FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  79/07 FET
917/07

CLAIMANT:		Joyce Louise Whiteside

RESPONDENT:		Pfizer Ltd

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim that she was discriminated against on the ground of her sex be dismissed.

Constitution of Tribunal:
Chairman:		Ms A Crooke
Members:		Mrs Adams
			Mr Norney

Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by John Boston & Company, Solicitors.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Eversheds LLP.

Sources of evidence

1.	The claimant gave evidence on her own behalf and Ms Deirdre Cahoon, a former colleague of the claimant’s in the respondent company, also gave evidence on her behalf.  Mr Darren Feenan, Mr Neil Upton and Ms Anne McMahon gave evidence on behalf of the respondent.  There was also an agreed bundle of documents before the Tribunal.

2.	At the conclusion of the hearing, Mr Ferrity explained that Celia Tennant, who had been line manager of Mr Darren Feenan at the time in question, had taken up a new post with a new company in Scotland and was not able to attend the Tribunal to give evidence in person.  He requested that her witness statement be admitted into evidence.  The Tribunal did admit her witness statement into evidence, largely because Mr McKee had already read out some portions of it when he was taking the claimant through her supplemental statement.  Generally, the Tribunal assigned very little weight to Ms Tennant’s statement.  

The claim and the defence

3.	The claimant claimed that she had been victimised and treated in a bullying and discriminatory manner, in particular, by her manager, Darren Feenan.  She claimed that she had been discriminated against on the grounds of her sex, her religion, and her political views.  

4.	The respondent denied that the claimant had been subjected to any discriminatory behaviour as alleged or at all.

5.	On the second day of the hearing, Mr McKee withdrew the case of discrimination on religious and political grounds and it is hereby dismissed.

The relevant issues

6.	In this case the issues for determination by the Tribunal underwent some change from the time of the Case Management Discussion on 20 September 2007 to the end of the hearing.  In his opening to the Tribunal, Mr McKee described this case as concerning a ‘marking issue’.  Probably because he abandoned the religious and political discrimination element of the case on the second day of the hearing, he had moved away from this encapsulation of the claim somewhat to say that in his closing statement that there were two fundamentals necessary for the claim to succeed and these were:-

(a)	that Darren Feenan verbally abused the claimant and swore at her; and

(b)	he would not have treated male representatives in that fashion.

He also said that Darren Feenan should have challenged the unfair reduction in the peer review group meeting, but failed to do so and this was another example of discrimination.  He also said that it was important that Mr Feenan should have made comments on the claimant’s end of year review form and had not done so as if this was to be challenged it was all the more important to make comments.  Finally, he said that there was an acceptance by Mr Feenan that he had reduced contact with the claimant.  Mr McKee submitted that if we found in favour of the claimant, ie that she had been harassed by Darren Feenan in the telephone conversation of 17 November 2006 that the discrimination by way of cold-shouldering automatically flowed as a consequence from that finding.  

The relevant law

7.	The relevant law is to be found in Section 63A of the Sex Discrimination (Northern Ireland) Order 1976.

8.	The Tribunal was also referred to the following authorities:-

Barton  v  Investec Securities Limited [2003] ICR 1205

Igen  v  Wong [2005] ICR 931

Laing  v  Manchester City Council [2006] IRLR 748

Madarassy  v  Normura International PLC [2007] IRLR 246

Brown  v  London Borough of Croyden & Another [2007] IRLR 259

Finally, the Tribunal was referred to the binding authority of McDonagh & Others  v  Thom (trading as The Royal Hotel, Dungannon) [2007] NICA 3.

Findings of fact

9.	The claimant was employed as an Executive Primary Care Representative with the respondent from 10 February 1997 to in or about 15 June 2007.  She had previous service with a company that had been taken over by the respondent.  

10.	In the course of her employment, the claimant was managed by Darren Feenan, but from January to May 2006, the claimant was managed by Dayna Boychuk and John Patterson during the illness of Darren Feenan.  From June to September 2006 the claimant was managed again by Darren Feenan.  In or around 6 September 2006, Darren Feenan’s wife had a serious car accident which meant that he was on leave for a period.  During this time, Darren Feenan was still the claimant’s manager.  

11.	The claimant was happy with the result of her mid-year review in 2006 which noted her objectives as ‘consistently met’.

12.	Celia Tennant who was Business Director for Northern Ireland and Darren Feenan’s line manager decided to carry out a field visit in respect of the claimant.  This took place in or around 16 November 2006.  Before this visit, the claimant asked Darren Feenan what was the reason for the visit.  He had been told by Celia Tennant not to reveal the reason.  Eventually he told the claimant that Celia Tennant wanted to see how she was getting on after her time with her previous manager.

13.	This caused the claimant considerable worry.

14.	There was a peer review group meeting on 25 and 26 October 2006 to mark the year’s performance of the sales team.  At that meeting, Neil Upton and Darren Feenan were the only Sales Managers present, but the others present were Celia Tennant, Tania Ely, an Administrative Assistant responsible to Celia Tennant, Oliver McStravick and Anne McMahon, the local Account Manager.  

At that meeting, for which no notes were produced to the Tribunal, Darren Feenan marked the claimant as a low consistently met in respect of her objectives.  Two matters were canvassed in the meeting:-

(1)	ongoing difficulties with the claimant’s paperwork including an alleged failure to pay the bill for a venue for a Pfizer event; 

(2)	an incident on 12 September 2006 in which the claimant, allegedly drunk, sat on Neil Upton’s knee and kissed his forehead.  Allegedly she had to be removed by Celia Tennant. 

These items were fed into the marks she was received for ‘leadership behaviours’ and reduced her initial score of ‘consistently met’ for objectives to ‘partially met’ for objectives.

15.	It is important to note that the claimant was not disciplined for the latter incident and no formal complaint was made by Neil Upton, although Darren Feenan and Tania Ely had spoken to the claimant on occasions about her paperwork prior to this peer review group meeting.  Darren Feenan also alleged on occasions that he completed or redid the paperwork for the claimant, but no objective proof of this was provided to the Tribunal.

16.	There was a conflict in the evidence between the claimant and Darren Feenan concerning the events of 17 November 2006.  The claimant said that in a telephone call on that day, Darren Feenan had shouted and sworn at her, reducing her to tears.  Apparently, Darren Feenan’s concocted reason for the field visit had become known to the claimant’s previous manager, Anne McMahon, who was not pleased about this and Celia Tennant had spoken to him on the subject.  Darren Feenan admitted that he discussed the matter with the claimant but denied shouting and swearing.  On the balance of probabilities, as Darren Feenan admitted he was annoyed in the telephone conversation and that he concocted an explanation for the field visit, the Tribunal considers that it is more likely than not that there was some degree of raised voices in this telephone conversation.  

17.	Darren Feenan relaid the results of the peer group review to the claimant on 12 December 2006.  She raised a grievance about this by letter dated 8 January 2007, which grievance was investigated on 23 February 2007 and the claimant was verbally informed of the outcome, with it being confirmed by letter dated 30 March 2007.  The outcome was that the claimant’s ‘partially met’ rating was upheld.  The claimant’s appeal against this outcome to James Winterman was not upheld.  

18.	The managers involved in the peer review group meeting, namely Neil Upton and Darren Feenan, admitted they had not received equality training from the respondent and although they accepted in retrospect that it was not fair that the claimant had not been allowed to answer Neil Upton’s allegation, before it was used to her detriment, at the time in question, ie 26 October 2007, they allowed it to influence the peer review group.

19.	Darren Feenan did not look at the claimant’s ‘evidence’ of performance and did not take this back to the peer review group.

20.	The claimant alleged that Darren Feenan cold-shouldered her after the telephone call of 17 November 2006.  There were telephone and e-mail records available but these were insufficient to enable the Tribunal to find that compared with events prior to 17 November 2006 there was a reduction in contact.

Analysis of evidence

21.	In general, although there was some slight inconsistencies in the claimant’s evidence between her originating claim, her witness statement and her oral evidence, the Tribunal regarded her as a reliable witness.  Apart from the question of the telephone conversations on 17 November 2006, there was no great dispute as to the facts in this case, and even in respect of that conversation, there was a sufficient bedrock of common fact in the two versions of the events to allow the Tribunal to make a finding.

Conclusions

22.	In reaching its decision, the Tribunal has been guided by the guidance in an annex to a judgment of the Court of Appeal in the case of Igen  v  Wong [2005] ICR 931 which was approved in the case of McDonagh [2007] NICA 3 as follows:-

“(1)	Pursuant to Section 63A of the SDA, 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 Part II or which by virtue of Section 41 or Section 42 of the SDA is to be treated as having been committed against the claimant.  These are referred to below as ‘such facts’.

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

(3)	It is important to bear in mind 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 discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(4)	In deciding whether the claimant has proved such facts, it is important to remember that the outcome of 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.

(5)	It is important to note the words ‘could’ in Section 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.

(6)	In considering what inferences or conclusions can be drawn from primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

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

(8)	Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and if so, take it into account in determining, such facts pursuant to Section 56A(10) of the SDA.  This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

(9)	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.

(10)	It is 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.

(11)	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.

(12)	That requires a Tribunal to assess not merely whether the respondent has provided 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.

(13)	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 the Code of Practice.”

Has the claimant proved ‘such facts’?

23.	Mr McKee submitted that if the Tribunal found in favour of the claimant in relation to the telephone calls of 17 November 2006 in which Darren Feenan allegedly shouted and swore at the claimant reducing her to tears, the finding of discrimination by way of cold-shouldering, by way of a reduction in contact would follow through from the finding against Darren Feenan on the issue of the telephone calls of 17 November 2006.  The Tribunal does not agree with this contention.  Darren Feenan stated in evidence (and it was accepted by the Tribunal) in October 2006, that he had an additional number of representatives to manage due to Dayna Boychuk’s maternity leave, and he had less time across the board to contact everybody in his extended team.  This was to some extent challenged by the claimant, but there was no objective evidence of the comparative numbers of telephone calls and e-mails both before and after the events of 17 November 2006.  

24.	Furthermore, we do not understand how the allegation of cold-shouldering follows through from the telephone conversations of 17 November 2006, as there was no objective evidence to challenge Darren Feenan’s evidence that the reduction had actually started round the start of October 2006.

25.	In relation to the telephone conversations of 17 November 2006, while we found that there was an element of voices being raised in this conversation, there was no evidence to suggest that this had anything to do with the claimant’s sex.  There was a belief, on the part of the claimant, that Darren only treated her this way because she was a woman.  However, there was no more than that belief before the Tribunal.  We do not understand how Mr McKee could submit that Darren Feenan’s evidence that he would not treat anyone, male or female, like that, could be translated into an acceptance on the part of Darren Feenan that he did not treat male representatives in the manner in which he allegedly treated the claimant.  

26.	We do not consider that the fact that Darren Feenan did not fill in comments on the claimant’s yearly review form without hearing more of the circumstances in which that occurred, is sufficient to act as a comparator for the sex discrimination claim.  Darren Feenan said that the claimant started to appeal her rating and he did not get an opportunity to put his notes on the system once that happened.  There is no objective evidence adduced to counter this assertion.

27.	We accept that there were no notes of the peer review meeting, a disregard of the principles of fairness enshrined in employment law and inconsistent treatment in respect of the alleged incident with Neil Upton.  However, it is important to note that there was no allegation of discrimination in relation to the Neil Upton incident and the marking of the pay review.  The allegation solely referred to Darren Feenan’s failure to take the claimant’s case back to the peer review group.  The Tribunal also considers it important to note that in considering the inconsistent treatment, the persons looked at were all females.  The case on this point at its height would be that other females who allegedly behaved badly at functions ran by the respondent were not subject to penalties.  The Tribunal was surprised at the lack of equal opportunities training given by the respondent company (which Mr Upton stated was the best in the world) to managers as evidenced by the negative answers of Mr Upton, Darren Feenan and Ms McMahon.  Additionally, it was not denied that racially stereo typical Indian names were used for a Powerpoint presentation to Pfizer representatives.  However, we did not consider that these background facts added together are sufficient to shift the burden of proof and we do not see what inferences of secondary fact can be drawn from the primary facts found, even admitting that it is unusual to find direct evidence of sex discrimination.

Chairman:

Date and place of hearing:	21 – 25 January 2008; 25 - 26 February 2008, Belfast.

Date decision recorded in register and issued to parties: