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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKimm v Down District Council [2008] NIIT 1229_05IT (06 November 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1229.html Cite as: [2008] NIIT 1229_05IT, [2008] NIIT 1229_5IT |
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The unanimous decision of the tribunal is as follows:
This is an application for review of a decision which was issued on 30 July 2008 (“the Decision”), whereby this tribunal decided that the respondent was legally liable in respect of certain specified acts of unlawful victimisation discrimination.
The application for review is made on the argument that certain factual determinations of the tribunal were (in the legal sense) perverse and that, accordingly, the tribunal can and should review and revoke its decision.
In the context of this review application, we have assumed (but not decided) that, in the circumstances of this case, the tribunal could and should review its decision in response to this review application.
Having made those assumptions in favour of the respondent, the tribunal proceeded to review the relevant determinations.
The outcome of that review is that we have confirmed the original decision.
Constitution of tribunal:
Chairman: Mr P Buggy
Members: Mrs T Hughes
Mr J Nicholl
REASONS
In the Decision, the tribunal made the following determinations:
“The claimant was subjected to the following acts of unlawful victimisation discrimination:
During the course of a telephone conversation in November 2004, Ms Sharon O’Connor engaged in aggressive and abusive behaviour towards the claimant, by raising her voice and by “hanging up”.
Ms O’Connor criticised the contribution being made by the Council’s Arts team to the 2005 St Patrick’s Day Parade.
Ms O’Connor’s instigation of a disciplinary process against the claimant was inappropriate and unjustified.
The application for review
In this application for review, the respondent does not assert that the tribunal’s statement of the applicable legal principles is in any way incorrect, or that the tribunal has misapplied those legal principles to its findings of facts in this case.
Instead, the application for review is based on the assertion that the tribunal has made perverse findings of fact. (According to the respondent, because of those perverse factual findings, the tribunal’s ultimate determinations are invalidated).
As Mr McAughey accepted, the relevant legal principles in respect of perversity are to be found in the decision of the House of Lords in Edwards v Bairstow [1956] AC 14. In his speech in that case, Lord Radcliffe propounded what has become the classic definition, by endorsing the view that a particular finding of fact will be perverse if there is no evidence to support it, or if the only reasonable conclusion contradicts the relevant determination.
In this case, the respondent says that the following factual determinations of the tribunal were legally perverse:
The tribunal’s conclusion that, during the telephone conversation in November 2004, Ms O’Connor raised her voice.
The conclusion that the carrying out (by the claimant) of the relevant protected act was the main reason for Ms O’Connor making the 2005 St Patrick’s Day Parade criticisms.
The finding that the decision to instigate a disciplinary process was inappropriate and unjustified.
The determination that the fact that the claimant had carried out the relevant protected act was a significant reason for the launch of the disciplinary process.
The legal context of this application for review
This application for review is made under Rule 34 of the Industrial Tribunals Rules of Procedure 2005. Under Rule 34, a party may apply to have a tribunal decision reviewed, but only on certain grounds, which are specified in Rule 34. Among the grounds there specified is the following:
“(e) the interests of justice require such a review”.
This application for review is made on the “interests of justice” ground.
The outcome of this application for review
We have doubts as to whether or not this tribunal has power to vary or revoke a decision in response to an application for review which is based solely on the argument that the decision is founded upon legally perverse factual conclusions.
However, we do not have to arrive at definitive conclusions on that issue, because we are satisfied (having reconsidered the relevant determinations in light of this application for review) that the relevant determinations are not legally perverse.
Indeed, we are still convinced (even with the benefit of hindsight and having had the benefit of the additional arguments which have been made in the course of this application for review) that the relevant determinations are proper and appropriate.
Perversity (General comments)
The respondent’s arguments in respect of perversity are based on a detailed critique of the relevant determinations. That critique is to be found in 38 paragraphs within the written application for review (“the Application”), which is appended to this decision. Those arguments have been amplified in some respects during the course of oral argument at the hearing of this application for review.
We have carefully considered all of those arguments.
However, in the interests of proportionality, we have focused, in this review Decision, on some of the main arguments, rather than providing a comprehensive commentary in respect of each and every criticism which the respondent has made.
Perversity (The telephone conversation)
Our comments in relation to this topic are as follows:
Tribunals and courts often have to resolve conflicts of testimony between two individuals who (according to the court or tribunal) have limited credibility.
The admitted fact that Ms O’Connor hung up on the claimant at the end of the relevant telephone conversation is a piece of evidence which the tribunal was entitled to take into account in deciding whether to accept the claimant’s version of events or Ms O’Connor’s version of events (in respect of the voice-raising issue).
As we made clear (at sub-paragraph (22) of paragraph 21), in the Decision, we accept that the claimant used the telephone conversation of 17 November as a pretext to raise her issues about the changing of the consultant’s brief.
Perversity (The St Patrick’s Day criticisms)
Our comments in relation to this topic are as follows:
Contrary to the views indicated at paragraph 23 of this (review) Application, a tribunal does not act improperly, in assessing the general credibility of a witness, by taking account of the degree of detail, or lack of detail, in a witness's uncontroverted account of events.
On the question of confrontation and stridency, we have noted the last sentence of Ms O’Connor’s email of 17 February, which invited the claimant to clarify “… why you have accorded this event so little effort?”.
The tribunal’s detailed chronology of events (as set out in the Decision) shows that the tribunal was well aware of the date of the protected act and of the date of the St Patrick’s Day criticism.
The claimant’s protected act was carried out in November 2004 and the St Patrick’s Day memo was written in February 2005, and the claimant had been absent from work from a date in November 2004 until a date in January 2005.
In the Application, the respondent says that, in the course of the hearing, the claimant did not contest the fact that “the colleagues” were disappointed, and did not cross-examine Ms O’Connor to that effect. In our view, the normal rules as to the evidential implications of failing to cross-examine on a particular topic are rules which do not apply in their full rigour in circumstances in which the cross-examiner is a self-represented party. In any event, throughout a lengthy hearing, the claimant made it clear that she regarded the sending of the St Patrick’s Day communication as unfair retaliatory action.
Perversity (The disciplinary initiation issue)
Our comments in relation to this topic are as follows:
Contrary to paragraph 32 of the Application, Mr Hobson decided that there was no sufficient evidence to pursue disciplinary charge in respect of insubordination. (He did decide that there was an adequate basis for pursuing disciplinary action in respect of “offensive” behaviour).
The decision of the internal disciplinary authority was not the subject of any discrimination claim. Therefore, at paragraph 21(56) of the Decision, there was no need for us to explain how we arrived at the view that the disciplinary decision was perverse. However, we had already explained (at sub-paragraph 23 of paragraph 21 of the Decision) that it was entirely reasonable of the claimant to raise the issue (regarding the change in the Capita consultant’s brief) with Ms O’Connor, in the circumstances in which she did raise it. (See also paragraph 81(1) of the Decision).
Paragraph 38 of the Application suggests that the disciplinary proceedings were instigated by Ms O’Connor because of the claimant’s insubordination. However, the respondent’s own internal investigator concluded that there was an insufficient basis to pursue disciplinary charges in respect of insubordination.
Chairman:
Date:
Date decision recorded in register and issued to parties:
THE
OFFICE OF
INDUSTRIAL TRIBUNALS
AND FAIR EMPLOYMENT TRIBUNAL
CASE
No 1229/05
Between
Cathie
McKimrn
Claimant
and
Down District
Council
Respondent
Respondent’s Request for a review of the decision of the Tribunal
Pursuant to Rule 34( l)(e) the Respondent hereby requests the Tribunal to review it’s
decision.
The Tribunal found that the Claimant was subjected to three acts of unlawful
victimisation.
The Telephone Conversation of 17 November 2004
This conversation took place between the Claimant and Ms O’Connor. Subject to the observation at paragraph 1l (below), there is no evidence in relation to this conversation other than what they say happened.
The
Tribunal rightly observes that the Claimant’s evidence must be
treated with
caution,
In the Respondent’s submissions an example was given of one
instance
where during
her
evidence
the Claimant deliberately lied to the Tribunal.
The Tribunal, at paragraph 2 1(40) of its decision, recites its findings in relation to the Capita Report and makes reference to the telephone conversation. It came to
no conclusion as to who introduced the subject into the conversation, indicating
that in its view it was unnecessary to resolve that factual conflict.
The
Tribunal deals expressly with the telephone conversation at
paragraphs 63 —
65
of its
decision.
The key components of the allegation were twofold — that Ms O’Connor
raised her voice and that Ms O’Connor hung up the phone on the Claimant.
There was direct conflict in the evidence on the first of those points. Ms O’Connor denied raising her voice.
As regards the second component Ms O’Connor agreed that she did in fact hang
up the phone. Ms O’Connor said she hung up because she had had enough — enough of being indirectly accused of having changed the terms of reference of
the Capita Report in an underhand manner.
1
The
Tribunal had to resolve the direct conflict on the first component.
The Tribunal found Ms O’Connor’s evidence unconvincing.
It paid particular attention
to
her
demeanour and manner of giving evidence in relation to her reasons
for her
reactions during the telephone conversation.
The
Tribunal,
it
is submitted, ought to have determined the question of who raised
the Capita
issue
in
the
conversation.
If it
was
the Claimant who
introduced
it then the telephone conversation must be
viewed
in
the way.
Ms
O’Connor
saw
it.
In
evidence
there was
direct
conflict
about this. Ms McKimm denied that she
introduced it, asserting
that it
was
Ms O’Connor who did
so.
The
weight of the
evidence goes
against
this.
Ms O’Connor
was
clear in her mind that
the
Claimant
had raised
the
issue
using
the expression “who pays the
piper
calls the
tune.”
The
Claimant
vehemently
denied
saying
It claiming that
she
would
never
use
such an
expression.
The Tribunal received in evidence the draft unsent e-mail from the Claimant, to
Ms O’Connor
date15 November 2004 at 13.45. That
e-mail
clearly shows
the
mind-set of the Claimant at that time. In it she postulates that
the form
of
the
Capita Report can only be explained by the consultant working
back from
conclusions that were already framed from the
beginning. Further in it she uses
the very expression that in
evidence before the Tribunal she claimed she would never use. The
Claimant said in evidence that this document found during the hearing
of’ the case was a forgery initiated by the Council (presumably
the reasoning being that the Council wanted to have her appear to be
familiar with
and use the relevant expression.)
The
Tribunal also received in evidence the Report on
the Disciplinary
Hearing by Tony McCrory dated July 2006 and the Report on the
Disciplinary Appeal by
Joseph A. Birt dated 5
October
2006.
The Claimant in the former case explained that she needed to raise her voice in
that conversation because Ms O’Connor had begun shouting. At no point did she make the allegation that Ms O’Connor was victimising her for her protected act.
The hearing concluded that there was no evidence that Ms O’Connor had
influenced the Capita Report and that since the Claimant admitted to the Mr
Hobson that she had made that remark the hearing also concluded that the Claimant’s behaviour was inappropriate and merited discipline. There is nothing. perverse in such a finding. It appears to flow from the evidence presented to the hearing.
On appeal it was found to be significant that the Claimant did not take the opportunity to rebut the comment “whoever pays the piper, calls the tune.”
It is clear that the Claimant used the telephone conversation of 17 November 2004
to air her view that Ms O’Connor influenced the Capita Report or fixed its
outcome and form. The draft e-mail is evidence of the Claimant’s intention to
worry away at this point. It is also points to the likelihood that it was the Claimant who raised the issue during the conversation. It is proof beyond doubt (unless as
the Claimant suggests it is a forgery) that the Claimant used the words which
under oath she so vehemently denied using.
All of the above indicates that, whatever reservations the Tribunal may have
about Ms. O’Connor’s demeanour, the weight of the evidence points to the
2
Claimant
deliberately
using the telephone conversation to introduce the content of
the
Capita Report and her perception that Ms O’Connor manipulated
the outcome.
In
such circumstances the natural reaction for Ms O’Connor would
be one of
annoyance
as Ms O’Connor stated in her evidence, It was not annoyance
purely at
the
issue being raised on
17 November 2004. (See paragraph 21(27). She had had
enough she
said
of
the continual behaviour of the Claimant raising issues and then
not
being satisfied with Ms O’Connor’s efforts to deal with
them and the
outcomes therefrom
The
above also indicates
that
the Claimant lied about the content of the telephone
conversation
—
the
piper remark. The Tribunal accepted that she did.
The
Claimant lied to the Tribunal as to the content of the telephone
conversation
yet the Tribunal accepts her assertion as
to
whether Sharon O’Connor raised her
voice It is submitted
that in the circumstances such acceptance is contrary to
reason.
Criticism of the Contribution of the Arts team to the 2005 St Patrick’s Day Parade
20. The
Tribunal refers to this allegation at paragraphs 71 —73 of its
decision.
21.
The
evidence before the Tribunal was that the Claimant received glowing
appraisal
reports prior to 2005. There was no evidence to suggest that there
were any
criticisms
of the Art
team’s contribution to previous St Patrick’s Week
activities, It is therefore possible that the reason that any
criticism was raised was
in fact because there was then in 2005 something to be critical of.
Little
evidence was given on the
point. The Claimant did not contest the point that
others (“the
colleagues”) were disappointed, nor did she cross-examine Ms
O’Connor to that effect.
At
paragraph 21(63) the Tribunal
noted that it was never informed of the
identities of the
colleagues who were so critical. At no point was Ms O’Connor
asked to name them, nor was the Respondent through Counsel, so
asked. The
absence of this information cannot be used as a
foundation for the Tribunal’s
finding.
The
Tribunal noted in paragraph 73 that the
criticism was made in strident and
confrontational terms. The
memo referred to in the papers at page C39 (?) does
not contain
any language or expression that could be so construed. This could
not
be a foundation for the Tribunal’s finding.
There
was no
evidence before the Tribunal on which the Tribunal could base a
finding that the criticism was unjustified.
There
was no evidence that Ms O’Connor was motivated by
the Claimant haying
carried out the protected act.
The
Tribunal places the criticism as being weeks after the protected
act.
In actual
fact it was three and a half months after the
protected act.
In
light of the foregoing it is submitted
that the Tribunal’s finding is contrary to
the evidence
before it.
3
The decision to instigate a disciplinary process was inappropriate and unjustified
29. The Tribunal refers to this allegation at paragraphs 78— 83 of its decision.
30. At
paragraph
21(44) - 21(46) the Tribunal deals with the factual background of
the initiation of the disciplinary process and the investigating
officer’s decision
31.
During the course of giving her evidence Ms O’Connor explained,
as best she
could,
the non-verbatim notes
taken by someone
else, Mr
Patrick Hobson, during
the disciplinary investigation. She
accepted
the
notes as accurate
insofar
as she
could not gainsay them, but could not remember who had
raised the issue of
discrimination. The only time we heard Ms O’Connor’s motivation for initiating
the disciplinary process was during the Claimant’s cross-examination of her on
the ‘Hobson note’. Ms O’Connor emphatically denied any suggestions of an
improper motive and the Claimant never pursued that in cross-examination. Ms
O’Connor stated several reasons for instigating the disciplinary proceedings; the
consistent dispute with the job description, the accusations regarding the Captia
Report and the continual disregard Ms McKimm had Ms O’Connor’s instructions.
32. Mr Hobson determined that there was a prima facie case in relation to the offence
of insubordination. Clearly there was evidence to justify his decision.
33. The Tribunal criticised the Chief Executive for not preventing Ms O’Connor from
initiating
the disciplinary
process.
The Tribunal accepts that his reasons for not
discontinuing it
were appropriate, There would or could be no possible ground for
the
Chief Executive to intervene in the disciplinary process. To do so in
one case
and not in another would bring the process into
disrepute.
34. The Tribunal states at paragraph 21(56) that Mr McCrory and Mr Birt reached
perverse
decisions. This statement is made without analysis of those decisions
nor
are any reasons given. The outcome of both processes was
consistent with and
flowed from the evidence each received. The
Claimant admitted that she made the
remark - that she accused Ms O’Connor of influencing the Capita Report. There
was no factual foundation for such an allegation against Ms O’Connor. Therefore
as defined under the disciplinary process the Claimant was guilty of
insubordination.
The reasoning could not be clearer.
35. The internal process of
the Council operated by independent factfinders with
Union representation for the Claimant found the allegation upheld.
Therefore the
decision to initiate the procedure was
justified.
36. The
Tribunal
therefore ought not to
proceed
from the position stated at paragraph
81(1).
37.
The initiation of the disciplinary process
was in
February
2005.
The protected act
was done on 5
November 2004. Is
February
2005 soon after the protected act?
38. If Ms O’Connor
wanted to take disciplinary proceedings against the Claimant
from
the Claimant’s Capita allegation she could have done so on 17
November
2004 after the telephone conversation
which was soon after the protected act. It is
submitted that the protected act had nothing to do with the initiation of the
disciplinary process. The latter was as a result of the Claimant’s insubordination
and continued insubordination in respect of the Capita report - itself an attempt to
rectify the Claimant’s grading issue which had subsisted for a number of years.
4