McKeown v The Royal Group of Hospitals & Anor (Sex Discrimination)  (5 Sep 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	01736/00

APPLICANT:		Catherine McKeown

The Royal Group of Hospitals
Staff Nurse Laura Fleming

DECISION

The unanimous decision of the Tribunal is that the applicant had not been discriminated against on the grounds of her sex and her application is therefore dismissed.
Appearances:
The applicant was represented by Ms L Bradley BL, instructed by Rosemary Connelly, Solicitor
The respondent was represented by Mr P Coll BL, instructed by Edwards & Co, Solicitors, for the second respondent; Mr U Crothers, Solicitor, Brangam Bagnall & Co, Solicitors, for the first respondent

1.	The applicant worked in the School of Dentistry at the Royal Victoria Hospital as a Staff Nurse.  She complained that she had been sexually harassed by another Staff Nurse, Laura Fleming.  There were four matters which gave rise to her complaint:-

(i)	On 1 April 1999 when the applicant was sitting in the Day Room at lunch-time, Staff Nurse Fleming entered the room pulled up a chair and sat with her legs apart and began to touch herself between her legs.  The applicant said that Staff Nurse Fleming had been fairly elated that morning and at times had been referring to her body parts.  The applicant said that she was fairly shocked and told her to stop at once and never to do anything like that again in her presence.  The applicant said she told Staff Nurse Woods who was the Senior Staff Nurse at that time about the incident following the return to work after the Easter break.  Staff Nurse Woods’ evidence supported this account.  

(ii)	The next incident related to a conversation by Staff Nurse Fleming as to how much she enjoyed sex.  This conversation took place when Sister McGivern was present.  The applicant was embarrassed and replied, “Us old married women wouldn’t know much about that”.  This conversation would appear to have taken place some time in October/November 1999.  The applicant also complained that following her return from leave in November 1999 Staff Nurse Fleming was not speaking to her and when she enquired as to why she was told it was because the applicant had broken her confidence and had spoken to Sister McGivern and Sister McGivern had used the term ‘dyke’ to her.

(iii)	The applicant further contended that upon returning to work on 10 April 2000 she was again subjected to listening to topics on sex, not as graphic as before, but still annoying.  The applicant said there was a conversation about her back condition and Staff Nurse Fleming said, “Oh I suppose in your condition you and Chris are no longer able to have sex”.  The applicant states she was very embarrassed and said nothing.  

(iv)	On Tuesday 11 April 2000 the applicant was about to go off duty when Staff Nurse Fleming asked her what she would be doing on her half-day off and said, “I can think of one thing you could do with Chris”.  When the applicant asked what that might be, Staff Nurse Fleming replied, “Oh, I’m not saying because you don’t like it”.  At this the applicant stated she felt so distressed and tearful as a consequence to having to listen to this type of conversation.

The applicant then complained to management on 14 April 2000 and was interviewed on 18 April 2000 and the subsequent investigation took place.  

2.	Following the applicant’s direct evidence, Mr Coll made an application that the first two issues were out-of-time and should not form part of the proceedings.  The Originating Application had been made on 7 July 2000 and clearly the matters complained of regarding the alleged incident on 1 April 1999 and that in November 1999 were substantially out-of-time.  Mr Coll accepted that the matters complained of Sub-paragraphs (iii) and (iv) above were in-time but there was no nexus between those and the earlier matters and there could not be a continuing Act to bring it within Article 76(6)(b) of the 1976 Order.  

Miss Bradley responded by contending that the incidents were connected and they did amount to a series of acts which extended over a period and should be treated as done at the end of that period.  

After due consideration the Tribunal directed that it would reserve its decision on the question of whether the first two complaints were out-of-time until it had heard all the evidence.  

3.	Staff Nurse Fleming’s evidence was less than satisfactory, particularly under                 cross-examination, when on numerous occasions in reply to questions she could not remember any of the matters being put to her.  She offered the explanation that she had been so traumatised by the allegations that she had no desire to remember anything about the applicant.  

However Staff Nurse Fleming stated categorically that she was not a lesbian and had never displayed any lesbian tendencies and that in fact she had a boyfriend.  Her evidence regarding the incident of 1 April 1999 was that it did not happen as stated by the applicant.  She had no recollection of any of the matters of 1 April but stated that she never did anything of that nature nor engage in any such acts.

4.	The Tribunal heard evidence from Mrs Brenda Creaney who carried out the subsequent investigation, Norma Moffett, Equal Opportunities Manager, Sister McGivern and Staff Nurse Woods.

5.	At the conclusion of the evidence and following submissions from the representatives as to the facts to be considered by the Tribunal and to the application by Mr Coll at the earlier stage the Tribunal firstly gave consideration as to whether the complaints relating to 1 April 1999 and November 1999 were made within the statutory time-limits and/or did they form part of a continuing act under the provisions of Article 76(6)(b).

The Tribunal was of the unanimous opinion that the matters complained of did not form part of a series of acts which constituted a continuing act.  By the applicant’s own evidence she was happy as long as it did not happen again and although she had mentioned it to Staff Nurse Woods in confidence she had asked Staff Nurse Woods to take no further action.  Others who gave evidence considered the applicant and Staff Nurse Fleming were good friends particularly during the period from 1 April 1999 to November 1999.  The Tribunal were of the opinion that the nexus was broken following the alleged incident of 1 April 1999 and therefore as far as that complaint was concerned the application was      out-of-time and the Tribunal had no jurisdiction to act on foot of that complaint.

The Tribunal also formed the view that the matter complained of in November 1999 did not amount to an act of discrimination.

The Tribunal then had to give consideration as to whether it was just and equitable to hear the issues under the provisions of Article 76(5) of the 1976 Order.  No reasons were put forward as to why the Tribunal should exercise its discretion.  However the Tribunal having heard evidence that the applicant was happy following the alleged incident of 1 April 1999 and taking into consideration that the Originating Application was not lodged until some fifteen months later that this delay was substantial and it was not a case where it should exercise its discretion that it would be just and equitable to hear the matter.

Following these determinations the Tribunal were left to consider whether the incidents of 10 April 2000 in which Staff Nurse Fleming said, “I suppose in your condition you and Chris are no longer able to have sex” and a comment made by Staff Nurse Fleming on return from a holiday in Portugal to a Doctor Johnston about her white spots could amount to sexual harassment of the applicant.  The Tribunal was of the unanimous opinion that this did not constitute discrimination under the 1976 Order.

6.	The Tribunal then considered the offence of 11 April 2000 when Staff Nurse Fleming spoke to the applicant as she was going off on a half-day’s leave and said, “I can think of one thing you could be doing with Chris” and when asked what’s that she replied, “Oh I’m not saying because you don’t like it”.  The Tribunal were of the unanimous opinion that this did not amount to an act of sexual harassment and was therefore not discriminatory.  The Tribunal therefore found that the applicant had not established that she had been sexually harassed and that she had been discriminated on the grounds of her sex and her application is dismissed.

Chairman:

Dates and place of hearing:  7 and 8 May; 2, 3, 4 and 5 September 2002

Date decision recorded in register and issued to parties: