Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  18121/19

 

CLAIMANT:                          Anonymised Claimant

 

RESPONDENT:                  Anonymised Respondent

 

 

JUDGMENT

 

The unanimous judgment of the tribunal is that the claimant’s claim for sex discrimination was presented on time.  The claimant was not discriminated against contrary to the Sex Discrimination (Northern Ireland) Order 1976 and her claim of sex discrimination is therefore dismissed. 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge:                                  Employment Judge Sturgeon

                       

Members:                                                     Mr Ian O’Hea

                                                                        Mr Brendan Heaney

 

 

APPEARANCES:

 

The claimant was represented by Mr T Jebb, Barrister at Law, instructed by Worthingtons Solicitors.

 

The respondent was represented by Ms K Moore of the Engineering Employers’ Federation.

 

 

Background

 

1.            The claimant presented a claim for discrimination on the grounds of sex, contrary to Article 3 of the Sex Discrimination (NI) Order 1976 (as amended) (“the SDO”) and also for discrimination on the grounds of pregnancy, contrary to Article 5 of the SDO.  The claimant presented her claim on 26 August 2019. 

 

2.            The respondent presented a response, resisting all of the claimant’s claims, on 22 October 2019.

 

3.            The case pleaded by the claimant is that she was subjected to less favourable treatment in the following way:-

 

(a)          in an alleged refusal to grant a request for unpaid leave, for IVF treatment, in May 2018;

 

(b)          in an alleged refusal to grant a request for lighter duties in May 2018;

 

(c)          in the course of the disciplinary/absence management process between March and May 2019; and

 

(d)          requesting the claimant attend an occupational health meeting on 15 July 2019.

 

Request for Unpaid Leave

 

4.            The claimant’s case, in respect of her request for unpaid leave, is that in May 2018, she asked witness B if she could have unpaid leave for one week in August/September 2018.  The purpose of this request for unpaid leave was so that she “could organise my second cycle of IVF.”  The claimant alleges that witness B told her he took her request to witness C and that witness C said “no she can use her holidays.”  The claimant’s case is that this was an act of direct discrimination on the grounds of her sex. 

 

Refusal to Grant A Request for Lighter Duties in May 2018

 

5.            The claimant’s case, in respect of the refusal to grant her request for lighter duties, is that she requested lighter duties, in May 2018, in order to allow her to mentally prepare for her second cycle of IVF.  The claimant alleges that witness C stated that she would have to take a drop in pay if she wanted to avail of lighter duties.

 

Disciplinary/Absence Management Process between March and May 2019

 

6.            The claimant’s case, in this regard, is that she should never have had to go through a disciplinary/absence management process, between March and May 2019, as her absences were related to her IVF treatment.  Accordingly, the claimant contends this is a further act of sex discrimination.

 

Referral to Occupational Health on 15 July 2019

 

7.            Finally, the claimant also alleged, within her witness statement, that she was subjected to sex discrimination by the respondent’s decision to refer her to Occupational Health on 15 July 2019. The claimant’s case, in this regard, was that a male colleague, who had longer time off, was not required to attend Occupational Health.

 

The Respondent’s Case

 

8.            The respondent presented its response to the claimant’s claim on 22 October 2019 denying all of the claimant’s claims.  The respondent argued that the claimant was granted unpaid leave, on an ad hoc basis, before and after her IVF treatment.  The respondent also argued that the claimant was facilitated with basic operator duties without any impact on her pay or other terms and conditions of employment as a Grade 2 Operator.  Finally, the respondent also argued that its Absence Management Policy and Procedure is applicable to all employees and that it is normal practice that, on return to work following a period of sickness absence, employees attend a return to work interview with their line manager.  The respondent denies that the claimant was subjected to any form of sex discrimination and/or discrimination, on the grounds of pregnancy, in its application of its Absence Management Policy.

 

9.            The respondent also contended that all claims are out of time and that the claims do not constitute continuing acts of alleged discrimination. The respondent contended that allegations about unpaid leave and lighter duties are one-off alleged acts of discrimination that did not continue after May 2018. Similarly, the respondent contended that any allegations the claimant made about the disciplinary process cannot have continued beyond 13 March 2019 which was the date the claimant was told she would receive no disciplinary sanction for her absences. The respondent’s case is that the time limit for lodging any complaint about the disciplinary process was 13 June 2019.

 

The Issues

 

10.         The agreed Legal Issues for determination, for this tribunal, were as follows:-

 

(a)      was the claimant subjected to less favourable treatment on the grounds of sex, contrary to Article 3 of the Sex Discrimination (NI) Order 1976?;

 

(b)      whether the claimant has been subjected to less favourable treatment on the grounds of pregnancy, contrary to Article 5A of the Sex Discrimination (NI) Order 1976?;

 

(c)      whether all of the claimant’s complaints of unlawful discrimination on the grounds of sex/pregnancy have been lodged with the tribunal within the requisite three month time period?  If not, is it just and equitable for the tribunal to extend time?

 

The agreed Factual Issues for the tribunal to determine were as follows:-

 

(a)          Were the claimant’s requests for (a) unpaid leave and (b) lighter duties, in advance of her second cycle of IVF, considered by the respondent? 

Were they declined? 

If they were declined, what was the reason for this? 

Did others have the same request(s) granted and, if so, who were they and what were their circumstances?  Are their circumstances comparable?

 

(b)          Did the respondent’s alleged failure to permit the claimant unpaid leave and/or lighter duties, per her request in May 2018, impact on the claimant’s subsequent attendance in the work place?  If so, how?

 

(c)          Why was the claimant off for a period of sick leave between August and September 2018?

 

(d)          Was the respondent’s requirement that the claimant follow the absence management policy, including attendance at an Absence Review, reasonable following a period of absence?

 

(e)          Was the claimant treated differently in respect of her referral to Occupational Health in March 2019? 

 

Did other employees have hospital procedures and were not required to attend with Occupational Health?  If so, who were they and what were their circumstances?  Are their circumstances comparable? 

 

(f)            Did the claimant’s manager, witness C, offer less support to the claimant as compared to others?  If so, who were they, what support was offered and what were their circumstances?  Are their circumstances comparable?

 

(g)          In March 2019, was the claimant required to recite her negative experience to the respondent in relation to her second IVF treatment in September 2018?  If so, how did this impact on the claimant, if at all.

 

Procedure and Sources of Evidence

 

11.         This case had been case managed and detailed directions had been given in relation to the interlocutory procedure and the witness statement procedure. 

 

12.         At the commencement of the hearing, each witness swore or affirmed and then adopted their previously exchanged witness statement as their entire evidence in chief before moving on to cross examination and brief re-examination. 

 

13.         At the substantive hearing, the claimant gave evidence on her own behalf.  The tribunal also heard evidence from Witness A on behalf of the claimant.  A Witness Order was issued to Witness B who also attended and gave evidence on the claimant’s behalf.

 

14.         On behalf of the respondent, the tribunal heard evidence from Witness C, a manager with the respondent, and Witness D, a HR Business Partner with the respondent.  The tribunal also heard evidence from Witness E, an Occupational Health doctor. 

 

15.         The tribunal received a core bundle of documents containing both parties’ witness statements, all pleadings in the case, and all discovery exchanged between the parties. 

 

16.         The tribunal heard evidence from Monday 13 to Thursday 16 December 2021.  Oral submissions were heard on Friday 17 December 2021.  The tribunal also received written submissions from both the claimant’s representative and the respondent’s representative and a number of legal authorities. The tribunal is grateful to both parties for their very detailed and helpful submissions in this matter.

 

17.         Following a joint application of the parties, at the hearing, the tribunal ordered that the names of both the claimant and respondent would be anonymised under rule 44 of the Industrial Tribunal and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (NI) 2020.

 

 

 

 

Statement of Relevant Law

 

18.         The tribunal was referred to the following authorities by the respondent’s representative in her closing submissions:-

 

Madarassy v Nomura International Ltd [2007] IRLR 246

 

Nelson v Newry and Mourne District Council [2009] NICA 24

 

Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG C-506/06 [2008] IRLR 387

 

Sahota v Home Office and Pipkin UKEAT/0342/09

 

London Borough of Greenwich v Robinson (EAT/745/94)

 

19.         Sex Discrimination (Northern Ireland) Order 1976

 

Direct discrimination on the ground of sex

N.I.

“3.  In any circumstances relevant for the purposes of any provision of this Order, a person (“A”) discriminates against another (“B”) if, on the ground of sex, A treats B less favourably than A treats or would treat another person.”

 

 

Discrimination on the ground of pregnancy or maternity leave

N.I.

“5A—(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if—

 

(a)      at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably. . . ;

…

 

(3)  For the purposes of paragraph (1)—

 

(a)      in relation to a woman a protected period begins each time she becomes pregnant, …”

 

Basis of comparison

N.I.

7.  Each of the following comparisons, that is—

 

(aa)     a comparison of the cases of persons required for the purposes of

       Article 3,

 

…

 

must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

 

 

Burden of proof: industrial tribunals

N.I.

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

 

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

 

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

 

…

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.

 

Remedies on complaint under Article 63

 

65.—(1) Where an industrial tribunal finds that a complaint presented to it under Article 63 is well-founded the tribunal shall make such of the following as it considers just and equitable—

 

(a)         an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

 

(b)         an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court to pay to the complainant if the complaint had fallen to be dealt with under Article 66;

 

(c)       a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.

 

(1A)  In applying Article 66 for the purposes of paragraphs (1)(b), no account

shall be taken of paragraph (3) of that Article.

 

Period within which proceedings to be brought.I.

 

76.—(1) An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal before the end of

 

(a)        the period of three months beginning when the act complained of was done;

 

…

 

(5) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

…

 

Shifting the Burden of Proof

 

20.         The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof was reviewed and restated by the Northern Ireland Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] NICA:-

 

“22  This provision and its English analogue have been considered in a number of authorities.  The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been.  The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23  In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

 

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

 

That decision makes clear that the words ‘could conclude’ is not to be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’. 

 

24   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 an adequate explanation, that the respondent has committed an act of discrimination.  In Curley v Chief Constable of the Police Service of Northern Ireland [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.”

 

21.         In Sahota v Home Office and Pipkin UKEAT/0342/09, Mr Justice Underhill expressed the view that “the fact that an act complained of may occur in the context of, or in connection with, a protected characteristic does not necessarily mean that it was done on the grounds of that characteristic.”

 

22.         The EAT also expressed its view on whether protection from discrimination on the grounds of sex, without the need for a male comparator, extended beyond pregnant employees to those undergoing IVF treatment. The EAT found that when a worker is absent as a result of a gender specific illness, even one attributable to pregnancy or childbirth, less favourable treatment on account of that absence does not constitute sex discrimination. While infertility and the consequent need for IVF treatment was gender-specific, less favourable treatment on account of gender specific illness did not constitute sex discrimination.

 

23.         In the case of London Borough of Greenwich v Robinson (unreported;EAT/745/94), an applicant who took time off work to undergo IVF treatment contended that the absences in question should not count as sickness absence. That argument was rejected by the EAT. Mr Justice Keene concluded that:-

 

“We are not dealing, in the present case, with pregnancy. We are dealing rather with time required for treatment because of a failure to become pregnant in the normal way. The treatment is because the Respondent had not been able to become pregnant in the conventional way and it seems to us that this was capable of being categorized, therefore, as medical treatment and the time taken off for it as time taken off for sickness.”

 

24.         Finally, in the case of Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG C-506/06 [2008] IRLR 387, the ECJ ruled that a woman undergoing IVF treatment should be regarded as pregnant when in vitro fertilised eggs are transferred into her uterus. When an implantation fails, and the pregnancy ends, the protected period ends after a further two weeks have elapsed in accordance with Article 5A(3) of the Sex Discrimination (NI) Order 1976.

 

Relevant Findings of Fact and Conclusions

 

25.         Having considered the evidence given by all the witnesses and the content of relevant documents, referred to by the parties, along with the submissions of both parties, the tribunal found the following relevant facts proven on the balance of probabilities.  This judgment records only those findings of fact necessary for determination of the issues. 

 

Relevant Background Facts

 

26.         The claimant has worked for the respondent company since 1999.

 

27.         In 2017, the claimant underwent a first cycle of IVF. The tribunal accepts that the claimant found the experience of IVF stressful and difficult and, during the cycle, had to take annual leave, with little or no warning, due to the side effects of the drugs used during IVF. 

 

28.         The claimant’s first cycle of IVF was unsuccessful and the claimant, naturally, was upset as a result of this. 

 

29.         The claimant underwent a second cycle of IVF in August/September 2018.  On this occasion, the claimant’s case is that she asked her line manager if she could use two weeks holiday alongside one week unpaid leave for the second cycle. 

 

30.         There is a dispute between the parties as to whether or not management were ever informed of this request.  This matter is dealt with at paragraph 45 below.  However, there is no dispute between the parties that the claimant ultimately ended up using sick leave for her second cycle of IVF.  The claimant’s second cycle of IVF was also unsuccessful. 

 

31.         Following this second period of sick leave, the claimant had a return to work interview.  The outcome of this return to work interview was that the absence period of 15 August to 2 September 2018 was deemed to be prior to the embryo transfer during the claimant’s IVF cycle and so was treated as sickness absence as it attracted no special protection in law.  However, the period from 3 September to 14 2018 September was excluded from the claimant’s sickness absence as it related to her IVF cycle. 

 

32.         In February 2019, the claimant had a further four day period of absence for cold/flu and, accordingly, the claimant hit the “three occasions of absence” trigger under the company’s Absence Management Policy.  The three occasions of absence comprised the claimant’s absences of two days for a stomach bug on 19 and 20 February 2018, from 15 August to 14 September 2018 and the four day absence in February 2019 for cold/flu. A disciplinary hearing was set up to consider the claimant’s level of absence. 

 

33.         The outcome of the Absence Disciplinary Hearing, held on 6 March 2019, was that whilst the claimant had reached the Level 1 absence trigger, the panel decided to issue no sanction.  However, the claimant was informed that the company’s Occupational Health Advisers had recommended a referral to an Occupational Health Practitioner. 

 

34.         Following the meeting with the Occupational Health Practitioner (OHP), the claimant attended a Welfare Meeting to discuss the OHP’s report of 8 April 2019. This welfare meeting took place on 28 May 2019.

 

35.         Following the outcome of this Welfare Meeting, it was confirmed to the claimant that the period 3 to 14 September 2018 would also be excluded from her absence record. 

 

36.         The claimant was absent again from 18 June to 23 July 2019.  In line with the Absence Review Policy, the claimant was referred to Occupational Health again. 

 

37.         The claimant raised a grievance on 9 August 2019.  The subject matter of the grievance was how witness C had dealt with the claimant’s requests made in 2018 and the request to attend an Occupational Health appointment on 15 July 2019.  The claimant’s grievance was not upheld and the claimant did not appeal the grievance outcome.

 

Was the claimant’s claim lodged in time?

 

38.         The claimant argued that there was a continuing series of discriminatory acts up to and including the outcome of the Welfare Meeting on 28 May 2019.  The respondent does not accept that the matters complained of by the claimant constitute a continuing series of discriminatory acts. The respondent argues that all claims are out of time as set out at paragraph 9 above. However, in this case, the tribunal concludes that this claim was not focused on a one-off incident in May 2018.  Rather, this claim form and the witness statements span matters up to 28 May 2019.  The tribunal therefore considers that there was has been a series of actions which amounted to an ongoing state of affairs.  That being the case, the tribunal has determined that the claimant’s claim has been brought within the requisite time and that the tribunal therefore has the jurisdiction to hear this claim. 

 

Discretion to Extend Time

 

39.         Had the tribunal concluded that the claim, or at least that element of the claim relating to events in or around May 2018 was out of time, contrary to the conclusions set out at paragraph 38 above, the tribunal would still have been inclined to exercise its discretion to extend time.  This was on the basis that the tribunal had considered that it was just and equitable to extend time for the following reasons:-

 

(i)         it is clear from the medical evidence served that, at the relevant times, the claimant was suffering from depression and anxiety;

 

(ii)          the tribunal accepts the evidence of the claimant’s GP that her issues got worse in the summer of 2018 leading to her attendance with the GP on 24 August 2018 whereby she was issued with a Med 3 which led to her taking a month’s sick leave;

 

(iii)         the tribunal also accepts that the claimant’s mental health declined over the following months as she was prescribed increasing doses of citalopram, propranolol and then sertraline;

 

(iv)         the tribunal accepts that, unfortunately, these treatments were not particularly successful and that matters only began to improve for the claimant in or around 29 May 2019 whenever the claimant started counselling;

 

(v)          the tribunal accepts that, prior to 29 May 2019, the claimant mentally was in a bad place and that it was only whenever the effects of counselling took effect that she was able to lodge proceedings; 

 

(vi)         the tribunal accepts that proceedings were lodged within three months of the 28 May 2019 (the date of the claimant’s welfare meeting).

 

Was the claimant subjected to less favourable treatment, on the grounds of sex, in the refusal to grant a request for unpaid leave in May 2018?

 

40.         As set out at paragraph 4 above, the claimant’s case, in respect of the issue of unpaid leave, is that in May 2018 she asked witness B if she could have unpaid leave for one week in August/September 2018.  She states that the purpose of the unpaid leave was so she could organise her second cycle of IVF.  The claimant alleges Witness B told her he took her request to witness C and that witness C said, “No, she can use her holidays.”

 

41.         The claimant alleges this was an act of direct discrimination on the grounds of sex.  The claimant relies upon Mr X as her comparator and her case is that Mr X’s situation and hers are similar in nature. 

 

42.         However, the respondent’s case is that, if there was a request for unpaid leave, witness C was never informed of it. 

 

43.         The tribunal had regard to the fact that the respondent did not call witness B as its witness to support its contention that witness C was not informed of the request for unpaid leave.  The tribunal is entitled to draw an adverse inference, and does so, from the respondent’s decision not to call witness B. 

 

44.         In support of her allegation that she was told by witness B that witness C told her “No, she can use her holidays”, the claimant, via a Witness Order, called witness B as a witness to support her contention.  The tribunal did not find the evidence of witness B to be very helpful and the tribunal notes that witness B recalled very little of what took place or what was said between himself and the claimant.  The tribunal is therefore left in a position of being unable to attach any weight to the evidence of witness B.

 

45.         In the absence of being able to attach any weight to witness B’s evidence, the tribunal is therefore left in a position whereby it either accepts the evidence of the claimant or it accepts the evidence of witness C that he was never made aware of her request.  On this disputed point, the tribunal prefers the evidence of the claimant for the following reasons:-

 

(i)         the respondent has stated, within its ET3, that the claimant’s request was declined on the basis that the claimant had adequate holiday entitlement to take time off work for IVF.  The tribunal finds this admission consistent with the allegation that the claimant raises in her witness statement;

 

(ii)        the tribunal notes that witness C accepted, at the claimant’s grievance meeting, that if a general request for unpaid leave is made to him, he would request that holiday leave is used first.  The tribunal notes that this statement of witness C’s is consistent with the allegation the claimant raised in respect of what witness C told  witness B concerning the claimant’s request for unpaid leave;

 

(iii)       in an Occupational Health Report dated 31 May 2018, which is so close in proximity of time to whenever the alleged conversation between the claimant and witness B is said to have taken place, the claimant repeats the allegation that witness B told her that witness C said she was to use her annual leave.  The tribunal views this as a further act of consistency in the claimant’s evidence;

 

(iv)       the tribunal notes that witness C was made aware of the allegation via an email sent to him from Ms L on 24 September 2018.  The tribunal accepts the claimant’s argument that witness C did not appear to take any action to dispute this allegation thereby enhancing the tribunal’s conclusion that witness C made the alleged comment “No, she can use her holidays.”

 

Is the claimant’s comparator, for the purposes of the unpaid leave allegation, an appropriate comparator?

 

46.         To succeed in a claim for sex discrimination, the claimant must compare her treatment (i.e. her denial of unpaid leave) to another male employee within the organisation.  The circumstances of the proposed male comparator’s situation, relied upon by the claimant, were as follows:-

 

(i)         in early 2017, the claimant’s proposed comparator was absent due to sickness and compassionate leave as a result of childcare issues, threats from paramilitaries and being told by social services that he had to remain at home. 

 

(ii)        the claimant’s comparator was off on sickness leave followed by compassionate leave.  The tribunal accepts that compassionate leave is used for “extenuating circumstances” and that HR is involved in matters of compassionate leave;

 

(iii)       the claimant’s comparator was granted unpaid leave as he had taken 33 days holiday and his remaining leave entitlement needed to be retained for Christmas holidays when the factory was closed. 

 

47.         Having considered the circumstances of the male comparator relied upon by the claimant, the tribunal finds that he is not an appropriate comparator for the following reasons - the comparator’s situation was entirely different to the claimant’s situation.  His circumstances were extreme. He needed time off at short notice for his child, due to circumstances beyond his control, did not have sufficient annual leave remaining and it was an emergency situation.  By contrast, the claimant’s request was not for an emergency, was being made three to four months in advance and the claimant had ample holiday leave remaining (11 and a half days) to use her holidays. 

 

48.         The tribunal, following the application of Nelson v Newry and Mourne District Council, concludes that the claimant and her alleged comparator were not in a comparable position.  The tribunal concludes that there were sufficient differences between the two cases that could legitimately lead to a difference of treatment and therefore it is not possible to conclude, in the absence of other evidence pointing to gender biased decision making, that an inference or presumption of sex discrimination should be drawn.  Accordingly the tribunal concludes that the claimant has not adduced sufficient evidence to shift the burden of proof, required for a sex discrimination claim, with regard to this aspect of her case. 

 

Was the claimant treated less favourably, on account of her sex, in the respondent’s alleged refusal to grant her lesser duties?

 

49.         The claimant’s case, with regard to this aspect of her case, is that her request for lighter duties, in May 2018, was denied.  In her replies to the respondent’s Notice for Additional Information, the claimant identified witness C as the individual who denied the claimant lighter duties in May 2018. 

 

50.         It is common case that what is meant by lighter duties is where a Senior Operator does not lead the room.  Only one Senior Operator is needed to lead a room.  If a Senior Operator is not leading the room, they are performing operator duties. 

 

51.         The tribunal accepts the evidence of witness C that the Production Supervisors are responsible for the allocation of work in the room and that witness C does not get involved in these decisions.  The tribunal accepts witness C’s evidence in this respect as this was one of the findings in the grievance outcome letter that the claimant did not appeal. 

 

52.         The claimant’s case is that she took her request for lighter duties to the Production Supervisor.  The unchallenged evidence of the claimant is that the Production Supervisor did not see any reason why this could not be facilitated and the claimant accepts that she made a self-referral to Occupational Health in respect of this.  The tribunal notes that the claimant accepted, under cross examination, that witness B was not involved in her referral to Occupational Health nor did he receive a copy of the report from Occupational Health which concluded that an adjustment in duties may be beneficial for the claimant.

 

53.         The key issue which this tribunal must resolve therefore, in respect of this aspect of the claimant’s case, is whether or not witness C ever knew about the claimant’s request for lighter duties and, if so, did he decline it.  On this disputed point, taking into account the evidence before the tribunal on this matter and giving appropriate weight to the evidence given by the witnesses, the tribunal finds that witness C had no knowledge of the claimant’s request for lighter duties from either the Production Supervisor or witness B.  The tribunal has made this finding for the following reasons:-

 

(i)         The claimant has presented no evidence to the tribunal that witness B ever had a conversation with witness C about the request for lighter duties.

 

(ii)          The tribunal accepts witness C’s evidence that he did not have a conversation with witness B about a request for lighter duties.

 

(iii)         As stated at paragraph 43 above, the tribunal does not attach any weight to witness B’s evidence as it largely consisted of the witness not being able to recall any details. Indeed, witness B stated in evidence that he did not recall a conversation with witness C about lighter duties nor did he recall telling the claimant that he would be allocating rooms and “would look out for her.”

 

(iv)         Witness B does not recall a conversation with the claimant about a request for lighter duties.

 

(v)          The tribunal accepts that witness B never received a copy of the report from Occupational Health, about the claimant’s request for lighter duties, and so the tribunal is unable to conclude that witness B asked witness C about a request for lighter duties if he had not seen the report.

 

54.         For all of these reasons, the tribunal therefore concludes that witness C was never made aware of the claimant’s request for lighter duties either from witness B or from the Production Supervisor. 

 

55.         However, that is not the end of the matter because, following the claimant’s self-referral to Occupational Health, the report contained a recommendation that “… if possible a temporary adjustment to the claimant’s current role or moving to a less demanding role temporarily would be beneficial “…”.

 

56.         The tribunal accepts that this report was sent to witness C, but not to HR, and witness C accepts that he received a copy of the report and that he took no action on foot of the report.  It was common case between the parties that HR did not see a copy of the report because the referral to OH was a self-referral.  If the referral to OH had been through HR, the report should have gone back to HR. In this instance, it did not go back to HR because it was a self-referral.  In her evidence to the tribunal, which the tribunal accepts, witness D confirmed that this was the reason why there was no follow-up with the claimant, as a result of the report, because the report never went to HR. 

 

57.         Given that witness C saw the report, it begs the question as to why he chose not to do anything about it. 

 

58.         The tribunal accepts the evidence from witness C that he overlooked the report and the tribunal concludes that the witness C was very candid in his admission of having overlooked the report.  The tribunal must then ascertain whether or not the overlooking of the report was motivated by reasons on account of the claimant’s sex. 

 

Is the claimant’s comparator, for the purposes of the alleged refusal to grant her lesser duties, an appropriate comparator?

 

59.         In a sex discrimination claim, the burden of proof rests upon the claimant. As per Nelson v Newry and Mourne District Council, in summarising the principles in the Madarassey case, the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (in this case sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, a sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination.  “As is made clear in Nelson, the tribunal must consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.”

 

60.         The claimant seeks to rely upon two comparators for these aspects of her claim - namely Mr Y and Mr Z.

 

61.         The claimant seeks to compare the treatment she, as a Senior Operator with personal issues seeking lighter duties, received compared to a male operator, also a Senior Operator, who was granted lighter duties for personal circumstances.

 

62.         In terms of Mr Y, the claimant did not dispute that he had changed his role from Senior Operator to Operator with a corresponding drop in pay.  However, the claimant’s dispute was that Mr Y had initially been granted lighter duties, by witness C, whereas witness C did not consider her request for lighter duties and that she also had to go through Occupational Health which Mr Y did not have to do. 

 

 

63.         The tribunal accepts that the claimant self-referred to Occupational Health and therefore had to go through this additional hurdle in order to seek lighter duties, at the claimant’s own behest, as it as she herself who self-referred. 

 

64.         The tribunal accepts that Mr Y was given lighter duties for a period of two to three weeks before he formally was reduced to Operator level and received the corresponding rate in pay. 

 

65.         The respondent’s defence was that the claimant was given lighter duties and this was confirmed to the claimant in the outcome of her grievance “… said he had reassured you that he would be mindful of your concerns and would adjust your duties accordingly.  This concurs with the conversations we had at the grievance meeting where you explained that … had been supportive and had adjusted your duties.”

 

66.         On this disputed point, the tribunal accepts the evidence of the respondent for the following reasons:-

 

(i)         the claimant did not dispute the statement, at paragraph 65 above, within her witness statement.

 

(ii)          the clamant also did not appeal this aspect of the grievance which would suggest to the tribunal that the claimant accepted this point.

 

67.         It was only under cross-examination, when brought to this statement by the respondent, that the claimant then tried to make the case that her duties had been adjusted on only one occasion.  However, given that this was not part of the claimant’s case pleaded and was not set out either within replies to the Notice for Additional Information or within the claimant’s witness statement, the tribunal declines to make a finding on this point and for the reasons stated above prefers the evidence of the respondent.

 

68.         On that basis, given that the tribunal concludes that both Mr Y and the claimant were provided with lighter duties at the Senior Operator rate of pay, the tribunal concludes that Mr Y is not an appropriate comparator for the purposes of the claimant’s direct sex discrimination claim.

 

69.         The next comparator identified by the claimant, for this aspect of her claim, was Mr Z. Mr Z’s circumstances were that he was an individual with a disability suffering from eyesight problems arising from diabetes.  The tribunal accepts the submission of the respondent that it is obliged, by law, to take steps to ensure adjustments were made for Mr Z in the workplace as he was struggling to do tasks that were not part of his job.  On that basis, the tribunal finds that Mr Z is also not an appropriate comparator for the purposes of the direct sex discrimination claim. 

 

70.         Accordingly, given that the claimant has not identified an appropriate comparator for this aspect of her sex discrimination claim, she has therefore failed to discharge the burden of proof resting upon her with regard to this aspect of her case.

 

Was the claimant subjected to less favourable treatment, on the grounds of sex in the course of a disciplinary/absence management process, between March and May 2019?

 

71.      This third aspect of the claimant’s case is that she was subjected to less favourable treatment in the course of a disciplinary/absence management process between March and May 2019.

 

72.      There is no dispute between the parties that the respondent was entitled to hold a return to work interview with the claimant on 17 September 2018.  The claimant had been off work, on sick leave, from 15 August to 14 September 2018.  The fit notes for the entire period state stress/anxiety.  However, it is common case between the parties that the claimant underwent a round of IVF during this period of sick leave.

 

73.      As a result of this period of sick leave, the claimant hit an absence level under the respondent’s absence management policy (eight whole or part days’ sickness absence in a rolling 12 month period).  The claimant accepted that, even with the period pre-embryo transfer removed, her sickness absence from 15 August to 2 September 2018, coupled with her two days of absence earlier that year, meant that she had still hit the absence trigger.  Under the respondent’s absence management process, a line manager has three options following this meeting:-

 

            “(i)        progress to disciplinary;

 

            (ii)        keep the absence as live on record; or

 

            (iii)       exclude from any future consideration.”

 

74.      It is common case that the outcome of this meeting was to keep the claimant’s absences live on her sickness record.

 

75.      However, the claimant’s case is that the absence 15 August to 14 September 2018 should have been excluded because it related to IVF.  Relying on the cases of Sahota v Home Office and Pipkin UKEAT/0342/09 and London Borough of Greenwich v Robinson (EAT/745/94), the tribunal accepts the respondent’s submission that there was no obligation, upon the respondent, to exclude these absences. The respondent was under no obligation to discount these absences as the EAT held, in both these cases, that infertility was a medical condition requiring medical treatment and that any absence due to such treatment fell to be treated as sickness absence in the usual way.  The tribunal therefore finds that the respondent was entitled to treat these absences as a sickness absence and that it was a reasonable position for the respondent to adopt.

 

76.      The claimant further complains that because her absence remained live on her record, this put in motion a process which included a disciplinary hearing, a further meeting with Occupational Health and a welfare meeting.

 

77.      It is common case that the claimant had a further four day period of absence in February 2019 for cold/flu. As a result of this period of absence, the claimant hit the “three occasions of absence” trigger under the company’s absence policy.  Again, the claimant accepted, under cross-examination, that even with the period pre-embryo transfer removed, her sickness absence from 15 August to 2 September 2018 was an occasion of absence and she had hit the three occasions trigger in February 2019.

 

78.      There is no dispute between the parties that the purpose of the hearing on Wednesday 6 March 2019 was to discuss the three separate occasions of absence that the claimant had within the previous 12 months.  At this meeting, the claimant advised the panel that she had been absent due to her reaction during her IVF treatment in August/September 2018 and so the panel decided to seek medical guidance from their OH team on how to proceed.

 

79.      Due to the specialist nature of the questions asked by the respondent, OH recommended that it was best the claimant was reviewed by their company doctor.  Following a review by the company doctor, the claimant was invited to a welfare meeting to discuss the company doctor’s report.  The welfare meeting took place on 9 May 2019.  Following this meeting, witness D emailed the claimant on 27 May 2019 asking for clarification about what stage of the IVF process the claimant was at during the absence in August/September 2018.

 

80.      Following confirmation from the claimant, on 27 May 2019, about the dates of embryo transfer, a letter was sent to the claimant on 28 May 2019.  It is common case that this letter confirmed that, in respect of the period of absence from 15 August to 14 September 2018, the full period would not be excluded.   The tribunal notes that the period 3 September to 14 September 2018 had always been excluded as those were the dates the claimant had explained covered the embryo transfer and implantation period.

 

81.      The claimant’s case, within her witness statement, is that the date from 15^th August 2018 to 2^nd September 2018 should never have been included and she alleged “that all of the meetings I had to attend and the level of upset it caused me, resulted in the outcome which ought to have been reached automatically.”  The claimant’s case is that this was a further act of sex discrimination.

 

82.      The claimant has not however adduced any comparators, in relation to this treatment and, as has been made clear above, in a sex discrimination claim, the burden of proof rests upon the claimant to demonstrate that the respondent’s actions were motivated by sex.  In respect of this particular aspect of the disciplinary process, the claimant has not adduced any comparator, hypothetical or otherwise, for the tribunal to compare the difference in treatment.  In the absence of the claimant providing the tribunal with the comparator, the tribunal finds that the claimant has not adduced evidence to shift the burden of proof required to successfully bring a sex discrimination claim with regard to this aspect of her case.

 

Referral to Occupational Health - July 2019

 

83.         The claimant was absent from work from 18 June 2019 to 23 July 2019.  It is common case that her fit notes for the period state “post-op recovery”.  It is also common case that the respondent’s process was that a monthly absence review meeting was held with Occupational Health, Human Resources and Department Managers to discuss employees currently absent.  As part of this meeting, decisions were taken on whether an employee should be referred to Occupational Health. 

 

84.      A monthly absence review meeting was held on 8 July 2019, chaired by witness D, and witness C was one of the Department Managers in attendance.  Witness C confirmed, at the meeting, that the claimant was absent, from 18 July 2019 to 23 July 2019, due to a gynaecological procedure.  The unchallenged evidence from the respondent was that, on the advice from an external Occupational Health representative in attendance, he should review her again.  The respondent’s case, which the tribunal accepts, in respect of this referral, was that it was not because she was female but rather because it was recommended by medical professionals that she be referred.

 

Is the claimant’s comparator an appropriate comparator in respect of this referral? 

 

85.      The claimant seeks to compare the treatment she was subjected to, on this occasion, i.e. a referral to Occupational Health, with Mr A.  It was not disputed that Mr A was absent on two occasions in 2018 and 2019. On both occasions, he was not referred to Occupational Health. The tribunal finds that, in this instance, the claimant’s comparator is not an appropriate comparator for the purposes of her sex discrimination claim as the claimant’s circumstances could be differentiated for the following reasons:-

 

(i)        In July 2019, the claimant was absent due to an operation.  By contrast, Mr A’s absence, in 2019, was not due to an operation.  His absence was mental health related and he was absent for a period of seven weeks from July to September 2019. He was reviewed by Occupational Health twice during this absence.

 

(ii)       Mr A was absent, in 2018, for four weeks following an operation to have stents inserted.  The respondent’s unchallenged evidence was that, in this instance, Mr A was not referred to Occupational Health as Occupational Health said that they did not need to review him.

 

(iii)      The claimant accepted, under cross-examination, that there was no obligation on an employer to refer everyone who is absent for four weeks to Occupational Health.

 

(iv)     The claimant was referred to Occupational Health by an external Occupational Health representative in attendance at the meeting and she was not referred by witness C.  The claimant was not at this meeting and she accepted that she could not say what was discussed at the meeting.  Furthermore, neither of the respondent’s witnesses was challenged on this when cross-examined.

 

(v)      The decision to refer to Occupational Health is reviewed on the merits of each case. In this case, given that the Occupational health doctor had had a previous meeting with the claimant, an independent Occupational Health person, in attendance at the meeting, deemed it would be appropriate for the claimant to be reviewed again.

 

86.      Accordingly, following the application of Nelson, the tribunal concludes that there were sufficient differences between the two cases that could legitimately lead to a difference in treatment and therefore it is not possible to conclude, in the absence of other evidence pointing to gender biased decision-making, that a presumption of sex discrimination should be drawn.  Accordingly, the tribunal concludes that the claimant has not adduced evidence to shift the burden of proof required for a sex discrimination claim with regard to this aspect of her case.

 

Was the claimant treated less favourably, on account of pregnancy, in the respondent’s alleged refusal to grant her unpaid leave, to refuse her lesser duties, to not to exclude her absence from 15 August to 2 September 2018 and in the course of a disciplinary/absence management process between March and May 2018?

 

87.         In his closing submissions, the claimant’s representative appears to have conceded that the alleged refusal to grant the claimant unpaid leave, to refuse the claimant’s request for lesser duties in May 2018, to not exclude her absence from 15 August to 2 September 2018 and to refer her to Occupational Health in July 2019, did not amount to less favourable treatment on account of pregnancy. In any event, the tribunal finds that the claimant was not pregnant in May 2018, from 15 August to 2 September 2018, at any time between March and May 2019 or in July 2019. In line with the decision in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG C-506/06 [2008] IRLR 387, as set out at paragraph 24 above, the claimant can only have been pregnant from 3 September to 17 September 2018 which was the date of the embryo transfer and the two weeks thereafter. The tribunal therefore concludes that the claimant was not less favourably treated, on account of pregnancy, either in May 2018, from 15 August to 2 September 2018, between March and May 2019 or in July 2019.

 

Conclusion

 

88.         For all of the reasons set out above, the claimant’s claim for sex discrimination is dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 13-17 December 2021, Belfast.

 

 

This judgment was entered in the register and issued to the parties on: