Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  434/10

 

 

 

CLAIMANT:                          Joanne Dillon

 

 

RESPONDENT:                  HM Revenue and Customs

 

 

 

DECISION

The tribunal finds that the claimant did not suffer discrimination on the grounds of sex and her claim is dismissed.  The tribunal also dismisses the claimant’s claim for discrimination on the basis of her part-time working status following its withdrawal by the claimant in the final submissions.

 

Constitution of Tribunal:

Chairman:                            Mr Brian Greene

Members:                             Mrs Mary Jo McReynolds

                                                Mr James Kerr

 

           

Appearances:

The claimant was represented by Ms Gayle Matthews, of the Public and Commercial Services Union.

 

The respondent was represented by Miss Nessa Murnaghan, of counsel, instructed by the Crown Solicitor’s Office

 

 

Sources of Evidence

 

1.         The tribunal heard evidence from the claimant and on her behalf from Nigel Dillon, Edward O’Hare and Helen Campbell and on behalf of the respondent from Trevor Booth, William Randel Gordon, Graham Mutter, Rachael Young and Seamus Ennis.  The tribunal also received two bundles of documents amounting to 401 pages and two submissions amounting to 45 pages. 

 

The claim and defence

 

2.         The claimant claimed discrimination on the grounds of sex and her part-time working status.  The respondent denies the claimant’s claims in their entirety.

 

The Issues

 

3.         The legal and main factual issues for determination in the case have been identified as follows;-

 

            Legal Issues

 

            (1)     Was the claimant discriminated against contrary to the Sex Discrimination (Northern Ireland) Order 1976.

 

(2)          Was the claimant discriminated against contrary to the part-time workers (Prevention of Less Favourable Treatment) (Northern Ireland) Regulations 2002.

 

            (3)     Was the claimant treated less favourably that other comparable workers on account of her sex and/or status as a part-time worker.

 

            (4)     Did the respondent discriminate directly or indirectly against the claimant in relation to her sex.

 

            (5)     If the claimant claims indirect discrimination, can the respondent show that the criterion, provision or condition applied was a proportionate means of achieving a legitimate aim.

 

            (6)     Did the change in the respondent’s Special Transfer Policy, in or about June 2009, discriminate (directly or indirectly) against women.

 

            Factual Issues  

 

            (1)     Was the claimant obliged by the respondent to transfer to Lisburn or did she volunteer to transfer.

 

            (2)     Is the change in the respondent’s Special Transfer Policy contrary to the respondent’s policies on work life balance, family friendly and gender equality schemes.

 

            (3)     Is the claimant’s assertion correct that “many women in HRMC have been granted such transfers …. where caring responsibilities were a factor”.

 

            (4)     If the claimant’s transfer request had been made before the introduction of the change in the Special Transfer Policy, would that request have been treated differently or resulted in a different outcome.

 

            (5)     Is the respondent obligated to facilitate a transfer request made by someone in the claimant’s position.

 

(6)          Could the claimant carry out work from home.

 

            At the submission stage the claimant withdrew her claim for discrimination on the basis of her part-time working status and accordingly that aspect of her claim is dismissed.

 

Findings of Fact

 

4.         (1)     The claimant has been employed by the respondent from 31 May 1998 and has attained the grade of Administrative Officer.  She worked in Customs Operations and was based at Craigavon.

 

            (2)     The claimant’s husband, Nigel, also an employee of the respondent worked in the Debt Management and Banking Section based also at Craigavon.

 

            (3)     From 2004 to 2007 the respondent planned to reduce jobs by 12,500 throughout the United Kingdom and with a further reduction of 12,500 jobs from 2008 to 2011 under its Workforce Change Programme the respondent planned to reduce the number of offices throughout the United Kingdom.

 

            (4)     In November 2006 the respondent announced a decision to reduce its office accommodation throughout the United Kingdom.  In Northern Ireland an announcement was made of plans to centralise Customer Operations in Belfast, Lisburn and Newry and to remove work from Craigavon.  Craigavon was identified as an office the respondent wished to close. 

 

            (5)     The respondent put out its proposals for consultation in Northern Ireland.

 

            (6)     Staff members were informed that they could move to vacancies within the respondent organisation or they could stay at their location in Craigavon.  If they were to stay they could be identified as pre-surplus and if no job was ultimately found for them they could face redundancy.  Staff members were encouraged to consider applying for the vacancies.

 

            (7)     As Customer Operations was to cease in Craigavon and continue in Lisburn, Newry or Belfast, five members of the staff at Craigavon successfully applied to move to Customer Operations in Lisburn, including the claimant. 

 

            (8)     The claimant then lived in Ardboe, Co Tyrone and the trip to Craigavon was 30 miles, taking some 45 minutes and the trip to Lisburn was 45 miles taking about one hour.

 

            (9)     The claimant applied for a vacant post in Lisburn and was successful.  She moved to Lisburn on 2 April 2007.  The claimant felt obliged to move to avoid redundancy.  Her husband applied to work temporarily in Lisburn and a temporary move was agreed to facilitate him.

 

            (10)   Following an equality impact assessment the decision to close Craigavon was reversed but Customer Operations was not to return there.

 

            (11)   In 2008 one-to-one discussions with staff, in locations where there was no longer to be a presence on that site, were held.  Arising from that Nigel Dillon had such a discussion and was deemed to be outside of the reasonable daily travelling time to move to Belfast.

 

            (12)   In the first half of 2008 the claimant became pregnant with her first child.  The baby was born in December 2008.

 

            (13)   The claimant was the main carer for her elderly parents.  In October 2008 the parents’ health deteriorated.  The claimant’s father had surgery twice for cancer and chemotherapy.  The claimant’s mother suffered from high blood pressure and acute vertigo.  As the main carer the claimant was responsible for preparing meals, ensuring the correct medication was taken and provided, attending frequent hospital appointments, responding to emergencies and any other day to day caring need.

 

            (14)   The claimant went on maternity leave on 23 November 2008.  As the claimant was not working in Lisburn her husband Nigel successfully applied to return to Craigavon in late 2008 or early 2009.  The Debt Management work finished in Lisburn in January 2009 but by that time Nigel Dillon had already moved.

 

            (15)   While on maternity leave the claimant raised her concern with her manager, Rachael Young, regarding her caring responsibilities for her elderly and ill parents and her new baby son.  She was advised to apply for a special transfer to Craigavon.  She applied in May 2009.

 

            (16)   The respondent operated a Special Transfer Policy.  It changed in or about July 2009.  Prior to July 2009 the policy provided for two categories of transfer;-

 

                     Category 1 – for people whose circumstances are extremely urgent and severe.  Examples were given as cases of domestic violence or a severe medical problem which could include the jobholders who are sole or main carers of individuals with severe medical problems. 

 

                     According to the policy the decision whether the jobholder needs to move is made by the HR Business Partner.  If a vacancy is not available the move will be on a detached duty or on a supernumerary basis until a permanent vacancy arises. 

 

                     Category 2 is not relevant for present purposes.

 

                     The new policy on special transfers permits a move if the jobholder is the victim of domestic violence or is at significant risk of violence outside the workplace and working hours as a result of their official duties.  Again the senior HR Business Partner makes the decision.

 

                     Under both policies the applicant is required to apply, setting out the case for a transfer, and adding such supporting matters as they think fit, for example a doctor’s report.

 

            (17)   The claimant made a written application under the old policy for a transfer.  She made it under Category 1, on the basis that she was the main carer of her elderly parents with severe medical problems.  In her application she assesses her travel time to work from Ardboe to Lisburn as one hour 15 minutes, including leaving her son off with the babyminder.  She further referred to the medical condition of her parents and stated that she was the main carer.  She outlined the cost of travel and potential savings in cost if she and her husband could travel to work in Craigavon together.  She also set out the benefits of being able to be more accessible to and closer to her son, which she set out in a paragraph beginning “most importantly ….”.  She also attached a supporting letter from her GP of 12 May 2009.

 

            (18)   Ronne Gordon, as a senior manager, reviewed the application and made a recommendation to the Business Partner.  He considered the application did not meet the Category 1 transfer requirements under the old policy.  He sent a report to Jo Rudkin, HR Business Partner, including the application with supporting documentation and his recommendation that the transfer should not be allowed. 

 

            (19)   The respondent replied to the claimant by letter of 13 July 2009 from Ms Sarah Hunt, HR Business Partner Team.  In the letter Ms Hunt stated that the claimant was refused the transfer of the basis of the new policy.  The respondent said this is a mistake.

 

            (20)   The claimant was then advised to consider reducing her hours or becoming more flexible in her hours but these options were not financially viable for the claimant.

 

            (21)   The claimant discussed the matter with her manager on 4 September 2009 but was told the policy on special transfer had changed and the only option was to reduce her hours or work more flexible hours.

 

            (22)   Under the old policy, transfers, by reason of caring arrangements, were granted to Eddie O’Hare, Karol McCreesh, nee Duffy, Helen Campbell and Nigel Gallagher. 

 

            (23)   On 11 September 2009 the claimant lodged a formal grievance in relation to the refusal to grant her a transfer.  The decision was delivered in May 2010 rejecting the claimant’s grievance.  The claimant has appealed.  An appeal meeting was held on 22 September 2010 but no decision has been made known to the claimant as yet. 

 

            (24)   As of 1 April 2010 59% of all of the respondent staff are female. 

 

            (25)   From September 2009 maternity leave finished but the claimant was on stress-related sick leave.  She subsequently became pregnant in November 2009 with the baby due on 24 July 2010. 

 

            (26)   On 22 March 2010 the claimant returned to work, on a temporary basis, in Craigavon, because of the ongoing health issues she had before she went off on maternity leave. 

 

The Law

 

5.         (1)     Discrimination on the ground of sex is to treat a women less favourably than a man on the ground of her sex (Article 3 Sex Discrimination (Northern Ireland) Order 1976).

 

            (2)     It is unlawful to discriminate against another on the ground of sex (Article 8(1) Sex Discrimination (Northern Ireland) Order 1976).

 

            (3)     It is unlawful for an employer to discriminate against a women, on the ground of sex, in the way it affords her excess to opportunities for promotion, transfer, or training, or to any other benefits, facilities, or services or by refusing or deliberately omitting to afford her access to them or by subjecting her to any other detriment (Article 8(2) Sex Discrimination (Northern Ireland) Order 1976).

 

Application of the Law and Findings of Facts to the Issues

 

6.         (1)     The applicable policy for considering the claimant’s transfer request is the old Special Transfer Policy.  The tribunal arrives at that conclusion for the following reasons;-

 

                     (a)     When the claimant applied for a transfer the operative policy was the old one.

 

                     (b)     Mr Gordon, on behalf of the respondent, considered her application under the old policy and made a recommendation under the old policy.

 

                     (c)     The new policy did not come into operation until July 2009.

 

                     (d)     The respondent told the tribunal that the letter from Sarah Hunt of 13 July 2009 purporting to refuse the claimant’s application on the basis of the new policy was a mistake.

 

            (2)     The evidence before the tribunal was that the old policy, the one used in this transfer request, has not been implemented in that no HR Business Partner has made a decision on the basis of the application made.  Mr Gordon is not the decision maker according to the policy.  Accordingly the respondent has not made a decision in accordance with the old policy yet.  The claimant’s application has not yet been decided.

 

            (3)     The claimant does not suggest that the consideration of her application for a transfer under the old policy or the respondent’s failure to bring it to a conclusion in accordance with the old policy are themselves acts of sex discrimination.

 

            (4)     If the new policy does not apply then the contentions about its application giving rise to a claim for direct sex discrimination or indirect sex discrimination do not arise. 

 

(5)          The claimant has abandoned her claim under her part-time working status. 

 

(6)          There has not been any less favourable treatment of the claimant as a decision has not been made yet on the basis of her transfer request under the old policy.

 

(7)          Accordingly her claim for sex discrimination is dismissed.

 

 

 

 

Chairman:

 

 

Date and place of hearing:  6, 7, 8, 10, 13, 14 and 16 December 2010, Belfast             

 

 

Date decision recorded in register and issued to parties: