Lewis v Belfast City Council  (Sex Discrimination)  (21 June 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	04989/99SD

APPLICANT:	Mechelle Lewis

RESPONDENT:	Belfast City Council

DECISION

The unanimous decision of the tribunal is that the applicant had not been unlawfully discriminated against on the grounds of her sex and her application is dismissed.  

Appearances:
The applicant was represented by Mr Boomer, NIPSA
The respondent was represented by Mr P Ferrity, Barrister-at-Law instructed by Legal Services Department, Belfast City Council

1.	The applicant’s complaint was that she had been “subjected to sexual discrimination, harassment and victimisation by Belfast City Council as a result of its failure to deal adequately with and to protect me from unacceptable behaviour by a senior officer”.

She said that she had made a complaint in 1997 against the senior officer, Mr George Craig and at that time the complaint had been dealt with informally and that an informal agreement had been reached and the matter did not proceed any further.

In May 1999 she complained again about the behaviour of Mr Craig and lodged a formal complaint.  An investigation into that complaint took place in accordance with the Council’s procedures and Mr Salmon, Director of Corporate Services, notified her of the outcome on 24 November 1999.

Her complaint before the tribunal was that Mr Salmon’s decision (inter alia) deliberately failed to address her complaint or the incident of discrimination and harassment.  She believed that Mr Salmon had endeavoured to protect the senior officer rather than deal with her complaint and she considered his actions amounted to discrimination, further harassment and victimisation.  The applicant’s originating application was lodged in the Office of the Industrial Tribunals on 20 December 1999.

2.	At the commencement of the hearing Mr Ferrity submitted that the complaints made by the applicant in 1997 was clearly out of time and was not within the jurisdiction of the tribunal to hear.  He also submitted that the complaint relating to an incident on 20 May 1999 was 7 months before the date of the lodgement of her application and therefore it was also outside the time limits.

Mr Ferrity accepted that part of the complaint was within time namely, that part relating to the complaint against Mr Salmon, it clearly fell within the jurisdiction of the tribunal.  He asked the tribunal to make a ruling that the complaints of 1997 and May 1999 were out of time unless the applicant was able to show that the tribunal should exercise its discretion under the just and equitable doctrine 

He referred the tribunal to Harvey on Industrial Relations Bulletin 284 and the case of Apelogun–Gabriels- v- London Bureau of Lambeth (202) IRLR CA which settled an important point in relation to the just and equitable power to extend limits in so far as the delay was caused by awaiting the outcome of an internal grievance procedure.  The Court of Appeal endorsed the EAT decision in Robinson –v- Post Office (2000) IRLR 804 which held there was no general rule that awaiting the outcome of an internal grievance would justify an extension of time in discrimination cases as was held in the case of Aniagui –v- Lambeth Borough of Hackney (1999) IRLR 303.

He also referred the tribunal to the case of Home Office –v- Coyne (2000) IRLR 838.  In that case the Court of Appeal stated that the Employment Tribunal had erred in finding that the applicant had been discriminated against on grounds of her sex when her employers failed to deal properly with her complaint of sexual harassment.  In that case although the applicant had been subjected to a detriment the Court of Appeal stated that in order to establish her complaint she had to show that this was on the grounds of her sex.  In order to show this she had to demonstrate that the employers, in handling her complaint, treated her less favourably than it would have treated a man in similar circumstances.

He asked for the tribunal to make a ruling that complaints of 1997 and May 1999 were out of time and the tribunal had no jurisdiction.

3.	Mr Boomer submitted that the events of 1997 and May 1999 were essential historic details of the overall case and it would be necessary for the tribunal to look at these events in order to reach a determination.  He submitted the central issue was the outcome of the formal grievance and the denial of the right of appeal.  He also referred to the Home Office –v- Coyne case.

4.	The tribunal determined that, in so far as the complaint made in 1997 was concerned the application was out of time.  The tribunal were also of the opinion that those matters could not have a relevance to the question as to how she was dealt with following a formal complaint in 1999 and rule that these facts were not relevant to this complaint.

5.	In so far as the complaints of May 1999 were concerned these complaints were also out of time, the tribunal then had to consider whether it was just and equitable to exercise its discretion under the just and equitable principles, however the applicant failed to show any reason why the tribunal should exercise its discretion and therefore ruled that this part of the complaint was also out of time.

The applicant’s representative stated that the central issue of applicant’s case was less favourable treatment in the manner on which her complaint was addressed and the failure of the respondents to grant her a right of appeal.  This part of the complaint is within the prescribed time limits and the tribunal determined that it would hear evidence relevant to this complaint.

6.	Mr Boomer in his opening statement said the applicant would seek to show that she had been subjected to a detriment in the unsatisfactory outcome of her formal complaint in that:-

(a)	There was a failure to take her complaints seriously.

(b)	The respondents were more concerned to protect the interests of a senior officer.

(c)	The failure of the respondent to impose sanctions on the offender.

(d)	They had left the applicant vulnerable to further harassment and victimisation by failure to get Mr Craig to apologise for his unacceptable behaviour.

(e)	The refusal of the respondents to grant a right of appeal.

7.	The applicant referred to 2 incidents, one on 19 May 1999 when Mr Craig made a remark as to where was his cup of tea.  She accepted that he made the remark as a joke, but she found it strange having regard to the past when their only dealings were on a strictly business basis.  The second incident complained of occurred on 20 May 1999 when the applicant returned to the office to collect her umbrella and Mr Craig who had been waiting in reception had walked back to the car park with her and he raised the issue with her as to why she had made a complaint of harassment against him in 1997.  It was her evidence that he wanted her to meet him outside work to discuss the matter but she declined.

She reported this matter to her Branch Secretary, Mr Boomer, who advised her to make a formal complaint.  The applicant, by letter dated 21 May 1999, complained that Mr Craig had breached the terms of the Informal Agreement and wished to make a complaint regarding the incident on 20 May 1999.  A meeting was held on 24 May 1999 with the applicant to discuss her complaint, those in attendance were Mr Salmon, Mr Maguire and Mr Black.  It was decided to establish an investigatory panel as soon as possible and Mr Andrew Wilson Head of Audit and Ms Sharon Symington Human Resources were appointed to carry out the investigation.

8.	The applicant was interviewed on 9 June 1999 and she had Mr Boomer and Mr Robert Grills in attendance. 

Mr G Craig was interviewed on 15 June 1999, Mr Grills was interviewed on 1 July 1999 and Ms Julie Eastwood was interviewed on 23 June 1999.

Mr Boomer contended that Mr Grills and Ms Eastwood should have been interviewed before Mr Craig and he considered there was some irregularity.  The Tribunal did not form the same opinion and saw nothing wrong with the complainant and the person against whom the complaint was made being interviewed in that order.

9.	In cross-examination the applicant admitted that she had no complaint about Mr Wilson or Ms Symington.  She had been happy with the interview and agreed that she had had the opportunity to amend the notes of the interview.  Part of her complaint was that her complaint had not been treated seriously and she was asked to point out where it could be shown that the interviewers had not treated the complaint seriously.  She was unable to do so except to point out that they seemed to insist that there should be some document recording the informal resolution.

She did complain about the length of time it took to produce the decision.

The interviewing panel issued the report to Mr Salmon on 13 October 1999.  The conclusions of the panel were that the behaviour of Mr Craig on 20 May 1999 had been inappropriate.  They recommended that Mr Craig be told that his behaviour was inappropriate and that an employee can claim harassment if they feel/perceived that they are being harassed.  They recommended that Mr Craig be required to make a formal apology for raising the issues of 1997 with the applicant.  He should be made aware that a reoccurrence could lead to disciplinary action.

The investigating officers also recommended that this situation be closely monitored in that both parties be reminded of their obligation to maintain a harmonious working environment.

The panel recognised that the terms of the previous informal resolution were ambiguous and recommended the sexual harassment policy be reviewed to reflect that where a third party such as a trade union representative is involved a record should be kept and both parties made aware of that fact.

10.	Mr Salmon issued his decision, having taken into consideration the report of the interviewing panel, on 24 November 1999.  One matter in his decision gave rise to some confusion.  His letter referred to a conversation on 19 May and to the fact that Mr Craig had accepted his conversation with the applicant on 19 May was inappropriate and Mr Craig had apologised to the applicant for his behaviour through Mr Salmon.  Mr Boomer contended that the letter did not contain an apology for the incident on 20 May.

Mr Salmon told the tribunal that it was only when he read the papers for this hearing, did he realise that there was a typographical error and the date of 19 should have read 20.  He contended that it would have been clear to all concerned that the apology related to 20 as no complaint had been made in respect of 19 May and it had not formed part of the investigation.  He apologised for this error.

The tribunal accepted his explanation and were of the opinion that the apology could only relate to the incident on 20 May 1999.

Mr Salmon’s letter to Mr Craig was issued to him on 19 November 1999, no explanation was given as to why the applicant’s letter was issued at a later date ie 24 November 1999, perhaps the explanation is that Mr Salmon was awaiting Mr Craig’s response.  In the letter to Mr Craig, Mr Salmon stated that he considered it necessary for him to apologise to Mrs Lewis and to re-assure her there would be no reoccurrence.  In the letter to the applicant Mr Craig apologised through him a somewhat different scenario.  The explanation offered by Mr Salmon was that Mr Craig did not wish to have a face to face meeting with the applicant and in compliance with the instructions to behave in a business like manner in future, that is what he would do.

The tribunal did consider that an apology through a third person is less than satisfactory although it had accepted that an apology had been given.

11.	The applicant was dissatisfied with the outcome of the investigation and wrote to Mr Salmon on 25 November setting out her complaints and seeking to exercise a right of appeal.  

Mr Salmon replied to her assertions and advised her that under the Council’s Sexual Harassment Policy there was no right of appeal.  The right of appeal then became an issue between the applicant and respondent and was the subject of an exchange of correspondence.  The applicant then indicated that she wished to invoke the grievance procedure to address:

(1)	The manner in which the investigation into her complaint had been handled.

(2)	Mr Salmon’s refusal to permit her the right of appeal against the outcome of the investigation.

She also indicated that she wished to make a formal complaint that she had been unfairly treated, victimised, had suffered a detriment as a result of the treatment afforded to her.

12.	The applicant’s case was that a male, Mr John Meredith, had been granted a right of appeal in similar circumstances and therefore she had been treated less favourably than a man.  Although the applicant held out that Mr Meredith was her comparator, it became clear from her evidence that she was not familiar with the details of Mr Meredith’s case and relied upon information from Mr Boomer.

Mr Meredith attended and gave evidence and although he contended that his complaint had been dealt with under the Sexual Harassment Policy, documentation subsequently provided by the respondents relating to Mr Meredith’s complaint clearly demonstrated that he had never complained about Sexual Harassment nor Sectarian Harassment and his complaint had clearly been dealt with under the grievance procedure, under that procedure he did have a right of appeal.  It was therefore clear that Mr Meredith was not a comparator under the terms of the Discrimination Legislation.

13.	At the conclusion of the applicant’s case Mr Ferrity made an application that there was no case to answer.  He recognised that it was only in exceptional circumstances that a tribunal would grant such an application, but he considered it was appropriate in this case.

He referred the tribunal to the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and in particular to Regulation 4 which inserted an new Article 63(A) in the Sex Discrimination Order 1976.  This Article read:

(2)	Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of inadequate explanation that the respondent,

(a)	had committed an Act of Discrimination against the complainant which is unlawful by virtue of part 3

or

(b)	is by virtue of Article 42 or 43 to be treated as having committed such an Act of Discrimination against the complainant, and

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not treated as having committed that Act.

He referred the tribunal to the case Glasgow City Council –v- Zafar (1998) ICR120 and O’Neill –v-DHSS No 2 (1986) NI290.  He drew the tribunal’s attention to the actual complaint by the applicant which focused on the manner on which Mr Salmon treated her complaint and to the fact that she had not been given a right of appeal.  She had not complained about the procedures and she had no real complaint about the way the investigation was carried out.  Following the investigation Mr Craig had been found guilty of inappropriate behaviour and an apology had been given.  The applicant may have had a grievance, but none of them relate to her gender.  He submitted that the records of the interview of Mr  Meredith at the time of this complaint and which were put to him in cross-examination, meant that Mr Meredith testimony was useless. 

He submitted that the standard of proof as required by the Regulations had not been met and there was no need for the respondent to provide an explanation.   

.	Mr Boomer in response submitted that the applicant had established a prima facia case and that it would only be in exceptional circumstances that a tribunal would not require evidence in rebuttal.  He referred the tribunal to several cases as legal authorities which stated that it is preferable to hear all of what the parties have to say.  In particular he referred to the Belfast Port Authority case to support his contention that the case should proceed.  He pointed out that the right of appeal was still a pertinent issue as Mr Meredith’s evidence was that he was dealt with under the same policy and procedures as the applicant.

14.	The tribunal gave consideration to these submissions and formed the opinion that Mr Meredith’s evidence had not been rebutted at this stage and it would be necessary for the tribunal to hear further evidence from the respondents on the issue as to whether Mr Meredith was a comparator.  The tribunal also recognised, as had the parties, that Harvey on Industrial Relations Volume 5 paragraph 2894 states “that it is only in exceptional circumstances that the respondent would not be called to answer the applicant’s complaint”.

In these circumstances the tribunal determined that Mr Ferrity’s application should not succeed.

15.	Mr Salmon gave evidence as having set up the investigation panel and following their report to him had reached a determination, he accepted that the applicant was not satisfied with the outcome and it would appear that she considered Mr Craig should have been found guilty of misconduct in that this had been a second complaint made against him.  Mr Salmon’s response was that he had never been aware of the first complaint and it had not been recorded because the complaint had been dealt with informally.

16.	The tribunal received evidence from Mr Samuel Skimin, Head of Cleansing Contracts.  He had interviewed Mr Meredith at the time of his complaint and he placed before the tribunal documents relating to the grievance by Mr Meredith.

It was not clear why these documents could have not been produced at an earlier stage.  The respondents had sought particulars in a letter dated 12 April 2000 as to the less favourable treatment afforded to the applicant.  Mr Boomer replied on 1 November 2000 to the effect “harassment and victimisation. But moreover, a male employee in another department was permitted to appeal the outcome of the investigation into his complaint of harassment”.

The respondents on 20 February 2001 sought further particulars of the male employee referred to and received a letter from the applicant on 9 March 2001 identifying Mr John Meredith as the comparator.

It was clearly established by Mr Skimin’s evidence and the documentation furnished that Mr  Meredith had not been dealt with under any harassment policy and had been dealt with under the grievance procedure which did entitle him to a right of appeal.

17.	SUBMISSIONS

Mr Ferrity

He said that he did not wish to add much to the submissions he had already made when making the application that there was no case to answer, as what he stated still applied.  The only item arising to which the respondents had to reply was whether Mr Meredith was a comparator.  He submitted it was clearly shown that Mr Meredith was not a comparator and the applicant had failed to show that she had been less favourably treated than a man, she had failed to show that she had suffered any form of detriment.  Further the applicant had failed to show that Mr Salmon had endeavoured to protect a senior officer and had in some way discriminated against her in his determination of the investigation.  

Mr Boomer

He submitted that Mr Skimin’s evidence flew in the face of the evidence of Mr Meredith and suggested that Mr Meredith was a true comparator.

Mr Boomer disagreed with Mr Salmon over the right of appeal and submitted that the respondents had conceded there is a need to have the Equal Opportunities Policies reviewed.

He also submitted that Mr Salmon’s inability to recall accurately policies over which he had control damaged his credibility as a witness.  

It was the applicant’s case that she was subjected to harassment and considered the respondents had discriminated against her by protecting the senior male officer and the tribunal should find that she had been subject to sex discrimination.

18.	The tribunal reminds itself of the generally accepted definition of sexual harassment,

“unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of  women and men at work”.  Article 3 of the Sex Discrimination Order as amended by Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 makes provision that a person discriminates against a woman if on the grounds of her sex he treats her less favourably than he treats or would treat a man or he applies to her a requirement or condition which he applies or would equally apply to a man etc.

The tribunal made the determination that events in 1997 and May 1999 were not admissible as being out of time and did not have to form an opinion as to whether these matters complained of did amount to sexual harassment.

THE FINDINGS OF THE TRIBUNAL ARE AS FOLLOWS:-

1.	The tribunal did not accept that the respondent had failed to take the complaint seriously.  The applicant had no complaint about the procedures followed or to the investigation carried out.  The tribunal did not accept that the interviewing of Mr Craig before Mr Grills and Ms Eastwood was a breach of procedures.  The applicant agreed that the interviews had covered all the points.  The tribunal were of the opinion that there had been a thorough investigation although it accepted there had been some delay in having its conclusions issued to the parties.

2.	The respondents accepted that there had been an informal resolution of the earlier complaint, however, having ruled that this complaint was out of time the tribunal did not require to make a finding of fact on this issue.  However, the fact that there had been an informal resolution meant there had been no finding of sexual harassment on record and the tribunal accepts Mr Salmon’s finding that the events of 20 May 1999 fell short of sexual harassment and accepts his conclusion that it was inappropriate behaviour.

The tribunal were critical of the fact that Mr Craig did not apologise directly to the applicant as had been recommended by the investigating officers, Mr Salmon’s explanation that Mr Craig did not speak to the applicant and preferred to apologise through Mr Salmon was unsatisfactory.  Nevertheless, the tribunal were of the opinion that the proper sanctions had been imposed by Mr Salmon.

3.	The applicant contended that she had been less favourably treated by the refusal of her right of appeal and cited Mr Meredith as her comparator.  The Tribunal find Mr Skimin a very credible witness and accepted that Mr Meredith had been dealt with under the grievance procedure and that he was not a true comparator.  The applicant had thus failed to establish that she had been subjected to less favourable treatment than a man.

4.	The applicant complained of victimisation in that she had already complained and it was not disputed by the respondents that she had done a protected act.  The tribunal did not accept that she had demonstrated that she had been victimised.  Her first complaint had been resolved informally. If following the later incident she had considered that she had been the subject of victimisation she was at that time in receipt of  professional advice and had not made an application within the prescribed time limits.

She also contended that failure to give her the right of appeal amounted to victimisation.  The tribunal concluded that the failure to grant her an appeal was not because she had done a protected act but her complaint was dealt with under the Sexual Harassment Procedures which did not expressly grant her right of appeal.

5.	The tribunal were of the unanimous opinion that the applicant had failed to establish that she had been less favourably treated and had suffered a detriment and her application is dismissed.    

	

 
Chairman:

Date and place of hearing:1, 2 and 3 May and 13 May 2002, Belfast

Date decision recorded in register and issued to parties: 21 June 2002