Hunter v Barnardo's [2017] NIIT 01779

THE INDUSTRIAL TRIBUNALS

CASE REF: 1779/16

CLAIMANT: Patrick Hunter

RESPONDENTS: 1. Barnado's

2. Tanya Tweed

DECISION

The unanimous decision of the tribunal is that the claim of unlawful discrimination on the grounds of sexual orientation is dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs D Adams

Mr D Acheson

Appearances:

The claimant was represented by Mr P Moore LLB, of PM Associates.

The respondents were represented by Ms B-L Herdman, Barrister-at-Law, instructed by Greenwoods Solicitors LLP.

Background

1. The claimant had been employed as a part-time sales assistant in a Barnado's charity shop in Ballyclare for approximately four years. His line manager at all relevant times had been Ms Brenda Kernoghan.

2. On several occasions he had provided cover as an acting manager, covering the absence of the manager of the Barnado's charity shop in Larne; ie Ms Tanya Tweed, the second-named respondent. Similarly, the second-named respondent had also arranged cover for his absences in the Ballyclare shop.

3. In May 2016, the second-named respondent was due to be promoted to area manager. The claimant applied for the resulting vacancy, ie the shop manager's post in Larne. His application was unsuccessful.

4. The claimant submitted a grievance on 20 July 2016 alleging ' continuous and ongoing discrimination against myself based on my sexual orientation'. That grievance was not upheld.

5. The claimant lodged the current tribunal proceedings on 5 August 2016. He stated at Paragraph 5.7 of that tribunal application:-

"My complaint is about discrimination by way of less favourable treatment as well as discriminating against me in recruitment and promotion because I am gay."

That clearly suggested that his complaint to this tribunal was not solely in relation to his failure to be promoted in May 2016 but that it also covered other alleged incidents. However, during the hearing, it was clarified on behalf of the claimant that the other alleged incidents referred to by the claimant were relied on solely for the purposes of evidence and were not separate heads of claim. It was therefore clarified by the claimant that the sole complaint before this tribunal was one of alleged unlawful discrimination on the grounds of sexual orientation in relation to the claimant's failure to be promoted in May 2016.

Relevant law

6. The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 ("the 2003 Regulations) provide that:-

"Regulation 3

(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -

(a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons;

...

(2) A comparison of B's case with that of another person under Paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

7. Regulation 6(2) provides:-

" It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a person -

" ...

(b) in the opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit; ... ."

8. The provision in relation to the shifting burden of proof is contained within Regulation 35(2) of the 2003 Regulations and is in standard terms.

Unlawful discrimination

9. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

That decision makes clear that the words 'could conclude' is not to be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

24 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 an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [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."

10. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some incidents it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other incidents it may be furnished by the context in which the act has allegedly occurred."

11. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

(76) Whilst, as we have emphasised, it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage."

12. In a disability discrimination case which involved a shifting burden of proof under analogous legislative provisions, Maria McKeith v Ardoyne Association (employmenttribunalsni.gov.uk - Case Reference No: 1188/15) the tribunal stated:-

"136. Turning to the claim of unlawful direct discrimination in relation to the dismissal of the claimant, the shifting burden of proof is going to be crucial.

137. There needs to be something more, on the evidence, than the mere possibility of unlawful discrimination (see Madarassy). There needs to be something on which a reasonable Tribunal can properly conclude or infer that there had been unlawful discrimination. The Directive refers to facts from which discrimination can be 'presumed'. The Tribunal must consider the purpose of the Directive and of the implementing domestic legislation. There is rarely a 'smoking gun' or an admission of unlawful discrimination in these cases. The purpose of the Directive was to shift the normal onus of proof on to the respondent once a prima facie case has been established. The purpose of the Directive was not to simply replicate the pre-existing status quo where the onus of proof fell on the claimant. In determining whether facts have been established from which an inference of unlawful discrimination could be drawn, the Tribunal must at that preliminary stage disregard explanation from the respondent. The onus of proof then moves to the respondent.

138. The Court of Appeal (GB) in Deman (above) concluded that the 'more', in addition to a simple difference in status and a difference in treatment, need not 'be a great deal'.

139. When analysing whether a prima facie case of unlawful discrimination has been established, the Tribunal must focus on its task of determining whether or not there has been unlawful discrimination - (see Curley v Chief Constable [2009] NICA 8). In Laing v Manchester City [2006] IRLA 748, the EAT stated:-

"There seems to be much confusion created by the decision in Igen. What must be borne in mind by a Tribunal faced with a risk claim is that ultimately the issue is whether or not the employer has committed an act of [race] discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been because of [race]."

140. The facts of the current case are not such that the Tribunal could properly sidestep the issue of a shifting burden of proof. In Hewage v Grampian Health Board [2012] ICR 1054, Lord Hope approved the obiter comments of Underhill J in Martin v Devonshire Solicitors [2011] ICR 352, Paragraph 39, that it is important not to make too much of the burden of proof provisions. Lord Hope said [Paragraph 32]:-

"They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or another."

The present case is not one where positive findings on the issue of unlawful discrimination readily present themselves. There is no avoiding it. The issue of a potential shifting of the burden of proof requires 'careful attention'.

141. Council Directive 2000/78 stated in its preamble:-

"(31) The rules on the burden of proof must be adapted where there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought."

142. In Article 10 of the Directive:-

"1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there had been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

143. Section 17A (1c) of the 1995 Act implemented that part of the Directive.

144. So in a case of this type, where the evidence does not conclusively determine the matter one way or another the claimant is entitled to the benefit of the Directive and of S.17A (1c). She must establish a prima facie case, or facts on which discrimination could reasonably be presumed. She does not have to fully discharge the normal burden of proof on the balance of probabilities before the burden of proof shifts to the respondent."

13. The tribunal further stated:-

"If this is not a case where the burden of proof should shift, no such case exists and the provisions of Article 10 of the Directive and Section 17A (1c) of the Act are of no effect at all and are a massive waste of everyone's time. The Tribunal therefore concludes that the burden of proof has shifted. The claimant has established a prima facie case that she had been directly discriminated against within the terms of the 1995 Act because she had been the primary carer of her disabled daughter. It is now for the respondent to prove that there had been no direct (associative) disability discrimination in the decision to dismiss the claimant."

14. The findings of the Tribunal in McKeith v Ardoyne Association were challenged in the Court of Appeal. The Court of Appeal in its decision (29 November 2016) determined that the appeal did not succeed on any count. They stated:-

" The Shifting Burden of Proof.

[35] While Ms McKeith did not advance a claim for disability related discrimination in relation to the period before the dismissal decision, her background treatment in the preceding months did inform the approach of the Tribunal in relation to the dismissal decision. The background included the requirement that Ms McKeith remain absent from work for periods to look after her disabled daughter. Had it arisen for decision, the Tribunal would have concluded that the previous treatment of Ms McKeith amounted to disability related discrimination (paragraph 132).

[36] On taking into account that background and the evidence in relation to the dismissal of Ms McKeith, the Tribunal stated that "the shifting burden of proof is going to be crucial" (paragraph 136).

[37] The Burden of Proof Directive (EEC) 97/80 was extended to the United Kingdom in 1998 and Article 4(1) provided -

"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them established, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

[38] Section 17A(1B) of the 1995 Act provides -

`Where, on the hearing of a complaint under sub-section (1), the complainant proves facts from which the Tribunal could, apart from this sub-section, conclude in the absence of inadequate explanation that the respondent has acted in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act.'"

[39] The approach to the shifting burden of proof was considered by the Court of Appeal in England and Wales in Wong v Igen Ltd (2005) EWCA Civ 142. It was stated that the statutory amendments required a two-stage process. The first stage required the complainant to prove facts from which the Tribunal could, apart from the section, conclude, in the absence of an adequate explanation, that the employer had committed, or was to be treated as having committed, the unlawful act of discrimination against the employee. The second stage, which only came into effect on proof of those facts, required the employer to prove that he did not commit or was not to be treated as having committed the unlawful act, if the complaint is not to be upheld.

[40] The issue was revisited by the Court of Appeal in England and Wales In Madarassy v Nomura International plc [2007] EWCA Civ 33 which set out the position as follows (italics added) -

"56. 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.

57. `Could conclude' [in the Act] 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 (which I shall discuss later), 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 complaint to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by [the Act]; and available evidence of the reasons for the differential treatment.

58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the Tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim."

[41] The Tribunal was satisfied that Ms McKeith had established a prima facie case that she had been directly discriminated against because she had been the primary carer of her disabled daughter (paragraph 147). The Tribunal then found that the Ardoyne Association had not put forward any convincing or coherent explanation for its decision to make Ms McKeith redundant (paragraph 148). It was accepted on the hearing of the appeal that, if this was a case where the burden of proof shifted to the employer, there had not been a sufficient explanation. Accordingly, the challenge was concerned with whether the evidence before the Tribunal was such that a prima facie case of associative direct discrimination had been made out.

[42] In this regard the Tribunal set out a number of facts which concerned Ms McKeith having been sent home on previous occasions because of her disabled daughter, Ms Burns' belief that she should be at home with her disabled daughter, the reluctant piecemeal and incomplete nature of discovery, the other two persons who were made redundant at the same time were first re-engaged as volunteers and then rehired, the evasive and unconvincing evidence of the Manager and the non-compliance with statutory dismissal procedures. The Tribunal stated ". if this is not a case where the burden of proof should shift, no such case exists" (paragraph 147).

[43] We are satisfied that, as outlined by the Tribunal, there was such evidence of a difference in status, a difference in treatment and a reason for differential treatment that, in the absence of an adequate explanation, a Tribunal could conclude that the employer committed an unlawful act of associative disability discrimination. The burden on the Ardoyne Association was not discharged. It followed that the Tribunal would find disability discrimination.

[44] We are not satisfied on any of the appellant's grounds of appeal. The appeal is dismissed."

15. In Madarassy, Mummery LJ stated at Paragraph 57:-

"That 'a reasonable Tribunal could properly conclude' from all the evidence before it. This will include evidence adduced by the complainant in respect of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for that differential treatment."

He went onto state:-

"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 (which I will discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaints; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied upon by the complainant to prove less favourable treatment; evidence as to whether the comparisons made by the complainant were of like with like as required by Section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment."

16. In considering whether reasonable inferences could properly be drawn in any case, the giving of inconsistent explanations or an unacceptable account of the facts has been held to be sufficient for the burden of proof to pass to the employer. In Veolia Environmental Services UK v Gumbs [UKEAT/0487/12], HHJ Hand QC stated:-

"The fact of inconsistent accounts as to why something has happened have for many years, if not centuries, been regarded as a basis from which inferences can be drawn by Tribunals of first incident. The statutory provisions as to the reversal of the burden of proof and the jurisprudence, which has grown up around them, exclude actual consideration of the substance of the explanation but if the fact that there have been a number of inconsistent explanations or reasons put forward is to be excluded from consideration as to whether the burden of proving an non-discriminatory explanation should pass to the employer (and the claimant's case, therefore, fails at that stage) then the Employment Tribunal has been put into a strange position in contrast to other Courts and Tribunals that have to make factual findings. We see no basis for excluding from consideration the fact that there have been a number of different and inconsistent reasons advanced for particular behaviour."

17. An inference of unlawful discrimination may also be drawn from an evasive or false explanation other than in a response to a questionnaire; see Dattani v Chief Constable of West Mercia [2005] IRLR 327.

In that case the EAT (Judge McMullen QC) stated that:-

"A respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or who does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure."

The head note states:-

"Accordingly, in that present case, the Tribunal was not precluded from drawing an inference from incorrect information provided by the employers in their notice of appearance [response], further and better particulars, and a written explanation."

18. It is important, as indicated above, for a Tribunal to remember when determining whether it could reasonably draw inferences of unlawful discrimination that its function is to determine whether unlawful discrimination has occurred and that poor administrative practices may not, on their own, be sufficient depending on the circumstances of the case. The fact that an employer's behaviour calls for an explanation does not automatically get a claimant through to the second stage of the two-stage process. There still has to be some evidence that the behaviour had been ' attributable (at least to a significant extent)' to the prohibited ground of unlawful discrimination - see B v A [2010] IRLR 400 at Paragraph 22.

19. In Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR 865 Elias J stated Paragraphs 18 and 21 that:-

"Ms Cunningham (counsel for the employer) says in order to establish a prima facie case there must always be some positive evidence that the difference in treatment is race or sex as the case may be. That seems to us to put the hurdle too high. As the Courts have frequently recognised, there are real difficulties in establishing discrimination because of the obvious fact that it is never admitted, and it has to be inferred from the circumstances. The law has tried to strike the balance between on the one hand making such claims impossible to sustain, and on the other not subjecting employers to unwarranted and unfair findings of discrimination. The statutory burden of proof as interpreted in Igen, by which of course we are bound, directs Tribunals how the issue should be approached. Provided Tribunals adopt a realistic and fair analysis of the employer's explanation at the second stage, we see no justification for requiring positive evidence of discrimination at the first stage."

"Ms Cunningham says that finding a prima facie case on the evidence established here puts employers into too difficult a situation. She cites the case of somebody who may be not only female and black but perhaps an Anglican or gay, or has some other legally relevant feature which distinguishes her from the remaining members of the group from which selection is made. She says that on the analysis by the Tribunal one could in all those cases infer that the reason why she was rejected was each and everyone of these distinctive features which distinguished her from the other employees. We accept the logic would indeed be that there a Tribunal would be entitled to find that there was a case to answer in all these examples, if the circumstances were otherwise as in this case. But it will often be easy to rebut. A Tribunal will have to have regard to all the evidence in determining whether the employer has rebutted the prima facie case. For example in most cases the employer will be able to show that he has no interest or knowledge of the religious affiliation of staff or perhaps their sexual orientation. In some cases it may be shown that the manager alleged to have discriminated on, say, sex grounds has frequently in the past promoted women. That will obviously be powerful evidence rebutting any inference of sex discrimination."

20. If the Tribunal, on all the evidence before it, could reasonably infer unlawful discrimination and therefore if the burden of proof passes to the respondent in the second stage of this legislative process, the employer must then rebut the prima facie case which has been established. The Igen decision provides that there must be an adequate explanation supported by cogent evidence.

21. In Osoba v Chief Constable of Hertfordshire Constabulary [UKEAT/0055/13/BA], the EAT considered an age discrimination case where the operation of a redundancy scoring matrix had been described as shambolic and inconsistent. The Employment Tribunal had held that the burden of proof had shifted to the respondent to disprove discrimination in the second stage. In that second stage the respondent stated that they acted honestly and in good faith and accepted poor administrative practices. The Employment Tribunal accepted this and found that there had indeed been no discrimination. On an appeal by the claimant the EAT upheld the Employment Tribunal's decision in favour of the employer. HHJ McMullen QC stated:-

"27 The central problem with someone who admits to making errors is whether a further explanation is to be rung from her. Sometimes those errors are explained in mitigation, 'I was overworked', 'I had family care responsibility' but that is not the case here. The simple proposition advanced by Ms Pritchard [the alleged discriminator] is that she did what she thought was right in accordance with the policy and she was exposed in the course of the trial to the errors which she had made which she accepted.

28 The Tribunal accepted her account that she had acted honestly. Most particularly in the face of the direct accusation of manipulation in order to do down the claimant because of his age the Tribunal accepted the good faith of her account. Is that enough? Does she have to create some further explanation? We consider it would be wrong for a respondent to have to give a yet further possibly dissembling explanation in order to meet the case. We accept Mr Ley-Morgan's analogy to explanations above such as overwork or family circumstances, but there simply may be cases where there is nothing more to say, no further explanation than 'Well, I got it wrong and I take responsibility for that'."

Procedure

22. The claim was heard over two days from 22 - 23 February 2017.

23. The claim had been case-managed and directions had been given for the exchange of witness statements. Each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statement as their evidence-in-chief and moved immediately into cross-examination and re-examination. The claimant was allowed to introduce additional oral evidence-in-chief, as was one witness from the respondent, Ms Arkins.

24. At the start of the hearing, counsel for the respondents applied for an order directing the exclusion of Ms Kernoghan from the hearing until she was called to give evidence. She wanted to challenge the veracity of Ms Kernoghan's account and did not want to give her advance notice of her line of cross-examination which would become apparent from the cross-examination of the claimant who was to be the first witness. The claimant's representative objected. After consideration, the tribunal directed that Ms Kernoghan should be excluded until she was called to give evidence herself and to be cross-examined.

25. The claimant's representative raised the issue of a document included in the bundle which was a reference obtained in relation to a Ms McIlwhinney from her previous employer. He stated that this had been disclosed late. He had no objection to it being in the bundle. He stated that he had had very little opportunity to call Ms McIlwhinney. However, he made no application for a Witness Attendance Order or indeed for a postponement to facilitate any such Witness Attendance Order. He had also not applied for a Witness Attendance Order previously in relation to Ms McIlwhinney or indeed in relation to Ms Liz Swann.

26. The claimant gave evidence and Ms Brenda Kernoghan gave evidence on his behalf.

27. The following gave evidence for the respondents:-

(1) Ms Tanya Tweed the second-named respondent who had been the shop manager in Larne and who sat on the interview panel in May 2016

(2) Ms Paula Arkins, the area business manager who sat on the interview panel

(3) Mr Sean Connors, the manager who heard the initial grievance which had been lodged on 20 July 2016

(4) Mr Graham Ingram who heard the claimant's appeal against the decision of Mr Connors not to uphold her grievance

Relevant findings of fact

28. The claimant alleged that there had been three separate incidents of unlawful discrimination. The first incident occurred in December 2013. The second incident occurred in June 2014. The third alleged incident occurred in May 2016. That had been the promotion competition.

First alleged incident

29. The claimant alleged that he had been told by a Ms Norma McIlwhinney in December 2013 that a volunteer in the Larne shop, a Ms Liz Swann, had stated that she did not want to work with the claimant because he was gay.

30. The claimant reported this alleged remark to his then line manager Ms Brenda Kernoghan. She passed the report to her line manager who was the then area manager, Ms Laura Carson.

31. It is clear that the claimant does not allege that any such remark had been made directly to him. He had no direct evidence to give in relation to this alleged incident. He relied solely on what he says he had been told by Ms Norma McIlwhinney. However, Ms Swann, when she was interviewed in relation to the claimant's grievance appeal, adamantly denied ever having made any such remark to Ms McIlwhinney about the claimant. It is notable that Ms Swann had continued to work after December 2013 as a volunteer in the Larne shop. The claimant had also continued to work in the Larne shop intermittently providing cover for other staff. They would therefore have come into contact with each other. Ms Swann never asked for her volunteering shifts to be altered to avoid that contact between her and the claimant. Crucially, neither did the claimant. It is not credible that if the remark had been made, as reported, Ms Swann would have continued to voluntarily put herself into contact with the claimant and equally that the claimant, who was standing in on a voluntary basis for other staff when working in the Larne shop, had done exactly the same.

32. The only evidence that the claimant put forward to establish that this alleged remark had ever been made was the report which he states he had been given by Ms McIlwhinney. When Ms McIlwhinney was, almost three years after the event, interviewed by Mr Ingram in relation to his grievance appeal, she stated that the remark had been made by Ms Swann. However, her evidence was significantly confused. She first said that two other individuals had been present when the alleged remark had been made and then she said that they had not been present. It is also clear from the notes of the interview with Ms McIlwhinney, that Ms McIlwhinney had had her own grievance with Barnado's. She stated ' I was badly treated by Barnado's in my case'.

33. A reference had been obtained from Ms McIlwhinney's previous employer in 2013. That reference had been in remarkably blunt terms. It had been completed on behalf of the British Heart Foundation and had stated:-

"Mrs McIlwhinney was not a team worker. She was the cause of numerous rows and made false allegations about other staff."

34. Ms Carson investigated the matter and then spoke to the claimant. She suggested that Ms McIlwhinney should apologise to the claimant for making the allegation. That can only suggest that Ms Carson, who was not available to give evidence to this tribunal, could only have concluded that the allegation against Ms Swann had been completely unfounded. The claimant accepted that at that point he had not asked for the matter to be escalated as a formal grievance and that he had accepted that the matter was closed. That appears to the tribunal to be entirely consistent with the informal resolution of a grievance in accordance with the first-named respondent's procedures and consistent with the claimant accepting, at that time, the decision of Ms Carson that the remark had not been made. If it had been otherwise, the claimant would have lodged a formal grievance and would not have gone back to the Larne shop.

35. The claimant and indeed his line manager stated in evidence that they had not been aware of how they could have escalated this matter as a formal grievance. That is not credible. Ms Kernoghan, in particular, as line manager would have been fully aware of the grievance procedure and if such a serious issue had arisen and if either the claimant or Ms Kernoghan had genuinely believed that such a remark had been made, neither would have let the matter remain as it was; ie as a matter resolved informally with the suggestion, which was not taken up, that Ms McIlwhinney be asked to apologise for having made an unfounded allegation.

36. On the balance of probabilities, the tribunal can only conclude that the alleged remark had never been made by Ms Swann in the first place. As pointed out above, it is simply not credible that Ms Swann, if she had made such a remark and if she had held such views, would have continued to work voluntarily in the Larne shop where she would have come into contact from time to time with the claimant. It is equally not credible that the claimant, if such a remark had been made, or if he had believed such a remark had been made, would have continued to work intermittently in the Larne shop where he would have come into contact with Ms Swann. At the very least, either or both of these individuals would have asked that they should be kept apart. Neither did so. Furthermore, the reference obtained in 2013 in relation to Ms McIlwhinney and her confused evidence in relation to the alleged remark can only indicate that her report cannot be regarded as credible. Again, if either the claimant or Ms Kernoghan had felt that Ms McIlwhinney was a credible witness, they would have sought a Witness Attendance Order or would have asked her to provide a statement on the claimant's behalf. This did not happen. Equally, the claimant would not have accepted an informal resolution of this matter in 2013/2014, if such a remark had been made and if he had genuinely believed such a remark had been made.

It is also notable that the claimant felt in July 2016 that the first alleged incident had occurred in December 2014 and not in December 2013. That was not corrected by the claimant until 5 September 2016 when it was pointed out that Ms Swann had not worked as a volunteer in December 2014. It is odd that the claimant, assisted by Ms Kernoghan, could not even remember the correct year in which the alleged discrimination had occurred.

37. In any event, the relevance of the alleged incident in December 2013 to the present claim, as clarified by the claimant in the course of the hearing, is not at all clear. In essence, the claimant alleges in this case that Ms Tanya Tweed had been prejudiced against him because of his sexual orientation and that the decision not to promote him in May 2016 had been based on that prejudice. Ms Kernoghan alleged to the tribunal that Ms Tanya Tweed had phoned her shortly after the alleged incident and had stated ' Brenda, Liz is a very good friend of mine and she wouldn't say something like that'.

Ms Kernoghan stated that in reply she said ' Well Tanya, she did say it because Patrick wouldn't make something like that up'.

That alleged reply by Ms Kernoghan does not make sense. It could not have been alleged that ' Patrick' (the claimant) had made anything up. The issue was whether Ms McIlwhinney had made up the allegation.

38. That undated witness statement would have been completed in late 2016. That would have been almost three years after the alleged telephone call. The recollection of the words used in what must have been a brief telephone conversation some three years previously is remarkably precise. It is also clear from the evidence to the tribunal that Ms Kernoghan has had an ongoing dispute with Barnado's in relation to disciplinary allegations made against her and then subsequently dropped and also in relation to a pending redundancy. When it was put to her in cross-examination that she had a problem with Barnado's she kept repeating ' I do not have a problem with Barnado's, they have a problem with me'.

39. The claimant alleged in his evidence that a similar conversation had taken place; ie that Ms Tweed had telephoned him to explain that it would not have been in Ms Swann's nature to make such a remark. It is notable that in the first grievance meeting which took place on 24 August 2016, the claimant had been represented by Ms Kernoghan. Although Ms Kernoghan now states that she had also been telephoned by Ms Tweed in those terms, shortly after the alleged incident in December 2013, she did not say so in the course of that lengthy grievance meeting. She had clearly been active in the course of that meeting and had been appearing in the capacity of trade union representative. She had read a statement on the claimant's behalf. She had also interjected at several points to give answers and to assist the claimant.

At four points in the grievance meeting the claimant stated that there had been a conversation between him and Ms Tweed and that Ms Tweed had stated that she had ' known Liz [Swann] for a long time and it wasn't in her nature to make such comments'. Ms Kernoghan did not interject at any point to say that she had also taken part in a similar telephone conversation.

Ms Kernoghan did not allege that she had taken part in a similar telephone conversation until the grievance appeal hearing on 6 October 2016.

40. The tribunal concludes, on the balance of probabilities, that neither alleged telephone conversation took place.

41. Ms Tanya Tweed gave evidence and the tribunal found that her evidence was clear, consistent and truthful. She stated that she had never been told by Ms Carson or by anyone else of the nature of the alleged remark. She had been asked simply whether there had been any difficulty between Ms Swann and the claimant.

42. On the balance of probabilities, the tribunal concludes that Ms Tweed did not know of the nature of the alleged remark reported by Ms McIlwhinney, ie did not know that it had been related to the claimant's sexual orientation until the tribunal application has been lodged.

Second alleged incident

43. The second alleged incident was said to have occurred in June 2014. It is notable that in the initial letter of grievance and in the initial grievance meeting the claimant maintained that it had occurred one year later in June 2015. It is not consistent with a genuinely held feeling of discrimination of such a serious nature that the claimant could not even identify the correct year. He could hardly genuinely have been confused about whether the alleged incident had been one year or two years previously.

44. The alleged incident concerns two occasions on which volunteers had been sent home. On one occasion the volunteer had been told by the claimant that there had been no work available and that she should simply go home. On the other occasion a volunteer had tried to get into the shop to commence work but the shop had been closed during the lunch break and she had been unable to enter.

45. It is clear that Ms Tweed had simply raised the matter with the area manager. There had been no informal or formal disciplinary action. It appears to the tribunal that this was no more than of sort of ordinary managerial feedback to be expected in such circumstances.

46. The claimant alleges that this was part of a ' continuous and ongoing campaign of discrimination against me based on my sexual orientation' (witness statement) and ' continuous and ongoing discrimination against myself based on my sexual orientation' (grievance of 20 July 2016). In the tribunal application form, the claimant stated ' She has made my working life difficult at every opportunity'.

47. The claimant accepted in evidence that he had no complaint of any sort against Ms Tweed between December 2013 and June 2014. He had never met her. He has never worked with her. There had been intermittent telephone contact to arrange either the claimant's standing-in on her behalf or her or her staff standing-in on the claimant's behalf. It is difficult to reconcile that evidence with the somewhat overblown allegations of a ' continuous and ongoing' campaign of discrimination. Furthermore, the claimant accepted in evidence that he had no complaint whatsoever against Ms Tweed in the period following June 2014 until May 2016; a period of almost two years. Again, three alleged discrete incidents in such a lengthy time period can hardly rationally be described as a ' continuous' and ' ongoing' campaign of discrimination on the ground of sexual orientation or as making the claimant's ' working life difficult at every opportunity'.

48. The claimant, with the assistance of Ms Kernoghan, had drafted a letter of complaint about the second alleged incident. That letter did not mention the first alleged incident at all and did not make any allegation of discrimination on the ground of sexual orientation. That is significant. In the middle of this allegedly ' continuous' pattern of unlawful discrimination, neither the claimant or Ms Kernoghan had apparently been concerned about the first alleged incident or about sexual orientation discrimination, or indeed about any form of discrimination at all.

49. In any event, going back to the second incident, it was clear that Ms Tweed did not know of the first alleged incident in December 2013 at that stage. She had known the claimant was gay but had only known that fact because Ms Kernoghan had told her that the claimant was gay. No one else had told Ms Tweed of the claimant's sexual orientation. There was absolutely no evidence before the tribunal that the normal managerial steps taken by Ms Tweed in this incident had in any way been influenced by the claimant's sexual orientation.

Third alleged incident

50. In May 2006 the claimant applied for the post of manager in the Larne charity shop. That post was due to be vacated by Ms Tweed who was being promoted to the post of area manager and who was then undergoing training in that regard.

51. Ms Tweed was contacted by Ms Tracey Brooks the respondents' Regional Manager. In the course of that telephone conversation, Ms Brooks indicated that three people had applied for the post of store manager. She went through the application forms over the telephone with Ms Tweed. Ms Tweed shortlisted the claimant and Mr David Baxter for interview for the role in Larne. It is clear that Ms Brooks had effectively left the decision on short listing up to Ms Tweed and it is therefore clear that the decision to shortlist the claimant for interview had been entirely that of Ms Tweed's. That is inconsistent with the claimant's allegation that Ms Tweed conducted a continuous campaign of harassment against him and had made his working life difficult at every opportunity.

52. The claimant and Mr Baxter were interviewed by two people, ie Ms Tweed and Ms Paula Arkins. Ms Arkins was already an area regional manager and therefore technically at the time of the interview had been senior to Ms Tweed, who was still undergoing training in that role. Ms Arkins acted as note taker and Ms Tweed asked the questions. It was alleged in the course of the tribunal hearing that that arrangement was in some way sinister. The tribunal concludes that it is clear that this had been normal practice within the respondent company. Interviews were conducted by two people; one person acted as note taker and one person asked the questions. No adverse inference or indeed any inference of any sort can properly be drawn from that practice.

53. Mr Baxter had a City & Guilds Level 3 Award in Retail Knowledge. He also had one year's retail experience, together with other experience as a catering assistant and a chef. He had also worked as a volunteer in the Larne shop.

54. The claimant had a degree in fashion management obtained through the Belfast Metropolitan College. He had experience as a sales assistant in the Ballyclare shop for Barnado's.

55. It seems clear that the interview process had been somewhat amateurish. The list of questions has not been retained. A further example was the question in relation to health & safety. It was marked ' N/A' in relation to both candidates. That had apparently been on the basis that both interviewers felt that this question had only concerned possible adjustments that might be needed in the course of an interview to assist an interviewee. However, it seems to be quite clear from the documentation that that question related to health & safety issues arising out of the running of a shop. Both candidates, even though the issue had been marked ' N/A', were awarded three marks for this question instead of zero. Both candidates were equally affected.

56. In any event, Mr Baxter was awarded 25 marks and the claimant 17 marks. Mr Baxter was rated as ' very good' and the claimant marked as ' average'.

57. The claimant's interview record noted that he did not mention gift aid and did not talk about previous experience until prompted by Ms Tweed and that he had focused on merchandising and not on productivity.

58. Both Ms Arkins and Ms Tweed were clear that Mr Baxter had been the better candidate on the day. His answers had simply been better and more detailed.

59. It was clear that the claimant and indeed his line manager expected that the claimant should get this post and that they were angry when this did not happen. The claimant sought feedback. Ms Arkins provided brief feedback on 31 May 2016. That feedback was kind rather than honest. It said:-

"You gave a good interview but unfortunately you were not the best on the day. Some of your answers lacked clarity and clear examples, where others gave more detail."

60. The claimant alleged that the successful candidate had very limited knowledge of retail business. Ms Kernoghan alleged also in her sworn statement that the successful candidate ' had limited experience and no qualifications in fashion and retail'. When it was put to both the claimant and Ms Kernoghan that the successful candidate clearly had a City & Guilds qualification in retail and retail experience both outside Barnado's and within Barnado's, they were reluctant to accept that position. Ms Kernoghan, remarkably, stated that she had simply assumed that Mr Baxter could have had no relevant qualifications because he had a Facebook picture in a Star Wars costume. The logic of that assertion escapes the tribunal. It is disturbing that Ms Kernoghan made such a remark in a sworn statement when she had absolutely no knowledge of Mr Baxter's qualifications.

61. The claimant and Ms Kernoghan alleged that Mr Baxter and Ms Tweed had been close friends and that Ms Tweed had coached Mr Baxter in relation to the interview questions. Both accepted they had absolutely no direct evidence that Ms Tweed had ever coached the claimant in the interview questions. Ms Tweed had, at the relevant times, been a ' volunteer champion' appointed by the respondent. She had responsibility for encouraging volunteers to progress within the respondent organisation. She accepted that she had encouraged, trained and assisted Mr Baxter in relation to his job. She stated that this had been the normal function in any event of a line manager in relation to volunteer or an employee. It would equally have been the function of Ms Kernoghan to have trained and to have helped the claimant to progress within the respondent organisation. This evidence strikes the tribunal as absolutely correct. There is obviously a line which cannot be crossed where a manager goes beyond ordinary encouragement and training and actively coaches an individual in relation to specific questions which are about to be put to him in an interview. Ms Tweed denies ever having done so. There is absolutely no evidence that she ever did. The tribunal concludes that the assistance and tuition she gave Mr Baxter had been entirely proper and entirely within the normal role of a manager or of a volunteer champion.

62. The claimant and Ms Kernoghan argued that a Facebook post which had been entered by Mr Baxter indicated that something untoward had happened. Mr Baxter in that post, shortly after being promoted had stated:-

"Excited is probably the understatement of the century at the moment. All the hard work and commitment has been worth it and it has finally paid off. None of which would have been possible without the help/support/tuition of Tanya Tweed."

The tribunal concludes that that Facebook posting is entirely consistent with the ordinary course of events where a volunteer or an employee is encouraged and helped by a manager. There is nothing in that posting which indicates that Mr Baxter had been unfairly or improperly assisted in the interview process.

63. The claimant and Ms Kernoghan again argued that the fact that Ms Tweed had bought Christmas presents for her volunteers, including Mr Baxter, indicated that there was some sort of a close social relationship between Ms Tweed and Mr Baxter. The presents involved appear to be of little monetary value and it does not appear that whatever present Mr Baxter received was of a greater value than that received by other volunteers. There is nothing in any of this which suggests any improper behaviour on the part of Ms Tweed.

64. The claimant lodged a grievance on 20 July 2016 raising (with incorrect years for the first and second alleged incidents) the same matters as the tribunal application.

The grievance was herd by Mr Sean Connors. He interviewed the claimant, Ms Tweed, Ms Arkins and Mr Baxter. He did not uphold the grievance.

65. The claimant appealed that decision and the appeal was held by Mr Graham Ingram. He interviewed the claimant, Ms Wills, Ms Swann, Ms Arkins and Ms McIlwhinney. He did not uphold the appeal.

66. After the interview, Ms Arkins notified the claimant of a vacancy for a manager in the Antrim shop and encouraged him to apply for it. The claimant again appeared to see something sinister in this action. However, Ms Arkins had directly notified another member of staff who might have been interested in the vacancy. The vacancy had also been advertised to all staff through the respondent's intranet. The tribunal does not see anything odd in any of this.

Decision

67. In relation to the first alleged incident in December 2013, the tribunal has concluded that the incident did not take place as allegedly reported by Ms McIlwhinney. Equally, the tribunal has concluded that Ms Tweed did not know of the current allegation, ie the allegation that Ms Swann had commented on the claimant's sexuality, until after the interview process. The first incident, therefore, even if it had taken place, could not have any bearing by way of evidence on the subject-matter of this claim, ie the promotion process.

68. In relation to the second alleged incident the tribunal has concluded that there was absolutely nothing wrong in what Ms Tweed did in relation to the complaints raised by the two volunteers. This alleged incident therefore cannot have any evidentiary impact on the subject-matter of this claim.

69. The claimant alleges that the decision in May 2016 to promote David Baxter was a decision which had been based on the claimant's sexual orientation.

70. It was pointed out at the hearing that no evidence had been brought to establish Mr Baxter's sexual orientation and therefore no evidence had been brought to establish any basis for a comparison between the claimant and Mr Baxter on that ground. The claimant's representative argued that the claim was not one of comparison but one simply of discrimination against the claimant on the basis that he was gay, ie a claim involving a hypothetical comparator.

71. In the first place, the only person who had ever mentioned the claimant's sexuality in this matter was Ms Kernoghan. She had told Ms Tweed of the claimant's sexuality. There was no evidence before the tribunal that either Ms Tweed or Ms Arkins had in any way taken his sexual orientation into account in the promotion competition.

72. The claimant's allegation was basically that Ms Tweed had a homophobic view and that she had been prejudiced against the claimant on that basis. She had engaged in a continuous and sustained campaign which even on the claimant's version of events concerned three isolated incidents over a period of as many years. She had never met the claimant. She had never worked with the claimant. She had assisted and had facilitated the claimant in covering for him and allowing him to earn extra money by covering for her. She had shortlisted the claimant for interview. It was alleged, on the basis of Facebook posts, that she had been a close personal friend of Mr Baxter. That seems highly unlikely and it is difficult to see how the claimant could have reached that conclusion. It was alleged that Ms Tweed had actively coached Mr Baxter and that she had subverted the interview process. That again seems highly unlikely. There was no evidence to support such a serious allegation. It was alleged that Ms Arkins, who was then the senior of the two managers had allowed herself to be dictated to by Ms Tweed in pursuit of this alleged homophobic agenda and that she had facilitated the marking down of the claimant in the interview process. This allegation is not credible.

73. The legislation provides for a two-stage approach. However, as indicated in the case law, it is often the case that the two-stage approach need not be adopted. It is often the case that after hearing the evidence the tribunal is in a position to reach a definite decision on the issue, ie on the issue of whether or not unlawful discrimination had occurred as alleged. In this case the decision, after the hearing the evidence, is obvious. There has been no unlawful discrimination in this matter at all. This was a straightforward case of an interview in which the better candidate at the interview had been appointed.

74. The claim of unlawful discrimination therefore is dismissed.

Costs

75. The respondents indicated that it wished to have a costs hearing in this matter. They felt that Ms Kernoghan had dictated and pushed this complaint because she had a dispute with the first-named respondent. That may well have been the case. However it seems that the claimant, despite the absence of any evidence, has now allowed himself to be convinced that unlawful discrimination had occurred. He is unlikely to be in a position to meet any costs order that might be made. The Vice President indicated that costs were a comparative rarity in this jurisdiction. Costs did not ordinarily follow the event. If the respondents feel that they wish to pursue this matter it should apply in writing setting out, in full, their argument in relation to costs in this matter. If that is done, a separate costs hearing will be arranged to determine whether or not costs should be awarded against the claimant in this matter.

Vice President

Date and place of hearing: 22 - 23 February 2017, at 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 >> Hunter v Barnardo's [2017] NIIT 01779_16IT (03 March 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01779_16IT.html Cite as: [2017] NIIT 1779_16IT, [2017] NIIT 01779_16IT

Industrial Tribunals Northern Ireland Decisions