THE INDUSTRIAL TRIBUNALS

CASE REF:	244/09

CLAIMANT:			‘B’

RESPONDENTS:		1.	Northern Ireland Prison Service
				2.	‘D’

DECISION
The unanimous decision of the tribunal is that:-

(1)	The tribunal orders, by consent, that the names of the claimant and the second-named respondent, together with the names of all other persons referred to in this decision, be anonymised and their names be omitted from the Register, pursuant to a Register Deletion Order/Permanent Anonymity Order.

(2)	The claimant was not unfairly discriminated against by the respondents on the grounds of sex, pursuant to the Sex Discrimination (Northern Ireland) Order 1976.  The claimant’s claim is therefore dismissed.

Constitution of Tribunal:
Chairman:		Mr N Drennan QC
Members:		Mr J Boyd
			Mrs M Gregg

Appearances:
The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by Crown Solicitor’s Office.

Reasons

1.1	The claimant presented a claim to the tribunal on 14 January 2009, in which she made a claim of discrimination on the grounds of sex, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, as amended (‘the 1976 Order’), arising out of a transfer, in or about December 2008, to which she objected, from one group/unit to another at the prison where she worked.  The respondents presented a response to the tribunal on 9 April 2009, in which the respondents denied liability for the claimant’s claim. 

1.2	During the course of the proceedings, it was agreed, and the tribunal so ordered, that the names of the claimant and the second-named respondent, but also the names of those persons giving oral evidence to the tribunal, would be anonymised, in order to protect them from the risk to their physical safety, in light of the nature of their employment and the circumstances of the case; and further that the names of all other persons referred to in this decision would be similarly anonymised, in order to protect the anonymity of those referred to above, but also in order to protect their right to privacy.  The names, therefore, of the claimant and the second-named respondent, together with all other persons referred to in this decision, are ordered to be omitted from the Register.  In making this Register Deletion Order/Permanent Anonymity Order the tribunal did so, pursuant to its powers contained in Rule 59 of the Industrial Tribunals Rules of Procedure (‘the Rules of Procedure’) contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Regulations’), as interpreted in the decision of the Court of Appeal in Northern Ireland in the case of JR5  v  Department of Agriculture and Rural Development [2007] NICA 19, and after having regard to the duty of the tribunal, pursuant to Section 6 of the Human Rights Act 1998, to interpret such powers, so far as possible, to give effect to Article 6 and 8 of the European Convention on Human Rights (see further BC  v  A [UKEAT/0503/08] and A  v  B [UKEAT/0206/09] and X  v  Commissioner of Metropolitan Police [2003] ICR 1031.).  The tribunal noted the preference, expressed by Underhill P in A  v  B,  for the use of the terminology ‘a Permanent Anonymity Order’ rather than ‘a Register Deletion Order’.

1.3	This case was case-managed by the tribunal on 11 September 2009, as set out in the Record of Proceedings, dated 11 September 2009.  It was apparent from the issues identified, at that hearing, by the representatives that the main focus of the claimant’s claim related to the reason for the said transfer of the claimant from one group/unit to another, and whether that reason was discriminatory on the grounds of her sex.  At the commencement of the hearing of this matter, the members of the tribunal were each provided with a considerable number of documents, which were contained in six lever arch files, together with a small number of additional ‘loose’ documents.  The tribunal, during the course of the hearing, was referred to a very small proportion of those documents; and, what was referred to, was spread throughout the said files.  

The tribunal has no doubt that, by the proper application by the representatives of the terms of the overriding objective, all relevant documents, namely the ‘core’ documents, could have been contained within no more than two lever arch files and probably less.  If this had been done, the tribunal has no doubt that considerable expense, but also time, could have been saved during the course of this hearing.

The tribunal is satisfied that this would have been the position, even if the agreement between the parties, referred to below at Paragraph 1.7 of this decision, had been made earlier.  As Girvan LJ said, in his judgment in the case of Peifer  v  Castlederg High School and Western Education & Library Board [2008] NICA 49, and now approved by the Lord Chief Justice in his judgment in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47, in relation to the terms of the overriding objective contained in Regulation 3 of the Regulations:-

“ … these overriding objectives should inform the court and the tribunals in the proper conduct of proceedings.  Dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues, ensuring that the case is dealt with expeditiously and fairly and the saving of expense.  Parties and practitioners are bound [tribunal’s emphasis] to conduct themselves in a way which furthers those overriding objectives.  Having regard to the imperative nature of the overriding objectives, tribunal should strive to avoid time-wasting and repetition … .”

The tribunal is satisfied that, in preparation for the hearing of this matter, there required to be a detailed discovery exercise carried out between the parties and their representatives.  However, the tribunal has noted that there is an increasing practice in these tribunals, following such an exercise, that all the documents, obtained by way of discovery, are also included, without further consideration by the representatives, within the ‘trial’ bundles provided to the tribunal for the purposes of the substantive hearing.  Frequently, in the judgment of the tribunal, this is not necessary.  By proper ‘editing’ of the discovered documents by the parties and their representatives, together with a proper concentration on the relevant issues, it is the tribunal’s view that the trial bundles could, in many cases, be considerably reduced.

In the judgment of the tribunal this was just such a case.  No doubt, on occasion, where such editing has taken place, a document which has been omitted from the tribunal bundle may require to be included in the bundle at a later stage during the course of a hearing.  If the document has already been properly discovered, and inspected, by the parties/representatives, this should be able to be done without causing any undue difficulty or delay to the conduct of the hearing.  

In a recent decision of the Court of Appeal in England and Wales, in the case of Golf International Ltd  v  Groupe Chimique Tunisien [Times Law Reports 3 March 2010], which was a non-employment case, Lord Justice Toulson stated:-

“ … the case was a grotesque example of a tendency to burden the court with documents of grossly disproportionate quality and length.  It was a practice which had to stop … .”

This dicta, in the judgment of the tribunal, has particular relevance to the provision of the trial bundles to the tribunal in this matter, in the circumstances set out above.

1.4	The claimant (‘B’) was employed as a Prison Officer by the first-named respondent at a prison in Northern Ireland.  It was not disputed that, at the material time, the claimant was employed in the group (referred to as the ‘X’ group) at the prison and it was decided by the first-named respondent to transfer her, despite her objection to the group (referred to as the ‘Z’ group), another group within the prison.  It was this decision, taken by the second-named respondent (‘D’), which was the main focus of her complaint of sex discrimination.  It was not disputed by the parties that the first-named respondent was vicariously liable for any actions of ‘D’ (see further Articles 42 – 43 of the 1976 Order), relating to the decision to transfer the claimant from ‘X’ group to ‘Z’ group.

1.5	As set out in the Record of Proceedings, dated 11 September 2009, of the Case Management Discussion on 11 September 2009, the parties identified, in particular, the following legal and main factual issues (as amended in accordance with the Register Deletion Order and/or Permanent Anonymity Order) in relation to the claimant’s claim of sex discrimination, namely:-

		“Legal issues

(1)	The claimant was subjected to unlawful discrimination, contrary to Article 8(2)(a) and (b) of the Sex Discrimination (Northern Ireland) Order 1976 by virtue of her being subjected to less favourable treatment on grounds of sex contrary to Article 3(1)(a) and/or Article 3(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976.

(2)	Was there a non-completion of the statutory grievance procedure?  If so, was this wholly or mainly attributable to a failure by the employer to comply with the requirement of the procedure?  If so, to what extent should any award be increased, as per Article 17(3) of the Employment (Northern Ireland) Order 2003?

Factual issues

(1)	On 31 October 2008 did ‘D’ tell the claimant he was going to move her from ‘X’ group to ‘Z’ group for the following reasons:-

(a)	she had been ‘involved in incidents’; and

(b)	there were ‘too many girls’ in the group.

(2)	On 14 November 2008 during a conversation with the claimant did ‘D’ repeat the comments at (1)(a) and (b) above as the reasons for the claimant moving group?  What else occurred during the conversation?

(3)	What were the reasons for the claimant being moved to a different group?

(4)	What was ‘D’s’ knowledge of the claimant’s work and how frequently would ‘D’ observe the claimant in the course of her duties?

(5)	What occurred during conversations between the claimant and ‘D’ on 30 September 2008 and 31 October 2008?

(6)	What is the nature of the group the claimant was moved to, namely ‘Z’ group?  How does this group compare to the ‘X’ group?

(7)	What occurred between ‘D’ and another Prison Officer, ‘L’?  Did ‘D’ make comments to ‘L’ similar to the comments alleged by the claimant at (1)(b) above?

(8)	What occurred at the staff meeting on 13 August 2008?

(9)	Did the respondents act contrary to the Northern Ireland Prison Service Equal Opportunities Policy?

(10)	What was the effect of the alleged treatment on the claimant and her health?

The claimant’s representatives undertook to specify a comparator or comparators on or before 18 September 2009. (See further Paragraph 1.7 of this decision.)

1.6	It was not disputed by the parties and their representatives that, if the claimant was transferred for a discriminatory reason, namely on the grounds of her sex, this would amount to less favourable treatment amounting to a detriment (see further Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285).

1.7	Following the opening of the claimant’s claim by her counsel, and submissions by the representatives of both parties to the tribunal, and after having had regard, at the invitation of the tribunal, to the dicta in relation to case-management in the Peifer and Rogan cases, referred to above, the tribunal was informed by the representatives that the following issue had been agreed between the parties, namely:-

“Based on the incidents the claimant was involved in, an objective observer could reasonably have decided to move her on her return to work to the ‘X’ group.”

Following the said agreement, Mr Phillips, on behalf of the claimant, informed the tribunal, in relation to the issue of comparators, that the claimant did not rely on an actual comparator but relied on a hypothetical comparator in relation to her claim of sex discrimination, whom he defined as:-

“Was the claimant less favourably treated than a male prison officer whom an objective observer could reasonably have decided to move on her return to work based on incidents she had been involved in.”

Mr Colmer, on behalf of the respondents, contended, in light of the identification by the claimant of the said hypothetical comparator, following the above agreement, that he would be making reference, in the course of the hearing, to an actual male comparator, ‘M’, who had also been transferred, as a result of incidents in which he had been involved.  Mr Colmer submitted that this undermined the evidential validity of the hypothetical comparator, which was now relied upon by the claimant.  There was no objection by Mr Philips, to the entitlement of Mr Colmer to raise, as appropriate, such an issue in the circumstances.

1.8	There was in the identified legal and main factual issues, as set out previously, an issue to be determined by the tribunal in relation to the impact, if any, of the statutory grievance procedure and, in particular, on the amount of any award of compensation made by the tribunal, having regard to Article 17(3) of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’).  It was not disputed by the representatives of the parties that the statutory grievance procedure under the 2003 Order applied to the claimant’s complaint of sex discrimination and that she had properly commenced the said procedure.  The issue, in dispute between the parties, related to whether the statutory grievance procedure had been completed before the tribunal proceedings were begun by the claimant and, if not, whether the non-completion of the statutory grievance procedure was wholly or mainly attributable to a failure by the first-named respondent to comply with the requirement of the procedure, namely the general requirement set out in Paragraph 12 of Schedule 1 of the 2003 Order.  This provides that:-

“Each step and action under the procedure must be taken without unreasonable delay.”

In view of the tribunal’s decision that the claimant had not been unlawfully discriminated against on the grounds of her sex, pursuant to the 1976 Order and that therefore no award of compensation was required to be made, the tribunal did not require, in the circumstances, to further consider and determine this issue.  

1.9	It was not disputed between the parties that the claimant had served on the respondents a statutory questionnaire, pursuant to Article 74 of the 1976 Order, on or about 16 January 2009.  The terms of the questionnaire, setting out the claimant’s claim, was in similar terms to what she had stated in her claim form, presented to the tribunal on 14 January 2009.  In the course of the hearing, it was accepted by Mr Phillips, on behalf of the claimant, without the necessity, for oral evidence to be given by the respondents, that the legal representatives of the respondents had prepared a draft reply to the said statutory questionnaire; but due to an ‘administrative’ oversight and/or a ‘breakdown in communication’ between the respondents and their legal representatives as to who would be responsible for serving the respondents’ reply to the statutory questionnaire, it was not in fact sent to the claimant.  Under Article 74 of the 1976 Order, a tribunal may draw any such inferences as it considers it just and equitable to draw, if it appears to the tribunal the respondents deliberately, and without reasonable excuse, omitted to reply within a reasonable period, or the reply is evasive or equivocal, including an inference that the person has committed an unlawful act.

In the circumstances, the tribunal, although it was of the opinion the administrative oversight and/or breakdown in communication clearly should not have occurred, and it did not provide a reasonable excuse for the failure to reply, concluded the failure to reply was not deliberate on the limited evidence before it.  It further had no reason to believe, on the limited evidence before it, in circumstances where the claimant’s claim had already been presented to the tribunal, that the reply to the statutory questionnaire would have been different, in any significant way, to the terms of the response form presented by the respondents to the tribunal, as set out above.  In addition, the tribunal took into account the guidance, set out in the case of D’Silva  v  NATFHE [2008] IRLR 412, that where there is a failure to reply to a statutory questionnaire – there is not an automatic assumption of discrimination and that the drawing of inferences is not a ‘tick box exercise’.  The tribunal was, therefore, not convinced, in light of the circumstances set out above, the failure to reply to the statutory questionnaire, was capable of constituting evidence supporting the inference of unlawful discrimination on the part of the respondents.  In doing so, the tribunal also took into account that the failure to make the reply to the statutory questionnaire by the respondents was not that of the decision-maker ‘D’; but of others in the administration of the first-named respondent and/or in the office of the respondents’ legal representatives.  In such circumstances, such a failure by persons other than the decision-maker, had no bearing, in the judgment of the tribunal, on the reason why ‘D’ acted as he did.  Therefore, the tribunal did not draw any inference, in the circumstances, from the failure of the respondents to reply to the statutory questionnaire.

2.1	The tribunal, insofar as relevant and material to the claimant’s claim, made findings of fact, as set out in the following sub-paragraphs.

2.2	‘B’ was employed as a Prison Officer by the first-named respondent at a male only prison, operated by the first-named respondent.  She has been a Prison Officer for approximately 20 years.  There was no criticism of the manner in which she carried out her work as a Prison Officer.  In or about 2008, she was employed in ‘X’ group and she regularly was detailed to work in ‘V’ Unit of that group, which was required to deal with the more violent male prisoners, including those who had broken prison rules and/or had been the subject of adjudication by a Governor of the prison and given a punishment such as cellular confinement.  There were a number of other groups in the prison, including ‘Z’ group.  Prison Officers based in one group were normally transferred, after a period of duty up to three years, from one group to another, as a part of a regular system of rotation of staff between the various groups.  ‘D’, as the Personnel Governor, who had responsibility for personnel matters relating to approximately 1,050 staff in the prison, had responsibility, inter alia, for arranging such rotational deployment between groups and/or other transfers required to be made between groups, together with other responsibilities relating to the absence and attendance of staff.  

2.3	In the course of her duties as a Prison Officer, the claimant was involved in a number of incidents at work.  From in or about January 2006 to in or about October 2008, she was involved in some nine incidents at work.  There were four separate incidents from January 2007.  As a consequence of these incidents, she had a total of 228 calendar days absence.  In particular, she was absent from work, following injury/assault at work from 9 January 2007 to 23 February 2007, 7 May 2007 to 6 August 2007 and 19 December 2007 to 5 February 2008.  Three of the nine incidents involved a particular prisoner, ‘Y’, who appeared to be specifically targeting the claimant and acting very aggressively towards her.  One of those incidents, on 19 September 2008, involved prisoner ‘Y’, where the claimant injured her leg, and which led to the claimant’s absence from work from 20 September 2008 to 30 October 2008.  The claimant had done nothing to deserve such attention from this particular prisoner – but it was accepted by the respondents, by his actions prisoner ‘Y’ was doing everything possible to put the claimant under stress and to make her life miserable, as a Prison Officer.  

2.4	The number of incidents, which the claimant had been involved in, resulted in Governor ‘A’ having concern for her safety and wellbeing.  ‘A’ was a Governor 5 and the Governor in charge of ‘X’ group at the relevant time.  These concerns were shared by Principal Officer ‘C’ from ‘X’ group, who had raised similar concerns with ‘A’.  ‘A’ was in no doubt that, in light of what had happened to the claimant, she would benefit from a transfer from ‘X’ group in the circumstances.  ‘A’ confirmed this view in at least one, and probably two, informal conversations he had with ‘D’ in or about the Summer of 2008.  The first of these conversations with ‘A’ occurred a short time after an incident involving the claimant on 29 July 2008, when the claimant had been assaulted by prisoner ‘Y’.  ‘D’, in the course of his own duties, also observed the claimant showing, following that incident and indeed on other occasions, what he believed to be some signs of distress/stress; though the claimant insisted, in her evidence, he was mistaken.

2.5	Following the incident on 19 September 2008, involving prisoner ‘Y’, when the claimant was injured, the claimant had to go on sick absence from 20 September 2008 until 30 October 2008.  As part of his duties relating to sick absence for staff, ‘D’ made contact with the claimant by telephone on 8 September 2008 to see how she was.  By this time ‘D’ had already had his conversation with ‘A’ about their joint concerns for the claimant’s wellbeing, and their shared belief that a transfer from the group would, in the circumstances, be of benefit to her.

The gist of that conversation, with the claimant, was recorded by ‘D’, in the tribunal’s view accurately, in a contact pad which he kept by the telephone in his office to enable him to record such conversations, ‘D’ recognised such conversations were important to be noted:-

“ … kicked by ‘Y’.  ‘B’ feels isolated as she is being picked on by ‘Y’.  She feels she is not being backed by management.  Discussed group move but ‘B’ did not want a move … .”

In the course of that conversation, the tribunal was satisfied the claimant acknowledged the work was stressful but equally she made it clear she did not want a transfer as had been suggested by ‘D’ to her.  The tribunal concluded the claimant felt a suggestion of such a move, in such circumstances after these incidents, was in some way a criticism of the way she was doing her work; whereas there was no such criticism and indeed all staff, who gave evidence to the tribunal were particularly supportive of the way she carried out her duties at all times and, in particular, in view of the actions of prisoner ‘Y’.

2.6	‘D’ did not have any further contact with the claimant prior to her return to duty on 31 October 2008.  On 14 October 2008, there was contact between the claimant and Senior Officer ‘E’, effectively her line manager in ‘X’ group, which was recorded in the sickness absence contact form.  There was no reference in that form to any issue of transfer, had been referred to by ‘D’ in his telephone conversation; but, in the course of the conversation, having refused support from OHS/Welfare she did request that, upon her return to duty, which she expected to be shortly, ‘occasional day to be detailed outside unit for a break’.

2.7	Between the incident on 29 July 2008 and the incident on 19 September 2008, there was one of the regular staff meetings of the members of ‘X’ group, which was attended by the claimant.  At that meeting an issue was raised about the number of females in ‘X’ group.

The minutes of that meeting record, inter alia:-

“ … there was also discussion about the number of female staff currently being assigned to the group.  Prison Officer ‘G’ [who was also the trade union representative] stated that given the nature of the work within the group it was impossible to facilitate all of the female staff.  Senior Officer ‘J’ acknowledged this issue but said that he felt there were options in reception for female staff to work at committals.  It was pointed out that the ability to do this and little else places pressure on other staff.  Senior Officer ‘J’ said that he had talked to Governor ‘K’ in the past and that Senior Officer ‘E’ had spoken to Governor ‘D’.  Principal Officer ‘C’ and Prison Officer ‘G’ said they would approach ‘D’ together and attempt to resolve the issue … .”

There appears to have been little or no discussion of the issue at the meeting as it was agreed it was a matter not for discussion at a staff meeting; but was a matter which was better left to be addressed at a meeting between ‘D’ and Prison Officer ‘G’ and Principal Officer ‘C’.

Senior Officer ‘E’ was not present at the meeting.  In evidence to the tribunal, ‘E’ had no recollection of any specific discussion with ‘D’, as suggested in the minutes of the meeting; albeit he had intended to have such a meeting.  In the circumstances, the tribunal concluded no such discussion between ‘E’ and ‘D’ had ever taken place, as suggested in the minutes – which appears to have been based on an incorrect assumption by Senior Officer ‘J’ that such a conversation had taken place.  However, there was no doubt ‘E’ and ‘J’ had discussed such issues between themselves, to which further reference will be made elsewhere in this decision.  However, neither had raised the issue directly with ‘D’.  Senior Officer ‘J’ had previously discussed it with Governor ‘J’, ‘D’s’ predecessor as Personnel Governor.

2.8	Shortly after the staff meeting, ‘D’ met Prisoner Officer ‘G’, who was accompanied by Principal Officer ‘C’.  ‘G’ raised the issue of the number of females in the group with ‘D’ and indicated that it was thought they were too many.  The tribunal is satisfied that, in response to ‘G’, ‘D’, in trenchant terms, gave ‘G’ no support for his suggestion and, in particular, he made it clear that he was not going to transfer females from the group, because it was felt by members of the group that there were too many females in that group.  He also made it clear he did not accept that there were too many females in the group; and he insisted that he had policies to follow, in relation to transfers between groups, and, as far as he was concerned, what was being suggested by ‘G’ was no basis for any such transfers. 

2.9	‘D’ denied, in evidence, that he was ever made aware, either formally or informally, of concerns amongst ‘X’ group about the number of females in the group – save at the meeting with ‘G’ and Principal Officer ‘C’, following the staff meeting on 13 August 2008, referred to above.  Indeed he also consistently maintained, in evidence to the tribunal, that he did not accept, at the relevant time, there were too many females in ‘X’ group, as had been suggested to him at that meeting.  

2.10	Following the claimant’s return to work on 31 October 2008, following her injury at work on 19 September 2008, there were two meetings between the claimant ‘D’ which were of particular significance and relevance to this claim.  There was a serious conflict of evidence between the claimant and ‘D’ about what occurred during the course of these conversations, when only they were present.  It is therefore necessary to set out in some detail, as set out below, the evidence given to the tribunal in relation to what occurred at these meetings – because of the importance of what was said at these meetings to the tribunal’s decision in relation to the claimant’s claim.  

2.11	On 31 October 2008, the claimant returned to work.  She was working, on her return that day, in Letter Censors, when she was asked to go to see ‘D’ in his office.  Unfortunately there were no minutes of that meeting taken.  If there had been, many of the difficulties, which have subsequently arisen, might have been avoided.  In particular, there would have been some contemporaneous written evidence, which would have assisted the tribunal in determining what took place and was said during the course of the meeting.  The tribunal found it surprising that, although ‘D’ took a note of his telephone contact, when the claimant was off sick, he took no note at this meeting – which was important, as it related to his decision to transfer the claimant from ‘X’ group to ‘Z’ group.  In future, the tribunal has no doubt that a Personnel Governor should always record, at least in note form, records of meetings relating to transfer and the reasons for same.  To transfer a person, in particular where there is an objection, needs to be carefully recorded.  To do so will ensure there will be an appropriate ‘paper trail’, in the event of a future dispute about what occurred at any such meeting.  

2.12	The claimant contended, in evidence to the tribunal, that ‘D’ had said to her he had decided to move her from ‘X’ group to ‘Z’ group; and when she had asked the reason why, he had said he was moving her because she had been involved in incidents but also because there were too many girls in the group.  She said she told him he was not allowed to say that sort of thing.  The claimant further stated ‘D’ had referred to the fact that she had been under stress in her work; and, although she said to him she was not happy with the reasons he had given to her, he had insisted he was going to transfer her.  He also informed her that he was going to give her a choice about where she would be transferred to and he had asked her to consider what group she would wish to go to.  She maintained in evidence that she was ‘gutted’ by what ‘D’ had said to her.  

The claimant maintained a diary, which regularly referred to not only personal matters but also to incidents/matters that had arisen at work and her feelings/ reactions to them.  However, in her entry for 31 October 2008, she merely stated:-

	“ … Gov ‘D’ saw me and told me he was moving me … - not what I want.”

In particular, there was no reference to the reasons which she stated ‘D’ had given to her and, in particular, the reason that there were too many girls in the group.  Further, the claimant, although she said, in evidence, she was ‘gutted’ by what he had said, she did not make any complaint at that time about this reason, which she said had been made by ‘D’; nor was there any relevant entry in her diary for that day, or over the following days, which referred to such feelings.  Given the nature of some of the references in her diary about her feelings and reactions to events in her life and work, the tribunal would have expected to have seen an entry making some reference to the reason given and, in particular, she was ‘gutted’ by what ‘D’ had said to her.  Of course, this was a personal diary, and one can well imagine that the claimant never imagined that it would be the subject of examination/                 cross-examination during the course of tribunal proceedings.  Indeed, it was only at a late stage during these proceedings that the diary entries, which were clearly relevant and properly discoverable, were produced by the claimant’s representatives to the respondents’ representatives by way of discovery.  

2.13	By way of contrast, ‘D’ contended, in evidence to the tribunal, at the meeting he had with the claimant on 31 October 2008, after welcoming her back, he explained he was concerned about her wellbeing/health and the stress she was under and he believed a group move was in her best interest.  He indicated to her that she would have time to consider where she might like to be transferred to.  He accepted that, in response to what he had said, as set out above, to the claimant, the claimant herself then asked, “was the reason for her move because she was female?”  He denied to her that this was the reason and said he told her the sole reason for the move was his concerns for her health.  He was adamant that it was the claimant herself who raised the female/gender issue.

2.14	There was a further relevant meeting between the claimant and ‘D’, relating to her proposed transfer.  Again no record was kept of the meeting, which took place on 14 November 2008.  Once more, there was a conflict of evidence in relation to what was said between ‘D’ and the claimant during the course of this meeting.  There was no doubt, as the claimant had previously expressed to ‘D’, that the claimant made it clear her objection to a transfer out of ‘X’ group.  Indeed, the tribunal concluded, despite her denials to the tribunal during the course of these proceedings, that she felt to have such a transfer imposed upon her, arising from the incidents in which she had been involved, was in some way an implied criticism of her.  

2.15	The claimant said, in evidence to the tribunal, at the meeting on 14 November 2008 she did not consider ‘D’ had given her a justified reason for the transfer and she asked him to clarify his reasons.  He had, she said, in essence, repeated what he had said previously, namely that she had been involved in incidents and there were too many girls in the group.  In evidence to the tribunal, the claimant said she could not believe her ears and told him he could not say that sort of thing.  She repeated her objection to any move and he repeated that she was going to be moved from ‘X’ group.  The claimant said she then told ‘D’, if she was to move, she would prefer to go to ‘Z’ group – which, indeed, subsequently occurred.  The claimant maintained that she was very angry by what ‘D’ had said.  Although she fully realised, at the time the words, which she said had been used by ‘D’, were extremely significant, her diary entry, for 14 November 2008, again made no reference to ‘D’ repeating that one of the reasons for her move related to the number of girls in the group.  The entry merely stated:-

“Gov ‘D’ … spoke to me today and couldn’t still give me a good reason for moving me out of the group – told him I wanted to go to ‘Z’ group if he still was moving me.  The whole thing stinks.”

2.16	By way of contrast, ‘D’ contended, in evidence to the tribunal, although he did not remember what was precisely said at this meeting, he accepted there had been a discussion about the proposed move; and the claimant had said that she would rather not move but, if there was no other choice, she would prefer to go to ‘Z’ group.  He believed that she acknowledged again, during the course of this meeting, that work in ‘Y’ unit in ‘X’ group was stressful.  He also accepted that, in the course of this conversation, the claimant had once more raised with him the issue of her gender; in relation to the move, by asking him “was this the reason for the move?”  He stated that he told her, in reply to her question, that gender issues were of no consequence and were totally irrelevant to him.

2.17	The claimant did not make, immediately following that meeting, any complaint about what allegedly had been said by ‘D’ during the course of that meeting.  She had a ‘return to work’ interview with Senior Officer ‘J’, one of her line managers, on 24 November 2008, following her period of absence in September/October 2008.  During the course of that meeting, which was recorded, in writing, on a Return to Work form, she certainly raised her unhappiness with the proposed transfer and that there had been a lack of clarity in relation to the reasons for this unwanted move.  However, significantly, in the tribunal’s opinion, although she contended that ‘D’ had given, during the course of both meetings, that one of his reasons for the transfer was there were too many girls in the group, which she believed was an unacceptable reason, she did not refer to this reason in any way to ‘J’.  The tribunal found this most surprising; not least since she was aware, from her attendance at the staff meeting on 13 August 2008, ‘J’ had been one of the persons who had spoken about this issue of the number of females in the group.

2.18	The claimant was formally told of her transfer to ‘Z’ group, following an e-mail which was issued to relevant managers on 24 November 2008, and the move subsequently took place from on about 8 December 2008.  Again, the tribunal could understand the claimant’s upset, given her objection to any move, that she received such notification of the move by way of e-mail.  

On 25 November 2008, the day after the formal notification of the transfer, the claimant, for the first time raised a complaint about the reasons for the said transfer given by ‘D’ to her at the meetings on 31 October 2008 and 14 November 2008.  The tribunal is satisfied that the timing of this complaint by the claimant did not arise by chance but related to the notification of the transfer from ‘X’ group to ‘Z’ group, which had been given the previous day.

In the staff communication sheet sent by the claimant on 25 November 2008 to ‘D’, she stated, inter alia, in relation to the meetings on 31 October 2008 and 14 November 2008 the following:-

“On Friday 31st October 2008 … this came as a shock to me, so I asked him for an explanation as to why he was moving me.  The reasons Governor ‘D’ gave me were

(1)	That I had been involved in incidents.

(2)	That there were many girls in the group.

I stated that I understood ‘being in incidents’ was part of the job in the ‘Y’ unit and that me ‘doing my job’ did not appear to be a valid reason for a group move.  We then discussed his second reason and I stated this was blatant sexual discrimination [tribunal’s emphasis] and that he could not use this to justify a move, as other female officers have recently been moved into the group.  

On Friday 14th November 2008, Governor ‘D’ … asked me had I considered a group move and I again asked him for the reasons why he was moving me from the group.  The Governor stated once again it was because I had been ‘involved in incidents’ and because there are too many girls in the group.  I again stated I was not happy with these reasons and told him it was blatant sexual discrimination [tribunal’s emphasis] and that getting involved in incidents was part of my job … .”

2.19	The tribunal noted that it was only in this written complaint, set out in the staff communication sheet, that the claimant first said that she told ‘D’ it was blatant sexual discrimination.  Although the claimant was fully aware that, in the course of her evidence to the tribunal, she was required to give evidence of exactly what was said during the course of these conversations, not least having regard to their significance, as recognised by her, she did not use, at any time, such terminology during the course of her direct examination, when describing what had actually been said during the course of the meetings.  The tribunal found this omission most surprising if it had been said by her.  It was only, during the course of                 cross-examination, when the terms of the written complaint were put to her, she then said, not only had she said to ‘D’ that he could not say what he had said, but she had expressly told ‘D’ it was blatant sexual discrimination.

2.20	‘D’ responded to the staff communication sheet from the claimant on 26 November 2008, stating, inter alia:-

“I have interviewed you twice during your group transfer.  Once on 31.10.08, when I explained to you that I was concerned about your health due to the fact that you had been involved in a number of incidents in ‘Y’ unit over the last two years culminating in the absence from 20.09.08 – 30.10.08.  

I explained that it was in your best interest to move groups so that you would get an opportunity to work in a less confrontational area.  You agreed that while you enjoyed the ‘Y’ unit it was causing you stress.  

The reasons for discussing a group move for you was due to my observations of you working in ‘Y’ unit and witnessing how much stress you were under and from my conversation with you while you were off duty sick on 30.09.08 when you explained you felt isolated, you were being picked on by prisoner ‘Y’ and that you were not being supported by management.  Also the fact that you have been involved in four separate incidents since January 2007.  Any consideration regarding the gender makeup of the group were inconsequential.”

2.21	The tribunal noted that, in his response, ‘D’, although he acknowledged there had been some discussion about the gender make-up of the group, which he considered inconsequential, he did not give an express denial of the allegation that he had given, as a reason for the move, that there were too many girls in the group and further that the claimant had accused him of blatant sex discrimination.  The tribunal found this most surprising.  It was less than impressed with his explanation that the claimant, at that stage, had not formally raised a complaint.  He contended, she was, in essence, merely seeking clarification in this communication sheet; and that, as a trained manager, he was attempting to de-escalate the situation, rather than inflame it, and that he believed an express rebuttal of each point raised by her in the staff communication sheet would make matters worse.  Indeed, it was not until ‘D’s’ statement of 19 March 2009, prepared for the respondents’ representative in connection with these proceedings, which was also used as part of the investigation of the claimant’s complaint of sexual discrimination, that ‘D’ expressly stated, in response to the allegation relating to gender:-

“At no time during our conversation [on 31st October 2008] did I suggest to ‘B’ that I was considering moving her due to her gender.  ‘B’ did ask if this was the reason and I explained my sole reason was due to my concerns about her health.  …  I interviewed ‘B’ again on 14/11/08 … ‘B’ again confirmed that a group move may be helpful.  However she did state that, if given the choice she would rather not move.  Again ‘B’ asked if she was being moved due to her gender and again I explained that gender issues were of no consequence.”

2.22	The claimant, in her diary entry for 25 November 2008, did refer to sending in the staff communication sheet to ‘D’.

However, again, there was no reference to the specific allegation of sexual discrimination, which she was making against him in relation to that transfer.  Similarly, no relevant entry was made in the diary, following the response on 26 November 2008 from ‘D’.  However, in a diary entry on 3 December 2008, the claimant made it clear she was going to put in a formal grievance against ‘D’ and ‘do’ him for sexual discrimination.  

Although the claimant had made specific reference to her discussions with ‘D’ in her diary entries on 31 October 2008 and 14 November 2008, in relation to the proposed transfer, but without reference to the specific allegation that one of the reasons given by ‘D’ had been there were ‘too many girls in the group’, it was not until 13 January 2009, when the claimant had written and posted to the tribunal her claim form, that a specific reference was made in the diary to “‘D’ stating he was moving her because ‘there were too many girls in the group’”.

The tribunal would have expected, in the circumstances, since this alleged reason was to the claimant’s knowledge extremely significant, that she would have made an entry in her diary of the actual words spoken and/or her feelings and reaction to them, at or about the time when she contended they were spoken; rather than some considerable time after and only when tribunal proceedings had been commenced.  

2.23	The tribunal was referred to the records/notes of the claimant’s General Practitioner, which were admitted by agreement between the parties without formal proof.  These certainly confirmed the claimant’s injuries at work and her stress but also her unhappiness at the transfer.  In an attendance note, which the tribunal found significant and relevant, for a visit by the claimant to her General Practitioner, Dr Church, on 11 September 2009, by which stage these proceedings were well advanced, there was a reference, as recorded by the Doctor, in relation to the reasons for the transfer.

The attendance note states:-

“Moved group at work and has been upset … Oct 2008 feels boss is telling lies … was told she was being moved because of incidents.  She was moved because she was seeing too many things going on … reporting drugs etc felt she was rocking the boat … .”

The claimant was unable to give a satisfactory explanation for the failure of the Doctor to refer to the gender reason she had been given by ‘D’; although she believed she probably did tell Doctor Church about it.  In particular, she was unable to give a satisfactory explanation for the reference by the Doctor to this ‘new reason’, namely that the transfer move had occurred because she was rocking the boat/seeing too many things going on/reporting drugs etc, This had never been raised previously and at no time was a feature of any other evidence by the claimant in this matter.  Whilst tribunals are fully aware, when General Practitioners and/or Medical Consultants, are asked to provide notes/records/relevant medical reports for use in tribunal proceedings, inaccuracies can occur in relation to what is said to them by a patient.  However, the tribunal found it difficult to see, in the absence of any other evidence, how the claimant came to omit to give the gender reason in any way, if, as she has contended, it was said; but more significantly how the Doctor had recorded a reason, which was never previously referred to or alleged by the claimant; nor has it ever been alleged at any time by her, as either part of her internal complaint or in connection with these proceedings.  Doctor Church was a Doctor the claimant knew well and could trust.  In the tribunal’s view, in the absence of any evidence from Doctor Church, it came to the conclusion that what was recorded by the Doctor in her attendance note could only have been said to the Doctor by the claimant.

2.24	To determine what was actually said by the claimant and ‘D’ at the meetings on 31 October 2008 and 14 November 2008 was a difficult task for the tribunal, in light of the conflict of evidence, as set  out above.  In essence, it required the tribunal to assess the credibility of the claimant and ‘D’.  The tribunal having assessed the evidence of the claimant and of ‘D’, concluded, not without some hesitation, that it preferred the version of Governor ‘D’, in relation to what was said at the said meeting.  It accepted, in particular, that the issue of the number of girls in the group was not initially given by ‘D’, as a reason for the transfer; but was rather raised by the claimant, herself, after he told her she was to be transferred for her health/wellbeing, arising from the incidents she had been involved in.  The claimant did not want to transfer and, in the tribunal’s opinion, she considered a transfer for such a reason some form of criticism of her.  In such circumstances, the tribunal considered it would not have been unusual for her to have sought to see if there was any other reason for the transfer.  She had been at the staff meeting in August 2008 and would have known therefore of the concerns, expressed at that meeting, about the number of females in the group; and therefore gave some context for the claimant’s questioning of the decision to transfer her.

However, crucially, in the tribunal’s judgment, the absence of any reference to the gender issue in her diary at the relevant time in circumstances where she said she had been ‘gutted’, the failure to make any reference in her diary entries expressly raising the issue of sex discrimination, coupled with her failure to say so in her examination-in-chief, her failure to tell the Doctor of the gender reason but to tell him of other reasons never referred to at any other time, meant that the tribunal concluded the claimant was not a credible witness in relation to what had actually been said.  The tribunal did not ignore that it found ‘D’, in relation to these meetings, a less than satisfactory witness given, in particular, his surprising failure, in his response of 26 November 2008 not to make a specific denial of what had been alleged by the claimant.  However it did note that he had accepted there had been some reference to the gender issue during the course of the meetings.  Given what he had said to ‘G’, after the August staff meeting, when he had said he did not accept there were too many females in ‘X’ group and he would not decide transfers on that basis, it was understandable that he might have considered any reference by the claimant to the gender make-up of the group as inconsequential.  

In reaching this conclusion the tribunal also took into account its conclusions, as set out in the following paragraphs of this decision, which it did not consider gave support to the claimant’s version of what was said at the meetings; and, in particular, that ‘D’ had given to her as, one of his reasons for transfer, that there were too many girls in ‘X’ group.

2.25	The tribunal heard evidence from another female Prison Officer ‘L’.  It was apparent to the tribunal she would have preferred not to have had to give any evidence to the tribunal.  Despite this, the tribunal found her a most impressive witness.  She had to go off work in August 2008, following an assault at work.  During her ongoing period of sick leave, following the assault, she was transferred by ‘D’, ‘on paper’ to ‘X’ group in or about September/October 2008, as part of a normal rotational change.  Before the end of her sick leave, she had a conversation with ‘D’, in or about November 2008, in relation to which group she would return to, following the end of her sick leave.  ‘L’ was clear that ‘D’ gave her various options, including staying in ‘X’ group, if she wished.  She was adamant that any discussions with ‘D’ about moves from ‘X’ group and/or to another group related to his concerns about her health and were not in any way related to issues of gender/number of females in ‘X’ group.  However, she acknowledged that, in the course of these discussions, when discussing with her whether she wished to stay in ‘X’ group, upon her return to work, ‘D’ had made a remark to her that ‘X’ group was ‘slightly top heavy with females’.  The tribunal has no doubt that this was said by ‘D’ to ‘L’, despite his denials of doing so.  However, ‘L’ was unsure how or in what context it was said by him to her.  In particular, she made it clear, in evidence to the tribunal, that there was no validity in any suggestion that she was transferred by ‘D’ from ‘X’ group, at the end of her sick leave, because of any suggestion that there were too many females in the group.  She acknowledged that ‘D’ was quite happy for her to remain in ‘X’ group, following the end of her sick leave, if that is what she wanted to do.  She accepted that for health reasons, which had nothing to do with gender issues in ‘X’ group, she had decided to return to ‘Z’ group, rather than stay in ‘X’ group, to which group she had transferred ‘on paper’, during the course of her sick leave.  In light of the foregoing, the tribunal did not consider D’s reference to ‘X’ group ‘being slightly top heaving with females’, gave support to the claimant’s version of what was said by ‘D’ at his meeting with the claimant.  If ‘L’ had been sure and in what context ‘D’ had made the remark to ‘L’, the tribunal might have reached a different conclusion about the significance of the said remark.

2.26	Governor ‘N’ had management responsibility for a male Prison Officer ‘M’ in a unit which was required to deal, inter alia, with standby searches.  He became concerned about the impact on M’s health and wellbeing following his involvement in a number of incidents at work, some of which had involved injury to him; and he decided, in the circumstances, ‘M’ needed to be moved out of that work and transferred to another unit/group because of these concerns.  Again, similarly to the claimant, ‘M’ did not want to move.  ‘N’ discussed the matter with ‘D’, as Personnel Governor.  Following further discussions between ‘N’ and ‘M’, ‘N’ decided to proceed to transfer ‘M’, despite his objection, to another group on health grounds.  ‘D’, as Personnel Governor, then made the necessary arrangements for the transfer of ‘M’, as sought by ‘N’, to take place on health grounds.  

2.27	Before the transfer of the claimant, as indicated previously, ‘D’ had transferred the female Prison Officer ‘L’, as part of normal rotational deployment, from ‘Z’ group to ‘X’ group.  Such a transfer was at the time ‘on paper only’, as she was, at the relevant time, on sick leave.  During his discussions with ‘L’, as acknowledged by her, in relation to where she would transfer following the conclusion of her sick leave, ‘D’ was at all times content for her to remain in ‘X’ group.  By her own choice, ‘L’ decided to return to ‘Z’ group, where she had been prior to the normal rotational deployment.

After the claimant was transferred from ‘X’ to ‘Z’ group, ‘D’ transferred two other female Prison Officers into ‘X’ group.  At the time ‘D’ was appointed Personnel Governor in or about May 2008, the number of female Prison Officers in ‘X’ group, was consistently low in comparison to male Prison Officers; but, following his appointment, the proportion of female Prison Officers increased – though, in considering these statistics, the tribunal noted that the number of Prison Officers in ‘X’ group had also increased during this period.  Certainly, in the tribunal’s judgment, there was no statistical evidence to show that ‘D’, following his appointment as Personnel Governor, and who was responsible for transfers from group to group, had taken any steps to decrease the number of female Prison Officers in the group.  Also, the claimant herself did not suggest there was any     anti-female culture in the group.

2.28	However, the tribunal was satisfied that there was an issue, shared by the day-to-day/ operational management of ‘X’ group, relating to whether at any given time there was an appropriate balance of male to female Prison Officers in ‘X’ group to enable the Prison Officers in the group to carry out their duties, in particular, with regard to their frequent searching duties of male prisoners.  Male prisoners, and this was a male prison, could not be searched by a female Prison Officer.  Thus, from a practical and operational point of view, in order to ensure that duties/rotas could be arranged to provide sufficient cover to carry out such duties, it was a pre-requisite that there had to be more male Prison Officers in comparison to female Prison Officers in ‘X’ group.  It was also necessary to take into account the number of male Prison Officers at any one time who might be on leave/sick absence, when considering what was the appropriate balance to be maintained between male Prison Officers and female Prison Officers in ‘X’ group.  The necessity to maintain an appropriate balance was recognised by all the officers who gave evidence to the tribunal and who had, at the relevant time, line management/operational responsibility for ‘X’ group.  The tribunal was satisfied, on the evidence, that issues, relating to ensuring that there was always an appropriate balance to enable these rota duties to be effectively and properly carried out, were regularly discussed amongst those with such responsibilities for ‘X’ group.  However, the tribunal was also satisfied that, although there was always concern, in particular, in relation to the normal rotational deployments, that an appropriate balance might not be maintained, there was no evidence that the critical balance, in ‘X’ group, following transfers into and out of the group, had ever reached the situation where it had gone beyond concern/potential concern and led to actual operational difficulties.  No one was able to inform the tribunal what would be a balance that, in essence, could not be satisfactorily worked with, as this had not at any time occurred.  It had not occurred during the time when ‘D’ was Personnel Governor.  Indeed, the tribunal has no doubt that, if that situation had arisen, there would have been formal meetings with ‘D’, properly minuted and action taken to resolve the situation.  Given that these issues were the subject of frequent informal discussions amongst those senior officers/governors with operational responsibility for ‘X’ group, the tribunal did find it surprising that ‘D’ did not appear to have any knowledge of these concerns, even if gained in an informal way from chats amongst senior officers/governors.  ‘D’ was adamant, in his evidence to the tribunal, he was not so aware; other than from the discussion between ‘G’ and ‘C’ with ‘D’, following the staff meeting in August 2008.  There was no evidence that anyone else had brought it to his attention, including ‘E’, even in an informal way.  The tribunal accepts that, at the time of the staff meeting on 13 August 2008, there was increased concern amongst the operational staff in the group, in light of the proposed normal rotational deployments between groups, which had been notified in the previous months, and which would be taking place in the period following the meeting.  Such concern had led to the staff meeting and ‘G’s approach to ‘D’, following the meeting.  However, the tribunal is satisfied that ‘D’ made it clear to ‘G’ at the meeting that it was not his view there were too many females in the group and transfers would not be decided by him on that basis.  In light of his response, there was no follow-up by ‘G’.  If the balance between female and male Prison Officers had ever meant that duties/rotas could not be satisfactorily done, then the tribunal is satisfied that senior officers and, in particular, the Governors with operational responsibility for ‘X’ group, would have formally approached ‘D’ and required relevant action to be taken by him to restore the necessary balance.  This was never done or required to be done.  In so finding, the tribunal does not ignore the fact that the relevant line managers/operational governors in ‘X’ group were, at all times, keeping a watchful eye to ensure that the appropriate balance was maintained; as they realised that they were the people who would have to deal with any aftermath if that balance was not properly maintained.  This was very different from saying that there were, in fact, too many females in the group and that ‘D’ required to take action to restore the balance.  In the tribunal’s view, ‘D’ never required to do so.  

3.1	Relevant law

(a)	The 1976 Order provides as follows:-

			Article 3(1):-

“In any circumstances relevant for the purposes of any provision of this Order … 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

	… .”

			Article 7:-

“A comparison of the cases of persons of different sex … under Article 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

			Article 8(2):-

“It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –

				…

(b)	by … subjecting her to any other detriment.”

Article 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 explanation that the respondent –

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

(b)	is by virtue of Article 42 or 43 to be treated as having committed an act of discrimination … against the complainant;

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.”

3.2	As Lord Nicholls in his judgment in the case of Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 made clear the normal two-step approach of tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly, whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was and was it for a proscribed reason or for some other reason.  If the latter, the application fails.  If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ judgment).  Indeed, it was Lord Nicholls, in his judgment in Shamoon, who emphasised that the question whether there had been less favourable treatment and whether that treatment was on the grounds of sex, are in fact two sides of the same coin.  As he observed (see Paragraph 8 of his judgment) sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  This was reiterated by Elias J, as he then was, in the case of Ladele  v  London Borough of Islington [2009] ICR 387 (Paragraphs 30 – 39, which dicta was not doubted by the Court of Appeal when dismissing the appeal in its decision [2010] IRLR 211).  

3.3	In the case of Stephen William Nelson  v  Newry & Mourne District Council [2009] NICA 24, Girvan LJ, reviewed the authorities in relation to the operation of Article 63A of the 1976 Order and its application to the burden of proof:-

“ … 

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 AER 812 considered the equivalent 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 prove 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 whatsoever 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 246 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 inadequate 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 material 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 comparison 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 the 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.”

In Curley, the Court of Appeal also approved the judgment of Elias J in Laing  v  Manchester City Council [2006] IRLR 748, which was also quoted with approval by Campbell LJ in the decision of the Court of Appeal in Northern Ireland in the case of Arthur  v  Northern Ireland Housing Executive & Another [2007] NICA 25, when Elias J stated that it was not obligatory for a tribunal to go through the formal steps set out in Igen in each case (see Paragraph 73).

In the case of Network Rail Infrastructure Ltd  v  Griffiths-Henry [2006] IRLR 865 the Employment Appeal Tribunal held that:-

“ … A tribunal at the second stage is simply concerned with the reason why the employer acted as he did.  If there is a genuine non-discriminatory reason, at least in the absence of  clear factors justifying a finding of unconscious discrimination, that is the end of the matter.  The burden imposed on the employer will depend on the strength of the prima facie case … it would be obviously unjust and inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the tribunal considers objectively to be justified or reasonable.  …  Unfairness is not itself sufficient to establish discrimination.”

In the recent decision of B and C  v  A [UKEAT/0503/08], Underhill P stated, in the course of his judgment at Paragraph 12(3):-

“ … Section 63A applies to the entire question of whether the employer has committed an act of discrimination and this applies as much to the ‘less favourable treatment question’ as to the grounds (or ‘reason why’) question.”

3.4	In considering the reason why question, Mummery J, as he then was, in the case of O’Neill  v  Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1996] IRLR 372 stated at Page 376, Paragraph 39:-

“ … (i)	the tribunal’s approach to the question of causation should be ‘simple, pragmatic and common sensical.’

(ii)	the question of causation has to be answered in a context of a decision to attribute liability for the acts complained of.  It is not simply a matter of a factual, scientific or a historical explanation of a sequence of events, let alone a matter for philosophical speculation.  The basic question is : what, out of the whole complex of facts before the tribunal is the ‘effective and predominant cause’ or the ‘real and efficient cause’ of the act complained of?  As a matter of common sense not all the factors present in a situation are equally entitled to be treated as a cause of the crucial event for the purpose of attributing legal liability for consequences.”

As Lord Nicholls concluded in the race discrimination case of Nagarajan  v  London Regional Transport [1999] IRLR 572, it was enough that the impermissible grounds had a significant influence on the decision:-

		“Decisions are frequently reached for more than one reason.

Discrimination may be on racial grounds even though it is not the sole ground for the decision.  A variety of phrases, different shades of meaning, have been used to explain how the legislation applies in such cases : discrimination requires that racial grounds were a cause, the activating cause is a substantial and effective cause, a substantial reason, an important factor.  No one phrase is obviously preferable to all others, although in the application of this legislation, legalistic phrases, as well as subtle distinctions, are better avoided so far as possible.  If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

In Igen  v  Wong, the above dicta of Lord Nicholls in Nagarajan were found in the Court of Appeal to be not substantially different to the formulation ‘no discrimination whatsoever’ (see further Barton guidelines and Madarassy).

3.5	For unlawful discrimination to be established, a comparison of the cases of persons of different sex must be such that the relevant circumstances in the one case are the same or not materially different from the other (see Lord Hope’s judgment in Shamoon).  This involves a comparison between the treatment of the complainant and another person (the statutory comparator, actual or hypothetical of the other sex).

Lord Hoffman pointed out in Ashan  v  Watt [2008] IRLR 243, Paragraph 37:-

“ … it is probably uncommon to find a real person who qualifies under section 3(4) is the statutory comparator.  …  At any rate the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are ‘materially different’ is often likely to be disputed.  In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated the hypothetical person who was a true statutory comparator.  If the tribunal is able to conclude the tribunal would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.”

In Harvey on Industrial Relations and Employment Law, Volume 2, Section L, Paragraph 75, it is commented:-

“ … the scope for using actual comparators in a discrimination claim is very much more limited than had previously been appreciated.  It follows that the alternative approach to showing discrimination, which involves looking at how, hypothetically, a person of the opposite sex whose circumstances are the same would have been treated, becomes more important.  Of course, in deciding how a hypothetical comparator would be treated, the evidence that comes from how individuals were treated is likely to be crucial, and the closer the circumstances of those individuals are to those of the complainant, the weightier will be the significance of their treatment.  The emphasis on the circumstances being the same should not mean that differences in treatment of individual can be ignored for the purposes of drawing inferences … .”

4.1	As the legal authorities referred to in the previous paragraph made clear, in order for the tribunal to determine the claimant’s claim of unlawful discrimination on the grounds of sex, it was necessary for the tribunal to answer the ‘reason why’ question (see further Paragraphs 3.2 – 3.3 of this decision).  In addition, it was not necessary for the tribunal, in order to answer this question, to go through the formal two-step approach set out in Igen  v  Wong.  As Elias J stated in Laing  v  Manchester City Council [2006] IRLR 748 at Paragraph 74:-

“The focus of the tribunal analysis must at all times be the question whether or not they can properly and fairly infer [race] discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious [racial] discrimination that is the end of the matter.  It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer is given a fully adequate explanation as to why he behaved as he did and it is nothing to do with [race]’.”

4.2	The tribunal has no doubt that the claimant did not want to transfer from ‘X’ group to ‘Z’ group and she saw it as some sort of criticism, albeit unfounded, of the way she had been doing her work; and she felt it was unfair to transfer her over her objections.  The tribunal also has no doubt that the claimant was particularly disgruntled that formal notification of her transfer in such circumstances was sent to her by e-mail and that there was no further discussion with her by ‘D’.  However, such feelings of unfairness are not sufficient to establish unlawful discrimination (see further Network Rail Infrastructure Ltd  v  Griffiths-Henry [2006] IRLR 865).

4.3	It was accepted at the outset of this hearing that, ‘based on the incidents’, an objective observer could reasonably have decided to transfer the claimant to another group, on her return to work to ‘X’ group.  Thus, if the tribunal concluded that the reason, or at least the substantial and effective cause of the transfer of the claimant to ‘Z’ group from ‘X’ group, related to ‘D’s concerns for her health/wellbeing, due to her involvement in the incidents, no claim of unlawful discrimination on the grounds of sex would have been established by the claimant (see further Nagarajan and O’Neill cases, referred to previously).

4.4	In essence, the critical issue for the tribunal to determine was whether a significant and effective cause of the transfer was to do with the number of females in ‘X’ group rather than the concerns of ‘D’ for the claimant’s health/wellbeing.  The tribunal was satisfied that both Governor ‘A’ and Principal Officer ‘C’, had discussed concerns about the claimant’s health, if she stayed in ‘X’ group and this had led to further discussions between Governor ‘A’ and ‘D’, when they both agreed the claimant should be transferred because of concerns for her health/wellbeing, arising out of the many incidents in which she had been involved.  This all took place before the important meetings between ‘D’ and the claimant on 31 October 2008 and 14 November 2008.  In this context, Governor ‘A’ and Principal Officer ‘C’ had line management responsibility for ‘X’ group and were also of those who shared concerns about keeping an appropriate balance between male and female Prison Officers in the group; but yet the tribunal is satisfied that their anxiety to have the claimant transferred from ‘X’ group related not to the number of females in the group and maintaining the appropriate balance; but it arose from their concerns for her health/wellbeing arising out of the said incidents.  To transfer an officer because of concerns for health, following involvement with incidents, was not unusual.  It had been done by ‘D’, in the case of the male Prison Officer ‘M’, who like the claimant had objected to any such move, following the intervention by Governor ‘N’ who requested that ‘D’ have ‘M’ transferred for health reasons.  The female Prison Officer ‘L’ was also transferred back to ‘Z’ group from ‘X’ group at the end of her sick leave, not because of any gender issue but because of concerns for her health.  It was her choice which group she went to.  ‘D’ would have been content for her to remain in ‘X’ group.  If he believed this group was ‘top heavy with females/there were too many females in the group’, it might have been expected he would have insisted that she move from ‘X’ group at the end of her sick leave.  This was not the case.  Indeed, the evidence showed that, not only had he transferred ‘L’ as part of her regular deployment, into ‘X’ group, albeit during the period of her sick leave, ‘D’, following his transfer of the claimant, also transferred two other female Prison Officers into ‘X’ group.  Taking into account the increased numbers of Prison Officers in ‘X’ group, the statistical trend, since ‘D’ had taken responsibility, as Personnel Governor for transfers, showed an increase in female Prison Officers in ‘X’ group.  Whilst the tribunal has no doubt that there were always concerns that the appropriate balance should be maintained between female Prison Officers and male Prison Officers, there was no evidence that the balance had been changed so that there was, in fact, any inability for the Prison Officers in the group to satisfactorily carry out operational duties, such as searching.  The staff meeting in August 2008 was clearly an illustration of such ongoing concern; but it was clear, in the judgment of the tribunal, from ‘D’s reaction to his discussion with ‘G’, the union representative, that he did not think, at that time, there were too many females in the group; and also it was not a basis upon which he considered appropriate to make such decisions in relation to who would be transferred into and out of ‘X’ group.  If there had been real concern about such an operational issue, there would have been formal meetings with ‘D’ by the relevant Operational Governors.  There were none; albeit they, together with the operational line managers, all kept a close eye on the position to ensure the correct and appropriate balance was maintained.  In the circumstances, the tribunal did not find any relevant evidence from such matters to conclude the reason why the claimant was transferred from ‘X’ group was for an unlawful discriminatory reason.

4.5	In light of the foregoing, the tribunal’s conclusions, as set out above, in relation to what was said at the meetings on 31 October 2008 and 14 November 2008, were therefore of critical importance for the tribunal in determining the said ‘reason why’ issue.  The tribunal, for the reasons set out in Paragraph 2.24 of this decision found that ‘D’, during these conversations, had given his reason for transferring the claimant from ‘X’ group was due to his concern for her wellbeing/health arising from her involvement in the various incidents; and that ‘D’ had not said the reason for the transfer was also because there were too many girls in the group.  This was a suggestion made initially by the claimant, when questioning ‘D’ about the reason he had given to her for the said transfer; and which ‘D’ had denied.  In the circumstances, the tribunal therefore standing back and focusing on the issue of discrimination (see the case or Curley  v  Chief Constable of the Police Service of Northern Ireland) concluded that the reason for the transfer (the reason why) was, as stated by ‘D’, namely due to his concerns for the claimant’s health/wellbeing, arising from her involvement in the various incidents.  The claimant therefore, in the circumstances, had not shown that the reason for the transfer was for a sexually discriminatory reason.  

4.6	The claimant’s claim must therefore fail and it is therefore dismissed.

Chairman:

Date and place of hearing:		15 - 19 February 2010;
						24 February 2010; and
26 February 2010, Belfast

Date decision recorded in register and issued to parties: