commitment to the Trust throughout my eleven years employment, only missing one days work despite my childcare and huge travel commitments. I wish to reiterate my previous desires from the email of 22 ^nd June and would appreciate if you could keep me informed of your plans for the post. Regards, Muire".

 

(vi) The reference by the claimant to an email of 22 June 2015 is significant. In that email to Dr Quinn she refers to a conversation with her the previous week and states that she is contacting her regarding her future location and hours of work within the Trust. She goes on to state:-

 

"...As you know I requested a transfer of my position from Omagh to Enniskillen in the event of a post becoming available. Subsequently I was advised that the transfer policy within the Trust was suspended and this appears to be still the case.

 

Having spent more than ten years commuting the greater than 100 mile round trip from home to Omagh, I am very keen in the event of the dental therapist post becoming vacant in Enniskillen, that I could change my position to it. I would also like to be considered for an increase in my current weekly hours if these became available.

 

I am aware that at present this post is not available but wish to express my desire for future change and hope that it be given due consideration.

 

Regards

 

Muire"

 

(vii) The claimant's email of 8 September 2015, which had been copied to Kate McDaid, led to Dr Quinn emailing the Assistant Director of Human Resources, Pamela Crozier, on 11 September 2015 explaining her reaction to the claimant's email as follows:-

 

"Dear Pamela

 

Please see below the email from Muire Sweeney. I feel the tone of this email is very disrespectful and I totally refute the suggestion that she was harassed while on maternity leave. I also disagree with the way she describes the consultation which took place with regard to reduction of the dental therapist posts within the trust. As you know this was carried out according to trust procedures. Despite this I had to endure a FOI request from her regarding the procedure which I had no problem with complying with as I had carried it out as per trust procedures. However this demonstrates that she is constantly trying to undermine all of my management decisions with regard to the management of DCPS within the trust. I had spoke to Muire about the post in June. I then spoke to the Omagh team 2 weeks ago when Aideen announced her retirement and I advised all staff that a review of the post was being undertaken to determine what the service required and that all staff would be informed of this when the decision was made.

 

By copying Kate McDaid in her e-mails I feel she is trying to undermine my position as head of service and at this stage feel harassed by this member of staff because of the nature of her e-mails and previous actions. I already know that she will challenge any decision we make with regard to this post and feel she is trying to put undue pressure on me with regard to it.

 

I would be grateful for advice on taking this matter further. I am not sure if it is your department or if I should be contacting employee relations.

 

Regards

 

 

Grainne"

 

(viii) The tribunal is satisfied that it was the decision taken by the respondent to reduce a dental therapist post in Enniskillen from five days per week to one day per week and the following events which precipitated the claim to the tribunal. The claimant alleged that the decision to reduce the dental therapist post to one day per week was taken for the purposes of denying her the opportunity to transfer her base to Enniskillen and that this was done due to her previous grievance lodged in 2012.

 

(ix) The tribunal reminds itself of the approach set out by Kerr LCJ in McNally v Limavady Borough Council [2005] NICA46, where, in order to establish victimisation, the person must have protected status (which is conceded in this case). The person must have been treated less favourably than other persons in the same circumstances and the less favourable treatment must have occurred because the victimised person had brought proceedings against those who were guilty of victimisation. In her case before the tribunal, the claimant relied on a comparator being a dental therapist who had expressed an interest in VER in 2012. The tribunal is satisfied however, that this individual is not an appropriate comparator as there is no similarity in the material circumstances involving the therapist who expressed a desire in VER and the material circumstances being relied on by the claimant. The VER exercise is not at all comparable to the consultation process to reconfigure a post in Enniskillen pursuant to the retirement of a current post holder. The tribunal is further satisfied that the closest actual comparator is the Band 5 Oral Health Co-Ordinator who also hoped to gain an extra day in the reconfiguration but was also disappointed. However, unlike the claimant, this individual had not done a protected act. Furthermore it is difficult to envisage how the claimant can sustain an argument that she was subjected to less favourable treatment as compared to a hypothetical comparator by reason of the fact she had done a protected act, or that, apart from the foregoing, there was a causative link between the alleged treatment and the protected act.

 

(x) The claimant referred to a miscellany of individuals who had allegedly victimised her. However, there is no satisfactory evidence that any of these individuals, except for Dr Quinn and Kate McDaid, knew of her 2012 allegations and the protected act during the Enniskillen consultation process.

 

(xi) The tribunal can understand the claimant's disappointment in not being transferred from Omagh to Enniskillen, as requested in her email to
Dr Quinn dated 22 June 2015. The consultation document had proposed that the funding of the vacant Dental Therapist Band 6 post would be reconfigured to provide clinical output in Enniskillen using a Dental Therapist (Band 6), one day per week and a Dental Hygienist (Band 5) two days per week. Clearly there were financial pressures operative in the background to this proposal. However, the monies released by the change were designed to ease service pressures by increasing the working hours of staff as well as the amount of clinical capacity available, from two to three days per week. The claimant's post in Omagh was not affected by the reconfiguration of the Dental Therapist position in the South West Acute Hospital in Enniskillen. Although not within the time framework of the case to the tribunal, the claimant has since gained an extra day working in Enniskillen in the absence of a Dental Therapist. Furthermore the tribunal is satisfied that the Dental Therapist post in Enniskillen was not abolished nor was it downgraded. Rather, the reconfiguration of the vacant post was designed to fulfil service needs. Although the claimant may have grounds for criticising the respondent in certain respects, any such criticism cannot, in itself, amount to victimisation under the 1976 Order.

 

(xii) There was considerable focus during the hearing on the relationship between Dr Quinn and the claimant. Correspondence dated 23 December 2015 from the claimant to Mary McKenna, Head of Acute and Community Paediatrics, includes the following and again highlights the nature of some of the issues between the two individuals:-

 

 

"I stated that Dr Quinn was dishonest with regard to the issue of discrimination in 2012 and that I had provided clear written evidence of this. This was inappropriate of me and I wish to withdraw this comment and apologise for it. It was made out of frustration that despite the fact that I have taken a grievance on this matter and there has now also been an informal investigation into it, no effort has been made to explain why Dr Quinn gave a number of reasons for refusing funding that do not correlate with the explanation given following my grievance. The written evidence I referred to relates to this. While standing by my strongly held opinions that I was discriminated against and that the grievance was not dealt with appropriately it was a mistake on my part to mention clear written evidence of dishonesty".

 

(xiii) The tribunal was directed to the consultation documentation and correspondence surrounding it and to the claimant's detailed response to
Dr Quinn dated 12 January 2016, when she again makes her position clear regarding a transfer to Enniskillen:-

"I believe that the Trust has social responsibilities and in this proposal my personal circumstances and the environmental effects of any decision should have been taken into account. There is no evidence that this is the case. If I was to be denied a position in SWAH I would be driving an unnecessary 7,000 miles per year for possibly the rest of my career. A more sustainable alternative for the future would be to allow me move my three days per week as a Dental Therapist to SWAH and if there is an absolute need to downgrade a dental therapist post this could be done on the same basis as proposed in Omagh instead, where it would deliver the exact same cost savings and services without the same personal and social consequences.

 

For the reasons outlined I believe that the proposal is not the best option and is unfair and request that whoever makes a decision on this matter will take an objective and unbiased look at all the factors involved.

 

In summary I believe that this proposal should be modified to have a dental therapist in SWAH 3 days per week without a hygienist post for the following reasons:

 

•            It will result in a better service for clients and will prove to be more satisfactory for staff of the dental department and other health and social care workers.

 

•            This will be in line with optimal dental services as planned for by the leaders of public service dentistry in the UK.

 

•            This change can be very comfortably provided for within existing funding and still leave savings that can be used elsewhere.

 

•            If the modest extra cost involved in modifying this proposal is not available it could be recouped in full by making changes to the Dental Therapist post in Omagh without the huge social costs, although I would regard this as a hugely retrograde step in any centre, as outlined thoroughly already".

 

Dr Quinn replied to the claimant on 11 March 2016 addressing various points in the claimant's correspondence and reiterating the Trust's position:-

 

"I feel the changes proposed in the Consultation will help to deliver a high quality service to our clients in the South West Acute Hospital. Following consideration of all responses received it remains my intention to proceed to implement the proposed changes as per the Consultation document. I plan to offer the additional hours available to existing staff in the first instance. Normal recruitment process will take place as appropriate thereafter to meet any shortfall. I will be contact with staff in the near future to take this matter forward".

 

(xiii) The tribunal is satisfied that the Trust had an objective basis for the reconfiguration of the vacant post in Enniskillen pursuant to the retirement of a Dental Therapist in September 2015.

 

 

 

 

 

THE LAW

 

7. (1) The 1976 Order provides as follows:-

Discrimination by way of victimisation

N.I.

6. —(1) A person ( "the discriminator") discriminates against another person ( "the person victimised") in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—

 

(a) brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act or Article 62 to 65 of the Pensions (Northern Ireland) Order 1995, or

 

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order or the Equal Pay Act or Article 62 to 65 of the Pensions (Northern Ireland) Order 1995, or

 

(c) otherwise done anything under or by reference to this Order or the Equal Pay Act or Article 62 to 65 of the Pensions (Northern Ireland) Order 1995 in relation to the discriminator or any other person, or

 

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act or under Article 62 to 65 of the Pensions (Northern Ireland) Order 1995,

 

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

 

(2) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

 

(2) Article 8 of the 1976 Order provides:

 

Applicants and employees

N.I.

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

 

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

 

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

 

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

 

(2)  It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her—

 

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

 

(b) by dismissing her, or subjecting her to any other detriment.

 

(3) The tribunal has already referred to the Northern Ireland Court of Appeal in Simpson.

 

(4) In the earlier Northern Ireland Court of Appeal case of John Joseph Rice v Yvonne McEvoy (reference GIR8161, delivered 16/5/11), Girvan LJ sets out the relevant legal principles in victimisation cases as follows:-

 

"[22]     In order to establish that discrimination by way of victimisation has occurred -

 

(a)    circumstances relevant for the purposes of the provisions of the Order must apply;

 

(b)    the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances ("the less favourable treatment issue"); and

 

(c)    he must have done so by reason of the fact that the person victimised has done one of the protected acts ("the reason why issue"). 

 

[23]      For a complainant to have suffered comparable discrimination he or she must have been detrimentally affected by the way the employer has afforded her access to some benefit, facility, service or opportunity or subjected him or her to some other detriment.

 

[24]      In the absence of a true comparator it is necessary to approach the question of comparative treatment hypothetically.

 

[25]      The primary object of the victimisation provisions is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so.

 

[26]      In determining whether the alleged victim has been less favourably treated than others the comparison is a simple comparison between the treatment afforded to the complainant who has done the protected act and the treatment that had or would have been afforded to other employees who had not done so.

 

[27]      As Lord Nicholls points out in Shamoon v Chief Constable of the RUC [2002] NI 174 tribunals usually proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant.  Thus the less favourable treatment issue is treated as a threshold which a claimant must cross before the tribunal is called on to decide why the claimant was afforded the treatment of which she or he complains. 

 

[28] However, while in many cases it is convenient and helpful to adopt the two stage approach to the less favourable treatment issue and the reason why issue there is essentially one single question: did the claimant on the prescribed ground receive less favourable treatment than others.  Sometimes the less favourable treatment issue cannot be resolved without at the same time deciding the reason why issue the two issues are intertwined (Lord Nicholls in Shamoon at paragraph [8]).

 

[29]      There can be cases where the position held by the complainant was the only one of its kind and was incapable of being compared with that held at the relevant time by anyone else in the employer's organisation.  The words "or would treat" in Article 6 of the Order permit the question whether there was discrimination against a woman on the ground of her sex to be approached as a hypothesis.  It would defeat the purpose of the Order if this question could not be addressed simply because the complainant was unable to point to anyone else who was in fact in the same position as she was (per Lord Hope in Shamoon at paragraph 52).

 

[30]      The victim who complains of discrimination must satisfy the fact finding tribunal that, on the balance of probabilities, he has suffered discrimination falling within the statutory definition.  This may be done by placing before the tribunal evidential material how he or she would have been treated if she had not been a member of the protected class.  Actual comparators may constitute such evidential material but they are only a tool which may or may not justify an inference of discrimination.  The usefulness of the tool will depend on the extent of the circumstances relating to the victim.  The more significant the differences the less cogent will be the case for drawing inferences.  The fact that a particular chosen comparator cannot because of material differences qualify as the statutory comparator by no means disqualifies him from an evidential role.  It may, in conjunction with other material, justify a tribunal drawing an inference (per Lord Scott in Shamoon at paragraph [109]). 

 

[31]      In the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inferences of discrimination.  Unconvincing denials of a discriminatory intent given by the alleged discriminator coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision might in some cases suffice (per Lord Scott in Shamoon at [116]). 

 

[32]      In deciding the issue whether the claimant has been treated less favourably by the alleged discriminator the conduct of the hypothetical reasonable employer is irrelevant.  The alleged discriminator may or may not be a reasonable employer.  Circumstances may be relevant even if no reasonable employer would have attached any weight to them in considering how to treat the employer (per Lord Browne-Wilkinson in Glasgow City Council v Zafar [1998] 2 All ER 953 at 956 and per Lord Rodger in Shamoon at paragraph [132]). 

 

[33]      In determining the reason why issue it is necessary for the tribunal to consider the employer's mental processes, conscious and unconscious.  If on such consideration it appears that the protected act had a significant influence on the outcome victimisation is established (see Lord Nicholls in Nagarajan v London Regional Transport[1999] IRLR 572 at 575, 576).  The question is why did the alleged discriminator act as he did?  What consciously or unconsciously was his reason?  Unlike causation this is a subjective test. Causation is a legal conclusion.  The reason why a person acted as he did is a question of fact (per Lord Nicholls in Chief Constable of West Yorkshire v Khan [2001] IRLR 830 at paragraph 29).

 

[34]      The reverse burden of proof provisions in Article 63A apply to claims of victimisation under Article 6 because they are claims of discrimination ( Pothecary Witham Weld v Bullimore [2010] IRLR 572).

 

[35]      In a case where a claimant has raised a prima facie case for the purposes of Article 63A it must in principle be enough to say with such reasons as may be appropriate "we are not persuaded that his explanation was right" rather than "we reject his explanation."  It is preferable for a tribunal to make positive findings one way or the other (see Pothecary Witham Weld v Bullimore.)

 

BURDEN OF PROOF

 

8. Article 63 of the 1976 Order provides as follows:-

 

63A.‒(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

 

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent‒

 

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or

 

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment] against the complainant, or

 

 

(c) has contravened Article 40 or 41 in relation to an act which is unlawful by virtue of Part III].

 

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.]

 

9. (i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains 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. The reversal of the burden of proof provisions apply in cases of victimisation under the 1976 Order ( Pothecary Witham Weld v Bullimore [2010]
IRLR 572).

 

(ii) The Tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 ("Madarassy"), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer's explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

"The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

 

"Could conclude" in s.63A(2) must mean that "a reasonable Tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage..., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment."

 

(iii) The Tribunal received valuable assistance from Mr Justice Elias' judgement in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs are set out in full to give the full context of this part of his judgement.

 

"Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1) In every case the Tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 - 'this is the crucial question'. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

(2) If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

 

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

 

'Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.'

 

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the Tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)

 

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-

'it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.'

 

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

(5) It is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

(6) It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10."

 

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):

 

'36. The discrimination ... is defined ... as treating someone on racial grounds "less favourably than he treats or would treat other persons". The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

 

(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the "statutory comparator") actual or hypothetical, who is not of the same sex or racial group, as the case may be.

 

(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant ...

 

(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the "evidential comparator") to those of the complainant and all the other evidence in the case.

 

37. It is probably uncommon to find a real person who qualifies ... as a statutory comparator. Lord Rodger's example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are "materially different" is often likely to be disputed. In most cases, however, it will be unnecessary for the Tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the Tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.'

 

The logic of Lord Hoffmann's analysis is that if the Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls' observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:

 

'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' (paragraph 10).

This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all'".

(iv) The Tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

"This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination".

 

SUBMISSIONS

 

10. The tribunal carefully considered helpful written submissions presented to it on behalf of both parties together with further brief oral submissions on 2 June 2016. The written submissions are appended to this decision.

 

CONCLUSIONS

 

11. The tribunal having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-

 

(1) As pointed out in the Northern Ireland Court of Appeal case of Rice (Supra), in order to establish that discrimination by way of victimisation has occurred -

 

(a) circumstances relevant for the purposes of the provisions of the Order must apply;

 

(b) the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances ("the less favourable treatment issue"); and

 

(c) he must have done so by reason of the fact that the person victimised has done one of the protected acts ("the reason why issue"). Furthermore, in order to have suffered comparable discrimination the claimant must prove that she has been detrimentally affected by the way the respondent has subjected her to some detriment. In the absence of a true comparator it is necessary to approach the question of comparative treatment hypothetically.

 

(2) In determining whether the claimant has been less favourably treated than others, the comparison is a simple comparison between the treatment afforded to her, as having done a protected act, and the treatment that had or would have been afforded to other employees who had not done so. As pointed out at paragraph [28] in Rice there is essentially one single question:-

 

"Did the claimant on the prescribed ground receive less favourable treatment than others? Sometimes the less favourable treatment issue cannot be resolved without at the same time deciding the reason why issue the two issues are intertwined (Lord Nicholls in Shamoon v The Chief Constable of the RUC [2002] NI 174, at paragraph 8)".

 

(3) In order to rely on a hypothetical comparator, the claimant must place before the tribunal evidential material of how she would have been treated if she had not been a member of the protected class.

 

(4) As recorded in its findings of fact, the tribunal is not satisfied that the claimant has established a true comparator. A Dental Therapist who expressed an interest in VER in 2012 is not an appropriate comparator in respect of whom the claimant has been treated less favourably than the respondent has treated or would treat other persons in similar circumstances. Furthermore, the tribunal is satisfied that the comparator relied on is not appropriate as a hypothetical comparator by way of evidential material as to how the claimant would have been treated if she had not been a member of the protected class. Moreover, the tribunal is satisfied that none of the events pursuant to the outcome of the 2012 grievance, and culminating in the consultation process in 2015/16, establish a causative link between the protected act and the case being made by the claimant that the reconfiguration of a Dental Therapist in Enniskillen was an unfair denial of an opportunity which should have been afforded to her to transfer to Enniskillen as requested by her on several occasions preceding the consultation process. The consultation process was occasioned by the retirement of a permanent member of staff as a result of which, for objective reasons, the respondent reconfigured the post as described in the consultation documentation, and subsequent correspondence.

 

(5) There is therefore no satisfactory evidence before the tribunal that another employee who had not done the protected act would have been afforded a transfer from a substantive post in Omagh to Enniskillen as requested by the claimant. The tribunal is further satisfied that the claimant has not proved detrimental treatment.

 

(6) The tribunal is therefore also satisfied that the claimant has not proved facts from which the tribunal could conclude, in the absence of an adequate explanation, that unlawful discrimation by way of victimisation had occurred on the ground of her sex as a result of having her lodged a grievance in 2012.

 

(7) The tribunal must therefore dismiss the claimant's claim in its entirety.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 25-27 April, 31 May and 2 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties:

 

 

 

Muire Sweeney Ahern and Western Health and Social Care Trust
Case Ref No. 1470/16 IT

Written Submission On Behalf Of The Claimant