FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   153/10 FET
2657/10

CLAIMANT:		Catherine McCartney

RESPONDENTS:		1.	Women Into Politics
				2.	Training for Women Network Limited

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against on the grounds of her political opinion; nor was she unfairly dismissed by the first-named respondent.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Ms G Ferguson
			Mr J Hughes

Appearances:
The claimant appeared in person and represented herself.
The first-named respondent was represented by Mr Richards, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The second-named respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Cleaver Fulton Rankin, Solicitors.

The issues

1.	The issues were identified at a Case Management Discussion as follows:-

		Legal Issues :

(i)	Whether the claimant’s perceived political opinion, or lack thereof, constitutes a political opinion for the purposes of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’).

(ii)	Whether the claimant has been subjected to unlawful discrimination by the act or omissions of either respondent on the grounds of her perceived political opinion, or lack thereof, contrary to FETO.

(iii)	Was the claimant fairly dismissed in accordance with the Employment Rights (Northern Ireland) Order 1996?

(iv)	Did the first-named respondent fail to comply with the statutory dismissal procedures and, if so, what is the effect of same in respect of the claimant’s dismissal on the grounds of redundancy?

	The main factual issues were agreed as:-

		(i)	Why did the claimant’s employment come to an end?

(ii)	Was the termination of the claimant’s employment influenced by her association with a campaign to bring her brother’s killers to justice?

The claimant confirmed she was not making any claim of discrimination based on religious belief and the respondents confirmed they were not contesting the first of the issues, that is whether the claimant’s perceived political opinion could constitute a political opinion for the purposes of FETO.

	Findings of fact

2.	At hearing, the claimant confirmed her perceived political opinion.  It was that she was a person of Nationalist persuasion who supported the PSNI and who required IRA and Sinn Fein to call on others to go to the police.

3.	The claimant started working for the first-named respondent (WIP) in April 2009.  She was a Dialogue Co-Ordinator.  The post was for a fixed term until 30 September 2010.  The claimant worked on the Positive Relations Project.  The programme was funded by the Special European Unit Public Body (‘SEUPB’) to the tune of £2.75 million over a two year period to September 2010.  The lead partner in the Project was the second-named respondent (TWN) with WIP the Project Partner.  The claimant was never employed by TWN.

4.	The claimant delivered the Dialogue Programme.  She was to work with Regional Project Management Agents (‘RPMA’) to co-ordinate and to train women in the programme.  There was a target set of 750 individuals to go through the training programme.  The claimant’s colleague, Isobel Loughran, was responsible for another aspect of the training, Introduction to Political Skills.  RPMAs had their own contractual relationship with TWN.  In many cases the RPMAs and TWN had existing relationships and were known to each other.  The RPMAs had separate targets reporting directly to TWN, not part of the work contracted by WIP.

5.1	The claimant made a number of complaints relating to her work.

5.2	In June 2009 the claimant alleged that she had a conversation with Norma Shearer the CEO of TWN.  Karen Sweeney, Senior Project Manager of TWN, was also present.  Norma Shearer told the claimant that she had spoken to Short Strand and had been assured that the claimant would be welcome there and they had no problem working with her.  The claimant told Norma Shearer she did not need permission to work in Short Strand and if the Short Strand had a problem with her they should not be in the Project.  Norma Shearer had a close friendship with Rosheen Heath who was the RPMA for Short Strand on this Project.  This relationship is central of the claimant’s case.  The claimant’s brother was murdered in January 2005.  The claimant, along with her sisters, launched a high profile public campaign to bring his killers to justice.  The campaign created tensions between the claimant and her family and some of the residents of the Short Strand area.  The claimant gave uncontradicted evidence that her family was driven from the Short Strand area and death threats were issued against them.  

5.3	The claimant also referred to a conversation with Eileen Bell, the Chairman of WIP, early in her employment.  She alleged that Eileen Bell told her that she [Eileen Bell] had no standing on the issue of her brother’s murder and it would have no bearing on the claimant’s treatment.  Eileen Bell accepts that she spoke to the claimant to welcome her but did not make the comments attributed to her.  The claimant accepted in her evidence that Eileen Bell did not discriminate against her and she made no case against Eileen Bell.

5.4	WIP organised an event at Stormont on International Women’s Day.  It was suggested that it be a dialogue event, and count the numbers towards dialogue targets.  A programme for the event was sent out, and the claimant then received an e-mail from Karen Sweeney of TWN questioning aspects of the event, including the programmes learning content.  The claimant characterised the tone of the            e-mail as abrasive and questioning.  She telephoned Karen Sweeney and had a heated discussion.  The claimant then discussed this matter with May de Silva, Director of WIP.  

May de Silva subsequently told the claimant that Norma Shearer told May de Silva that Karen Sweeney had recorded this conversation.  The claimant asked why the conversation was recorded and contended that such an act was illegal.  The claimant asked May de Silva to find out why she had been recorded.  The claimant said in evidence there was no follow-up on this incident.  May de Silva said she informed the claimant shortly afterwards that she, May de Silva, was mistaken and that a written note of the conversation had been made by Karen Sweeney.  The claimant interpreted this episode as a ‘veiled threat’.  In cross-examination the claimant was asked if she accepted that this was simply a misunderstanding.  She would not accept this; but nor would she confirm that she still believed her conversation had been actually recorded.  The claimant’s evidence on this point was typical of most of her oral testimony.  Questions had to be repeated a number of times.  The claimant either did not answer the question or re-framed the question and answered her own version.  The Tribunal have concluded, from a consideration of the e-mail in question, which does not appear abrasive, and the note of the conversation taken by Karen Sweeney, that the respondents’ versions of events is correct on the balance of probabilities. 

5.5	The claimant complained that she was due to deliver training in Derry.  She could not attend due to bad weather.  The RPMA asked to conduct the event herself as she was a trainer.  The claimant refused.  The RPMA then contacted Norma Shearer who gave permission for the event to proceed and contacted the claimant to ask her to fax materials to the RPMA.  May de Silva also e-mailed the same request.  The claimant considered that this undermined her role and felt it demonstrated a more relaxed attitude to the RPMAs than to her.  More than 30 women had turned up to the event and the RPMA was concerned that it would be difficult to get these numbers again if the event was cancelled.  The numbers at the event were put towards the claimant’s targets.

5.6	The claimant had no recruitment role.  That was for RPMAs to do at local level.  The claimant was to organise and facilitate the delivery of the programme.  The claimant felt she was undermined in this role by TWN.  One example she gave was of an event in Loughgiel.  The RPMA asked if she could count women attending a local meeting towards her dialogue figures.  The claimant refused and was supported by May de Silva.  The RPMA contacted Norma Shearer who authorised the counting of the numbers.  

5.7	The claimant arranged two training days for nine Belfast groups, including the Short Strand Group.  The training had to be cancelled due to lack of uptake.  The claimant believed that the Short Strand Group undermined her endeavours.  She contended that arrangements had been made so that Rosheen Heath in the Short Strand would not have to work with her.  There was, however, no evidence to support this belief.  

5.8	Neither the claimant nor Isobel Loughran were invited to a meeting with RMPAs held by TWN in Omagh on 8 July 2010.  That meeting was arranged by TWN to look at reporting mechanisms and offer support and guidance to RPMAs.  At this meeting a number of RMPAs raised concerns about the claimant and Isobel Loughran.  A particular query was that the claimant was not allowing certain events to be counted as dialogue events.  Karen Sweeney told the RPMAs to contact TWN.  If TWN considered that the event benefited women in the programme it would be considered as counting towards dialogue events.  Each case was to be considered on its own merits and the figures were additional to, not in place of, the WIP figures.

5.9	TWN organised a trip to Brussels to showcase the Positive Relations Project.  It was intended that RPMAs would attend.  Places were also available for WIP members.  Neither the claimant nor Isobel Loughran were invited to attend.  They both protested and a place was given to Isobel Loughran who did not go.  That place was not offered to the claimant.  She had, however, been previously sent on a trip to Vienna some months before and was not, therefore, considered for the Brussels trip.  The decision not to send the claimant was made by the Board of WIP.  

5.10	In August 2010 the claimant became aware that some RPMAs were having numbers counted for events not sanctioned by her.  The claimant had not been informed of this by TWN.  Both the claimant and May de Silva challenged TWN on their approach.  May de Silva took the same position as the claimant on this matter.  The claimant wrote to all RPMAs asking for information about arrangements with TWN.  TWN and WIP were themselves discussing the issue and attempting to clarify figures.  The claimant continued to seek information regarding the figures and was told by May de Silva to stop as WIP were attempting to resolve the situation with TWN.  The claimant continued to make communications and received an e-mail from Norma Shearer stating that she would no longer communicate with the claimant; but would communicate with May de Silva and the Board of WIP.

5.11	Both the claimant and Isobel Loughran lodged grievances with WIP on 27 August 2010.  There were no allegations of discrimination made within this grievance.  The claimant then withdrew her grievance to pursue an informal process.  There was a breakdown of relationships between the claimant, Isobel Loughran and May de Silva.  The claimant and Isobel Loughran challenged management decisions made by May de Silva and also challenged and criticised her management style.  May de Silva described the meetings with the claimant as hostile.  The claimant described them as very fraught.  

5.12	On 6 September 2010, TWN sent a letter to WIP under the terms of their contract, warning that WIP had underachieved on all strands of the Project and giving three weeks’ notice to remedy the breach.  The WIP Board met to consider this on 16 September 2010.  Further communications took place between the Boards of WIP and TWN.  

The claimant and Isobel Loughran gave evidence of a conversation on 16 September 2010.  Isobel Loughran told the claimant that she had had a conversation with May de Silva on the day of the claimant’s appointment, some 17 months earlier.  Isobel Loughran alleged that May de Silva told her that Norma Shearer was unhappy with the claimant’s appointment.  Norma Shearer allegedly said that Rosheen Heath told her that the women of the Short Strand would not work with the claimant.  May de Silva then told Isobel Loughran that she was worried about the claimant’s safety going into the Short Strand.  May de Silva denied this conversation.  May de Silva accepted that she asked Isobel Loughran to support the claimant for the first six months of her employment.  Isobel Loughran was not, in fact, asked to go to the Short Strand.  Norma Shearer and May de Silva both denied that they had any conversation relating to the claimant and her appointment.

The tribunal considered this evidence carefully.  Isobel Loughran said she did not tell the claimant of this conversation because she knew the claimant would be upset.  She also said that she had confidence in the organisation, that the claimant would not be discriminated against.  Isobel Loughran believed that she had also been made redundant as part of the discrimination against the claimant.  Isobel Loughran never raised any issue of discrimination with WIP nor was it discussed with the claimant.  Isobel Loughran also said that the conversation on 16 September 2010 took place in front of Nuala O’Neill.  Nuala O’Neill made a witness statement for the Tribunal.  She did not mention this conversation in her witness statement and was not, in the event, called by the claimant to give evidence.  

The Tribunal, on the balance of probabilities, is satisfied that the conversation did not take place as described.  

6.	The claimant was on a fixed term contract due to expire on 30 September 2010 when the funding for the programme was also due to end.  On 4 August 2010, May de Silva wrote to the claimant putting her on protected notice that funding was due to end on 30 September 2010.  She informed the claimant that SEUPB was considering extending the Project for two years and said the claimant would be informed of the outcome as soon as possible.  WIP expected, in August 2010, that at least a two month extension of the Project would be available and work was planned on this basis.  The claimant was kept informed that no formal offer of funding had been received, although WIP hoped it would be forthcoming.

7.	A staff meeting was held on 16 September 2010.  At this meeting the claimant and Isobel Loughran, who were 100% funded through the Positive Relations Project, were given redundancy notices.  Other staff, partially funded through the Project, were informed that their hours would be reduced.  Nuala O’Neill lost half her hours; Marie Keane lost 7% of her hours; and May de Silva lost two hours per week.  The claimant was offered a one-to-one meeting on 21 September 2010.  The claimant was not sure that she had been given a date for a meeting but did not deny being offered a meeting.  She did not attend.  

8.	The claimant met May de Silva on 20 September 2010.  May de Silva explained the reasons for the redundancy.  They discussed annual leave as well as the possibility of the claimant completing any outstanding work after 30 September 2010 on a consultancy basis.  May de Silva confirmed that no offer of letter for funding had been received by WIP.  The claimant challenged only the assertion that she was offered alternative employment in relation to the content of that meeting.  The claimant was then offered an exit meeting.  Her union representative was not available until after 30 September 2010.  A date of 15 October 2010 was agreed.  The claimant then wrote saying she was not available.  No further meetings took place.

The law

Political opinion discrimination

9.	Article 3(2) of the Fair Employment & Treatment (Northern Ireland) Order 1998 (FETO) provides that:-

	“A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if:-

(a)	on either of those grounds he treats another less favourably than he treats or would treat another person.”

10.	Article 19(1) of FETO provides:-  

	“It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-

				(a)	where that person is employed by him –

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

Burden of Proof

11.	Article 38A of FETO provides:-

	“Where on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	has committed an act of unlawful discrimination or unlawful harassment against the complainant; or

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant;

	the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”  

12.	Guidance on how to apply the burden of proof was given by the Court of Appeal in the case of Igen Limited  v  Wong [2005] EWCA Civ142.  The Court of Appeal in Igen set out their guidance in 13 paragraphs.  The Court referred to a two stage test.  The claimant must firstly show facts from which the Tribunal could, in the absence of an adequate explanation, conclude that the respondent has committed an unlawful act of discrimination.  Once the Tribunal has so concluded, the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination.  The guidance in Igen has been endorsed in a number of cases including the Northern Ireland Court of Appeal in the case of Arthur  v  Northern Ireland Housing Executive and SHL UK Limited [2007] NICA 25.

13.	Following Igen the Court of Appeal again considered the burden of proof in Madarassy  v  Nomura International Plc [2007] IRLR 246.  In that case Lord Justice Mummery said:-

	“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.  

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

14.	In the case of Laing  v  Manchester City Council [2006] IRLR 748, Mr Justice Elias said:-

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

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

	“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination.  

	In Curley  v  Chief Constable [2009] NICA8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”     

Redundancy

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

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

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

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

18.	The Employment Appeal Tribunal in Williams  v Compair Maxam Ltd [1982] ICR 156 listed the principles which reasonable employers adopt when dismissing for redundancy.  The Tribunal stressed that these are not principles of law but standards of behaviour:-

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

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

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

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

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

Tribunal’s conclusions

19.	The claimant’s case for discrimination is based on an allegation that the central characters conspired to discriminate against her on the grounds of her political opinion.  She alleges that elements within the Short Strand area influenced Rosheen Heath, who in turn influenced Norma Shearer.  Norma Shearer then influenced Karen Sweeney and May de Silva all of whom conspired to discriminate against the claimant.  This culminated in a deliberate arrangement for the issuing of the breach of contract letter, by TWN to WIP, leading to the dismissal of the claimant on the grounds of redundancy.  The claimant stated this situation was constructed by the conspirators to get rid of her and the other individuals who lost their jobs, either entirely or in part, were what she termed ‘collateral damage’.

20.	The Tribunal is familiar with the Burden of Proof Regulations and the guidance set out by the Courts.  We have looked at the facts in this case.  The Tribunal has concluded that the claimant has failed to put sufficient evidence before it to allow the Tribunal to find facts from which it could conclude that the claimant has discriminated against on the grounds of her political opinion.  In reaching this conclusion, the Tribunal has taken into consideration the following matters:-

(a)	There was no evidence whatsoever of the alleged conspiracy in the Short Strand.  It may well be that elements in the Short Strand harboured animosity towards the claimant and her family.  The Tribunal heard no evidence at all that Rosheen Heath harboured any such hostility, or was affected in any way by it.

(b)	Other than the friendship between Rosheen Heath and Norma Shearer, there was no other connection made between the Short Strand community and the various alleged conspirators.

(c)	The Tribunal did not consider that it should draw any adverse inference from the factual situations referred to by the claimant and set out in this decision.  It is clear that there was friction between the claimant and Isobel Loughran on the one hand, and May de Silva and TWN on the other.  The claimant perceived TWN, through Norma Shearer and Karen Sweeney, to be interfering in and excluding her from her role.  She perceived that                   May de Silva was not providing sufficiently robust support.  However, on the facts as found, a large number of the RPMAs, who were unconnected with the Short Strand, raised issues of concern about both the claimant and Isobel Loughran.  TWN had a pre-existing relationship with many of the RPMAs and an ongoing relationship outside the work contracted to be done by WIP.  The Tribunal does not find it surprising that when there was friction between the claimant and RMPAS they turned to TWN to seek to resolve difficulties.  In fact, some of the events ultimately authorised by TWN were allocated to the claimant’s target figures.

(d)	The Tribunal also took into account the inherent improbabilities in the claimant’s case.  In evidence the claimant recognised that her case could sound absurd or mad to someone not involved.  In this case, it is for the claimant to put evidence before the Tribunal to substantiate the allegations.  The Tribunal finds that the claimant failed to do so.  None of those that the claimant alleged discriminated against her had a different view of policing or the need to support the police.  Some had connections to policing themselves or through their family.  It is unlikely that all would become involved in a concerted course of conduct based on the claimant’s political opinion.  Similarly, the claimant’s case is that the conspirators contrived a situation where funding would not be renewed.  This action, to the detriment of both organisations and a number of unconnected individuals; and ultimately the conspirators themselves, was in the claimant’s case aimed solely at discriminating against her and ending her employment.

21.	The claimant’s case was inconsistent in many areas.  The claimant contended, in evidence, that there was no secret agreement between Norma Shearer and           May de Silva at the beginning of her employment; but then argued that on the basis of the comments by Isobel Loughran on 16 September 2010 the conspiracy had been in existence from the start of her employment.  The claimant also tended to read inferences into documents.  In an e-mail in March 2009 there was a reference to Rosheen Heath being in danger.  The claimant assumed and asserted that this could only refer to her.  The Tribunal could draw no such implication or inference from the e-mail after reading it.  Similarly, the claimant interprets the letter from TWN to WIP on 6 September 2010 as saying that the breach of contract is the claimant’s failure to meet her targets.  In cross-examination the claimant accepted that it did not say so expressly; but still argued that it was implicit.

22.	The claimant never raised any of the allegations of discrimination whilst she was working for WIP.  This includes in the grievance letter in August 2010.  

23.	The Tribunal, therefore, find that the burden of proof does not transfer and the claimant’s claims for discrimination are dismissed.    

24.	For the avoidance of doubt, even if the burden of proof had transferred, the Tribunal is satisfied by the explanations given by the respondents for the actions taken.

25.	The Tribunal further finds that there was a genuine redundancy situation.  WIP had no guarantee that further funding would be available after 30 September 2010.  Protective notice was given to the claimant on 4 August 2010 and the claimant was kept informed of the fact that no further offer of funding was formally made, albeit everyone hoped it would come through.  The claimant had an initial meeting and was offered a further meeting on 21 September, which she did not attend.  In any event, the Tribunal is satisfied that the meeting with May de Silva on 20 September 2010 satisfied the need for a consultation meeting.  WIP is a small organisation with limited resources and the Tribunal should not submit its working to a detailed forensic examination.  There was no failure by WIP in the redundancy process and the Tribunal concludes that the claimant was not unfairly dismissed.  The respondents’ requirement for work for particular kind had ceased or diminished.  The funding for the fixed term role had ceased.  It was not unreasonable for the respondent to confine the pool to the claimant and Isobel Loughran, who are both 100% funded by the European Fund.  The procedure that WIP followed was within a range of reasonable responses that a reasonable employer might make.  The claimant was provided with a letter advising her she was at risk of redundancy and she was invited to, and attended, a meeting.  A further opportunity for an exit meeting was provided, which the claimant did not attend.  

26.	The claimant’s claim for unfair dismissal is dismissed.

Chairman:

Date and place of hearing:	6 – 9 December 2011; and
12 – 13 December 2011, Belfast

Date decision recorded in register and issued to parties: