Cummins v Queen’s University of Belfast & Anor  (Sex Discrimination)  (16 October 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	04517/99SD

APPLICANT:		Trevor Cummins

RESPONDENTS:		1.	The Queen’s University of Belfast
				2.	Denise Scullion

DECISION

The unanimous decision of the Tribunal is that none of the applicant’s complaints is well-founded; accordingly, each of those complaints is dismissed.
Appearances:
The applicant appeared in person.
The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

REASONS

1.	These reasons are given in extended form.  

Introductory

2.	The applicant was employed by the respondent, the Queen’s University of Belfast (‘the university’), as a Team Leader/Supervisor in Cleaning Services Section of the university’s Estates Office from November 1998 until 31 July 1999.  On the latter date, the applicant was dismissed by the university.  

The complaints

3.	In these proceedings, the applicant complains that, in contravention of the Sex Discrimination (Northern Ireland) Order 1976 (‘the Order’) the university has committed various acts of discrimination against the applicant which are unlawful by virtue of Article 8(2)(b) of the Order.  [Article 8(2)(b) provides that it is unlawful for an employer to ‘discriminate’ against an employee by dismissing that employee, or by subjecting that employee to ‘any other detriment’.]  

4.	The applicant eight complaints in all:-

(1)	The applicant asserts that he was told that he wouldn’t be held responsible for problems left by other supervisors but he alleges that, in practice, the university did hold him so responsible.

(2)	The applicant asserts that he was subject to more performance appraisals than other staff.

(3)	The applicant asserts that Ms Denise Scullion, his line manager, and the second named respondent to these proceedings, dismissed his suggestions (for improvements in working practices) on one occasion.

(4)	On a date in February 1999, he was not given overtime, although certain women were given overtime on that occasion.

(5)	On one occasion, he was told at a meeting that he had not been ‘rotated’ because of the poor standard of his work.  This was done in front of witnesses.

(6)	When he complained that he was the victim of sex discrimination, Mr Patrick Hughes (the line manager of Ms Scullion) failed to carry out an adequate investigation into that allegation.  

(7)	A special investigation (of the quality of cleaning in the area of which the applicant was responsible), which was carried out in July 1999, was inappropriate and unnecessary.  

(8)	The applicant was dismissed by the university and this was an act of sex discrimination.

The evidence

5.	We heard evidence from the following:-	

(1)	The applicant, on his own behalf.

(2)	On behalf of the respondents:-

(a)	Ms Denise Scullion

(b)	Mr Patrick Hughes

(c)	Mr Ray McEvoy, a Personnel Officer in the university

6.	We told the parties that we would pay regard only to documents to which our attention was specifically drawn.  The tribunal saw the following documents:-

(1)	An agreed bundle, consisting of 105 pages.

(2)	The university’s disciplinary procedure for Non-USS Staff.

(3)	A two page statement which the applicant had prepared in advance of the hearing, and which he used as the basis for his evidence-in-chief.

(4)	A memo dated 18 February from Professor Jonathan Gorman to Mr Patrick Hughes and a letter dated 3 March 1999 which Ms Scullion sent in response.

(5)	Letters which the university sent to Mr Cummins on 15 March 1999, on 12 May 1999, on 22 June 1999 and in July 1999.

Our findings of fact

7.	From the evidence we saw and heard, the tribunal makes the findings of facts which are set out in the following paragraphs.  We are well aware of the fact that, for the purpose of finding facts and arriving at conclusions in relation to any particular complaint, it is necessary to have regard to the totality of the evidence available to the tribunal; it is not sufficient to pay regard only to that part of the evidence which seems to be of greatest relevance in the context of that particular complaint. 

8.	Complaint 1 consists of the applicant’s assertion that, although he was told by the university that he would not be held responsible for problems left by other supervisors, in practice he was held responsible.  In this paragraph, we highlight those findings of fact which are particularly relevant to Complaint 1.  We are satisfied that the applicant was not blamed for any problems caused by the actions as regards omissions of other supervisors.  We note that the university expected all supervisors, including the applicant, to attend to any cleaning problems which became apparent in the relevant supervisor’s Area, regardless of the source of the problem.  

9.	In this paragraph, we highlight those findings of fact which are particularly relevant to Complaint 2.  Complaint 2 is the complaint that the applicant was appraised more frequently, in terms of performance, than other supervisors:-

(1)	From February 1999 onwards, the applicant was indeed subjected to more appraisals of his performance, on a more intensive basis, than other supervisors.  

(2)	This was because of the fact that a higher volume of complaints were received in respect of the cleaning carried out in his Area (in comparison with the complaints received in respect of the quality of cleaning in each of the other Areas).

10.	In this paragraph, we highlight those findings of fact which are particularly relevant to Complaint 3.  That complaint consists of the assertion, on one occasion, Ms Scullion’s attitude was dismissive in response to a suggestion, made at a meeting, on the part of the applicant, that specified changes should be made to the system for obtaining stores, with a view to enhancing management controls:-

(1)	Mr Cummins did make the suggestion, in the manner asserted by him.

(2)	Ms Scullion did reject that suggestion, but she did not do so in an abrupt manner.  She was unwilling to accept that suggestion because, at the relevant time, the Cleaning Services Section being subjected to a lot of changes.  She genuinely considered that the time was not right, for that reason, to implement the proposed changes.  

(3)	On another occasion, Mr Cummins made a suggestion to Ms Scullion about the provision of an ‘evening diary’, which would be kept up-to-date with a view to making sure that everybody was in a position to know where all the staff were at any given time.  That suggestion was accepted by Ms Scullion.

11.	In this paragraph, we highlight those findings of fact which are particularly relevant to Complaint 4.  The substance of that complaint is that, during the month of February 1999, Mrs Carol Clarke and Mrs Marilyn Scott, two other supervisors, were given overtime in the Main Admin Building even though Mrs Ann Allen, another supervisor, and the applicant were the supervisors who were in charge of the Areas which were located within that building; Mrs Allen and the applicant were not asked to do any overtime.  In March 1999, Mrs Scott was asked to do overtime in the applicant's Area; again, he was not asked to do that overtime:-

(1)	Mrs Clarke and Mrs Scott were indeed given overtime in the Main Admin Building during the month of February 1999 and Mrs Allen and the applicant were not asked, on that occasion, to do that overtime.  

(2)	There was no policy or contractual provision or rule or practice which indicated that the university could not have a supervisor from another Area to carry out overtime within a particular supervisor’s Area.

(3)	Overtime was freely available to all supervisors, throughout the period of the applicant’s employment with the university.  Because of personal circumstances, the applicant usually preferred not to do any overtime.  

12.	Complaint 5 is a complaint that the applicant was told at a meeting that he would not be ‘rotated’ because of the bad standard of his work.  In this paragraph, we highlight the findings of fact which are particularly relevant to that complaint:-

(1)	For cleaning purposes, the university divided its building stock into several Areas.  Each Area was the exclusive responsibility of a particular supervisor.  Each Area consisted of part of a building, a whole building or a group of buildings.  A particular supervisor’s team worked exclusively within that supervisor’s Area.  

(2)	It was the policy of the university to ‘rotate’ at regular intervals, so that a particular supervisor would have experience, over time, of working several Areas.

(3)	On 11 March 1999, Ms Scullion told the applicant, in the presence of other supervisors, that he would not be rotated at present, because of the high level of complaints in respect of the cleaning in his Area.  

(4)	That remarks was insensitive and inappropriate, having regard to the fact that it was made in the presence of other supervisors.  It was made because of the frustration which Ms Scullion felt at that time arising from her perception that the applicant was not carrying out his work properly.  

13.	Complaint 6 is a complaint that Mr Patrick Hughes failed to adequately investigate a complaint of sex discrimination which the applicant made in respect of the treatment which he had received from Ms Scullion.  In this paragraph, we highlight those findings of fact which are particularly relevant to that complaint:-

(1)	A meeting was called by Ms Scullion on 28 April 1999.  Ms Scullion and Mr Andrew McQuilken and Mr Cummins were present at that meeting.  The purpose of that meeting was to discuss Mr Cummins’ level of performance and to discuss his period of probation, which at that time was scheduled to come to an end in the near future.  During the meeting, Ms Scullion criticised the performance of the applicant.  He was also informed at that meeting that his probationary period would be extended for a number of months.  The applicant was very angry and stated that, since he started, he felt that Ms Scullion had been giving him a hard time.  He added that he felt that he had been treated differently by Ms Scullion because he was a man.  He asked to speak to Mr Hughes concerning that matter.  

(2)	At the meeting, Ms Scullion agreed to arrange a meeting between Mr Hughes and the applicant, as requested.  

(3)	Ms Scullion did inform Mr Hughes of the fact that there had been a complaint and the fact that the applicant was requesting a meeting with Mr Hughes regarding the matter.

(4)	Mr Hughes never took steps to arrange any such meeting.  

(5)	Mr Hughes did not provide any explanation to the tribunal in respect of that failure.

(6)	Good practice requires that, if an allegation of sex discrimination is made by an employee against another employee, effective steps should be taken to investigate that allegation.  However, no such practice was followed in this instance.

(7)	We received no evidence on the question of whether or not any woman had ever made an allegation of discrimination against another employee of the university, had then requested an interview with a person in authority to discuss her allegation, and had been granted such an interview.  

14.	Complaint 7 is that a special investigation of the quality of cleaning in applicant’s area was carried out in July 1999; according to the applicant, that inspection was inappropriate and unnecessary.  In this paragraph, we highlight the single finding of fact which is particularly relevant in the context of that complaint.  We find that the relevant inspection was both appropriate and necessary, having regard to the history of complaints in relation to the applicant’s Area, and having regard to the response of the applicant in connection with those complaints.  

15.	In the following paragraphs, we set out other findings of fact.  The applicant held the post of team leader/supervisor in the Cleaning Services Section of the Estates Office of the university.  The main purpose of the job was to ensure that the university’s cleaning standards were met through daily supervision of the domestics/cleaning staff who reported to the applicant.  The duties of the post included allocation of work to the relevant staff and a duty to control the quality of work carried out by those staff, in order to make sure that the cleaning service was carried out to the university’s required standards.

16.	During the period of the applicant’s employment with the university, there were five team leaders/supervisors in the Cleaning Services Section.  Accordingly, the university’s building stock had been divided into five Areas; each supervisor was responsible for his/her own Area and for supervising the cleaning staff who reported to him/her.  For example, the applicant had approximately 18 staff reporting to him.  Of the five cleaning supervisors substantively employed was such at the time of the applicant’s employment with the university, four were female.  The applicant was the only male cleaner.  He was also the only one of the supervisors to be appointed from outside the university.  All the other supervisors were already employed by the university at the time they became supervisors.  

17.	Initially, the applicant’s Area mainly consisted of buildings along the Lisburn Road; later, from February 1999, he became responsible for a different Area, which included buildings closer to the main university buildings.  

18.	From February onwards, there were a series of complaints about the standard of cleaning within the Area of the applicant.  In general, those complaints were well-founded.  Some of them were from academics.  Some of them were the result of observations and inspections by Ms Beatrice Elliott, the Cleaning Services Section’s Quality Supervisor.  In general, the same types of complaints tended to recur.  In general, the applicant’s attitude, when challenged, was to disclaim responsibility for the quality of the cleaning.  His general attitude was that, once he allocated work, he expected it to be done to the required standard and, if it was not done to the required standard, that was the responsibility of the individual cleaner, not the applicant’s responsibility.  Furthermore, the applicant consistently rejected a number of offers of supervisory and other training which were made to him by Ms Scullion.  His attitude was that he was an experienced cleaning supervisor and, as a result, he did not need any further training.  Indeed, on one occasion during his employment with the university, he left a supervisor’s course, which he had been supposed to attend for two days, at lunch time on the first day.  From February onwards, he had a poor personal relationship with Ms Scullion.  Probably as a result of this, he did not effectively communicate with her.  He did not keep her informed of problems which came to his attention.  He did not keep her informed as to what action, if any, he was taking in order to resolve those problems.  Given a lack of trust which had developed between Ms Scullion and the applicant, this was a very understandable human reaction on his part.  However, it was obviously a reaction which was likely to cause frustration and concern on the part of Ms Scullion.  

19.	There was no other supervisor, at the time of the applicant’s employment, whose Area was the subject of complaints which were similar in quantity to the complaints which were received at that time in respect of the applicant’s Area.  All the other supervisors were good communicators.  During the period of the applicant’s employment with the university, a Mr Robert Cummins (no relation) was an acting team leader.  At some stage during the period since the applicant’s dismissal, Mr Robert Cummins has become a permanent team leader.  Mr Cummins has never had any difficulties at the university of the type which the applicant experienced; there has never been any substantial concern about Mr Cummins’ performance; he has never received treatment similar to that which has aggrieved the applicant.

20.	Ultimately, the applicant was dismissed with effect from 31 July 1999.  The university purported to dismiss him because of his poor performance.  The purported reason was the true reason.  The university dismissed him because there was a substantial number of serious complaints in relation to the quality of cleaning in his Area; because the same types of complaints kept recurring; because the applicant, despite warnings, did not accept responsibility for the difficulties which were being experienced and did not seem to be able to take effective corrective action; and because the applicant was disinclined to seek or obtain any additional training.  By the end of July, circumstances were such that the university would have acted fairly in dismissing the applicant if they had done so after following a fair procedure.  

21.	Unfortunately however, in dismissing the applicant, the university did not follow a fair procedure, in that it failed to extend to the applicant the protections of its Disciplinary Procedure for Non-USS Staff.  The preamble to that Procedure makes it clear that it is intended to apply to job performance problems; there is no indication in the Procedure that it is not applicable to university employees who are still within their probationary period (as the applicant was at the relevant time).  

22.	The applicant believes that Ms Scullion was solely or mainly responsible for all of the treatment of which he complains.  However, in reality, throughout the process which led to the applicant’s dismissal, Ms Scullion relied heavily upon the advice of the personnel department of the university.  That advice was provided to her mainly by Mr Andrew McQuilken.  Furthermore, throughout the process which ultimately led to the applicant’s dismissal, Ms Scullion  kept Mr Patrick Hughes fully informed.  We have no doubt that every important step, in that context, was taken with the support and approval of Mr Hughes.  

23.	The applicant has consistently taken the view that any problems with the cleaning in his Area were mainly attributable to a culture of laxity which had existed long before he became employed by the university to trade union custom and practice; and to substantial staff sickness problems.  However, we do not accept this proposition.  We note that these were matters which would have affected other supervisors and other Areas.  

24.	Although the applicant accused Ms Scullion, on 28 April 1999, of sex discrimination, no adequate investigation into this allegation was ever carried out.  

25.	For many years, the university has consistently failed to apply its disciplinary procedure in the context of the dismissal of staff members in circumstances in which those staff members are probationers and are being dismissed because of poor performance (as distinct from being dismissed for breach of discipline).  This failure to apply the disciplinary procedure have occurred in relation to women probationers as well as in relation to male probationers.

The submissions

26.	The tribunal drew the attention of the parties to the case of Coyne  v  Home Office [2000] ICR 1443.  

27.	The main submissions of the parties can be summarised as follows:-	

(1)	The applicant drew attention to what he considered to be the unfair treatment which had been meted out to him.  This was treatment which had not been accorded to the female supervisors.  In particular, his job performance had been appraised far more frequently than the job performance of others had been appraised.  There was no adequate investigation of his sex discrimination allegation.  There was no adequate recognition of the applicant’s qualities.  Ms Scullion acted unfairly towards him and, in the applicant’s view, she was influenced by his gender in her treatment of him.  He was a man and his line manager, Ms Scullion, was a woman.  

(2)	The respondent accepted that the disciplinary procedure should have been applied in the applicant’s case.  However, the applicant had been given ample opportunity to improve and he had been informed, clearly, of the shortcomings, giving him an opportunity to improve.  The university’s actions in relation to the applicant were reasonable and do not suggest evidence of discrimination.  Close monitoring was reasonable.  Such close monitoring, in the circumstances, was not evidence of discrimination.  The respondent relies on Coyne and on Glasgow City Council  v  Zafar [1998] ICR 120.  

The law

28.	The relevant legal principles can be summarised as follows:-

(1)	The Order must be construed in a manner which accords with the requirements of the Equal Treatment Directive 1976 (‘the Directive’) as identified in the judgements of the European Court of Justice.  

(2)	Article 1(1) of the Directive defines its purpose, which is:-

“to put into effect in the Member States the principle of equal treatment for men and women as regard access to employment, including promotion and to vocational training and as regards working conditions, and on the conditions referred to in Paragraph 2 [of Article 1(a)], social security”.

(3)	Paragraph 2 of Article 2 of the Directive declares, as a principle, that:-

“there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status”.

(4)	The effect of Article 8(2) of the Order is to provide that it is unlawful for the university, in the case of a man employed by it, to ‘discriminate’ against him ‘by dismissing [him] or subjecting [him] to any other detriment’.  (The terms ‘discriminate’, as used in the Order have had a special meaning: see below.)

(5)	In the Order, the term ‘discrimination’ includes three types of discrimination.  Sex discrimination is one of those types.  The effect of Article 3 of the Order is that the university discriminates against a man in any circumstances relevant for the purposes of the Order if, on the grounds of his sex, the university treats him less favourably than it treats or would treat a woman.  (In the present context, the term ‘university’ includes any person for whose act of discrimination the university is legally responsible.)  Accordingly, in the context of this case, sex discrimination involves the following issues:-

(a)	Was the applicant treated less favourably from a woman may or should be treated in similar, or not materially different, circumstances?

(b)	If so, was the less favourable treatment accorded to the applicant on the ground of his sex?

(6)	The concept of less favourable treatment inevitably involves a statutory comparison.  Article 7 of the Order provides that statutory comparison.  Article 7 of the Order provides that statutory comparison of persons of different sex ‘must be such that the relevance circumstances in the one case are the same, or not materially different, in the other’.

(7)	In order to prove sex discrimination, there is no need to establish a discriminatory motive or to establish a conscious motivation or intention to discriminate.  Sex discrimination need not be the sole cause of the discriminatory treatment, or even the main cause, but it must be an operative or effective cause.

(8)	Evidence that a person has behaved badly or unreasonably towards an employee does not provide a sufficient legal basis for inferring less favourable treatment.  (See Zafar, a case already referred to above.)

(9)	Coyne, a case which has also already been referred to above, is authority for the proposition that the mishandling of a complaint of sexual discrimination is not, without more, less favourable treatment within the meaning of the Order.  Instead, in order to establish sex discrimination under the Order (in the context of a complaint of the mishandling, by an employer, of an earlier complaint of sex discrimination), a complainant has to demonstrate that, in handling his complaint, the employer treated him less favourably than it would have treated a woman in similar circumstances.  

(10)	In these proceedings, in considering the question of ‘detriment’, in the sense in which that term is used in Article 8 of the Order, we have had regard to the decision of the House of Lords in Chief Constable of West Yorkshire Police  v  Khan [2001].

(11)	We know, in the context of the definition of sex discrimination, that, in the Order, the word ‘act’ includes a deliberate omission.  

The tribunal’s conclusion

29.	The following conclusions, in relation to each complaint, are based on the findings of fact set out above and apply the legal principles summarised above:-

(1)	Complaint 1 (accountability for problems left by others) fails because the complaint does not meet the ‘less favourable treatment’ requirement.  We are satisfied that all supervisors, regardless of gender, were held equally accountable for sorting out problems left by other supervisors.

(2)	Complaint 2 also fails because of the fact that it does not meet the ‘less favourable treatment’ requirement.  We are satisfied that any supervisor, whether male or female, would have been subjected to frequent discussions regarding his/her performance if that cleaner’s Area was the subject of complaints which, broadly speaking, were as many and as extensive as those which were made in respect of the applicant’s Area.  

(3)	Complaint 3 (the alleged dismissal of the applicant’s suggestion) failed because we are satisfied that, if a woman supervisor had made the same sort of suggestion for changes to the administrative system at that particular time, her suggestion would likewise have been rejected.  (In other words, ‘less favourable treatment’ has not been proven.)

(4)	Complaint 4 (the overtime complaint) also fails because it does not meet the ‘less favourable treatment’ requirement.  As noted above, we are satisfied that overtime was freely available to all, including the applicant, and we are also satisfied that the university did not have a policy or a consistent practice of offering ‘first refusal’ of overtime within a particular Area to the supervisor responsible for that Area.

(5)	Complaint 5 (the complaint about the applicant being told that he would not be changing Areas in the near future) also failed because we are not satisfied that Ms Scullion would not have made a remark of a similar type, in front of other people, female supervisor about whose performance she was concerned.  In our view, the remark complained of should not have been made in front of others.  However, unfair treatment, without more, does not equate to ‘less favourable treatment’.

(6)	Complaint 6 (the failure to properly investigate the sex discrimination complaint) fails because the ‘less favourable treatment’ requirement is not met.  We have no adequate evidence that Mr Hughes would have arranged a proper investigation of any complaint of sex discrimination made by a woman.

(7)	Complaint 7 (the allegedly inappropriate and unnecessary inspection in July) fails because ‘less favourable treatment’ has not been proven.  We are satisifed that a similar inspection, in similar circumstances, would have been carried out in relation to the Area of any supervisor, if that supervisor’s performance was giving rise to similar concerns.  

(8)	Finally, the complaint of discriminatory dismissal also fails.  Although the applicant’s dismissal was unfair (because fair procedures had not been followed) we are satisfied that it was not discriminatory.  As already noted, the circumstances were such as to justify a dismissal by a reasonable employer and any such dismissal would have been fair if fair procedures had been followed.  Fair procedures were not followed, in that the disciplinary procedure’s protections were not extended to the applicant.  Nevertheless, as Zafar makes clear, unfair treatment does not necessarily equate to ‘less favourable’ treatment.  We are satisfied, on the evidence available, that the respondent would also have denied the protections of the disciplinary procedure to a woman supervisor, who was within her probationary period and whose performance was giving rise to disquiet.

Chairman:

Date and place of hearing:	16 October 2002, Belfast

Date decision recorded in register and issued to parties: