THE INDUSTRIAL TRIBUNALS

CASE REF:  00682/08

CLAIMANT:			Zara Lennox

RESPONDENTS:		1.  Steven Ross
				2.  Department of Finance and Personnel

DECISION
The unanimous decision of the tribunal is that the claimant’s claim is out of time and in all the circumstances of the case it is not just and equitable to extend time to consider the claimant’s claim.  The claim is therefore dismissed.

Constitution of Tribunal:
Chairman:		Mr S A Crothers
Members:		Mr J Lyttle
			Mrs T Madden

Appearances:
The claimant was not present and was not represented.
The respondents were represented by Mr P Coll, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

BACKGROUND

 1.	(i)	This case was the subject of a number of Case Management Discussions.  The first Case Management Discussion was held on 24 September 2008 when the claimant was represented by Mr John Dallat, MLA.  At a further Case Management Discussion on 4 February 2009, the claimant was again represented by Mr Dallat and the case was timetabled for hearing from 14 – 18 September 2009.  A further Case Management Discussion was held on 15 June 2009.  On this occasion the claimant was represented by Mr M McEvoy, Barrister-at-Law, instructed by the Equality Commission.  The Equality Commission subsequently came off record for the claimant in or about August 2009.  A further Case Management Discussion was held on 7 September 2009.  The claimant was not present and was not represented on that occasion.  However, the record of proceedings was e-mailed to her.  The claimant did not respond in any way to the e-mail.  Correspondence was forwarded to the tribunal by the respondents’ solicitor dated 11 September 2009 which states, inter alia;-

	“I would advise that it has not been possible to agree the bundle with the Claimant.  A draft index was sent to her by email and post but, despite telephone messages and a further email, no response has been received.

	As per my letter to the Tribunal yesterday, in the absence of a response from the Claimant, a bundle was prepared and delivery of same attempted at the Claimant’s home in Coleraine.  However, the delivery person was advised that the Claimant had moved house.  The position remains that we have still had no contact from the Claimant regarding the case”.

	Both the respondents’ solicitors and the tribunal office had attempted to contact the claimant but without success.  

(ii)	Rule 27 of the Industrial Tribunal (Rules of Procedure) 2005 states as follows:-

“(5)	If a party fails to attend or to be represented (for the purposes of conducting the parties’ case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

 (6)	If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.”

	Having carefully considered all of the circumstances, consistent with its overriding objective, the tribunal decided against the background of the claimant’s clear knowledge of the hearing dates, and the absence of any explanation for her non-attendance, that the proceedings should be disposed of and that any information in the tribunal’s possession made available to it by the parties should be considered, including the claimant’s claim to the tribunal, and the claimant’s witness statement contained in a bundle of documentation presented to the tribunal on the respondents’ behalf.

(iii)	The claimant had presented a claim to the tribunal on 13 February 2008.  However, this claim was rejected as the claimant had not raised the subject matter of the complaint in writing to the respondent and waited 28 days prior to presenting her claim to the tribunal office.  The claimant had named Mr John Dallat as a representative in the claim form.  Her claim was subsequently presented to the tribunal on 1 May 2008 and accepted.  

THE CLAIM

 2.	The claimant claimed that she had been discriminated against on the ground of sex by her line manager and that the said line manager subjected her to sexual harassment.  These allegations were denied by the respondents.

ISSUES BEFORE THE TRIBUNAL

 3.	The issues before the tribunal, derived substantively from the Case Management Record of Proceedings dated 24 September 2008, were as follows:-

	(i)	With regard to the complaint of sex discrimination, has the claimant complied with Article 19(4) of the Employment (NI) Order 2003 (“the 2003 Order”) concerning the requirement to set out the grievance in writing and send it to the employer before presenting a complaint to the Industrial Tribunal?

	(ii)	Are the claimant’s claims of sex discrimination and sexual harassment out of time, and if so, should time be extended on a just and equitable basis to admit the claim?

(iii)	Subject to paragraphs (i) and (ii) above, was the claimant the subject of sex discrimination and sexual harassment contrary to the provisions of Article 3(2)(a) and 6A respectively of the Sex Discrimination (Northern Ireland) Order 1976, as amended (“the 1976 Order”)?

	(iv)	Should the answer to issue (iii) be in the affirmative, can the respondent Department rely upon the statutory defence and/or is it liable for those unlawful actions of the line manager?  

FACTUAL ISSUES

 4.	At the Case Management Discussion held on 24 September 2008, the following factual issues were also agreed:-

	(i)	Did the claimant’s line manager specifically request a young female to be brought into the office?

	(ii)	Did an incident occur between the claimant and her line manager in the store room on 30 April 2007?

	(iii)	Was the claimant subjected to bullying and harassment upon her return to work by the line manager?

SOURCES OF EVIDENCE

 5.	The tribunal considered the claimant’s claim form.  It also admitted and read the claimant’s witness statement subject to the appropriate weight to be attached to it in the claimant’s absence.  On the same basis, the tribunal also admitted and read the witness statements of Gillian McCrory, Deputy Principal Statistician, and Jacquie Hyvart, Head of Human Resources for the second-named respondent.  The tribunal heard evidence from the first-named respondent together with, on behalf of the second-named respondent, Walter Stafford, Deputy Principal in Corporate Services, Gerard McGrath, Staff Officer, Naomi O’Neill, Assistant Statistician, John McCann, Eilish Murtagh, Deputy Principal Statistician, Deirdre Houston (Staff Officer at the material time), James Anthony McKibben, Head of Corporate Services (Business and Finance) at the material time, Laura Morgan, Acting Staff Officer at the material time, and Lindsey Balmer, Deputy Principal and Equal Opportunities Officer.  The claimant was not present to contradict the oral evidence by way of cross-examination.  The tribunal also raised questions, as appropriate.

PRELIMINARY ISSUES

 6.	(1)	Article 19(4) of the 2003 Order states as follows:-

		“(4)	An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this Article applies if―

		(a)	it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 has been complied with, and 

	(b)	the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint.

	(2)	Regulation 15(1)(b) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the Regulations”), provides that the normal time limit for presenting a complaint listed in Schedules 2 or 3 of the 2003 Order (which includes claims of sex discrimination) is extended for a period of three months in two circumstances set out in Regulation 15(3)(a)(b) as follows:-

		(a)	Where the employee presents a complaint to the tribunal within the normal time limit but has either:-

(i)	failed to send a written grievance to the employer at all; or

			(ii)	has sent the written grievance to the employer but has not waited at least 28 days before presenting a claim to the tribunal or

		(b)	where the employee presents a claim to the tribunal after the expiry of the normal time limit for presenting the complaint, but has sent a written grievance to the employer within that normal time limit.

	(3)	Complaints listed in Schedules 2 and 3 of the 2003 Order must be accepted in the following circumstances:-

		(a)	The complaint has been presented to the tribunal within the normal time limit; and 

		(b)	a written grievance has been sent to the employer within the normal time limit; and 

		(c)	28 days have elapsed between the written grievance being sent to the employer and the complaint being presented to the tribunal; or when 

			(a)	The complaint has been presented to the tribunal outside the normal time limit but within an additional three months; and

		(b)	the written grievance has been sent to the employer within the normal time limit (this should be indicated on the claim form); and

			(c)	28 days have elapsed between the grievance having been sent to the employer and the complaint being presented to the tribunal.

	(4)	Regulation 15(3)(a) of the Regulations allows for an automatic extension of time when the complaint has been presented within the normal time limit but no grievance has been sent to the employer.  This is subject to Article 19(4)(b) (above).  This means that where a complaint has been lodged with the tribunal within the time limit, but rejected because no written grievance has been sent to the employer, the claimant must send the written grievance to the employer within one month of the normal time limit expiring, otherwise any further complaint lodged within the extended time will be rejected.  In practice this means that a claimant in a case, such as the case before this tribunal, has four months to send a written grievance to his employer from the date in which the alleged act was done.  The tribunal also referred to and considered the EAT decision in Bupa Care Homes (BNH) Ltd  v  Cann, Spillett  v  Tesco Stores Ltd, [2006] IRLR 248 where the Employment Appeal Tribunal considered the meaning of the following words in Article 19(a)(b) of the 2003 Order - “the day on which the requirement was complied with was more than one month after the end of the original time limit for making the complaint”, and held that the words “original time limit” for making a complaint is the time limit provided for in the relevant legislation.  Therefore, in a sex discrimination case, for example, this includes giving the tribunal power to consider a complaint made outside the primary limitation period where it is just and equitable to do so.  In those circumstances the claim is not time barred.  The Employment Appeal Tribunal pointed to the distinction between the wording in Article 19(4)(b) of the 2003 Order and the expression “normal time limit” in Regulation 15 of the Regulations, which is defined as running from the end of the primary limitation period only.

	(5)	Article 76 of the 1976 Order, insofar as relevant, states as follows:-

		“Period within which proceedings to be brought.

		   76.―(1)  An industrial tribunal shall not consider a complaint under Article
		63 unless it is presented to the tribunal before the end of

			(a)	the period of three months beginning when the act complained of was done; …..

		   (5)  A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

		   (6)  For the purposes of this Article―

		… 

(b)	any act extending over a period shall be treated as done at the end of that period …

	(6)	In relation to the grievance and out of time issues, the tribunal, made the following findings of fact insofar as same are relevant to those issues:-

		(i)	The claimant’s correspondence to the second-named respondent dated 20 March 2008 states as follows:-

			“Dear Sirs

			For the attention of Mr McKibben

			I have been advised to send a statement of my grievance relating to my absence.

			During the course of my employment from March 2007 to July 2007 I was subjected to harassment and bullying of a nature which I was not used to and was not briefed on what my rights were or what steps I should take to stop it.

			The person who was involved is Mr Steven Ross who made my life extremely difficult and put me through experiences which I was not used to.  Constantly I was referred to as a ‘bimbo’ and highly personal remarks about my body shape were at times the order of the day.

			I now know that this treatment was having a serious impact on my health both physical but particularly mental.  I have no doubt that his remarks were of a sexist nature and made because I am female.

			This abuse brought me to an extremely low point and eventually I went to see my doctor in a highly distressed condition in July.  I was diagnosed with work-related depression which I am still receiving treatment for.

			Eventually I came to the decision that the only solution to this situation was an external move away from this constant source of abuse.  On both occasions that I attended the Occupational Health Service, the doctor present recommended this and unfortunately these have not been acted upon.

			I feel that my plight for help has fallen on deaf ears and no account has been taken of the dreadful experience I have been put through with consequences which I fear have not been fully played out in my mind.”

				The claimant was off work from 6 July 2007.

		(ii)	The claimant commenced employment with the second-named respondent (“the Department”), on 23 March 2007 as an Administrative Assistant.  The first-named respondent was her line manager in an office which included 5 other individuals apart from the claimant and Steven Ross (the first respondent) namely Mrs Murtagh, Mr McGrath, Mr McCann, Mr Shields and Mr Stafford, all of whom sat in close proximity to one another.  It is also clear to the tribunal that the claimant was pressing for a transfer to a location nearer to where she lived within the time framework of these proceedings.  The tribunal also had the benefit of considering medical reports and records discovered on a previous occasion by the Equality Commission for Northern Ireland to the respondents’ solicitors.  The claimant was absent from work between 9 May and 17 June 2007 due to pneumonia.  She returned on 18 June and was absent again from 6 July 2007.  Her General Practitioner notes for that date refer to “Tiredness symptom   went back to work post pneumonia travels to belfast exhausted weepy clinically nad chest clear etc cert 2 weeks vitamins bpc Dr A F Rowe”.  

			There was no evidence before the tribunal that the claimant was diagnosed with work related depression in July.  Apart from an earlier reference in an Occupational Health Report dated 5 September 2007, it appears that the first reference to work difficulties in the General Practitioner’s notes are on 26 October 2007 which read, “Patient reviewed   work difficulties ct to involve union Dr A F Rowe”.  There was a reference to ‘general debility’ in the medical certificates furnished by the claimant’s GP for a considerable time after 6 July 2007.

		(ii)	In paragraph 5.7 of her claim form the claimant states as follows:-

			“THIS WAS MY FIRST JOB AND I WAS NOT MADE AWARE OF COMPLAINTS PROCEDURES BY MY LINE MANAGER OR ANY OTHER MEMBER OF STAFF.  THIS PROCEDURAL INFORMATION WAS WITHHELD FROM ME.  I HAD COMPLAINED VERBALLY TO SENIOR MEMBERS OF STAFF AND THOUGHT AT THE TIME THAT THAT WOULD BE SUFFICIENT.
			I HAVE BEEN OFF WORK ILL WITH WORK-RELATED DEPRESSION AND THIS LACK OF ADVICE FROM THE NICS HAS RENDERED ME HELPLESS.  I ONLY LEARNED ABOUT MY RIGHTS WHEN I WAS ADVISED BY ASSEMBLY MEMBER JOHN DALLAT.”

		(iii)	The tribunal is satisfied that the claimant received Complaints and Procedures documentation from the Department on 25 April 2007.  When it became apparent that the management attendance policy was to be applied to her absence, she raised complaints about harassment verbally with Mrs Irene Fraser from the Department on 12 November 2007 prior to a meeting held on 4 December 2007 involving the first-named respondent, Walter Stafford, and Mr McKibben Head of Corporate Services (Business and Finance).  The preamble to the note of that meeting states as follows:-

			“Preamble

			Deirdre Houston (HR Section, Corporate Services, NISRA) approached me to relay the outcome of a meeting held between Irene Fraser (Employee Support) and Zara Lennox (Finance Section, Corporate Services, NISRA).  The purpose of that meeting had been to clarify what the work related stress issues were that Zara had indicated inhibited her return to work.  Zara raised a number of issues relating to travel arrangements and accusations of offending behaviour from her line manager Steven Ross.

			Zara’s allegations in relation to the latter were:

			●	The use, by Steven, of patronising names i.e. “Bimbo”/”Jemima” in oral and written reference to her.

			●	An occurrence of inappropriate behaviour in which Zara alleges that Steven asked her “to come into a storeroom and then stroked her arm”.  She said that she felt uncomfortable with being asked to go into the store and also alleges that a messenger warned her “not to go anywhere with him (Steven) on her own”.

			Deirdre advised me that Zara wanted these matters raised informally with Steven.  Zara said that she had not raised them in the past because she liked Steven as a manager but is now uncomfortable and offended by the behaviour.  Deirdre asked if I could arrange to talk with Steven about the above two accusations in order to provide input to Irene Fraser’s response to Zara on the work related stress issues raised by her.  I agreed to do this and arranged to meet with Steven and his line Manager Walter Stafford on 4 December.  I explained the reason for the meeting in advance.”

		(iv)	The tribunal is satisfied that the claimant was in a fit condition to liaise with Mr Dallat whom she names as her representative in the initial claim form signed by her on 8 February 2008.  She was also able to articulate a grievance in correspondence to the Department on 20 March 2008.  The claimant did not give explanatory reasons for any delay in presenting her claim form to the tribunal in her written statement.

(v)	Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division T279, as follows:-

			“The discretion to grant an extension of time under the just and equitable formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corpn  v  Keeble, DPP  v  Marshall, above).  Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corpn  v  Keeble [1997] IRLR 336, at para 8).  However, although, in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ (Southwark London Borough  v  Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ).

			When considering whether to grant an extension of time under the ‘just and equitable’ principles, the fault of the claimant is a relevant factor to be taken into account, as it is under s 33 of the Limitation Act (Virdi  v  Comr of Police of the Metropolis [2007] IRLR 24, EAT).  But if it is the claimant’s solicitors who are at fault in presenting the claim, then such fault cannot be laid at the door of the claimant; accordingly, if the solicitors are negligent, the mere fact that the claimant may have a potential claim against them will not justify the refusal of an extension of time (Virdi, apply the principles set out in Steeds  v  Peverel Management Services Ltd [2001] EWCA Civ 419, [2001] All ER (D) 370 (Mar), in relation to an extension under s 33).”

SUBMISSIONS

 7.	The tribunal carefully considered the helpful skeleton submissions submitted by Mr Coll, Barrister-at-Law which were considerably expanded by him in oral submissions before the tribunal.  These written submissions are appended to this decision.  

CONCLUSION

 8.	The tribunal, having carefully considered the evidence insofar as it is relevant to the preliminary issues, and having applied the principles of law to the facts as found concludes, in the absence of oral evidence from the claimant, that the claim ought to have been presented to the tribunal within three months from the date of any alleged incidents, and is therefore out of time.  The tribunal is satisfied that it should not extend time on a just and equitable basis, especially as the reasons for the claimant not submitting a claim earlier is a significant factor which the tribunal is satisfied it must take into account.  The claimant did not attend the hearing to assist the tribunal by giving oral evidence and gave no explanation for her non-attendance despite having known about the hearing date for a considerable time.  Her claim is therefore dismissed.  The other issues before the tribunal do not fall to be considered.

Chairman:

Date and place of hearing:	14 and 15 September 2009, Belfast.

Date decision recorded in register and issued to parties:

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS AND FAIR 
EMPLOYMENT TRIBUNAL

ZARA LENNOX
AND
STEVEN ROSS & DFP
SKELETON ARGUMENT 
ON BEHALF OF THE RESPONDENTS
COUNSEL: PETER COLL 
SOLICITOR: MARY MCDEVITT, DSO 
INTRODUCTION 
1.	The Claimant alleges that she has been subject to sex discrimination/harassment by her ex-line manager, Steven Ross (SR), and further, it is assumed, she would contend that liability in respect of same should also affix to their employer (at relevant time) 
NISRA/DEP. 
2. Both Respondents deny the allegation of sex discrimination/harassment. 
3. Further the DFP, to the extent necessary, relies upon the statutory defence. 
4. There are also a number of preliminary, technical issues which the 
Respondents contend fall against the Claimant and are fatal to the existence of jurisdiction to entertain the Claimant’s claims. [These will be set out at the end of this skeleton]. 
SEX HARASSMENT/DISCRIMINATION 
5. At CMD the Tribunal identified the following main factual issues: 
• Whether SR specifically requested a young female to be brought into the office. 
• Whether an incident occurred between the Claimant and 
   SR in a storeroom on 30th April 2007. 

• Whether SR subjected the Claimant to bullying and harassment on her return to work [in the period 18th June 6th July 20071.
6. The Tribunal has considered the IT1, 1T3, Claimant’s witness statement, oral evidence from 11 witnesses for the Respondent and 2 further witness statements. 
7. In respect of the first factual issue set out above the extent of the evidence in support of the Claimant’s contention is hearsay allegations by the Claimant in her witness statement. 
8. As against that, it is the Respondents case that SR had not made such specific request, and moreover, those identified as having told the Claimant that he had deny same in their uncontradicted evidence before the Tribunal. 
9. On the second issue; the extent of the evidence for the Claimant is her own self-serving evidence in written form, untested. The Tribunal should be very cautious in the weight therefore to be accorded to this given that it is on a central and controversial issue in the case. The more serious the allegation, the higher the level of proof (within the civil standard) required to sustain it. 
10. On the Respondent’s side the following can be said; SR gave uncontradicted evidence that the alleged incident did not occur. The Tribunal did not feel the need to question him on this issue. 
11. Further it can be said that the Claimant failed to mention this alleged incident of inappropriate physical contact to anyone for approximately 7 months, She continued to work with SR for about a further week before going off on sick leave with pneumonia, and then returned to work after c.6 weeks off without comment She didn’t tell her Doctor about this allegation at that time. 
12. In respect of the third allegation the Claimant again simply relies upon her own evidence. More pointedly however she alleges that other named individuals witnessed this. Each of them has given evidence to the Tribunal contradicting this. 
13. The extent of the evidence against SR on this issue is his own admission that he called her Jemima and Miss X Lennox. He has provided the context of same and this points away from harassment. 
14. Moreover the relationship between the Claimant and SR is evidenced as good and open. The Respondents contend that it was perfectly appropriate interaction between two young adults in the modem working environment. 
15. The Tribunal has expressed its own concerns re the email traffic. This was not raised by the Tribunal with SR himself. Moreover the Claimant with the one (unproven) exception of the created character 

email (not disclosed by her) makes no complaint, at any stage, regarding the emails, indeed she actively engaged in the email traffic herself. 
16. Context is everything. 
17. Nothing to suggest SR’s behaviour towards her in this, or any other regard was unwanted, much less untoward. 
Claimant Credibiltv Issues: 
18. Non-attendance at Tribunal. 
19. No corroboration. 
20. Serious delay in raising the issue of harassment 
21. Disciplinary context surrounding the first mention of harassment. 
22. Background issue of seeking Transfer nearer home. 
23. Versions of account given by Claimant: To Irene Frazer, in Grievance letter, in witness statement [eg telling SR to stop & crying in office] 
24. Refusal to cooperate with Equal Opportunities. 
25. Sick lines for post-pneumonia /debility rather than stress etc. 
26. Refusal to return to work on internal transfer in Belfast 
27. Review of Medical evidence telling. See also Industrial Injury Application narrative. 
Statutory Defence: 
28. The Second Respondent contends that to the extent that the First Respondent is liable, it has taken all reasonable steps to protect the Claimant and prevent the discrimination:
• induction materials 
• Staff training 
• D Houston interaction with the Claimant on her return from sickness 
• Approachability of higher line management 
• Attempts to progress the matter with the Claimant when she finally informed    management of her allegations
Technical Issues
29. The Respondents contend that the Claimant has failed to comply with statutory requirements as follows: 

• Non-Completion of the Statutory Grievance Procedure 

The Claimant failed to comply with para 7(2)(a) of 5th 1 to the Employment (NI) Order 2003, in contravention of Art 17(2) thereof, with implication for the adjustment of any award. 
•	Non-Compliance with the Statutory Time Limit 

The Claimant complains of matters, which on her own case come to an end in July 2007. 
Her claim was successfully lodged on 1st  May 2008, almost 10months later. 
The Claimant does not seek an extension of time, nor does she even address the potential basis for same evidentially. 
•	Non-Compliance with the statutory Grievance Procedure 
Art 19(4) Employment (NI) Order 2003. She eventually complied with the requirement to put her grievance in writing to the employer (at the Tribunal’s prompting) on 20th March 2008- over 8 months after the end of the alleged discrimination, and beyond the timescale established under this legislative provision. 
Again there is no extension of time requested nor good reason provided in evidence for same.
 
Conclusions: 
30. Value of any award. 
31. Impact of non-appearance without explanation, much less excuse. 
32. Overwhelming preponderance of the information before the Tribunal points against the Claimant’s case and within that all the actual evidence is in the Respondents’ favour. 
33. There is no evidence to make out the contention that SR and/or DFP subjected the Claimant to direct discrimination contrary to Art 3(1)(a) of the SDO 1976. 
34, With reference to Art 6A of the SDO 1976, 

6.4. — (1) For the purposes of this Order, a person subjects a woman to harassment if— (a)on the ground of her sex, he engages in unwanted conduct that has the purpose or effect— 

(i)of violating her dignity, or 
(ii)of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b)he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect— 
(i)of violating her dignity, or 
(ii)of creating an intimidating. hostile, degrading. humiliating or offensive environment for her, or 
(c)on the ground of her rejection of or submission in unwanted conduct of a kind mentioned in sub-paragraph (a) or (b), he treats her less favourably than he would treat her had she not reacted, or submitted to, the conduct.

(2) Conduct shall be regarded as having the effect mentioned In paragraph (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.
 
The evidence and context do not demonstrate contravention of the 
foregoing provisions, particularly given the Claimant’s involvement in the office activities, the good nature of relationships in the office, and her lack of complaint at the time or in the period thereafter. 
Further, calling her Jemima, in the context of nicknames of other, male officers do not demonstrate behaviour on the ground of gender. 
The evidence and context shows no harassment on grounds of sex (1(a)) 
The evidence of the allegation of sexual harassment (1(b)) is insufficient to make out this allegation. 
The Tribunal is invited to be mindful that the Claimant’s non- attendance means that her position re perception, involvement and context cannot be properly established, much less tested. 

 [NB: Art 2(1) means that harassment cannot be a detriment for purposes of Art 3] 

35. The Burden of Proof Regulations (Art 63A) do not assist the Claimant in a case of this nature. 
36. As needs be the Second Respondent relies upon the provisions of Art 
42(3). In Canniffe v East Riding of Yorkshire (2000) IRLR 555 EAT it was held that a Tribunal should consider what steps the employer had taken to prevent the act of discrimination and whether there were any other steps which could have been taken that were reasonably practicable. This assessment should recognise that employers should be allowed to strike a balance based on proportionality taking account of cost/time/difficulty vs efficacy [Croft v Royal Mail Group [2003) IRLR 592j. The Second Respondent also relies upon the principle of apportionment. 

Peter Coil 
The Bar Library 
14th September 2009 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND 

QUEENS BENCH DIVISION 
(JUDICIAL REVIEW)
IN THE MATTER OF JR 26 SERVICE CONFIDENCE PROCEDURE
AND
IN THE MATTER OF DECISIONS OF THE POLICE SERVICE OF
NORTHERN IRELAND
APPLICANT’S LIST OF AUTHORITIES

Caselaw: 

1. R (Tucker) v Director General of the National Crime Squad [2003] EWCA CIV 02 
2. Re Farrell & Wills [2008] MOB (G1L7063). paras 16-19 
3. Doody [1994] 1 AC 531. 560D 
4. Damien Neill [2009] NIQB 25 
5. Secretary of State for the Home Department v AF(3) [2009] 3 WLR 74.