Wilson v Provincial Care Services Agenc... [2010] NIIT 00431

Certificate of Correction

THE INDUSTRIAL TRIBUNALS

CASE REF: 431/10

CLAIMANT: Helen Catherine Wilson

RESPONDENT: 1. Provincial Care Services Agency
2. Gillian Fitzpatrick
3. Catherine Corbett
4. Shauna Byrne

1. The decision in this case issued on the 7^th February 2011.

2. Paragraph 72 of the decision recorded findings of fact and the decision of the Tribunal based upon those recorded facts as follows:-

The claimant first contacted the respondents for the purposes of securing a
reference on 21 October 2009. The Tribunal has no evidence on which it could conclude that calculating interest by reference to the standard period would cause serious injustice to the respondents. It concludes that it would be appropriate to award interest in this case and interest is awarded from 21 October 2010 to the calculation date which for the purposes of these proceedings is the date of this decision at the rate of 8%.

3. Following correspondence from the Equality Commission writing on behalf of the claimant it is accepted that paragraph 72 of the decision contains a clerical error in that the reference to the 21 October 2010 within the paragraph should be a reference to 21 October 2009.

4. Rule 37 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides that clerical error such as this may be corrected by means of a certificate signed (for the purposes of this case) by the Chairman.

5. In reliance on Rule 37 I sign this certificate for the following purpose:-

At paragraph 72 of the decision for “21 October 2010” substitute the 21
October 2009”.

Signed:
Dated:

THE INDUSTRIAL TRIBUNALS

CASE REF: 431/10

CLAIMANT: Helen Catherine Wilson

RESPONDENT: 1. Provincial Care Services Agency

2. Gillian Fitzpatrick

3. Catherine Corbett

4. Shauna Byrne

DECISION

The unanimous decision of the Tribunal is that the respondents discriminated against the claimant on the grounds of her sex. The Tribunal orders the 1^st named respondent to pay to the claimant compensation in the sum of £9,500.00 in respect of injury to feelings together with interest thereon at the rate of 8% from 21 October 2009 until the date of this decision.

Constitution of Tribunal:

Chairman: Mrs Attracta Wilson

Members: Mr Samuel Adair

Mr Adrian Huston

Appearances:

The claimant was represented by Ms R Best, Barrister at Law, instructed by the Equality Commission.

The respondents were represented by Mr Sheridan of Peninsula Business Services Limited.

The Legal Issues

1. Did the respondents subject the claimant to a detriment by refusing to provide her with a reference contrary to Article 8(2) of the Sex Discrimination Order (Northern Ireland) 1976 and Regulation 19 of the Maternity and Parental Leave Regulations 1999?

2. Did the respondents, on the grounds of her sex, treat the claimant less favourably than they would treat a man contrary to the Sex Discrimination (Northern Ireland) Order 1976?

3. Did the respondents on the grounds that the claimant has exercised or sought to exercise, a statutory right to maternity leave, treat her less favourably than they would treat her if she was neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right contrary to Article 5A(1) of the Sex Discrimination Order (Northern Ireland) 1976.

Sources of Evidence

Witnesses

4. The Tribunal heard from the claimant and from Mrs J Maguire of Jark Healthcare on behalf of the claimant.

The Tribunal heard from the second, third and fourth named respondents.

Documents

5. The Tribunal considered witness statements, responses to those statements and a bundle of documents prepared by the claimant’s solicitor. The Tribunal considered those documents within the bundle as referred to by the parties during the course of the hearing.

Findings of Relevant Fact

The Tribunal found the following facts proven on the balance of probabilities.

6. The first named respondent is an agency providing independent domiciliary healthcare in the community. The second, third and fourth named respondents are employees of the first named respondent.

7. The claimant was employed by the first named respondent as a domiciliary care worker from 28 August 2007 until her resignation on 5 September 2009. She worked 37.5 hours per week earning £6.85 net per hour, amounting to £8.00 gross. Her duties included assisting elderly and ill individuals with their personal hygiene, medication, food preparation and housekeeping in their homes.

8. During the course of the claimant’s employment there were no complaints about her work, she was a good time keeper and she had a clear disciplinary record. She is described by the third named respondent as honest and the Tribunal accepts this to be the case.

9. In June 2008 the claimant discovered that she was pregnant. She commenced maternity leave in December 2008 with the intention of returning to work following the completion of her maternity leave which she did in August 2009. She had arranged that her sister would look after her baby whilst she was at work. However in or around September 2009, this arrangement unexpectedly fell through leaving the claimant with no alternative means of childcare.

10. The claimant telephoned the first named respondent in early September 2009 and spoke to Mrs Gillian Fitzpatrick, an area and quality control manager. She explained that her childcare arrangements had fallen through and that as she had no access to alternative arrangements she could no longer work day shifts. She requested evening shifts and was offered shifts working Monday to Sunday between 6pm and
10-11.30 pm.

11. This arrangement did not suit the claimant as her husband did not finish work until 6pm. As a consequence the claimant resigned with immediate effect on 8 September 2009. She was required under her contract of employment to work a four week notice period.

12. It is the claimant's case that when she explained to Mrs Fitzpatrick that she could not work the evening shift and that she would have to resign with immediate effect for reasons of childcare, Mrs Fitzpatrick commented "this is what happens when you have babies". The claimant was hurt and offended by this comment. Mrs Fitzpatrick denies making this comment. It is also the claimant’s case that she explained to Mrs Fitzpatrick that she could not work the required notice period whereas it is Mrs Fitzpatrick's case that she (the claimant) said she would not work the notice period.

13. The Tribunal carefully considered and evaluated the testimony of both witnesses. In general the Tribunal finds the claimant to be straightforward and consistent in her evidence. Her witness statement is consistent with her application to the Tribunal, with her direct evidence and with her evidence when challenged under cross examination. On many points her evidence is corroborated by documentation produced to the Tribunal and by the testimony of Mrs Maguire.

On the other hand the Tribunal finds Mrs Fitzpatrick to be evasive and inconsistent in her evidence when challenged under cross examination, and argumentative and defensive in the manner in which she presented it. By way of example Mrs Fitzpatrick insisted that she was not annoyed when the claimant indicated that she would have to resign with immediate effect. The Tribunal finds her evidence in this regard to be inconsistent with her subsequent conduct towards the claimant (paragraph 28 refers), inconsistent with her evidence to the Tribunal and at odds with her demeanor and the manner in which she presented her evidence at Tribunal.

In relation to the question as to whether the claimant indicated that she could not or would not work her notice period, the Tribunal finds that Mrs Fitzpatrick's evidence (paragraph 5 of her witness statement, page 57 of the bundle) that the claimant stated that "……she would have to resign with immediate effect" is consistent with the claimant's evidence that she "could” not work a notice period.

Having considered all the evidence as presented and having balanced it against the evidence (which is not in question) of the claimant's unexpected difficulties regarding childcare, evidence of a willingness on her part to work, evidence of her financial commitments and of the financial hardship suffered by her as a result of being out of work, the Tribunal prefer the evidence of the claimant and find on the balance of probabilities that she informed Mrs Fitzpatrick that she could not work a notice period.

In relation to the question as to whether Mrs Fitzpatrick made the comment “that is what happens when you have babies”, for the reasons just given and having carefully evaluated Mrs Fitzpatrick’s evidence and demeanor under cross examination, the Tribunal finds that on the balance of probabilities she made the comment. The Tribunal finds this to be the case notwithstanding the fact that Mrs Fitzpatrick is currently pregnant with her fourth child.

14. Following her resignation, the claimant began immediately to look for alternative work and registered with a nursing agency, Jark Healthcare (Jark) in or around 20 October 2009. She underwent training with Jark, paid for a police access check and was offered a position subject to a satisfactory reference from the first named respondent. This reference was required by statute i.e. the Domiciliary Care Agencies Regulations (Northern Ireland) 2007 ("the Regulations") a copy of which was furnished to the Tribunal by the respondent and regulation 13 of which provides:-

”Fitness of domiciliary care workers supplied by an agency

The registered person shall ensure that no domiciliary care worker is supplied by the agency unless -

(a) he is of integrity and good character;

(b) he has the experience and skills necessary for the work that he is to perform;

(c) he is physically and mentally fit for the purposes of the work which he is to perform; and

(d) full and satisfactory information is available in relation to him in respect of each of the matters specified in Schedule 3.”

Schedule 3 sets out the information and documents required in respect of domiciliary care workers and including the following requirements at paragraphs 4, 5, and 8 which are relevant for the purposes of this case:-

“Two written references, relating to the person, including a reference from the person’s present or most recent employer, if any.

Where the person has previously worked in a position which involved work with children or vulnerable adults, verification, so far as reasonably practicable, of the reason why he ceased to work in that position.”

15. Contrary to the purpose of the Regulations, the respondents categorically declined to provide anything other than a written factual reference in respect of their own ex employees and did so as a matter of policy. Furthermore it is the respondent’s case that as a matter of policy a factual reference would only be provided following a “face to face” meeting with the ex employee seeking it.

16. A factual reference consists only of confirmation that a particular person worked for the first named respondent and the dates of that employment.

17. It is the respondent’s case that their policy was strictly applied to all ex employees, notwithstanding the fact that it was contrary to the purpose of the regulations and contrary to their own policy on recruiting staff. On recruiting staff the first named respondent insisted on a full reference in accordance with the requirements of the Regulations.

18. It is the respondent’s case that they were willing to provide information additional to that contained in the factual reference by telephone only if requested by a prospective employer but the Tribunal have no compelling evidence that this was the practice of the respondent. Certainly it was not provided for in the contract of employment furnished to the Tribunal, neither was it ever explained to the claimant, to Jark or to a subsequent prospective employer, Faith House who withdrew an offer of employment on the grounds of an inadequate reference. Furthermore the Tribunal find it to be wholly inconsistent with the respondent’s stated policy of a requirement of a “face to face” request before even a factual reference could be provided.

19. In relation to the respondent’s stated policy of requiring a “face to face“ request for a reference, the Tribunal have been referred to papers relating to the reference given for Mr Paul Girvan. It appears to the Tribunal in reliance on these papers that a reference was provided in Mr Girvan’s case without such contact. This appears to be consistent with the terms of the letter furnished to Mr Girvan’s prospective employer. Mr Girvan’s reference was furnished by Mrs Angela McKeever and Mrs Fitzpatrick’s evidence is unclear as to whether there was “face to face“ contact between Mrs McKeever and Mr Girvan testifying variously there “was” such contact and that “there would have been” such contact. The Tribunal note that Mrs McKeever was present in the Tribunal but was not called to enable the matter to be clarified. Taking this into account and considering the contradictions in Mrs Fitzpatrick’s testimony, the Tribunal find on balance that “face to face” contact although strictly applied in the case of the claimant was not universally applied by the respondents and was not applied in the case of Mr Girvan.

20. On 21 October 2009, the claimant telephoned the 1st named respondent in an effort to speak to Mrs Byrne (an area manager and the claimant's line manager) for the purposes of securing a reference. Jark were prepared to offer the claimant employment on foot of a factual reference. The claimant left a message asking Mrs Byrne to return her call. Her call was not returned. Mrs Byrne denies that she received any message to ring the claimant or any request from the claimant for a reference until 4 January 2010. The Tribunal does not accept this to be the case because it is inconsistent with her later evidence that she received a message to contact the claimant on 11 November 2009 (para 22 below).

21. Mrs Byrne accepts that she received a call from Mrs Maguire of Jark on 11 November 2009. It is her case that she returned the call but Mrs Maguire was not available and did not ring back. This is contrary to the evidence given by Mrs Maguire. The Tribunal finds Mrs Maguire to be a straightforward and credible witness. Her evidence is consistent with that given by the claimant. Furthermore although a witness for the claimant she is independent of both parties and has nothing to gain from embellishing her evidence. The Tribunal for all of these reasons prefer her evidence to that given by Mrs Byrne.

22. Mrs Byrne accepts that she received a message to contact the claimant on 11 November 2009 and it is her evidence that when she attempted to do so the phone line was dead. It is the claimant's case that her phone line was not dead and that she had her mobile phone with her and fully charged at all times in anticipation of a call from the respondents. The Tribunal accepts the evidence of the claimant in preference to that of Mrs Byrne on this point. The Tribunal accepts that the claimant was unrelenting in her attempts to find employment and that her phone was accessible at all times and finds her evidence in this regard to be consistent with those efforts and consistent with her testimony generally and with the testimony of Mrs Maguire.

23. A few days after the claimant's initial attempt to contact Mrs Byrne on
21 October 2009, the claimant contacted the first named respondent again without success. She then spoke to Mrs Catherine Corbett, a supervisor who had worked along side her with the respondents, and with a previous employer. This conversation took place in Mrs Corbett's home. Mrs Corbett informed her that under no circumstances was she allowed to give her a reference and advised her to contact the office. The Tribunal find Mrs Corbett to be a straightforward and honest witness and accept that as a supervisor she was not and never had been allowed to provide references for anyone. This was and always had been a matter for management. It is the respondent’s case that a reference could only be furnished by the employee’s line manager.

24. Having received no satisfaction from her own efforts to secure a reference, the claimant authorized Mrs Maguire from Jark to contact the respondents and she herself sought advice from the Citizens Advice Bureau (CAB) on 30 November 2009. Her approach to the CAB is evidenced by documentation produced.

25. Mrs Maguire wrote to Mrs Catherine Corbett and to Mrs Shauna Byrne and having received no response from either party she tried to contact Mrs Byrne and Mrs Corbett by telephone. She eventually spoke to Mrs Corbett who informed her that she needed to speak to Mrs Byrne as she (Mrs Corbett) was not allowed to provide references.

26. Mrs Maguire tried over a period of a month to contact Mrs Byrne and during this time she also faxed numerous copies of a reference request. On phoning she was routinely put on hold and then told that Mrs Byrne was not free to talk to her. She eventually made contact with Mrs Byrne who informed her that she did have a copy of the reference request and that she would send it back when the claimant "actually" asked for it. Mrs Maguire informed Mrs Byrne that the claimant had been trying to contact her without success to which Mrs Byrne replied "well you got through to me."

27. The Tribunal do not find Mrs Byrne generally to be a credible witness. Her evidence overall is not consistent and in some instances not credible. By way of example Mrs Byrne initially indicated under cross examination relating to the signature of Mrs Fitzpatrick on the reference ultimately provided for the claimant, that she could not remember if she had been absent from work by reason of sick leave in March 2010 at a time a reference was ultimately provided for the claimant. It later transpired in evidence that Mrs Byrne was in hospital due to concerns about her unborn child at this time. The Tribunal do not accept that she would not remember a matter of such significance to her health and that of her unborn child.

28. The claimant continued in her personal efforts to secure a reference and in or around October/November 2009 made contact with Mrs Fitzpatrick who indicated to her that the respondents were not under any obligation to provide a reference, that she was not being provided with a reference and that it was not the policy of the respondents to give references. Mrs Fitzpatrick also commented to the claimant that she had left the respondents in the lurch. When the claimant explained that she had no alternative but to resign, in the circumstances she found herself, Mrs Fitzpatrick hung up.

29. The respondents had a contractual obligation to provide the claimant with a reference as is evidenced by the extract from the contract of employment furnished and included at page 200 of the bundle.

30. Following Mrs Maguire's failure to secure a reference, Mr Brown from Jark contacted Mrs Byrne and once again faxed a copy of the reference request. No reply was received and following two months of unsuccessful attempts to secure a reference, Jark indicated to the claimant that they could not offer her employment.

31. The claimant's efforts to secure alternative employment in and around late 2009 included an application for a night shift position with the nursing home, Faith House. She was successful at interview for this position and was offered a job subject to references. It was at this time (30 November 2009) that she initially contacted the CAB for advice. The CAB rang the respondents and were promised a reference which did not materialize. This contact is evidenced by documentation produced to the Tribunal and is consistent with the claimant’s evidence of her unrelenting attempts to secure a reference.

32. The claimant continued in her personal efforts to secure a reference to no avail and on 10 December 2009 she succeeded in speaking to Mrs Fitzpatrick. She explained her requirement for a reference and was met with hostility by Mrs Fitzpatrick. It is the claimant's case that Mrs Fitzpatrick told her that she would not get a reference and remarked that “she was the big girl who wanted a baby and did not want to work”. The claimant was hurt and offended by this comment. Mrs Fitzpatrick denies making this comment and also denies the claimant’s case that she hung up on her.

33. Having carefully evaluated all the evidence including the manner in which it was presented, the Tribunal finds that Mrs Fitzpatrick was hostile in her attitude towards the claimant and inconsistent in her evidence when pressed under cross examination. By way of example it was alleged in a reply to a request for information by the respondents to a notice for additional information, that there were four Helens working with the first named respondent at the relevant time. It was the respondents’ case that when a message was left to "ring Helen", there was confusion as to which Helen. When Mrs Fitzpatrick was pressed under cross examination it became clear to the Tribunal that there were at most two Helens working with the respondents and the reply furnished was disingenuous, and in the opinion of the Tribunal deliberately so.

34. Mrs Fitzpatrick also insisted under cross examination that under the terms and conditions of the contract of employment furnished to the claimant, it was provided that only a factual reference would be furnished. This was inconsistent with the information that she (Mrs Fitzpatrick) gave to the claimant when she spoke to her earlier (para 28 refers). Furthermore when pressed under cross examination and referred to the copy contract furnished on discovery, Mrs Fitzpatrick reluctantly agreed that there was no reference in the contract to a “factual reference".

35. The Tribunal was also misled regarding a letter which the respondents claimed to have sent to the claimant in November 2007 asking her to return a signed contract of employment. It was the claimant's case that she never received this letter and never received a contract of employment. Mrs Fitzpatrick conceded this to be the case (in respect of the letter) only when closely pressed for clarification by a member of the Tribunal panel and presented with the incontrovertible evidence that by reason of the address appearing on the copy letter it could not have been sent in accordance with the respondent’s evidence.

36. Having found Mrs Fitzpatrick to be an unreliable witness for the above reasons and having found her to be hostile towards the claimant, the tribunal finds that on the balance of probabilities she did comment to the claimant along the lines alleged at paragraph 32.

37. The respondents eventually sent a factual reference to Faith House on 4 January 2010 but this was not sufficient to satisfy the requirements of Faith House under the Regulations and so the offer of employment was withdrawn.

38. On 4 January 2010 the claimant in her continued attempts to secure a reference called to the offices of the first named respondent and spoke to Mrs Byrne. It is Mrs Byrne’s case that this was the first time she was approached personally for a reference. Whilst the Tribunal accepts that this may have been the first “face to face” contact that Mrs Byrne had with the claimant, the Tribunal do not accept that this was the first approach that Mrs Byrne had from the claimant or that she was unaware that the claimant was actively seeking a reference. Given the numerous attempts by the claimant to make contact, the attempts made by Jark and the intervention of the CAB, the Tribunal find it inconceivable that this could have been the case. Furthermore given Mrs Byrne’s position and years of experience with the first named respondent, the Tribunal finds that she was fully aware that the claimant’s future employment was dependant on a reference and of the likelihood that she was being deprived of opportunities to work by the delay in furnishing a reference.

39. The claimant applied for a job in early 2010 with Clifton House and, in anticipation of continued difficulties, explained to them the problems she was encountering regarding a reference. She also contacted the CAB for a second time on 24 February 2010. This contact is evidenced by documentation produced. Clifton House secured a factual reference from the first named respondent and she was offered employment in or around April 2010.

40. The reference ultimately completed for the claimant was completed by Mrs Fitzpatrick notwithstanding the fact that she was not the claimant’s line manager. The Tribunal accept that Mrs Byrne was in hospital at the time which explains why she did not sign the reference (para 27 refers).

41. The claimant issued tribunal proceedings on 25 February 2010. It is her case that this led to the prompt provision of the reference to Clifton House. The Tribunal find on the basis of the considerable difficulties encountered by the claimant previously coupled with the provision of a reference so promptly after proceedings were issued to be, on the balance of probabilities consistent with the claimant’s case in this regard.

42. The claimant suffered hurt, distress and anxiety as a result of the respondent’s delay in providing her with a reference and as a result of their treatment of her. In particular she suffered anxiety as a result of her straitened financial circumstances. She was forced to discontinue a child trust fund that she had set up for her infant son. She incurred bank charges in the sum of £350.00. She had banking facilities withdrawn by her bank which was a source of considerable distress and embarrassment to her and which affected her credit rating. Christmas time 2009 was a particularly anxious time for her due to lack of money, her inability to celebrate and enjoy her baby’s first Christmas and ongoing anxiety about money coupled with her inability to secure alternative employment. Her relationship with her husband became strained in and around this time and the Tribunal finds that this was related to the claimant’s treatment at the hands of the respondents.

43. It is the claimant’s case that she suffered from depression as a result of the treatment she received at the hands of the respondents for which she was described antidepressants. The Tribunal finds that she was prescribed antidepressants in or around this time but it was a repeat prescription dating back to an earlier period and as a consequence can not be solely attributed to the difficulties she experienced with the respondents. In these circumstances the Tribunal finds that the claimant did not suffer personal injuries that can be directly related to her complaint.

44. The claimant’s police check discloses one entry dating back over 20 years. Contrary to the case being put forward by the respondents and advanced in the notice for additional information at page 36 of the bundle, the Tribunal finds that this has not had an adverse effect on her ability to secure employment in her chosen field. It did not give rise to any issue during the course of her employment and has not served as an impediment to securing alternative employment. It is Mrs Byrne’s contention that she is fearful of the claimant and she suggested to the Tribunal that she felt threatened by the claimant in the tribunal room. The Tribunal does not accept this to be the case given that it was raised for the first time towards the conclusion of Mrs Byrne’s evidence, it is not raised in any of the respondents’ witness statements, it was never an issue during the claimant’s period of employment, nor has it been an impediment to securing alternative employment. Having carefully considered the evidence and the manner in which it was presented, the Tribunal find it to be introduced by the respondents in an attempt to discredit the claimant and sully her reputation.

Submissions

45. The Tribunal heard submissions by Mr Sheridan on behalf of the respondents and by Ms Best on behalf of the claimant.

46. It is Mr Sheridan’s submission that the policy of the respondents was to provide only a factual reference and that such a reference would only be provided by the relevant line manager and following a “face to face” request from the person seeking it. It is his submission that the claimant sought a reference in compliance with their policy during her meeting with Mrs Byrne on 4 January 2010 and that a factual reference was immediately supplied. He further submits that there was no delay in providing a reference to Jark and it is denied that there were prolonged unsuccessful attempts on the part of Jark and on the part of the claimant to make contact with them.

47. It is Mr Sheridan’s case that the respondents’ policy was universally and strictly applied and as a consequence discrimination contrary to the 1976 Order or contrary to the Regulations is denied. Mr Sheridan submits that indicators such as the fact that the claimant enjoyed a flexible working pattern prior to her maternity leave and again on request in early September 2009, that she exercised her right to maternity leave and that their policy regarding references was strictly applied supports his submission.

48. It is Ms Best’s submission that the claimant was discriminated against contrary to the 1976 Order and contrary to the Regulations. Furthermore it is her submission that an award in respect of aggravated damages is appropriate as a result of the manner in which the respondents chose to conduct the proceedings. In particular she submits that references made by Mrs Byrne to the claimant’s forensic history (paragraph 44 above) were introduced in an attempt to discredit the claimant and to sully her reputation.

The Law

49. The legislation relevant to this case is the Sex Discrimination Northern Ireland Order 1976 as amended (the Order) and the Maternity and Parental Leave Regulations 1999 (the Regulations).

50. In so far as is relevant to these proceedings, Article 3 (1) of the Order provides:-

”In any circumstances relevant for the purposes of any provision of this Order ……………, a person discriminates against a woman if –

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man,”

51. In so far as is relevant to these proceedings Article 8(2) of the Order provides:-

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

(a) ..…..….

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

52. Regulation 19 of the Regulations provides:-

“(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

(2) The reasons referred to in paragraph (1) (in so far as is relevant to these proceedings) are that the employee-

(a)

(b) has given birth to a child;

(c)

(d) took, sought to take or availed herself of the benefits of, ordinary maternity leave.”

JURISDICTION

53. In the context of this case the Tribunal as a first step and in the interests of completeness have considered the point that the detriment that was the subject matter of the claimant's case occurred following her resignation and consequently at a time when she was no longer in the employment of the first named respondent. In this regard the Tribunal have considered the following House of Lords Appeals heard consecutively and referred to by Ms Best, Barrister at Law :-

Rhys - Harper (appellant) v Relaxion Group PLC (respondents) [2003] UKHL 33.

D'Souza (appellant) v London Borough of Lambeth (respondents).

Jones (appellant) v 3M Healthcare Ltd (respondents).

Kirker (appellant) v British Sugar plc (respondents).

Angel (appellant) v New Possibilities NHS Trust (respondents).

Bond (appellant) v Hackney Citizens Advice Bureau (respondents).

[2003] UKHL 33 citation in respect of all cases heard together.

Having considered and evaluated this case law the Tribunal find that it has jurisdiction to dispose of this case.

BURDEN OF PROOF

54. The Tribunal considered the established case law relating to the burden of proof in sex discrimination cases. In particular the Tribunal followed the guidance in Igen Ltd and others v Wong (2005) IRLR 258 which clearly sets out the process by which the Tribunal must approach the reversal of proof. This is a two stage process where the claimant must prove facts from which the Tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts on to the respondents. The respondents must then show that they did not commit the unlawful discrimination and that the treatment by them of the claimant was not related to her sex.

55. The Tribunal considered and followed the Court of Appeal’s guidance referred to at paragraph 54 above which provides:

“Pursuant to s 63A of the Sex Discrimination [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 respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Pt II or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

If the claimant does not prove such facts he or she will fail.

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'.

In deciding whether the claimant has 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 the primary facts found by the Tribunal.

It is important to note the word 'could' in s 63A (2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

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.

These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.

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 s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

That requires a Tribunal to assess not merely whether the respondent 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.

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.”

Conclusions

56. In the light of the established law and the guidance the Tribunal concludes that the claimant has proved facts from which the Tribunal could draw an inference of discrimination. The facts proven to the Tribunal include the following:-

The claimant by reason of childcare responsibilities arising following a period of maternity leave was forced to resign from her employment with the respondents without notice.

On tendering her resignation, Mrs Fitzpatrick commented to the claimant “this is what happens when you have babies”.

On 10 December 2009 when the claimant contacted Mrs Fitzpatrick for the purposes of securing a reference Mrs Fitzpatrick acted with hostility towards the claimant and commented “You are the big girl who wanted a baby and did not want to work”.

The first, second and fourth named respondents delayed and prevaricated in providing a reference to the claimant despite numerous requests from the claimant, from Jark, despite approaches from the CAB and in the knowledge that the claimant would be unable, by reason of statutory requirements to obtain employment without a reference from the respondents.

As a direct result of the respondents’ behaviour the claimant was deprived of a job opportunity with Jark.

The respondents did not explain to the claimant or to any of her prospective employers and particularly Faith House that information additional to the factual reference would be supplied orally if requested.

The respondents applied the requirement in the claimant’s case that “face to face” contact was required to secure a reference in circumstances where this requirement was not universally applied and was not applied in the case of Mr Paul Girvan who is a comparator for the purpose of this case.

57. Having found facts from which the Tribunal can draw an inference the burden of proof moves to the respondents.

58. By way of explanation for their treatment of the claimant it is the respondents’ case that their policy regarding references was universally applied, the policy was that factual references were provided following “face to face” contact with the employee seeking it. It is their case that a reference was provided to the claimant on 4 December 2009 following such contact and that otherwise there was no delay in providing a reference.

59. The Tribunal accept that the respondent’s policy of providing only factual references was universally applied and despite the fact that the claimant lost the opportunity for employment with Faith House, the Tribunal finds that this was unrelated to the claimant’s sex and so did not amount to sex discrimination contrary to the provisions of the 1976 Order. Neither does it amount to discrimination under the Maternity and Parental Leave Regulations 1999. Having said that the Tribunal note with concern that the respondents’ policy of providing only factual references was and remains contrary to the purpose of the regulations and is inconsistent with their own policy on recruitment.

60. The Tribunal find that the requirement for “face to face” contact for the purposes of securing a reference was not universally applied. In making this finding, the Tribunal have evaluated the evidence generally in relation to Mr Girvan’s case, the equivocal evidence of Mrs Fitzpatrick in this regard and have drawn an inference from this and from the failure on the part of the respondents to call Mrs McKeever who could have put the matter beyond doubt.

61. For reasons already given the Tribunal finds that there was delay in providing the claimant with a reference and that delay was by reason of her sex in that it related to the fact that she had a baby. In these circumstances no comparator is required. The Tribunal bases this finding on the evidence generally and relies particularly on the comments made by Mrs Fitzpatrick [paras 12 and 32 refer]. Furthermore the Tribunal draws an adverse inference from the respondents equivocal, evasive and inconsistent replies furnished to notice for information and proffered in evidence to the Tribunal. The evidence referred to earlier that there were four Helens in the employment of the first named respondent is a prime examples of such equivocation. Examples of numerous contradictions and inconsistencies in the respondents’ evidence are recorded in the preceding paragraphs.

62. Returning to the issues identified in this case in summary the Tribunal finds as follows:-

(1) The respondents subjected the claimant to a detriment contrary to Article 8(2) of the Sex Discrimination Order (Northern Ireland) 1996 by their delay in providing her with a reference and by their treatment of her as she sought to obtain a reference.

(2) The respondents treated the claimant less favourably than Mr Girvan contrary to the Sex Discrimination (Northern Ireland) Order 1976.

(3) The respondents did not treat the claimant less favourably on the grounds that she exercised her right to maternity leave contrary to Article 5A of the Sex Discrimination (Northern Ireland) 1976. The claimant was subjected to less favourable treatment on the grounds that she had a baby and associated childcare responsibilities.

Remedies available to the Tribunal in cases of sex discrimination

63. The most common remedy available to a Tribunal where sex discrimination has been found, after making a declaration to that effect, is to make the claimant an injury to feelings Award.

64. A further award in respect of aggravated damages may be made in circumstances where the respondent has exacerbated the hurt and distress caused by the original treatment by continuing to cause hurt and distress by subsequent actions and attitude towards the claimant during proceedings.

65. As there is no monetary limit on the amount of an award for injury to feelings the Tribunal is guided by the obligation to exercise its discretion in this regard judicially and reasonably and to do so in light of the guidance given to it by the case law in this area.

66. The Tribunal considered the guidelines set out in the cases of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 (“Vento”) and Da’Bell v National Society for the Prevention of Cruelty to Children and Harvey on Industrial Relations and Employment Law. The Tribunal found the following extracts of assistance:-

“It is self evident the assessment of compensation for an injury or loss which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anxious, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise”

“Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are nonetheless real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury”.

The Tribunal also considered the guidelines in HM Prison Service v Johnson [1997] IRLR 162 as stated by the EAT as follows:-

“(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should fully compensate without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award.

(ii) Awards should not be too low, as that would diminish respect for the policy of anti discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained , as excessive awards could be seen as the way to untaxed riches.

(iii) Awards should bear some broad similiarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.

(iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This should be done by reference to purchasing power or by reference to earnings.

(v) Finally, tribunals should bear in mind…..the need for public respect for the levels of award made.”

67. Having considered the case law and the guidelines as recited and having evaluated all the evidence and considered the hurt, upset, embarrassment ,frustration and distress caused to the claimant, the Tribunal consider that the award for injury to feelings in this case falls somewhere within the middle band of injury to feelings according to Vento. The case law examples and guidance on the level of award for discrimination tends to suggest that, unless heinous, a one-off act of discrimination will attract a lower award than, say, a sustained campaign of harassment. In this case, the respondent’s treatment of the claimant was continuous and sustained over a period of months whilst she tried to secure a reference and in the opinion of the Tribunal justifies an award for injury to feelings in the middle band . In all the circumstances of this case the Tribunal awards the claimant the sum of £6,000.00 for injury to feelings.

68. The Tribunal accepts that this is a case where an award for aggravated damages is appropriate. The Tribunal having considered and evaluated the evidence and considered the case law (Scott v Commissioners for Inland Revenue [2004] IRLR 713 CA) are aware that an award for injury to feelings can be increased by a figure to reflect features in the respondent’s conduct that aggravated the claimant’s position. The Tribunal are satisfied that the respondent’s evidence relating to the claimant’s forensic history was irrelevant to the proceedings and it and the manner in which it was introduced amounted to a deliberate attempt on the part of the respondents to discredit the claimant, to humiliate her before the Tribunal and to sully her reputation.

69. In these circumstances the Tribunal are satisfied that the behaviour of the respondent in this regard served to aggravate the injury to feelings suffered by the claimant and awards the claimant the sum of £3,500.00 by way of aggravated damages as compensation.

70. The total sum for compensation awarded for injury to feelings is therefore £9,500.00.

71. Interest at the rate of 8% per annum from the date of the respondent’s contravention of the Act is potentially payable under Regulation 7(1)(a) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The tribunal is obliged by Regulation 3(1) (b) to consider whether to include interest on an award. It may calculate the interest by reference to a period other than the period running from the date of the contravention to the date of calculation if it is of the opinion that serious injustice would be caused by calculating interest by reference to that period.

The Tribunal have considered the case of Derby Specialist Fabrications Ltd v Burton [2001] IRLR 69 on this point.

72. The claimant first contacted the respondents for the purposes of securing a reference on 21 October 2009. The Tribunal has no evidence on which it could conclude that calculating interest by reference to the standard period would cause serious injustice to the respondents. It concludes that it would be appropriate to award interest in this case and interest is awarded from 21 October 2010 to the calculation date which for the purposes of these proceedings is the date of this decision at the rate of 8%.

73. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 8-9 November 2010, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilson v Provincial Care Services Agenc... [2010] NIIT 00431_10IT (07 February 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00431_10IT.html Cite as: [2010] NIIT 431_10IT, [2010] NIIT 00431_10IT

Industrial Tribunals Northern Ireland Decisions