Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2094/16

 

 

CLAIMANT: Kelly Knocker

 

 

RESPONDENTS: 1. The Board of Governors Wheatfield Primary School

2. Mrs Hume

3. Mr David Adams

4. Education Authority

 

DECISION

The unanimous decision of the tribunal is that

 

(1) the claimant made a Public Interest Disclosure on 3 May 2016 and on 9 May 2016.

 

(2) the claimant did not suffer a detriment by the respondents;

 

(3) the claimant was not indirectly discriminated against by the respondents on grounds of sex;

 

(4) the claimant was not discriminated against indirectly by the respondents on the grounds of her status as a part-time worker;

 

(5) the claimant is a disabled person for the purposes of the Disability discrimination Act 1995;

 

(6) the first named respondent did not fail to make reasonable adjustments.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Browne

 

Members: Mr E Grant

Mr A Carlin

 

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

 

The first, second and third-named respondents were represented by Mr M McEvoy, Barrister-at-Law, instructed by the Education Authority, being the fourth-named respondent.

 

Issues

 

1. The tribunal was required to determine the following legal issues:-

 

"(1) Did the claimant make a Public Interest Disclosure?

 

(2) If so, whether the claimant suffered a detriment by the respondents as a result of her making Public Interest Disclosures, as defined in The Public Interest Disclosure (Northern Ireland) Order 1998, on 3 May 2016 to David Adams and 9 May 2016 to Maxine Hume?

 

(3) Was the claimant indirectly discriminated against by the respondents on grounds of sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976, as amended, by the application of a provision, criterion or practice that the post of Senior Clerical Officer would be advertised as a full-time post?

 

(4) Was the claimant indirectly discriminated against contrary to the Part-time Workers (Prevention of Less favourable Treatment) Regulations (Northern Ireland) 2000 on grounds of her status as a part-time worker by the application of a provision, criterion or practice that the post of Senior Clerical Officer would be advertised as a full-time post?

 

(5) Is the claimant a disabled person for the purposes of the Disability Discrimination Act 1995? It was conceded by the respondents before the hearing of this case that the claimant is a disabled person for the purposes of that legislation.

 

(6) Did the first-named respondent fail to make reasonable adjustments contrary to section 4A(1) of the Disability Discrimination Act 1995 by failing to fill the Senior Clerical Officer post on a job-share or part-time basis?

 

Finding of facts

 

2. The claimant has suffered for around thirteen years with psoriatic arthritis, for which she self-injects with Golimumab once per month, and she takes Co-drydamol and Naproxen as pain relief. Before working at Wheatfield Primary School, the claimant had worked in a variety of jobs, with significant experience in office administration. As her children attended Wheatfield Primary School, the claimant was involved in school activities, and enjoyed a very good relationship with the school.

 

3. In 2015, the claimant was doing a course in child care Level 3, which involved practical experience by working on placement with a P4 class in Wheatfield Primary School one day per week. Just before her placement came to an end, she was asked by Mr Waugh, then principal, who retired in December 2015, if she would be interested in working for 20 hours per week as Senior Clerical Officer.

 

4. This was to replace Liz Evans, who then was doing the job full-time (33 hours per week), and retired at the end of June 2015. Mr Waugh told the claimant that this was a temporary arrangement, until the job was advertised. There was no recruitment process for this temporary post, other than that the claimant would show Mr Waugh her curriculum vitae and that he considered her to be suitable. The claimant's engagement form issued to her at the time confirms that it was a "temporary post pending public advertisement", although the claimant in evidence described the situation as being "a bit confusing".

 

5. There is common pattern in this case of staff posts at all levels within the school not being filled or even advertised by the time the person doing the job had left; there was a similar pattern regarding temporary posts not being advertised after six months, as required by Education Authority guidelines.

 

6. The claimant started work on 17 August 2015, at which time Mr Waugh was still principal. It is of note that the failure to appoint a successor to Mrs Evans was not within Mrs Hume's power to address until she took over as Acting Principal in January 2016, by which time the evidence showed she had already made enquiries about reverting to the previous full-time cover at the school's reception.

 

7. The evidence strongly indicates that the only mention made by the claimant to the respondents about her physical limitations was during her health assessment for the temporary role, which was carried out in September 2015, after she had started working at the school. The Occupational Health physician who examined her relayed what she had told him, namely that she had disclosed her "chronic inflammatory condition affecting her joints....her symptoms affect her day to day activities and she manages her household duties on a day to day basis, depending on the severity of her symptoms."

 

8. He then wrote:

 

"....I discussed with Mrs Knocker any adjustments required in her job role. She should not lift more than 2kg and should change position regularly throughout her working day to prevent static posture. In this case, I recommend Mrs Knocker has an ergonomic assessment to ensure she is maintaining good posture at her workstation and if further adjustments are required. In the interim period, Mrs Knocker is likely to benefit from a footstool to promote good posture when seated at her workstation."

 

9. In fact, after a comprehensive school assessment carried out in March 2016 by Mr David Adams (the third-named respondent) from the school's Board of Governors (the first-named respondent), a footrest and wrist rest were provided to the claimant. There is no record of the claimant ever having asked for these prior to the March 2016 assessment on foot of the Occupational Health doctor's recommendation; nor was there any evidence of her ever complaining of any discomfort or other symptom of her disability arising from her time spent at work.

 

10. The doctor concluded by writing that the claimant was "fit to carry out the tasks ... and should be fit to provide regular, reliable and sustained service in the future." The doctor did not raise any issues about how many hours she could work per week; nor did he record any information from the claimant that she was prevented by her disability from working a full day. It additionally is of note that the claimant has produced no medical evidence to confirm that she was not at the material time capable of working full-time.

 

11. Whilst there were no issues over the claimant's ability, by December 2015, Mrs Hume decided that the needs of the school required a full-time presence as Senior Clerical Officer, to be in place after the Christmas holidays, when she was due to replace Mr Waugh.

 

12. She cited in her evidence that there had been verbal complaints from parents and staff about an absence of cover in the afternoons, when the claimant was not present. These concerns were referred to in the Board of Governors' meeting minutes of 7 January 2016, along with the welcomed news that Liz Evans was returning, to make up the shortfall in hours.

 

13. There was no evidence, from the claimant or elsewhere, that, when offered the temporary post by Mr Waugh, she had made any mention of being limited in her ability to work by her disability or her childcare responsibilities; it was in fact Mr Waugh who had set the hours at twenty. The claimant did not raise in evidence that the 20 hours offered coincidentally suited her because of any health or childcare needs which might have prevented her from working more hours than the 20 offered.

 

14. The post had previously been full-time, until Mrs Evans retired. Mrs Hume in December 2015 asked the claimant if she could work more than the 20 hours, but the claimant told her that she could not, otherwise it would affect her welfare benefits. This was later put to the claimant at a meeting on 28 June 2016, and she did not dispute it then, although she denied in the course of the tribunal proceedings that benefit payments played any part in her ability to take up the offer.

The claimant refuted in her evidence that payment of benefits was an issue.

15. Mrs Hume's evidence was that the claimant at no stage in December, or later, mentioned her health or childcare needs as a reason. The claimant disputed that assertion by Mrs Hume, stating that she had explained about her arthritis when
Mrs Hume asked her in December if she would work full-time.

 

16. As a result of the claimant's expressed unwillingness to cover the post full-time, Mrs Hume contacted Liz Evans, who retired from the job in June 2015, who agreed to return, but only until the end of June 2016. Mrs Hume therefore knew from at least December that, from the end of June 2016, Mrs Evans would not be available at all, and the claimant had made it clear that she would not be willing or able to work more than 20 hours per week. Mrs Hume's stated preference was to return to the previous situation of a full-time post, staffed by one person.

 

17. Between them, the claimant and Mrs Evans agreed their weekly work rota, in place from January 2016 until June 2016. The claimant worked 20 hours per week, as before, but consolidated them in to two full days, 8.30 to 3.30 pm, and one day from 8.30 am to 2.30 pm; Mrs Evans worked two days, 8.30 am to 3.30 pm. There was no evidence that the claimant at any stage had expressed any unwillingness to work what in effect were three full days, either on medical or childcare grounds. It is worthy of note that of her two children, one was already at secondary school. The other, who attended Wheatfield Primary School, was in P6, and finished school at the same time as her mother finished work, apart from one of the days she worked, by which time the claimant had finished work for the day.

 

18. Yet again, no action was taken to recruit anyone permanently. In this instance, however, there was email evidence to establish that, by the end of March at the latest, Mr Adams, in consultation with Mrs Hume, had contacted the Education Authority (the fourth-named respondent), to enquire about permanently filling the post. It is worthy of note that he at that time was also enquiring about the possibility of advertising the post as suitable for job sharing, even before the claimant asked about such an arrangement.

 

19. The tenor of those emails would suggest that the second- and third- named respondents were open to considering it, since it was, in effect if not in name, the system in place at that time. Mr Adams actually raised it with the fourth-named respondent, asking if the post could be advertised as a job-share. The Education Authority's response was that it was not possible to "create a post around an employee. It must be to meet the requirements of the school." The Education Authority view was that "the Board of Governors should determine what is required in the office structure". The Education Authority also advised that the post should be advertised as full-time, and that whoever was interested could apply "through the normal recruitment procedures".

 

20. Mrs Hume and Mr Adams interpreted this as meaning that the post should be advertised as full-time, and that any amendments to the work pattern, such as job-sharing, could be reviewed when the recruitment process had been completed. The claimant made the point that two teachers had been allowed to job-share, but the respondents' argument was that they were already in two substantive posts, whereas the claimant had not even applied for the substantive post when it was advertised, never mind been appointed.

 

21. Mrs Hume in her evidence was clear that she wanted this post to be covered full-time, preferably by one person, but the email evidence also supports the view that she was prepared to countenance job-sharing, if her preferred option was not feasible.

 

22. It was also Mrs Hume's evidence that she had discussed with the claimant on a number of occasions between December 2015 and June 2016 the fact that she wanted a full-time replacement for the existing arrangement. It should be noted in this regard that Mrs Hume's stated preference was supported by the fact that, in anticipation of assuming control of the school, she had investigated the possibility of the claimant working full-time; and, when that was not possible, arranged for Mrs Evans to return. The claimant's evidence however was that Mrs Hume's clear preference for a full-time post had only been disclosed to her on 19 May 2016.

 

23. It is also of note that, in addition to Mrs Evans's initial agreement to work only until the end of June, upon her return in January the Education Authority would only pay her at the lowest point on the salary for the work, whereas when she retired she had been on the top of the scale. This situation created a significant irritation to Mrs Evans, which the school unsuccessfully sought to remedy on her behalf. There was therefore the additional potential for Mrs Evans to withdraw her agreement to work at all. It is of particular note that, during the negotiations surrounding Mrs Evans's rate of pay, Mr Adams informed Mrs Hume in an email on 12 April 2016 that "the [Education Authority] are emphasising that what we really need to do is advertise the post!"

 

24. This was subsequent to e-mail exchanges between them on 30 March 2016, in which Mrs Hume had stated: "we will really miss Liz [Evans] next year and I wonder if Kelly [the claimant] will take the extra hours or if we will need someone else on a part-time basis. We also need to advertise this post at some stage!"

 

25. As well as being an employee, the claimant still had one of her children at the school. Her daughter, then in P6, has a congenital heart defect, and the claimant was very concerned at times about school discipline, in case her daughter was caught up in any misbehaviour. Her concerns included incidents in June 2015, while Mr Waugh was still principal, although she was more recently concerned about incidents in April 2016, when her daughter's usual P6 teacher went on maternity leave.

 

26. In May 2016, the claimant contacted Mr Adams, in his role as a school governor. The breakdown in discipline is substantially confirmed by Mrs Hume in her evidence, although she described in detail methods adopted by the school to address not only individual incidents but strategies put in place to avoid their recurrence.

 

27. The claimant and Mrs Hume had previously discussed the claimant's concerns about discipline, but, despite the reassurances from Mrs Hume, the claimant was not satisfied. She described herself as being under considerable stress due to the discipline issues, and decided that she needed to speak to Mr Adams in his capacity as a member of the school's Board of Governors.

 

28. The claimant's evidence was that, when she rang Mr Adams on 3 May, his reaction was that he had been a friend of Mrs Hume for a long time, and that he would be backing her. The claimant also stated that Mr Adams contacted her the next day and apologised for his initial response, saying that she had done the right thing. Mr Adams in his evidence denied both assertions by the claimant.

 

29. Mr Adams suggested that the appropriate course would be for the claimant to speak to Mrs Hume, to which she agreed, notably despite her initial assertion in evidence that she had only contacted Mr Adams because of her dissatisfaction with Mrs Hume's response to her concerns.

 

30. Mr Adams, with the claimant's consent, contacted Mrs Hume, who readily agreed to speak to the claimant, and the two met on 9 May. Mrs Hume's evidence was that she went through the claimant's concerns with her, and explained the processes and new arrangements, set up to deal with misbehaviour. Mrs Hume said to the claimant that, as an employee in school all day, she was now seeing it from a different perspective than as a parent with limited contact with the day-to-day challenges faced in this particular school. The claimant described the meeting as "casual and relaxed". Mrs Hume also told the claimant she knew how the claimant felt, as she too had been an employee with children at the school. The claimant accepted in her evidence that Mrs Hume did not "have it in for" her, but said that she felt her complaint had an effect upon the decision to advertise the job as full-time.

 

31. The claimant stated that she doubted Mrs Hume because she told her on 19 May, and again on 2 June, that the job would be advertised "in a few days", when in fact it was not advertised until the end of the summer, as no jobs are advertised by the Education Authority from June until late August. She also doubted what she claimed Mrs Hume told her about the Education Authority not allowing part-time work. The claimant stated in evidence that Mrs Hume informed the claimant on 19 May that job sharing did not suit her.

 

32. The claimant's case was that on 19 May, Mrs Hume told her that the post would soon be advertised as full-time. The claimant asked her if a job share would be considered, to which she says Mrs Hume said "the Board would not allow this", although it is unclear if this was the Board of Governors or the Education Authority. The claimant then said to Mrs Hume that "I really hope you get the right person for the job", to which Mrs Hume replied that she had someone in mind.

 

33. The other person was Mrs McDonald, who had been recommended to Mrs Hume; Mrs McDonald accepted Mrs Hume's invitation to work temporarily full-time in September, and subsequently was appointed permanently in that role after public advertisement in late August and interview in October. The claimant did not apply for the job.

 

34. The claimant's case was that she felt that the decision to advertise the job full-time had been taken after and in response to her complaints about school discipline.

 

35. On 6 June, the date of the last Board of Governors' meeting before the summer break, the claimant sent a letter for the Board to consider, which was read out at the meeting. The letter contained, to say the least, an explosive cocktail of allegations about the behaviour of Mrs Hume and Mr Adams in their conduct towards the claimant surrounding her job, as well as Mrs Hume's ability to maintain discipline in the school. The claimant in her letter also alluded to possible discriminatory conduct as a result of the conduct of Mrs Hume and Mr Adams. Mrs Hume stated that she was shocked and upset by the claimant's allegations contained in it.

 

36. Mrs Hume sent the claimant a letter dated 16 June, in which she told her that the Board of Governors had decided to advertise for a full-time Senior Clerical Officer, and that she was welcome to apply with any other potential candidates. That letter also informed the claimant that her temporary position would end on 30 June 2016. The claimant was deeply shocked by this news, and there had been no mention of it by Mrs Hume in their close day-to-day contact since 6 June.

 

37. Mrs Hume also in that letter offered to meet with the claimant and her union representative, if she wished. The claimant accepted the offer, and, accompanied by her union representative, met with Mrs Hume and Mr Adams on 28 June 2016. A contemporaneous note of the meeting by Mr Adams recorded that the claimant's assertion that the post did not require full-time hours was refuted by Mrs Hume. Mrs Hume also said that the claimant had told her she could not work more hours because her benefits would be affected. Mr Adams recorded that the claimant did not dispute that assertion, and it is of note that she did not subsequently at the tribunal hearing dispute the accuracy of that note.

 

38. On 12 September 2016, Mr Adams wrote to the claimant, confirming that the decision to end her temporary employment was being upheld by him. He advised the claimant in that letter of her right to appeal his decision, but she did not.

 

Law and Conclusions

 

39. The relevant legislation dealing with the legal issues enumerated at paragraphs 1 and 2 above is as follows:

 

 

Public Interest Disclosure:

 

Public Interest Disclosure (NI) Order 1998, which amends the Employment Rights (Northern Ireland) Order 1996:

 

""Meaning of "protected disclosure"

 

67A. In this Order a "protected disclosure" means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.

 

Disclosures qualifying for protection

 

67B(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -”

 

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

 

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

 

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

 

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

 

(e) that the environment has been, is being or is likely to be damaged, or

 

(f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.

 

(2) For the purposes of paragraph (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

 

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

 

(4) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

 

(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within sub-paragraphs (a) to (f) of paragraph (1).

 

Disclosure to employer or other responsible person

 

67C (1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith -”

 

(a) to his employer, or

 

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to -”

 

(i) the conduct of a person other than his employer, or

 

(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

 

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer."

 

In the terms of Article 134A of the amended 1996 Order:-

 

"... Protected disclosure

 

134A. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.]"

 

40. The case of NHS Manchester v Fecit [2012] IRLR 64, sets out the test to be applied in whistleblowing cases as being analogous to that in discrimination cases, and approved the application of the test in Igen Ltd v Wong , namely that once a protected act and consequential detrimental treatment have been shown by the claimant to have occurred, "the employer is required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act".

 

41. The tribunal is unanimous in its view that the claimant made a protected disclosure on 3 May, to Mr Adams, and on 9 May to Mrs Hume. The subject-matter of her complaints was in fact substantially acknowledged by Mrs Hume, reinforced by the fact that formal structures had been put in place by the school. Whilst the motive for the claimant raising these issues was primarily as a concerned parent, she also did so as an employee. That overlap was in fact acknowledged by Mrs Hume, who empathised with her, she also having been an employee and a parent with children at the school.

 

42. Whilst the claimant did not follow the set procedure for making such a disclosure, neither Mr Adams nor Mrs Hume objected to her direct approach. It must also be said that the respondents set a very poor example in conducting their affairs as regards job appointments and following standard procedures, so it is little wonder that the claimant took such an informal approach when raising her concerns.

 

43. The tribunal is also satisfied that the claimant initially made the disclosure in good faith, in the sense, that, whilst perhaps over- anxious, her concerns as to the health and wellbeing of her daughter and other pupils at the school having been endangered were well-founded, as confirmed by Mrs Hume. The claimant also confined herself to contacting Mr Adams, from the Board of Governors, and Mrs Hume, as principal.

 

44. The tribunal is unanimous in its view that the claimant did not suffer a detriment as a result of or connected in any way with her disclosures of 3 and 9 May 2016. The claimant asserts that she suffered a detriment as a consequence of those disclosures, namely, the decision to advertise the job as a full-time post, thereby depriving the claimant of the opportunity to apply for it on a job sharing/part-time basis.

 

45. As regards any alleged detriment as a result of the disclosures on 3 and 9 May, there was no evidence of anything other than a cordial and productive discussion with Mrs Hume, described by the claimant as "casual and relaxed". Mrs Hume sought to reassure the claimant that the matters were being taken seriously, with comprehensive and effective procedures being put in place. In other words, the school shared the claimant's concerns about behaviours which had manifested themselves.

 

46. The claimant's case is that the detriment she suffered was depriving her of the opportunity to apply for the advertised post as a result of these disclosures because they prompted the first, second and third respondents to advertise it as full-time, when in fact she felt that it could and should have been advertised as a job-sharing post, to dovetail with the arrangement then in place.

 

47. The tribunal considers however that the objective evidence comprehensively refutes any such notion, and that the claimant's aspirations shaped and distorted her expectations.

 

48. The tribunal has concluded that the temporary nature of the job and its inevitable advertisement as full-time were from the outset made clear to the claimant, both verbally by Mr Waugh, and subsequently in writing on 5 August 2015.

 

49. It was in the opinion of the tribunal clear from the actions of Mrs Hume, even before she took up the reins as Acting Principal, in asking the claimant to work full-time hours, and then contacting Mrs Evans, that her clear preference was for full-time cover as being appropriate to best meet the school's needs.

 

50. This was also manifested in the email correspondence with the fourth-named respondent over several months, with a clear preference expressed for one person working full-time. The possibility of job sharing was explored with the Education Authority, even before the claimant enquired about it, but it was made clear by the Authority that such an arrangement could only be considered if someone offered or appointed to the substantive post subsequently requested it.

 

51. The tribunal is satisfied that the claimant probably told Mrs Hume that she could not work more hours without losing benefits. The evidence as to whether or not such a statement was true was inconclusive, but the tribunal considers that the claimant probably told Mrs Hume this as a means of avoiding working more hours because, put simply, the arrangement was her personal preference, unaffected by her childcare needs or her disability. It is of note that, when on 28 June she met with Mrs Hume and Mr Adams, accompanied by her union representative, the claimant did not challenge that she had said this, and only this, to Mrs Hume.

 

52. That assertion sat uncomfortably with the claimant's evidence to the tribunal that she had told Mrs Hume in December 2015 that her disability prevented her from working more hours, and the tribunal prefers the evidence of Mrs Hume and Mr Adams in that regard. It is reinforced in its view by the fact that the claimant at the tribunal hearing did not challenge the accuracy of Mr Adams's note of 28 June 2016.

 

53. There was no medical evidence supporting the claimant's contention that she could not work more than 20 hours per week, and that figure in any event had been set by Mr Waugh when offering the claimant the temporary post.

 

54. The claimant in her own evidence has never asserted that she told Mrs Hume when they were discussing the pending advertisement that she might apply for the job, and in fact stated the hope that Mrs Hume would be able to "get the right person for it". There was in the view of the tribunal no practical reason to prevent the claimant applying for the job and, if successful, then seeking to work part-time or in a job sharing role. The claimant, in telling Mrs Hume that she was going to approach the Board of Governors about job sharing, and in her subsequent letter to the Board of 6th June, was in effect making the case for her to be appointed to a job which she had decided was properly hers.

 

55. The tribunal notes from the agreed legal issues settled on 17 January 2017 that the claimant has not sought an adjudication as to whether or not she suffered a detriment in connection with 6 June. The written submissions at the end of the tribunal hearing on behalf of the claimant, however, seek to assert a causal connection between the claimant's action on that date and what is asserted by her to be a second detriment, namely, the decision to terminate her employment. For the avoidance of doubt, the tribunal is of the view that the letter sent by the claimant on 6th June 2016 was not a public interest disclosure.

 

56. Whilst it included a reference to what the tribunal has concluded were public interest disclosures of 3 and 9 May, the tribunal considers such reference to be the flimsy veil draped over what in reality was a vicious and self-serving attack on the integrity and ability of Mrs Hume and Mr Adams. The contents of the letter were, in effect, a determined pitch to the Board of Governors to mould the job of Senior Clerical Officer around the claimant.

 

57. The tribunal has concluded that a significant additional motivation for it was also as revenge against Mrs Hume and Mr Adams for proceeding to advertise the job as full-time.

 

58. As such, it falls well outside the requirement of "good faith" required by Article 67C (1) of the 1996 Order.

 

59. In any event, it is the view of the tribunal that the decision to advertise the post as full-time, in accordance with the terms upon which it had always been performed, had been taken even before the claimant started working in the school as Senior Clerical Officer. It appeared to the tribunal that her temporary appointment in itself was a deviation from the previous working pattern of this post, only necessitated at the last minute by yet another failure by the school to have posts advertised and filled by the time the incumbent departed.

 

60. There was no assertion by the claimant that the letter from Mrs Hume of 16 June came as anything other than a bolt out of the blue. There was no allegation by her of unpleasantness or coldness from Mrs Hume or anyone else after 6 June. Mrs Hume was candid in saying she was shocked and upset by the contents of the letter of 6 June; it would be surprising if she was not, as the discussion between her and the claimant of the discipline issues appeared to have been amicably resolved.

 

61. It was the view of the tribunal however that the decision to end the temporary contract at the end of June had already been decided well in advance of that date, and its timing was in fact the result of a number of other factors, unrelated to the claimant's concerns about school discipline. The need to avoid a looming return to only one part-time employee (the claimant) in September was neatly resolved by Mrs McDonald agreeing to work full-time. There was also no practical need to keep the claimant on after the end of June, as the school would be closed. The claimant herself had not started work until mid-August, after Mrs Evans's retirement at the end of June.

 

62. The tribunal therefore concludes in answer to the questions posed at (1) and (2) of the Legal Issues that the claimant made a Public Interest Disclosure on 3 and 9 May 2016, but she did not suffer a detriment.

 

63 The legal issue at (5), namely "Is the claimant a disabled person for the purposes of the Disability Discrimination Act 1995 has been resolved in the claimant's favour by the respondent's acceptance that she is such a person.

 

64. As regards the legal issues at (3), (4) and (6) of indirect discrimination on grounds of sex; of indirect discrimination on grounds of her status as a part-time worker; and as regards the alleged failure of the respondents to make reasonable adjustments for the claimant, who is acknowledged by the respondents to be a disabled person, these are dealt with together below, to avoid repetition of the factual matrix and legal principles and tests which apply to them. The relevant legislation is as follows:

 

65. Sex Discrimination (Northern Ireland) Order 1976

 

"3(1) In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if -”

 

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

 

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but -”

 

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it,

 

(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 because she cannot comply with it.

 

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

 

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

 

[F2(b) he applies to her a provision criterion or practice which he applies or would apply equally to a man, but -”

 

(i) which puts or would put women at a particular disadvantage when compared with men,

 

(ii) which puts [F3, or would put,] her at that disadvantage, and

 

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.]"

 

Article 8(1): 8

 

"F2-”(1) It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman -”

 

(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or

 

(b) in the terms on which he offers her that employment, or

 

(c) by refusing or deliberately omitting to offer her that employment."

 

66. In order to satisfy the definition of indirect discrimination, the claimant has to prove, subject to the burden of proof in Article 63A:

 

That the respondent -

 

Article 3(b) applies to her a provision criterion or practice which he applies or would apply equally to a man, but -”

 

(i) which puts or would put women at a particular disadvantage when compared with men,

 

(ii) which puts, or would put, her at that disadvantage, and

 

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

 

Disability Discrimination/Failure to make reasonable adjustments:

 

Disability Discrimination Act 1995

 

"4A Employers: duty to make adjustments

 

(1) Where -”

 

(a) a provision, criterion or practice applied by or on behalf of an employer, or

 

(b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

 

(2) In sub-section (1), "the disabled person concerned" means -”

 

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

 

(b) in any other case, a disabled person who is -”

 

(i) an applicant for the employment concerned, or

 

(ii) an employee of the employer concerned."

 

Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) Regulations 2000:

 

Meaning of full-time worker, part-time worker and comparable full-time worker:

 

"2(1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker.

 

(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is not identifiable as a full-time worker.

 

...

 

(4) A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place -”

 

(a) both workers are -”

 

(i) employed by the same employer under the same type of contract, and

 

(ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and

 

(b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.

 

Less favourable treatment of part-time workers:

 

5(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker -”

 

(a) as regards the terms of his contract; or

 

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

 

(2) The right conferred by paragraph (1) applies only if -”

 

(a) the treatment is on the ground that the worker is a part-time worker, and

 

(b) the treatment is not justified on objective grounds.

 

(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate."

 

BURDEN OF PROOF

 

It is the claimant's responsibility to prove facts from which the tribunal could conclude, in the absence of an adequate alternative explanation, that the respondent's treatment of the claimant was on grounds of sex, disability or, in terms, her status as a part-time worker. Once facts have been established from which discrimination could be inferred, the burden shifts to the respondent to show that there is another explanation for the treatment. It is clear that a difference in status is not enough to establish the inference of discrimination ( Madarassy    v Nomura International Plc [2007 ] IRLR  246 ). Where the claimant relies on actual comparators to show less favourable treatment, it is necessary to compare like with like. In addition, the claimant may rely on the evidential significance of non-exact comparators in support of an inference of direct discrimination. Especially since the ruling of the House of Lords in Shamoon  v Chief Constable of the RUC [2003] IRLR 285 HL, there has been a movement towards treating the question of whether less favourable treatment was on the proscribed ground  - the "reason why" issue  - as the crucial question for tribunals to address ( Aylott  v Stockton on Tees Borough Council [2010] IRWR 994 CA; JP  Morgan Europe Ltd    v Chweidan [2011] EWCA Civ  648 ) rather than focusing on the characteristics of actual or hypothetical comparators. As put by Mummery LJ in Aylott, "Did the claimant, on the proscribed ground, receive less favourable treatment than others?"

 

The tribunal received valuable assistance from Mr Justice Elias' judgment in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs are set out in full to give the full context of this part of his judgment.

 

"Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 - 'this is the crucial question'. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

 

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

 

'Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.'

 

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.

 

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-

'it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.'

 

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10."

 

67. The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

"This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination".

 

Conclusions re Factual Issues 2, 3 And 5

 

68. The tribunal, having carefully considered the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows.

 

69. The tribunal 's approach has to be informed by the need to stand back and focus on the issue of discrimination. It is not necessary in every case for a tribunal to go through the two stage burden of proof procedure. In some cases, such as this one, it may be appropriate for the tribunal simply to focus on the reason given by the respondent, and, if satisfied that this discloses no discrimination, then the tribunal need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under Stage 1 of the Igen test. The claimant is not prejudiced by this approach because in effect the tribunal is acting on the assumption that, even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

70. The tribunal is unanimously of the view that the claimant has failed to prove facts from which the tribunal could conclude, in the absence of an adequate alternative explanation, that the respondent's treatment of the claimant was on grounds of her sex or her disability, or less favourably treated as a pert-time employee.

 

71. The claimant did not seek to establish that the application of the criterion of full-time work is in itself inherently discriminatory, but that it was in her case. Additionally, whilst there is no legal requirement on the claimant to produce evidence of a comparator pool, this is permitted, but the claimant did not seek to establish one. The fact that it is settled law that women are proportionately more likely than men in employment to have childcare responsibilities does not in the view of the tribunal lend assistance to the claimant in this case. Of her two children, one had already moved to secondary education, and the other, who attended Wheatfield Primary School finished school at the same time or after the claimant would finish work, even working full time.

 

72. Whoever applied, the respondents had not ruled out being open to considering job sharing, as long as the needs of the school could still be met by such an arrangement. Mr Adams had enquired specifically about this in the early stages of confirming the job description. In response, he had been clearly told by the Education Authority that it was not appropriate to tailor a job around a prospective applicant, if, as in this case, the post had already been identified by the school as requiring a full-time postholder.

 

73. The tribunal is satisfied that at no stage did the claimant raise her disability or her childcare arrangements with the respondents as a reason not to be able to work full-time. The view of the tribunal is that her attitude on that aspect was probably driven by her personal preference, rather than by any constraints necessitated by her disability or childcare responsibilities. The respondents therefore could not have been expected to make any reasonable adjustments for her, because they did not know, and the claimant had already made it clear that she would not be applying, telling Mrs Hume that she hoped they got the right person for the job. In any event, there was no medical evidence that the claimant required any adjustments, over and above the very modest adjustments required for her comfort, which had already been supplied. There was no evidence that the claimant had asked for the equipment between the date of her occupational health examination and the assessment conducted by Mr Adams.

 

74. The fact that the claimant was working part-time in this job was in itself running contrary to the historical pattern in the post, and was only ever intended to be a stop-gap. That situation was in the view of the tribunal well known to the claimant from the outset, reinforced by the fact that her own recruitment came about so casually, along with clear verbal and written information that it was to paste over the school's and the Education Authority's repeated dilatory failure to ensure that posts were advertised and filled in anything resembling a timely fashion.

 

75. As regards the claim of less favourable treatment of the claimant as a part-time worker, the tribunal concludes that she was not so treated. Her claim in that regard is based upon the permission granted by the school to two full-time teachers to jobshare. The tribunal accepts the respondents' case that those two teachers were already employed, and made their request within that context. The claimant in this case did not even apply for the job, and the school was in any event acting on the clear advice from the Education Authority, as well as being the clear preference of the principal.

 

76. The claimant told Mrs Hume and Mr Adams at the 28th June meeting that the job did not require more than 20 hours per week, which was not within her remit or competence to decide, even if Mrs Hume had sought her opinion. The tribunal is satisfied from the email and other evidence that the decision to return to a full-time post occupied by only one person, in the best interests of the efficient running of the school as she assessed them, had already properly been taken by Mrs Hume, in liaison with the Education Authority, long before the claimant raised it. The tribunal is satisfied that the claimant's argument regarding the permission granted to two full-time teachers to job is not made out, as their situation was completely different.

 

77. The fourth-named respondent did not attend and was not represented at the tribunal hearing. No witnesses were called on its behalf or by the other respondents. The claimant sought to make the case that any such witness might have been expected to give evidence, and that the tribunal was entitled and ought from such absence to infer discrimination. The claimant however otherwise appeared to make the case that the advice given by the fourth-named respondent to Mr Adams and Mrs Hume, and through them to the school board, was based upon incomplete information provided by Mr Adams and Mrs Hume. As such, there appears to the tribunal to be little, if any, benefit to its ability to determine the issue of discrimination, as the fourth-named respondent was, on the claimant's own case, being misled by the other respondents.

 

78. The tribunal has concluded from its assessment of the evidence that the information given was accurate. Those discussions were in any event outside the timeframe of events within which the claimant alleges the decision to advertise the job as full time became enmeshed with and influenced by her raising of the school issues with Mrs Hume, Mr Adams, and subsequently with the school Board on 6th June 2016, which form the basis of her complaints to the tribunal. The tribunal therefore concludes that it was not in any way hampered in its assessment of the issues in the case by a lack of evidence from the fourth-named respondent. From its assessment of the evidence, the tribunal concludes that discrimination is not made out.

 

79. The claimant's case is therefore dismissed in its entirety against all of the respondents.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 20-22 June 2017, Belfast

 

 

Date decision recorded in register and issued to parties: