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McGregor v Board of Governors Holy Trinity College & Ors (Sex Discrimination on Grounds of Victimisation) [2002] NIIT 00232_99 (21 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 00232/99SD

02965/99SD

02951/00

APPLICANT: Shaun McGregor

RESPONDENTS: 1. Board of Governors Holy Trinity College

2. Council for Catholic Maintained Schools

3. Patrick Convery

DECISION

The unanimous decision of the Tribunal is that the Tribunal hold that the applicant was not subject to victimisation as defined in Article 6 of the Sex Discrimination (NI) Order 1976 ("the Order"), by any of the respondents.

Appearances:

The applicant was represented by Mr Canavan, Solicitor.

The respondents were represented by Mr McAteer, Barrister-at-Law, instructed by James Napier & Sons, Solicitors.

At the outset of the proceedings the applicant's solicitor Mr Canavan informed the Tribunal that his client the applicant was only proceeding with his claim alleging victimisation being 02965/99SD. The applicant therefore withdrew his other two claims before the Tribunal namely 00232/99SD and 02951/00. Although there are three respondents named, the applicant's claim was mainly directed against the first named respondent, which will be hereinafter called the respondent. The claims against the other two respondents will be dealt with later in this decision.

1. The facts

1.1. The applicant who is in his early fifties and having a lifetime of teaching experience was in July 1998 appointed to the position of acting Head of the Careers Department at Holy Trinity College. The applicant took up his responsibilities in September 1998.

1.2. In September 1998 the position of Head of Senior School at Holy Trinity College was advertised and the applicant was one of six applicants for that post.

1.3. On 14^th October interviews were held and the results of the interviews were posted to the candidates that evening. The applicant was not the successful candidate and on 19^th October 1998 the applicant left the School and did not return until 14^th December. On 19^th October 1998 the applicant's doctor certified that the applicant was suffering from viral illness.

1.4. On 19^th October 1998 the applicant wrote to Monsignor Murray, the Chairman of the Board of Governors of Holy Trinity College, stating that he felt he was better qualified and experienced for the post of Head of Senior School than the successful applicant and requested details of the selection criteria for the post and information as to how the successful person was preferred to himself. It appears, although a reply was drafted to that letter, no response was actually sent to the applicant.

1.5. On 3^rd November 1998 Mr Tom McKee of the National Association of Schoolmasters and Union of Women Teachers (NASUWT) wrote to Monsignor Murray asking for the same details as had been requested by the applicant in October.

1.6. On 2^nd December 1998 the applicant through NASUWT sent a Questionnaire under the Sex Discrimination procedure to the Board of Governors.

1.7. On the evening of Sunday 13^th December 1988 the applicant telephoned Mrs Kelly, the Vice Principal of the College, and informed her that he would be returning to his duties the following day. There was some dispute in the evidence of the applicant and Mrs Kelly as to the tone of this telephone call. The applicant remembered the call to have been perfectly friendly but brief whilst the recollection of Mrs Kelly was that the call was abrupt in tone and somewhat threatening. Reference will be made to this telephone call when dealing with the evidence of the parties later in this Decision.

1.8. On Monday 14^th December 1998 the applicant returned to his post.

1.9. On Wednesday 16^th December 1998 the applicant alleged that he was the subject of harassment from the Principal Mr Patrick Convery. The Tribunal heard the applicant's recollected of that incident, which was recorded in a letter which he wrote that evening to Monsignor Murray and in which he stated that Mr Convery had approached him in a most provocative aggressive and quite intimidating manner and shouting at him in his own classroom. This altercation revolved around the fact that certain pupils, who the Principal felt should be in the applicant's class, were in fact watching the School musical and again the evidence will be reviewed later in this Decision.

1.10. As a result of the applicant's letter to Monsignor Murray the Board of Governors set up a sub-committee to investigate the complaint which arose out of that letter. A meeting was arranged for 18^th January 1999. The applicant wrote to Monsignor Murray on 14^th January 1999 saying that he had deliberately chosen not to invoke the grievance procedure regarding the harassment he had suffered at the hands of the Principal Mr Convery but had made "a fairly straightforward request seeking a written assurance where my personal safety from harassment and stress at work (from the Headmaster) was guaranteed". He was therefore perplexed as to the procedural arrangements for the proposed meeting on 18^th January 1999. This proposed meeting does not appear to have taken place.

1.11. In the meantime however Mrs O'Neill a school secretary who had handled much of the administrative work in the Careers Department whilst the applicant was on sick leave herself went on sick leave on Monday 18^th January 1999.

1.12. Mr Convery then set up a meeting with the applicant on the morning of Tuesday 19^th January 1999 to discuss the running of the Careers Department. This meeting appeared to have started badly, as the applicant wished to be accompanied by a Union Representative whilst the Principal felt that this was merely a routine management meeting and not in anyway a disciplinary meeting and that a Union Representative was inappropriate. This meeting appears to have been somewhat difficult as at one stage the Principal, in his own note of the meeting, stated that it was a difficult meeting. On 23^rd January 1999 the applicant wrote to Mr Convery stating that he felt the meeting was "an inquisition of unbelievable unfairness and an attempt to degrade my competence and integrity", again he alleged that the behaviour of Mr Convery was harassment and very endurous to his health. In a subsequent letter of 30^th January 1999 the applicant wrote to Mr Convery stating he wished to invoke the grievance procedure and he felt that during the course of the meeting the Principal's comment, that the applicant was "talking gibberish" was grossly unfair and unjustified. Mr Convery in his reply stated that he did not recall having used the word "gibberish", but that if the Union Representative accompanying the applicant recollected that, then he withdrew the word and offered an apology. Obviously the whole meeting had been most unsatisfactory.

1.13. In a letter of 12^th February 1999 to the applicant, the Board of Governors invited the applicant to respond in writing to the Board, giving an explanation on various points. The applicant endeavoured to answer the various points that were raised and correspondence continued during the next month or so between the Principal and the applicant. The correspondence got more bitter as it went on, and on 11^th May 1999 the Board of Governors wrote to the applicant stating that the difficulties between the Principal and the applicant were such that the School was in effect operating without a Head of Careers and that this state of affairs could not go on any longer. The Board of Governors therefore stated that they had decided that the applicant's tenure in the position of Acting Head of Careers should end on receipt of the letter.

1.14. This letter purportedly ending the applicant's post as Head of Careers brought a response on 17^th May 1999 from NASUWT claiming that this was totally unfair and the Governors could not take a unilateral decision of this nature without going through the proper procedures. The Board of Governors replied on 8^th June stating that the applicant was still in receipt of his payment for his acting up as Head of Careers Department and that the Board was seeking advice from the CCMS concerning the position. In the meantime, time-tables were being prepared for the next academic year 1999-2000. The applicant wrote on 23^rd June 1999 to the respondents Holy Trinity College requesting details of the proposed careers classes and details of the time-table. The Principal responded by stating that the acting up Head of Department was not involved in time-table issues for the next year, but gave him details of his classes for the year nevertheless.

1.15. The applicant's application 02965/99, the application which proceeded before this Tribunal, was received by the Tribunal office on 1^st July 1999. This was shortly after the new time table was revealed to the applicant.

1.16. After the College issued the time tables for the next school year the applicant corresponded with the College concerning the reduced number of careers periods that had been allotted to him in the next year's time-table. He alleged that this had weakened his position as a careers teacher and this was particularly important to him as he had applied for the post of Head of Careers/Vocational Guidance at the College.

1.17. The applicant took his complaint concerning the reductions in his careers periods to a grievance sub-committee which sat on 22 September 1999. He alleged that his number of Careers periods had been reduced from 31 to 8 per week. The Minutes of the meeting held on 22^nd September 1999 referred to the meeting as a "Grievance/Discipline Sub-Committee". Divergent evidence was given to the Tribunal as to the way this meeting was conducted. The applicant stated that he was greeted, with his Union Representative, "in stony silence" and after his presentation was made the panel remained silent and asked no questions by way of clarification. The applicant stated that his treatment was not because of competence qualifications or experience, "there are alternative motives". Monsignor Murray stated that the meeting had been conducted in a reasonable way and that he as Chairman had greeted the applicant and Mr McKee of NASUWT when they arrived.

1.18. The matter then moved to the Labour Relations Agency in October 1999 but without a successful outcome.

2. The Tribunals views on the Evidence

2.1. The evidence of the applicant was that from 19^th October 1998 when he first wrote to Monsignor Murray asking for details of the Selection Criteria for the post of Head of Senior School, he was the subject of victimisation at the hands of the Principal Mr Convery and the Board of Governors. The applicant relied on a number of incidents which he outlined to the Tribunal.

2.2. The first of these instances was on Wednesday 16^th December 1998 being the incident referred to in Clause 1.9 above (when the Principal allegedly shouted at him in his own classroom). The only two witnesses that the Tribunal heard concerning this altercation were the Principal Mr Convery and the applicant. The applicant obviously felt that he had been wrongly accused of failing to control his class and allowing pupils to attend the School Show when they should have been at his class. The Principal's evidence was that several pupils were found loitering around the Show and this annoyed him and he took the matter up with the applicant, but not in any overly aggressive manner.

2.3. The Tribunal having considered the evidence of this particular incident come to the conclusion that the incident resulted from a certain amount of annoyance on the part of the Principal, who was endeavouring to keep the academic side of the School going whilst the alternative delights of the School Show were seducing the pupils away from their classes. The Principal's natural annoyance was vented to some extent on the applicant but in the view of the Tribunal this was not an act of victimisation, resulting from the applicant's application to the Tribunal, but merely the Principal's way of trying to keep order in the School. He would have acted this way with any teacher in a similar situation.

2.4. There was then the proposed meeting on 18^th January referred to in Clause 1.10 above, where the applicant had deliberately chosen not to invoke the grievance procedure, but had merely made the request seeking personal safety from harassment and stress at the hands of the Principal. The applicant in his evidence reiterated the points that he had made in his lengthy letter of 16^th December 1998 to Monsignor Murray and the Tribunal hold that the Board was correct in setting up a sub-committee to look into the allegations. There was obviously some confusion about the meeting but in any event it appears not to have taken place and the Tribunal hold that this was not an incident of victimisation. The Board of Governors were in the view of the Tribunal responding in what they considered a proper way to the complaint of the applicant.

2.5. The meeting described in Clause 1.12 above on 19^th January 1999 (which resulted from Mrs O'Neill the School Secretary going on sick leave), was in the view of the Tribunal a genuine meeting arranged by the Principal to see how the Department would run in the light of Mrs O'Neill's absence. Whilst the applicant had himself been on sick leave, a great deal of the work had been carried on in the Department by Mrs O'Neill. The Tribunal is satisfied that the Principal had a genuine interest in discussing the way forward with the applicant. The Tribunal heard the evidence of both Mr Harvey, the Trade Union representative and the applicant concerning this meeting and the evidence of the Principal as to the way the meeting progressed. Unfortunate things were said by both parties and the meeting got heated. However, the Tribunal hold that even though the meeting was unsatisfactory in many respects the Principal's conduct of the meeting was not harassment arising out of the applicant's claims before the Tribunal but was an attempt by the Principal to elicit information concerning the running of the Department and an endeavour to find a way forward for the Department. The Tribunal hold that any conflict that arose between the parties at that meeting was not due to a desire on the part of the Principal to harass the applicant but was the result of a certain amount of antagonism between the two men which had nothing to do with the applicant's claim before the Tribunal.

2.6. The applicant laid great stress on the fact that under the new time tabling for the next academic year his number of careers classes was reduced to 8. He was also asked to take history lessons which he had not taken for many years. The Principal gave evidence to show that the new time tabling was to allow for a new Head of Department to be slotted into the Careers Department and that the applicant could not be given the same number of careers classes as in the previous year as that might be considered to be unfair in the selection process for his successor. The Tribunal hold that the applicant, despite receiving fewer classes in careers than in the previous year, did not receive those as "a punishment" for having brought claims against the College, the College had to keep open careers lessons for the incoming Head of the Careers Department.

2.7. The Tribunal was troubled by the allegation of the applicant, that he had been demoted by the letter of 11^th May 1999 (Clause 1.13 above). It seems quite clear that the College did in that letter endeavour to demote the applicant from his position, but on receipt of the letter from the applicant's representatives NASUWT, the Board wrote to redress the position. The Tribunal is critical of the conduct of the Governors at this juncture but hold that the decision was made out of a genuine frustration at the way matters were proceeding in the Careers Department and the total lack of progress through any sort of reasonable or constructive correspondence or meetings between the parties. The Tribunal do not agree that the so called demotion, which in any event was redressed so far as the College could do so, was as a result of the applicant's applications to the Tribunal but was a result of the ongoing frustration felt by both the Principal and the Board.

2.8. The Tribunal heard two differing accounts of the telephone call referred to in Clause 1.7 above. It was agreed that the applicant telephoned Mrs Kelly, the Vice Principal of the College, on the evening of 13^th December. The applicant in his evidence stated that when he telephoned Mrs Kelly on the Sunday evening he had a short but courteous conversation with her. He accepted that he was giving very short notice to return to the School after a lengthy period of absence, but he was anxious to return before the Christmas holiday. He said he was apprehensive about coming back and "needed to sort out his self-esteem". Mrs Kelly in her evidence said that she was put off by the applicant's abruptness when he immediately informed her, after saying who he was, that he would be back in the School in the morning. Mrs Kelly asked how the applicant was, to which he merely repeated that he would "be back in the School tomorrow". Mrs Kelly, taken aback by this abrupt tone, thanked him and put down the receiver. The Tribunal consider that the tone of this conversation is more accurately described by Mrs Kelly than by the applicant and accept her evidence concerning it. It does indicate to the Tribunal that the applicant was returning to the School in a somewhat belligerent mood, which to some extent explains his conduct with the Principal when they had their confrontation on 16 December.

2.9. The Tribunal also heard evidence from Monsignor Murray that some years before the events that had been described in this decision, namely in or about October 1996, after Monsignor Murray had been appointed to Cookstown he received a call one evening from the applicant asking if the applicant could call to see him. Monsignor Murray agreed to meet the applicant and the applicant arrived later that evening with two brief cases and other documents under his arm. He stayed with Monsignor Murray for nearly four hours, until about midnight, recounting his problems and grievances with regard to the College. It is quite clear from the evidence of Monsignor Murray, which the Tribunal accept, that the applicant bore a grudge against the College well before the incidents in the Autumn of 1998, and which appear to stem from the merging of the two previously separate schools of St Patricks and Our Ladies and the applicant's failure to be appointed to the position to which he aspired at that time.

2.10. Finally, with reference to the meeting on 22^nd September 1999, referred to in Clause 1.17 above, the Tribunal hold that that was an unfortunate meeting and an impression of hostility might well have been given to the applicant and his representative. The Tribunal hold however that again this behaviour on the part of the Governors concerned was not evidence of victimisation, but was evidence that the Board of Governors had reached such a stage of frustration and apprehension concerning the position of the applicant, that the members of the Board simply did not trust themselves to say anything, lest it placed them in an ever more difficult situation with the applicant. The meeting was held after the applicant had issued his application No: 02965/99, the application which proceeded before the Tribunal.

3. Decision of the Tribunal

3.1. The actions of the Principal in this matter are actions that he took as an employee of the College and the claim made against him in his personal capacity is dismissed.

3.2. There is no evidence that the Council for Catholic Maintained Schools played any part in these events except in advising the College and the application against that body is also dismissed.

3.3. For the reasons set out in the paragraphs of 2 above, the Tribunal hold that the applicant has not been the subject of victimisation by the Board of Governors of Holy Trinity College. In reaching this decision the Tribunal are conscious of the long history of this dispute. The applicant obviously has grievances concerning his progress through the ranks of the School and to an extent has not been able to accept the fact that he has not progressed in his career as he would have wished. This has embittered him against the Principal and other members of the staff and the Board. His main claim that he was wrongly rejected for the post of Head of Senior School was not pursued but the applicant has pursued this claim, alleging that as a result of his making the aforesaid complaint that he has been victimised. This in the view of the Tribunal is simply not true, the applicant has imagined victimisation in actions on the part of the Principal that were merely attempts by the Principal to run the College in an efficient way. As meetings became more acrimonious and the correspondence became more unpleasant, the applicant became more convinced that he was being victimised. The Tribunal hold that there has been no victimisation but merely an attempt by the Principal, as the employee of the Board and the Board to manage the College and to deal with the applicant's complaints as they arose.

3.4. The Tribunal hold that the applicant, who had instituted a sex discrimination claim (a "protected act" under Article 6 of the Order), was not treated less favourably than another teacher of the College who had not done a protected act. The only incident where the applicant might be able to say that he was in fact treated differently, was at the meeting on 22 September 1999, where he was heard in silence. This was after he had issued this application and the Governors were entitled to reserve their position in the light of pending proceedings, without laying themselves open to further charges of victimisation. (Chief Constable of West Yorkshire Police v Khan 2001 IRLR 830).

4. Costs

Mr McAteer on behalf of the respondents asked the Tribunal to make an award of costs against the applicant in this case. However the Tribunal are not minded to so award costs, as in some respects the respondents brought their troubles on themselves. They failed to respond to letters (eg the applicant's request for details of the person appointed to the post referred to in Clause 1.4 above). The Governors created a muddle concerning the type of meeting held to investigate the applicant's grievance (Clause 1.17 above), which was described to the applicant as "Grievance/Discipline". The unilateral attempt to remove the applicant from his post of Acting Head of Careers (clauses 1.13 and 1.14), without invoking the proper procedure was heavy handed and only encouraged the applicant to proceed before the Tribunal.

____________________________________

Date and place of hearing: 29 April 2002–3 May 2002, Omagh

and 17-21 June 2002, Belfast

Date decision recorded in register and issued to parties: