THE INDUSTRIAL TRIBUNALS

CASE REF:	  339/14

CLAIMANT:			Clare Ryan

RESPONDENT:		University of Ulster

DECISION 

The decision of the tribunal is that the claimant’s claims are dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Murray

Members:	Mr A Barron
	Mr J Hughes

Appearances:

The claimant was represented by Ms M Jones, Barrister-at-Law instructed by Campbell Fitzpatrick Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law instructed by Arthur Cox Solicitors.

THE CLAIM

1.	The claimant’s claim was that she was subjected to detriment on grounds of having made a protected disclosure.  Any claim under The Protection from Harassment (NI) Order 1997 was withdrawn and was dismissed at the outset of the hearing.

SOURCES OF EVIDENCE

2.	The tribunal had statements and oral evidence from the claimant on her own behalf.  The tribunal also had statements and oral evidence of the following witnesses for the respondent: Dr S Crothers, the claimant’s line manager and the successful candidate; Dr B Murphy, who was Dr Crothers’ line manager; Professor A Moran, a member of the short-listing panel; Professor L Maguire, a member of the short-listing panel; Mrs M Carruthers of Human Resources (HR).  The tribunal also had regard to the documentation to which it was referred.
THE ISSUES

3.	The issues at hearing narrowed to the following:

	(1)	Did Professor Moran ensure that a teaching qualification was an essential criterion for the post of Head of Widening Access and Participation, in order to ensure that the claimant could not be short-listed and was this act committed on grounds of the claimant having made a protected disclosure?

	(2)	Did Professor Moran decide not to short-list her because the claimant had previously made a protected disclosure and did this amount to a detrimental act committed on grounds of the claimant having made a protected disclosure?

(3)	Did the claimant’s line manager Dr Crothers subject her to detriment on grounds of having made a protected disclosure when he required her to collate information for financial claims to DEL?

(4)	Did Dr Crothers fail to support the claimant and provide reassurance in relation to her not being held accountable or responsible for the said claims?

(5)	It was agreed that the claimant’s claim to the tribunal in relation to the failure to short-list was presented outside the three month time-limit.  The issue for the tribunal in this regard was therefore whether it was not reasonably practicable for the claimant to present her claim within the time-limit and if so, whether it was presented within a further reasonable period.

THE LAW

4.	Both counsel provided written submissions at hearing and supplemented them with oral submissions.  

5.	The tribunal took account of all of the submissions and the authorities to which it was referred and considered in detail the relevant parts of the text book authority namely Whistleblowing Law and Practice (second edition) by Bowers and others.  

6.	The Public Interest Disclosure (Northern Ireland) Order 1998 amended the Employment Rights (Northern Ireland) Order 1996 (“ERO”) and introduced provisions protecting workers from suffering detriment on grounds of having made protected disclosures.

7.	Article 70B of the ERO provides:

	“A worker has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure”.

8.       	Article 71 (1A) of ERO provides:  

“A worker may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article 70B”.

9.      	Article 71 (3) of ERO provides:  

“An industrial tribunal shall not consider a complaint under this Article unless it is presented –

(a)	before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b)	within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.

10.	Detriment is determined using the Shamoon test which is whether a reasonable worker would or might take the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of being disadvantaged.  

11.	The detriment suffered must be on the ground of having made a protected disclosure. In the Nagarajan 1999  IRLR 572 (HL) case the House of Lords sets out the correct approach which requires the tribunal to consider the mental processes of the respondent and the reason why detrimental acts or omissions occurred.  The tribunal must consider the motivations of the respondent, whether conscious or unconscious.  The key question is whether the detrimental acts or omissions were materially influenced by the fact that the claimant made protected disclosures.

12.	In the case of Fecitt 2011 EWCA Civ 1190 it was found that, in whistleblowing detriment cases, the relevant provision is infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the employee.

13.     Article 71(2) of ERO states in relation to whistleblowing detriment cases as follows:

		“On a complaint under this Article it is for the employer to show the ground in which any act of deliberate failure to act was done”.

14.	The burden of proof in whistleblowing detriment cases therefore operates in the same way as it operates in Trade Union detriment cases.  This is in contrast to discrimination cases generally where the initial burden is on the claimant to prove facts from which the tribunal could conclude that an act of discrimination occurred.

15.	This means that, in effect, there is a lower threshold for a claimant to surmount in order for the burden to shift to the respondent to provide an untainted explanation for any detrimental acts.  Thus the initial burden is on the claimant to prove that she made protected disclosures and that she suffered detriment.  If she proves those two elements the burden shifts to the employer to provide an explanation which is not tainted by the fact of the claimant having made protected disclosures.

FINDINGS OF FACT AND CONCLUSIONS

16.     At all times relevant to this case the claimant was employed as an Access Officer.

17.	It was accepted by the respondent that the claimant had made a protected disclosure in March 2012.  The focus in this case therefore was on whether or not the claimant suffered detriment on grounds of having made that protected disclosure.

Step-Up Programme

18.	The Step Up programme was a programme designed to encourage school pupils to consider applying for courses and careers in Science, Technology, Engineering and Mathematics (STEM).  In broad terms the activities of the programme involved liaison with Heads of Science in different schools and the delivery of lectures and demonstrations to school pupils, teachers, and Heads of Science.

19.	As the programme was funded by contributions from DEL, claims for outgoings and expenses had to be made periodically to DEL.  The whistleblowing in 2012 related to alleged irregularities in relation to the claims made by the previous Head of Department and this ultimately led to his departure from the University.  One of the issues in relation to the whistleblowing event was that some claims for expenses and outgoings could not be substantiated and/or did not appear on “transaction lists”.

20.	Following the departure of the previous Head of the programme and the death of his line manager, this left the claimant and her colleague AM as the only remaining members of that team involved in delivering this programme.  For this reason Professor Moran was drafted in to assist them in liaising with the Heads of Science and to deal with the fall-out from the departure of the Head of the Programme.  The claimant had been involved in the whistleblowing.  AM had not been a whistleblower.

Failure to short-list

21.	The claimant applied for the post of Head of Widening Access and Participation on 4 March 2013 by submitting an application form accompanied by her CV.  The first limb of the claimant's claim relates to the failure to shortlist her for this post.

22.	One of the essential criteria was the requirement to have a “Teaching Qualification”.  In answer to the question on the form in that regard the claimant stated as follows:

	“I successfully completed a certificate in “Introduction to Learning and Teaching at the University of Ulster” in October 2004.  The course provides the skills required to support learning/teaching for those involved in part-time roles within Ulster including training on assessment.”

23.	In answer to the same question on his form Dr Crothers (who ultimately was the successful candidate) answered as follows:

	“I have a Post Graduate Teaching Assistant (PGTA) Certificate from the University of Ulster”.  
	
24.	It was common case that the two courses attended by these two candidates were equivalent to each other and it was also common case that Dr Crothers did not in fact meet the criterion as understood by the short-listing panel.
25.	The short-listing panel comprised Professor Moran and Professor Maguire.  The respondent’s case was that Dr Crothers was shortlisted due to an error on the part of the panel.  It was the claimant’s case that the reason she was not short-listed was because Professor Moran deliberately wanted to make sure that she would not get the post firstly, because she was a whistleblower and, secondly, because Professor Moran wanted to make sure that the claimant would not have access to the information already sent to DEL and that she could have no contact with DEL in relation to the previous financial claims which had been the subject of the whistle-blowing incident in 2012.

26.	The claimant’s complaint to the tribunal was that there was a failure to shortlist her; she did not allege that Dr Crothers should not have been shortlisted.

27.   	The claimant did not impugn the integrity or veracity of Professor Maguire and indeed he was one of her referees.  The claimant was scrupulous in not alleging that Professor Maguire was motivated not to shortlist her because she had made a protected disclosure.  The claimant alleged for the first time in re-examination that Professor Moran might have pressured Professor Maguire into agreeing with her as the claimant alleged she had previous experience of Professor Moran’s attitude in a separate competition.  We reject the claimant’s belated evidence in that regard.  

28.      We accept Professor Maguire’s evidence as follows:

(1)	That the phrase “Teaching Qualification” was generally accepted in the University to mean a qualification to teach at post-graduate level;

(2)	That he believed, from reading the answers of the two candidates to the question in relation to a teaching qualification, that the PGTA held by Dr Crothers amounted to a third-level education qualification and therefore met the criterion in that it amounted to a Teaching Qualification;  

(3)	That, in contrast, the certificate as described by the claimant did not meet that criterion;

(4)	That he was not pressured by Professor Moran but reached his own decision.

29.	Professor Maguire’s evidence supported the evidence of Professor Moran which was in similar terms.  We accept that Professor Moran had no detailed knowledge of the two courses referred to by these two candidates and that she therefore accepted at face value the description given by each candidate as she knew that it was for HR to obtain evidence of the qualifications at a later stage.  We accept that it was her erroneous understanding of the level of Dr Crothers’ qualification that was her reason for short-listing Dr Crothers.  We further accept that she believed that the certificate mentioned by Dr Ryan did not meet the criterion and that that was her reason for failing to short-list the claimant.

30.	We therefore reject this aspect of the claimant’s case for the following principal reasons:-

	(1)	The evidence of Professor Maguire completely supports the evidence of Professor Moran in relation to the thought processes of the panel when deciding how the shortlisting criteria applied to the claimant;

	(2)	Professor Moran was instrumental in ensuring that the claimant and another member of staff received a sizeable bonus for their additional work following  the whistleblowing incident and it is our view that this shows that she did not have an animus towards the claimant on that score;

	(3)      The claimant’s ability to raise concerns with DEL did not depend on her being shortlisted for, or appointed to this post;

	(4) 	The claimant agreed in tribunal that her description of the certificate she possessed was clearly sub-degree level.

31.	It was part of the claimant’s case that Professor Moran was so determined to ensure that she did not get the post that the criteria were tailored to ensure that a teaching qualification was an essential criterion.  In support of this allegation the claimant alleged that Professor Moran had twice checked with her and her colleague AM as to whether or not they held a teaching qualification.  When it was established that neither of them did hold that qualification it was the claimant’s case that this motivated Professor Moran to insert this as an essential criterion.  

32.	Professor Moran denied that she had asked this question of the claimant although she gave evidence that as part of the review process (which began before the departure of the previous Head) she had asked both the claimant and AM about their posts and roles.

33.	The burden is on the claimant to prove primary facts before we look at whether we should draw any adverse inferences.  We found the claimant in general to be unreliable in her evidence as she changed her evidence or was evasive on other matters. We therefore prefer the evidence of Professor Moran on this point.

34.	We reject the claimant’s case that criteria were tailored for the following principal reasons:	

(1)	 We accept Professor Moran’s rationale for the insertion of a Teaching Qualification as an essential criterion because it was common case that there were problems expressed by the Heads of Science to Professor Moran about the standard of teaching on the programme.  The claimant accepted Professor Moran’s reasoning for her decision that it was important for the post-holder to be able to contribute directly to teaching on the programme.

(2)	It was part of Professor Moran’s role in the review and in being drafted in to cover this programme following the departure of the previous incumbent and the death of his line manager, to look at what the respective roles of the staff entailed. 

(3)	The claimant had no complaints about her dealings with Professor Moran from 2012 despite working with her in the period of hiatus following the departure of the previous Head;

(4)	Professor Moran was instrumental in ensuring the award of the bonus to the claimant referred to above;

(5)	We have rejected the claimant’s account that Professor Moran twice checked whether she held a Teaching Qualification;

(6)	The independent review of the programme and the previous job description were used to draw up the criteria so there was a reasonable basis (unrelated to the claimant’s status as a whistleblower) for this criterion being regarded as essential for this post;

35.	It appears from the evidence of the short-listing panel that the reason Dr Crothers was shortlisted was because he described his course using the key phrase “Post-Graduate”.  There was no suggestion at any stage that Dr Crothers had misrepresented or misdescribed his qualification.

36.	The respondent’s process was such that it was not for the shortlisting panel to delve into the detail of any qualification revealed on a form as it was for HR to follow that up once the offer of an appointment was made to the successful candidate. We find it surprising that it is part of the respondent’s processes that such an essential criterion is not checked by anyone until an offer of appointment is made.  However that has no bearing on the key issue for us which relates to the motivation of Professor Moran when she decided to reject the claimant’s application because of failure to meet that criterion as the claimant has alleged a deliberate intention by Professor Moran not to shortlist her.

37. 	It is our view that Professor Moran relied on that backup from HR when she  looked at the qualifications given by both candidates.  We accept her evidence that she did not have knowledge of either course and that she essentially relied on HR to follow up on the detail on that.  

38.	There is no doubt that there were shortcomings in the recruitment process for the post of Head.  We can therefore understand the claimant’s frustration and disappointment and, indeed, her suspicions which were aroused when she realised there had been acceptance of Dr Crothers’ qualification which was equivalent to hers.  However it is not our role to provide a critique of such defects but, rather, the issue for us is whether or not any such shortcomings enable us to draw adverse inferences to support the claimant’s case that she was deliberately victimised by Professor Moran on grounds of her having made a protected disclosure.  We decline to draw such an inference in view of our other factual findings.

39.	The claimant has shown detriment in relation to the shortlisting process and it is clear she was a whistleblower.  The burden therefore is on the employer to provide an explanation which is untainted.  We are satisfied from an assessment of all of the evidence and in particular the evidence of Professor Maguire, that the explanation given by Professor Moran is correct, namely, that a mistake was made by the panel which was not connected to the claimant having made a protected disclosure.  We also accept the respondent's rationale for the use of the essential criterion in issue and that this was unrelated to the claimant having made a protected disclosure.

Time Point

40.	The claimant was informed that she had not been shortlisted on 11 March 2013.  At that point she “strongly suspected” that the failure to shortlist her was because she was a whistleblower.  She asked for the reason for failure to shortlist her and, by email of 12 March 2013, HR informed her that it was because she did not possess a teaching qualification.  In June 2013 the claimant discovered from a conversation with Dr Crothers that he had relied on a PGTA on his application form.  The claimant was understandably upset as she believed it was an equivalent qualification to the one which led to her rejection.  Dr Crothers readily agreed with her that it appeared to be equivalent to her qualification and the claimant then took that up with HR.

41.	There then ensued communication back and forth between the claimant and HR whereby the claimant wanted confirmation as to the teaching qualification relied upon by Dr Crothers in his form.  Ultimately the claimant was informed on 2 December 2013 by HR that Dr Crothers had indeed relied on the PGTA on his form.  It is the claimant’s case on the time-point that she could not put in a claim in relation to the failure to be shortlisted until 2 December 2013 or thereafter because she could not be sure that the information she had been given in June by Dr Crothers was correct.

42.	We reject the claimant’s claim on time for the following principal reasons:-

(1)	Time runs from the date the claimant was told she had not been shortlisted.  This was also agreed by the parties.  The claimant was told on 11 March 2013 that she had not been shortlisted and she therefore had until 11 August 2013 to present her claim form to the tribunal.

(2)	The claimant’s evidence to us was that she knew from before the shortlisting stage that Professor Moran would ensure that she would not be shortlisted because she had been a whistleblower.  On the claimant’s account therefore this suspicion was confirmed when she was not shortlisted and we fail to see why she did not lodge a claim within three months of that date.

(3)	Even if it was the case that she did not know that Dr Crothers possessed the same qualification as her, the information she received from Dr Crothers in June 2013 meant that she had a reasonable basis for believing that she had been treated less favourably than him.  As she believed that this was due to the action of Professor Moran and was because of whistleblowing she could have put in a claim at that point.

(4)	The claimant took legal advice in June 2013 but chose not to mention her suspicion that the detrimental act was because of her whistleblowing.  Instead she allowed her solicitor to send a letter requesting information about the other shortlisted candidates on all possible equality grounds when, on the claimant’s account she knew that the reason was because of whistleblowing.  The exchanges from June to December therefore do not in our view explain the delay in lodging her claim.

(5)	On the claimant’s account, she only knew for definite at the beginning of December that she had enough information to confirm her suspicions that her detriment was because of whistleblowing, but she waited a further 12 weeks until the proceedings were actually lodged.  We do not regard this as a reasonable period.

(6)	The claimant accepted in evidence that she understood at all times that she could make a claim to the Industrial Tribunal.

43.	In summary it was reasonably practicable for the claimant to lodge her claim within three months of the operative date in March 2013.  Even if it was not reasonably practicable for her to lodge the claim within that time period, she did not move within a reasonable period to lodge the claim.  Her claim in relation to the failure to shortlist is therefore time-barred and is dismissed on that basis as we have no jurisdiction to determine it.

44.	Given that we heard all the evidence in relation to that matter we have recorded our view that we would have dismissed it on the merits in any event.

Financial claims

45.	The second limb of the claimant’s claim relates to an alleged detriment perpetrated by Dr Crothers in relation to new financial claims to be made to DEL in 2014 relating to the period 2012/13.  The presentation of the information to Dr Crothers took place in February/March 2014 following a period of months when the claimant alleges that she and AM were “coerced” into conducting this exercise by Dr Crothers.

46.	It was agreed by the parties that this aspect of the claim was within time.  It was also accepted by both sides that this aspect of the claim was a separate and discrete claim.  There was no allegation that it formed part of a continuing act to connect it to the previous shortlisting detriment.

47.	The claimant raised a written grievance about the failure to shortlist her and raised her criticisms of the shortlisting process by way of a complaint in an email of 14 January 2014 and in a formal grievance of 29 January 2014.  

48.	It was the claimant’s case that her relationship with Dr Crothers until that point had been without problems but that his attitude towards her changed and her view was that it was because of her grievance and because he knew she was a whistle-blower.

49.	There were still issues to be cleared up in relation to the claim for funding from DEL for the period from 2012 onwards.  Dr Crothers asked the claimant and her colleague AM to gather together the information required to enable new claims for funding to be made by him in conjunction with Dr Murphy.  

50.	The task was described by Dr Murphy (Dr Crothers' line manager) as follows:

		“Doctor Ryan had been instructed to confirm: what could be claimed and was evidenced on the transaction list; what could be claimed for which no transaction lists were available; and what could not be claimed”.

51.	The claimant was clear in her evidence that she would not have put forward a claim unless she could stand over it.  At no point did the claimant allege that Dr Crothers pressed her to make inappropriate claims for money.  The information collated by the claimant and her colleague was to be given to Dr Crothers and Dr Murphy and was also subject to a validation process (by way of random sampling) by KPMG.  Only following that process would claims be signed off by Dr Murphy and Dr Crothers and then submitted by them to DEL.

52.	In the event any claims over which there was doubt (as they were not on transaction lists) were not submitted to DEL.  This therefore echoed the claimant’s concern about unsubstantiated claims but it also amounted to a vindication of the process which had several more senior levels of checking following the claimant’s involvement.

53.	The claimant’s case was that it was detrimental to her to be forced to be involved in claims which were, essentially, part of the “clear-up operation” following the events which led to the whistleblowing complaint and the departure of the previous Head of that Department.  It was the claimant’s case that she was “coerced” into conducting this exercise by Dr Crothers and that this was because he knew she was a whistle-blower.  It was further her claim that Dr Crothers refused to support her sufficiently and to provide reassurance in respect of her not being held accountable for the validity of the claims.

54.	We reject the claimant’s claim on this point for the following principal reasons:

	(1)	It is clear from the documentation that the claimant’s relationship with Dr Crothers became strained and that both she and AM were raising concerns with Dr Crothers about the process in relation to the financial claims.  In all key respects both she and her colleague AM, who was not a whistleblower, were treated the same by Dr Crothers.  The claimant has therefore not demonstrated detriment in the sense of less favourable treatment given that her colleague was not a whistleblower yet she was treated the same.

	(2)	This task was within her job description, she had done it before and we  therefore accept from the evidence that this task was part of the claimant’s job.  We accept that it made sense for the claimant and AM (who had both been in post at the time relevant for the claims) to collate the necessary information.  The claimant accepted that they were the most appropriate people to carry out this exercise as they knew the processes better than Dr Crothers.

(3)	The claimant and her colleague were essentially involved in a data-collection exercise which was then to be subjected to scrutiny by Senior Managers and validation by KPMG and the claims were then to be submitted by senior managers after signing off on them.  We do not accept that the claimant was being essentially manoeuvred into taking responsibility for claims to shield senior managers as she alleged.

(4)	There was nothing in the claimant’s email and grievance documents in January 2014 to indicate that she had been coerced for months and no mention of whistleblowing.  This did not make sense if things had proceeded as the claimant alleged and we therefore reject the allegation of coercion.  The claimant agreed at hearing that there was a tight timescale for submitting the claims due to the deadline set by DEL.  Any pressure put on her to produce the data was due to that deadline.

(5)	Dr Crothers had taken up his post in mid-2013 and the claimant told him within weeks that she was the whistleblower involved in 2012.  There were no problems between them (on the claimant’s account) until February 2014 (ie 8 months later).  The claimant related this change to her grievance which did not mention whistleblowing.  Neither document in January 2014 made any reference to her having made a protected disclosure nor to her belief that the failure to shortlist her was because she was a whistleblower. We therefore reject the claimant's allegation that Dr Crothers changed his attitude because of whistleblowing as, firstly,  the chronology does not support this and secondly, it was because of information he readily shared about his qualification that she was able to raise her grievance about the shortlisting process.

55.	The claimant sought written assurance from the Director of Finance that she would not be held accountable.  The claimant made no allegation against that individual.  At no point was it part of her case that she sought such a written assurance from Dr Crothers.  The height of her point on this against Dr Crothers was that he had failed to provide reassurance and support.  We find against the claimant on this point for the following principal reasons:

	(1)	It was common case that Dr Crothers cleared the claimant's diary and allowed home-working to enable her to have time to devote to the collation of the data;

	(2)	Dr Crothers met with her and AM to assuage their concerns and repeatedly reassured them verbally;

	(3)	There was an email from Dr Crothers following that meeting.  The claimant criticised the email for being unclear as to whether she could be held accountable for the claims information.  Dr Crothers believed that the email confirmed in writing the assurance by reference to the meeting.  We find the email worded in less than clear language.  However, at no point did the claimant raise any concern with Dr Crothers about it and we find it surprising that she would have had that criticism of the email without following it up given her ability to raise issues as evidenced before that point;

	(4)  	Dr Crothers approached someone from the Finance Department to attend sampling meetings with KPMG;

	(5) 	It was made clear to the claimant that there were two levels of scrutiny of the claims information above the claimant and AM and the decision, on what would be valid to claim, lay with Dr Crothers and Dr Murphy.  We accept Dr Murphy’s evidence that he wanted to know what was claimable before he decided to make claims which could be substantiated.

56.	This aspect of the claimant’s claim, namely detriment perpetrated by Dr Crothers, fails because the claimant has not shown detriment and the burden of proof does not therefore shift to the respondent to provide an untainted explanation.  Even if the burden had shifted, we would have accepted that the acts of Dr Crothers were untainted by the fact of the claimant being a whistleblower in view of our factual findings.

Summary

57.	The claimant’s claim in relation to the failure to shortlist her is dismissed on the time-point.  Even if the claimant’s claim had been within time it would have failed for the reasons set out above.  The remaining claim for detriment fails for the reasons set out above.

Employment Judge:       

Date and place of hearing:     	26, 29 and 30 September 2014 and 1-2 October 2014, Belfast.		

Date decision recorded in register and issued to parties: