THE INDUSTRIAL TRIBUNALS

CASE REF:	740/03

CLAIMANT:			Frances Finn

RESPONDENTS:		1.	Jeremy Foster
2.	Royal Mail Group Plc t/a Royal Mail

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of sex discrimination is dismissed in its entirety.

Constitution of Tribunal:

Chairman:		Ms Turkington

Members:		Miss Townsley
Mr Magennis

Appearances:

The claimant did not appear, but submitted written representations in accordance with the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 
(Northern Ireland) 2005.
 
The first and second respondents appeared and were both represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

The Claim 

1.	The claim was a claim of sex discrimination against both respondents. 

The Issues

2.	The issues to be determined by the tribunal were:-
 
(a)	whether the claimant had suffered indirect discrimination on grounds of her sex when she was removed from the Waterside 11 Duty in or around 12th December 2002; and

(b)	whether the claimant had been subjected to harassment by the first respondent on grounds of her sex as alleged in her claim form.

Respondents’ application to dismiss the claim

3.	There was no application by either party for an adjournment of the hearing and the claimant had, in correspondence to the Office of the Industrial Tribunals, indicated that she was likely to be living in Australia for the foreseeable future.  The tribunal was therefore satisfied that it was appropriate to proceed with the hearing in the absence of the claimant.

4.	Counsel for the respondents made an application at the outset of the hearing that the claimant’s claim should be dismissed without any evidence being called on behalf of the respondents. Counsel for the respondents contended that, in the absence of the claimant, there was no evidence before the tribunal which would enable the tribunal to find in favour of the claimant. His primary submission was that there was, in effect, “no case to answer”.

5.	In considering the respondents’ application, the tribunal noted that the claimant had lodged written representations pursuant to Rule 14(5) of the Industrial Tribunals Rules of Procedure 2005 (“the 2005 Rules”).  Further, the tribunal had regard to Rule 27(5) and Rule 27(6) of the 2005 Rules which state as follows:-

“(5) 	 If a party fails to attend or to be represented……… at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

(6)	If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties”.

6.  	The tribunal concluded that the content of the claimant’s claim form and her written representations taken together contained information which the respondents were required to answer.  The tribunal therefore rejected the respondents’ application for the claim to be dismissed in its entirety at the outset of the hearing.

Sources of Evidence

7.	The claimant, who is now living in Australia, did not appear and was not represented at the hearing.  As noted at paragraph 5 above, the claimant submitted written representations in accordance with Rule 14(5) of the 2005 Rules.  These written representations and the claimant’s claim form were both fully considered by the tribunal.

8.	The tribunal heard oral evidence from the first respondent and detailed legal submissions from Counsel for both respondents.

Analysis of the Evidence

9.	Since the claimant did not appear at the hearing, the allegations set out in the claim form and the information contained in the written representations submitted by the claimant could not be confirmed by evidence given on oath nor did the respondents have the opportunity to test the claimant’s evidence by cross-examination.

10.	The tribunal took account of these factors in assessing the respective weight to be given, on the one hand, to the information submitted by the claimant and, on the other hand, to the evidence of the first respondent given on oath at the hearing. The tribunal considered it was appropriate to attach significantly less weight to the information submitted by the claimant than the evidence given by the first respondent.  Where there was a conflict between the information submitted by the claimant and the evidence given by the first respondent, the tribunal preferred the evidence of the first respondent since this evidence was given on oath and the first respondent was available for cross-examination by the claimant or her representative.

Contentions of the Parties

 11. 	In her claim form and her written representations to the tribunal, the claimant contended that she had suffered indirect discrimination on grounds of her sex when the first respondent decided to remove her from the Waterside 11 Duty in or around 12th December 2002.  The claimant stated that the first respondent took this decision having asked her if she would do overtime. She had replied that she was unable to carry out overtime because of her parental responsibilities.  The claimant contended that the first respondent had put in place a criterion, namely a requirement to work overtime, which disproportionately disadvantaged her as a woman with childcare responsibilities.  She further contended that the first respondent’s decision caused her to suffer a detriment and that the imposition of this criterion could not be objectively justified.

12.	Further, in the typed statement attached to her claim form (“the harassment statement”), the claimant alleged that she had been subjected to harassment by the first respondent on grounds of her sex.  The harassment statement contained 5 allegations of such harassment.  These allegations of harassment were not repeated nor elaborated upon in the claimant’s written submissions.

13.	In relation to the substance of the claim of indirect sex discrimination, Counsel for the respondents accepted that the claimant was removed from the Waterside 11 duty because she was unable to carry out overtime.  However, the respondents did not accept that proportionately fewer females than males were able to perform overtime.  Further, Counsel contended that there was no evidence before the tribunal that the claimant had suffered any detriment as a result of her removal from the said duty.  Finally, the respondents contended that the decision of the first respondent was objectively justified on business grounds.

14.	Both respondents denied each and every one of the claimant’s allegations of harassment on grounds of sex.

Facts of the Case

Having considered the claim form and the written representations submitted by the claimant, and having heard the evidence of the first respondent and having considered the documents referred to by the first respondent in giving his evidence, and the submissions of all the parties, the tribunal found the following relevant facts:-

15.	The claimant was employed by the respondent from in or about May 1986 to date.  At the date of hearing, the claimant was on a career break and was residing in Australia.

16.	The relevant delivery office of the second respondent had a total full-time workforce of approximately 125 at the relevant time, of whom 5 were female.

17.	The claimant was employed by the second respondent as a reserve, effectively a floating member of staff.  As such, she did not have assigned duties.  The claimant was assigned to different duties from time to time at the discretion of the supervising officer.  The claimant was not permanently assigned to Waterside 11 duty, but it so happened that she was on that route at the relevant time.

18.	The first respondent has worked for the second respondent for 20 years, 12 of those years as a Postman and 8 years as a manager.

19.	During the Christmas period, the second respondent is required to deliver 4 or 5 times the normal volume of mail.  Most members of staff work overtime during this period. 

20.	Where a member of staff returns to the office with undelivered mail, arrangements then have to be made for another member of staff to complete the delivery. This means that it takes significantly longer to complete the delivery, thus resulting in a poorer service for customers.  Further, the first respondent was, at the relevant time, under pressure to avoid uncompleted deliveries and keep the delivery budget and additional hours under control. If the claimant had continued to work on the Waterside 11 duty, but without working over-time, this would have created organisational difficulties for the second respondent.

21.	The first respondent removed the claimant from the Waterside 11 duty in or about 12th December 2002 because she was not able to complete that duty within her contracted hours of work and the claimant had confirmed that she was not able to work over-time.  The first respondent took this decision having first consulted with the recognised Trade Union and his own line manager.

22.	Having removed her from the Waterside 11 duty, the first respondent then created a new indoor duty for the claimant in order to accommodate her. 

23.	Prior to 12th December 2002, the first respondent was not aware that the claimant had any difficulty in relation to Saturday duty, only that she had difficulties in relation to weekdays.

24.	There are approximately 30 to 40 full-time staff at the relevant delivery office of the second respondent who do not work over-time.  The vast majority of these staff are male.  There are 5 full-time female members of staff.  All the female members of full-time staff, apart from the claimant, do work over-time.

25.	The letter of complaint submitted to the first respondent by the claimant and referred to in paragraph 1 of the harassment statement was lodged on 7th December 2002 during the busy Christmas period. The claimant herself was on sick leave around this time and the first respondent had a business trip to London and also a period of annual leave after Christmas.

26.	With regard to the allegation at paragraph 2 of the harassment statement, it was the duty of the first respondent as the claimant’s line manager to investigate this complaint.  In conducting this investigation, the first respondent acted fairly, consistently and impartially.  The evidence in the investigation did not support the claimant’s allegation against the other manager who was the subject of her complaint.  The witness referred to by the claimant in paragraph 2 had submitted a letter in which he said that both parties had raised voices.

27.	With regard to the allegation at paragraph 5 of the harassment statement, the first respondent did not interfere in this investigation which was carried out by Mr Devlin.  Further, the claimant’s allegation that the first respondent had interfered in Mr Devlin’s investigation was in turn investigated by Mr Quigley whose investigation rejected the allegation of interference.

Statement of Law

28.	As noted at paragraph 2 above, the issues in this case related to indirect discrimination on grounds of sex and harassment on grounds of sex.
  
29.	The statutory definition of indirect discrimination on the grounds of sex is set out in the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 which insert a new Article 3 into the Sex Discrimination (Northern Ireland) Order 1976 as follows:-

“In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if-

(c)	he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but-

(i)	which is such that it would be to the detriment of a considerably larger proportion of women than of men,
 
(ii)	which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii)	which is to her detriment” .

30.	Since the facts of this case pre-date the coming into force of the Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005,  a claim of harassment on the grounds of sex must be addressed as a type of less favourable treatment on the grounds of sex, that is direct discrimination.

31.	In the case of Reed and another v Stedman 1999 IRLR 299, the EAT provided useful guidance as to how tribunals should deal with cases of alleged sexual harassment.  It is unlawful under Article  3(1) (a) of the 1976 Order to discriminate against a woman “by subjecting her to any other detriment”.   In the Reed case, the EAT held that the tribunal should ask “was the woman subjected to a detriment and, if so, was it on the grounds of her sex?”

Conclusions

32.	In addressing the issue of indirect sex discrimination, the tribunal considered in turn each of the elements of the definition of sex discrimination set out at paragraph 29 above.  In considering the first element of the definition, the tribunal found as a fact that the claimant had been removed from the Waterside 11 duty because she was not able to work over-time.  The tribunal was therefore satisfied that the respondents had applied a provision, criterion or practice which would be applied to any member of staff working on the Waterside 11 duty, whether male or female, that is that they should be prepared to work overtime in order to complete the deliveries required by that duty.

33.	 The tribunal then had to consider whether the provision, criterion or practice applied by the respondents was such that it would be to the detriment of a considerably larger proportion of women than of men.  The criterion in question, ie that any member of staff assigned to the Waterside 11 duty must be able to work overtime, would obviously pose difficulties for any member of staff who was unable to work overtime for whatever reason.  The tribunal found as a fact that there was a total full-time workforce of approximately 125 at the relevant delivery office.  The tribunal also accepted the evidence of the first respondent that some 30 or 40 males at the relevant delivery office did not work overtime.  On the other hand, there were 5 full-time female members of staff and the claimant was the only full-time female member of staff who did not work overtime.  Therefore, on the basis of the facts found by the tribunal, a higher proportion of men than women did not work overtime and the criterion in question was therefore not to the detriment of a considerably larger proportion of women than of men.  The claimant’s claim of indirect discrimination therefore failed on this point.

34.	It was therefore not strictly necessary for the tribunal to determine whether the criterion was justified irrespective of sex, but the tribunal would indicate that it considered that there were clear business reasons for the application of the criterion as demonstrated by the facts found by the tribunal at paragraphs 19 & 20 above.

35.	In relation to the claimant’s claim in respect of harassment on grounds of sex, the tribunal considered whether the claimant had been subjected to a detriment in relation to each of the allegations set out in the 5 paragraphs of the harassment statement and, if so, whether any such detriment was on grounds of sex.

36.	In paragraph 1 of the harassment statement, the claimant alleged that the first respondent had delayed in dealing with two letters of complaint she had passed to him and that he had not treated her grievances with the seriousness they warranted.  In view of the findings of fact set out at paragraph 25 above, the tribunal concluded that any delay in dealing with the complaint was due to a combination of the factors set out at paragraph  25 above and the claimant did not therefore suffer any detriment on grounds of sex in that regard.

37.	Paragraph 2 of the harassment statement sets out an allegation that it was inappropriate for the first respondent to carry out an investigation in relation to the letters of complaint referred to at paragraph 26 above, since the claimant had by then lodged a grievance against the first respondent.   The tribunal considered the findings of fact set out at paragraph 26 above and concluded that the claimant had not suffered any detriment on grounds of sex in this respect.

38.	The allegation set out at paragraph 3 of the harassment statement is closely connected to the claimant’s claim of indirect discrimination since it relates to her removal from the Waterside 11 duty.  The tribunal found as a fact that the first respondent was not aware of the claimant’s difficulties in respect of Saturday duties until after he had removed her from the Waterside 11 duty.  The first respondent had also consulted with the recognised Trade Union and his own line manager before he took this decision.  The tribunal therefore concluded that the first respondent had not knowingly placed the claimant on a duty which caused her difficulties and that she was not subjected to a detriment on grounds of sex.

39.	With regard to the allegation set out at paragraph 4 of the harassment statement, this is also closely linked to the claimant’s claim of indirect sex discrimination.  The claimant appears to be suggesting that her male replacement on the Waterside 11 duty was in some respects treated more favourably than her.   The tribunal was not satisfied that the claimant had proved the necessary facts to establish that this individual was an appropriate comparator.  The tribunal therefore rejects the claimant’s contention that she was less favourably treated than her replacement on grounds of sex.

40.	At paragraph 5 of the harassment statement, the claimant sets out an allegation that the first respondent interfered with a disciplinary investigation against the clamant being carried out by Mr Devlin.  In view of the finding of fact set out at paragraph 27 above, the tribunal is not satisfied that the claimant suffered the detriment alleged.

41.	Accordingly, the tribunal rejected each of the allegations of harassment on grounds of sex set out by the claimant in paragraphs 1 to 5 of the harassment statement.

Application for Costs Against the Claimant

42.	At the conclusion of the case for the respondents, Counsel for the respondents made an application that the claimant should pay the respondents’ costs of the hearing.  Counsel for the respondents accepted that this application fell to be considered under Rule 14 of the Industrial Tribunals Rules of Procedure 2004 which states as follows:-

14. -    (1)	 Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party's actions in bringing the proceedings have been misconceived, the tribunal shall consider making, and if it so decides, may make –

(a)	an order containing an award against that party in respect of the costs incurred by another party;

43.	Counsel submitted that the respondents should not be prejudiced by the claimant’s failure to attend the hearing.  He further submitted that the claimant had acted unreasonably in the conduct of the proceedings.  For example, Counsel stated that the claimant had made certain factual assertions which were inconsistent with the sworn evidence of the first respondent.  Counsel submitted that the claimant was not prepared to stand over those assertions, although the respondents had been compelled to come to the tribunal to answer those allegations. 
 
44.	In answer to an enquiry from the Chairman, Counsel confirmed that the claimant had not been put on notice of the respondents’ intention to make an application for costs.  Counsel made an application for costs of £1,000 which he said would go some way towards the respondents’ costs, but he accepted that this was a matter for the discretion of the tribunal.

45.	The tribunal considered all relevant matters and particularly the fact that the claimant had not been put on notice of this application for costs and had therefore not had the opportunity to make submissions on this issue. The claimant had informed the tribunal in good time that she would not be appearing at the hearing as she was now residing in Australia and the claimant had, quite properly, submitted written representations in accordance with the 2005 Rules. The tribunal did not consider that the claimant had, in all the circumstances, acted vexatiously, abusively, disruptively or otherwise unreasonably in her conduct of the proceedings.  The tribunal therefore refused the respondents’ application for costs.

Chairman:

Date and place of hearing:	24th May 2006, Belfast.

Date decision recorded in register and issued to parties: