McCrossan vs Department for Social
| Jurisdiction | Northern Ireland |
| Judgment Date | 03 November 2016 |
| Respondent | Department for Social |
| Docket Number | 00062/15FET |
| Court | Fair Employment Tribunal (NI) |
FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 62/15FET
2328/15
CLAIMANT: Sarah McCrossan
RESPONDENT: Department for Social Development
DECISION
The decision of the Tribunal is as follows:
(1) The claimant suffered unlawful discrimination on grounds of political opinion and is entitled to compensation for injury to feelings;
(2) The claim of detriment on grounds of Trade Union activities is dismissed.
Constitution of Tribunal:
Employment Judge Murray
Mrs F Cummins
Mr C McIlwaine
Appearances:
The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by McCartan Turkington and Breen Solicitors.
The respondent was represented by Mr J Kennedy, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.
THE CLAIM
1. The claimant's claim was that she suffered direct discrimination when she was unlawfully subjected to detriment on grounds of political opinion under the Fair Employment and Treatment (NI) Order (as amended) (referred to below as FETO). The claimant further claimed that she was unlawfully subjected to detriment on grounds of engagement in trade union activities under the Employment Rights (NI) Order 1996 (referred to below as ERO).
2. The respondent contended that the claimant was legitimately disciplined for breach of the relevant Northern Ireland Civil Service (NICS) policy and that the disciplinary action and penalty decisions, were not taken on grounds of political opinion nor on grounds of trade union activities.
THE ISSUES
3. The issues in this case were therefore as follows:
(1) Whether the claimant was subjected to detriment on grounds of political opinion;
(2) Whether any such detriment amounted to less favourable treatment when compared to a hypothetical comparator;
(3) Whether the Facebook postings were private and therefore outside the scope of the relevant NICS policy;
(4) Whether the claimant was engaged in trade union activities at the relevant time;
(5) Whether any detriment suffered by her was on grounds of her having been engaged in trade union activity;
(6) If the claimant is successful in either or both of the claims the level of damages to be awarded.
SOURCES OF EVIDENCE
4. The claimant and Mr K Joiner, trade union official, gave written and oral evidence for the claimant’s side.
5 For the respondent, we had written and oral evidence from:
- Tracey McCloskey, the Grade 7 in the claimant’s division of the Department;
- Maura Pettigrew, a Staff Officer in the Department’s Conduct and Discipline Division of the Human Resources (HR) Department who dealt with the appeal;
- Mark McCord, an EOI in the HR Conduct and Discipline division who dealt with the disciplinary decision;
- Gloria Brush, a Staff Officer in the claimant’s Department who dealt with the fact-finding interview;
- Terry McKeown, the Grade 7 in the Conduct and Discipline Division of the HR division of the Department.
6. The Tribunal had regard to the documentation to which it was referred from the bundle of documents which ran to approximately 360 pages. In that bundle of documents 150 related to copies of policies and of those policy documents we were referred to two paragraphs amounting to half a page. It is most unfortunate that the bundle of documents was almost double the size that it actually needed to be.
THE LAW
7. The parties referred us to the following list of authorities which are listed below as they appeared in their bundles of authorities. Not all of the cases were referred to in detail by either side.
The Claimant’s authorities
(1) McKay v Northern Ireland Public Service Alliance [1994] NI 103
(2) Gill v Northern Ireland Council for Ethnic Minorities [2001] NIJB 299
(3) Ryder v Northern Ireland Policing Board [2008] NIJB 252
(4) Owen & Briggs v James [1982] ICR 618
(5) In Re Northern Ireland Electricity Service’s Application [1987] NI 271
(6) Nagarajan v London Regional Transport [2000] 1 AC 501
(7) R (E) v Governing Body of JFS [2010] 2 AC 728
(8) Chant v Aquaboats Limited [1978] 3 ALL ER 102 (EAT)
(9) Dixon and Shaw v West Ella Developments Ltd [1978] IRLR 151
(10) The Marley Tile Co. Ltd v Shaw [1980] IRLR 25
(11) British Airways Engine Overhaul Ltd v Francis [1981] IRLR 9
(12) F M Lyon v St. James Press [1976] IRLR 215
(13) Bass Taverns Ltd v Burgess [1995] IRLR 596
The respondent’s authorities
Political Opinion
(1) McConkey & Ors -v- The Simon Community [2009] UKHL 24
(2) Ryder v NIPB [2007] NICA 43
Direct Discrimination
(3) Power v Greater Manchester Police Authority UKEAT/0087/10/JOJ
(4) McFarlane v Relate Avon Ltd [2010] IRLR 196 EAT
(5) Drew v Walsall Healthcare NHS Trust [2013] EqLR 1051 EAT
Test/Burden
(6) Curley v Chief Constable for Police Service of Northern Ireland [2009]
NICA 8.
(7) Nelson v Newry and Mourne District Council [2009] NICA 24
(8) McDonagh v Royal Hotel Dungannon [2007] NICA 3
(9) Madarassy v Nomura International Plc [2007] IRLR 246
(10) Network Rail Infrastructure Limited v Griffiths-Henry [2006] IRLR 865
(11) Igen v Wong [2005] 3 ALL ER 812
(12) Qureshi-v-Victoria University of Manchester EAT [2001] ICR 863
(13) O’Neill v Gov of St Thomas More RC School [1996] IRLR 372 EAT
Comparator/Less Favourable Treatment
(14) CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439
(15) R v JFS [2009] UKSC 15
(16) London Borough of Islington v Ladele [2009] IRLR 154 EAT
(17) Shamoon v RUC HL [2003] UKHL 11
(18) Nagarajan v LRT H/L [1999] IRLR 572
Trade Union Activities
(19) Bass Taverns Ltd v Burgess [1995] IRLR 596
(20) The Marley Tile Co Ltd v Shaw [1980] 85
(21) Drew v St Edmondsbury BC [1980] 85
(22) Chant v Aquaboats Limited [1978] 3 ALL ER 102
(23) Lyon & Sherk v St James Press Limited [1976] IRLR 215
Social Media
(24) Game Retail Ltd v Laws UKEAT/0188/14
(25) Martin & Ors -v- Giambrone, P/A Giambrone & Law, Solicitors and European Lawyers [2013] NIQB 48
(26) Smith v Trafford Housing Trust [2012] EWHC 3221
(27) Crisp v Apple Retail (UK) Ltd (ET/1500258/11)
Summary of the relevant law
8. We summarise below the relevant principles and highlight extracts from the case law which are relevant in light of our factual findings.
9. The Fair Employment and Treatment (NI) Order 1998 (FETO) provides at
Article 3(2)(a) that it is unlawful to discriminate against an employee on grounds of political opinion stating as follows:
“(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applied if ‒
(a) on either of those grounds he treats the other less favourably than he treats or would treat other persons”.
Political opinion
10. In the Matter of an Application by the Northern Ireland Electricity Service [1987] NI 271, Nicholson J said at 285H:-
“ ... the words “on the ground of religious belief or political opinion” are capable in their own ordinary meaning of covering any cause or reason for an action based on religious belief or political opinion, whether it is the belief or opinion of the person affected by the action or of the person doing the act or of another person.” (emphasis added).
11. The...
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