McAleenan v Janet Clarke [2009] NIIT 1118

THE INDUSTRIAL TRIBUNALS

CASE REF: 1118/08

CLAIMANT: Richenda McAleenan

RESPONDENTS: 1. Janet Clarke

2. Ballynahinch Credit Union Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unlawfully discriminated against in being treated less favourably by the respondents on the ground of having exercised a statutory right to maternity leave, and accordingly the tribunal orders the second-named respondent to pay to the claimant the total award of £8,808.45.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Dr C Ackah

Mr D Walls

Appearances:

The claimant was represented by Mr A Sands, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.

The respondents were represented by Mr Randall, of Peninsula Business Services Ltd.

THE CLAIM

1. The claimant claimed that she had been unlawfully discriminated against in relation to pregnancy and maternity leave. The respondents denied all such allegations.

THE ISSUES

2. At a Case Management Discussion on 15 December 2008 issues were agreed by the parties. These are now as follows:-

(1) Whether the claimant was subjected to less favourable treatment on the ground of sex within the meaning of Article 3(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”).

(2) Whether the claimant was discriminated against on the ground of her pregnancy, within the meaning of Article 5A of the Order.

(3) Whether the claimant was less favourably treated on the ground that she had exercised a right to maternity leave within the meaning of Article 5A of the Order.

(4) Whether the claimant suffered a detriment contrary to Article 8(2)(b) of the Order.

(5) Did the claimant return on terms which were less favourable than those which would have applied if she had not been absent contrary to Regulation 18 of the Maternity and Paternal Leave etc. Regulations (Northern Ireland) 1999? (“the Regulations”).

In the response to the claimant’s claim, dated 8 October 2008, it is stated at paragraph 7.2 as follows:-

“The 2^nd Respondent respectfully request(s) that this response be accepted for both Respondents, and that they both be allowed to be referred to as the Respondent unless specifically named.

The Respondent respectfully submits that the Tribunal has no jurisdiction to consider this claim for the following reason:

• It is contended that the Claimant did not submit a grievance concerning the matters referred to in her claim. The Respondent avers that they never received a letter from the Claimant on or around 3^rd June 2008. The Claimant has, therefore, clearly failed in her duty to take the correct procedural steps in accordance with the statutory dispute resolution regulations in respect of her claim for discrimination on the ground of sex.

The Respondent respectfully requests, therefore, that this claim be struck out. In the alternative, the Respondent requests that the Tribunal hold a pre-hearing review on this preliminary matter”.

At a Case Management Discussion held on 15 December 2008, the parties agreed that there were no preliminary issues which should be determined at a Pre-Hearing Review and the issue regarding the grievance therefore remained as an issue for the substantive hearing. However, in the course of the hearing, the respondents’ representative conceded that the grievance issue was no longer an issue for the tribunal.

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant and on her behalf from the claimant’s manager, Fiona Hanna. It also heard evidence from the first-named respondent, Janet Clarke, and from Donna Russell, Loans Officer, and Betty McCartan a former Director of the second-named respondent (“Ballynahinch Credit Union”). The tribunal was also presented with documentation on behalf of both parties and took into account only documentation referred to in the course of evidence.

FINDINGS OF FACT

4. Having considered the evidence in so far as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) In weighing the evidence before it the tribunal took into account the fact that parts of the evidence provided by the respondents lacked credibility, and in areas of conflicting evidence, the tribunal preferred the claimant’s evidence.

(ii) The claimant is an employee of Ballynahinch Credit Union since June 1996 and is presently employed as a Credit Loans Officer. Up until April 2007, another employee, Anne Madine, who was senior to the claimant, acted-up in the absence of the manager, Fiona Hanna. Acting-up in this manner attracted a salary premium of £3.22 per hour. The tribunal accepts that prior to going on maternity leave on 1 October 2007, the claimant had acted-up in the absence of her manager, in preference to a less senior employee, Nicola Bell.

(iii) Following an earlier pregnancy in 2003, the claimant had received more generous maternity pay than was being offered by proposed new contracts which had been circulated prior to her taking maternity leave in the circumstances of this case. The claimant refused to sign the new contract which afforded her statutory maternity pay only and insisted that she should be paid in the same way as during her previous pregnancy. The claimant was unable to produce a copy of her contract. This had been held in her personnel file for some time but could not be located after the Ballynahinch Credit Union moved to new premises some time ago.

(iv) The claimant was forwarded a letter dated 24 July 2007 from her manager, Fiona Hanna, on instructions from Janet Clarke, setting out the terms and conditions of her maternity leave and confirming that she would receive statutory maternity pay only. The tribunal accepts Fiona Hanna’s evidence that the then Chairman of the Board of Directors of the Credit Union, Janet Clarke, had told her that the claimant was entitled to statutory maternity pay only. The claimant wrote to Janet Clarke on 11 August 2007 regarding the issue and copied the correspondence to all Board members. The minutes of the Ballynahinch Credit Union Board meeting held on 13 August 2007 state as follows:-

“Manager Report

1. Letter received from Richenda re maternity. J Clarke & F-Hanna looked at this. Information given to Richenda from Peninsula.

Proposed – check what was paid on last maternity leave & pay same again, letter to be given.

Proposed – J. Clarke seconded D. Kennan”.

Although the claimant did not receive a reply to her correspondence of 11 August 2007, Fiona Hanna confirmed with her verbally that she would be receiving 26 weeks full salary as occurred during her previous pregnancy. This was after advice had been received from Peninsula Business Services Limited. The claimant had previously written to Fiona Hanna on 25 May 2007 informing her of her proposed maternity leave on 1 September 2007 which, for various reasons, did not commence until 1 October 2007.

(iv) The tribunal accepts, on the evidence, that it was custom and practice within the Ballynahinch Credit Union for the longest serving employee to act-up in the absence of the manager. Fiona Hanna who had been employed with the Ballynahinch Credit Union for approximately 26 years, also confirmed that this was the case.

(v) Fiona Hanna was absent on sick leave from some time around Easter 2008 until 17 June 2008. The claimant was also on maternity leave during this period and, in her absence, Nicola Bell acted-up as manager.

(vi) The claimant returned to work on Friday 6 May 2008 and, in the absence of Fiona Hanna, assumed the acting-up position. Fiona Hanna was the main liaison point for the Board of Directors on management issues within Ballynahinch Credit Union and on occasions provided reports for consideration at Board meetings. As she was absent on sick leave upon the claimant’s return from maternity leave on 6 May 2008, the Directors (who were part-time and required to act in a voluntary capacity), did not have the advantage of her assistance in relation to management issues, including acting-up arrangements, and a certain amount of confusion did arise in relation to such issues, which included the claimant’s working hours, and payments for acting-up. Nonetheless, having regard to the whole context of the surrounding evidence, the tribunal is satisfied that this confusion has been exaggerated by the respondents in their evidence.

(vii) On 9 May 2008, Janet Clarke visited the Ballynahinch Credit Union’s premises and had a conversation with the claimant. Having carefully considered the evidence, the tribunal is persuaded by the claimant’s account that Janet Clarke told her that she was unable to act-up in Fiona Hanna’s absence because she was just back from maternity leave and would not know what she was doing. The tribunal also accepts that Janet Clarke referred to the fact that the claimant would not be aware of all the changes made within the office and that it was best for Nicola Bell to act-up in the manager’s absence. There was no evidence before the tribunal of any such changes. The tribunal accepts however that Nicola Bell had been trained to act-up in the absence of both Fiona Hanna and the claimant. At a Board meeting held on 12 May 2008, Janet Clarke gave the same reasons for the claimant not continuing to act-up as had been given to the claimant during the conversation on 9 May. This conversation coincided with the claimant ceasing to act-up. Moreover, the claimant was not paid the acting-up premium from 6 May – 9 May 2008. The minutes of a Board meeting held on 12 May 2008 record the following:-

“5. Richenda to act-up when Nicola is off whilst Fiona is on sick leave”.

This note is consistent with the tribunal’s findings in relation to the conversation held on 9 May and the finding in relation to the information Janet Clarke gave to the Board meeting on 12 May 2008.

(viii) In the course of the hearing, the respondent’s representative accepted on behalf of the respondents, that the claimant ought to have acted-up in the absence of Fiona Hanna instead of Nicola Bell upon her return from maternity leave and confirmed that she would be paid an acting-up premium totalling £698.74 for the period 6 May 2008 to 17 June 2008. This was consistent with the rota approved by the Board of Directors at a meeting held on 13 August 2007. The rota, prepared by Fiona Hanna, states, inter alia:-

“When Richenda is on Maternity leave Nicola should take over the role of Officer in Charge. If I am off on holidays this would mean that Nicola would have to come into work on a Thursday which is her normal day off.

Rate of pay for acting up is £3.32 per hour”.

(ix) The claimant hand delivered a grievance letter to Liam Smyth, the Treasurer for Ballynahinch Credit Union on 3 June 2008. The grievance letter dated 3 June 2008 states as follows:-

“Dear Liam

I wish to raise a grievance and I am writing to you on the advice of The Equality Commission regarding the following circumstances:

1. Failure of the Board of Directors to give a written reply to my letter received by them 13th August 2007.

2. Misinformation given to the Board of Directors by the Chairperson regarding my capability to do my job.

3. I feel the Board of Directors were mislead into believing that I had agreed for Nicola to act up in the managers absence after I had returned from maternity leave. I strongly object to this.

4. Sex Discrimination by the Board of Directors on returning to work from maternity leave regarding acting up in manager’s absence.

5. I was left in a vulnerable position on my own in the credit union 9th May 2008 for 45 minutes after being assured by the Chairperson that this would not happen.

I am entitled to a hearing to discuss this grievance and to be accompanied by a work colleague or legal representative.

Please reply within 28 days of this letter being received.

Yours Sincerely

Richenda McAleenan”

The tribunal finds itself unable to make a finding in relation to the nature of any discussion concerning the claimant’s grievance at a Board meeting held on 9 June 2008. However, the tribunal does find that the claimant’s grievance was referred to during that meeting which included Janet Clarke and Betty McCartan, who resigned as a Director on the same day.

(x) The Respondents had denied that a grievance letter had been received. However, the tribunal was furnished with extracts from Board meetings held on 7 July 2008, 11 August 2008 and 13 October 2008, when Janet Clarke resigned as Chairperson of the Board of Directors. The July minutes refer to grievance issues. However, the other two sets of minutes refer specifically to the “grievance letter from R McAleenan” and “R McAleenan’s grievance” respectively. Janet Clarke conceded that a grievance letter had been received and that she was aware of this even though it was denied in the Respondents’ response and thereafter up to the substantive hearing before this tribunal. The claimant’s grievance together with other issues is currently the subject of an investigation being conducted by Jill Fairley of Jenkinson Consultants. The claimant presented her claim to the tribunal on 8 August 2008. However it appears that it was not until 19 September 2008 that the grievance was discussed with the claimant in the context of the ongoing wider investigation.

(xi) The tribunal accepts that the claimant suffered stress during her pregnancy between 24 July 2007 and 7 September 2007 and again following her return to work on 6 May 2008. This included a period on sick leave as a result of work related stress prior to the claimant’s return to work on 17 June 2008 which also coincided with the return of her manager, Fiona Hanna.

(xii) The Respondents were unable to provide any credible explanation for the treatment of the claimant following her return to work on 6 May 2008.

THE LAW

5. (1) Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 (“the Order”) provides as follows:-

“(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man”

(2) Article 8 (2) of the Order provides as follows:-

“(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 –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

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

(3) Article 5A of the Order as amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 provides as follows:-

“(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably, or

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably.”

The claimant relied on the words “has exercised….a statutory right to maternity leave” in the context of this case.

(4) Regulation 18 of the Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999, as amended, states as follows:-

“(1) An employee who returns to work after a period of ordinary maternity leave, or a period of parental leave of four weeks or less, which has –

(a) an isolated period of leave, or

(b) the last two or more consecutive periods of statutory leave which did not include any period of additional maternity leave or additional adoption leave, or a period of parental leave of more than four weeks,

is entitled to return to the job in which she was employed before her absence.

(2) An employee who returns to work after –

(a) a period of additional maternity leave, or a period of parental leave of more than four weeks, whether or not preceded by another period of statutory leave, or

(b) a period of ordinary maternity leave, or a period of parental leave of four weeks or less, not falling with the description in paragraph (1)(a) or (b) above,

is entitled to return from leave to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.

(3) The reference in paragraph (1) and (2) to the job in which an employee was employed before her absence is a reference to the job in which she was employed –

(a) if her return is from an isolated period of statutory leave, immediately before that period began;

(b) if her return is from consecutive periods of statutory leave, immediately before the first such period;

(4) This regulation does not apply where regulation 10 applies.

Incidents of the right to return

18A.- (1) An employee’s right to return under regulation 18(1) or (2) is a right to return –

(a) with her seniority, pension rights and similar rights –

(i) in a case where the employee is returning from additional maternity leave, or consecutive periods of statutory leave which included a period of additional maternity leave or additional adoption leave, as they would have been if the period or periods of her employment prior to her additional maternity leave or (as the case may be) additional adoption leave were continuous with the period of employment following it;

(ii) in any other case, as they would have been if she had not absent, and

(b) on terms and conditions not less favourable than those which would have been applied if she had not been absent.

(2) The provision in paragraph (1)(a)(i) concerning the treatment of periods of additional maternity leave or additional adoption leave is subject to the requirements of paragraphs 5 and 6 of Schedule 5 to the Social Security (Northern Ireland) Order 1989 (equal treatment under pension schemes: maternity absence and family leave).

(3) The provisions in paragraph (1)(a)(ii) and (b) for an employee to be treated as if she had not been absent refer to her absence –

(a) if her return is from an isolated period of statutory leave, since the beginning of that period;

(b) if her return is from consecutive periods of statutory leave, since the beginning of the first such period.”

The amendments made by the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations (Northern Ireland) 2008 do not apply in the circumstances of this case.

BURDEN OF PROOF REGULATIONS

6. Article 63 A of the Order states:-

“(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.

(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.

(ii) The tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomur International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of inadequate explanation” at this stage ., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complaint were of like with like as required by s5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

(iii) The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs as set out in full to give the full context of this part of his judgement, even though Article 5A of the Order no longer requires comparators in a case involving pregnancy and maternity leave:-

“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-

‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):-

’36. The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:-

(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.

(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:-

‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).

This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all”.

(iv) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-

“The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention. Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention. However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent. The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures. That is a strong factor tending to point away from a sexually discriminatory intent. Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”.

(v) The tribunal also considered the Employment Appeal Tribunal decision in Blundell v The Governing Body of St Andrews Roman Catholic Primary School [2007] IRLR 652 (the facts in which precede the amendment of the legislation in Great Britain equivalent to Article 5A of the Order). The Employment Appeal Tribunal had, therefore, to deal with the issue of discrimination on the ground of pregnancy or maternity leave by reference to the well established law in relation to direct discrimination, However it also considered Regulation 18 of the 1999 Regulations (supra) in assessing whether a job is the “job in which she was employed before her absence”. The tribunal also considered the cases of Fletcher the Blackpool Fylde v Wyre Hospitals NHS Trust [2005] IRLR 689 EAT, O’Neill v Governors of St Thomas More RCVA Upper School [1996] IRLR 372 EAT, and British Telecommunications PLC v Roberts [1996] IRLR 601 EAT dealing respectively with the special protection afforded to women on maternity leave, the need for an objective consideration of all the surrounding circumstances to establish whether the treatment complained of is on the ground of pregnancy or on some other ground (the causal connection test) and the status of a woman who returns to work after maternity leave.

The tribunal also considered relevant sections from Harvey on Industrial Relations and Employment Law (“Harvey”) at A[282]ff (in relation to implied terms) and J[134]ff (in relation to sex discrimination and maternity leave) and the relevant authorities referred to therein.

SUBMISSIONS

7. The tribunal carefully considered the written submissions submitted by the party’s representatives. It also carefully considered the further oral submissions made on 29 July 2009.

CONCLUSIONS

8. The tribunal, having carefully considered the evidence together with the submissions and applied the principles of law to the findings of fact, concludes as follows:-

(1) The claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation from the respondents that the latter have committed an unlawful act of discrimination in treating the claimant less favourably on the ground of having exercised her statutory right to maternity leave. Following the conversation with the first named respondent on 9 May 2009, the claimant was, in effect, no longer allowed to return to the job in which she was employed before her absence, as the tribunal is satisfied that there was an implied term in her contract affording her the right to act up in the absence of her manager and in preference to Nicola Bell. Accordingly, the burden of proof moves to the respondents. To discharge that burden the respondents must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a prescribed ground. The tribunal must assess not merely whether the respondents have proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the prescribed ground was not a ground for the treatment in question. Since the facts necessary to prove an explanation would normally be in the possession of a respondent, a tribunal will expect cogent evidence to discharge that burden of proof. The tribunal is not satisfied that the respondents have provided cogent evidence to discharge the burden of proof and the claimant’s claim must therefore succeed.

(2) Remedy

The parties agreed special loss in the sum of £698.74. The issue to be determined by the tribunal relates to the claim for injury to feelings for the period from 9 May 2008 until 17 June 2008, when the claimant returned from sick leave, as referred to in the tribunal’s findings of fact at Paragraph 4(xi) of this decision.

(i) The case of Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA established that compensation for injury to feelings falls into three broad bands as follows:-

(a) between £15,000 and £25,000 for the more serious cases, for example, where there has been a lengthy campaign of discriminatory harassment;

(b) a middle band between £5,000 and £15,000 for serious cases that do not merit an award on the highest band; and

(c) a lower band between £500 and £5,000 for less serious cases, for example, where the act of discrimination is an isolated or one-off occurrence.

In the case of Miles v Gilbank [2006] ICR 12 EAT at paragraph 12, Judge Pugsley stated:-

“We make the point, if we may, that actually the Vento case is now three years old and that is a point which was of relevance because, whilst we do not have raging inflation which has been known in various stages of the country’s history, we nevertheless do have quiet inflation which devalues monetary values.”

This approach has been followed in Northern Ireland, and in the case of Pauline Girvan v Carrickfergus Council – Support Services – Case Reference 1696/07, an Industrial Tribunal stated as follows at paragraph 8 of its decision:-

“During the five years since the determination in Vento, the retail price index has increased by approximately 9%. On that basis, the middle band should now be from £5,500 to £16,000 approximately.”

(ii) Aggravated damages are also available for an act of discrimination. Malice or other bad intention on the part of the respondents is a reason for making an award of aggravated damages as is the lenient or favourable way in which the respondent has treated the perpetrators of the discrimination or where the victim, in consequence of the unlawful act, suffers injury to feelings as a result of actions taken by the employer even where those actions are not in themselves discriminatory. (British Telecommunications PLC v Reid [2004] IRLR 237 CA and Harvey at L (524).) Again in the Northern Ireland Court of Appeal case of McConnell v Police Authority for Northern Ireland [1997] NI 224 at 255, Carswell LCJ stated:-

“ ... an award of aggravated damages should not be an extra sum over and above the sum which the Tribunal of fact considers appropriate compensation for the injury to the claimant’s feelings. An element of aggravation ought to be taken into account in reckoning the extent of the injury to feelings, for it is part of the cause of that injury. It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour.”

(iii) The tribunal, having carefully considered the evidence and the findings of fact, is not satisfied that a case has been established by the claimant for an element of aggravation to be taken into account in reckoning the extent of the injury to feelings.

(iv) The tribunal is satisfied that there is some force in the claimant’s contention that there should be an uplift in any award under Article 17(3) of the Employment (Northern Ireland) Order 2003, (“the 2003 Order”) and does not accept that there were exceptional circumstances for the purposes of Article 17(4).

(v) Under Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 No. 581, a tribunal may include simple interest on an award made and shall consider whether to do so without the need for any application from the parties. Any interest awarded under the discrimination legislation for injury to feelings is from the date on which the discrimination began, in this case 9 May 2008. In relation to other sums of damages, interest shall be awarded from the midpoint between the date on which the discrimination began and the day of calculation.

(vi) Both parties agreed that any award of compensation should not be apportioned between the respondents and should therefore be made against Ballynahinch Credit Union only.

(vii) The tribunal considers it appropriate to add simple interest at the rate of 8% per annum on the compensatory award from 9 May 2008 until the day of calculation, and in respect of the special loss amount of £698.74 from the midpoint between 9 May 2008 and the day of calculation which means the day on which the amount of interest included on the sum so awarded is calculated by the tribunal. Regulation 5 of the above Regulations provides as follows:-

“(1) ... ’midpoint date’ means the date half-way through the period mentioned in paragraph (2) or, where the number of days in that period is even, the first day of the second half of that period.

(2) The period referred to in paragraph (1) is the period beginning on the date of the contravention or, as the case may be, of the act of discrimination to which the award in question relates and ending on the day of calculation (both dates inclusive).”

Injury to Feelings and Special Loss

(i) The tribunal is satisfied that the appropriate Vento band is the lower end of the middle band. The tribunal awards £6,000 for injury to feelings together with an uplift of 20% under Article 17 of the 2003 Order making a total award for injury of feelings of £7,200. The tribunal is satisfied that interest should be added at the rate of 8% per annum from 9 May 2008 until 12 August 2009. This is a total of 461 days at daily interest of £1.58 x 461 = £728.38, making a total award for injury to feelings of £7,928.38.

(ii) The tribunal is satisfied that there should be a similar uplift of 20% in relation to the agreed figure for special loss. The tribunal therefore awards £838.49 for special loss. The tribunal is also satisfied that it should add interest at the rate of 8% per annum to the special loss amount of £838.49. This is for a period of 231 days from 25 December 2008 until 12 August 2009 at a daily rate of £0.18 x 231 = £41.58, making a total award for special loss of £880.07.

(iii) The total award to be paid by Ballynahinch Credit Union Ltd, the second-named respondent, is £8,808.45.

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

Chairman:

Date and place of hearing: 20, 21, 22 and 29 July 2009, Belfast.

Date decision recorded in register and issued to parties:

Case Ref:1118/08It

IN THE INDUSTRIAL TRIBUNAL FOR NORTHERN IRELAND

Between

RICHENDA McALEENAN

Claimant
-and-

                                                   JANE CLARKE
                                                                                                              First Named
                                                                                                               Respondent
                                                              -and-

THE BOARD OF DIRECTORS
OF BALLYNAHINCH CREDIT UNION

Second Named
Respondent

SUBMISSIONS ON BEHALF OF THE CLAIMANT

1. The evidence overwhelmingly demonstrates that the claimant was unlawfully discriminated against on the grounds of her pregnancy.

2. It is now common case that on her return to work following her maternity leave the claimant did not resume the role of being entitled to act up in the absence of the manager. This resulted in a loss of status within, the organisation and an agreed pecuniary loss of £698. She was effectively demoted.

The Sex Discrimination (Northern Ireland) Order 1976

3. The decision to stop the claimant from resuming her acting up duties on her return to work was unlawful discrimination within the meaning of Article 5(A)(1)(b) of the 1976 Order.

4. The respondents have treated her less favourably then they would have done had she not exercised her right to maternity leave. The Respondents’ two witnesses effectively conceded this in evidence.

5. In Madarassy v Nomura International plc [2007] IRLR 246 the Court of Appeal found that the Tribunal may still make use of a comparator in deciding whether pregnancy was the reason for less favourable treatment short of dismissal. If such an approach is used the appropriate comparator is the claimant had she not been pregnant. Using this comparison she was undoubtedly less favourably treated than she otherwise would have been.

6. The loss of status and seniority and the loss of the acting up entitlement is a detriment for the purpose of Article 8(2)(b) of the Sex Discrimination (NI) Order 1976 (“the 1976 Order”) and the Shamoon test on detriment is easily satisfied. The claimant lost both pay and status.

7. There is ample evidence that the less favourable treatment was on the ground of her having exercised her statutory right to maternity leave. The evidence of the dispute the previous year relating to her maternity entitlement only strengthens this. There no is absolutely no adequate explanation for this from the respondent. Mrs Clarke put forward no explanation, that of Mrs McCartan (that the claimant may not have appreciated what changes were made in her absence) is wholly unsatisfactory and unjustified. Her absence was a necessary consequence of her pregnancy and there is no evidence that changes were made in any event.

8. The pregnancy was the effective cause and the “reason why” for the less favourable treatment.

9. The claimant also relies on direct discrimination under Article 3 of the Order. Article 5 is the more apposite in the circumstances. However, it is submitted in any event that the evidence would also constitute unlawful

direct discrimination under Article 3(1)(a) in that the respondents have treated the claimant less favourably on the grounds of her sex. Had she not been female she would not have been pregnant and would not have been demoted.

Maternity & Parental Leave Regulations (Northern Ireland) 1999

10. Further, the Claimant was forced to return to work on terms which were manifestly less favourable than those which would have applied if she had not been absent. Had she not been absent she would have continued to act up with all the benefits that this would have entailed. This is a breach of Regulation 18 of the Maternity & Parental Leave etc. Regulations (NI) 1999.

11. The claimant was returning to work under Rule 18(2)(b) ie. after ordinary maternity leave. Rule 18(A)(a) and (b) entitles her to return with seniority as if she had not been absent and on terms and conditions not less favourable than those which would have applied had she not been absent.

12. It was conceded in evidence that she returned having lost seniority and on less favourable terms and conditions. There has been a flagrant breach of the Regulations.

Injury to Feelings

13. The less favourable treatment continued over two months. It was not a discrete incident. It was preceded by a related matter the year before. It was upsetting and humiliating for the claimant during a time in which she would have already felt vulnerable. This is a case where aggravated damages should be awarded in addition to damages for injury to feelings. The respondents behaved in a manner which was blatantly discriminatory. They need not have done so at all; they intermeddled in a mariner which was plainly outside the remit of both respondents. There is a relevant history. The claimant expressed frustration, upset and distress arising out of the conduct of Mrs Clarke in attempting to prevent her from obtaining full pay during her first maternity leave. The second respondent has delayed unreasonably and inexplicably in carrying out a grievance investigation and both respondents went so far a to deny ever receiving

the grievance. The hearing was made all the more difficult for the claimant by the fact that she is currently 6 months pregnant.

14. The claimant is also entitled to an uplift on the grounds of the failure of the Respondent to comply with the requirements of Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. Under Article 17(3) of the Employment (Northern Ireland) Order 2003 the Tribunal must award the claimant an uplift of 10% on the award if the claimant is successful. It is submitted that given that the Respondents utterly denied that the Claimant had submitted a grievance in the first place and could have caused her to lose her right to pursue her claim it would be entirely appropriate, just and equitable to uplift this to the maximum level of 50%.

Costs

15. The conduct of the respondent in defending the claim has been vexatious arid unreasonable and it is submitted that if the claimant is successful the Tribunal should consider an application for costs under Rule 40(2) of the 2005 Rules.

AIDAN SANDS BL

The Bar Library
23rd July 2009

Case Ref: 1118/08It

IN THE INDUSTRIAL TRIBUNAL FOR NORTHERN IRELAND

Between

RICHENDA McALEENAN

Claimant

-and-

JANE CLARKE

First Named
Respondent

-and-

THE BOARD OF DIRECTORS
OF BALLYNAHINCH CREDIT UNION

Second Named
Respondent

ADDITIONAL SUBMISSIONS ON BEHALF OF CLAIMANT

Preliminary Point

1. No concession was made in the CMD allowing Mrs Clarke to be released as a party. The only issue was the change of name of the Credit Union. The record of proceedings accurately reflects this.

Entitlement to Maternity Pay

2. The evidence supports the claimant rather than the respondent on this matter.

3. Limited assistance can be gained from the minutes of the meetings. They were not intended to be a verbatim account. This is apparent from reading them. Under Any Other Business it can be seen that mere bullet points were noted, not what everyone said.

4. The credibility of the respondents’ witnesses has been seriously undermined throughout the hearing. It seems unlikely in the extreme that Mrs Hanna would have talked about her own maternity leave 20 years before and that neither she nor anyone else would have recalled the claimant’s first pregnancy in 2003.

5. The balance of the evidence favours the claimant rather than the respondents on this matter.

Return to Work

6. It is impossible to deny, that the entitlement to act up was not part of the claimant’s contract. No written contract exists for the claimant. Every witness agreed that the claimant had always worked up by custom and practice and that this had been a practice of long standing within the

branch. At the time of her maternity leave acting up in the absence of the manager was clearly part and parcel of her job.

7. The respondents’ witnesses accepted that the Board only needed to know the identity of the person acting up so it knew who to contact.

8. In any event regardless of whether it formed part of the claimant’s contract the Board had agreed the manager’s proposal in August 2007. Even if it were not part of the claimant’s contract she would still have been less favourably treated, to her detriment, contrary to Article 5A of the 1976 Order.

9. The decision in Blundell shows that “the nature of a job is much broader than the contract.” (It is of note that in Blundell the Tribunal did not consider the equivalent of Article 5A as it was not in force at the relevant time).

10. The respondents now claim that the decision was based on poor communication and on a mistake. This is not supported by the evidence. The respondents made an active decision to allow Ms Nicola Bell to act up rather than the claimant. It deliberately intermeddled to change the status quo.

11. There is no evidence that other people would have been treated in the same way eg. people on long term sick leave. –

12- In any event, for the purpose Of Article 3A the proper comparator would be the claimant had she not been pregnant, not the claimant had she been off on sick leave for 6 months. To do otherwise would be to completely undermine the purpose of the legislation.

13. The claimant has discharged the burden on her. It is for the respondent to then establish that the less favourable treatment was for a nondiscriminatory reason.

Detriment

14. It is obvious that the claimant has suffered a detriment and a loss of status and seniority. This has been accepted in evidence by the respondent’s• witnesses. She has also lost out financially and the fact that the respondents conceded on the morning of hearing that they will reimburse her does not change this.

Grievance

15. The respondents’ submissions on this matter do not make sense. It was not for the claimant to press the issue. Rather, it was for the respondent to indicate that it was not an issue. It expressly stated the contrary during the December CMD. It only conceded this point on the morning of the hearing.

Injury to Feelings

16. This is clearly not a bottom range Vento case. Whatever Mrs Hanna may have thought of her she lost status and suffered embarrassment and humiliation before her colleagues and customers.

17. This was a calculated rather than an accidental act.

18. It is aggravated by the manner in which the respondents have dealt with this case.

AIDAN SANDS BL

The Bar Library

27th July 2009

Case No: 1118/08/IT

IN the BELFAST Office of the Industrial Tribunal

And Fair Employment Tribunal

Between

Mrs. Richenda McAleenan

Claimant

-AND-

Board of Directors of Ballynahinch Credit Union Limited (1)
Mrs. Janet Clarke (2)

Respondents

____________________________________________
RESPONDENTS
RESPONSES TO THE CLAIMANTS SUBMISSIONS

1. INTRODUCTION

1.1 I haye to confess to an initial surprise at the brevity of the Claimants submissions, but after reading these submissions a number of times it becomes clear that the reason for the brevity is the underlying view that their case is simply made out and so detailed submission is unnecessary, this is - a misconceived proposition.

2. EVIDENCE

2.1 The meaning of words depends upon the context in which they are used and this is a proposition stated by Lord Hoffman in Charter Reinsurance Co Ltd v
Fagan[1997JAC3T31C where he said: -

“I think that in some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts their meaning will be different but no less natural.”

2.2 In this case there is an argument over meaning, not just of words per se but of words, intentions, knowledge of individuals and the effect of actions taken by one party against another recorded at the time they occur and surely the analogy exists that all the evidence must be considered in the correct context in light of all available information, including contemporaneous facts and records and not simply in the light of each parties statements to the Tribunal.

2.3 Oral testimony also must be considered in the appropriate context as it is provided at the hearing and is a re-writing of history some time after the event, here some 12 months or more and the story is inevitably coloured by the individuals intentions, their memory of the events and of course guided by the individuals advisors to produce the best version of events possible for the Tribunal.

2.4 It would .be wrong to simply consider this oral evidence in a vacuum as the Claimant is asking the Tribunal to do here, the evidence must be taken together with all the contemporaneous evidence, only then can a true fact be determined, just because the Claimants states it to be so does not mean it is so!

2.5 If the Claimants evidence is taken on its own ignoring the contemporaneous evidence then the Claimants submission has a basis for consideration but the Claimants evidence and her witnesses evidence is not supported by the unchallenged contemporaneous evidence, and does not fit the available cirmstances, and the explanations provided by the Respondents which does fit the available information and the Claimant simply cannot be held to

have succeeded in meeting the burden of proof requirements to succeed in her claim.

3. RETURN TO THE SAME JOB

3.1 The Claimant has made an assumption and leap of faith that acting up was part of her contract, this is misconceived.

3.2 No evidence was provided by the Claimant to support her proposition relating to acting up, the only available evidence before the tribunal can be
summarised as follows, it was the manager who determined who acted up, the manager raised a rota which was for her purposes and was ratified by the board, the manager provided conflicting hours worked in August 2007 and March 2008, the board made a decision based upon their knowledge at the time, the manager was off sick at the time the decision was made and the manager changed the decision oh her return, it must be remembered the managers decision to have the Claimant act up on her return was not put to the Board for ratification, clearly there was a confusion which existed, and no precise course of action as alleged by the Claimants.

3.3 Throughout the evidence the connecting strand is the manager Fiona Hanna, it was her job to advise the Board of Directors, and the manager provided the information on which the Board of Directors made their decisions and the
unfortunate absence on sick leave that was the direct causal reason for the decision of the Directors relating to acting up. taking the case on the evidence before the tribunal the Claimant returned upon. the contract she was entitled to under law, so there is simply no basis for the claim!

4. INJURY TO FEELINGS

4.1 It is quite absurd to argue any kind of aggravated damages, as the claimant has utterly failed to demonstrate any “high handed” actions on the part of the Board of Directors, even if there is a finding of discrimination or detriment and the Respondents refer to their submissions in this regard.

4.2 In respect of an uplift the Respondents will seek to rely up Employment
(Northern Ireland) Order Article 17 (4) which reads:

(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

4.3 An external consultancy has been tasked with dealing with the Grievance and as Mrs Clarke stated they are still working on the matter as a considerable number of issues have arisen and are being investigated and the process is on-going and as such it would not be just and equitable to provide any uplift, but in the case an uplift is considered appropriate it should be no more than 10%.

4.4 The Tribunal are also asked to consider the following in their determination of this point, the voluntary parttime position of the Board of Directors and its reliance upon the manager, (who has also raised a tribunal claim), the instruction of external consultants and the costs incurred by the Credit Union, the depth of the investigations which are on-going and the number of issues raised.

5. COSTS

5.1 Costs are an issue which if appropriate a subsequent hearing will be required, but the Respondents will defend any application, and raise the Claimants conduct in this matter as being entirely unreasonable, and such a claim being misconceived in the circumstances.

5.2 The Respondents will seek full proof of any and all costs suffered by the Claimant as she is supported by the Equalities Commission and therefore is not incurring costs.

Case No: 1118/08/IT

IN the BELFAST Office of the Industrial Tribunal

And Fair Employment Tribunal

Between

Mrs. Richenda McAleenan

Claimant

-AND-

Board of Directors of Ballynahinch Credit Union Limited (1)
Mrs. Janet Clarke (2)

Respondents

______________________
RESPONDENTS
CLOSING SUBMISSIONS

1. PRELIMINARY POINT

1.1 The Respondents wish to raise an issue regarding the inclusion of Mrs. Janet Clarke as a named Respondent.

1:2 The Respondents contend that at the Case Management Discussion of 15h December 2008, [pgs 38 —43] discussion was had relating to the correct names for the Respondents.

1.3 As can be seen from Item B Interlocutory Matters at number 1 the correct name of the 1^st Respondent was changed to reflect Limited Company status.

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1.4 The Respondents contend this was part of a wider discussion including the position of Mrs. Clark as Chairperson of the Board of Directors, and that
agreement was reached to have Mrs. Clarkes name removed.

1.5 It is accepted that this agreement is not reflected within the record of that meeting, however as the 1st Respondent Limited Company is obviously the responsible employer, and considering the position of Mrs. Clarke and the lack of direct claim of Discrimination against Mrs. Clarke, the Respondents would seek to have Mrs. Clarkes name removed from the record and accordingly seek a determination on this point.

1.6 An issue has arisen after the closing of the evidence, in relation to the value of the admitted sum in this matter; the admission was based upon instructions and the Schedule of loss that sets out a loss of 31 days acting up monies.

1.7 Mrs. McAleenan was off sick during the period of time from 6 May 2008 to 17 June 2008 and this referred to at paragraph 17 of Mrs. McAleenan’s statement, although no specific dates have been mentioned, the Claimants representatives are asked to provide a revised financial loss figure taking account of the sickness of Mrs. McAleenan, as she would not have been entitled to acting up allowance whilst off sick.

2. INTRODUCTION

2.1 The Claimant raised a number of issues in her IT 1 dated 5th August 2008 [pgs 1 -12 in the bundle] relating to alleged less favourable treatment, and potential detriment amounting to Sex Discrimination contrary to various statutory
enactments.

2.2 Looking at these allegations in age order they can be summarized as follows:

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1^st Issue

2.2.1 The provision of a letter dated 24 July 2007, allegedly on the. unauthorized instructions of Mrs. Clarke setting out Maternity Rights, but referring to Statutory Maternity pay as opposed to Full Pay during maternity leave as had been received by the Claimant on a prior occasion.

2.2.2 The contents of this letter were challenged by the Claimant, and the Board of Directors determined after a period of time that the Claimant should receive full pay during her maternity leave.

2.2.3 That the whole situation regarding the letter of the 24th July 2007, and the time taken to deal with the Claimants challenge to this letter caused the Claimant unnecessary stress, during her pregnancy and amounted to discriminatory conduct.

2^nd issue

2.2.4 The Claimant complains that when she returned from her maternity leave on the 6111 May 2008 she not permitted to resume ‘acting up’ duties when the manager was off and would have to work under another employee.

2.2.5 The Claimant contends that she was the most senior employee and it had always been the custom and practice that the most senior employee acted up in the manager’s position.

2.2.6 The Claimant contends that Mrs. Clarke informed her that because she had been on maternity leave she would not be able to act up as the Claimant would not be aware of all the changes within the office.

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2.2.7 Further the Claimant contends that another director had told another employee that the reason the Claimant could not act up was because she would not be capable of acting up as she was just back from maternity leave and would not know what was going on in the office.

2.2.8 The Claimants case is that she was denied a return to the job she had before she went off on maternity leave, and treated less favourably for a reason relating to her sex, and or her decision to take maternity leave.

2.2.9 And that she has suffered a detriment, because she took maternity leave and or for a reason relating to pregnancy, childbirth, maternity or her sex.

3. THE LAW
3.1 The laws to which the Claimants claim relate have helpfully been set out by the Claimants representative and are as follows, (the extracts are contained in Appendix 1).

3.1.1 Sex Discrimination (NI) Order 1976
Article 3 (1) — Article 5 A (1) (b) — Article 8 (2) (b)

3.1.2 Maternity & Paternal Leave etc. Regulations 1999 (as Amended) Reg 18 (2)(b)— Reg 18(3)— Reg 18 A(1) (a)
Reg 19(1)— Reg 19 (2)(a)— Reg 19(2) (b)

3.1.3 The Employment Rights (Northern Ireland) Order 1996
Article 70(c) (1)—Article 70 (c) (2) (a)—Article 70(c) (2) (b)

4. CASE LAW
4.1 There is case law which relates to the issues within this claim and has helpful guidance and reasoning and the Respondents will be referring to this in their

4 I

submissions, it is Mrs. G Blundell - v -The Governing Body of St Andrew’s Catholic Primary School (1) Mrs. D Assid (2) [2007] IRLR 652.

4.2 A second case to be referred to is Shamoon - v - The Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL.

5. EVIDENCE BEFORE THE TRIBUNAL

5.1 Evidence was provided to the tribunal in the form of an agreed bundle of documents’, together with witness statements, including a supplemental statement from the Claimant, who had had the opportunity of addressing the documents and the Respondents statements.

5.2 Much of the evidence provided to the Tribunal is uncontested, with the parties seeking to put their own particular interpretation on the documents. There are specific disputed areas, where the Claimant and her supporting witnesses’ version of events are directly challenged by the Respondents version of events, and where this occurs the tribunal is faced with making a decision on who to believe.

5.3 With this in mind the Respondents would have the Tribunal consider the fact that Mrs. Hanna the main supporting witness of the Claimant has also lodged a Tribunal claim against the Respondents and Mrs. McAleenan is the major witness in that claim and the Respondents suggest that the evidence be considered in light of this fact!

5.4 Having sought to set out the Claimants claim and the law I propose to now work through the claim and the evidence to provide a picture for the tribunal and then give the Respondents submissions on how that picture should be seen and finally deal with remedies and conclusions.

5 I

5.5 ADMINISTRATIVE OVERVIEW OF BALLYNAHINCH CREDIT UNION

(i) What we have is one organization but with two disparate bodies, namely the workforce who each receive a salary and the Board of Directors (BoD) who are volunteers’, and work elsewhere. As can be seen from the evidence of Mrs. Clarke in paragraph 2 of her statement [pg 12 of the statement bundle] the role of the BoD is to oversee the Governance of the credit Union.

(ii) Whereas the position of the manager FH as per her own evidence is the day-to-day running of the branch and to report to the board on a monthly basis and advise the board on decisions, although the manager has no voting rights.

(iii) The evidence before the tribunal is that the BoD rely upon the Manager, (Mrs. Fiona Hanna — FH) for guidance in issues relating to the workforce, and it was the consensus of evidence before the tribunal that the Directors where not in the office very often. This fits in with the fact that the Directors act in a voluntary capacity and have jobs elsewhere. This connection between the workforce and the BoD is considered an important issue by the Respondents.

(iv) The manager provides either an oral report to the Directors at the monthly board meeting or a written report prior to the board meetings I will refer to these written reports in due course, there are minutes of various meetings provided in the bundle, and the contents of these minutes was uncontested.

(v) It is clear that there are disputed issues relating to possible gaps in the minutes, things that FH say were raised but are not recorded and I will deal with this point shortly but the contents of the minutes provided were uncontested.

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5.6 ISSUE OF THE 24th JULY 2007 LETTER AND MATERNITY BENEFITS

(I) The first issue to deal with is the issue of maternity pay and specifically a letter of 24th July 2007, now this point has no relation to a claim for compensation as it is clearly out of time, and I took the Claimants case to be that this episode somehow set the scene for the subsequent issue. This episode somehow showed negativity on the part of Janet Clarke that was part of a motivation for her alleged actions in relation to the acting up issue.

(ii) The Claimant states in her claim at page 9 in the bundle, “I feel aggrieved that Janet Clarke caused me unnecessary stress during my pregnancy from 24th July 2007 till September 2007, I feel that Janet Clarke was discriminating against me because I was pregnant”

(iii) In her witness statement the Claimant sets out that it was Mrs. Hanna who told her what Mrs. Clarke was allegedly saying and Mrs. Hanna in her witness statement alleges that she raised the issue of Mrs. McAleenan’s pregnancy in March 2007, that Mrs. Clarke knew of Mrs. McAleenan’s previous entitlement but was adamant that Mrs. McAleenan was to only receive statutory maternity pay, with the reason given that if Mrs. McAleenan got an enhanced maternity pay everyone would want an enhanced maternity pay.

(iv) Mrs. Clarke disputes this version of events and states that Mrs. Hanna did not inform the BoD of Mrs. McAleenan’s previous entitlement or that Mrs. Hanna informed her of the pervious entitlement and Mrs. Clarke refused to allow it.

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(v) Disputes do not exist in a vacuum there is always some external circumstantial evidence to support one version or another and this case is exactly the same.

(vi) It is accepted that the general rule was that all issues raised at the BoD meetings are minuted; it is also accepted evidence that Mrs. Hanna would either provide a written report or an oral presentation to the Board.

(vii) The minutes of board meeting on l2 March 2007 are in the bundle at pages 117 — 120 and Mrs. McCarten a director who was at the meeting gave her evidence that Mrs. Hanna did not raise the issue of Mrs. McAleenan’s pregnancy at this meeting, there is also no notes, or report provided by Mrs. Hanna to support her version of events.

(viii) It is contended that on the balance of probabilities Mrs. Hanna did not raise the issue at the 12th March 2007 meeting.

(ix) The Minutes of a board meeting on 11th June 2007 are in the bundle at• pages 121 — 125 here Mrs. Clarke, Mrs. McCarten and Mrs. Hanna were present, and what is interesting is that reference is made on page 124 at item 2 to Donna Russell being trained to act up in place of Mrs. McAleenan whilst she is off on maternity leave but nothing about the maternity benefits. Again the Respondents argue that on the balance of probabilities the issue of maternity benefits was not discussed at this
meeting.

(x) We now move onto two meetings one before and one after the letter at the centre of this issue, in the bundle at pages 126 - 130 are the minutes of a board meeting held on 9th July 2007. At page 129 there is an entry that reads, “Janet Clarke to contact Peninsula RE: Statutory Pay.” Again surprisingly there is no record either in a written report or a note of the minutes were Mrs Hanna raises the previous payments, it is accepted

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that Mrs. Hanna’s evidence was that she did raise the issue, but the fact is there is no record of it.

(xi) Following this meeting Mrs. Clarke contacts Peninsula and is directed to the Company Handbook, and in para 5 at page 13 in the statements bundle Mrs. Clarke sets out the response she received from Peninsula.

(xii) If we then look at the letter of the 24k” July 2007 at pages 113 — 115 in the bundle it is clear that the section entitled Maternity Pay on page 114 is a reflection of the statutory maternity rights, and therefore reflects the evidence of Mrs. Clarke.

(xiii) Mrs. Hanna’s evidence that she did not sign this letter because she did not agree with the position of Mrs. Clarke is simply unsupported by the surrounding circumstances.
(xiv) Following this letter Mrs. McAleenan provides a letter disputing the use of
the statutory process and claims that an understanding existed that she would be paid full pay as had previously occurred.

(xv) Mrs. Hanna raises this in a written report prior to the 1 3th August 2007 [at page 131 item 1], the clause clearly reflects a report on a letter from Mrs. McAleenan and not as Mrs. Hanna stated in her evidence her reiteration of something she had previously informed the board of.

(xvi) The report and minutes of the 13th August 2007 meeting are at pages 131 - 140 and whilst the other issue, (namely acting up) is discussed I will stick to this distinct point relating to maternity pay for the moment.

(xvii) At page 138 under Manager Report item 1 it reads:

Letter received from Richenda Re: Maternity J Clarke and F Hanna looked at this. Information given to Richenda from Peninsula

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Proposed - Check what was paid on last maternity leave & pay same again. Letter to be given

It was proposed by J Clarke and seconded by D Kennan

(xviii) I find it rather odd given the surroundings and nature of a board of directors at a credit union that if as Mrs. Hanna had stated Mrs. Clarke was adamant that Mrs. McAleenan would only be paid statutory maternity pay and if as the Claimant asserts the board forced a reversal of Mrs. Clarke’s position, then why is it that Mrs. Clarke proposed that Mrs. McAleenan received the same pay as before, I don’t think this action supports the Claimants version of events in any way.

(xix) The simple question to be asked is why would this very clear entry be made if Mrs. Hanna had informed the board as she alleges she did, this was the very question raised by Mrs. Clarke in her witness statement at para 7 page 13 of the statements bundle, [last sentence of the paragraph]

(xx) The Claimant raises the issue that Janet Clarke was informed to provide herwith a letter, page 9 of the bundle item 11.1 sentence starting 10 lines from the bottom,
‘The directors told Janet on 13th August 2007 to inform me with a memo the next day, the 14th August 2007 that I would receive full pay” this is simply factually wrong,as can be seen from the entry on page 138.

(xxi) Mrs. McAleenan was subsequently informed of the decision to pay her full maternity pay whilst off by Mrs. Hanna and Mrs. McAleenan did in fact receive full pay whilst she was off.

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(xxii) On the balance of probabilities based upon the evidence available to the tribunal it is clear that Mrs. Hanna did not tell the board about Mrs. McAleenan’s previous maternity entitlements that contact was made with Peninsula, that Mrs. Clarke was not the driving force behind the letter, it was simply providing information as received, the position was corrected once full information was received, and Mrs. McAleenan’s position in relation to Mrs. Clarke is misconceived and wrong, and this episode does not in any way support the Claimants contention of “bad blood” or an unseemly clime down by Mrs. Clarke.

5.6 THE ISSUE OF RETURNING TO WORK AFTER MATERNITY LEAVE

(i) The main issue to consider in under this part of the complaint can be summarized as follows, an employee is entitled to return from leave to the job in which she was employed before her absence or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.

(ii) Obviously the starting point therefore must be to ascertain from the evidence before the Tribunal the job Mrs. McAleenan was in prior to her maternity leave.

(iii) The Respondents provided a contract which is within the bundle at pages74-76 and a handbook at pages 77 – 112, the claimant produced a contract which is referred to a C 2, and there was evidence provided to the tribunal which set out that Mrs. McAleenan was employed as a Loans Officer and this is not disputed, neither is Mrs. McAleenan’s description of her day to day duties.

(iv) The Claimant also acted up when the manager Mrs. Hanna was not in work prior to her maternity leave and this is not disputed. After the

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manager, the Claimant was the most senior employee employed by the Ballynahinch Credit Union (SCU), again this is not disputed.

(v) In August of 2007, Mrs. Hanna had provided the BoD with an acting up rota page 133, which reads, “When Richenda is on Maternity leave Nicola should take over the role of Officer in Charge. If I am off on holiday this would mean that Nicola would have to come in to work on a Thursday which is her normal day off”

(vi) Initially the Respondents contend that this is the first time anything has been provided as evidence before the Tribunal, which deals with cover in relation to Mrs. McAleenan’s maternity leave and the very existence of this document is unsupportive of Mrs. Hanna’s contentions of providing notice to the BoD prior to August 2007.

(vii) Secondly this was a request for authority and guidance from the BoD by the manager, Mrs. Hanna had day to day control of the employees and accordingly on page 139 at item 10 it reads, “Staff in charge when manager off.- Rota Agreed, proposed J Clarke seconded P Davey.

(viii) The simple question is what effect if any did this acceptance of the managers suggested rota have on the contract of Mrs. McAleenan? The answer must be none! In the evidence before the Tribunal Mrs. McAleenan stated she did not go to the BoD meetings, so she had no part in this decision and unless told by others would have been unaware of the decision and the rota.

(ix) Whilst the rota is referred to in Mrs. McAleenan’s statement it has not been argued that this was in fact a change to any terms of Mrs.
McAleenan’s contract, or implied into her contract in any way and
accordingly could not be relied upon in any way by the Claimant.

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(x) There has been an argument put forwarded that there is a term implied by custom and practice in the employees contracts that the next senior employee would automatically act up, but if that were the case I would ask the following question, why would the manager need to produce a rota of any description for approval by the board, everyone would know or should at least be assumed to know who acted up and when in that case this rota would be manifestly redundant, which it obviously was not!

(xi) The Respondents have argued throughout this matter that it was their belief that it was the manager who would chose who acted up, para 3, 11, 15, 16, 17, 19 & 20 of the statement of Mrs. Clarke and para 3 of Mrs. McCarten’s statement put this issue forward and whilst the manager may use the next senior employee as a basis for such a choice, based upon the evidence before the tribunal and the balance of probabilities’ there is simply no viable business reason tO imply such a term as — the most senior employee will automatically act up in the absence of the manager — into Mrs. McAleenan’s contract and this is a very important point in this matter.

(xii) The question then to be asked in this rather confusing issue is what is disputed? The Respondents have made an admission within the hearing in relation to payments of the acting up additional pay to the Claimant and this will be discussed shortly. Mrs. McAleenan acted up prior to going on maternity leave, and it is accepted Mrs. McAleenan acted up on returning from maternity leave; (although she did not get paid at that time), the basis of Mrs. McAleenan’s argument seems to me to be as follows:

(xiii) As there was a custom and practice that the most senior employee acted up in the manager’s absence, why when Mrs. McAleenan returned from maternity leave was this status quo seemingly reversed? This status quo had been reflected in the rota provided by Mrs. Hanna on 13th August 2007. Mrs. McAleenan alleges that the reversal was for a reason related

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to pregnancy and or childbirth and or maternity leave because Mrs. Clarke stopped her acting up and proposed to reverse the existing status quo with the support of the BoD.

(xiv) The Respondents contend that what occurred was not a reversal of the status quo and simply the result of confusion, and poor management which resulted in a mistake being made. Mrs. Clarke did not stop Mrs. McAleenan acting up, the decisions were based on the information available.

(xv) Mrs. McAleenan also states that this ‘failure to allow her to act up’ resulted
in a detriment, namely loss of stature and a financial loss. The Respondents say there even if there was a refusal to allow Mrs. McAleenan to act up there was no determinant suffered by Mrs. McAleenan as this was simply a mistake which has now been corrected.

(xvi) In order to consider these conflicting views of what occurred I believe it will I be helpful to consider the events, together with the evidence in a chronological fashion.

(a) Mrs. McAleenan goes off on maternity leave on l October 2007 (paragraph 8 of her witness statement)

(b) In or around Easter week 2008 (Good Friday 21st March 2008) (paragraph 18 of Mrs. Hanna’s statement) the manager Mrs. Hanna goes off on sickness absence and returns 17th June 2008
(Paragraph 18 Mrs. McAleenan’s statement)

(d) Mrs. McAleenan says that on the 8^th May 2008 “Janet Clarke told
me that I was unable to act up in Fiona’s absence because I was

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just back from maternity leave and I would not know what I was doing. Janet said that I would not be aware of all the changes made within the office and it was best for Nicola bell to act up in the manger’s absence”

(e) Mrs. Clarke accepts that a conversation took place, but denies that she made the comments as alleged, but cannot remember precisely what was said in the conversation.

(f) Mrs. Clarke also mentioned that she believed when Mrs. McAleenan had in fact returned to work she had done so on reduced hours, and it is clear this evidence that this caused some confusion.

(g) This point is referred to in paragraph 16 of Mrs. Clarke’s statement. [page 14 of the statement bundle]
Mrs. McAleenan in her rebuttal statement, which is preferenced with “I provide the following statement in reply to the statement of Mrs. Betty McCarten and Janet Clarke served by the Respondents in these proceedings” refers to para 16 at para 18 of her statement, where she says:

“I was working 31.25 hours before I went on maternity leave and I
returned to work 31.25 hours. I do not see the relevance of this
evidence.” Mrs. McAleenan had also had the bundle of documents for a considerable time, yet does not challenge the reduced hours given to the board by Mrs. Hanna at page 146 and so this evidence must be considered uncontested. Clearly there is a difference between what Mrs. McAleenan believed she was working and the hours provided by Mrs. Hanna to

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the board of directors on page 146 prior to the return of Mrs. McAleenan.

The tribunal is pointed to, (and was taken to) page 146 in the bundle, which is a manager’s report prepared by Mrs. Hanna, (who was seeking additional staff) and it can clearly be seen in the 1st tabulated box, at the second entry Richenda, and her hours are clearly reduced on Monday, Tuesday, Wednesday, from the hours given in the managers report of August 2007, page 134 in the bundle 3rd entry show Richenda hours, clearly just on the facts confusion can be seen.

The information before the board of directors states Richenda is working 27.75 hours whilst Richenda states she is working 31.25 hours.

(h) A board meeting was held on 12°’ May 2008, (minutes at pages 153— 156) and in this meeting at page 156 entry 5 under Any Other Business it reads:

“Richenda to act up when Nicola is off whilst Fiona is on sick leave

P. J Clarke S. A Ferris

The Tribunal is asked to consider the relevance of the meeting on 12°’ May 2008 especially item Son page 156, in light of the entirety of the evidence before it including Mrs. Clarke, Mrs. McCarten, and Mrs. McAleenan and specifically the hours or work provided by Mrs. Hanna at various times recorded on pages 134 and 146 in the bundle when deciding whether this order of the board could in fact

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be seen or was in fact a demotion of Mrs. McAleenan as she has alleged.

I would argue that the assertion by the Claimant that this was in fact
a demotion is wrong, when considered in the round it is simply a
response to the situation as the board saw it absent any guidance
from the manager who was unfortunately off on sick leave at this
time.

(i) Mrs. McAleenan then states in paragraph 13 of her statement that she was told by Donna Russell that Betty McCarten had told Donna Russell, “That at the board meeting of May 2008 Janet informed the Directors that I (Mrs. McAleenan) would not be able to act up in the manager’s absence as I (Mrs. McAleenan) was just back from maternity leave, wouldn’t know what was going on and therefore I (Mrs. McAleenan) would not be capable of acting up.

In Donna Russell’s statement at paragraph 7 pages 10 /11 she states, “I recall a conversation with Betty McCarten, who was a member of the Board of Directors for the credit Union that Janet Clarke had told the Board that Richenda was not capable of acting up in the position of manager since she had been off on maternity leave. Betty also told me that Janet had said that both Richenda and Nicola agreed to these arrangements.

In response to this Betty McCarten has stated in para 5 of her statement at page 17 “I said that Janet had said that both Richenda and Nicola had agreed that Richenda would act up on the days Nicola was off’

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In para 6 Betty McCarten says, :I remember asking Donna Russell to explain what I was supposed to have said to her about the remarks made by Janet in relation to Mrs. McAleenan’s capability, Donna replied at the meeting that she could not remember what I had said.

What exists here when considering the oral evidence which for the Claimant is second hand at best and the oral evidence of the Respondents who had difficulty in remembering exactly what had occurred is a complete confusion, one says this and the other says that, the only fact that can be verified is what was recorded in the minutes of the meeting of 12th May 2008, and that is item 5 which has previously been referred to. There is simply no independent corroborative evidence to support Mrs. McAleenan’s version of events, or for that matter the Respondents, but surely the question must be how does the Claimants version of events fit into the surrounding circumstances and the answer is it simply doesn’t.

(j) Mrs. McAleenan raises a grievance on 3Id June 2008 (pg 54) and an external company is appointed to deal with this matter, which I understand is on-going.

(k) Mrs. McAleenan goes off on sickness absence sometime in May / June and returns on 17th June 2008 when Mrs. Hanna returns and Mrs. Hanna has Mrs. McAleenan assisting her in dealing with outstanding matters.

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6. SUBMISSIONS

6.1 There are three points to consider at this juncture, less favourable treatment, detriment and right to return to the same job after maternity leave.

LESS FAVOURABLE TREATMENT

6.2 The Respondents will contend that however regrettable their treatment of the Mrs. McAleenan may have been, there is no discrimination on grounds of sex because a male/ female whose circumstances were the same would have been treated just as badly.

6.3 The Respondents will contend that this approach has received support from comments in cases such as Madarassy v Nomura International plc [2007] IRLR 246 [2007] ICR 867, CA, and in Blundell v Governing Body of St Andrews Catholic Primary School and another [2007] IRLR 652, EAT, to the effect that it can be relevant to consider how the hypothetical male employee in comparable circumstances might have been treated (at least, in cases of less favourable treatment short of dismissal as is the case here.)

6.4 In this case the reason for the treatment of Mrs. McAleenan was a catalogue of circumstances, including the disparate nature of the organization, the over reliance upon the manager Mrs. Hanna to act as the link between the employees and the Board of Directors, the fact that Mrs. Hanna was off on long term sick prior to the return of Mrs. McAleenan the confusion over the hours worked by Mrs. McAIeenan the confusion over the instructions from Mrs Hanna in

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relation to who was acting up and the attempt by the Board of Directors to deal with something they neither had experience or understanding of.

6.5 Clearly, taking all the relevant evidence and circumstances into account it is clear that anyone off for a long period, at the same time as the manager would have been treated exactly the same way and so there can legitimately be no finding of less favourable treatment and consequently no discrimination.

DETRIMENT

6.6 There is a question whether Mrs. McAleenan has suffered a detriment in respect of actions which occurred between the May 2008 and the 17^th June 2008.

6.7 Reference is made to the definition of detriment in Shamoon - v - The Chief Constable of the Royal Ulster Constabulary [2003] ICR
337 HL where it reads at paragraphs 34 & 35 of the speech from
Lord Hope:

“Detriment existed if a reasonable worker would,, or might take the view that the treatment accorded her had in all the circumstances been to her detriment. It is not necessary to demonstrate physical or economic consequence”

6.8 The Respondents contend that in this case taking the circumstances into account, there can be no detriment for the following reasons:

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According to the evidence of Mrs. McAleenan the individual who was acting up could not do the job and at paragraph 13 of her statement (page 4) it reads: “Nicola had to ask for my assistance to complete the work required of her as acting manager”

(ii) Donna Russell at paragraph 5 of her statement (page 10) states “It was assumed that Richenda would therefore act up in the post of Manager during Fiona’s absence” clearly if this comment is to be believed even Mrs. McAleenan’s work colleagues assumed Mrs. McAleenan would be acting up.

(iii) The evidence before the tribunal of the reactions of other staff does not support a diminution in the esteem Mrs. McAleenan was held in, thus countering the central requirement of detriment, namely a diminution a reduction a loss.

(iv) Clearly the staff considered a mistake had been made and this was correct officially corrected when the manager Mrs.
Hanna returned on 17th June 2008.

(v) With the evidence before the tribunal and the
acknowledgement that monies are owed the Respondents contend thatno-detriment has been suffered byMrs McAleenan.

RETURN TO ORIGINAL JOB

6.9 In relation to the right to return to the same job in Blundell v
____ Governing Body of St Andrew’s Roman Catholic Primary School
[2007] IRLR 652, a case concerning a primary school teacher who

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had before her maternity leave been teaching a reception class, and was on her return from maternity leave assigned to teach a year two class, the EAT considered the meaning of ‘the job in which she was employed before her absence’ to which the employee is entitled to return under reg 18. Having noted that reg 2 defines ‘job’ by reference to ‘the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed’, the EAT held that a contract of employment could not define what a job was, and that the nature of a job is much broader than the contract. ‘Capacity’ means more than status, although it can encompass it, and is a functional label, descriptive of the function of the employee. ‘Place’ is also not purely contractual, because it is not subject to the qualification ‘in accordance with the contract of employment’. The meaning of the ‘job’ to which she is entitled to return depends on the level of specificity with which ‘nature’, ‘capacity’ and ‘place’ are addressed, and must ultimately be a question of fact for the employment tribunal to determine. (Paragraph 51 - 57)

6.10 In this case Mrs. McAleenan had prior to her maternity leave been employed as a loans officer, with seniority from 1996, there was nothing in her contract that mentioned acting up.

6.11 Acting up when the manager was off attracted a financial benefit and additional £3.22 but was always at the behest of the Manager, and Mrs. McAleenan had been afforded the chance to act up.

6.12 When Mrs. McAleenan returned she was still employed as a loans officer, with seniority from 1996, and there was still nothing in her contract about acting up.

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6.13 On her return Mrs. McAleenan had still been afforded the chance to act up, but with Mrs. Hanna off sick and considering the knowledge of the Board of Directors at the time in relation to the hours to be worked by Mrs. McAleenan a mistake was made by the Board of - Directors who normally have no control over the staff.

6.14 The Respondents will contend that taking account of the test set out in Blundell, Mrs. McAleenan specifically returned to the job she left prior to her maternity leave as required by law.

7. GRIEVANCE AND CLAIM TO TRIBUNAL

7.1 An issue has arisen in relation to the claim form where the Respondents had sought to challenge the jurisdiction of the claim on the basis of a failure to follow the statutory procedures.

7.2 It was clear from the evidence that there was in fact knowledge of the grievance existed prior to the response being returned but still the objection was allowed to continue and did so even at a CMD in December 2008.

7.3 It is respectfully submitted that this issue is a red herring, the point was never pressed, no application was made, and with Mrs. McAleenan’s advisors being sure of their knowledge of procedure, there was it is submitted no stress that could or should have been passed to Mrs. McAleenan.

7.4 Once the bundle with all the evidence was provided and a copy of the grievance seen the point was conceded on behalf of the Respondents, which brought the issue to a close.

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8. REMEDIES

8.1 During the course of the hearing the Respondents accepted that Mrs. McAleenan was owed the money as had the errors, or as Mrs. McCarten described it, “human error” not occurred Mrs. McAleenan would have been paid. There was evidence in the emails referred to by Mrs. McCarten [pgs 162— 180] that extra hours had been worked by Mrs. McAleenan but simply not paid, effectively an administration error, together with the effect of Mrs. McAleenan’s sickness absence.

8.2 The remaining issue is an injury to feelings award. If the Tribunal considers such an award appropriate The Respondents will contend that based on the evidence before the Tribunal this is an award that should be in the region of £ 2000 [two thousand] to £ 4000 [four thousand] for the following reasons.

(i) There was no deliberate act on the part of the Respondents

(ii) Mrs. McAleenan was off sick, but no medical evidence has been provided to support the reasons for this absence, without evidence to support the assertion that it was work related, then the Tribunal is invited to exercise caution in how far this point goes towards any award

(iii) the period over which this problem occurred is short 31 days

(iv) The evidence provided by Mrs. McAleenan in relation to having to assist Nicola Bell, and everyone expecting Mrs. McAleenan to act up, and Donna Russell simply expecting Mrs. McAleenan to return to the position does not support

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the argument of hurt and humiliation put forward by Mrs. McAleenan in paragraph 17 of her statement.

(v) The allegations relating to the feeling that her value as an employee was diminished are misconceived as Mrs. Hanna the manager who knew her value immediately returned her to her previous position. Whilst there is evidence before the Tribunal relating to the working relationship between Mrs. McAleenan and Mrs. Hanna there is no such evidence relating to the working relationship between Mrs. McAleenan and the Board of Directors.

(vi) In fact the only evidence relating to the working relationship between Mrs. McAleenan and the board of directors states there was an intermittent and infrequent meeting and no effective relationship, so it cannot be diminished if it is not established.

(vii) The assertion that her ability to act up had been diminished in the eyes of Mrs. Clarke is misplaced if the evidence of Mrs. McAleenan is to be believed then Mrs. Clarke did not value her as an employee in any event and again there cannot be a diminution in esteem if the existence of the said esteem has not been established in the first place.
(viii) Finally the Respondents contend that the argument relating to humiliation has not been set out, just stating “has left me humiliated” is simply not enough, there needs to be evidence before the tribunal establishing a pride in the position, in achievements, in status and output and no evidence has been provided to support this point.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McAleenan v Janet Clarke [2009] NIIT 1118_08IT (24 August 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1118_08IT.html Cite as: [2009] NIIT 1118_08IT, [2009] NIIT 1118_8IT

Industrial Tribunals Northern Ireland Decisions