Pritchard v Belfast Institute of Further & Higher Education & Anor [2002] NIIT 79_00 (5 December 2002)

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URL: http://www.bailii.org/nie/cases/NIIT/2002/79_00.html
Cite as: [2002] NIIT 79_, [2002] NIIT 79_00

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 00079/00

    APPLICANT: Nathalie Pritchard

    RESPONDENTS: 1. Belfast Institute of Further & Higher Education

    2. Department of Environment for Northern Ireland

    DECISION

    The unanimous decision of the Tribunal is that:-

    (i) the applicant was unlawfully discriminated against by the second named respondent on the grounds of her sex; contrary to Article 3(1)(a) and 17(d) of the Sex Discrimination (Northern Ireland) Order 1976;

    (ii) the applicant was not unlawfully discriminated against by the first named respondent and the complaint insofar as it relates to the first named respondent is dismissed.

    The tribunal orders the second named respondent to pay to the applicant the sum of £4,202.59 by way of compensation including interest.

    Appearances:

    The applicant was represented by Mr D Flanagan, Barrister-at-Law, instructed by Holmes & Moffitt, Solicitors.

    The first named respondent was represented by Mr E O'Loan of Tughans, Solicitors.

    The second named respondent was represented by Ms L Brennan, Barrister-at-Law, instructed by the Departmental Solicitor.

  1. The applicant commenced as a 16 year old student with the first named respondent undertaking an NVQ Level 2 course of study in vehicle, mechanical and electronic systems. As part of this course she was allocated a training place by the first named respondent with the second named respondent's Water Executive Transport Workshops at Duncrue Street. As part of her course she spent three days a week working at Duncrue Street and two days a week in the Millfield Campus of the first named respondent. It was envisaged that she would continue in this training over a period of around two years after which if her course and training were completed successfully she would be regarded as a qualified Motor Mechanic. The applicant was the first female trainee/apprentice who had been placed with the Water Service at this location. There were two male apprentices/trainees from her course also placed in the workshop at that time who completed their placements.

  2. The applicant was allocated the use of a disabled toilet for changing on the premises when she first arrived. The acting foreman, Mr Glover, allocated her to John Mawhinney for training. Mr Mawhinney was a long serving qualified mechanic who was quiet and who had daughters of his own. When Mr Mawhinney did not have work for the applicant to do she helped other mechanics in the workshop. Her first couple of weeks in this placement were unremarkable. However once a mechanic named Ian Fordyce returned from holiday a degree of fooling about commenced which the applicant felt was particularly directed at her. This included the throwing of paper in the canteen, the throwing of rags and clothes in her direction, comments such as 'dirt before the brush' and from time to time the throwing of screws and bolts in the workplace.

  3. On one occasion Mr Fordyce sent her to get 'tartan or stripey' paint and also sent her for 'a long weight (wait)' on another occasion. He also referred to her as 'stumpy'. Four or five weeks into her placement while working with Mr Fordyce she was sent between Mr Fordyce and two other male workers to get a screw and was sent back by one of them to ask what sort of screw. Initially the applicant thought was a genuine request but then realised its possible sexual connotation and did her best not to show any reaction.

  4. A week or so later Mr Fordyce called across the workshop floor to the applicant by the nickname Stumpy to come and help him with some work. She refused to come until he used her used her correct name and once he did she started moving across the workshop floor towards him. Mr Fordyce left the car he was working on and came and took her by the back of the neck of her overalls and walked or pulled her to the car and put her into the car. He told her to shake the steering wheel and operate the pedals so he could check the lights and brakes. Again the applicant did not show any reaction at the time.

  5. The applicant was distressed in particular about the last two incidents and went with her mother to see Anne Marie Barr, a principal lecturer for the first respondent and one of the tutors on the course she was following at the college. She told Miss Barr about the incidents set out above and they agreed it was not appropriate for her to return to the placement with the second respondent. Arrangements were made for the applicant to attend the college five days a week while another placement was found for her. Miss Barr informed the second respondent of the complaints made by the applicant. Miss Barr did not seek an immediate placement for the applicant as she considered she was still in recovery from her experiences with the second respondent.

  6. The applicant was dissatisfied with the lack of feedback to her about any steps being taken by the second respondent in relation to her complaints and by the apparent non-availability of another placement in the motor vehicle trade for her and after a period of time she decided to look for other employment outside the motor mechanic field. By early in the year 2000 she had obtained other employment.

  7. Both respondents accepted that they had duties to the applicant in the circumstances of this case.

  8. Mr O'Loan on behalf of the first-named respondent pointed out that the applicant with the other students had been warned by the first respondent about jokes such as stripey paint and a long wait. He also pointed out that the first respondent had placed other trainees, albeit all males, with this particular placement in the Water Service without any problems arising. The first respondent had also been satisfied that there were adequate if not ideal changing facilities for the applicant. He also pointed out that as soon as the applicant complained to Ms Barr immediate steps were taken on behalf of the first-named respondent to deal with the applicant's complaints. He suggested that the applicant had been given support from Ms Barr in various one-to-one meetings. He suggested that the applicant was not as dedicated to the choice of a career as a motor mechanic as she had maintained. He suggested that the first respondent was only able to do what was practicable and that the first respondent had taken all reasonable steps to ensure that the applicant was treated free of any discriminatory conduct. He maintained therefore that there was no breach of Article 17 of the Sex Discrimination (Northern Ireland) Order 1976. As far as Article 42 of the Sex Discrimination Order was concerned, Mr O'Loan that there was neither express nor implied authority from time the first respondent for the type of treatment which the applicant received and he pointed out that the first respondent reacted as soon as it was made aware of the situation.

  9. Ms Brennan on behalf of the second-named respondent maintained that the applicant had not established that she was less favourably treated than a man would have been. She suggested that a man would have been treated just as badly. She suggested that there was no sexual content in any of the incidents related by the applicant. She suggested that the second-named respondent had done the best they could for the applicant by placing her with a senior quiet well-mannered man. She suggested that the second-named respondent had also taken the complaints seriously by carrying out an investigation. She maintained that the applicant had worked willingly with Mr Fordyce and she queried why, if he was so abusive, she had sought to work with him. She also suggested that the applicant at various parts of her evidence had sought to embellish her evidence.

  10. Ms Brennan maintained that insofar as the incident with regard to a screw was concerned the requirement for screws was commonplace in any garage. She suggested that the applicant was a willing participant in the banter which went on in the garage and was having a laugh with Mr Fordyce. She also suggested that the applicant's interest lay more in being an air hostess than a motor mechanic.

  11. Ms Brennan suggested that the applicant had suffered no ill-effects once she had left the Water Service Workshop.

  12. Ms Brennan also pointed out that if the tribunal found that the comments about a screw amounted to sexual harassment the applicant had not indicated to Mr Fordyce that such comments were unwelcome. She suggested that the applicant did not therefore perceive these comments as sexual harassment. She suggested that in these circumstances the applicant could not be regarded as having suffered a detriment. She also suggested that if the tribunal found the applicant had been subjected to sexual harassment then such harassment was of very short duration and only amounted to a single incident.

  13. Mr Flanagan on behalf of the applicant maintained that both respondents were at fault. He suggested that the first respondent had not taken sufficient interest in the placing of the first female with the second respondent. He suggested that the first respondent could have taken a more proactive approach and have impressed on the second respondent's supervisors the requirement to treat the applicant properly. He suggested that by the first respondent's inaction they were giving an implied authority to the second respondent to do as they wished. He contended however that the majority share of the blame in this situation lay with the second respondent. He suggested that the tribunal should totally disbelieve the explanation provided by Mr Fordyce in relation to sending the applicant for a screw. He also pointed to the inconsistency in the evidence given by Mr Fordyce that he teased the applicant 'to take the quietness out of her' and his evidence at the same time that the applicant was foul-mouthed and aggressive. He also pointed to Mr Glover's evidence that the applicant did not indulge in bad language and was willing to work and appeared interested.

  14. With regard to the applicant's state of mind after the incidents complained of had occurred, Mr Flanagan referred to Ms Barr's assessment that the applicant was in recovery and that Ms Barr's impression was that the applicant had not invented these complaints to justify leaving the course. Mr Flanagan also pointed to the absence of evidence from the second respondent's employees, Andy, Bertie and Mr Mawhinney who could have substantiated Mr Fordyce's allegations against the applicant.

  15. Mr Flanagan also maintained that in circumstances such as this where the applicant was sent for a screw and manhandled, he suggested it should have been unnecessary for the applicant to show that such behaviour was unwelcome as in his view any right minded person would infer this. He also suggested that the behaviour to which the applicant was subjected was appalling and upsetting. He pointed out that the applicant had been tearful and low in confidence for a while but had recovered by the beginning of the year 2000. He suggested that the tribunal should make an award for injury to feelings in addition to the agreed loss of earnings.

  16. The tribunal accepted that a degree of banter and even fooling around goes on in most workplaces and that in the motor trade sending apprentices for stripey/tartan paint and long weights (waits) are perpetrated on all apprentices. However the tribunal found that the last two incidents set out above went far beyond the acceptable in any workplace. The tribunal did not accept Mr Fordyce's evidence that no sexual connotation was intended in the applicant being sent between three adult men to ask for a screw. The tribunal was satisfied that such a request or instruction would not have been given to a male trainee. The tribunal was also of the view that the physical nature of Mr Fordyce's treatment of the applicant, a slight young woman when he pulled her across the floor by her overalls was unlikely to have been replicated if he had been dealing with a young man. In these circumstances the tribunal accepted that the applicant who was the sole female in this workforce had suffered detriment in the treatment afforded to her by the second named respondent employees while she was on her training placement on their premises and that the second respondent failed to take appropriate steps to prevent such incidents occurring.

  17. With regard to the first named respondent the tribunal considered that they had taken immediate steps once they were made aware of the problem to try and alleviate it. The tribunal accepted the explanation given by Miss Barr for the delay in finding the applicant a new placement and accepted that it was the applicant herself who chose understandably in the circumstances to widen the field of employment for herself. This is not to say that the tribunal accepted either Mr Breen's or Miss Galway's evidence or that of Mr Fordyce that she was lazy and that she did not really wish to be a motor mechanic. The tribunal accepted she may well have expressed opinions about other occupations as alternatives. However the tribunal accepted that if the unpleasant incidents set out above had not occurred it was more than likely that the applicant with some positive encouragement from her practical tutor, Mr Breen, would have completed her traineeship and become a qualified mechanic.

  18. The tribunal noted that the applicant obtained other employment relatively quickly and that whilst she was initially distressed and suffered from loss of confidence and was on medication for this for a short time she is now in a position and has been for some time of working in an enjoyable fashion with both men and women. The tribunal accepted that the applicant should be compensated for her loss of wages which was agreed between the parties at £2,045.00. The parties also agreed that she had no future loss. The tribunal considered whether to award compensation for injury to feelings and concluded that it should so do. The tribunal took into account that this was a very young female in her first job/placement who was subject to unwelcome behaviour of a sexual nature by several of the second named respondent's employees. Fortunately the applicant took swift action by informing her tutor and was removed from the placement. The tribunal accepted that the applicant was upset and humiliated by the screw incident and to a lesser extent by Mr Fordyce's manhandling of her. In the circumstances it considers that an award of £1,500.00 should be paid by the second-named respondent to the applicant as compensation for the injury sustained to her feelings.

  19. The tribunal considered whether to award interest under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 and considered that it should include interest on the amount so awarded. The rate of interest is 8% per annum.

  20. The tribunal finds that the first act of discrimination occurred on or around 14 October 1999.

  21. The tribunal awards compensation as follows:-

  22. Financial loss (agreed) £2,045.00

    23. Interest @ 8% per annum from mid point

    between (14 October 1999 and 15 January 2003) (595 days) £ 266.69

  23. Injury to feelings £1,500.00

    24. Interest @ 8% from 14 October 1999 to 15 January 2003 (1,189 days) £ 390.00

    Total £4,202.59

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

    25. Chairman:

    Date and place of hearing: 2, 3 and 5 December 2002, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2002/79_00.html