THE INDUSTRIAL TRIBUNALS

								CASE REF: 2521/01

APPLICANT:		Maxine Kane

RESPONDENT:		North Eastern Education and Library Board

DECISION

The unanimous decision of the tribunal is that the applicant’s claim that the respondent sexually discriminated against her is rejected. 

Appearances:

Applicant:		The applicant was represented by Mr McGleenan,
			Barrister at Law, instructed by Messrs Rafferty & Boyle,
			Solicitors.

Respondent:		The respondents were represented by Miss F Lamont,
			Barrister at Law, instructed by M Brown, Chief Legal
			Adviser to the Education and Library Board’s Legal
			Service.

1.	The Applicant’s evidence

1.1	The applicant was employed by the respondents from 1978 at the Portrush Youth Centre as a secretary/administrator. During the course of her employment the youth centre also employed a Mr Herbie McLaughlin who was employed as the caretaker/cleaner.

1.2	During the course of the applicant’s employment with the Youth Centre she 
had been subjected to inappropriate behaviour by Mr McLaughlin.  For instance he had a habit on occasions of grabbing her from behind, touching her in an inappropriate way and generally being over-familiar.

1.3	The applicant was anxious to deal with this herself and although she reported 
the behaviour when it happened to her line manager, Philomena McCormick, and her successor Gary and her subsequent manager, Rosie Stewart; she, at the same time, asked her managers not to take any formal action.  She was anxious to deal with these isolated incidents in an informal way without recourse to the formal policy  which will be referred to later.

1.4	The applicant’s employment hours were three hours per day Monday to 
Friday, (10.00 am to 1.00 pm).

1.5	Mr McLaughlin’s employment had started in 1989 but the problems referred to above didn’t start until 1993 or 1994.

1.6	During 1996 a more serious incident occurred when the applicant was alone in 
the office putting some items into the floor safe and bending down to do so.
Mr McLaughlin came in behind her and pulled her down and started to 
straddle himself across her.  The applicant struggled to get up.  There was 
nobody else in the building and in fact the applicant was able to push 
Mr McLaughlin away.  The applicant did not tell her line manager this had happened and she told the Tribunal that she was ashamed to tell anyone about it.

1.7	Philomena McAuley left the employment of the Youth Centre in 1999.  Subsequently Gary was the Leader and then Rosie Stewart was appointed.  Around that time the applicant was being propositioned by Mr McLaughlin who continued to talk to the applicant in a most inappropriate manner, trying to entice her back to the building after her working day had finished.  He tried to suggest that they would have sexual intercourse together.  As will be seen later Mr McLaughlin stated to the Tribunal that he and the applicant did have a sexual relationship.  This the applicant denied.  The applicant never raised these matters with Rosie Stewart, her line manager.  On one occasion however, the applicant did tell Rosie Stewart that Mr McLaughlin was “getting frisky again” and thereafter she did speak to Rosie Stewart from time to time, although she didn’t make any formal complaint.  She told Rosie Stewart not to report it as Mr McLaughlin would be “in bother with his job” if the matter was made formal.

1.8	On 10 April 2001 another serious incident occurred which was fully related by 
the applicant to the tribunal.  The applicant was alone in the office with
Mr McLaughlin, the only other people in the building being a group of 
educationalists who were running a parents’ afternoon.  They occasionally 
would come in to the general office to do photocopying.  At about 12.40 pm on that day, the applicant started to tidy up as she wanted to get home early.  At about 12.50 pm she locked her desk, lifted the outgoing mail and was about to leave the building when Mr McLaughlin came in, pulled the blinds in the 
office windows down and grabbed her and pinned her down.  She fell back 
into an easy chair and Mr McLaughlin jumped on top of her, facing her.  He 
put his hands on her breasts.  She tried to struggle but was powerless and he 
pressed himself tightly against her, starting moving backwards and forwards. 
He told her to open her legs so that he could get closer to her and tried to kiss 
her.

1.9	At that moment the applicant was looking at the window with the blind down, 
but she saw the shadow of someone outside.  She said – “Thank God, there’s 
someone at the window.”  Mr McLaughlin jumped up, straightened 
himself out and very nervously, went out of the office towards the foyer.  He 
came back and told the applicant that it was her daughter who had come to
meet her.

1.10	The applicant subsequently told her daughter’s boyfriend what had happened
and wrote a lengthy letter dated 14 April 2001 to Rosie Stewart, her line manager, making a formal complaint.  At the end of the letter the applicant does state that both Philomena and Gary (the previous line manager) had advised her to report these matters before, but she thought that she could handle them herself.  However she now felt the time had come when she just could not face being in the building alone with Mr McLaughlin and she had to bring the matter out into the open.  She therefore wished to make a formal complaint.

2.	The Evidence of the respondent

2.1	The respondents have a Harassment Procedure called “A Code of Practice on Measures to Combat Harassment in the workplace”, this was first issued in 1998 and revised in 1999, copies were made available to the tribunal.  Under this Code there is an informal procedure to deal with complaints of harassment and a Formal Procedure.  The applicant at first used the Informal Procedure in consultation with her line manager.  After the final incident and the formal complaint the Formal Procedure was invoked.  The Tribunal also heard evidence from the respondents’ witnesses concerning training courses attended by the respondents’ officials and the fact that the applicant’s line manager had, like all employees, received the Code of Practice regarding harassment Ms Stewart remembered reading material and going on a course concerning it.  Ms McCormick was less positive as to when she saw the material and it was possibly after her move away from Portrush.  

2.2	Under this procedure, the Board set up a Committee of two – Ms Ursula Meehan, another Youth Officer employed with the Board and Mrs J Baird of the Board’s Human Resources department.  This Committee immediately commenced an investigation of the applicant’s complaint, which was contained in her letter of 14 April 2001.  The Committee met the applicant and Ms Rosie Stewart together at the Coleraine Area Youth Office on 1 May.  The incidents above referred to were discussed and Ms Stewart confirmed that the applicant had mentioned Mr McLaughlin’s behaviour to her on two or three occasions in the past 2½ years but the applicant had told her that she didn’t want to take it any further.  Ms Stewart also stated that Mr McLaughlin had, on occasions, been over-familiar with other female staff by squeezing their waists.  Ms Stewart stated that none of the other staff had ever made a formal complaint about Mr McLaughlin’s behaviour.

2.3	The applicant stated that she didn’t feel she could return to working in the 
building with Mr McLaughlin.  Ms Stewart reported to the Committee that alternative arrangements were being put in place so that Mr McLaughlin would not be working at the same time as the applicant.

2.4	The Committee then contacted Philomena McCormick who confirmed that
Mr McLaughlin’s behaviour had been mentioned to her by the applicant on a number of occasions during her five years service in Portrush.  However the applicant had always told her that she didn’t want any action to be taken.  The applicant had also telephoned Ms McCormick in April when the last incident had occurred and she confirmed that the applicant was very distressed and felt unable to cope any longer.

2.5	The Committee wrote to Mr McLaughlin asking for his evidence on the 
allegations.  Mr McLaughlin’s response will be dealt with when dealing with his evidence.

2.6	After the Committee had taken its evidence and considered the matter, it 
prepared a formal report to the Board.  The Tribunal heard evidence about delays in completing the enquiry due to holidays and the fact that Ms McCormick no longer worked for the respondents and was hard to contact.  The conclusions of the Committee were that, due to lack of witnesses and any corroborating evidence, it was impossible for it to make a finding against Mr McLaughlin.  The Committee however did criticise his general demeanour and behaviour on a number of occasions with other members of staff as well as the applicant.  The Committee stated – “It would appear that there are at least grounds for concern regarding Mr McLaughlin’s understanding of the appropriate manner in which to behave in the company of female colleagues.  Whether or not disciplinary action is appropriate in this case is a matter for the disciplinary authority”.

2.7	Concerning the fact that the applicant and Mr McLaughlin worked in the same building, the Committee went on to state that – “In the interests of both members of staff, it is incumbent upon the Youth Service management to examine the organisation and scheduling of staff employed in Portrush Youth Centre in order to reduce the likelihood of further difficulties”.

2.8	As a result of this report, Mr Ken Allister, the Area Youth Officer, who is line
manager to Ms Rosie Stewart became involved in the disciplinary process.  He called at  the Portrush Youth Centre to give Mr McLaughlin a verbal warning as to his conduct with female colleagues. This verbal warning was recorded in a letter to Mr McLaughlin on 27 July 2001 and stated that – “You should stop being too familiar with or making improper comments to female members of staff.  Your past behaviour is 	inappropriate and is viewed by management as a serious matter which will not be tolerated.  If there is any future occurrence, further disciplinary action will be taken.”

2.9	In the same letter the working arrangements were referred to and these were 
put in place to avoid the applicant and Mr McLaughlin being in the premises together.

2.10	These working arrangements did appear to work to a great extent although 
they were breached on two occasions on 14 and 21 September.  As a result of these two incidents, when Mr McLaughlin appeared at the Youth Club when the applicant was working there, he received a further letter from Mr Allister warning him that if any further occurrences or breaches of the arrangements occurred, then the Board would issue a written warning concerning his conduct.

2.11	The applicant still works at the Youth Centre, as does Mr McLaughlin.  It 
appears however that the arrangements put in place have been working reasonably satisfactorily and the two do not come across each other in the workplace.

2.12	The tribunal were informed that the applicant instituted proceedings in the 
Magistrates Court in respect of Mr McLaughlin’s assault on the 10 April, but, as with the Committee of Enquiry, the Court was not satisfied on the evidence before it that it could convict Mr McLaughlin, and the case was dismissed.

3.	The Evidence of Mr McLaughlin.

3.1	Mr McLaughlin, in a written submission to the investigation team, stated that
he and the applicant had had a brief sexual relationship during 1999.  In evidence to the tribunal, he stated that regularly before that and from the early 1990s, he had been in the habit of kissing and cuddling the applicant on various occasions and that she had not objected to that.  Her only worry had been that they might be found out.  Sometimes they would go out to lunch together themselves, sometimes one of the other staff members would accompany them.  The applicant had, on occasions, asked Mr McLaughlin to do jobs for her around her house which he had done, sometimes they would walk home together from work.  Despite the fact that in his letter to the investigation team, he said there had been a sexual relationship in 1999 when he was cross-examined about it, it appeared the alleged relationship had in fact been about 1996.

3.2	So far as 10 April incident was concerned Mr McLaughlin explained to the 
tribunal that far from assaulting the applicant, he had come into the room where she was working and assisted her with some photocopying.  Both of them were on their knees beside the photocopier which is on the floor, at which point the applicant asked Mr McLaughlin to rub her back for her which he did.  They then had a cuddle and they went back to the other office where the applicant was packing up her things to leave.  As she was about to leave,
Mr McLaughlin gave her a cuddle as he had often done previously.  They both fell backwards on to the chair at which moment the applicant told him to get up as her daughter was calling for her.  He immediately got up and offered her his hand to help her up.  Mr McLaughlin denied the various allegations made by the applicant in respect of this incident and subsequently spoke to the applicant on the telephone at home to give her some information that she had requested from him.

4.	The Statutory Position

4.1	Under the provisions of Article 42(1) of the Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) it is provided:- 

“Anything done by a person in the course of his employment shall be treated 
for the purposes of this Order as done by his employer as well as by him 
whether or not it was done with the employer’s knowledge or approval.”

4.2	In this case the Tribunal was asked to accept that the actions of Mr McLaughlin referred to above were carried out in the course of his employment and are therefore considered to be the actions of the employer.  The Tribunal must decide whether the actions of the employee are carried out in the course of his employment.

4.3	There is however in the 1976 Order, a defence to this provision that allows an employer to escape liability for the actions of his employee in the following circumstances:-

	“43(3) In proceedings brought under this Order against any person in respect of any act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of that description.”  

5.	Decision of the Tribunal

5.1	The Tribunal hold that the alleged conduct of Mr McLaughlin from 1993/1994 onwards would come within the provisions of Article 42(1).  Insofar as the earlier episodes are concerned although these actions would have fallen within the provisions of the Article, the Tribunal hold that they were not reported to the employer.  The Tribunal hold the applicant made it quite clear that she did not want her discussions with line managers to  be passed on to the employer.   No form of complaint was made and as the line managers were clearly told not to take any action, the Tribunal hold that the respondent cannot be held liable for these alleged actions of the part of Mr McLaughlin.

5.2	So far as the final incident was concerned this was reported to the respondent and the respondent immediately took such actions as it considered appropriate and as were set out under the terms of its complaints procedure, to investigate and deal with the complaints. 

5.3	The tribunal hold that the defence under Article 42(3) of the 1976 Order above mentioned, does protect the respondent from the claim that it discriminated against the applicant, in that the respondent did take such steps as are reasonably practical to prevent the employee from doing that act. It immediately instituted the enquiry and took steps to separate the applicant from the respondent in the workplace.

5.4	The tribunal in reaching this decision was guided by the decision in the English Employment Appeals Tribunal in the case of Higgins v Home Counties Newspaper Holdings Limited (EAT/1048/97) where Mr Justice Smith stated as follows:-

	“The Tribunal considered whether the respondent had made out its defence under Section 41(3) [the equivalent to the Northern Ireland Article 42(3)].  A proper response to a complaint was not enough.  The respondent had to show that they had taken such steps as were reasonably practicable to prevent the sexual harassment.  The Tribunal considered the respondents’ evidence about their equal opportunities policy and their policy for dealing with sexual harassment.  The policy was incorporated in the Company Handbook and the Tribunal found that the staff were made aware of it.  Sexual harassment was treated as gross misconduct in the disciplinary code.  Managers were given awareness training.  The Tribunal found that the respondent could not have been expected to do more.  The nature of Mr Steed’s harassment was such that no one knew about it until the appellant complained.  When she did complain the respondent took appropriate action.  This showed that the respondent took its policies seriously and acted upon them.  They were not “paper policies”.  They found that the respondent had made out its defence under Section 41(3).  The Tribunal was entitled to conclude that the steps taken by the respondent in April and May 1995 were such steps as were reasonably practicable to prevent Mr Steed from sexually harassing the appellant in May 1996.”

5.5	The tribunal hold that the respondents did have an appropriate harassment complaints policy and made its staff aware of it.  The respondents complied with the terms of its policy in regard to this complaint.

5.6	The tribunal, like the internal investigation and the subsequent court hearing, is unable to form a clear view as to the truth of the allegations and counter-allegations of the applicant and Mr McLaughlin.  The tribunal do, however, find that the applicant did, on a number of occasions, report incidents to her line manager but, at the same time, asked the manager concerned not to take any further action.

5.7	The tribunal also find that there was a relaxed small office environment at 
the Centre and the parties would, from time to time, go out to lunch together, share lifts and walk home and it is quite possible that the applicant and
Mr McLaughlin became over-familiar with each other.

5.8	As a result of the alleged incident a formal complaint was made by the applicant.  The tribunal is satisfied that the respondents immediately implemented the necessary investigation procedure as set out in its policy and that the officials concerned were properly briefed and carried out their task within a reasonable timescale, having regard to holidays and the fact that Ms McCormick had left the employment of the Board.

5.9	The actions of the Board in creating a situation where the two protagonists
would not meet at their place of employment was a reasonable response to the ongoing problem of them being required to work in the same building.  The giving of the verbal warning to Mr McLaughlin was also, in the view of the tribunal, a reasonable response by the respondents to the situation, bearing in mind that the investigation team was unable to come to a conclusion that the applicant’s allegations were proven.

Chairman:

Date and place of hearing:                  April 2004,

Date decision recorded in register and issued to parties: