THE INDUSTRIAL TRIBUNALS
CASE REF: 584/06
CLAIMANT: Mary Theresa Annette McCarron
RESPONDENTS: 1. Fr Patrick Baker
2. Bishop Hegarty
DECISION
The unanimous decision of the tribunal is that the claimant's claim of discrimination on racial grounds is dismissed.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Members: Mr Lindsay
Mr Crawford
Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The respondent was represented by Mr J Coyle, Barrister-at-Law, instructed by McKeone & Company, Solicitors.
- The claimant alleges that she was the victim of racial discrimination perpetrated by the first-named respondent. At a Case Management Discussion on 19 January 2007, the parties agreed that the issue to be determined by the tribunal in relation to the claimant's claim of racial discrimination against the first-named respondent is:-
"Whether the claimant was discriminated against on grounds of race in that she was dismissed by the first-named respondent."
In essence the claimant complained that the first named respondent treated her less favourably than he treats or would treat other persons on racial grounds.
- In the event of the tribunal finding in favour of the claimant, it was submitted that the tribunal should make appropriate awards on the basis of the respondent's failure to provide employment particulars in accordance with Article 27 of the Employment (Northern Ireland) Order 2003 or to follow the statutory dismissal procedures as required by Article 17 of the same Order.
- As noted in the Record of the Case Management Discussion, the claimant withdrew her claim against the second-named respondent.
- Sources of Evidence
The tribunal heard evidence from the claimant, Father Baker (the respondent), Father McLaughlin, Lorna Monk and Father Gormley.
- The Tribunal found the following facts
There was little dispute between the parties as to the events that gave rise to the claim and as is often the case such differences as arose were largely in terms of how those events were perceived by the participants. In setting out the factual background, we have therefore made extensive reference to those perceptions without which it would be impossible to gain a proper understanding of the case made by the claimant.
- The claimant is a member of the Irish Travelling Community and was employed by Father Baker as a Parochial Housekeeper in St Brigid's House, Carnhill, Londonderry, from 27 June 2005 until 13 March 2006. The claimant was initially appointed on a six-week probationary period and commenced work on 27 June 2005. The housekeeping duties were shared between the claimant and Carmel Rankin. Rose McIntyre worked for the respondent for four hours on Mondays. In addition Lorna Monk was employed as a secretary.
- Over the succeeding months a number of incidents occurred that the claimant believes provide evidence of Father Baker's discriminatory attitude towards members of the Irish Travelling Community.
- On the claimant's first day in post, the respondent advised that she would find that there was a problem with 'itinerants' coming to the door. Father Baker could not specifically recall making reference to 'itinerants' but accepted that he may have done so. The claimant regarded the use of this word as unacceptable and insulting to members of the Irish Travelling Community whereas the respondent did not regard it as in any way disparaging.
- In the summer of 2005, a female member of the Irish Travelling Community called at the Parochial House and used the telephone in the kitchen. The claimant recognised her as a distant cousin of hers. After she made a telephone call Father Baker escorted her to the front door. Father Baker then returned to the kitchen and instructed the claimant to clean the telephone, which was on the kitchen worktop. Father Baker accepted that he instructed the claimant to clean the telephone and maintained that this was because he did not want any unpleasant smell lingering as the Parochial House was used by other visitors and parishioners. Father Baker claimed that he would have applied the same standards to any person of whatever background whose personal hygiene was an issue. The claimant was not aware of anything unhygienic about this person and believed that she was treated this way because she was a member of the Irish Travelling Community. Mrs Monk was not surprised about this incident as Father Baker was meticulous about hygiene generally and kitchen telephone was beside the cooker. We are satisfied that Father Baker's actions were solely based on hygiene considerations.
- Mrs Monk was generally supportive of Father Baker and gave evidence in relation to a female member of the Irish Travelling Community who called at the Parochial House every week to borrow £20.00 and paid it back the following week. Mrs Monk had never heard Father Baker make any derogatory remarks about her or any other visitors to the Parochial House.
- The claimant also made reference to comments made by Father Baker in respect of an annual bus trip organised by St Vincent de Paul. According to the claimant, Father Baker checked the list and saw that there were members of the Irish Travelling Community on it. Father Baker then indicated that if they were going on a bus trip he would be sure not to as members of the Irish Travelling Community were on the trip the previous year and had brought cans of beer aboard and had become drunk. The claimant believed that the vast majority of the names on the list were from the settled community a lot of whom would take carry-outs on the bus but that Father Baker did not make any remarks about them or threaten not to go on the bus because of their drunkenness. It was certainly the case that there was an incident on the previous year's bus trip when a member of the Irish Travelling Community consumed alcohol and as a result was physically sick at a hotel and it is not disputed that Father Baker passed comment on the bus trip. Father Baker denied making any reference to members of the Irish Travelling Community in this context and we prefer his evidence on this matter.
- In December 2005, Father Baker congratulated the claimant and her fellow housekeepers on a five-course meal that was prepared for the Parish Savings Committee. A couple of days before Christmas, Father Baker gave each member of staff including the claimant a Christmas card and a bonus of £100. The respondent wrote on the card, "Mary, you are doing a great job". A similar inscription was written on each card.
- In early February 2006, Father Baker told the claimant and Lorna Monk about an incident that occurred the previous night when he had attended at Altnagelvin Hospital to visit a member of the Irish Travelling Community who was seriously ill. Father Baker was stopped by a nurse who informed him that it was 'relatives only' and asked if he was a relative of the patient. Father Baker found this very amusing and remarked to the claimant and Lorna Monk, "Did she not see the collar. Did she not see it" and "Maybe she thought I was her boyfriend". The claimant took from this episode that Father Baker regarded it as ridiculous that anyone would believe him to be related to a member of the Irish Travelling Community. In his evidence to the tribunal, Father Baker explained the incident on the basis that he found it amusing that the nurse might have thought that he was the patient's boyfriend or her husband. We prefer Father Baker's evidence in relation to this incident which strikes us as more plausible than the claimant's rather over sensitive interpretation.
- A theme of the claimant's case was that Father Baker's attitude to her changed as a result of Father Baker becoming aware that she was a member of the Irish Travelling Community. One possible source of this knowledge which was examined in evidence was Father McLaughlin. Father McLaughlin had officiated at the funeral of the claimant's father, Mr Simon McGinley on 14 February 2005 and afterwards, attended the claimant's sister's house where Mr McGinley was being waked. Father McLaughlin could not recall seeing the claimant and had no idea that Mr McGinley was a member of the Irish Travelling Community. At its height the claimant's case was that Father McLaughlin would have been aware of the racial origins of the claimant's family from observing in the hall a 12 inch by 12 inch colour photograph of barrel topped wagons that one would associate with the Irish Travelling Community in the hall. However, we accept Father McLaughlin's unequivocal evidence that he did not see such a photograph and it was not suggested that there was anything else about the house that would alerted him to Mr McGinley's ethnic origins. On 14 February 2006, Father McLaughlin officiated at the First Anniversary Mass held for Mr McGinley. According to the claimant, a number of well-known members of the settled Irish Travelling Community attended the Mass. Father McLaughlin had no recollection of the anniversary mass and was adamant that he did not inform the respondent that the claimant was a member of the Irish Travelling Community. Father McLaughlin often spoke to the claimant when he visited the Parochial House. Moreover, when pressed in cross-examination, the claimant denied ever suggesting that Father McLaughlin had passed on information to Father Baker about her ethnic origins and was not sure if he had even been in her sister's house.
- Early in the morning of 7 March 2006, in the presence of Father Baker, Mrs Monk asked the claimant about a Dublin telephone number that the claimant had incorrectly taken down. According to the claimant Father Baker referred to the telephone number and said he was asking himself if this woman was drunk or what? She can't even take down a simple message. The claimant believed that this remark demonstrated that the respondent had lost respect for her as drunkenness is an insulting comment that he used about members of the Irish Travelling Community.
- Later on that morning, Father Baker asked the claimant to come to his office to discuss her performance in her job. It was common case that this was the first time that Father Baker raised any concerns about the claimant's performance of her duties. The claimant attended and was very emotional. She asked if she was getting the sack to which the respondent replied no. Father Baker asked the claimant if she was content in the job and she told him that she was and wanted to know what was wrong. Father Baker said that he had been hearing a lot about the claimant and that she was unhappy in the post and that she could leave right now if she wanted to. The claimant assured Father Baker that she was happy. Father Baker then asked the claimant if she thought she was suited to the position because he did not think that she was. Father Baker then referred to the fact that the claimant would be in her post for a year in June 2006 and stated that before that date either the claimant could leave or Father Baker could say that he wanted the claimant to leave without either of them giving any reason. Father Baker informed the claimant that he meant to have this talk with her before Christmas but that he had not got round to it because of his sister's illness.
- Father Baker outlined his concerns about the claimant's performance of her duties. The first matter raised by Father Baker was the standard of food that was being prepared for mealtimes. Father Baker indicted that he thought that the claimant lacked initiative and that more variety was required. Father Baker also stated that frozen vegetables should not be used for dinner. Father Baker went on to complain about the claimant's failure to take down telephone messages accurately. He gave as an example the Dublin telephone number that had been incorrectly written down by the claimant. The claimant advised Father Baker that she had a hearing problem. Father Baker was unaware of this and regarded it as a perfectly adequate explanation. He apologised and jokingly remarked that on occasions one would have thought that the claimant had drink taken because of the lack of accuracy in the messages. According to Father Baker they both laughed. However, the reference to alcohol made the claimant suspect that Father Baker had discovered her origins and was deliberately insulting her in the hope that she would walk out.
- The claimant asked if this was a verbal warning and Father Baker replied, "No" and gave a similar reply when the claimant asked if she was being dismissed and indicated they were just having a chat and that if he wanted to dismiss her he would. The claimant then alleges that she said to the respondent, "Father, what is this really about?" According to the claimant, Father Baker drew back and looked at her in silence. The claimant then went on to say that she believed that Father Baker owed her an explanation. Father Baker replied that he was hearing from other staff that she was a disruptive influence, in that she was demanding a ladies only bathroom and uniform. The claimant explained that Father Gormley had arranged a ladies only bathroom some months ago when the respondent had been away for a week. Father Baker told her that Father Gormley was not her employer and that she should bring any complaints directly to him. The respondent then indicated that he expected an improvement in the quality of the food that was being produced and that if she had any queries in relation to her money, tax code or the facilities available on the premises she should discuss them with him and no one else. Father Baker advised the claimant not to talk to other staff about this meeting.
- As the claimant moved towards the kitchen, Father Baker held his arms wide and indicated that he wanted to hug her and did so. The respondent then said, "As I said, if either you want to leave or I want you to leave before June we do not need to give a reason to one another". Before opening the door Father Baker said that he was glad that he had got this off his chest before he went out for the day. Father Baker advised the claimant that he would talk to her again before her first year was up in order to review her performance. The claimant gave evidence that although she was upset, she remained at the Parochial House until the end of the day as there were emergency telephone calls coming in and she thought it would be unfair to leave Father Gormley who was very busy and she made his dinner before leaving at 6.00 pm.
- On Wednesday 8 March, the claimant had an appointment with her general practitioner, Doctor Molloy, about a back complaint. It is clear that the claimant raised work issues with the doctor who made the following entry in her records:
"Stress at work boss bullying making life very unpleasant. Tearful today agreed on time off."
Doctor Molloy signed the claimant off work on sick leave for four weeks. There was no reference in the medical records to any complaint of racial discrimination.
- On the afternoon of 9 March 2006 the claimant contacted Father Baker on his mobile phone and arranged a meeting with him at 6.30 pm that same day. When she arrived it was clear that she was very angry and she told Father Baker that when she thought about the meeting on 7 March, she regarded it as nothing but short of an onslaught. The claimant told Father Baker that she was very upset because she thought she was giving 110% to the job and the things he had said to her were unjust and hurtful. Father Baker said that he did not think they were. The claimant accused the respondent of being very angry and aggressive towards her. The claimant did not believe that Father Baker's complaints about her were genuine and drew attention to the Christmas card that Father Baker had given her and the generous bonus. The claimant also accused Father Baker of listening to other stories from staff which were embellished and defamatory, suggesting that she was drunk while working in the house and of committing a criminal offence by not giving her a contract. The claimant replied, "You've heard something about me haven't you, that has changed your mind about me." According to the claimant, Father Baker did not reply. Father Baker denied that the claimant made such a remark. It was clearly a heated meeting and while both parties give broadly similar accounts of their exchanges, this is the only significant point of difference. The claimant impressed the tribunal as being an accurate historian and we are inclined to accept that she made a remark along these lines. We do not however believe that Father Baker deliberately suppressed this exchange but rather we are satisfied that he simply did not recall the claimant saying this to him. Father Baker then asked the claimant what she was going to do now. The claimant told Father Baker that she had cried non-stop and had gone to the doctor who had given her a sick note for four weeks due to stress and back pain. Father Baker asked the claimant what he should do with the sick note and she replied "Do with it what you will". The claimant then gave Father Baker her sick line and stated, "I don't think this is a very Christian household".
- Father Baker was stunned by the claimant's reaction at the meetings on 7 and 9 March and did not feel that they could continue to work together in view of the way that the claimant had conducted herself at the meeting on 9 March.
- By letter of 13 March 2006, Father Baker informed the claimant that her employment was terminated with immediate effect. No reasons were given for the claimant's dismissal. We accept Father Baker's evidence that he did not set his reasons for dismissing the claimant because he thought that this would aggravate matters.
- On 21 March 2006, the claimant wrote to Bishop Hegarty and indicated that she wished to make a complaint under the statutory dispute resolution procedures that she had been subjected to unlawful discrimination on the grounds of her race. The claimant also set out her account of her meeting with Father Baker on 7 March 2007. The claimant stated that she had been doing her job for ten months without complaint and that up until the meeting on 7 March 2006, Father Baker had treated her with respect but that at the meeting his attitude was one of aggressiveness and contempt towards her. The claimant went on to refer to the meeting on 9 March 2006 and alleged that when she put it to Father Baker that he had personal reasons for wanting her out of the job, he refused to answer. The claimant referred to the failure to give reasons for the termination of her employment and claimed that all of the complaints made at the meeting on 7 March 2007 were petty and unjustified. In the penultimate paragraph of her letter, the claimant stated as follows:
"In the absence of any reasonable explanation for my sudden unsuitability for the position, I can only conclude that this is because Father Baker has become aware that my ethnic roots are that of an Irish Traveller."
- Bishop Hegarty spoke to Father Baker about the claimant's complaint of discrimination at a conference at a local hotel on 21 March 2006 and passed the claimant's letter to Father Baker for reply.
- In his reply to the claimant's letter to Bishop Hegarty, Father Baker stated as follows:
"I wish to make it clear that the termination of your contract had nothing to do with the fact that your ethnic roots are that of an Irish Traveller. I would point out that until I received your letter I was completely unaware of your ethnic roots and can assure you that it played no part in my decision to terminate your contract."
Father Baker further informed the claimant that he had taken advice and believed that the statutory dispute resolution procedures did not apply and that his decision of 13th March therefore remained unaltered.
- On 31 March 2006, Father Baker asked Father Gormley to type out his notes of the meetings with the claimant on 7 and 9 March 2006. Father Baker dictated his handwritten notes to Father Gormley who at no time saw the original handwritten notes which were destroyed by Father Baker once he received the typed versions.
- After her dismissal, the claimant claimed incapacity benefits but this was delayed because there was a difficulty in contacting the respondent. In any event, the claimant thereafter devoted herself to caring for her ill husband on a full-time basis and applied for Carers Allowance. Again this was held up because Father Baker failed to reply to requests for information made by Social Services. The claimant did however receive Income Support from 18 April 2006 and subsequently received Carers Allowance backdated to 18 April 2006 but with the Income Support element being recouped.
- The claimant served a statutory questionnaire dated on 13 June 2006 which was subsequently replied to by Father Baker's solicitor.
The Parties' Contentions
- Mr McKee, on behalf of the claimant, contended that there was a sudden and unexplained change in the claimant's treatment and this was as a result of Father Baker discovering that she was a member of the Irish Travelling Community. Thus, Mr McKee having submitted that the tribunal should compare her treatment before and after 7 March 2006. Mr McKee sought to rely on four examples as indications that Father Baker's behaviour was affected by racial bias. The first indicator was Father Baker attitude towards itinerants coming to the door. As noted above, Father Baker accepted that he may have used the term 'itinerant' to refer to Irish travellers but was aware of its connotations. Mr McKee pointed out that the motive and intent of the alleged discriminator is irrelevant in cases of direct discrimination and in this regard placed reliance on R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] IRLR 173). Mr McKee submitted that Father Baker's use of this word in this context was clearly intended to identify to identify the Irish Travelling Community and to label their actions as a problem. The second indicator was Father Baker's comment in relation to the bus trip in which he suggested that members of the Irish Travelling Community drank excessively and therefore did not want to travel with them. The third indicator was the hospital incident and in particular the reference by the nurse to Father Baker being a relative of the patient. Mr McKee submitted that the real reason that Father Baker found it amusing was that he considered it ridiculous that a nurse could consider that a Roman Catholic Priest could be related to a member of the Irish Travelling Community. The fourth indicator was the incident involving the telephone in the Parochial House. Mr McKee pointed out that the obvious reaction would have been to use air refresher and open a window rather than simply to clean the telephone. Mr McKee sought to draw from this that Father Baker considered the lady in question unhygienic simply because he held a racial stereotype about the Irish Travelling Community.
- Mr McKee also drew attention to possible sources of information as to the claimant's racial origins including Father McLaughlin.
- Mr McKee also relied upon Father Baker's behaviour at the meetings on 7 and 9 March 2006 and referred the tribunal to the alleged contemporaneous records of the meetings which were provided somewhat belatedly by Father Baker. Mr McKee contended that the version of the interview provided by Father Baker was inconsistent, irrational and unreliable.
- Mr McKee submitted that these factors were sufficient to shift the evidential burden to Father Baker. Mr McKee drew attention to the fact that Father Baker simply denied that he was aware of the claimant's ethnic group and provided no explanation of his change of attitude notwithstanding the fact that he accepted that all of the matters, save the problem of the telephone messages, have been ongoing since the claimant started work some nine months previously.
- In terms of analysing the evidence on the basis of a comparator, Mr McKee submitted that the tribunal simply needed to look at the treatment of the claimant before and after Father Baker became aware that she was a member of Irish Travelling Community.
- In relation to the statutory dismissal procedures, Mr McKee submitted that these clearly applied to the claimant's situation and that the tribunal should therefore make an appropriate award under Article 17 of the 2003 Order. Mr McKee further submitted that the tribunal should make an award under Article 27 in respect of the failure to provide employment particulars, an aspect of the claim in respect of which no defence was made.
- On behalf of Father Baker, Mr Coyle was initially disposed to accept that applying Igen the burden had shifted to Father Baker to provide an explanation that would satisfy the tribunal that the treatment of the claimant was in no way whatsoever because of her racial origins. The explanation according to Mr Coyle was founded in the absence of any evidence that Father Baker was aware that the claimant was a member of the Irish Travelling Community. Mr Coyle further submitted that there was no corroboration of the claimant's contentions and in particular there was no reference to her complaints in the GP records. Mr Coyle sought to rely on the fact that there was no positive sign of her origin that would have been discernible to Father Baker or anyone else and that if he did not know that the claimant was a member of the travelling community he could not have treated her differently. Nor was any support or corroboration provided for the claims that the family name of 'McGinley' was a traveller's name or that the term 'itinerant' was offensive and pejorative. Mr Coyle also drew attention to evidence that the claimant's sister's home would not have disclosed any overt signs of having an Irish Travelling Community origin. The only matter that the claimant was able to point to was a photograph of a caravan, which the visiting Father McLaughlin did not notice.
- Mr Coyle rejected the suggestion that the incidents cited by the claimant evinced a discriminatory mindset and submitted that even if the incidents took place, as described, they did not prove that the discriminatory act complained of occurred. Mr Coyle submitted that the real reason for the dismissal was that Father Baker's trust and confidence in the claimant, about whom he already entertained reservations, had broken down due to her belligerent and aggressive behaviour.
- Mr Coyle candidly conceded that Father Baker could have handled his employment relationship with the claimant better but submitted that any shortfalls are not as a result of racial discrimination. On the contrary, Mr Coyle sought to place reliance on Father Baker's kindly behaviour towards a regular caller from that community who borrowed money on a weekly basis and his solicitous visitation of a parishioner who was a member of that community in hospital, together with the evidence of other witnesses called on behalf of Father Baker who supported his contention that he did not behave in a discriminatory manner or have a discriminatory motive or mindset in relation towards members of the Irish Travelling Community.
- The Law
The relevant provisions in the Race Relations (NI) Order 1997 are as follows:
3. — (1) A person discriminates against another in any circumstances
relevant for the purposes of any provision of this Order if—
(a) on racial grounds he treats that other less favourably than he
treats or would treat other persons.
(3) A comparison of the case of a person of a particular racial group with
that of a person not of that group under paragraph (1) or (1A) must
be such that the relevant circumstances in the one case are the
same, or not materially different, in the other.
5. - (2) In this Order "racial grounds"—
(a) includes the grounds of belonging to the Irish Traveller community, that is to say the community of people commonly so called who are identified (both by themselves and by others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.
(3A) In this Order "race or ethnic or national origins" includes origins
within the Irish Traveller community.
6. — (1) It is unlawful for a person, in relation to employment by him at an
establishment in Northern Ireland, to discriminate against another—
(c) by dismissing him, or subjecting him to any other detriment.
52A. — (1) This Article applies where a complaint is presented under Article 52
and the complaint is that the respondent—
(a) has committed an act of discrimination, on grounds of race or
ethnic or national origins, which is unlawful by virtue of any
provision referred to in Article 3(1B) (a), (e) or (f), or Part IV in its
application to those provisions, or
(b) has committed an act of harassment.
(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 such an act of discrimination or harassment against
the complainant,
(b) is by virtue of Article 32 or 33 to be treated as having committed
such an act of discrimination or harassment against the
complainant,
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.
The Tribunal considered the guidance provided by the Court of Appeal in Igen -v- Wong [2005] IRLR 258 on the application and the application of the Burden of Proof Regulations which apply to cases brought under the Race Relations (Northern Ireland) Order 1997 by virtue of Article 52A, above.
(i) Pursuant to Section 63A of the 1975 Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These facts are referred to below as "such facts".
(ii) If the claimant does not prove such facts he or she will fail.
(iii) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of (sex) discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(iv) In deciding whether the claimant proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from facts found by the Tribunal.
(v) It is important to note the word "could" in Section 63A(20). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead to the conclusion that there was an act of unlawful discrimination. At this stage the Tribunal is looking at the primary facts before it to see where inferences of secondary fact could be drawn from them.
(vi) In considering what inferences or conclusions can be drawn from the primary facts. The Tribunal must assume that there is no adequate explanation for those facts.
(vii) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.
(viii) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(ix) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(x) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(xi) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(xii) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(xiii) 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 discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.
- The proper approach to the Igen Guidelines has been the subject of some helpful
comments by the Employment Appeal Tribunal in Laing v Manchester City
Council [2006] IRLR 748 and by the Court of Appeal in Madarassy v Nomura International PLC Neutral Citation Number [2007] EWCA Civ 33. In Laing, Elias J stated at the first stage the burden rests on the claimant to satisfy the Tribunal, after a consideration of all the facts, that a prima facie case exists sufficient to require an explanation. The facts include evidence adduced by the respondent though this should not be confused with any explanation offered by the respondent for the claimant's treatment. This approach was approved by the Court of Appeal in Madarassy. We have also paid close attention to the recent judgment of the Northern Ireland Court of Appeal in McDonagh v The Royal Hotel Dungannon [2007] NICA in which the Lord Chief Justice commended adherence to the Igen guidelines.
- Statutory Dismissal Proceedings
Article 17 of the Employment (NI) Order 2003 provides that any compensation awarded in respect of a claim of racial discrimination may be increased if the statutory dismissal procedures have not been complied with by the employer.
17. - (1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.
(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that -
(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.
- Employment Particulars
Article 27 of the Employment (NI) Order 2003 provides that where an industrial tribunal finds in favour of the employee in specified proceedings, the tribunal shall make an award calculated in accordance with Article 27.
27. - (1) This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.
(2) If in the case of proceedings to which this Article applies -
(a) the industrial tribunal finds in favour of the employee, but makes no award to him in respect of the claim to which the proceedings relate, and
(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order (duty to give a written statement of initial employment particulars or of particulars of change),
the tribunal shall, subject to paragraph (5), make an award of the minimum amount to be paid by the employer to the employee and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.
(3) If in the case of proceedings to which this Article applies -
(a) the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and
(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order,
the tribunal shall, subject to paragraph (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.
(4) In paragraphs (2) and (3) -
(a) references to the minimum amount are to an amount equal to two weeks' pay, and
(b) references to the higher amount are to an amount equal to four weeks' pay.
(5) The duty under paragraph (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or inequitable.
Conclusions
- We are satisfied that Father Baker first became aware that the claimant was a member of the Irish Travellers Community when Bishop Hegarty informed him about the letter of complaint at a conference on or about 21 March 2006. This is reflected in Father Baker's letter of 10 April 2006 to the claimant. The claimant's surname gave no clue as to her origin and the suggestion that Father Baker found out about her from Father McLaughlin or some alternative source of information is entirely speculative and without any sound evidential basis.
- We are further satisfied that Father Baker was not aware that the use of the word 'itinerant' was offensive to members of the Irish Travelling Community. For our own part we are clear that it is. The Commission for Racial Equality has issued guidance to the media to avoid the use of this word as it is offensive to members of the Travelling Community in England and we have no reason to doubt that members of the Irish Travelling Community feel the same way. While we accept Mr McKee's submission that motive and intent are irrelevant in cases of direct discrimination, we are satisfied that Father Baker's unfortunate use of this word was due to a lack of awareness on his part. Moreover, as indicated above, we are satisfied that Father Baker did not know at the time of its use that the claimant was a member of the Irish Travelling Community.
- We are satisfied that Father Baker's reaction to the visitor who used the telephone in the kitchen was based on his concerns in relation to hygiene rather than her racial origin. In this regard, his evidence was supported by Mrs Monk's evidence that he was meticulous about hygiene.
- While Father Baker may well have had good reason to be wary about the behaviour of members of the Irish Travelling Community based on the previous year's experience we accept his evidence that he did not single out that group as being a cause of trouble on such trips.
- We accept Father Baker's explanation of the incident at the hospital and we are of the view that the claimant's interpretation of Father Baker's conversation with the nurse lacks plausibility.
- We are satisfied on the basis of the evidence given by Father Baker and Mrs Monk that Father Baker was well disposed towards members of the Irish Travelling Community.
- We do not find anything sinister in the late production of typewritten notes made by Father Gormley of the meetings on 7 and 9 March 2006 or in the subsequent destruction of the original handwritten notes. It is clear to us that the typewritten notes are strikingly similar to the response by Father Baker to the statutory questionnaire and were introduced to bolster the respondent's defence. We also accept Mr McKee's contention that the notes are inherently more likely to be accurate than Father Baker's evidence having been made closer to the time of the incidents to which they relate. While it is clear that the typewritten notes should have been produced earlier we do not regard their late production as being something from which we are prepared to draw an inference of discrimination. Rather, it seems to us that Father Baker dealt with this in a rather naïve way and we bear in mind that we are not dealing here with a large corporation with a Human Resources Department.
- Whatever view one takes of the four incidents relied upon by the claimant in support of her claim of racial discrimination, the fundamental issue remains whether or not Father Baker became aware that the claimant was a member of the Irish Travelling Community. Even if we were disposed to accept that he held that community in poor regard, which we do not, the claimant's case must fail if he was not in fact so aware.
- Applying the Igen guidelines to this case, the tribunal makes the following findings:-
(i) We accept that in the present case there is a difference in status
and a difference in treatment both of which could indicate a possibility
of discrimination. However, we are not satisfied that the claimant has proved on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that Father Baker committed an act of discrimination against her. In reaching this conclusion we have looked at the whole of the evidence as advocated in Laing v Manchester City Council and are satisfied that Father Baker was not aware of the claimant's ethnic origins. While we can understand the claimant's displeasure at Father Baker's use of the word 'itinerant', we are satisfied that Father Baker did not realise that it could be regarded as a disparaging term by members of the Irish Travelling Community.
(ii) In view of our finding at (i) above, the claim must fail.
(iii) We do not believe that Father Baker had any discriminatory motive.
(iv) We have found it impossible to draw any inferences from the primary facts in this matter that would support the claimant's case.
(v) We accept that it is not necessary to reach a definitive determination at this point, but we are unable to draw any inferences of secondary facts which assist the claimant.
(vi) We have assumed that there is no adequate explanation for those facts.
(vii) There is no criticism made of the response to the statutory questionnaire.
(viii) There is no suggestion that the provision of any relevant Code of Practice is relevant in this case.
(ix) We are therefore not persuaded that the claimant has proved "such facts" and therefore the burden has not shifted to the respondent to prove that he did not commit an act of unlawful discrimination.
- Having regard to all of the evidence in this case we are not satisfied that the claimant has proved her claim of racial discrimination and it must be dismissed. Accordingly, the claim under Article 17 of the 2003 Order in relation to the failure to follow statutory dismissal procedures must fail. Similarly, the claim in relation to employment particulars must also fail as under Article 27 of the 2003 Order as it is only viable if the tribunal adjudicating on a discrimination claim finds in favour of the claimant. .
Chairman:
Date and place of hearing: 16 – 17 April 2007 and 3 May 2007, Belfast
Date decision recorded in register and issued to parties:
