THE INDUSTRIAL TRIBUNALS

CASE REF:	2424/03

APPLICANT:		Gillian Catherine Grattan

RESPONDENT:		1.	Paul Crawley
2.	The Anchor Public House Ltd
				
DECISION 
By a unanimous decision, the tribunal determines the respondents did not discriminate against the applicant on ground of her sex, contrary to Articles 3(1) (a) or 8(2) of the Sex Discrimination (NI) Order 1976. The tribunal makes no order for costs against any party.

Appearances:
The applicant appeared in person.
The respondents were represented by Mr D Rodgers, Rodgers & Co., Solicitors on 7 February 2005.

The respondents were represented by Mr M Potter, of Counsel, instructed by Rodgers & Co., Solicitors, on 8 February 2004.

1.	When the tribunal sat on 7 February 2005, Mr Crawley was out of the country, but returning to Northern Ireland on 7 February 2005. Mr Rodgers sought an adjournment of the hearing until 8 February 2005. The tribunal acceded to this request, but reserved the issue of the applicant’s costs for 7 February 2005 until 8 February 2005.

The tribunal found the following facts:-
2.	On 7 July 2003, the applicant presented an originating application to the industrial tribunal, complaining that the respondent had discriminated against her on ground of her sex. At section 13 of the originating application, she alleged that Paul Crawley had made remarks to her which suggested she was a lesbian. The applicant alleged these comments violated the Sex Discrimination (NI) Order 1976.

3.	The respondent’s notice of appearance, presented on 18 August 2003, denied that anything said or alleged to have been said could or did amount to sexual harassment or discrimination within the meaning of the Order, or at all.

4.	The tribunal heard evidence from the applicant. The applicant comes from Dublin. The applicant is heterosexual. The applicant was employed by the respondent as a bar tender from September 2002 until April 2003. She worked in the Anchor Bar in Portstewart. On 24 April 2003, the applicant was working in the late bar. After work staff usually stayed behind for a social drink. At around 4 or 4.30am on 24 April 2003, with other members of staff in the area where the applicant was, Mr Crawley asked the applicant if she had a boyfriend in Northern Irleand or in Dublin. The applicant said that she had no boyfriend at that time. Mr Crawley asked her if she was a lesbian. The applicant said she was not a lesbian. Mr Crawley said that he thought the applicant was a lesbian because of the defensive way she acted towards men when she was behind the bar. Mr Crawley said “I can tell by the way you carry yourself behind the bar that you are a lesbian”. After that Mr Crawley said, “I’m not so far from the truth. Because you are in your thirties, and because you are back in college, because you are working in a bar and living alone, you are a lesbian”. The applicant was extremely distressed by these comments, and because of them she resigned from her employment on 27 April 2003. The applicant wrote to Mr Crawley on 14 May 2003, requesting an apology for his remarks. The applicant stated before the tribunal that she wanted an apology from Mr Crawley. 

5.	The tribunal received an open apology from Mr Crawley to the applicant in the following terms:

“I, Paul Crawley, wish to take this opportunity to apologise to you for anything that was said to you by myself in April 2003 which caused you any offence, distress, annoyance, humiliation or other upset. I sincerely regret any such offence or upset being caused by my actions.

	I wish you well for the future.

	Paul Crawley”.

6.	The applicant refused to accept Mr Crawley’s open apology. The applicant accepted that the Employment Equality (Sexual Orientation) Regulations (NI) 2003, which came into operation on 2 December 2003, offered her no protection from remarks made on 24 April 2003, and which offended her on grounds of her sexual orientation. The applicant further conceded that she could not say that a man (whether homosexual or heterosexual) would have been treated more favourably than she was on 24 April 2003. The applicant accepted she could not prove less favourable treatment.

7.	The respondent offered no evidence.

The decision of the tribunal

8.	Having considered the originating application, notice of appearance, all the evidence before it and the submissions made by the parties, by a unanimous decision the tribunal determines as follows:-

(a)	The applicant’s claim falls to be decided according to the provisions of Articles 3(1) (a), 8 (2) (b) and the Employment Equality (Sexual Orientation) Regulations (NI) 2003. The 2003 Regulations came into force on 2 December 2003.

(b)	Regulation 3 of the Employment Equality (Sexual Orientation) Regulations (NI) 2003 provides a person protection from being discriminated against on grounds of sexual orientation. Regulation 5 of the 2003 Regulations gives protection from harassment, which violates the victim’s dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. We have no doubt that the complainant felt her dignity was violated on 24 April 2003. However, when the remarks were made by Mr Crawley, the 2003 Regulations were not in force. Therefore, the applicant cannot avail of the protection of the 2003 Regulations.

(c)	Article 3(1)(a) and 8(2)(b) of the Sex Discrimination (NI) Order 1976 provides:-

3 (1)	A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if-

   (b)    on ground of her sex he treats her less favourably than he treats or would treat
a man…

Article 8(2) (b) of the 1976 Order provides;-

      8 (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 – 

          ….

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

(d)	The applicant conceded that she could not show that a man (heterosexual or
homosexual) would have been treated more favourably in the circumstances she found herself on 24 April 2003. The tribunal is bound by the ruling in the House of Lords in the case of Macdonald v. Advocate General for Scotland/ Pearce v. Mayfield School [2003] IRLR 512. The leading speech of Lord Nicholls of Birkenhead states:

     	 Ms Pearce advanced her claim [on the basis that] she was subjected to a campaign 	of gender-specific harassment. She was vilified in terms which would not have been 	used against a man. This, it was submitted, is capable of amounting to less 	favourable treatment on the ground of her sex without the need to identify a male 	comparator and regardless of the reason for the campaign. Mr Macdonald advanced 	a similar argument regarding the intrusive questioning he suffered at an interview 	with his superior officer.

	The starting point here is to note that the expression “sexual harassment” is 	ambiguous. The adjective ‘sexual’ may describe the form of the harassment; for 	instance, verbal abuse in explicitly sexual terms. Or it may be descriptive of the 	reason for the harassment; for instance, if a male employee makes office life difficult 	for a female employee because he does not wish to share his office with a woman. It 	is only in the latter sense that, although not as such prohibited by the Sex 	Discriminaiton Act, sexual harassment may nevertheless be within the scope of the 	Act as less favourable treatment accorded on the ground of sex. A claim under the 	Act cannot get off the ground unless the claimant can show she was harassed 	because she was a woman. A male employee may make office life difficult for a 	female employee, not because she is a woman, but because he objects to having 	anyone else in his office. He would be equally unwelcoming to a male employee. 	Harassment of a woman in these circumstances would not be sex discrimination…

	In the case of Ms Pearce, the abuse was in homophobic terms: ‘lezzie’, ‘lemon’, 	‘lesbian shit’ and the like. The natural inference to be drawn from this form of abuse 	is that the reason for this treatment was Ms Pearce’s sexual orientation, not her sex. 	Further, as the employment tribunal noted, Ms Pearce did not put forward any 	evidence or argument that a male homosexual teacher would have been treated any 	differently either by the pupils or by the school. This being so, Ms Pearce did not 	establish that the harassment was on the ground of her sex. Her appeal on this 	second ground must also fail.

(e)	Since the applicant accepted that she could not establish that a man (whether homosexual or heterosexual) would have been treated more favourably than she was by the respondents, the tribunal determines that, applying Macdonald, she has failed to prove that the respondents’ treatment of her was on ground of her sex. Accordingly, the applicant cannot show less favourable treatment, pursuant to Article 3(1) (a) of the Sex Discrimination (NI) Order 1976. Likewise, pursuant to Article 8(2) of the 1976 Order, we determine that the applicant was not discriminated against by the respondents on ground of her sex, when it subjected her to the detrimental effects of Mr Crawley’s comments on 24 April 2003. It therefore follows that the complaint cannot succeed. The applicant’s complaint is thus dismissed.

(f)	The respondents argued that the applicant should pay their costs because the applicant stated that she sought the remedy of an apology from Mr Crawley for his treatment of her. When this was openly offered in the terms above, the applicant nevertheless rejected the complaint. The respondents argued this was unreasonable conduct of the complaint, contrary to Rule 14(1) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004. 

(g)	Whilst the tribunal had some sympathy with this application, the tribunal also considered the reserved costs for the applicant against the respondents for what it regarded as their unreasonable conduct of the proceedings on 7 February 2005. Balancing one application for costs against the other, the tribunal determines that it is fairest to all parties to decline to make any order for costs.

(h)	No further or other Order is now made.

Chairman:

Date and place of hearing:		7 and 8 February 2005, Belfast

Date decision recorded in register and issued to parties: