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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Ms M M T O'Hare v 1.  Queen's University of Belfast [2007] NIFET 190_01 (31 September 2007) URL: http://www.bailii.org/nie/cases/NIFET/2007/190_01FET.html Cite as: [2007] NIFET 190_1, [2007] NIFET 190_01

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THE FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 190/01FET

1746/01IT

CLAIMANT:                          Ms M M T O'Hare

RESPONDENTS:               1.  Queen's University of Belfast

2.  Professor R W Stout

3.  Doctor McCluskey

4.  Professor B G McClure

DECISION

The Fair Employment Tribunal finds that:-

(1)       the claimant suffered discrimination on the ground of her sex and religion, and

(2)       her contract of employment was breached, and

(3)       she was constructively dismissed.

Constitution of Tribunal

Chairman:                Mr B Greene

Members:                 Mrs S Butcher

Mr J Crockett

Appearances:

The claimant was represented by Mr M Potter, of counsel, instructed by Savage & Company, Solicitors.

The respondent was represented by Mr F O'Reilly, of counsel, instructed by Elliott Duffy & Garrett, Solicitors.

Sources of Evidence

1. The Fair Employment Tribunal heard evidence from the claimant and for the respondents from the second, third, fourth respondents, Dr Amanda Cross, Dr James Curry, Professor Madeline Ennis, Dr Joy Ardill, Ms Frances Dalez (nee Magennis), Mr Cyril McMaster, Mr David Gill and Mrs Una Shortt.   The Tribunal also received 35 bundles of agreed documents amounting to 567 pages and two written submissions of 116 pages.

The Claim and Defence

2. .       The claimant claimed discrimination on the grounds of sex, religion or political opinion, constructive dismissal and breach of contract.

The claimant's case is that in 1990 she was moved from the Department of Child Health, where she was a Lecturer in Child Health, to the Department of Medicine.  In the Department of Medicine she was never made aware of her terms and conditions.  During her time in the Department of Medicine and particularly from late 1999 she was unfairly treated, her position was undermined, her job duties were downgraded, her work was unfairly criticised and undermined and she was subject to unnecessary disciplinary action.  Over various dates and times throughout the period she believes she was edged out of the Department and was told by senior management that they wanted her out by the end of 2000.  This led to her decision not to return to work on 3 January 2001.  She contends that she had no alternative but to leave her job and she was subjected to unlawful discrimination on the grounds of religion or political opinion and sex   

The respondents denied the claimant's claims in their entirety.  They advanced a number of specific criticisms of the claimant.  They stated that; her research in Child Health was not satisfactory; she had a lack of publications; those publications that she had were not in journals with a high citation; she had paucity of lead authorship; she did not obtain research grants; she had paucity of teaching; her research did not have themes; and she was not involved in a research team.

The Tribunal accepted the parties' application that it should deal with the issue of liability only.

The Issues

3. .         The following legal and factual issues arise:-

(1)    Whether the claimant was discriminated against on the grounds of her religion or political opinion.

(2)    Whether the claimant was discriminated against on the grounds of her sex.

(3)    Whether the claimant's contract of employment was breached.

(4)     Whether the claimant had been constructively dismissed.

Findings of Fact

4.        (1)     The claimant was born on the 18 September 1954.  She holds a BSc (Hons) in Biochemistry (1976) from the University of Manchester, a PhD (1981) from Queen's University Belfast and an MSc in Clinical Biochemistry (1989) from Trinity College Dublin.

(2)    From 1976 to 1985 the claimant, who is female and Catholic, worked for the first respondent as a research assistant and later as a research fellow.  In her work she concentrated on peptides in tumours and cancers.  She developed a pancreatic polypeptide which was the basis for her doctorate.

The second respondent (Professor Stout) is employed by the first respondent (QUB) and is Professor of Geriatric Medicine and from 1991 was Dean of the Faculty of Medicine and Director of the School of Clinical Medicine.  He is male and Protestant.

The third respondent (Dr. McCluskey) is employed by the first respondent (QUB) and from October 1999 was the head of the Division of Medicine and Therapeutics.  He is male and Protestant.

The fourth respondent (Prof McClure) held a joint appointment from the first respondent (QUB) and The Royal Victoria Hospital.  He worked in the Child Health Department from 1973 until he retired in 2002.  From 1997 he was head of department in Child Health.  He is male and Protestant.

(3)     From 1985 to 1990 the claimant worked as a research fellow in Copenhagen, predominantly in cancer research. 

(4)    In September 1990 the first respondent (QUB) appointed her as a Lecturer in Child Health in the School of Clinical Medicine.  This was a new field for her.  She was working in a new subject area and time was required, normally a couple of years, for her to establish her research that subsequently would lead to publications.

(5)    The claimant's duties were predominantly in research.  She did not have set hours or a fixed base.  She was also required:-

(a)        to strengthen existing laboratory activities and establish new techniques of investigation,

(b)        to have a limited commitment to student teaching in the biochemical aspects of paediatrics,

(c)        to advise and support clinical academic staff in the design and feasibility of laboratory studies when grant applications were envisaged,

(d)        to initiate appropriate projects and write grant applications after consultation with the head of department,

(e)        to consult with and collaborate with other departments within the Faculty of Medicine to avoid duplication, and

(f)        to supervise the work of technical staff and research fellows employed within the department laboratories.

(6)    There were four laboratories within the department and three technical staff.  In 1998 the number of technical staff was reduced to two.

(7)    In Queen's University Belfast (QUB) Research Assessment Exercises (RAE) were carried out in 1992, 1996 and 2001.

For the RAE exercise each department returned those members of staff who had demonstrated clear excellence in research and were part of the coherent research strategy.  Among the matters taken into account were the researcher's publications, grant applications and supervision of students.  In relation to the 2001 RAE the second respondent (Professor Stout), in consultation with others, decided who was to be put forward for the RAE.  In the Faculty of Medicine one third of the staff were not returned in 2001.

(8)    The claimant was returned as part of the RAE exercise in 1992 and 1996.

(9)     In 1993/94 the claimant successfully completed her probationary period without adverse comment.

(10)  The claimant was put in charge of the four laboratories in the Child Health Department in 1996.

(11)   In 1997 Professor John Dodge retired and was replaced, as the claimant's line- manager, by the fourth respondent (Professor McClure).  In the same year the claimant began to work in collaboration with Professor Chris Shaw on "human milk and amniotic fluid".

(12)   From about 1990 the first respondent (QUB) introduced annual appraisals for all academic and academic related staff. 

The main purpose of the appraisal is developmental rather than judgmental.  It is to help individuals to identify their strengths, to recognise and reinforce any professional areas that could be improved, and to pin-point training and development career needs. 

The appraisal and any non-recorded discussions, during the appraisal, are confidential to the appraiser and appraisee and are to be carried out on a one-to-one basis, normally by the person's manager.

The appraisee is to submit the self-report form to the appraiser well in advance of the appraisal.

The purpose of the appraisal is:-

(a)         to review progress and achievements since the last appraisal;

(b)        to identify and agree upon detailed objectives for the development of the appraisee in the light of the objectives of the appraisee's area of work or of the University;

(c)         to agree points of action to obtain these objectives including identifying training and development needs;

(d)        to agree points of action that could have wider consequences; and

(e)         to agree to review progress at least once during the year.

The appraisal process provided a conciliation mechanism to resolve differences of opinion between appraiser and appraisee.

(13)  The first respondent (QUB) carried out appraisals of the claimant in 1992, 1996, 1997 and 1999.  No appraisals were carried out of the claimant in 1993, 1994, 1995, 1998 and 2000.

(14)   Appraisals of the claimant were carried out in 1992 by Professor Dodge, 1996 and 1997 by the fourth respondent (Professor McClure) and in 1999 by Professor David King, though the 1999 appraisal was not carried out until 16 February 2000.

(15)  The fourth respondent (Professor McClure) did not discharge his responsibilities in the appraisal process in 1996 and 1997, nor did he sign the document, nor did he record any criticism of the claimant nor notify Personnel that the appraisal had occurred.

The fourth respondent (Professor McClure) explained that he followed that approach because had he recorded his criticisms of the claimant it would have damaged her career and he thought it better to rectify her deficiencies informally.  He wanted the initiative to remain with him and not some line-manager, he told the Tribunal. 

The Tribunal is not persuaded by the explanation advanced by the fourth respondent (Professor McClure) for his actions.  In so concluding the Tribunal had regard to the following matters:-

(a)    The fourth respondent (Professor McClure) breached the regulations governing the appraisal process.  In so doing he undermined its purpose and benefit.

(b)         As the appraisal process is confidential it is hard to see how critical comments by the fourth respondent (Professor McClure) recorded in the appraisal document would damage the claimant's career whereas it is easy to appreciate how a discussion among colleagues about the claimant's alleged deficiencies could damage her career.

(c)    After the 1996 appraisal no attempt was made by the fourth respondent (Professor McClure) to engage with the claimant to address her alleged weaknesses.

(d)    The fourth respondent (Professor McClure) followed the same approach for the 1997 appraisal and had the same criticisms.  Clearly the fourth respondent's (Professor McClure's) "informal approach" had not worked following the 1996 appraisal yet he followed the same course in 1997.

(e)    Following the 1997 appraisal the fourth respondent (Professor McClure) did not engage with the claimant to address her alleged weaknesses.

(f)    The fourth respondent (Professor McClure) did not give any evidence of having followed the same approach in appraisals with any other appraisee.

(16)  In the 1990s the first respondent (QUB) was concerned about its profile as a centre of research, particularly in medicine.  This led to the Dollery Report which made recommendations about research, including the establishment of inter-departmental research centres instead of each department carrying out its own research.  The first respondent (QUB) thought that it should concentrate research in relatively small areas of strength. 

The second respondent (Professor Stout) regarded Child Health as not a strong research unit and that it should be incorporated into a larger research area.  The Child Health Department was one of the areas most affected by the restructuring of research and the claimant was one of the persons most affected by the restructuring of research.

A written report was prepared, of an audit of research in the Division of Clinical Science carried out in 1997, by Professor Colin Johnston (male and Protestant) and Dr Madeline Ennis.  In the section on the claimant a number of critical comments were made about her.  Dr Ennis, when giving her evidence, disassociated herself from the comments, about the claimant's research productivity being 'poor' and a comment 'make her work'. 

The claimant was assigned to the Endocrinology and Metabolism Research Group within the research division of medicine in 1997.  Staff in this division came from a number of departments, including the Department of Medicine.  Professor Gary Love was in charge. 

(17)  Professor Love met with the claimant in 1997 to discuss her research.  At the meeting there was not any discussion about the Child Health laboratories or her work or presence in the Child Health Department.  He said that he did not think she should be working on the "Young Hearts" research.  He did not make any critical comment about the quality or quantity of the claimant's research.

(18)  From 1996 to 1998 the claimant was involved in collaboration with Dr Savage in the Young Hearts Project; with Southampton University on enzymes in human milk which led to a successful grant application for funding for a pilot study; and in a research project with Professor Chris Shaw from 1997.

Professor Shaw's collaboration with the claimant had produced 15 new peptides and a major grant application for funding to BBSRC was imminent.  Professor Shaw also acquired a mass spectrometer and a protein sequencer for the use of the first respondent (QUB).

(19)  In 1998 the first respondent (QUB), under Sir George Bain, Vice-Chancellor, embarked on restructuring within the university.  As part of the restructuring attractive early retirement or severance packages were offered to 100 members of academic staff.  Those identified as eligible for the package were those the first respondent (QUB) considered were under-performing.  The claimant was not on that list.

(20)  On 9 September 1998 Professor Keith Buchanan (male and Protestant), the departmental head, met with Professor Shaw concerning the impact of the latter's departure to the University of Ulster (UU).  In the course of the meeting Professor Shaw opined that an academic should be allocated to the mass spectrometer and he suggested the claimant be that academic.  Subsequently Professor Buchanan wrote to eight persons on 10 September 1998, including the claimant, about the imminent departure of Professor Shaw to UU.  He identified two major issues, the future use of the mass spectrometer and protein sequencer and the impact of the loss of the academic expertise of Professor Shaw.

The claimant responded in writing on 24 September 1998 in which she discussed the results from her very successful collaboration with Professor Shaw.  She sent a copy to the Dean, the second respondent (Professor Stout). 

(21)  In October 1998 the claimant met with the second respondent (Professor Stout) regarding the mass spectrometer and the protein sequencer.  During the discussion the second respondent (Professor Stout) indicated to the claimant that he did not want paediatric research.  A lot of the work that the claimant was doing was in paediatric research.

(22)   As part of the strategy to support a limited number of strong research groups the first respondent (QUB) decided to close the laboratories in Child Health.  In October 1998 the claimant met with the fourth respondent (Professor McClure) and he told her that the heads of department had decided to close the Child Health laboratories.  The claimant did not know anything about the closure.  She queried it as she had on-going research in the laboratories.  She was told by the fourth respondent (Professor McClure) to get out.  No criticism was levelled at the claimant by the fourth respondent (Professor McClure) about her publications, or quantity of research or initiation of research or about her not having lead authorship of publications or that published publications were in low citation journals or not in sufficiently high citation journals or about her work in Child Health.

Later in October 1998 the claimant had a second meeting with the fourth respondent (Professor McClure) when the latter asked her about her research with Professor Shaw.  The claimant was reluctant to discuss it with him by reason of his shouting at her at the meeting earlier in October.

(23)  Following her meeting with the fourth respondent (Professor McClure) in October 1998 the claimant contacted her union the AUT to complain about the fourth respondent's (Professor McClure's) treatment of her in October 1998.  Two members of the AUT met the fourth respondent (Professor McClure) and spoke to him concerning a complaint from the claimant about his behaviour to her and his decision.

(24)  The claimant was the line-manager of a technician, Mr Cyril McMaster (male and Protestant).  In October and November 1998 he began clearing out the Child Health laboratories on the instruction of the fourth respondent (Professor McClure).  The claimant asked him to stop clearing out the laboratories until the matter was sorted out but he ignored her request.  Her research materials were removed from the laboratories.  No one had discussed this with the claimant or sought her permission or agreement or advised her what was to become of her research materials. 

In November/December 1998 the Child Health laboratories were assigned to other staff.  The claimant gradually became aware that the gas chromatography laboratory remained.

The fourth respondent (Professor McClure), who was head of the Child Health Department from 1997, had discussed the closure of the Child Health laboratories with the Laboratory Audit group, other heads of department, Dr Ennis and Mr McMaster who was line-managed by the claimant but not the claimant.

(25)  On 20 November 1998 the claimant was appointed as the academic responsible for overseeing the mass spectrometer and the protein sequencer.  Kathleen Hanna was the supervising technician.  It was suggested that the claimant be the line-manager of Kathleen Hanna.  The claimant was not experienced in the use of these machines and did not begin training in the use of the machines until August 1999.

In November 1998 Professor Shaw left the first respondent (QUB) for UU.

(26)   A meeting of the Policy Planning Committee was held on 1 December 1998. 

Present were Professors Buchanan and Johnston (male and Protestant),

Drs Jim Curry (male and Protestant) and Joy Ardill (female and Protestant) and

Mr David Gill (male and Protestant).

Some of those present regarded it as a problem that the claimant, who was still in the Child Health Department, was supervising a piece of equipment (the mass spectrometer) and a technician (Kathleen Hanna) in the Department of Medicine.  This problem had not been raised when it was proposed to put the claimant in charge of the mass spectrometer at the meeting on 10 November 1998 to discuss the supervision of Professor Chris Shaw's equipment on his departure.

The attendance at that meeting on 10 November 1998 included Professors Buchanan and Johnston, Dr Curry and the claimant. 

Professor Buchanan said he would discuss with the claimant her move to the Wellcome Research Laboratories as she had lost most of her laboratories and simply remained in an office.   

At another meeting of the Policy Planning Committee on 2 December 1998 Professor Buchanan indicated he would be meeting with the claimant that day.  He did not have a meeting with the claimant.

Prior to 21 December 1998 no one spoke to the claimant or informed her or discussed with her where her research was to be carried on following the closure of the Child Health laboratories or about laboratory space for her or whether she wanted to move from Child Health to the Wellcome Laboratories.

(27)  It was not until 21 December 1998 that the claimant was made aware of where her research was to continue.  On that date the second respondent (Professor Stout) wrote to her advising her that the Wellcome Laboratory was the best place for her to continue her research with her new responsibilities, following the departure of Professor Shaw. 

The letter asserted that there had been extensive discussions with the claimant, the fourth respondent (Professor McClure) and Professors Buchanan and Love.  The second respondent (Professor Stout) asked her to move her office to Mulhouse in January 1999 and to liaise with Professor Buchanan about suitable office space in Mulhouse. 

Moving the claimant to the Wellcome Laboratories had been discussed, from at least September 1998, by a number of senior persons within the first respondent (QUB), including the second respondent (Professor Stout) and the fourth respondent (Professor McClure).  However there had not been any discussion whatsoever with the claimant nor had her agreement to this move been sought or obtained.

(28)  In early 1999 Professor Buchanan met the claimant in a car park.  He inquired when she was moving office.  In the course of the conversation he told her that Dr Curry had created major problems as he did not want the claimant to move to the building in which the Wellcome Laboratories were located.

Professor Buchanan had a second conversation with the claimant in February 1999, in which he told her that she might as well move as he had been speaking to the fourth respondent (Professor McClure) and the Child Health Department did not want her.  The claimant moved her office to Mulhouse in February 1999.

(29)   At Professor King's request, the claimant met with him on 19 February 1999 to discuss her current research and future plans.  Professor King was the most senior person with special responsibility for research.  The claimant's publications were discussed in relation to the next RAE of 2001.  She advised Professor King that she was worried about her future publications as she had been moved from Child Health and she did not know what her future research would be.

(30)  On 14 April 1999 Professor Buchanan met with the claimant to discuss; work that the claimant was interested in and was doing; work that she thought should be supported; and work that would not be her major area of work.  Professor Buchanan made a note of the meeting.  By the end of the meeting the research that the claimant was to undertake had not been defined. 

(31)  The second respondent (Professor Stout) wrote to the claimant on 4 May 1999 assigning her to the Department of Medicine, informing her that Professor Love was her head of department and that he would assign her immediate line-manager to her.  The claimant was not given a new job title, nor a new contract of employment, nor a new job description, nor a list of her new duties and responsibilities, nor was she allocated laboratory space in the Wellcome Laboratories.  No one had discussed any of these matters with the claimant.

(32)  The respondents have advanced a number of reasons for moving the claimant to the Department of Medicine:-

(a)                The first respondent (QUB), in giving particulars of its defence, in correspondence of 17 October 2003, stated that she was moved to provide greater scope for her to be involved in on-going research activities and to be properly supervised and directed.  It further stated that the work she had been doing in the Child Health Department was no longer being pursued by the first respondent (QUB) as a research activity.

(b)                 The second respondent (Professor Stout), in correspondence of 21 December 1998, stated that the Wellcome Laboratories were the best place for her to carry out research with her new responsibilities, following the departure of Professor Shaw.

(c)                 The second respondent (Professor Stout), in correspondence of 1 June 2000, stated that she was moved so that her work would be able to be better co-ordinated with research in the Wellcome Laboratories.

(d)                 In his evidence to the Tribunal the second respondent (Professor Stout) stated that she was moved to give her the support and the environment to get her research underway again and to create a bigger team of people in the area of research that had been selected by the first respondent (QUB) as a priority.   He also stated to the Tribunal that the claimant did not need supervision.

(e)                The third respondent (Dr. McCluskey) stated, in correspondence on 15 December 1999, that she had been moved so that Professors Shaw and Buchanan could supervise her work.

(f)     In his evidence the third respondent (Dr. McCluskey) stated that the claimant was moved to give her the opportunity of developing cardiac peptide research.

(g)               In his evidence to the Tribunal the fourth respondent (Professor McClure) said that the claimant was moved to be in a bio-chemistry ethos.

(h)                The fourth respondent (Professor McClure) also told the Tribunal that the real reason for moving the claimant was to be with her mentor, Professor Buchanan.

(33)  Professor Buchanan welcomed the claimant to her first meeting of the Policy Planning Committee on 24 May 1999.  The claimant had not been invited to the meeting.  She attended because Dr Curry went and fetched her.  At the meeting Professor Buchanan announced that she was a fully fledged member of the Department of Medicine and that she would take part in all administrative matters related to the laboratories. Notwithstanding that statement he respondents did not make any effort to integrate the claimant into the work of the Department of Medicine. 

(34)  Throughout July and August 1999 the claimant was upset as she was unsure of what she was to do - to continue her child health research or abandon it and take on new research.  She began some new research on adrenomedullin.  She continued her "Young Hearts" work until the summer of 1999.

(35)  On 30 September 1999 Professor Buchanan retired.  He had some grants for research in the Wellcome Laboratories.  Professor Johnston and Dr Curry divided the grants between them.  The third respondent (Dr. McCluskey) took over as head of department in October 1999.

(36)  The third respondent (Dr. McCluskey) allocated Professor Colin Johnston as the claimant's line-manager.  The claimant had not had a line-manager from November 1998 to October 1999.  She had not been consulted and was not happy about this allocation.  Dr Curry was similarly unhappy with the same person allocated as his line-manager.  The claimant told Dr Curry of her unhappiness.  The latter reported this to the third respondent (Dr. McCluskey).

(37)  The claimant met with the third respondent (Dr. McCluskey) to discuss who should be her line-manager.  The third respondent (Dr. McCluskey) reluctantly agreed to become the claimant's line-manager having proposed other names to the claimant. 

(38)   In August/September 1999 Kathleen Hanna, the technician who worked on the mass spectrometer and the protein sequencer went on sick leave.  She never returned during the claimant's employment.  In September 1999 the claimant attended four training courses on the mass spectrometer. 

(39)  At a meeting on the 12 November 1999 the claimant, as Kathleen Hanna's line-manager, was assigned to contact her, express the university's sympathy to her and point out the university's policy regarding prolonged ill-health.  By 19 November 1999, at the request of Personnel, the claimant arranged for Kathleen Hanna to be seen by the occupational health doctor.  The third respondent (Dr. McCluskey) thanked the claimant for her efforts on 19 November 1999 and undertook to arrange another meeting to discuss the implications for the department.  Nothing further was done by the third respondent (Dr. McCluskey) and he never ascertained if a medical examination of Kathleen Hanna had taken place.

(40)  In the absence of Kathleen Hanna the first respondent (QUB) neither made any arrangements to have her work carried out in her absence nor have her replaced.  It was left to the claimant to do the work of Kathleen Hanna in addition to her other duties and responsibilities.  This impeded the claimant from pursuing her own research interests.

(41)  In November 1999 at the Laboratory Management Committee meeting, attended by Professors Buchanan and Johnston, Dr Curry, Dr Ardill and the claimant, the issue of a grant application for funding for research and development was raised.  The research was on endocrine tumours and involved the use of the mass spectrometer.  The claimant had experience in research on endocrine tumours from 1976 to 1990 and it formed part of the work for her doctorate.  She was in charge of and had experience in the use of the mass spectrometer.  None of the other applicants had experience of the mass spectrometer.  She was not asked to provide costings of the use of the mass spectrometer for the grant application nor to become one of the applicants.

Dr Curry stated that the application should be in three names.  The grant application was in four names, Professors Buchanan and Johnston, Dr Curry and Dr Ardill.  The claimant was the only person at the meeting who did not become one of the applicants for the grant.

Dr Curry suggested that the claimant apply for a grant with the maternal child health group with another scientist with whom she worked. 

(42)   While in the Department of Medicine the claimant tried to order a pipette, a small piece of equipment, for a student but she was not allowed to do so.

(43)  The claimant stopped attending meetings in the Wellcome Laboratories from the end of November 1999.

(44)  On 29 November 1999 the third respondent's (Dr. McCluskey's) secretary asked the claimant to attend with him for an appraisal on 7 December 1999 and to submit her pre-appraisal form, completed, by the 3 December 1999. 

The claimant spoke to the third respondent's (Dr. McCluskey's) secretary.  She wanted the appraisal deferred until a later date as she wanted to complete a training course, the date for which had not been arranged.

On 30 November 1999 the third respondent's (Dr. McCluskey's) secretary changed the date of the appraisal to 14 December 1999 and asked her to submit the pre-appraisal form by 10 December 1999, as it did not suit the third respondent (Dr. McCluskey). 

(45)  The claimant did not attend the appraisal interview on 14 December 1999.  She had not notified the third respondent (Dr. McCluskey) that she would not be attending.  The claimant gave evidence that as she was busy with other things she forgot about the appointment.

(46)  The third respondent (Dr. McCluskey) summoned the claimant to his office on 15 December 1999 to explain her non-attendance at the appraisal interview.

At the meeting the third respondent (Dr. McCluskey) demanded to know why the claimant had not attended the appraisal and denied that he had changed the date of the meeting.  He also demanded to know where the claimant had been for the previous two days and when she said she was sick he wanted to know the nature of the illness and if she had a medical certificate.

The third respondent (Dr. McCluskey) handed the claimant a letter about her failure to attend the appraisal meeting.  He also raised the claimant's failure to attend the last three meetings of the laboratory management committee without explanation.

The third respondent (Dr. McCluskey) gave the claimant a verbal and a pre-prepared written warning for her failure to be present in the university for two days and for failing to produce a medical certificate to cover those two days.  In fact the claimant was not required to produce a medical certificate for sickness absences of less than five days nor had she fixed hours of attendance at the university.

The letter re-arranged the appraisal meeting for the 20 December 1999.  It also warned the claimant that if she failed to attend, without a legitimate reason, that the third respondent (Dr. McCluskey) would have to report her absence from the department and failure to attend the appraisal to Personnel. 

Following this meeting the claimant formed the view that she did not want the third respondent (Dr. McCluskey) as her appraiser.  She did not so inform him or anyone else at that time.

(47)  The third respondent (Dr. McCluskey) wrote to the claimant on 15 December 1999 about her failure to attend the appraisal meeting without any prior notice, her non-attendance at the previous three laboratory management committee meetings, the requirements of ill-health absence and that if she failed to attend the re-arranged appraisal meeting, without a legitimate excuse that he would have to inform Personnel and the Dean, the second respondent (Professor Stout).

He also wrote to the second respondent (Professor Stout) on the 15 December 1999 about the claimant's non-attendance for her appraisal.  In the letter he was much more critical of the claimant and added a number of other criticisms of the claimant of which she was unaware and he did not provide any details to support his criticisms. 

(48)  On 19 December 1999 the claimant sent an e-mail to the third respondent (Dr. McCluskey) informing him that she had a flu and it would be unlikely that she would be in work on the 20 December 1999. 

The third respondent (Dr. McCluskey) replied to the claimant's e-mail.  He re-arranged the appraisal for 10 January 2000 and asked her to forward her completed appraisal form and up-to-date curriculum vitae well in advance of the appraisal. 

On 7 January 2000 the third respondent (Dr. McCluskey) sent a reminder of the appraisal, scheduled for the 10 January 2000, to the claimant. 

(49)  The second respondent (Professor Stout) sent a memorandum to Ms Linda Bowen, in the Personnel Office, on 20 December 1999 enclosing two letters he had received from the third respondent (Dr. McCluskey).  In the body of the memorandum the second respondent (Professor Stout) asserted that the claimant's performance had caused concern for many years.   

(50)  The claimant did not attend the appraisal, scheduled for 10 January 2000, as she did not want to be appraised by the third respondent (Dr. McCluskey).  She did not advise the latter that she would not be attending or advise him that she wanted to be appraised by someone else.

(51)  While the claimant was in Mr D Gill's office, in the afternoon of 12 January 2000, the third respondent (Dr. McCluskey) confronted her.  He demanded to know why she had not attended the appraisal on 10 January 2000.  Despite the claimant's objection that the discussion take place in the presence of Mr Gill the third respondent (Dr. McCluskey) persisted with his questioning and wanted Mr Gill to remain.  He had previously arranged for Mr Gill to be a witness.

(52)  On 12 January 2000 the third respondent (Dr. McCluskey) wrote to the second respondent (Professor Stout) outlining the difficulties he had encountered in trying to arrange an appraisal with the claimant and seeking the second respondent's (Professor Stout's) assistance.  He also asserted that the claimant spent long periods not at work and did not feel the need to report to anyone about her absence.  Though this assertion was made no evidence was adduced to support it.

(53)  The second respondent (Professor Stout) wrote to the claimant by e-mail on 21 January 2000 inviting her to a meeting with him on 25 January 2000 to discuss her failure to attend for appraisal.  She was advised that she could bring a union representative, should she wish. 

(54)     The claimant met with the second respondent (Professor Stout) on 25 January 2000.    In the course of the discussion the claimant explained to the second respondent (Professor Stout) that she spent a lot of her time covering for the absence of the laboratory technician, Kathleen Hanna.

The second respondent (Professor Stout) asked her had she considered working in the hospital or industry.  He went on to explain that there were severance packages for people like her but did not elaborate further.

The claimant indicated to the second respondent (Professor Stout) that she did not want to be appraised by the third respondent (Dr. McCluskey).

Arising from the discussion Professor King was appointed to appraise the claimant.  The second respondent (Professor Stout) also wrote to the third respondent (Dr. McCluskey); advising him that Professor King would appraise the claimant; to keep a record of her timekeeping etc; and that the claimant had informed him that she had been working as a technician for several months due to the absence through sickness of a member of staff. 

(55)  On 9 February 2000 the third respondent (Dr. McCluskey) wrote to Professor Halton, Chairman, User Committee Peptide and Protein Sequencing Unit, about the claimant doing the work of the absent sick technician as he felt it was inappropriate for someone of her grade. 

(56)  The third respondent's (Dr. McCluskey's) secretary contacted Mrs Short in Personnel on 14 February 2000 to arrange for him to speak to someone about on-going problems with the claimant.  A meeting with the third respondent (Dr. McCluskey) was arranged for 21 February 2000.

(57)  Professor King appraised the claimant on 16 February 2000.  He undertook to explore the possibility of improving her situation in order to attempt to revitalise her interest and motivation in research.  Professor King did not contact her again and her situation remained unchanged. 

(58)  The third respondent (Dr. McCluskey) met with Mrs Short on 21 February 2000 to discuss the claimant.  He complained he had on-going problems with the claimant since he became head of department and in particular about her failure to meet with him, regarding her appraisal, and to provide details of her workload.  Mrs Short recorded in her file note that she agreed to write to the claimant and advise her that she must meet with the third respondent (Dr. McCluskey).  She also advised the third respondent (Dr. McCluskey) to approach the meeting in a non-confrontational manner.  

(59)  By e-mail, the third respondent (Dr. McCluskey) wrote to the claimant on 21 February 2000 seeking to meet with her on 25 February 2000.  The claimant replied, by e-mail on 23 February 2000, inquiring what the meeting was about, who would be present and its duration.  The third respondent (Dr. McCluskey) replied, by e-mail on 24 February 2000, stating that it was essential he meet with her, for 30 minutes, to discuss her work within the department and to inform her of developments, including the use of the mass spectrometer and peptide sequencer. 

The claimant did not attend for the meeting nor advise the third respondent (Dr. McCluskey) in advance that she would not be attending.  She did not want to meet him again as she found him intimidating.  She said that he shouted at her and she did not like that.  She informed the Tribunal that she could not write an e-mail to the third respondent (Dr. McCluskey) explaining that she did not want to meet him.

(60)  Professor Nicholls wrote to the third respondent (Dr. McCluskey), at the latter's request, on 23 February 2000.  In his letter he lamented the absence of results, abstract or publication on cardiovascular peptides after two years.  He asserted that he understood, from Professor Buchanan, that the claimant had agreed to take an interest in cardiovascular peptides.

A similar problem related, he stated, to the generation of an assay for endothelia.  Professor Nicholls also complained that attempts to raise an assay to the newly found vasodilator peptide adrenomedullin had not progressed.

Finally Professor Nicholls said that he was very disappointed by the lack of drive for research and development in this area which he believed was extremely topical and presented the first respondent (QUB) with the chance of being a major world player. 

(61)  The claimant was not particularly interested in cardiovascular peptides.  She had indicated this to Professor Buchanan on 14 April 1999 although she said she would support such a service being offered by the laboratories. 

Professor Nicholls had visited the claimant in 1999, on a few occasions, while she was still in Child Health.  He had discussed his work with Professor Shaw with her, peptides in general and the work of his MD student.

At one of the meetings the claimant agreed to develop two assays for his MD student Mr Ong.  The claimant assisted in the development of the two assays endothelia and adrenomedullin.  She was then transferred to the Department of Medicine.

Further development of the assays, thereafter, had not been agreed by the claimant.  They could not be further developed as the funding provided for the research by Professor Nicholls had been short-lived.  

(62)  The third respondent (Dr. McCluskey) wrote to the claimant on 25 February 2000 outlining his disappointment that the claimant had not attended for a meeting on 25 February 2000.  He also stated that he knew that she had been around the laboratories that morning.  He concluded by advising the claimant that he would report the matter to the second respondent (Professor Stout) and the Personnel Department. 

(63)  On 25 February 2000 the third respondent (Dr. McCluskey) also wrote to Mrs Una Short in the Personnel Department.  In the letter he outlined the claimant's non-attendance at the meeting that morning.  He also raised a number of other issues - her non-co-operation with other members of staff; not teaching students; not supervising research; not being involved in the administration of the department; his ignorance of the research in which she was involved; and a number of studies in which she was involved had not taken place.  He requested that Personnel institute disciplinary action against the claimant. 

(64)  The claimant had indicated her willingness to give lectures but was only asked to give a couple of lectures which she gave.  She supervised Professor Nicholls' MD student, a research student and students who came to use the mass spectrometer, of which the claimant was in charge.  The claimant had established research with Doctors Craig and Tubman but was not given any credit for it.  The fourth respondent (Professor McClure) took the sole credit for this research.  The only administration allocated to her was in relation to the mass spectrometer and the protein sequencer which she carried out.

(65)    The third respondent (Dr. McCluskey) confronted the claimant in her office around 4.00 pm on 25 February 2000, demanding to know why she had not attended a meeting with him that morning, and where she had been as he had looked for her. 

The third respondent (Dr. McCluskey) was aggressive during this meeting and raised his voice to her.  The claimant attempted to leave the office and the third respondent (Dr. McCluskey) took hold of her arm and asked her where she was going.  The claimant maintained she was terrified.

When she left the office the third respondent (Dr. McCluskey) followed her.  The claimant warned the third respondent (Dr. McCluskey) that if he did not stay away from her she would make a complaint against him for harassment.  The third respondent (Dr. McCluskey) replied that he intended to take disciplinary action against her to have her removed from the department.

Following this encounter the third respondent (Dr. McCluskey) returned to his office and made a handwritten file note of the meeting.  The file note stated;-

"File Note Dr M. O'Hare

25.2.0 0          4 pm  I went to Dr O'Hare's office to ask her why she did not attend for our meeting at 10 am – she stated that she was in the laboratory working – when I pointed out to her that I had gone to the laboratory at 10.45 am she was not there and staff in the laboratory had not seen her for nearly 1 hour.

 She left the office and refused to talk to me further.

When I left and she was standing in the corridor outside her

office I informed her that she left me no alternative but to report the matter to personnel."

The third respondent (Dr. McCluskey) took the unusual step of signing, dating and timing the file note and having it signed by his secretary in addition to himself.

The third respondent (Dr. McCluskey) had not previously made a handwritten file note of a meeting and had it witnessed by his secretary.  He stated that he had taken these steps because he wanted proof that the file note was made.  He also explained that there was not any reason why the note could not have been typed by his secretary in the normal fashion on the following Monday.

The Tribunal did not find his explanation persuasive as to why he had signed, dated and timed the file note and got his secretary to sign it for a meeting that, according to his account, contained nothing controversial. 

(66)  By letter of 2 March 2000 Mrs Short, from Personnel, wrote to the claimant seeking to discuss informally issues raised by the third respondent (Dr. McCluskey) in a letter to Personnel. 

(67)  On 13 March 2000 Mrs Short met with the claimant.  She asked the claimant why she had not met with the third respondent (Dr. McCluskey).  The claimant explained that there had been major problems with the third respondent (Dr. McCluskey) and explained to her about his conduct to her.  She stated that she did not feel comfortable in his company.  A meeting between the claimant and the third respondent (Dr. McCluskey) was arranged for the 28 March 2000 in Mrs Short's office and with her in attendance. 

(68)  The claimant met with the third respondent (Dr. McCluskey) on 28 March 2000 in Mrs Short's office and in her presence.  The third respondent (Dr. McCluskey) asked the claimant a lot of questions about her research.  He had a document with him, which the claimant believed was Professor Nicholls' letter of 23 February 2000.  The claimant was reticent about discussing her research with the third respondent (Dr. McCluskey) and gave him little information.  She reminded the third respondent (Dr. McCluskey) that she was continuing to do the technical work in the absence of Kathleen Hanna.

During the meeting the claimant stated that she did not want to remain in the Department of Medicine.  After the meeting the claimant remained with Mrs Short.  They discussed the early retirement of the claimant.  Mrs Short undertook to contact the second respondent (Professor Stout), about severance for the claimant. 

(69)  On 28 March 2000 the third respondent (Dr. McCluskey) wrote to the second respondent (Professor Stout) enclosing his file note of the meeting with the claimant in Mrs Short's presence.  In his letter he asserted; that the claimant was not functioning as a lecturer within the Department of Medicine; and was very unhappy that she had been moved to work with peptides.  He further asserted; she was not contributing to research, supervision of students or teaching; and had expressed a view that she did not see her future within the Department of Medicine and wished to leave. 

(70)  The second respondent (Professor Stout) wrote to the first respondent's (QUB's) Registrar in support of a severance arrangement for the claimant on 1 June 2000.  In the memorandum he stated that the claimant's work in the Department of Child Health was unsatisfactory and unproductive; that she was moved to the Department of Medicine two years ago so that her research could be better co-ordinated with the research in the Wellcome Laboratories and this had not proved successful; that the four papers produced by the claimant since 1996 were not of particularly high quality; that for strategic reasons she was unlikely to be returned for the RAE; and her work patterns and general attitudes had been disruptive to the School.

In giving his evidence to the Tribunal the second respondent (Professor Stout) explained that this letter was written to make the strongest case for severance for the claimant.  He went on to say that it was not productive to focus on this letter apart from the purpose of the letter.

(71)  On 23 June 2000 the Registrar agreed that an offer of severance could be made to the claimant and inquired what would be a suitable effective offer date to the faculty.  The second respondent (Professor Stout) replied on 27 June 2000 that the offer date be as soon as possible.  On 28 June 2000 the Pensions Officer wrote to Mrs Short setting out the severance package for a leaving date of 30 September 2000. 

(72)  From April to August 2000 the claimant continued to be involved in research.  In July 2000 the claimant inquired about flexibility in the leaving date.  She was reconsidering the matter as her situation had improved.  The third respondent (Dr. McCluskey) was leaving her alone.  She had resumed work on human milk in collaboration with Professor Shaw, UU, and had begun new collaboration with Dr Niall Caldwell in Cork University.  She also resumed collaboration with Southhampton University.  In addition she had promised Dr Ong that she would complete the development of the assays for his thesis.  Frances Magennis advised the claimant that there was no flexibility in the leaving date.

(73)  The claimant said that Personnel had advised her in July 2000 that the second respondent (Professor Stout) wanted her out of the university by the end of the year.  Although the second respondent (Professor Stout) did not recall making this remark he did accept that he wanted the claimant's date of leaving as soon as possible and stated that he might have said that he wanted it tidied up by the end of the year.

(74)  The second respondent (Professor Stout) met with the claimant on 15 September 2000 to discuss her research.  In the course of the discussion he made it clear that he was not interested in her research and described it as "fantasy".  The second respondent (Professor Stout) proposed that the claimant meet with him and the third respondent (Dr. McCluskey).

(75)  On 5 October 2000 the claimant met with the second and third respondents (Professor Stout and Dr. McCluskey) to discuss her research.  At the meeting the second respondent (Professor Stout) accepted that there was nothing wrong with her research.  He stated that the claimant was a good researcher and an outstanding protein chemist. The claimant agreed to return to the departmental meetings.

(76)  A Policy Planning Group meeting was held on 30 November 2000 in the third respondent's (Dr. McCluskey's) office.  The claimant had not been invited to the meeting.  After the meeting had begun the claimant was asked to attend.  At the meeting the pricing of assays was discussed.  On a prepared list of assays a number of them, developed by the claimant, was attributed to the first respondent (QUB) and not the claimant unlike other assays which were attributed to individuals. The list gave the impression she had only developed two assays whereas in fact she had developed five.  The claimant was not invited to participate in the pricing of the assays.  Dr Ardill and Professor Johnston took it upon themselves to price the assays. 

The latter two persons were each allocated one of the two accounts previously controlled by Professor Buchanan. 

(77)  The amount of money generated for the first respondent (QUB) by reason of assays developed by the claimant could not be determined, though the claimant believed substantial sums were generated.

(78)  Over the Christmas vacation in 2000 the claimant considered her position.  She had refused the severance package and had done what she had been asked to do by the second respondent (Professor Stout) yet she felt nothing had changed.  She continued to suffer exclusion.  She believed that the reason was based on her sex and her religion.

(79)  The claimant was scheduled to return to work with the first respondent (QUB) on 3 January 2001 but she did not return.  She was paid until the end of January 2001.

(80)  The second respondent (Professor Stout) wrote to the claimant on the 15 January 2001 and advised her that only those who had demonstrated clear excellence in research and are part of the coherent research strategy of the university would be returned in the RAE 2001 and that she would not be returned.  In evidence to the Tribunal he stated that he did not think the claimant would be returned in the 2001 RAE as she was not part of the broad research strategy.

(81)  An article that appeared in the American Medical Journal of 2002, based on a paper presented on 16 February 2002, failed to give credit to the claimant for her part in its authorship though Dr Ardill was mentioned. 

(82)    The claimant believes that she suffered less favourable treatment because she was female or Catholic or both.

(83)  The fourth respondent (Professor McClure), in denying discrimination against the claimant on the grounds of her sex told the Tribunal, "I must have worked with up to 300 female nurses in a variety of countries and 15,000 mothers." 

The Law

 5.       (1)       A breach of contract arises when the first respondent (QUB) breaches any term of the claimant's contract of employment whether that term is an express term or an implied term or arises by operation of law.

(2)       To establish a constructive dismissal that is unfair the claimant must prove that;

(a)       there was a breach of her contract of employment, and

(b)       the breach went to the core of the contract, and

(c)       the breach was the reason or principle reason for her resignation, and

(d)       she did not delay in resigning after the breach occurred, and

(e)       in all the circumstance the first respondent (QUB) acted unreasonably.

(3)       The breach of contract can be the breach of an express term of the contract or a breach of the implied term of trust and confidence or both.

(4)       A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct by the employer over a period of time.

(5)       Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.

(6)       It is unlawful to discriminate against another on the ground of religion or political opinion (Article 3(7) Fair Employment and Treatment (Northern Ireland) Order 1998).

(7)       It is unlawful to discriminate against another on the ground of sex (Article 3(1) Sex Discrimination (Northern Ireland) Order 1976).

(8)       Discrimination on the grounds of religion or political opinion is to treat someone less favourably than another on the ground of religion or political opinion (Article 3(2)(a) Fair Employment and Treatment (Northern Ireland) Order 1998).

(9)      Discrimination on the grounds of sex is to treat a woman less favourably than a man on the ground of sex (Article 3 Sex Discrimination (Northern Ireland) Order 1976).

(10)     It is for the claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 is to be treated as having committed such an act of discrimination against the claimant (Article 63A Sex Discrimination (Northern Ireland) Order 1976).

(11)     It is for the claimant who complains of discrimination on the grounds of religion or political opinion to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 35 or 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998 is to be treated as having committed such an act of discrimination against the claimant (Article 38A Fair Employment and Treatment (Northern Ireland) Order 1998).

(12)     The Northern Ireland Court of Appeal in McDonagh and Others v Samuel John Hamilton Thom T/A The Royal Hotel Dungannon [2007] NICA 3 stated that,when considering claims of discrimination, Tribunals must have regard to the burden of proof.  The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812

In the McDonagh case the Northern Ireland Court of Appeal recommended that Tribunals adhere closely to the guidance in Igen.

The guidance set out in the Annex to the Igen case is:-

"(1)     Pursuant to s 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of PtII or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant.  These are referred to below as 'such facts'.

(2)       If the claimant does not prove such facts he or she will fail.

(3)       It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

(4)       In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5)       It is important to note the word 'could' in s 63A(2).  At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6)       In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7)      These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.

(8)       Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA.  This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9)       Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10)     It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11)     To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

(12)    That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13)    Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."

(13)          In the McDonagh case Kerr LCJ stated that the first question to be addressed is has the claimant proved on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination.  The Lord Chief Justice went on to say:-

"In addressing this question, it would be necessary for the judge to bear a number of ancillary issues in mind.  First, that it is unusual to find direct evidence of discrimination.  Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts.  Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists."

(14)    The application of the burden of proof was also considered in Madarassy v Nomura International PLC [2007] EWCA Civ 33.  In that case Mummery LJ,who gave the decision of the English Court of Appeal, stated at paragraph 52:-

"She [Madarassy] only has to prove facts from which the Tribunal "could" conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a "prima facie" case."

At paragraph 54 the learned Lord Justice went on to say:-

"I am unable to agree with Mr Allen's [counsel for the appellant] contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing facts of a difference in status and a difference in treatment of her."

At paragraph 56 he stated:-

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

The learned Lord Justice elaborated on "could conclude" at paragraphs 57 and 58:-

"Could conclude" in section 63A(2) must mean that "a reasonable Tribunal could properly conclude" from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory "absence of an adequate explanation" at this stage…., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.

The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent."

Further clarification was given by Mummery LJ at paragraph 71:-

"Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy."

(15)  To succeed in a claim for discrimination on the grounds of sex or religious belief or political opinion a claimant must show that the respondent treated him less favourably than he treated or would treat other persons on the grounds of sex or religious belief or political opinion.

In comparing the cases of persons of different sex or religious belief or political opinion the relevant circumstances in the one case must be the same or not materially different from the other.

(16) In Shamoon v Chief Constable of the RUC (HL) [2003] ICR 337 the House of Lords gave helpful guidance to Tribunals faced with the task of assessing whether a claimant has established the evidentiary ingredients to prove discrimination.  Lord Nicholls stated at page 342 paragraph 12;-

"The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case.  There will be cases where it is convenient to decide the less favourable issue first." 

(17)    In considering the less favourable treatment element Lord Hope stated in Shamoon at page 356 paragraph 54;-

"…The question is whether the way in which the applicant was in fact treated was different from the way the other chief inspectors would have been treated if they too were persons over whom Superintendent Laird had responsibility and the complaints and representations had been directed against them.  If the answer to that question is yes, and there is no other explanation, it can be inferred that she was treated less favourably than they would have been on the ground of her sex."

(18)     In Nagarajan v London Regional Transport [1999] ICR 877, 884 Lord Nicholls said;-

"…Treatment, favourable or unfavourable, is a consequence which follows from a decision.  Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming.  Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."

(19)    The less favourable treatment element may be established by reliance on an actual comparator or a hypothetical comparator.

In Shamoon, however, in discussing the evidential value of comparators Lord Scott stated at page 373 paragraph 109;-

"…, comparators have a quite separate evidential role to play.  Article 7 has nothing to do with this role.  It is neither prescribing nor limiting the evidential comparators that may be adduced by either party.  The victim who complains of discrimination must satisfy the fact-finding Tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition.  This may be done by placing before the Tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class.  Comparators, which for this purpose are bound to be actual comparators, may of course constitute such evidential material.  But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground, e g sex.  The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim.  The more significant the difference or differences the less cogent will be the case for drawing the requisite inference.  But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator, e g, under Article 7, by no means disqualifies it from an evidential role.  It may, in conjunction with other material, justify the Tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if she had been the article 7 comparator." (paragraph 109)

Lord Scott continued at page 375 paragraph 116;-

"…But in the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination.  Discriminatory comments made by the alleged discriminator about the victim might, in some cases, suffice.  Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in other cases suffice…."

Lord Rodger, when discussing the same issue, stated at page 383;-

"…In a contested claim before a Tribunal the applicant has to prove how her employer would have treated a male employee in the circumstances which, ex hypothesis, have not actually occurred.  That male employee is often referred to as a "hypothetical comparator".  In some cases the applicant's task may be relatively easy.  For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances.  By proving the existence of the policy or practice the applicant may hope to satisfy the Tribunal that, in the (unique) situation in which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him."

Lord Rodger added;-

"In many cases, however, the applicant leads more general evidence and invites the Tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances. (Paragraph 140)

He continued at paragraph 143;-

"…Discrimination is rarely open and may not even be conscious.  It will usually be proved only as a matter of inference……The important point is that there are no restrictions on the types of evidence on which a Tribunal can be asked to find the facts from which to draw the necessary inference." 

In his judgement Lord Hutton stated;-

"Article 3(1)(a) of the 1976 Order and section 1(1) of the 1976 Act are somewhat different in their practical application, because if an employer treats a female employee less favourably than he treats or would treat a male employee, it is often implicit in such treatment that it takes place on the ground of her sex, whereas an employer may well treat an employee less favourably than he treats or would treat other employees, for reasons other than race…." (paragraph 69)

(20)     In Chief constable of West Yorkshire v Vento [2001] IRLR 124 the

Employment Appeal Tribunal considered the issue of comparators.  Having found that an actual comparator did not exist Lindsay J said;-

"…  It followed that the Tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances.  One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases." (paragraph 7)

In analysing the decision of the employment Tribunal Lindsay J observed;-

"…, it is all too easy to become nit-picking and pedantic in the approach to comparators.  It is not required that a minutely exact actual comparator has to be found.  If that were to be the case, then isolated cases of discrimination would almost invariably go uncompensated.  It is thus the case that inferences will very frequently need to be drawn.  They are not, of course, to be drawn from thin air.  But, equally, the facts from which they are drawn do not have to be such that the inference found is the only possible conclusion which those facts could lead to.  It is properly to be left to the good sense of the Tribunal that also has the advantage of seeing and hearing the witnesses giving such explanations as they may of those surrounding circumstances."(paragraph 12)

In the Vento case, as appears from the headnote, the employment Tribunal, in the absence of an actual comparator, concluded that a hypothetical male probationer in the same position as the claimant would have been offered a permanent position as a police officer.

In arriving at that conclusion the Tribunal looked at how four other police constables had been treated in various circumstances which it considered relevant.  The Employment Tribunal had stated,  "there are elements in the treatment of the comparators that lead us to conclude that the applicant was less favourably treated than a hypothetical male officer would have been in the same circumstances". 

On appeal to the Employment Appeal Tribunal the appellant had contended that the Tribunal had erred by relying on the treatment of the four comparators because none of them was a true comparator whose circumstances were the same or not materially different.

In dealing with this matter Lindsay J stated on behalf of the Employment Appeal Tribunal;-

"The Tribunal used the four actual cases as if building blocks in the construction of the neighbourhood in which the hypothetical male officer was to be found.  For the Tribunal to have relied on the four actual comparator cases in that way was not only not an error of law, it was, as it seems to us, the only proper way for it to proceed on the evidence put before it." (paragraph 15)

In referring to Vento Lord Rodger in Shamoon commented in relation to the four actual comparator cases;-

"Despite the differences, the Tribunal may be able to use that evidence as a sound basis for inferring how the employer would have treated a male employee in the same circumstances as the applicant." (paragraph 143)

(21)    The decided cases indicate that it is usual, in assessing whether discrimination has been proved on proscribed grounds, for Tribunals to rely on inferences and deductions from facts found because it is unusual for direct evidence of discrimination to be available.

Application of the Law and Findings of Fact to the Issues

 6.       (1)       Up to 1998 there was not any recorded criticism of the claimant.

(2)      The claimant was returned in the RAE exercises in 1992 and 1996.  In 1993/94 she successfully completed her probationary period.  She had a positive appraisal from Professor Dodge in 1992.  In 1996 she was put in charge of the four laboratories in Child Health.

(3)       By reason of her return in the RAE exercises of 1992 and 1996 the claimant has demonstrated clear excellence in research and that she was also part of the first respondent's (QUB's) coherent research strategy.

(4)      As part of the restructuring exercise, undertaken by the first respondent (QUB) in 1998, severance or early retirement was offered to academic staff identified as under-performing.  The claimant was not identified as under-performing.

(5)       In approaching this matter the Tribunal followed the approach set out by Kerr LCJ in the McDonagh case and Mummery LJ in the Madarassy case.

(6)      From 1996 the claimant was treated unfavourably.  Among the instances of this unfavourable treatment are:-

(a)      The claimant was not properly appraised in 1996 and 1997 by the fourth respondent (Professor McClure) (male and Protestant) and as a consequence was denied the benefits of the appraisal process.

(b)      The respondents failed to consult with the claimant about the closure of the Child Health laboratories in 1998 despite the fact that she was in charge of the laboratories.  The fourth respondent (Professor McClure) had discussed with departmental heads (all male and Protestant) and Mr McMaster (male and Protestant), a technician line-managed by the claimant, about the closure of the laboratories.

The claimant's research materials were removed from the laboratories without informing her or seeking her consent.  She was not advised to where her materials were removed or where she was to continue her research.

(c)       The respondents failed to consult with the claimant about her transfer from Child Health to the Department of Medicine, although discussions were taking place about her transfer in her absence.  They failed to seek her views on the transfer or explain the rationale for the transfer or how it fitted into the research strategy or how it assisted her career development and what work she was to do.  This is inexplicable in the light of the respondents' assertion that she had the option not to transfer, which was never communicated to her.

(d)      The respondents, following the claimant's transfer, failed to provide the claimant with new terms and conditions of employment, a job description or to specify her new tasks.

(e)      The respondents failed to integrate the claimant into the Department of Medicine.  Little or no attempt was made to make her welcome or to acquaint her with the work of the department or to involve her in the work or discuss with her involvement in the work of the department or to inform her of her new responsibilities or to attempt to implement any of the proffered reasons for her transfer.

(f)        Once the claimant had moved to the Department of Medicine the third respondent (Dr. McCluskey) was reluctant to become her line-manager.   She had not had a line-manager for 11 months.

(g)      The respondents did not take any steps to prevent the claimant from having to do the work of the technician, Kathleen Hanna, who was off work ill from August/September 1999 and her position remained unfilled while the claimant was in the employment of the first respondent (QUB).

(h)       At the Laboratory Management Committee meeting in November 1999 the claimant was excluded from the research and development grant application being undertaken while the other four members of the Laboratory Management Committee were included in the application.

(i)        The respondents raised difficulties in relation to the claimant's participation in the work of the Department of Medicine.  This manifested itself in a number of ways which included:-

A        Objecting to the claimant line-managing Kathleen Hanna, the technician charged with working on the mass spectrometer, of which the claimant was in charge, because the claimant was in the Department of Child Health and Kathleen Hanna was in the Department of Medicine.

This was done on at least two occasions despite the objectors being aware that the claimant was being transferred to the Department of Medicine.  Yet Dr Ardill, who is not an employee of the first respondent (QUB) but an honorary lecturer, line-managed Bronagh McKibben an employee of the first respondent (QUB).

B        The refusal to allow the claimant to order pipettes, essential to the claimant's research, or provide her with a supply of the same when apparently Dr Curry had taken possession of all the pipettes.

C        The purported imposition of verbal and disciplinary warnings on the claimant, by the third respondent (Dr. McCluskey) on 15 December 1999 for her failure to attend an appraisal meeting without implementing any of the essential procedures of a fair disciplinary procedure.

D        The exaggerating of complaints against the claimant, by the second and third respondents (Professor Stout and Dr. McCluskey), subsequent to her failure to attend appraisal meetings by erroneously claiming she was in breach of sickness procedures or alleging she was wrongfully absent from work even though the claimant did not have specific hours of work and without producing any evidence of her wrongful absence from work.

(j)        In November 2000 the respondents failed to include the claimant in the sub-committee for the pricing of assays.  They had failed to invite her to the meeting to discuss the pricing of assays.  The list of assays, prepared by Dr Ardill, contained errors.  It did not give credit to the claimant for the assays she had developed whereas it did give credit to others who had developed assays.

(k)       Professor King (male and Protestant) failed to follow up ways of revitalising her interest and motivation in research following the 1999 appraisal carried out on 16 February 2000.

(l)        The fourth respondent (Professor McClure) treated the claimant unfavourably in the following ways:-

A         He failed to carry out the appraisals of the claimant in 1996 and 1997.

B         He failed to consult with the claimant about the closure of the Child Health Laboratories.

C         He failed to consult with the claimant about her transfer from Child Health to Department of Medicine.

D         At a meeting in October 1998 he ordered the claimant out of his office inappropriately.

(m)     The third respondent (Dr. McCluskey) treated the claimant unfavourably in the following ways:-

A        He was reluctant to line-manage the claimant.

B        He was confrontational with the claimant about her failure to attend appraisal meetings on 15 December 1999 and 12 January 2000 and arranged Mr Gill's inappropriate presence at the meeting of 12 January 2000.

C        He failed to deal with the absence of Kathleen Hanna or make any provision for the discharging of Kathleen Hanna's duties and left a research academic to do technician's work for 15 months.

D        He sought to exaggerate difficulties posed by the claimant following her failure to attend for appraisal by imposing disciplinary warnings, in breach of procedures, erroneously alleging the claimant breached the sickness policy and alleging the claimant was wrongfully absent from work even though she did not have set hours and without producing evidence of wrongful absence.

E        He solicited a letter, critical of the claimant, from Professor Nicholls and used it at a meeting with the claimant on 28 March 2000 to criticise her performance even though it contained inaccuracies about what the claimant had agreed to do as is clear from her evidence and the note of Professor Buchanan's discussion with the claimant on 14 April 1999.

F         He wrote to the second respondent (Professor Stout) and exaggerated the difficulties posed by the claimant's failure to attend for appraisal, by expanding into alleged sickness irregularities, attendance issues which were not correct, making an issue of her desire not to be line-managed and inaccurately stating Dr Curry had been proposed as her line-manager.

G        He was confrontational at his meeting with the claimant on 25 February 2000.

H        He exaggerated the difficulties posed by the claimant to the Personnel Department.

(n) The second respondent (Professor Stout) treated the claimant unfavourably in the following ways:-

A        Though he did not favour paediatric research he made no effort to inform the claimant about his or the first respondent's (QUB's) plans for research and how the claimant would participate in the first respondent's (QUB's) research strategy.

B         He failed to take any steps to evaluate the accuracy of the criticisms of the claimant made by the third respondent (Dr. McCluskey) in his letter of 15 December 1999.

C        Similarly in his memo to Personnel of 20 December 1999 he referred to problems with the claimant for years but in his evidence to the Tribunal stated that he only wrote to Personnel because of the issue of her non-attendance at appraisals.

D        At the meeting of the 25 January 2000 with the claimant he raised the issue of severance from the university with her and proposed she consider working in the hospital or industry.  The claimant regarded these proposals as an attempt to remove her from the university.

E         In making a request for severance for the claimant, by memorandum of 1 June 2000, he made a number of critical comments about the claimant which were not accurate and which were designed to successfully achieve a severance arrangement for the claimant.

F         He was demeaning of the claimant in describing her research as "fantasy".

(o)      The claimant also suffered unfavourable treatment at the hands of other members of staff of the first respondent (QUB) - Professor Johnston, Dr Curry and Dr Ardill (an NHS employee but honorary lecturer in QUB) in the following ways:- 

A        Professor Johnston, in the audit report carried out in 1997, described the claimant's productivity as "poor" and made a comment about her "make her work".  His co-author Dr Ennis, in evidence to the Tribunal, disassociated herself from those comments.

B        Dr Curry did not want the claimant to move to the Wellcome Laboratories.  He made this clear to Professor Buchanan before the claimant had transferred to the Department of Medicine and without knowing her or her research.

C        On Professor Buchanan's retirement Professor Johnston and Dr Curry divided his grants between them and excluded the claimant from benefiting from the grants.

D        The Tribunal accepts the evidence from the respondents that Professor Buchanan was a mentor to the claimant and regarded her highly.  He was keen to involve the claimant in all administrative matters related to the Wellcome Laboratories as he had stated at the meeting of the Policy Planning Committee on 24 May 1999.

Consequently her exclusion from the Research and Development grant application was probably carried out by the three other members of Laboratory Management Committee Professor Johnston, Dr Curry and Dr Ardill at the meeting in November 1999.

E        Similarly the claimant did not have pipettes for her work as Professor Johnston forbade ordering them and Dr Curry held and controlled any pipettes that the department had.

F         The list of assays with the developer's name alongside did not give the claimant credit for the assays prepared by her.  This list was prepared by Dr Ardill.

G        At the assay-pricing meeting of 30 November 2000 Professor Johnston and Dr Ardill excluded the claimant from pricing the assays.

(7)      In considering this matter the Tribunal poses the question as to whether the unfavourable treatment the claimant received and set out above amounts to less favourable treatment.      

In the instant application there is not an actual comparator whose relevant circumstances were the same as or not materially different from those of the claimant.

(8)             If the claimant is to succeed in her claim she must avail of the hypothetical comparator as a means of establishing discrimination on proscribed grounds.

Unlike the Shamoon case there is not, in this claim, an actual person or persons against whom the claimant's treatment can be directly compared.

(9)      The Tribunal finds that the claimant did suffer less favourable treatment.  The Tribunal arrived at that conclusion by following the approach of the Employment Appeal Tribunal in Vento and by inferences it draws about the nature of the unfavourable treatment suffered by the claimant.

(10)         The Employment Appeal Tribunal's approach in Vento enables Tribunal to have regard to actual circumstances and to use those circumstances as building blocks in the construction of the neighbourhood in which the hypothetical male or Protestant lecturer was to be found.  Those particular sets of circumstances were;-

(a)      Mr Cyril McMaster was informed of the closure of the Child Health laboratories whereas the claimant, who was in charge of them and was Mr McMaster's line-manager, was not informed or consulted.

(b)       Objection was raised to the claimant, while in the Child Health Department, line-managing a technician (Kathleen Hanna) in the Department of Medicine whereas no objection was raised to Bronagh McKibben being line-managed by Dr Ardill who was not even an employee of the first respondent (QUB).

(c)     The third respondent (Dr. McCluskey) reluctantly became line-manager of the claimant but was not reluctant to become Dr Curry's line-manager.

(d)      The respondents did not adduce any evidence that any other academic member of staff, apart from the claimant, was left to do the job of a technician for 15 months.

(e)     On Professor Buchanan's retirement Professor Johnston and Dr Curry divided his grants between them.  The claimant was not offered any of the grants.

(f)      The claimant was criticised for only having lead authorship in four publications whereas Dr Curry had none in the same period.

(11)     The Tribunal infers that the unfavourable treatment, set out above, was specifically directed at the claimant and was an attempt to exclude her from the Department of Medicine or perhaps the university itself.  In coming to this conclusion the Tribunal had particular regard to the following;-

(a)      The second respondent's (Professor Stout's) declaration to the claimant that he did not want paediatric research without suggesting to her what her role would be in the strategic research.

(b)      The absence of any consultation or discussion with the claimant about closure of the Child Health labatories. 

(c)       The absence of discussion with the claimant about her move to the Department of Medicine despite the respondents asserting that such a move was merely an option open to the claimant.

(d)      Dr Curry's opposition to the claimant coming to the Department of Medicine.

(e)      The lack of any serious effort to integrate the claimant into the work of the Department of Medicine.

(f)        The respondents' differing and not wholly consistent reasons for the claimant's move to the Department of Medicine.

(g)       The claimant's exclusion from any of Professor Buchanan's grant monies on his retirement.

(h)       The absence of a line-manager for the claimant for 11 months.

(i)        The failure to address the issue of the absence of the technical support to the claimant for 15 months.

(j)        The exclusion of the claimant from the grant application in November 1999.

(k)       The purported administration of a verbal and written disciplinary warnings to the claimant without any proper procedures being followed.

(l)        The exaggeration to Personnel of complaints about the claimant's performance and attendance and erroneously alleging she breached the first respondent's (QUB's) sickness policy and her contract of employment in relation to attendance and teaching.

(m)     The second respondent's (Professor Stout's) proposal to the claimant that she consider working in the hospital or industry or consider severance i.e. out of the university.

(n)      The solicitation by the third respondent (Dr. McCluskey) of a letter from Professor Nicholls critical of the claimant.

(o)      The second respondent's (Professor Stout's) memorandum of 1 June 2000 to Personnel to obtain severance for the claimant which was composed for that purpose only and contained unjustified criticism of the claimant.

(p)      The second respondent's (Professor Stout's) wish that the claimant be out of the university before the end of the year (2000) and his description of her research as "fantasy".

(q)      The non-invitation of the claimant to meetings to which she should have been invited.

(r)        The failure to give the claimant credit for the assays she had developed.

(12)    The Tribunal finds that the less favourable treatment visited on the claimant by the respondents was on proscribed grounds i.e. on the grounds of her sex or religion or both.  In so concluding the Tribunal had regard to all the evidence adduced apart from evidence relating to  the explanation for the respondents' conduct,  and in particular to the following matters:-

(a)      All the perpetrators of the less favourable treatment were Protestant.

(b)      All the perpetrators of the less favourable treatment, apart from Dr Ardill were male.

(c)       The fourth respondent (Professor McClure), in denying discrimination against the claimant on the grounds of her sex told the Tribunal, "I must have worked with up to 300 female nurses in a variety of countries and 15,000 mothers."  The claimant was not a nurse or a mother but rather a university colleague and the Tribunal believes his comments are indicative of how he saw the claimant.

(d)      At the meeting of November 1999 when the claimant was excluded from the Research and Development grant application Dr Curry proposed to her that she make a grant application with the maternal child health group.

(e)      The respondents advanced a number of different and not wholly consistent reasons as to why the claimant was moved from Child Health to the Department of Medicine.  A number of the declared reasons bear little relationship to what actually happened.

(i)     The first respondent (QUB) stated that he claimant was moved to provide greater scope for her to be involved in on-going research activities and to be properly supervised and directed.

However the claimant was not assigned any new tasks or responsibilities.  No attempt was made to integrate her into the Department of Medicine.  She was not invited to meetings within the department.  She was excluded from a grant application dealing with endocrine tumours, which she had specialised in for years and which had formed part of her doctorate and which involved the use of the mass spectrometer of which she was in charge.  She did not have a line-manager from November 1998 to October 1999 although she was told of her move to the Wellcome Laboratories on 21 December 1998.  In evidence the second respondent (Professor Stout) said that she did not need supervision.

(ii)               The second respondent (Professor Stout) stated that the Wellcome Laboratories were the best place for her to carry out research with her new responsibilities, following the departure of Professor Shaw.

The claimant was not told what her new responsibilities were.  Nor was she advised about the university's research strategy nor where she fitted into it.  The respondents gave evidence that she was free to continue to do the research she had been doing in Child Health even though that was no longer being pursued by the university and she had been ostensibly moved to be part of the research being pursued by the university. 

(iii)             The second respondent (Professor Stout) also stated that she was moved so that her work would be able to be better co-ordinated with research in the Wellcome Laboratories.

In addition to the those matters set out at 12 (c) (ii) above the claimant was excluded from meetings and the grant application in November 1999.

(iv)             In evidence the second respondent (Professor Stout) stated that the claimant was moved to give her the support and the environment to get her research underway again and to create a bigger team of people in the area of research that had been selected by the first respondent (QUB) as a priority.  

Notwithstanding this declared purpose for moving the claimant she was allowed to carry out the work of a technician for 15 months; she was excluded from the grant application for work on endocrine tumours; and was never integrated into the research strategy in the Department of Medicine.

(v)        The third respondent (Dr. McCluskey) stated that that claimant had moved so that Professors Shaw and Buchanan could supervise her work.

She was moved to the Wellcome Laboratories on 21 December 1998 and assigned to the Department of Medicine on 4 May 1999.  Professor Shaw left in November 1998, though his departure was known about from September 1998.  Professor Buchanan retired on 30 September 1999 and his retirement was known about for some time before that date.  In addition the second respondent (Professor Stout told the Tribunal that the claimant did not need supervision.

(vi)      The third respondent (Dr. McCluskey) also stated that the claimant was moved to give her the opportunity of developing cardiac peptide research.

The respondents' evidence was that each academic decided his or her own research.  The claimant had made it clear to Professor Buchanan at a meeting on 14 April 1999 that while she supported the laboratories offering cardiac peptide research it would not be her major area of work.

(vii)      The fourth respondent (Professor McClure) said that the claimant was moved to be in a bio-chemistry ethos.  He also told the Tribunal that the real reason for moving the claimant was to be with her mentor, Professor Buchanan.

These reasons are quite different and differ from those advanced by others.  In addition Professor Buchanan retired in September 1999 and his retirement was known of for some time prior to that.  The claimant was only assigned to the Department of Medicine on 4 May 1999.

(f)        The respondents made no effort to integrate the claimant into the Department of Medicine.

(g)      The fourth respondent's (Professor McClure's) evidence about why he followed the approach he did in the appraisals of 1996 and 1997 was not credible.

(h)       The respondents failed to put forward any explanation why the claimant was not consulted about the closure of the Child Health laboratories notwithstanding that she was in charge of them from 1996.

The fourth respondent, who was head of the Child Health Department from 1997, had discussed the closure of the Child Health laboratories with the Laboratory Audit group, other heads of department, Dr Ennis and Mr McMaster who was line-managed by the claimant but not the claimant.

(i)        The respondents failed to put forward any explanation why the claimant had not been consulted about her transfer to the Department of Medicine.

(j)        The third respondent (Dr McCluskey) adopted a confrontational approach to his dealings with the claimant by confronting her about her failure to attend for appraisal, despite writing to her about his legitimate concern arising from her failure to attend.

When he reported this to the Dean, the second respondent (Professor Stout), on 15 December 1999 he enlarged the criticism to include alleged wrongful absence from work, about which no evidence was adduced and erroneously alleged she was in breach of the first respondent's (QUB's) sickness policy.  This letter is significantly more critical in tone and content than the letter, of the same date, he sent to the claimant about her failure to attend for appraisal. 

In his file note of the meeting of the 15 December 1999 he records that he gave the claimant a verbal and written warning but in his evidence denied he had given her a disciplinary warning.

Similarly following a confrontational meeting with the claimant in Mr Gill's office on 12 January 2000 the third respondent (Dr McCluskey) again wrote to the claimant exaggerating his concerns by alleging wrongful absence from work about which there was not any evidence.

Following the claimant's failure to attend a meeting with the third respondent (Dr. McCluskey) he followed the same modus operandi, a letter of complaint to the claimant and a letter to Personnel of the same date that was markedly more severe in tone and content about the claimant.  He then later had a confrontational meeting with the claimant on 25 February 2000 and wrote a handwritten file note which he dated, timed and had his secretary sign yet could not offer a credible explanation for so doing. 

(k)       The third respondent (Dr. McCluskey) failed to take any steps to prevent the claimant from having to do the work of a technician (Kathleen Hanna), absent through long-term illness.

(l)        The third respondent (Dr. McCluskey) solicited a letter critical of the claimant from Professor Nicholls on 23 February 2000.

(m)     The third respondent (Dr. McCluskey) failed to invite the claimant to the Policy Planning Group on 30 November 2000 at which the discussion of the pricing of assays was on the agenda.  He further failed to prevent Professor Johnston and Dr Ardill from excluding the claimant from the pricing of the assays by taking that function themselves. 

(n)       The second respondent (Professor Stout) failed to give the claimant, on her transfer to the Department of Medicine, new terms and conditions of employment, or a job description, or a list of her new duties and responsibilities or allocate her space for her research in the Wellcome Laboratories.

(o)       On 1 June 2000 the second respondent (Professor Stout) sent a memo to Personnel supporting the claimant's request for severance.  In the memo he was very critical of the claimant but in his evidence to the Tribunal he stated that it was not productive to focus on this memo apart from the purpose of the memo.

(p)       At a meeting with the claimant on the 5 October 2000 the second respondent (Professor Stout) made the disparaging comment that her research was "fantasy".   

(q)       In the audit report of 1997 Professor Johnston made a harsh comment about the claimant, "make her work" from which his co-author disassociated herself.

(r)        With Dr Curry and Dr Ardill Professor Johnston is associated with raising an objection to the claimant line-managing Kathleen Hanna in the Department of Medicine when she was in Child Health.

(s)       Professor Johnston and Dr Curry divided Professor Buchanan's grants between them on the latter's retirement thereby excluding them from the claimant.

(t)        At the Laboratory Management Committee meeting of November 1999 Professor Johnston, Dr Curry and Dr Ardill excluded the claimant from the Research and Development grant application.

(u)       On a number of occasions in his evidence to the Tribunal Dr Curry, in connection with the research being done by Professors Buchanan and Johnston and Dr Ardill referred to the research in the Department of Medicine as "our" area of research thereby excluding the claimant from it.

(v)       Dr Curry created problems about the transfer of the claimant to the Department of Medicine, before her transfer and despite never having worked with her and knowing little or nothing of her research.

(13)          The Tribunal is satisfied therefore that the claimant has proved facts from which it could conclude that there has been unlawful discrimination by the respondents on the ground of sex or religion or both and accordingly the burden of proof moves to the respondents.

(14)     The respondents must prove that they did not commit, or as the case may be, are not to be treated as having committed the discriminatory acts.

(15)    To discharge the burden it is necessary for the respondents to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex or religion or both since no discrimination whatsoever is compatible with the Burden of Proof Directive.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge the burden of proof. (Igen).

(16)     The respondents seek to resist the claimant's claims on a number of grounds:-

(a)       They denied the claimant's claims.

(b)       They sought to attack the credibility of the claimant's evidence.

(c)       The claimant's failure to attend the appraisal meetings with the third respondent (Dr. McCluskey) in December and January 1999-2000.

(d)       The claimant was a problem member of staff from 1990.

(17)    The respondents particularised their criticisms of the claimant as follows:-

(a)       That her research in Child Health was not satisfactory.

(b)       That she had a lack of publications.

(c)       That those publications that she had were not in journals with a high citation.

(d)       That she had paucity of lead authorship.

(e)       That she did not obtain research grants.

(f)         That she had paucity of teaching.

(g)       That her research did not have themes.

(h)        That she was not involved in a research team.

(18)     The respondents were rightly critical of the claimant's failure to attend for appraisal meetings with the third respondent (Dr. McCluskey).

(19)     No criticism of the claimant's performance as a research scientist within the first respondent (QUB) prior to 1998 is justified.  The claimant was successfully returned in the RAE exercises of 1992 and 1996.  To be returned an academic has to be put forward by her department.  The evidence adduced by the respondents revealed that to be returned a member of staff had to have demonstrated clear excellence in research and to have been part of the coherent research strategy.  Among the matters taken into account were the researcher's publications, grant applications and supervision of students.

(20)    From 1996 the claimant had four publications before 1 June 2000 as was accepted by the second respondent (Professor Stout).  In his evidence the second respondent (Professor Stout) indicated that had the claimant had four good quality publications she would have been returned in the RAE of 2001.

It was impossible for the Tribunal to assess the quality of the claimant's publications.  No evidence was adduced as to why the claimant's publications were not of a good quality.  The second respondent (Professor Stout) described them of being "… not of particularly high quality …" in his confidential memo of 1 June 2000.

Much of the evidence critical of the claimant's publications related to the journals in which they appeared e.g. not appearing in the Lancet or the British Medical Journal.  This evidence was gone through at length and the Tribunal is not persuaded that there is substance to this criticism.  The claimant's publications appeared in specialist journals of good quality and this was accepted by witnesses for the respondents.

It seems that a vital element in the RAE of 2001 was to be in the coherent research strategy of the first respondent (QUB). The claimant was not integrated in the research strategy of the Department of Medicine.  In his memo of 1 June 2000 the second respondent (Professor Stout) stated, "…and for strategic reasons she [the claimant] is likely not to be returned in the RAE."

In the course of his evidence the second respondent (Professor Stout) accepted that the claimant did high quality research.

(21)     Similarly the criticism of lead authorship was not persuasive.  From 1995 to 1998 the claimant had lead authorship in four publications and in the same period Dr Curry had none.

(22)    The criticism of the grant applications is not persuasive.  While in Child Health the claimant had successfully applied for grants.  Prior to the closure of the Child Health laboratories the work she was doing had sufficient grant monies.  On her transfer to the Department of Medicine she was not integrated into the research of the department.  Professor Johnston and Dr Curry divided Professor Buchanan's grants between them on his retirement on 30 September 1999.  In November 1999 she was excluded from the Research and Development grant application made in the names of Professors Buchanan and Johnston and Doctors Curry and Ardill.

(23)    There is no validity to the criticism that she did not do sufficient teaching.  Her original contract, which the respondents maintained applied throughout her employment with the first respondent (QUB), only required her to do limited teaching.  When asked to deliver lectures she did so.  When asked would she do teaching she agreed that she would.         

(24)     In the course of their evidence the respondents accepted that the claimant's research did have a theme, albeit, one that the first respondent (QUB) was not interested in.

(25)     The claimant was not part of a team because she was not welcome in the team within the Department of Medicine.

(26)     Significantly the respondents have not offered any explanations as to why the claimant was not consulted about the closure of the Child Health laboratories, or what was to become of her research or why she was not consulted about her transfer to the Department of Medicine or why she was allowed for 15 months to do the job of a technician.

(27)     In the light of the Tribunal's findings above, the respondents have not advanced any credible non-discriminatory explanation for the less favourable treatment received by the claimant.

(28)     As set out above the fourth respondent's (Professor McClure's) explanation for how he conducted the appraisals in 1996 and 1997 is unsatisfactory.

(29)     Accordingly it cannot be said that the respondents' treatment of the claimant was in no sense whatsoever on the grounds of sex and or religion since no discrimination is compatible with the Burden of Proof Directive.

(30)     The Tribunal is satisfied, on the balance of probabilities, having seen and heard from the witnesses as they gave their evidence, that the respondents have discriminated against the claimant on the grounds of sex and religion.

(31)    Having heard all the evidence the Tribunal affirms its earlier decision that a discriminatory state of affairs existed up to the 3 January 2001, the claimant's effective date of termination.

(32)    The Tribunal is satisfied that the claimant's contract of employment was expressly breached by the first respondent (QUB) and that this was a continuing breach.  In so concluding the Tribunal took into account the following matters:- 

(a)      While the claimant's contract of employment was never produced a pro forma contract, which the respondents say is applicable, states that the contract may be altered after appropriate consultation.  No such consultation occurred.

(b)       The claimant's job title was changed as she was employed as a lecturer in child health.  She was never given a new job title.

(c)       The further particulars of the claimant's job as a lecturer in child health are related to that position.  When she was transferred to the Department of Medicine she was not provided with an amended job title or amended particulars.

(d)       Despite the assertion that there had been consultation with the claimant, in the second respondent's (Professor Stout's) letter of 21 December 1998 there had not been any consultation with the claimant about her move from the Department of Child Health to the Department of Medicine.

(33)    In the light of the Tribunal's findings set out above it is also satisfied that the implied term of trust and confidence that must exist between employer and employee has been breached by the first respondent (QUB) and that it was a continuing breach from 1996 to the date of termination. 

(34)    The Tribunal is satisfied that the breaches of the claimant's contract of employment went to the core of the contract

(35)    The Tribunal is satisfied that the claimant left on 3 January 2001, by not returning to work, as a result of the breaches and that she left when the on-going breach was continuing.  Given the actions of the first respondent (QUB) and its senior staff and the unfriendly working environment created the Tribunal does not accept that the claimant acquiesced in or accepted the breaches of her contract of employment.

(36)    The last straw that entitled the claimant to leave was that despite an improvement in her situation with the meeting of 5 October 2000 with the second and third respondents (Professor Stout and Dr. McCluskey) the exclusion continued from the assay pricing and her on-going concerns did not appear to have been addressed.

(37)    The Tribunal is satisfied that the claimant was constructively dismissed.  For the reasons set out above the first respondent (QUB) was unreasonable in all the circumstances and the constructive dismissal is an unfair dismissal.

(38)     This matter can now be re-listed to decide remedy.

Chairman:

Date and place of hearing:         23, 24, 25, 26, 27, 31 January; 1, 2, 3 February; 10, 13, 15, 16 March; and 4, 6, 7, 10 April; 19, 20, 21, 22, 23, 26, 27, 28, 30 June; 15, 16, 22, 23, 24, 29, 30 August; 18 September 2006

Date decision recorded and issued to parties: