THE INDUSTRIAL TRIBUNALS

CASE REF:	1617/07

CLAIMANT:			Eveline Gordon

RESPONDENT:		Rockport School

DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against on grounds of sex or disability.  However, the claimant was unfairly dismissed.  The tribunal awards the claimant the sum of £56,515.56

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Mrs Madden
			Dr Eakin

Appearances:
The claimant was represented by Suzanne Bradley, Barrister-at-Law, instructed by Jones Cassidy Jones, Solicitors.
The respondent was represented by Mr Randall of Peninsula Business Services Limited.

The Issues

1.	Whether the claimant was discriminated against directly and/or indirectly on grounds of sex and/or disability in the arrangements made for the appointment to the post of Head of the Maths, Science and ICT Faculty.

2.	Whether the claimant was discriminated against on grounds of sex and/or disability in the arrangements made for the appointment to the post of Vice Principal.

3.	Whether the claimant was discriminated against directly and/or indirectly on grounds of sex and/or disability in not being appointed to the post of Vice Principal.  Her principal comparator is the successful candidate Mr Vance.

4.	Whether the claimant was discriminated against directly and/or indirectly on grounds of sex and/or disability in being selected for redundancy.

5.	Whether the claimant was unfairly dismissed by reason of unfair selection for redundancy.  

6.	Whether the respondent has failed to comply with it’s obligations under the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 in failing to have a grievance dealt with without unreasonable delay.

7.	Whether the claimant sustained an unlawful deduction from wages in respect of her sick pay.

8.	In relation to the above matters Ms Bradley clarified that in relation to the claim for disability discrimination the claimant sought to rely on both direct disability discrimination and disability related discrimination.  She further intended to rely on the case of Coleman –v- Attridge Law at the European Court of Justice and the principles therein set out for associative disability. 

9.	Mr Randall confirmed that the respondent accepted that the claimant’s parents for whom the claimant had caring responsibilities, were disabled for the purposes of the Disability Discrimination Act 1995.  

10.	In the course of the hearing, Mr Randall also conceded the claimant’s claim for unlawful deduction from wages for non-payment of full pay for the months of July and August 2007.  The parties agreed the appropriate figure as being £3,198.82 and the tribunal makes an Order for unlawful deduction from wages accordingly.

The facts found

11.	The respondent is a school, with approximately 200 day pupils and boarders in the 3-16 year age group.  The claimant commenced her employment with the respondent in September 1987 as a P5 teacher.  Two years later she was promoted to Head of Mathematics and also took on the role of 11 plus co-ordinator.  In 1998 she was promoted to Director of Studies with the Senior School and became a member of the Senior Management Team (SMT).  Prior to 2005 the SMT consisted of the then Head Mistress Mrs Pentland, the Deputy Head Mr Lomax and three Heads of School, Mrs Price, Ms Mathews and the claimant.

12.	In May 2004, the claimant was asked to act as Head due to the absence of Mrs Pentland through illness.  After Mrs Pentland’s return the claimant was subsequently asked to take up the post of temporary Deputy Head as Mr Lomax had been involved in a serious accident. Mrs Pentland resigned on medical grounds in August 2005.  The claimant had been off work since March 2005 with stress. A new Principal, Ms Osborne, was appointed in August 2005 and the claimant returned to work in September 2005 as Head of Senior School under the direction of the new Principal. 

13.	The tribunal heard evidence from both the claimant and Ms Osborne as to the structure of the school and the morale of the staff.  The tribunal has found as a fact from the evidence heard that morale was very low and the staff were divided.  Ms Osborne formed the view that the management structure of the school was ineffective and that there was a lack of leadership and direction.

14.	In June 2006 the school issued a document entitled “Taking a Fresh Guard, a strategic review 2007-2011”.  This strategic document referred to the current management of the school and stated –

		“The management of the school presently revolves round the structure of the Senior Management Team, consisting of the Principal and the three Heads of School.  The Governors recognise the need to keep under review the suitability of the structure of the Senior Management Team.  It is desirable in the review period to enlarge this team to include a Deputy Principal.”

15.	In November 2006, Ms Osborne presented a paper to the school governors.  This pointed to under-utilisation of staff, financial constraints on the school, and a need to restructure.  

16. 	On 9 February 2007, Howard Hastings, the Chairman of the Board of Governors wrote to the parents referring to the school’s Strategy Document, “Taking a Fresh Guard”.  He told parents the school would restructure the senior management position by creating a deputy principal post and four new Heads of Faculty. It was anticipated that teaching numbers would reduce as a result.

17.	It is clear that the school was having financial issues. Most of its revenue came from pupil fees.  There were falling pupil numbers which had declined since a peak in 2002.  The greatest overhead was wages and salaries which stood at approximately 75% of the total costs of the respondent.  

18.	A staff meeting was held by Ms Osborne on 12 February 2007.  The claimant was not present as she was off ill at this time. At the staff meeting Ms Osborne informed the staff that she was commencing the first stage of redundancy consultation.  She sought requests for voluntary redundancy.  She also indicated there was to be a change in the management structure of the school.  Ms Osborne informed the staff that the implementation of these proposals would result in a number of redundancies.  She said that a range of criteria would be drawn up within each category of staff.  

19.	The claimant returned to the school on 15 February 2007.  She was informed that another member of staff, Mrs Neill, had made a comment to a junior member of staff.  Mrs Neill advised the junior member of staff that if children asked about teachers getting the sack, she should have told them that the Senior Management Team were the only teachers getting the sack.  The claimant, along with Olga Price and Rosa Mathews, the other members of the Senior Management Team, raised a grievance relating to this comment on 20 February 2007.  On 1 March Ms Osborne wrote to the claimant to say that she would interview the people involved and get back to the claimant when the investigation was complete.  On 4 May 2007, Ms Osborne wrote to the members of the Senior Management Team apologising for the delay in getting back to them on this matter.  She advised the claimant and her colleagues:-

		“I have investigated this matter fully and I am assured that this was a foolish and thoughtless remark and that there had been no intention to offend in any way.  I have spoken to Mrs Neill and she is very sorry for any distress that was caused by this.”

20.	On 16 February 2007, the claimant attended a redundancy consultation meeting with Ms Osborne and Mr Tim Lewis from the Board of Governors.  She was accompanied by her union representative, Mr Langhammer.  At this meeting it was accepted by Mr Lewis that the school had no redundancy policy. The job descriptions for the new posts were not yet available.  The claimant made suggestions at this meeting for areas in which she felt overheads could be reduced and also indicated ways of increasing revenue.

21.	Ms Osborne kept a personal handwritten note of the meeting independently of the main note.  In that handwritten note at the bottom Ms Osborne has recorded the following comment:-

		“Eveline may be sabotaging the recruitment of pupils to the senior school.  She is quite capable of doing this quite deliberately.”

22.	On 21 February 2007, Mr Langhammer on behalf of the members of the SMT, wrote to make comments about the proposed new structure.  He urged the school in the absence of a redundancy policy to use the Teachers Negotiating Committee Policy as school policy.  He warned that the union considered it unwise to proceed with a major restructuring without first having in place a redundancy criteria and reserved comment on the Deputy Principal and Head of Faculty posts until the job descriptions were available.  

23.	A series of consultation meetings were then held with the staff and job descriptions for the new positions were made available.  

24.	On 12 March 2007 the claimant lodged a grievance regarding the criteria for the posts and the events to date.  In the grievance, addressed to Mr Hastings, the claimant stated that there was no written redundancy proposal, no redundancy policy and no offer of alternative employment had been made.  The claimant asserted that the three members of the current Senior Management Team should have been considered as the unit of selection for the post of Deputy Head.  Failing that, they should have formed the unit of selection for the four Faculty Head posts.  

25.	The claimant went on to express disappointment at the criteria chosen for the post of Deputy Head and the four Faculty Head posts.  She maintained they had the effect of excluding her from consideration.

26.	The criterion for the Head of Maths, Science and ICT Faculty (the post in which the claimant had an interest)  included the following selection criteria:-

		1.	Experience of teaching science, maths, home economics or ICT at all 
			levels and abilities including recent experience of GCSE (i.e. within 
			the last three years).

27.	In relation to the post of Vice Principal the claimant complained of the following criteria:-

1.	Recent (within two years) and successful experience of teaching to GCSE.

2.	Experience of teaching in more than one school setting (this criteria was expressed to be both an essential criteria and a desirable criteria).

3.	To be resident on the school site and to be available to provide sleeping-in cover for boarding as required.  

28.	In her grievance letter the claimant contended that the criteria requiring a live-in Deputy Head was an unnecessary requirement for the job and one with which she would be unable to comply. She also complained that the requirement within both the Deputy Head post and the Faculty Head posts for recent experience of teaching GCSE appeared unreasonable and designed to rule her application out.  Finally the requirement for experience in more than one school setting would unnecessarily disadvantage her on grounds of her long service to Rockport and again appeared to be designed to rule out her candidacy.  

29.	On 14 March 2007 Mr Langhammer wrote again to Ms Osborne.  He expressed disappointment at not having received a proposal for the restructuring and redundancies envisaged and remained concerned at the absence of any redundancy policy as a framework for the process.  He also highlighted that the criteria chosen for the post of Deputy Head and the four Faculty Head posts had the effect of excluding the members of the SMT from consideration.  He then comments:

		“Our members have formed the view that the restructuring exercise has been merely a pretext for getting rid of three senior, long serving and loyal members of staff – staff who have contributed significantly in keeping the school “on the rails” during difficult times over the past number of years”.  
	
30.	On 22 March 2007 Ms Osborne wrote to Mr Langhammer. She maintained that having a Deputy Head teacher living on site was not unusual in boarding schools.  She commented that the provision of accommodation was seen as a considerable benefit.  She commented in relation to the issue of experience in more than one school “It is clearly advantageous in any senior post and was expressed as desirable and not essential.  I would like to point out that to my knowledge two members of the Senior Management Team have worked in other schools”.  

31.	On 13 March 2007 the claimant had a car accident and her GP signed her off work with work related stress.  Due to her ill health the claimant was offered the option of having her grievance dealt with in writing rather than having a hearing and she accepted this by letter of 22 March 2007.

32.	The selection process for Heads of Faculty proceeded and appointments were made even though the grievance of the claimant in relation to the criteria was still outstanding.

33.	In an undated letter received from Amanda Small, one of the Board of Governors, the claimant was advised that her grievance had not been upheld.  The claimant was advised of the following matters:-

(a)	A clear redundancy process was being followed although it was accepted that there was no written redundancy policy.  

(b)	Having a Deputy Head teacher living on site was not unusual in boarding schools.  Mrs Small indicated that she did not understand how the criterion would have excluded the claimant.  She went on to say “The provision of a large family house is seen as a considerable benefit”.  

(c)	Mrs Small indicated that the requirement for recent experience of teaching GCSE was necessary as the Deputy Head teacher and Heads of Faculty would be required to teach throughout the school and will be line managers for others teaching GCSE.  She also said that GCSE syllabuses change frequently.  

(d)	Referring to the criteria of experience in more than one school, Mrs Small said “This only referred to the post of Deputy Head and is clearly advantageous in any senior post and was expressed as desirable and not essential”.

34.	The claimant lodged an appeal against this decision by letter dated 17 April 2007.  In the claimant’s appeal letter she made the following points:-

(a)	Redundancy Policy – the claimant alleged that the school were negligent in failing to prepare a redundancy policy 

(b)	The claimant indicated that she remained of the view that the criterion for the posts of Deputy Head and Faculty Head were engineered to ensure she was not able to make application or fairly compete.

(c)	She considered the live-in criterion for Deputy Head to be unfair and pointed to the significant caring duties for her elderly parents.  She stated  “The “live-in” effectively ruled out any potential application I could have made”.

(d)	The criteria for experience in more than one school was, the claimant felt, discriminatory against those with long and varied experience at a single school.  She noted that of the three SMT members affected, she was the only was not to have other experience.

(e)	The claimant contended that the requirement for both the Deputy Head and Faculty Head jobs to have recent experience of teaching GCSE was unfair.  The claimant accepted that teaching to GCSE was not an in itself an unreasonable requirement but that in making it an essential criterion she was automatically ruled out of the competition.

(f)	The claimant said she did not apply for the post of Deputy Head or any of the Faculty Head posts as the criteria had been drawn so narrowly that she was excluded from any of the posts.  

(g)	Finally, the claimant referred to the grievance that she had submitted against the comments made by Mrs Neill in February and said that no response had been made.  She commented that no imperative appears to have been attached to dealing with her grievance in regard to Mrs Neill’s comments.  The claimant then concludes “It is my contention that the SMT was specifically targeted and that this redundancy “process” was a sham”.  

(h)	The claimant then received another letter from a different board member, Mr Hinds, dated 30 April 2007.  This confirmed that the claimant’s appeal had been denied and the grievance decision upheld.  In the body of that letter Mr Hinds made reference to the following matters.  In relation to inappropriate criteria Mr Hinds said that the criteria for the posts of Deputy Head and Heads of Faculty were designed to meet the present and future needs of the school.  He also commented that the criteria for redundancy had been revised and would be issued shortly. Mr Hinds said experience in other schools was useful and it was a common criterion to find for posts for senior teachers and Deputy Head teachers. In relation to GCSE teaching, Mr Hinds said it was an important part of the business of the school and remained an essential criteria.  He said it would certainly remain a requirement for the post of Deputy Head.  

35.	The Faculty Head for Maths, Science and ICT was filled by Mr Reid.  

36.	The Faculty Head for Sport and Personal Development was filled by Gail Holland, the Faculty Head for Humanities was filled by Rhonda Palmer and the Faculty Head for Communications was filled by Michael McKeown.  

37.	The Vice Principal’s post was advertised on 15 May 2007.  It included the following criteria:-

(a)	to be resident on the school site and to be available to provide sleeping-in cover for boarding as required;

(b)	recent (within two years) and successful experience of teaching to GCSE; and

(c)	experience of teaching in more than one school setting (which was expressed as both an essential and desirable criterion).

38.	Ms Osborne was aware of the claimant’s caring responsibilities.  The school had always provided the claimant with the necessary time to deal with her caring obligations. The claimant’s parents lived in Belfast. At the relevant time the claimant lived further from her parent’s home than she would have if she lived on site.

39.	The Principal lived on site and had never been required to carry out boarding duties, nor in the event has the candidate who became Vice Principal. There were other members of staff available and willing to take on boarding duties and also, indeed, to avail of the opportunity to live in the accommodation on site.

40.	The claimant did apply for the Vice Principal post and was shortlisted.

41.	The tribunal during the course of the hearing was provided with a copy of the external advertisement which Ms Osborne had sent to PBS and on which she had made various hand-written notes.  The date of the fax is 18 April 2007.

42.	At the top of the page, Ms Osborne has written “Eveline has now decided to apply.  She is not suitable for the post”.  Ms Osborne also added as an addendum handwritten comments against a number of the criteria.  In particular she notes that the claimant did not have recent experience of teaching to GCSE nor experience of teaching in more than one school setting.  She commented that the claimant did not have high levels of personal and professional integrity, loyalty, discretion and confidentiality, appropriate levels of personal presentation, the ability to inspire others or a well developed sense of humour.  Against the personal quality of “the ability to remain calm under pressure” Ms Osborne has written “she is off with stress!”.

43.	In relation to skills and abilities, Ms Osborne has written “no” against the qualities of ability to develop effective professional relationships with pupils, colleagues and parents, the ability to work as part of a team and provide leadership and the ability to inspire and motivate others.  She felt that the claimant did not display a high level of communication skills in both written and spoken English and did not have a sound knowledge of the Northern Ireland Curriculum.

44.	These comments were made on 18 May 2007.  Interviews for the Vice Principal’s post did not take place until 8 June 2007.  

45.	The selection exercise was broken into various parts.  It consisted of an interview, an in-tray exercise, a presentation in front of staff, time with the children and feedback from pupils.

The Interview Process

46.	The interview panel consisted of Ms Osborne and Board of Governors members Mrs Hutchieson ( a previous Principal of Coleraine High School for Girls), Mr Lewis and Mr Ridley ( a previous Headmaster of Royal Belfast Academic Institution).  

47.	The claimant was not successful at interview.  She was consistently marked behind the successful candidate.  She was also however marked overall behind candidate B, another female.  Overall the claimant came fourth out of six candidates.

48.	There were a number of discrepancies and problems with the interview process. For example;

(a)	The interviewers’ marking sheets were initially not available to the tribunal but subsequently became available.  They had been completed in pencil and showed signs of several alterations.

(b)	Not all the interviewers on their sheets had marked all the questions.  Mr Ridley did not mark the last question at all.  Mr Lewis did not mark question 7 for the successful candidate.

49.		Ms Osborne had last received recruitment training in the 1980s, she was unaware whether Mr Ridley had ever had specific training, she was unaware whether Mr Lewis had any training and believed that Mrs Hutchieson may have had training as Headmistress of Coleraine Girls High School.  

50.	None of the other participants in the selection process had received training in recruitment selection.

The In-tray Exercise

51.	The in-tray exercise required the candidates to respond in writing to a list of ten scenarios.  This was to be completed within a thirty minute slot.  Again there were shortcomings in this process.

			(a)	The time allowed for the completion of the exercise was not monitored 
				in any way.

			(b)	The in-tray exercise was set and marked by Ms Osborne alone.  The 
				other interviewers had no input.

			(c)	No model answers had been prepared in relation to this exercise.

Time with Children

52.	Each candidate was informed on arrival for interview that an additional selection process was to be used.  Each candidate was to be observed spending a half hour slot with the children.  The assessment was to be carried out by two of the teachers in the school.  

53.	The teachers chosen for this assessment by Ms Osborne were Mr McKeown, a member of staff the claimant had previously line managed and Mrs Neill who was the teacher against whom the claimant had lodged a formal grievance in February and which had been upheld in May 2007.

54.	The criteria against which the candidates were to be assessed were drawn up by Ms Osborne and marked by the two teachers.

55.	The assessment forms were again completed in pencil and again alterations had clearly been made to the marking scheme.

56.	There was neither evidence as to how marks had been arrived at nor any marking scheme given to the two teachers concerned.  Some of the amendments and alterations made to the assessment forms appeared to favour the successful candidate and others  favoured the claimant.

Presentation

57.	The candidates were asked to deliver a presentation to two members of staff.  The claimant had line managed both members of staff who were assessing the presentation.  The claimant finished top in this exercise.

58.	The tribunal only heard evidence from Ms Osborne on behalf of the respondent.  She told the tribunal that often the difference in marks between the claimant and the successful candidate were very narrow.  This had much to do with the manner in which answers had been given.  She commented in particular on the successful candidate’s enthusiasm and dynamism which she said were conveyed to the interview panel.
.  
Redundancy Selection

59.	On 23 March 2007 the claimant received the redundancy criteria to be used for the teaching posts.  Excluded from the round of redundancies were the posts of Vice Principal and the recently appointed Heads of Faculty.  There were six criteria.  The claimant objected to five of the six criteria to be used.  In particular she objected to the following criteria:-

			(a)	qualified and recent (within two years) experience in teaching more 
				than one subject in the Rockport curriculum; and 

			(b)	qualified and recent experience (within five years) in teaching 
				across more than one key stage.

	The claimant contended that the inclusion of the word “recent” meant she could not fulfil these criteria.  The claimant also objected to other aspects of the criteria to be used.  

60.	On 11 May 2007 Ms Osborne wrote to the claimant to advise that revised criteria for selection for redundancy had been put forward for consideration.  The revised criteria were:-

			“1.	Ability and experience to meet the curriculum needs of the school.

 2.	Ability to, and recent experience of, teaching across more than one key stage.

 3.	Ability to and recent experience of teaching more than one subject on the Rockport curriculum.”  

61.	On 21 June 2007 the claimant attended a redundancy consultation meeting along with Mr Langhammer, Ms Osborne and Mr Lewis from the Board of Governors.  The claimant was informed that having looked at the curriculum needs of the school it was decided that a maths teacher, an English teacher and 0.5 of an art teacher were surplus to requirements.  The English teacher had been made redundant and the art teacher had gone down to part-time.  The minute of the meeting records:-

		“We had scored the maths staff according to the criteria and unfortunately Eveline’s score was the lowest and her post would therefore be redundant.”

	The minute of the meeting went on to record the following:-

		“The Principal pointed out that there was a vacancy for a playgroup assistant.  Eveline said that she was not qualified for this job and in addition the numbers in the playgroup were uncertain from year to year so she felt the post was not secure.

			Eveline made three points:-

•	That the criteria had not been applied fairly because she had been unable to teach to GCSE because of her management responsibilities.

•	That she had not been offered a P5 post as had the other people who were being made redundant.

•	That the timetable had been issued to the staff without her name on it – she felt she had been deliberately targeted.
	        
			These points were noted.”       

	On 28 June the respondent wrote to the claimant to inform her that she was dismissed by reason of redundancy.	            

Alternative Employment

62.	The claimant in her evidence maintained that two other teachers, Mr Nicholl and Mr Dowling, had been offered a P3 post as part of their redundancy process

63.	The P3 post became available because of the departure at Easter of Mrs Price, another member of the SMT.  

64.	Ms Osborne was questioned as to the circumstances surrounding this post.  Ms Osborne said that she needed someone to cover the P3 class.  She also had an upcoming vacancy in a pre-prep class.  Mrs McKerrow was in the playgroup but was a P3 teacher.  Ms Osborne moved her to P3 to maintain teaching standards and then replaced Mrs McKerrow in the playgroup with an assistant paid on a daily rate.  This then left a vacancy in the playgroup.  

65.	In her evidence Ms Osborne firstly maintained that neither Mr Nicholl nor Mr Dowling were actually offered the P3 post as alternative employment.  She said that Mrs McKerrow was placed in this post.  However, in a letter written to Peninsula Business Services Ms Osborne refers to Mrs McKerrow’s position as a temporary promotion.  Mrs McKerrow was not actually confirmed in the post until 1 September 2007.

66.	Ms Osborne then said that the reason that the claimant would not have been considered for the post was that she was off sick at this time and had not taught that age group.  

67.	A further reason was given in the respondent’s response to the claimant’s claim. It was there stated that the claimant was not offered  the position offered to the two male teachers because she had applied for the Vice Principal’s post, and, if successful, there would be no need for the alternative post.

68.	Ms Osborne’s evidence on this matter was not compelling and at times was evasive.  On the balance of probabilities the tribunal concludes that the P3 post was offered to Mr Nicholl and Mr Dowling as alternative employment and that Mrs McKerrow was not placed in the position permanently until 1 September 2007. The post was available to be offered to the claimant.     

Playgroup Post

69.	The claimant was offered the playgroup post referred to above at her redundancy consultation meeting on 21 June. A newsletter from the school had been mailed to parents on the same day confirming that Mrs McClimond (the playgroup assistant in situ) would be the playgroup assistant for September 2007.  Ms Osborne in evidence was not able to give any explanation for why this information was placed in the newsletter.  She did however say that if the claimant had wanted the post, she would have got it.  However, earlier in her evidence Ms Osborne had said that in the playgroup the school needed someone who had already been vetted to the more stringent police checks for that age group.  The school needed someone in post who had been checked and Mrs McClimond had been checked.  The claimant had not.  

70.	When the claimant attended for her redundancy consultation meeting on 21 June, she discovered that staff timetables had already been issued for September.  The allocation of teaching periods was on display in the staff room.  The claimant was not included on the teaching timetable.

Redundancy marking scheme

71.	Ms Osborne conducted the redundancy marking process.  There was no rationale of how the marking system was applied.  There is no explanation of how individual marks were arrived at or indeed what marking options there were.  There was no information as to what exactly was taken into account in arriving at the marks.

72.	The claimant was not consulted regarding the scoring against the criteria nor was she advised of how the scoring had been conducted.

73.	The criteria against which the claimant was scored were different to the criteria advised to the staff on 11 May 2007.

74.	Mr Moody and the claimant were the two teachers at risk in the Maths Department.  In the first criterion “Ability and recent experience to teach what the curriculum demands”, Mr Moody obtained ten and the claimant five marks.  Ms Osborne explained that this was because Mr Moody taught both maths and additional maths and also taught more than one key stage.  The claimant taught maths and 11 plus.  Ms Osborne did not explain how she distinguished between the areas. Ms Osborne said that Mr Moody could teach more than one key stage and could teach to GCSE.  

75.	In relation to the second criterion “Ability and recent experience to teach cross more than one key stage”, Ms Osborne accepted that the claimant had the ability and previous experience of teaching over more than one key stage, but that she was marked down because this experience was not recent.  

76. 	The claimant and Mr Moody got equal marks for the third criterion “Ability and recent experience to teach more than one subject on the Rockport curriculum”.

77.	The claimant appealed her selection for redundancy to Mr Marshall, another member of the Board of Governors, on 4 July 2007.  Mr Marshall responded on behalf of the school on 26 October 2007.  However, the response made by Mr Marshall is identical (except for one word) to a file note prepared by Ms Osborne.  Ms Osborne in evidence could not provide any details as to how, when or in what circumstances the file note was created.  She did however accept that it was identical to the letter sent by Mr Marshall to the claimant refusing the appeal.   The  tribunal concludes that Mrs Osborne drafted the appeal letter.

The Law

78.	Under the terms of the Sex Discrimination (Northern Ireland) Order 1976 discrimination on the grounds of sex is unlawful.  

79.	Article 3 of Sex Discrimination Order provides:-

	“3.  (1)	 In any circumstances relevant for the purposes of any provision of 
			this order, other than a provision to which paragraph (2) applies, a 
			person discriminates against a woman if – 

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

	(b)	he applies to her a requirement or condition which he applies or would apply equally to a man, but –

	(i)	which is such that the proportion of women who can 
			comply with it is considerably smaller than the proportion 
			of men who can comply with it,.

	(ii)	which he cannot show to be justifiable irrespective of the 
		sex of the person to whom it is applied, and

		(iii)	which is to her detriment because she cannot comply 
			with it.

	     (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 grounds of her sex, he treats her less favourably than he treats or would treat a man, or

	(b)	he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but –

	(i)	which puts or would put women at a particular 
		disadvantage when compared with men,

	(ii)	which puts her at that disadvantage, and,

	(iii)	which he cannot show to be a proportionate means of 
		achieving a legitimate aim.”

	Article 8 of the same Order provides:-

			8(1)	It is unlawful for a person, in relation to employment by him at an 
				establishment in Northern Ireland, to discriminate against a woman – 

				(a)	in the arrangements he makes for the purpose of determining 
					who should be offered that employment, or

				(b)	in the terms on which he offers her that employment, or
				(c)	by refusing or deliberately omitting to offer her that 
					employment.

			(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.

80.	The definition of discrimination on grounds of disability is contained in the Disability Discrimination Act 1995.

81.	In so far as is relevant the Disability Discrimination Act 1995 provides:

	“	3A(5)	A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities are the same as, or not materially different from, those of the disabled person.”

	Section 4 provides:-

		“4(1)	It is unlawful for an employer to discriminate against a disabled 
			person—
 
			(a)	in the arrangements which he makes for the purpose of 
				determining to whom he should offer employment;
 
			(b)	in the terms on which he offers that person employment; or
 
			(c)	by refusing to offer, or deliberately not offering him, 
				employment.

		(2)	It is unlawful for an employer to discriminate against a disabled 
			person, whom he employs—

			(a) 	in the terms of employment which he affords him;
 
			(b) 	in the opportunities which he affords him for promotion, a 
				transfer, training or receiving any other benefit;
 
			(c) 	by refusing to afford him, or deliberately not affording him, any
				such opportunity; or

			(d) 	by dismissing him, or subjecting him to any other detriment.”

82.	In the case of Coleman –v- EBR Attridge Law, the European Court of Justice held that the prohibition of direct discrimination and of harassment laid down in the EC Equal Treatment Framework Directive (No 2000/78) is not limited to people who are themselves disabled.  The Court held that where the person who is subject to discrimination on the ground of disability is not herself disabled, the fact remains that it is the disability which is the ground for the less favourable treatment which she claims to have suffered.    

83.	The case was returned to the Employment Tribunal in England which ruled (case number 2303745/2005) that it is possible to construe the DDA so as to accord with the directive by interpolating in the DDA the phrase “or a person associated with a disabled person” in the appropriate places in the statutory definitions of direct discrimination and harassment.

Unfair Dismissal

84.	Under the terms of the Employment Rights Order Northern Ireland 1996 (ERO) an employee has a right not to be unfairly dismissed by his or her employer.  In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal.  Potentially fair reasons include, under Article 130(2)(c), that the employee was redundant.

85.	Article 130(4) provides as follows:-

	“Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— 
	
	(a)	depends on whether in the circumstances (including the size and 
			administrative resources of the employer's undertaking) the employer 
			acted reasonably or unreasonably in treating it as a sufficient reason 
			for dismissing the employee, and

	(b)	shall be determined in accordance with equity and the substantial 
			merits of the case.”

86.	The Employment Appeal Tribunal in Williams –v- Compair Maxam Ltd [1982] ICR156 listed the principles which reasonable employers adopt when dismissing for redundancy.  The tribunal stressed that these are not principles of law but standards of behaviour.

(a)	The employer should seek to give as much warning as possible of impending redundancies.

(b)	Consult with the union (where applicable) and seek to agree the criteria to be applied in selecting employees to be made redundant.  When a selection has been made the employer will consider whether the selection has been made in accordance with the criteria.

(c)	The employer should seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency of the job, experience, or length of service.  

(d)	The employer will seek to ensure the selection is made fairly in accordance with the criteria and will consider any representations made as to such selection.  

(e)	The employer will seek to see whether instead of dismissing an employee he could offer him or her alternative employment.

87.	The fairness of a dismissal for redundancy should be judged not simply on the date on which notice is given but also with regard to events up to the date on which it takes effect.  Therefore, if a suitable vacancy arises during the notice period, it should be offered to the otherwise redundant employee.  

88.	In the case of Polkey –v- AE Dayton Services Limited [1988] ICR 142, Lord Bridge said:

		“In the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”

89.	It is for the applicant to make out their case for discrimination based on sex or disability.  Article 63A of the SDO provides:-

	“(2)	Where, on the hearing of a complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the 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 a 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, is not to be treated as having committed, that act.”

	Guidance on how to apply the burden of proof is provided by the Court of Appeal in the case of Igen Ltd -v- Wong [2005] EWCA Civ 142.  The Court of Appeal in Igen pointed to a two stage test.  The claimant must firstly show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination.  Once the tribunal has so concluded the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination. 

90.	In the English Court of Appeal decision Madarassy –v- Nomura International Plc [2007] IRLR246 Lord Justice Mummery said:-

		“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 Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it.”

	In the case of Laing –v- Manchester City Council [2006] IRLR748, Mr Justice Elias said:-

		“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter.  It is not improper for a tribunal to say, in effect “there is a neat question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.”

91.	In the recent decision of a Northern Ireland Court of Appeal in the case of Nelson –v- Newry & Mourne District Council [2009] NICA24 Lord Justice Girvan referred to the Court of Appeal’s decision in Madarassy and went on to say:-

		“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] NICA8 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.”

Tribunal’s Conclusions

Disability Discrimination

92.	The claimant maintains that she has been discriminated against on grounds of disability in the arrangements for determining who would be offered the Vice Principal’s post and the Head of Faculty posts and the refusal of the respondent to offer her employment in those posts.  The issue in relation to disability discrimination centred on the requirement in the criteria for the position of Vice Principal that the Vice Principal was required to live-in on site.  The claimant’s case was that this would have been prejudicial to her ability to deal with her disabled parents.  She would not be able to respond to an emergency.  The tribunal has carefully considered the Burden of Proof Regulations and determines that it is not appropriate to shift the burden of proof for disability discrimination in this case.  This is for the following reasons:

(a)	The school were aware of the claimant’s caring responsibilities for her parents and had facilitated these in the past.  

(b)	The requirement for the Vice Principal post was to live on site.  Whilst there was reference to boarding duties, the tribunal has found as a fact that no such boarding duties were required.  The Principal had never been required to sleep in with the boarders although she also lived on site nor had the successful candidate for the Vice Principal’s position.  

	(c)	There were other members of staff available to fulfil the boarding duties.

(d)	Living at the school would in fact have brought the claimant closer to her parents in Belfast.  The claimant did not live with her parents at the time.

(e)	The opportunity to live on site was regarded as a perk rather than as a chore by most of those applying.  The tribunal accepted evidence that other members of staff wished to avail of the live-in opportunity.

(f)	Despite the criteria the claimant did apply for the post and was shortlisted for interview.  There was no reference to the live-in requirement as a factor in the decision made for appointment.

In these circumstances the tribunal does not need to assess whether or not the Coleman decision has an application beyond claims for direct discrimination or harassment.  The claimant’s claims for disability discrimination and disability related discrimination are dismissed.      

Sex Discrimination

93.	The tribunal heard extensive evidence about the sequence of events leading up to the claimant’s eventual dismissal by the respondent.  

94.	It is abundantly clear from the evidence the tribunal has heard that there were substantial shortcomings in the processes by which the appointments to the Heads of Faculty and more particular the Vice Principal were conducted.  It is clear that Ms Osborne, the school Principal, had a pivotal role in all matters surrounding the claimant.  She drafted the criteria for the Heads of Faculty posts and the Vice Principal’s post.  The tribunal can only conclude that it must have been readily apparent to Ms Osborne that the criteria she drafted would exclude the claimant from applying for the posts.  In relation to the Heads of Faculty post, there was a requirement for recent experience of teaching GCSE.  In her evidence Ms Osborne said that she considered the claimant should have applied for the post despite the fact that clearly the claimant could not comply with the criteria.

95.	Ms Osborne’s evidence on this area was evasive and at times contradictory.  For example, Ms Osborne in her evidence told the tribunal that she considered that the claimant had experience of teaching to GCSE in the assistance she had provided to Mr Moody and Mr Nicholl.  However, this conflicts entirely with the handwritten note she made on the Vice Principal’s criteria in May 2007 where she records against the criteria of “recent (within two years) and successful experience of teaching to GCSE” - “Eveline does not have this”. 

96.	In setting out the Vice Principal’s position the process was again flawed.  The criteria expressly excluded the claimant despite her grievance to that effect.  The marking of the interview assessment sheets was carried out in pencil and the original document showed evidence of a considerable amount of adjustment and alteration.  The tribunal did not hear from the other panel members and was unable to gain any satisfactory explanation for why, for example, some questions were not marked by individual panellists.  There were no objective criteria or model answers against which the in-tray exercise was marked.  The in-tray exercise was conceived of, drafted and marked by Ms Osborne.  The in-class assessment was conducted, at least in part, by a member of staff against whom the claimant had taken a grievance and was an individual of whom Ms Osborne commented in her evidence “she quite often got the wrong end of the stick”.  

97.	In assessing this evidence and in finding its facts the tribunal directed itself to the Burden of Proof Regulations, and to the case law which has been set out earlier in this decision.  In particular, the tribunal directed itself to the recent Northern Ireland Court of Appeal decisions of Curley and Nelson.

98.	The tribunal finds in this case that there is no transfer of the burden of proof on the basis of either direct or indirect sex discrimination. 

99.	In reaching this conclusion, the tribunal is mindful of the guidance given in the line of authorities from Madarassy and Laing through to Curley and Nelson.  The tribunal considered the context of the surrounding evidence.  In this regard the tribunal had the advantage of seeing and hearing both the claimant and Ms Osborne in giving their evidence.  

100.	It is clear that there was a considerable antipathy between the two individuals.  Much of this was directed by Ms Osborne against the claimant and, to a lesser extent, the other members of the senior management team.  On the basis of the facts as found the tribunal concludes that shortly after taking over as Principal, Ms Osborne formed a view that a restructuring of the school was required and that a part of that restructuring was the removal of the senior management team. 

101.	Mrs Neill, a staff room representative, made comments to this effect to another junior school teacher.  The tribunal has already referred to the comments written by Ms Osborne relating to the claimant on a copy of the job criteria for the Vice Principal’s post.  In her note of the meeting with the claimant and Mr Langhammer, Ms Osborne has recorded “Eveline may be sabotaging the recruitment of pupils to the senior school.  She is quite capable of doing this quite deliberately”.

102.	The tribunal observed the demeanour of both Ms Osborne and the claimant at the hearing.  There was clear antipathy between the individuals.  

103.	In giving her evidence Ms Osborne was asked why she did not draw any of the issues or her concerns relating to the claimant, to the claimant’s attention.  Ms Osborne’s reply was in general terms to say such engagement was pointless.  The tribunal concludes that Ms Osborne considered any such engagement as pointless because she had already made up her mind that the claimant was not going to remain at the school.

104.	The tribunal however does not believe that the treatment of the claimant was tainted by sex discrimination.  The tribunal does not feel that inferences should be drawn from the evidence heard and the facts found.  The tribunal has also borne in mind that the alleged perpetrator of the sex discrimination is herself a woman.

105.	For these reasons the claims of direct and indirect sex discrimination relating to the Heads of Faculty post, the Vice Principal’s post and the redundancy selection process are dismissed.

The redundancy process

106.	The tribunal accepts that the school was facing financial difficulties and also that there was a need for a restructuring exercise.  The tribunal accepts that there was a redundancy situation in the respondent’s business.  However, for many of the reasons already expressed, the tribunal determines that the Principal, Ms Osborne, who was effectively in control of the redundancy process from start to finish, had already decided that the claimant was to leave the school.  The tribunal finds that the redundancy process was flawed in the following respects:-

(1)	The claimant was never consulted regarding the criteria that were drafted.  She expressed her concerns in a grievance and the elements affecting her were not modified.  

(2)	The criteria that were applied were based on the subjective assessment of Ms Osborne as to necessary criteria. 

(3)	Ms Osborne had already recorded her views on the claimant.

(4)	The redundancy criteria were scored solely by Ms Osborne.  

(5)	The criteria against which Ms Osborne scored the claimant were not the criteria advised to the claimant.

(6)	The claimant had no opportunity to address or challenge the scoring adopted.  

(7)	There was no clear marking or scoring scheme and no clear or satisfactory explanation for why marks were awarded as against the claimant and Mr Mooney as they were.

(8)	There was no serious consideration given to providing alternative employment.  There was inconsistent evidence given regarding the circumstance of who were offered the P3 post.  Ms Osborne in her evidence attempted to assert that Mr Dowling and Mr Nicholl had not been offered the post but had simply been made aware of it.  This conflicts with the information provided by the respondent in their response to the claimant’s claim and with the replies to the Statutory Questionnaire when it was specifically accepted that Mr Dowling and Mr Nicholl had been offered a P3 post.  The individual who held that post was not in fact confirmed by contract until 1 September 2009, the following school year.  The tribunal also finds that the playgroup assistant post which was suggested to the claimant at her redundancy consultation meeting, had already effectively been filled and was not a genuine offer.

107.	For the above reasons the tribunal concludes that the redundancy exercise in relation to the claimant was a sham exercise, down to and including the claimant’s appeal against the redundancy decision which was purportedly conducted by Mr Marshall from the Board of Governors but was in fact drafted by Ms Osborne.  In those circumstances the tribunal concludes that the claimant has been unfairly dismissed.

The Grievance

108.	The claimant lodged her first grievance on the 20 February 2007. Ms Osborne acknowledged it on the 1 March and informed the claimant an investigation would be conducted. A decision was sent to the claimant on 4 May 2007. During this period of some two months the claimant was off work for a substantial period, she had made a further grievance which was dealt with promptly, and the respondent was dealing with the restructuring of the senior teaching positions. The tribunal does not consider the delay in dealing with the claimant’s grievance was unreasonable in the circumstances.

Compensation

109.	As has been recorded in the findings of fact, the respondent has accepted that there was non-payment of pay to the claimant in the months of July and August 2007 in the agreed sum of £3,198.82 and the tribunal makes an award accordingly.

110.	The parties also were able to agree the calculations for the basis of a schedule of loss.

111.	Loss of earnings were based on two potential calculations – one on the claimant’s earnings at the time of her dismissal or alternatively on the basis of the salary she would have obtained as Vice Principal.  As is clear from our decision, the appropriate rate at which compensation should be calculated were the claimant’s earnings at the time of her dismissal.  The agreed loss to the claimant to the date of tribunal hearing is £27,602.46 including the sum of £2,969.90 paid to the claimant by way of state benefits.

112.	Pension loss has also been agreed in the sum of £7,239.74.  The tribunal has to consider any future loss accruing to Mrs Gordon.  The parties had agreed a computation but not agreed the period of future loss.  The claimant sought two years which the respondent felt was disproportionate.  The tribunal has concluded that the appropriate period for future loss is one year and therefore awards the further sum of £18,474.54 based on the agreed figures for two years.           

Recoupement

This award is subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

The attention of the Parties is drawn to the notice below which forms part of this decision.

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

Chairman:

Date and place of hearing:  27-29 April 2009, 1 May, 6-8 May 2009, Belfast

Date decision recorded in register and issued to parties:

Case Ref No: 1617/07

CLAIMANT:	Eveline Gordon

RESPONDENT:	Rockport School

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	56,515.56	
(b)  Prescribed element	27,602.46	
(c)	Period to which (b) relates:
30 June 2007- 27April 2009		
(d)  Excess of (a) over (b)	28,913.10	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.