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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> A v B [2009] NIIT 2016_07IT (03 February 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/2016_07IT.html Cite as: [2009] NIIT 2016_07IT, [2009] NIIT 2016_7IT |
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CLAIMANT: ‘A’
The unanimous decision of the tribunal is that the tribunal declares that the claimant was discriminated against on the grounds of her sex by the second-named respondent and further declares the claimant was subjected to sexual harassment by the second-named respondent, pursuant to the provisions of the Sex Discrimination (Northern Ireland) Order 1976, as amended.
2. Further the tribunal ordered, by consent, that the claimant’s claim against the first-named respondent would be adjourned for a period of six weeks, or such further period as the tribunal might allow, pending implementation of the terms of settlement agreed between the claimant and the first-named respondent, and announced orally to the tribunal in settlement of the claimant’s claim against the first-named respondent. At the end of the said period a Decision, in relation to the claimant’s claim against the first-named respondent, will be issued, by the tribunal, insofar as necessary and appropriate.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr Lyttle
Mrs Cooley
The first-named respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair, Employment Law Solicitor.
The second-named respondent did not appear and was not represented.
Reasons
The claimant brought a claim against the respondents on 19 November 2007, in which she made a claim of direct discrimination of the grounds of her sex, sexual harassment and victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, as amended (‘the 1976 Order’), arising out of an incident on 24 August 2007 at a premises owned and operated by the first-named respondent. The first-named respondent presented a response on 7 January 2008 in which it denied liability. The second-named respondent did not present a response to the claim. Under Rule 9 of the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure) the second-named respondent, not having presented a response, was not entitled to take part in the proceedings, save in the limited circumstances set out in Rule 9 of the Rules of Procedure.
During the course of this hearing, the tribunal made a Ruling on 22 January 2009 on foot of applications made by the representatives of the claimant and the first-named respondent for leave to amend witness statements, which had been previously ordered by the tribunal to be prepared and exchanged between them. It was agreed the tribunal would set out, in writing, the reasons for its said Ruling; and the Ruling would be attached to any decision given in this matter. A copy of this Ruling is attached to this decision, and it is marked ‘X’.
During the course of the hearing, after the claimant had closed her case and the commencement of the case of the first-named respondent, the tribunal was informed the claimant and the first-named respondent had reached a settlement of the claimant’s claim against the first-named respondent. The terms of the settlement, which had been agreed between the claimant and the first-named respondent, were orally announced to the tribunal.
The said terms announced to the tribunal were:-
(i) the first-named respondent agreed to pay to the claimant the sum of £50,000.00, with the said payment to be made within 28 days; and that upon receipt of the said payment the claimant would withdraw her said claim against the first-named respondent, which would then be dismissed, following the said withdrawal, by a Decision of the Tribunal in accordance with the Rules of Procedure; and
(ii) the first-named respondent unreservedly apologised to the claimant for any hurt or distress she may have suffered as a consequence of the incident on 24 August 2007 and it agreed to use its best endeavours to ensure such an incident did not occur again at any of its said premises, similar to the premises where this incident occurred.
Following the announcement of the said settlement agreed between the claimant and the first-named respondent, it was further agreed, and the tribunal so ordered, that the claimant’s claim against the first-named respondent would be adjourned for a period of six weeks, or such further period as the tribunal might allow, pending implementation of the terms of settlement agreed between the claimant and the first-named respondent; and, at the end of the said period, a Decision of the Tribunal, in relation to the claimant’s claim against the first-named respondent would be issued, insofar as appropriate and necessary.
Following the announcement of the said settlement and the order made by the tribunal, as set out above, the representatives of the claimant informed the tribunal that the claimant was proceeding with her claim against the second-named respondent. The tribunal was informed by Mr Mulqueen that no further evidence would be called, and sought a decision from the tribunal in relation to her said claim against the second-named respondent. Mr Mulqueen confirmed that his claim against the second-named respondent was a claim of direct discrimination on ground of sex and also of sexual harassment, pursuant to the 1976 Order. He also confirmed that, if the tribunal found that liability was established by the claimant against the second-named respondent, the claimant, in relation to any remedy to which the claimant might be entitled under the 1976 Order, did not seek any award of compensation and/or the making of any recommendation; but sought a declaration of her rights in relation to the act to which her complaint against the second-named respondent related. He also confirmed that he was not seeking any award of costs against the second-named respondent, pursuant to the Rules of Procedure. The tribunal then reserved its decision in relation to the claimant’s claim against the second-named respondent.
The tribunal made the following findings of fact, as set out in the following sub-paragraph, in relation to the claimant’s claim against the second-named respondent, insofar as relevant and material.
The claimant, ‘A’, a female, was employed by the first-named respondent at premises owned and operated by the first-named respondent, ‘B’. The second-named respondent, ‘C’, a male, was also employed at the said premises. On 24 August 2007 ‘A’ was off duty, but was present at the premises as she was permitted, as an employee, to use its facilities. She was using the female changing room at the premises; and, when drying herself following a shower, she noticed a foot, under an adjacent door, of a person who was looking through the keyhole at her. After quickly changing into her clothes she left the changing room and confronted ‘C’, who, while fixing his trousers, accepted that he had been the person looking through the keyhole at her, whilst she was undressed, in the female changing room. The tribunal had no hesitation in accepting that the claimant, in these circumstances, felt she had been secretly and improperly spied upon by ‘C’. ‘A’ was most upset, angry and distressed by what had happened and immediately made a complaint to ‘B’. For the purposes of this decision, it is not necessary for the tribunal, in view of the remedy sought by the claimant, to set out in any further detail the effect on the claimant of what had taken place. On 28 August 2007, ‘C’ was suspended on full pay from his employment pending a full investigation by ‘B’ under its relevant procedures. An investigation was carried out by ‘B’. ‘C’ was convicted by a jury at Londonderry Crown Court on or about 30 June 2008 on a charge of voyeurism contrary to Section 67(1) of the Sexual Offences Act 1967; and ‘C’s employment with ‘B’ was subsequently terminated.
5.1 Relevant law
1976 Order provides as follows:-
Article 3(1) –
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if –
on the ground of her sex he treats her less favourably than he treats or would treat a man; or
… .”
Article 7 –
“The comparison of the cases of persons of different sex … under Article 3(1) … must be such that the relevant circumstances in the one case are the same, but not materially different, in the other.”
Article 8(2) –
“It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –
By … subjecting her to any other detriment.”
2(A) –
“It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment –
(a) a woman whom he employs.”
Article 6A –
“(1) For the purpose of this Order, a person subjects a woman to harassment if –
on the ground of her sex, he engages in unwanted conduct that has the purpose or effect –
of violating her dignity; or
of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
… .”
(2) Conduct should be regarded as having the effect mentioned in Paragraph (1)(a) … only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.
Article 42 –
“(1) Anything done by a person in the course of his employment shall be treated for the purpose of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval
…
(3) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or for doing in the course of his employment acts of that description.”
Article 43 –
“(1) A person who knowingly aids another person to do an act made unlawful by this Order shall be treated for the purpose of this Order as himself doing an unlawful act of the like description.
(2) For the purposes of Paragraph (1) an employee … for whose act the employer … is liable under Article 42 (or would be so liable but for Article 42(3)) shall be deemed to aid the doing of the act by the employer.”
Article 63(1) –
“A complaint by any person (‘the complainant’) that another person (‘the respondent’) –
has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III; or
is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, maybe presented to an industrial tribunal.”
Article 63A(1) –
“(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
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 –
has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III; or
is by virtue of Article 42 or 43 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.”
Article 65(1) –
“Where an industrial tribunal finds that a complaint presented to it under Article 63 is well-founded the tribunal shall make such of the following as it considers just and equitable –
An order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates.
… .”
5.2 Prior to the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005, which introduced into the 1976 Order, Article 6A, as set out above, there was no freestanding claim for sexual harassment. Prior to the above amendment, sexual harassment was not actionable as such under the 1976 Order. It was necessary, in order to bring a successful action under the 1976 Order, to show less favourable treatment in the normal way and show that such harassment fell within the definition of detriment. In numerous cases (for example, De Souza v Automobile Association [1986] ICR 514), it has long been recognised sexual harassment has the potential to be unlawful direct discrimination on the ground of sex.
Indeed, in the case of Porcelli v Strathclyde RC [1986] IRLR 177, it was suggested that, if the form of sexual harassment was gender-specific, there was no need for a comparator. However the decision in the House of Lords in the case of MacDonald v Advocate General for Scotland [2003] IRLR 512, the House of Lords made it clear that comparison remains a necessary ingredient of this type of unlawful conduct.
Such a comparison, as seen in the decision of the House of Lords in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, can include a real or hypothetical comparator.
Thus, conduct which subjects the victim to a detriment and is of a sexual nature may not be sexual harassment, contrary to the 1976 Order, if it cannot be shown that such treatment constitutes less favourable treatment than that of a relevant comparator. In these proceedings, the claimant did not point to any actual comparator; but was relying, in the circumstances, on a hypothetical comparator. As the House of Lords made clear in the case of Shamoon such a hypothetical comparator is permissible in the case of unlawful discrimination and it is not necessary to identify an actual comparator in any such case.
As Lord Nicholls in his judgment in the Shamoon case made clear the normal two-step approach of tribunals, in considering whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, that the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was and was the reason the said proscribed reason or some other reason. If the latter, the application fails. If the former, there will then usually be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others (see further Paragraph 11 of the judgment).
Further, in Shamoon, it was held that in order for a disadvantage to qualify as a ‘detriment’ it must arise in the employment field and that the tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he/she had thereby been disadvantaged in the circumstances in which he thereafter had to work.
As was stated in the sexual harassment case of Reed and Bull Information Systems Ltd v Steadman [1999] IRLR 299:-
“The essential element of sexual harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves which is acceptable to them and what they regard as offensive.”
Many sexual harassment cases, prior to the introduction of the legislative amendment, relied on the definition of sexual harassment seen in the EC Code of Practice on Social Harassment – (“unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women at work including unwelcome physical, verbal or non-verbal conduct”). (See further Insitu Cleaning Company Ltd v Heads [1995] IRLR 4). Prior to the MacDonald case, there were many cases where the nature and circumstances of the verbal abuse were such that, without more, these provided sufficient evidence of less favourable treatment on grounds of sex to make the exercise of formally identifying a comparator unnecessary. Such cases, it might be suggested, are more accurately analysed as examples of the maxim ‘res ipsa loquitur’ or ‘the facts speak for themselves’.
In the case of MacDonald, Lord Nicholls said:-
“The fact that the harassment is gender-specific in form cannot be regarded as of itself establishing conclusively that the reason for the harassment is gender-based : ‘on the ground of her sex’. It will certainly point in that direction. But this does not dispense with the need for the tribunal of fact to be satisfied that the reason why the victim was being harassed was her sex. The gender-specific form of the harassment will be evidence, whose weight will depend on the circumstances, that the reason for the harassment was the sex of the victim. In some circumstances the inference may readily be drawn that the reason for the harassment was gender-based. A male employee subjects a female employee to persistent unwelcome sexual overtures may readily be inferred to be doing so on the ground of her sex.”
Equally, Lord Hope said:-
“It may be that the conduct complained is so specific to the claimant’s gender that there is no need to do more than to ask the question, to which the answer may well be, res ipsa loquitur.”
Thus, although a comparison is required where a claim is made of direct sex discrimination under Article 3 of the 1976 Order, in many cases this, depending on the particular facts, may not involve an insurmountable hurdle for a claimant.
As was stated in the case of Driskel v Peninsula Business Services Limited [2000] IRLR 151 the Employment Appeal Tribunal considered the question of when harassment amounted to a detriment within the meaning of the Sex Discrimination Act 1975 (which is in similar terms to the 1976 Order). It held that:-
“ … the ultimate judgment, sex discrimination or no, reflects an objective assessment by the tribunal of all the facts. That said, amongst the factors to be considered are the [claimant’s] subjective perception of that which is the subject of complaint and the understanding, motive and intention of the alleged discriminator. Thus the act complained may be so obviously detrimental, that it is disadvantageous … to the applicant, as a woman, by intimidating her or undermining her dignity at work and that the lack of any contemporaneous complaint by her is of little or no significance.
…
In making its judgment a tribunal should not loose sight of the significance in this context of the sex of not just the complainant but also that of the alleged discriminator.”
Article 6A of the 1976 Order, was introduced under the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005, in order to comply with relevant European Directives. It has to be noted that harassment prohibited under Article 6A is a distinctly different cause of action to direct sex discrimination which, as set out above, requires proof of less favourable treatment by an actual or hypothetical comparator on prohibited grounds, which amounts to a detriment, within the meaning of the 1976 Order .
In the recent case, EOC v Secretary of State for Trade & Industry [2007] IRLR 327, Mr Justice Burton found that “Section 4A(1)(a) of the Sex Discrimination Act 1975 (which is in similar terms to Article 6A(1)(a)) which defines unlawful harassment of a woman by a person as where, on the ground of her sex, he engages in unwanted conduct that has the purpose or effect:-
of violating her dignity; or
of creating a discriminating, hostile, degrading, humiliating or offensive environment for her;
did not directly implement the revised Equal Treatment Directive 2002/73/EC, which defines harassment as where ‘unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment’.
Mr Justice Burton held that:-
“The use of the words ‘on the grounds of her sex’ impermissibly imports causation – the reason why issue – into the concept of harassment. There can be conduct which is related to sex, but not of a sexual nature, which has the effect of creating an offensive working environment for a woman, such as where there is denigratory conduct of a man related to sex. That would not fall within Section 4A on a straightforward reading, as it would not be conduct on the ground of the woman’s sex.
Accordingly, Section 4A(1)(a) needs to be re-cast so as to eliminate the issues of causation.”
As a consequence, Article 6A(1)(a) of the 1976 Order has been further amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 (‘the 2008 Regulations’) as follows:-
“In Article 6A(1)(a) of the 1976 Order (definition of harassment), for ‘on the ground of her sex he engages in unwanted conduct that’ substitute ‘he engages in unwanted conduct that is related to her sex or that of another person and’.”
This amendment came into operation on 6 April 2008 and is not retrospective. Thus, the tribunal had to consider the claimant’s claim of sexual harassment under Article 6A(1)(a) of the 1976 Order, in its unamended form, prior to the commencement of the 2008 Regulations.
5.3 The English Court of Appeal in the case of Igen v Wong [2005] IRLR 258 considered the provisions equivalent to Article 63A of the 1976 Order, and approved, with minor amendment, the guidelines set out of the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process.
In the case of Bridget McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA 3, the Court of Appeal, in referring to the said two-stage process stated:-
“The first stage required 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 against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, the complaint is not to be upheld … .”
The Court of Appeal, in the above decision, also confirmed that the amended guidance was the correct approach to be taken to the instance of the burden of proof in relation to all forms of unlawful discrimination. The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Normura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748 EAT, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25.
In Madarassy, the Court of Appeal held, inter alia, that:-
“ … ‘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 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 upon by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like-with-like as required by Section 5(3) and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong …
Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”
As indicated above, the burden of proof provisions under Article 63A of the 1976 Order apply not only to a claim of direct sex discrimination under the 1976 Order but also a claim of sexual harassment under Article 6A, though clearly the references to comparative treatment would be inapplicable.
5.4 Article 6A of the 1976 Order, in its unamended form, has not been the subject of any relevant legal authority, in relation to the interpretation of the Article, other than the case of EOC v Secretary of State for Trade & Industry [2007] IRLR 327, as referred to above – which because of its use of the terms ‘on the ground of her sex’ means that many of the relevant authorities referred to above, in relation to direct sex discrimination, also have application in relation to interpretation of Article 6A of the 1976 Order in its unamended form, prior to the commencement of the 2008 Regulations.
6.1 The tribunal, in view of the settlement made between the claimant and the first-named respondent, was not required therefore to make any determination on the claimant’s claim against the first-named respondent but only required to make a determination in respect of the claimant’s claim against the second-named respondent. The claimant’s claim for personal liability against the second-named respondent was made pursuant to Articles 42 and 43 of the 1976 Order (see further Paragraph 5.1 of this decision); namely that he had aided the unlawful acts of his employer. At all times material to this action, for the purposes of the determination of the claimant’s claim against the second-named respondent, the first-named respondent did not dispute it was vicariously liable for the actions of the second-named respondent on 24 August 2007, which it accepted had been carried out in the course of his employment. Under Article 43(2) of the 1976 Order, in light of the foregoing, the second-named respondent was therefore deemed to aid the doing of the act of the first-named respondent and therefore could be found personally liable for any unlawful discrimination and/or harassment, under the 1976 Order, arising out of his actions on 24 August 2007.
6.2 Even if, in this case, the tribunal had found that the first-named respondent had established the defence, under Article 42(3) of the 1976 Order, that it had taken such steps as were reasonably practicable to prevent the second-named respondent from doing the act in question, the second-named respondent could still have been able to be found personally liable (see Yeboah v Crofton [2002] IRLR 634. In the event, in light of the said settlement between the claimant and the first-named respondent, the tribunal did not require to make any determination whether the first-named respondent had established the above defence.
In relation to the claimant’s claim of direct discrimination on the ground of sex and of sexual harassment pursuant to the 1976 Order, the tribunal considered all the findings of fact made by it, as set out in Paragraph 4.2 of this decision. In accordance with the two-stage test and guidance set out in the case of Igen v Wong and the various legal authorities referred to in Paragraph 5.3 of this decision, it was, firstly, necessary for the tribunal to determine whether the claimant had established facts from which the tribunal could [tribunal’s emphasis] conclude, in the absence of an adequate explanation, that the said unlawful discrimination on the ground of sex and/or sexual harassment had been committed pursuant to the 1976 Order.
The tribunal had no hesitation in concluding that the facts, as found by the tribunal, as set out in Paragraph 4.2 of this decision, could amount to unlawful direct discrimination on the grounds of sex. Such treatment of the claimant, a female, by the second-named respondent, a male, was by its very nature treatment which, in the absence of explanation, clearly could be sexual harassment, which amounted to a detriment. The actions of ‘C’ were unwanted by ‘A’. They were obviously of a sexual nature since they involved ‘C’, a male, spying on ‘A’, a female, when she was in a female changing room, undressed, as she dried herself after taking a shower. Such actions were undoubtedly offensive to her. The actions were, in the circumstances, gender-specific. The tribunal was further satisfied that the reason for the said less favourable treatment, in the absence of explanation, was because the claimant was a woman and that the second-named respondent would not have looked at her through the keyhole, whilst she changed in the female changing room, if she had been a man. (See further Lord Nicholls’ judgment in Shamoon referred to in Paragraph 5.2 of this decision.) In the circumstances, the tribunal did not require to consider further the issue of the hypothetical comparator. In essence, this was, in the circumstances, a case of ‘res ipsa loquitur’.
The tribunal therefore had no hesitation in concluding that the burden of proof had shifted. ‘C’ did not enter a response and there was no evidence before the tribunal to provide a non-discriminatory explanation for his actions. In the circumstances, applying Article 43 of the 1976 Order, the tribunal concluded that the second-named respondent, for whose said actions the first-named respondent was vicariously liable, had thereby discriminated against the claimant on the ground of her sex, pursuant to Article 3(1)(a) of the 1976 Order.
In relation to the claimant’s claim of sexual harassment pursuant to Article 6A of the 1976 Order, as set out above, no issue of comparison arises in contrast to the claimant’s claim of direct discrimination on the ground of her sex.
As found by the tribunal, the actions of the second-named respondent were unwanted by the claimant. The tribunal had no doubt, in light of the facts as found by it, that she rightly considered her dignity had been violated. Further, the second-named respondent by improperly and secretly spying on the claimant, as she dressed herself following a shower, could not have involved himself in a clearer example of conduct which was bound to create for the claimant, a female, an intimidating, degrading, humiliating and offensive environment for her. It was readily apparent, by her said upset, anger and reaction to what had happened, that this was how she felt about the second-named respondent’s said conduct. In such circumstances, the tribunal was satisfied the conduct of the second-named respondent, in the absence of an explanation, had the necessary harassing effect and that the purpose of the conduct was to harass, as required under Article 6A of the 1976 Order.
Under Article 6A(1)(a) of the 1976 Order, prior to its amendment under the 2008 Regulations, it was still necessary to show that the conduct was on the ground of sex. For similar reasons to those set out above, in relation to the tribunal’s conclusion in respect of the claimant’s claim of sex discrimination, the tribunal was satisfied that, in the absence of a non-discriminatory explanation, such conduct was obviously of a sexual nature and therefore on the grounds of sex.
The tribunal therefore concluded that the burden of proof had shifted in the circumstances. The second-named respondent did not provide any non-discriminatory explanation for his actions, for which the first-named respondent was vicariously liable. Thus, the tribunal was therefore satisfied that the second-named respondent applying Article 43 of the 1976 Order had subjected the claimant to sexual harassment, pursuant to Article 6A(1)(a) of the 1976 Order.
The tribunal therefore made the declarations, as set out in Paragraph 1 of this decision.
Chairman:
Date and place of hearing: 19 – 22 January 2009;
26 – 27 January 2009
Belfast
Date decision recorded in register and issued to parties:
CLAIMANT: ‘A’
RESPONDENTS: 1. ‘B’
‘C’
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr J Lyttle
Mrs K Cooley
The first-named respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair, Employment Law Solicitor.
The second-named respondent did not appear and was not represented.
Ruling of the tribunal
This matter was case-managed by the tribunal at a series of Case Management Discussions. In particular, at a Case Management Discussion on 31 March 2008, the tribunal made orders for the preparation and exchange of witness statements between the parties. The said order, as set out in the Record of Proceedings, dated 1 April 2008, provided, inter alia:-
“(d) A witness statement must be a complete statement of the evidence, relating to the issues in the case, that the witness wishes to give to the tribunal. A witness will not be permitted to add to his statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so.”
The substantive hearing of this matter commenced on 19 January 2009. Included in the bundle provided to the tribunal was a witness statement from Mr Paddy Curtis, who, at the relevant time, was an employee of the first-named respondent and also a trade union representative at B’s premises. Mr Curtis was present at the first three days of the hearing. On 21 January 2009, Mr Mulqueen, counsel for A, after the lunch break, indicated to the tribunal that he had just been instructed that Mr Curtis had given information to his instructing solicitors, which Mr Mulqueen believed to be relevant to the issues in this matter; and which evidence he wished Mr Curtis to give, when called as a witness. To do so, he therefore made an application for leave to allow Mr Curtis to amend his witness statement. Mr Mulqueen confirmed that the inclusion of the additional evidence related solely to the issue of B’s defence to this claim under Article 42(3) of the Sex Discrimination (Northern Ireland) Order 1976, as amended, namely:-
“Whether the first-named respondent took such steps as were reasonably practicable to prevent the second-named respondent from doing that act in the course of his employment.”
This was a legal issue, which had been identified and referred to in the Record of Proceedings dated 1 April 2008.
Mr Mulqueen gave an outline to the tribunal of the evidence which was proposed to be given by Mr Curtis, which related to an alleged incident of sexual harassment at B’s premises in or about 1998/1999 involving an employee of B. The tribunal gave the parties overnight to consider their positions and to take instructions and, in particular, for Mr Curtis to set out, in draft, the proposed additions to his witness statement which he wished to make by way of amendment. This was done and the tribunal heard the application for leave to amend his witness statement at the conclusion of the hearing on 22 January 2009. In addition, to the application made by A’s representative, B’s representatives also made, at the same time, an application for leave to amend the witness statement of Ms Meenan, who had previously made a witness statement on behalf of B and which was included in the tribunal bundle. She wished to do so in order for her to include evidence in relation to the B’s said defence under Article 42(3) of the 1976 Order. She stated that in error/by mistake, B’s representatives had not included this in her said witness statement.
The tribunal, having heard submissions by both representatives in relation to both applications, and after retiring to consider its ruling, gave its specific ruling and relevant orders/directions in relation to each application at the conclusion of the hearing; but indicated it would set out, in writing, in more detail, its reasons for its said ruling, which would be attached to any decision given in this matter. The tribunal made clear to the parties, in making its ruling and the reasons for same, that it had not determined any issue in the matter; and anything set out in this ruling could not be taken by any party as indicative of any determination by the tribunal of any issue relating to A’s claim against B and C.
5. In relation to A’s application for leave to amend the witness statement of Mr Curtis, the draft prepared by Mr Curtis included three paragraphs.
The first paragraph referred to a matter which did not relate to the issue involving the incident in 1998/1999, referred to above. Ms Finnegan fairly indicated that she had no objection to the amendment set out in Paragraph 1of the draft amended statement; but, by doing so, she also made it clear that she was not to be taken to accept its contents and reserved her right to cross-examine on the content of the said paragraph, as appropriate. This was agreed and, in the circumstances, it was not necessary therefore for the tribunal to consider this issue further; save to order that Mr Curtis have leave to amend his witness statement to include the said paragraph.
The tribunal could find no proper basis for the inclusion of the third paragraph in the draft amended statement and, in particular, did not consider the matters referred to were relevant or were necessary to be included in the witness statement for determination of this matter and after taking into account the terms of the overriding objective, set out in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (see later). Mr Mulqueen properly acknowledged the difficulty for him in pursuing his application in relation to the third paragraph. The tribunal therefore refused leave for Mr Curtis to amend his witness statement in relation to Paragraph 3 of the draft amended statement. In the circumstances it is not necessary to refer to the matters set out in the third paragraph.
6. In relation to both applications for leave to amend, it is necessary to consider the tribunal’s Rules of Procedure, as set out in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
In particular, under Rule 59(1), the tribunal may regulate its own procedure. Under Rule 14(2), so far as it is appropriate to do so, a tribunal shall seek to avoid formality in its proceedings and shall not be bound by any statutory provisions or rule of law relating to the admissibility of evidence in proceedings before the courts. Under Rule 14(3) the tribunal shall make such enquiries of persons appearing before it and of witnesses as it considers appropriate and shall otherwise conduct a hearing in such manner as it considers most appropriate with the clarification of the issues and generally for the just handling of the procedures.
The terms of the overriding objective are set out in Regulation 3 of the said Regulations, which objectives are to enable the tribunal to deal with cases justly, which includes, so far as practicable:-
ensuring that the parties are on an equal footing;
dealing with the case in ways which are proportionate to the complexity or importance of the issue;
ensuring that it is dealt with expeditiously and fairly; and
saving expense.
The tribunal is required to seek to give effect to the overriding objective when it exercises any powers under the said Rules; and the parties are also required to assist the tribunal to further the overriding objective.
Lord Justice Girvan in his recent judgment in the Court of Appeal in the case of Peifer v Castlederg High School & Western Education & Library Board [2008] NICA 49 emphasised the importance of not only case-management and the orders made in connection therewith but also the terms of the overriding objective.
7. The tribunal, having heard submissions by both parties’ representatives in relation to Paragraph 2 of Mr Curtis’ draft amended statement was satisfied that the matters referred to therein were potentially relevant to the issue of B’s defence under Article 42(3) of the 1976 Order, as amended. It was also satisfied that, although the events referred to occurred in 1998/1999, B had the relevant documentation in its possession and was in a position to deal with the matters raised and to call, if appropriate, all necessary witnesses, provided sufficient time was given to enable B to give appropriate and necessary instructions to its representatives. The timing of this application is clearly unfortunate. However that is not determinative of the application.
Orders for use of witness statements, as provided under the said Rules of Procedure, are frequently made as part of case-management in discrimination claims in Northern Ireland. This mirrors the situation in employment tribunals in Great Britain but also in the courts in Great Britain. Witness statements generally stand as part or all of the evidence-in-chief of the witness in question. The courts in Northern Ireland do not generally order witness statements to be made and oral evidence is given in the ordinary way in those courts. By its order, the tribunal made it clear that orders for amendment to the witness statement would not be given without good reason. This amendment, it has to be recognised, was more than a minor amendment or a matter of clarification. The necessity to give good reason is also seen in the Civil Procedure Rules in Great Britain (Rule 32.5). An employment tribunal in Great Britain, it is said, is not bound by this approach (see Blackstone’s Employment Law Practice 2008 Paragraph 9.120) but in the case of Shahrokni v NATFHE Union [1999] UKEAT486, the Employment Appeal Tribunal made clear tribunals should be parsimonious in giving leave to amplify witness statements. There is no similar legal authority in this jurisdiction; but there is no reason that a similar approach should not be followed.
Neither representative disputed that the tribunal, subject to the above authorities, had a wide discretion to allow a witness statement to be amended. The tribunal was also conscious of the dicta, in relation to amendments of pleadings under the High Court Rules in Northern Ireland, where it has long been a guiding principle that generally speaking all such amendments ought to be made (for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings):-
“It is a well established principle that the object of the court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matter in controversy, and I do not regard such amendment as a matter of failure or grace … It seems to me that as soon as it appears that the way in which a party has framed its case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.” (See White Book at Paragraph 20/8/6.)
In this context the tribunal noted the ability of B, as indicated above, to deal with the further allegation raised by Mr Curtis in Paragraph 2 of his draft amended statement.
8. In the circumstances, the tribunal decided that Mr Curtis should be given leave to amend his witness statement, in the interests of justice and to enable a fair trial, by including in his witness statement Paragraph 2 of the draft amended statement. The tribunal was satisfied that to so amend the witness statement was, in the circumstances, in accordance with the terms of the overriding objective. It was agreed that, prior to the commencement of the hearing on 26 January 2009, A’s representative would prepare a copy of the amended statement for Mr Curtis to sign and for it to be included in the bundle of documents. In deciding to give leave to Mr Curtis, the tribunal also took into account the decision of the Court of Appeal in the case of Whyed Gill v Northern Ireland Counsel for Ethnic Minorities [2001] NICA 30, to which further reference shall be made later in this Ruling in relation to B’s application. There was discussion in relation to the necessity for B to provide to A’s representative further discovery arising from the above amendment to Mr Curtis’ statement and, in particular, in relation to the 1998/1999 incident referred to. Ms Finnegan indicated that further discovery would be provided on the morning of 26 January 2009; but indicated that it might not be complete at that stage until she had had an opportunity to consult with her clients and, in particular, any additional witnesses. The tribunal made the relevant Order for Discovery and Inspection in relation to these matters; but if there is any difficulty in relation to the said Order, then either party is to have leave to make application to the tribunal. Ms Finnegan indicated that she would require to call one, or possibly, two witnesses in relation to the matters raised by Mr Curtis in his amended statement. Normally the tribunal would have ordered those additional witnesses to prepare and exchange appropriate witness statements with A’s representative. However, it was agreed, subject to any further order or direction by the tribunal, that, having regards to the terms of the overriding objective and in order to save time and expense, B’s additional witnesses would not be required to make witness statements and would be able to give their evidence orally in the normal way.
9. In relation to B’s application to amend the witness statement of Ms B Meenan to deal with the issue of B’s defence under Article 42(3) of the 1976 Order, the tribunal again took into account the legal authorities referred to in relation to A’s application, as set out above. However, the tribunal had some considerable concern that, whereas A’s application was made after Mr Curtis had, during the course of the hearing, made A’s representatives aware of this further allegation, B had made it clear from the presentation of its response form, and more particularly the Case Management Discussion on 31 March 2008, that it was relying on this defence. It is somewhat unfortunate that the factual issues identified in the Record of Proceedings dated 1 April 2008 do not allude to the factual matters relating to B’s defence in respect of Article 42(3) of the 1976 Order. I understand from Mr Mulqueen that the absence of such factual details was referred to by the President of the Tribunals at a subsequent Case Management Discussion. However, no specific order was made at that hearing or reference made in the Record of Proceedings; and it does not seem that A’s representative followed up the discussion at that Case Management Discussion by way of any interlocutory order. It was apparent that B’s witness statements did not expressly deal with this issue. The tribunal found this somewhat difficult to understand in the circumstances; but Ms Finnegan accepted that it was a mistake/error on the part of the representatives of B in circumstances where the concentration, however misguided, had only been on the allegations made by A and not the specific factual matters relied upon by B in its defence under Article 42(3) of the 1976 Order. Ms Finnegan accepted that the onus of proof in relation to this ground of defence lay upon B. Mr Mulqueen indicated that he did not expect to have to call any witness and/or recall any witness on foot of any amended witness statement by B’s witness in relation to this issue; though he reserved his position at this stage. However, it was clear that he would be able to deal with any such amended statement during the course of this hearing. Again, the necessity for this application by B is most unfortunate. However, not without some hesitation, given the history of this matter, the Case Management Discussion and the identification of issues and the order made by the tribunal in relation to the preparation and exchange of witness statements, the tribunal came to the conclusion that it should allow, in the interests of justice and to enable a fair trial, Ms Meenan to amend her witness statement to deal with the issue of B’s defence under Article 42(3) of the 1976 Order. In addition to the authorities referred to previously, the tribunal had particular regard to the decision of the Court of Appeal in the case of Whyed Gill v Northern Ireland Counsel for Ethnic Minorities. The facts of that case were somewhat different. However, in that case the Court of Appeal allowed the respondent to call further witnesses despite the fact that counsel for the respondent had, as the Court of Appeal described, “no doubt inadvisably” elected to close his case at the end of the previous day’s sitting. In the judgment of Carswell LCJ (as he then was) he stated:-
“ … the tribunal nevertheless, on what we regard as excessively formalist or technical grounds, refused to allow counsel to call witnesses to complete what he now appreciated to be the proper presentation of his case. It then proceeded to take into account against Nicem in reaching its decision that no witnesses other than the chairman have been called to give evidence. In our considered opinion this was unfair in the extreme and perpetrated a serious injustice, to which we can only deplore. Nevertheless this is an appeal on points of law and we are unable to say that the tribunal was acting outside its jurisdiction or that it committed an error of law in so ruling. We must qualify this, however, by pointing out that the hearing took place before the Human Rights Act 1998 came into operation. If a tribunal were to act in such a way today, we have little doubt that its decision would be held to be unfair and vulnerable to being set aside as being in breach of Article 6(1) of the European Convention of Human Rights.”
The Human Rights Act 1998 is now in force and in those circumstances the tribunal concluded it would be unfair, however regrettable, given the reason for the said application related to the error/mistake of the representatives, to refuse to allow B to amend its statement to deal with the defence of B under Article 42(3) of the 1976 Order. It was apparent, at all times, that B intended to rely on this ground of defence; and A’s representative has not therefore been taken by surprise. The tribunal therefore granted leave for Ms Meenan to amend her witness statement. Again, subject to any further direction or order of the tribunal, it was agreed that Ms Meenan would amend her previous witness statement, which will be exchanged with A’s representative. It was hoped that this would be able to be done by the commencement of the hearing on 26 January 2009 or during the course of that day. If there are any further difficulties, then either party may make further application to the tribunal.
10. The tribunal in granting both applications for leave to amend does so without prejudice to any issue relating to the timing and manner of any such application, insofar as relevant and necessary for the proper determination of the issues in this matter. In addition, in granting leave to amend this is also without prejudice to any application by either party, if it be appropriate and necessary, in relation to the exercise of the tribunal’s powers in relation to any issue of costs arising from the granting of leave to make the said amendments.
11. Although the tribunal has granted leave to amend the witness statements of the parties in this case for the reasons set out above, however it must be clearly understood by parties in cases before this tribunal that the granting of such leave is not automatic and it cannot be assumed that such leave will always be granted in future, particularly given the use of case-management and the orders made by the tribunal in connection therewith and in light of Lord Justice Girvan’s judgment in Peifer, referred to above.
NEIL DRENNAN QC
Chairman of the Tribunal
Date: 26 January 2009
