THE INDUSTRIAL TRIBUNALS 

CASE REF:	143/03		

APPLICANT:	Nicola Gray	

RESPONDENT:	Hagan’s Leisure Group Limited

DECISION 

The unanimous decision of the tribunal is that the applicant was subjected to sexual harassment and victimisation and is entitled to compensation under the Sex Discrimination (Northern Ireland) Order 1976.  The tribunal award a sum of £3,500.00 to the applicant in compensation for injury to feelings. 

Appearances:
The applicant was represented by Mr A Colmer Barrister-at-Law, instructed by Messrs Berkeley White, Solicitors.
The respondent was represented by Ms Alana Jones Solicitor 

1.	At the outset of the hearing the respondent applied for an amendment to the title to the name of the respondent in the application to replace the named respondent Sam Hagan with the company name Hagan’s Leisure Group Limited which was the employer of the applicant.  The applicant consented to this amendment and the case proceeded on the basis that the company was the respondent in place of Mr Sam Hagan.

2.	The applicant through her Counsel informed the Tribunal that she was not proceeding with the claim for unfair dismissal or failure to provide written particulars of contract or breach of contract.  The case will proceed on the basis that it was a case of sexual harassment and victimisation under the Sex Discrimination (Northern Ireland) Order 1976.

The facts as found by the tribunal

3.	1.1	The applicant who had for some years been employed as a casual Pool Attendant at
the respondent’s Caravan Park known as Silvercliffs, Ballycastle, County Antrim applied and was appointed by the respondent as a Receptionist at the Silvercliffs Caravan Park in March 2002.

1.2	Due to the applicant having some difficulty with regard to her accommodation in Ballycastle the respondent allowed the applicant to use an apartment at the Caravan Park whilst she was working at the Caravan Park.  She was charged £10.00 per week for the use of this apartment.

1.3	Silvercliffs Caravan Park consists of 250 static caravan sites and 25 apartments and two lodges available for rental.  There is also a restaurant and bar known as The Gawn Inn.

1.4	The applicant was the second receptionist.  There was already another receptionist in post, Siobhan Finlay.

1.5	The site was managed by the Site Manager, Mr James Brown, assisted by the two receptionists and various other staff.  The company was managed by the Managing Director, Mr Sam Hagan and his General Manager was Ms Louise Fowler.

1.6	On Saturday 16 November 2002 the respondents held a function in The Gawn Inn for the customers who rented the apartments and caravan sites and also for representatives of other sites within the Company Group.  The applicant attended the function and was responsible for collecting money at the door and after she had completed that task she joined in the party and according to her evidence left at about 2.30 am on the Sunday morning when she returned to her apartment to cook some food for herself.

1.7	At this stage the evidence of the applicant and Mr Hagan of the respondent differs and it is therefore necessary to recount the evidence of each party.  

2.	The applicant’s evidence

2.1	The applicant’s evidence was that she noticed somebody outside her front door and realised that it was Mr Hagan her employer.  She went to the front door and asked him what he was doing and Mr Hagan told her that he was checking that the various people who had come to the function, which had just finished were getting into their accommodation.  The applicant’s living accommodation was on the first floor of an apartment block.  She looked across the yard and saw that there was a group of people on the other side of the courtyard who had not gained access to their accommodation.  The applicant shouted over to them that it was apartment 14 that they were looking for and explained what key was required to open it.  This solved the problem of the group of people looking for their apartment.

2.2	The respondent, according to the applicant, then asked the applicant what she was doing and she replied that she was cooking noodles and chips.  She then walked into the apartment closing the door behind her.  She returned to the kitchen to stir the food when she heard the front door opening and closing and saw Mr Hagan entering the kitchen.  The applicant was standing by the cooker.  Mr Hagan then asked the applicant to “give me a kiss”.  The applicant said “no”, and informed him that he should leave.  The applicant then walked out of the kitchen into the adjacent bathroom feeling that she would be slightly more secure away from Mr Hagan and that he would then leave.  However, Mr Hagan followed her into the hallway beside the bathroom door and again said “give me a kiss, go on give me a kiss”.  At this stage the applicant put both her hands unto Mr Hagan’s chest to push him away.  She told him to leave and Mr Hagan then continued to talk to her about work and the party generally and then went towards the front door.  As he left he said “end of story”.  The applicant opened the front door for Mr Hagan and as she guided him out of the door she gave him a kiss on the cheek and told him “goodnight Sam go home”.  The applicant considered that Mr Hagan was somewhat drunk.

2.3	The applicant explained to the tribunal that the kiss on the cheek was her attempt to defuse the situation and get Mr Hagan out of the apartment.

2.4	After the incident the applicant was very upset and in the morning of Sunday 17 November she went to the reception area where she told a fellow employee, Hazel Kirkpatrick of what had happened the night before.  Ms Kirkpatrick stayed with the applicant whilst she was on duty that morning.

2.5	Mr Hagan came into reception at about 9.30 but said nothing concerning the incident of the previous night.

2.6	The applicant told her line manager, Mr Brown, of the incident and in due course he arranged for the applicant to see Ms Louise Fowler.  Ms Fowler came to Ballycastle on 18 November, the next day, and interviewed the applicant.  On the same day the applicant gave a statement to the Police, but asked the Police to take no action.

3.	The respondent’s evidence

3.1	The respondent’s witness, Mr Sam Hagan, gave a different account of the visit to the applicant’s apartment.  He stated that he had gone up to the balcony outside the apartment in order to observe the group of residents in the camp, who had come over from England for the weekend, and who were slow getting to their rooms.  He wanted to make sure they did not disturb other residents and for this reason, rather than approaching them himself he went up to the balcony and looked across, with a view to deciding what to do.  It was at this stage that the applicant had noticed him at the door and asked him to come into her apartment and have something to eat.  Mr Hagan when he went in found that he was the only person in the flat and therefore declined the invitation and returned to his own apartment.

3.2	Mr Hagan stated that he was in the habit, when staying in the Leisure Park, to walk around the site at night to make sure that everything was alright.

3.3	On the Sunday morning following, Mr Hagan got up and went across to the Reception Area at about 10.45 am.  There was no difficult atmosphere with regard to the reception staff, including the applicant.  Mr Hagan then returned home.  He wasn’t at Silvercliffs on the Monday and on the Tuesday afternoon he was informed by Ms Jean Fowler one of his fellow directors that allegations had been made against him by the applicant.  At first he couldn’t believe that these were serious and when it became apparent that they were indeed serious he asked Ms Fowler to investigate the allegations fully.  He asked her to take statements and carry out an investigation in the normal way.

3.4	Ms Fowler was the General Manager of the Group of Companies, and was responsible for the personnel matters in the Group.  She interviewed both the applicant and Mr Hagan.  Mr Hagan had told her to carry out his investigation in the normal way regardless of the fact that he was the Managing Director.  The tribunal saw Ms Fowler’s interview reports and her letter to the applicant of 28 November 2002 which merely said:-

“Dear Nicola

With reference to the alleged incident between yourself and Mr Hagan at Silvercliffe Holiday Village and having discussed the matter with both yourself and Mr Hagan.  I conclude that there will be no action taken by the Company and consider that this matter is now closed.

Yours sincerely – Louise Fowler”

The letter was headed “Without Prejudice”

4.	Facts after the incident on 16/17 November

4.1	At the end of the 2002 Season the Company made certain redundancies throughout the Sites.  In the Reception Area of the three Holiday Villages namely Solway, Beacon Fell and Silvercliffs, one receptionist was made redundant in each location.  One of the problems at Silvercliffs was that one of the main customers providing large bookings for the Silvercliffs had cancelled the contract and therefore the numbers were expected to be down in the following season.

4.2	The redundancy policy of the respondent company was as follows:-

4.2.1	“Selection for redundancy will be based upon an assessment of relative capabilities, performance, reliability, conduct, timekeeping, attendance record and suitability for the work which remains;

4.2.2	Length of service and personal circumstances will normally only be taken into account if a deciding factor is needed between any for whom the original assessment has produced no clear distinction;

4.2.3	 The overriding consideration at all times will be the future viability of the Business”.

4.3	On 5 December 2002 the applicant was told that she was being made redundant.

4.4	The respondent stated that it did not make the applicant redundant because she was last in and therefore first out, or because of her complaint concerning Mr Hagan.  However, in his evidence to the tribunal Mr Hagan stated that the considerations for making the applicant redundant were her time served and performance.  He had not been personally involved with the redundancy decision it had been left to his General Manager.

4.5	The evidence of the respondent was that it had attempted to invoke the redundancy procedure, but the applicant refused to enter into any conversation with Ms Fowler and so the procedure was not really followed.  Under cross-examination however Ms Fowler stated that she did not fully understand the redundancy procedures but that the applicant’s redundancy was nothing to do with the sexual harassment claim.  There was no correspondence or documentation prepared in connection with the redundancies, it was all carried out verbally with the Site Managers.

5.	Decision of the tribunal

5.1	The tribunal having carefully considered the evidence of both parties to this dispute prefer the evidence of the applicant concerning the incident in the flat.  The fact that the applicant saw fit to report the matter to the police and to make a statement concerning the incident very shortly after the incident occurred and the fact that the applicant told her colleague in reception of the incident made the story very credible in the view of the tribunal.

5.2	So far as Mr Hagan’s account of events was concerned the tribunal were not convinced as to his reasons for going up to the door of the applicant’s apartment to view the group of visitors on the other side of the Square.  This simply did not ring true.  The tribunal did not believe that Mr Hagan had gone up to the applicant’s doorway merely to view some residents in the Square.  It was not a credible explanation for Mr Hagan’s presence outside the applicant’s apartment.

5.3	Furthermore, the tribunal were not impressed with the way in which the respondent company dealt with the complaint and although Ms Fowler did carry out an investigation and interviewed both parties her short letter to the applicant telling her that her claim was not upheld and that the matter was closed was very cursory and could not have given the applicant any confidence that her complaint had been taken seriously and been properly investigated.  The tribunal did not consider that the investigation had been a proper investigation bearing in mind the seriousness of the allegation.  The fact that the allegation was made against the owner of the business did make matters very difficult for Ms Fowler, but her investigation does appear to have been cursory.

5.4	The matter was then made worse by the fact that the redundancy process was clearly not followed and that the applicant was selected for redundancy without any attempt by the respondent company to follow its own procedures.  This must have indicated to the applicant that the only reason that she was being made redundant was that she had made a complaint about the Managing Director and that the respondent company wanted to get rid of her.  In the light of the failure of the respondent to follow its own redundancy policy or to give any other explanation, the tribunal comes to the same conclusion, and finds that the dismissal was an act of victimisation against the applicant.

5.5	The tribunal finds that the applicant was sexually discriminated against by the respondent company in that she was subjected to sexual harassment.

5.6	Fortunately the applicant was able to obtain immediate re-employment and so suffered no financial loss.  However, the tribunal do award the applicant compensation for injury to feelings of £3,500.00.

5.7	The tribunal award interest on the sum of £3,500.00 in accordance with Regulation 5 of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996, calculated as follows:-

5 December 2002 – 3 August 2004
606 days @ 8% on £3,500.00		=	£466.00.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

	

Chairman:

Date and place of hearing:	3 August 2004, Belfast.

Date decision recorded in register and issued to parties: