THE FAIR EMPLOYMENT TRIBUNAL

CASE REFS:    39/11FET 
800/11  

CLAIMANT:	Fiona McGeady

RESPONDENT:	North West Regional College

DECISION

The unanimous decision of the tribunal is that the claimant suffered victimisation and is entitled to compensation of £7,500.00, for injury to health and injury to feelings.

Constitution of Tribunal:

Chairman:	Mr S M P Cross

Panel Members	Mrs S Butcher
	Dr C Ackah

Appearances:

The claimant was represented by Mr Patrick Moore of PM Associates.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

FINDINGS OF FACT

1.	The claimant has been employed by the respondent college as a lecturer for over 18 years.  Recently she has been the claimant in a number of internal complaints in relation to her employment and in a number of applications to the Industrial Tribunals.  These complaints and tribunal applications have been in respect of complaints against a number of employees of the respondent and indeed the respondent college itself.  However almost all the complaints and tribunal applications mention by name Ms Karen McLaughlin.

2	(1)	In July 2008 the claimant lodged a complaint of harassment against Ms McLaughlin and Ms McElwee.  This complaint was investigated by Mr Calum Morrison, the Director of Curriculum, who ruled that the complaint had not been substantiated and dismissed the complaint.

	(2)	The claimant decided to appeal the decision of Mr Morrison and this was heard by Professor Monds, a member of the governing body of the respondent.  The claimant’s appeal was turned down on 19 November 2008.

	(3)	Between November 2008 and June 2009, the claimant brought 4 claims to the Industrial Tribunal and the Fair Employment Tribunal against the respondent college and against certain named members of staff, namely Mr Seamus Murphy the Principal and chief executive of the respondent, Ms McLaughlin and Ms McElwee.  These alleged Religious and Sex Discrimination, as well as discrimination on the ground of the claimant’s trade union activities.

	(4)	The claim for religious discrimination was heard for a week in December 2009 in the Fair Employment Tribunal and the claim was dismissed.

	(5)	Subsequently the other Industrial Tribunal cases were settled on 24 March 2010, on the basis that the claimant withdrew them all and the respondent’s insurers paid to the claimant a sum of £1,500.00 towards her legal costs, but with no admission of liability on the part of any of the respondents.

	(6)	Prior to the hearing of the Fair Employment Tribunal case and the settlement of the other cases referred to above, the claimant lodged another grievance against Mr Murphy, Mr Morrison and Ms McLaughlin, on 24 March 2009.  This was subsequently dealt with as part of the Tribunal claims then already underway.

	(7)	Notwithstanding the settlement of the tribunal cases referred to in paragraph 2(5) above, the respondents received a letter from the tribunal office to inform them that one of the supposedly settled cases was to proceed to hearing on 20-24 September 2010.  The claimant stated that this was a mistake of the tribunal office, however this Tribunal finds that this may not be correct, as the claimant refers to this particular case in a further application to the Industrial Tribunal, as will be seen in the next paragraph.

	(8)	On 25 August 2010 the claimant filed another application to the Industrial Tribunal Office claiming victimisation since she returned to work after an absence for sickness.  The claimant, in her evidence to this Tribunal explained that she had made this application of 25 August, on the advice of her trade union and solicitor and that she subsequently withdrew this application on the advice of the said union and solicitor.  Unfortunately this claim was not withdrawn before it was served on the respondents and so the cumulative effect of the various complaints and tribunal cases was maintained.  It was in this August tribunal claim, (Number 02072/10 that the claimant stated in the “Details of Claim” section, that the claimant stated, “I am due to progress my original complaint against NWRC and Karen McLaughlin on September 20 2010 …”.  As mentioned in 2(7) above this does not accord with the claimant’s evidence that she had settled the previous group of cases and signed the settlement terms, which was the truth, as the signed settlement terms were shown to this Tribunal.

3.	On 24 September 2010, the principal of the respondent college, Mr Murphy, received from Mr Morrison, a lengthy letter, written by Ms McLaughlin, the Head of School.  In this she sets out the details of the internal complaints and Industrial and Fair Employment Tribunal applications that are referred to in paragraph 2 above.  She then states that she has an increasing work load and that this she has found very much more difficult to deal with, when linked with “the sustained personal attack which has caused me great anxiety and stress both in my personal and professional life.”

4.	Ms McLaughlin finishes her letter to Mr Morrison, by saying, “I now find the situation intolerable and I cannot be reasonably expected to continue to carry out my role effectively on a personal or professional level as line manager to Fiona as she is intent in persistently attacking me”.

5.	Mr Murphy took this letter home on the Friday night, after it had been delivered to him by hand by Mr Morrison.  Mr Murphy considered the situation over the weekend and on the following Monday, he came to the conclusion that this was a very serious problem.  As Mr Calum Morrison, the line manager of the claimant, had been involved in hearing a previous complaint, by the claimant, (see Para 2(1) above), Mr Murphy felt that Mr Morrison should not investigate this complaint.  It therefore fell to Mr Murphy, as Mr Morrison’s line manager, to deal with the complaint.  Mr Murphy, in his evidence to this tribunal, said that it was the policy of the respondent to have these matters dealt with by a person of senior grade to the complainant.  However realising the stress that the claimant was experiencing at this time and the claimant’s concerns about Mr Murphy conducting the investigation, Mr Murphy wrote to the claimant on 16 March 2011, stating that for these reasons and, “to provide you with a degree of comfort”, he had decided to involve another colleague of the claimant, Ms Samantha Traynor, the Head of School Early Years, Children and Young People.  Mr Murphy and Ms Traynor therefore investigated the case jointly.

6.	Before commencing the investigation Mr Murphy decided that he would suspend the claimant from her duties during the course of the investigation.  He believed that it was essential that the parties should be kept apart during the investigation and it was to achieve this, that he, accompanied by the Head of Workforce Development, (which included human resources), Ms Kate Duffy, visited the claimant in her office and delivered to her a letter, stating that she was to be suspended.  After Mr Murphy had made sure that the claimant understood what was happening, he asked her to clear her possessions and leave the premises forthwith.  The evidence of the claimant, as to the effect of this ultimatum and the tone of the letter was, that it had a devastating effect on the claimant and on her state of heath.  The letter and the manner, in which it was handed over, came as a complete shock to the claimant, who, as Mr Murphy was aware, from the numerous claims and complaints that she had initiated, was in a vulnerable mental state at that time.

7.	The letter which was dated 27 September 2010 referred to the number of formal complaints that had been made against staff of the respondent college, none of which had been substantiated.  It went on to state.  “As I believe there is prima facia evidence that a number of spurious and vexatious allegations have been made it is my view that this matter should be investigated further.”  The letter then concludes by suspending the claimant on full pay until the matter is resolved.  The claimant is then invited to attend a meeting with Mr Murphy, on the following morning.

8.	The claimant did not attend the meeting the next day stating that she needed more time to deal with all the matters that were involved.  The meeting was then further postponed on a number of occasions until the beginning of the New Year 2011.

9.	There were a number of medical reports presented to the Tribunal which showed the claimant in a bad state of mental health and as a result the meeting between the claimant and the respondent was further adjourned from time to time during the autumn.

10.	After a number of abortive hearings it was decided by Mr Murphy, after taking advice, from the respondent’s medical advisor, that he should put the respondent’s complaints to the claimant in writing and she would then have a time to respond to the matters raised in writing.  Mr Murphy and Ms Traynor, would investigate these matters to decide if there was a case against the claimant to go to a Disciplinary hearing, or whether the matter did not require such a hearing, but should be dropped.  The lengthy list of points for the claimant to comment on was returned by her on 24 February 2011 and Mr Murphy wrote to the claimant to say that he and Ms Traynor would deal with the matter and report back to her.

11.	Having considered the written answers to the points of complaint, the panel of Murphy and Traynor decided that there was a case to answer and informed the claimant that a disciplinary hearing would be instigated against her and that it would be heard by Dame Geraldine Keegan, a member of the Governing Body’s Staffing Committee.

12.	The charges to be heard were:-

	“You have taken a number of complaints against staff within the North West Regional College which have been made without sufficient grounds.

	You failed to accept the findings determined by those charged with the responsibility to investigate and/or act as an appeal authority.

	You have made it impossible for you to work in a collegiate way with colleagues and/or management within the School of Hospitality, Tourism and Sport”.

13.	After very lengthy delays and many adjournments the disciplinary case was heard by Dame Keegan on 22 June 2011, in the absence of the claimant.  Dame Keegan after hearing the case decided to refer the case to the Dismissal Panel under the procedures laid down for dismissal and suspension of Full Time Teachers in Institutions of Further Education.  Further lengthy delays and adjournments have occurred in the process, due to the health problems of the claimant and the hearing had not taken place at the time of this Tribunal.

14.	The Tribunal finds no fault in the manner in which the investigation by Mr Murphy and Ms Traynor was conducted, or the subsequent arrangements for the disciplinary hearing.  The only matter which the Tribunal criticises is the suspension of the claimant.

THE LAW

15.	The claimant claims victimisation under the Sex Discrimination and The Fair Employment legislation.  She did not however proceed with a victimisation claim under the Disability Discrimination legislation.

16.	Article 6(1) of the Sex Discrimination (Northern Ireland) Order 1976, (“the 1976 Order”) states as follows:-

		“6(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

			(a)	Brought proceedings against the discriminator or any other person under this Order………………..”

17.	A Tribunal faced with a discrimination claim such as this one must apply the following directions laid down in Article 63A of the 1976 Order.  These directions have the effect of reversing the burden of proof when the requirements of the Article are met.  The Article is as follows:-

		“63A.—(1)	This Article applies to any complaint presented under Article 63 to an industrial tribunal.

			(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 an adequate explanation that the respondent—

			(a)	has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, or

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

			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.”

18.	Article 63A has the effect of reversing the burden of proof in sex discrimination cases.  Thus this Tribunal must first decide if there is any fact of an unusual nature in the case which, if not explained, could lead the Tribunal to find that discrimination or harassment has occurred.  If such a fact or facts are proven then the Tribunal places the burden of proof on the respondent to show that they did not commit an act of discrimination.

19.	A similar provision to reverse the burden of proof is found in Article 38A of The Fair Employment and Treatment (Northern Ireland) Order 1998, (“the 1998 Order”). Article 3 of the 1998 Order defines discrimination as both discrimination on the grounds of religious belief or political opinion and discrimination by way of victimisation.  This victimisation is of the same nature as is described above in relation to Sex Discrimination, only relating to any claim that the claimant has brought before a Fair Employment Tribunal.

THE DECISION

20.	When the Tribunal considered all the evidence in this case, the one aspect which stood out as unusual was the decision of Mr Murphy to suspend the claimant pending the investigation that he then put in train.  Here was a situation; where an employee was, in the opinion of the very experienced Principal of the respondent college, causing undoubted annoyance and upset to a number of staff, let alone very considerable disruption and expense to the respondent college, yet she had been doing this for a number of months, whilst carrying on with her work.  On the evidence that was before the Tribunal, the claimant was engaging in discussion and planning with some of those whom she was complaining about.  Why was it necessary to suspend the claimant in this very humiliating way?  Suspension is often used, for instance, in circumstances where acts of dishonesty or violence have taken place, to either avoid further risk of dishonest behaviour or violence.  Nothing like that had occurred in this case.  This Tribunal cannot understand why it was considered necessary, to suspend a lecturer, who had a history of making, admittedly, a very large number of complaints, against a senior member of the academic staff.  We never heard evidence from Ms McLaughlin, but there was no suggestion that she was not capable of running her department in a proper way, which would include the ability to deal, in a professional manner, with a problem such as this.  She had made a detailed and calm complaint in writing to her line manager.  All that Mr Murphy had to do on taking over the investigation was to assure Ms McLaughlin and the claimant that he would investigate the matter fairly, speaking to all the people concerned.  He had, in the view of the Tribunal, no need to suspend the claimant.  Whilst the Tribunal realise that the senior staff of the respondent were extremely frustrated and enraged by the seemingly endless tribunal applications and other complaints made by the claimant, enquiry could have been carried out without the necessity of the claimant being suspended.  In the opinion of the Tribunal this action was of an unusual nature in a case such as this and results in the Tribunal reversing the burden of proof as described above.

21.	The Tribunal then looked for a reason for the suspension of the claimant.  In the Tribunal’s view, suspension would not have been invoked in other similar disciplinary situations that had not been the subject of tribunal claims of discrimination.  The onus of proof is on the respondent to show that the reason for suspension being invoked was for a reason other than a discriminatory reason.  The Tribunal looked at the evidence of the respondent’s witnesses, but could find no reason, save, that Mr Murphy considered that, “given the background to the proposed investigation, I believed that it was essential to keep the parties separated………”  The Tribunal was not satisfied with this reason and believe that the true reason was the fact that the claimant had brought the tribunal claims in the Industrial and Fair Employment Tribunals.

22.	It was to achieve the objective of separation of the parties that the precautionary suspension, as the respondent called it, was used.  The way that this was carried out was very traumatic to the claimant.  The other parts of the disciplinary process were handled in a sensitive and proper way and the Tribunal find no fault on the part of the respondent save for the decision to suspend and its mode of execution.

23.	The claimant gave evidence of the severe effect that this event had on her health and mental wellbeing.  It is fair to say that the claimant had other serious worries at the time of this suspension and not all the results can be laid at the door of this discrimination.  However the Tribunal when considering the matter of compensation felt that a sum of £7,500.00, being at the bottom end of the middle range of the guidelines for compensation for injury to feelings laid down in the case of Vento  v  Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102 CA, was appropriate.  The Tribunal does not award any separate compensation for the medical problems that the claimant suffered as these might have come about in any event as stated above.  The Tribunal hold that the amount of compensation for injury to feelings takes into account the psychiatric injury to the extent that it was exacerbated by the suspension.  The Tribunal does not award interest on this sum.

24.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1995.

Chairman:

Date and place of hearing:       8 and 9 January 2013, Belfast.

Date decision recorded in register and issued to parties: