Nelson (Stephen William) and Newry and Mourne District Council
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 2009 |
| Neutral Citation | [2009] NICA 24 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2009 |
| Date | 03 April 2009 |
1
Neutral Citation No.: [2009] NICA 24 Ref:
GIR7456
Judgment: approved by the Court for handing down Delivered:
03/04/09
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON AN APPEAL FROM AN INDUSTRIAL TRIBUNAL
INDUSTRIAL TRIBUNALS (NORTHERN IRELAND) ORDER 1996
_______
BETWEEN:
STEPHEN WILLIAM NELSON
Claimant/Respondent
AND
NEWRY AND MOURNE DISTRICT COUNCIL
Respondent/Appellant
_______
Before Higgins LJ, Girvan LJ and Coghlin LJ
GIRVAN LJ
Introduction
[1] This appeal comes before the court by way of a case stated from an
Industrial Tribunal. It relates to a claim by the respondent Stephen William
Nelson (“Mr Nelson”) who claims to have suffered unlawful discrimination
on the grounds of his sex by the appellant Newry and Mourne District
Council (“the Council”). The Council disciplined Mr Nelson for asking for
and taking bedding plants from another Council employee Ms O’Donnell. Mr
2
Nelson alleges that he was subjected to unlawful discriminatory disciplinary
treatment as compared to the Council’s disciplinary treatment of Ms
O’Donnell. The Tribunal upheld his complaint and awarded him substantial
compensation including compensation for injury to feelings. In reaching its
decision the Tribunal concluded that Ms O’Donnell was an appropriate
statutory comparator. It concluded that the differential disciplinary treatment
of Mr Nelson and Ms O’Donnell called into the play the provisions of Article
63A of the 1976 Order which deals with the onus of proof and it decided that
the Council had not established that the difference in treatment was not
related to the gender difference between the two employees with the result
that Mr Nelson succeeded on his claim.
[2] The Tribunal in the case stated poses five questions –
(i) Did the Tribunal err in law in determining that Ms O’Donnell was an
appropriate comparator with the respondent under Article 7 of the
1976 Order as amended in light of the evidence?
(ii) Did the Tribunal err in law in its application of Article 63A of the 1976
Order?
(iii) Was the Tribunal correct in law in deciding that the respondent was
discriminated against on the grounds of his sex?
(iv) Was the Tribunal’s decision perverse or one which no reasonable
Tribunal directing itself properly could have reached or alternatively
was it wrong in law?
(v) Did the Tribunal err in law in confirming its original decision in
circumstances where it acknowledged in the review dated 20 May 2008
that detailed reasons were in fact given by the respondent for its
contentions that Ms O’Donnell was not an appropriate statutory
comparator contrary to what the Tribunal had originally stated in its
original decision dated 13 November 2007 at section 8 sub paragraph 2.
The factual background
[3] The claim arises out of an incident on 21 June 2005 which was notified
to the Council in a letter from a person describing himself as “an angry
ratepayer”. The writer alleges that on 21 June a female Council employee
driving a Council vehicle with a trailer transferred some bedding plants from
the trailer into another Council vehicle driven by a male employee which had
pulled up alongside her vehicle. The registration number of both vehicles
was supplied by the ratepayer.
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