THE INDUSTRIAL TRIBUNALS

CASE REFS:   539/05
1059/05

CLAIMANT:			Christina Brown	

RESPONDENT:		Almac Pharma Services	Limited

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The claimant’s claims for discrimination on grounds of sex, part-time workers (prevention of less favourable treatment) or maternity and parental leave are dismissed.  The claimant’s claim under the Equal Pay Act 1970 is dismissed.

Constitution of Tribunal:
Chairman:		Mr P Kinney	
Members:		Dr Eakin
			Ms Kelly	

Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by McIldowies, Solicitors.

The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

Factual Issues
The issues were set out in the record of proceedings of a Case Management Discussion on 13 November 2006 and agreed by the parties at the outset of this hearing. They are as follows:
1.	On the expiry of the claimant’s maternity leave on 1 January 2005 did the claimant return to the job she was employed in prior to the commencement of her maternity leave in May 2004?

2.	Had many of the claimant’s managerial responsibilities transferred to Wayne McMeekin and her day-to-day responsibilities to Lynn Ryan during the period of her maternity related sickness and maternity absence from 28 February 2004 to 4 January 2005?

3.	Did the claimant return to a job which was suitable and appropriate for her in the circumstances and in light of her qualifications and experience?

4.	Was the claimant subjected to a detriment on her return to work after/during the period of maternity related sickness and maternity absence from 28 February 2004 to 4 January 2005?

5.	Is Mr Wayne McMeekin a comparable full-time worker for the purposes of the Part-time Workers (Prevention of Less Favourable Treatment) (Northern Ireland) Regulations 2000?

6.	If so, did the claimant receive proportionately less pay and benefits on a pro rata basis than Wayne McMeekin?

7.	If so, did she receive less pay and benefits by reason of her part-time status?

8.	If so, was there any objective justification?

9.	(a)	Did the respondent fail to allocate adequate resources to the claimant to enable her to carry out her responsibilities after December 2003?

(b)	Was the respondent responsible for any failure to allocate resources to the claimant pre-2003?

10.	Was the claimant suffering from work-related stress and was the respondent made aware or should the respondent have been aware of that fact?

11.	By reason of the foregoing, did the respondent fundamentally breach the express or implied terms of the claimant’s contract of employment and was the claimant thereby constructively dismissed?

Legal issues

1.	Has the respondent breached in any manner the Maternity and Parental Leave (Northern Ireland) Regulations 1999 with regard to the claimant’s return to work after maternity leave?

2.	Has the respondent caused any detriment to the claimant in the alleged contravention of Regulation 19 of the Maternity and Parental Leave (Northern Ireland) Regulations 1999?

3.	Has the respondent discriminated against the claimant on the grounds of her gender contrary to the Sex Discrimination (Northern Ireland) Order 1976?

4.	Has the respondent breached the provisions of the Equal Pay Act 1970?

5.	Has the respondent unlawfully discriminated against the claimant contrary to the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) (Northern Ireland) Regulations 2000?

6.	Was the claimant constructively dismissed?

This was a very lengthy hearing comprising some seven weeks of evidence and which generated 13 lever arch files of documentation.  The tribunal had regard to the evidence it heard from the witnesses and to the documents in the lever arch files.  As advised to the parties at the hearing, the tribunal only considered those documents in the files to which it was specifically referred.  

In view of the length of this case the tribunal does not propose to descend into the minutiae of the evidence relating to all the issues.  That is not the function of the industrial tribunal.  The tribunal’s obligation is to state why the parties have won or lost and set out the facts relevant to the tribunal’s decision and the reasons for that decision.  In giving reasons we have concentrated on those aspects of the material before us that have formed the basis of our decision. The tribunal has however surveyed all the relevant evidence in coming to our conclusions.

FACTS

Claimant’s background

1.	The claimant was employed as a Group Health & Safety Manager by Galen PLC on 29 August 1997.  The claimant was responsible for much of the Galen PLC workforce.  The tribunal found that the claimant had Health & Safety responsibilities for several Divisions, including:-Galen Limited; CTS; Ivex Pharmaceuticals; Quchem; and ICTI. The total number of employees working within these Divisions fluctuated, but at its height was up to approximately 900 employees.

2.	Galen PLC was a pharmaceutical company manufacturing pharmaceutical products under contract for others and in its own right.  The Chairman of the company was Sir Allen McClay who resigned as Chairman of the Board of Galen PLC in September 2001.

3.	He then set up Almac Sciences, which acquired a number of the Galen PLC Divisions over the next three years. These included Divisions for which the claimant previously had health and safety responsibilities.

4.	Sir Allen McClay acquired the pharmaceutical manufacturing division comprised within Galen Limited in December 2003.  He did not acquire the company at this stage. These employees, including the claimant, transferred to PDMS Ltd, a company created for the purpose. The claimant now had health and safety responsibilities for, and was an employee of, PDMS Ltd. She no longer had any group function.

5.	PDMS was subsequently renamed Almac Pharma Services Ltd. 

Health and Safety in GALEN

6.	Prior to the claimant’s appointment, Galen Limited, Ivex, CTS and Quchem had no formal health and safety structures in place.  Responsibility for health and safety matters largely lay with the various managers who controlled these within their own areas.  

7.	With the recruitment of the claimant a more formal structure was established.  This was reflected in the Group Health & Safety Handbook of April 1999. The claimant had an overall supervisory and guidance role; but much of the responsibility for day-to-day health and safety matters remained at managerial level and was built into the systems and procedures operating throughout the organisation. 

8.	In 1998, the claimant set up Safety Committees at Group and at Divisional level.  She also started writing up a safety policy and accompanying procedures for the Group.  

9.	 The claimant went on her first maternity leave in August 2000. A Health and Safety Officer, Mark Glass, was recruited to provide maternity cover for the claimant. In fact he remained in post until he left Galen to join Almac in January 2003. 

10.	In April 2001, after the claimant’s return from maternity leave, she requested that her hours be reduced from 35 to 30.  The company confirmed their agreement.  At this time the claimant was line managed by Alan Barron, the Company Human Resources Manager. 

11.	The claimant was feeling increasingly pressurised at work.  She had requested administrative assistance in June 2001 which was not forthcoming.  The company felt there was sufficient administrative resource available through the Human Resources Department.  

12.	In August 2001 the claimant went off work with acute stress.  At the suggestion of her GP the claimant wrote to her line manager, Mr Barron, to ask that her job be reviewed to make her role more manageable.  She stated that the pressures on her were having a detrimental effect on her health.  

13.	The claimant was off work for two weeks and returned to work on 3 September 2001.  She once again went off work on 21 September 2001.  She again wrote to her line manager stating:-

“ I would like to reiterate that I request my job is reviewed as it is having a detrimental impact on my health.”   

14.	She did not return to work until 3 December 2001.  

15.	During this time the claimant provided sick line certificates from her GP.  In the majority of these the diagnosis recorded as causing absence from work is ‘general debility’.  The tribunal have concluded that this term, on the balance of probabilities, is related to the work-related stress evidenced by the claimant.

16.	The last sick note, however, covering the last four week period of absence from 2 November 2001 refers to hyperemesis.  The tribunal did not, on the balance of probabilities, and without hearing any medical evidence on the point, relate this to work-related stress.

17.	On the claimant’s return to work her reporting structure changed and she now reported to Graeme McBurney, the Group Operations Director.  This change of reporting structure was at the request of the claimant.

18.	The claimant was unhappy with the perceived level of support of her line manager, Mr McBurney.  

19.	The claimant made numerous requests for additional resources throughout her employment with Galen PLC and up to the time that she was acquired into PDMS in December 2003. From 1997-2001 some requests for resources were granted. The majority of these requests were refused. The tribunal is satisfied that there were valid operational reasons for the refusal of the additional resources. The Board of Directors, who had ultimate responsibility for health and safety in the company, were satisfied with the level and application of resources for health and safety throughout the organisation. They perceived no need for the further resources as requested by the claimant.

20.	Health and safety resourcing was structured throughout the business. It was delivered by a high level of safety being designed directly into the premises, and by delivering resources directly to divisional and departmental managers ,who retained responsibility for the day to day delivery of health and safety in the workplace. The company invested resources where it perceived the greatest hazards and the greatest risk. Substantial resources were delivered to the operation of the pilot plant for this reason. The pilot plant was part of Mr McMeekin’s responsibility in Syngal.  Complex chemical reactions were regularly conducted there with potentially hazardous consequences. 

21.	The tribunal is satisfied that Galen PLC had a good health and safety record. It had won several awards, had no prosecutions or convictions for health and safety matters, and regularly passed external audits conducted by companies for which Galen PLC provided pharmaceutical services. There was never any criticism by the company of the claimant’s work.

22.	From 2001 until December 2003 when the claimant joined PDMS, Galen PLC was involved in a series of divestments of its businesses. The tribunal is satisfied that information held by the Board of Directors relating to divestments could not be shared with staff or be made public. The tribunal is also satisfied that in this period there was a real risk of redundancies unless the divestments were successful. The net effect was a substantial reduction in workforce numbers and a consequential reduction in health and safety responsibilities. 

23.	The claimant went off work on her second maternity leave on 20 May 2002 and returned to work in January 2003.  Prior to her return in January 2003 she had requested reduced working hours to 22 hours per week which was agreed by the company.  

24.	There was a dispute in evidence regarding a request made by the claimant at this time that she be paid for extra hours work done at home in accordance with the Flexible Working Policy.  The claimant asserted that Mr McBurney verbally in a telephone call agreed to payment for the extra hours.  She subsequently made a request for payment which was refused.  Mr McBurney in evidence, however, said that no such arrangement had ever been made and flew in the face of the commercial realities. The claimant had requested a reduction in her working hours from 30 to 22 per week.  He pointed to the fact that the claimant had signed an agreement which made no provision for extra hours worked at home.  The tribunal preferred Mr McBurney’s evidence on this point because the claimant had sought a reduction in her working hours, her written agreement made no reference to overtime for working at home and the claimant conceded in evidence that there was no Flexible Working Policy in force at the time of her request for extra hours.

The claimant and PDMS

25.	In December 2003 PDMS joined what was then loosely called The Almac Group of Companies (all the businesses were purchased by Sir Allen McClay and remained separate legal entities for the purposes of taxation.  The Almac Group of Companies was formally established in June 2006 incorporating all of the acquired companies with the exception of Galen Limited.)   However the various companies were at the relevant time effectively controlled by the Almac Board. The Board of Directors of each individual company generally consisted of the Almac Board plus an additional director from the company in question. In the case of PDMS the additional director was Mr McBurney. 

26.	In January 2004 the Almac Group Health & Safety Committee met.  The claimant was not invited to this meeting.  It was the first meeting of this Committee since PDMS was formed. It was not however the first meeting of the Almac Group Health & Safety Committee, but the eighth meeting.  Mr McBurney attended to represent PDMS. The meeting had been convened by Mr McMeekin who was the Health, Safety and Environmental Manager of the Almac Group.  Mr McMeekin asked the claimant if she wished to have any matters raised at this meeting and the claimant asked for some matters to be considered.

27.	At that meeting, Mr McMeekin asked for clarification of the responsibilities for Health & Safety across the organisation.  It was agreed that health, safety and environmental matters would be a centralised function across the Almac Group.  This would include PDMS.  

28.	In January and February 2004, the claimant continued in her role as Health & Safety Manager within PDMS.  Essentially, she was continuing with the same function as she previously had in Galen Limited.  At this time the claimant asked for a Safety Officer Assistant and also asked for maternity cover.  It was expected that the claimant would be going on maternity leave in approximately May 2004; but in fact she went into premature labour and left work on 28 February 2004.  

29.	The claimant requested a laptop from Mr McBurney in March/April 2004.  Mr McBurney felt it was inappropriate to provide a laptop to someone who should not be working, as she was on maternity leave. 

30.	At the next Almac Group Health & Safety meeting on 22 April 2004, which was during the claimant’s absence, it was agreed to recruit a permanent post of Safety Officer for PDMS.  

31.	In June 2004, Mr McBurney phoned the claimant at home to advise her that Lynn Ryan was to be appointed as Health & Safety Officer for PDMS.  Ms Ryan was to report to the claimant and in her absence to Mark Glass.

32.	Mark Glass and Lynn Ryan visited the claimant during her maternity leave.  Their discussion centred on PDMS issues for which the claimant retained responsibility, rather than on any structural changes across the Almac Group. There was no other formal contact with the claimant by the company.

Wayne McMeekin’s employment history

33.	Mr McMeekin was employed as a Health, Safety and Environmental Compliance Officer with Syngal, a Division of Galen PLC, on 4 August 1997.  In Syngal, Mr McMeekin had responsibility for the Pilot Plant.  The health, safety and environmental risks in Syngal were significantly different to those in the other Galen Divisions involving health, safety and environmental risks not only to employees but also to local residents and the local environment. The Pilot Plant regularly ran complex chemical reactions with potentially hazardous consequences. The level of risk was materially and significantly different to the level of risk operating in the areas of the business for which the claimant had health and safety responsibility. 

34.	In 2001, Syngal and Quchem were amalgamated under the title Chemical Synthesis Services (CSS).  In July 2001 an open competition was held to recruit for the post of Health, Safety and Environmental Manager for CSS.  The claimant did not apply for this post.  Mr McMeekin did apply and was successful.  

35.	Prior to Mr McMeekin’s successful application for the post of Health, Safety and Environmental Manager in CSS, two Health, Safety and Environmental Technicians were appointed in Syngal.  Their position was primarily to help with an application for industrial pollution control licences and also to facilitate a requirement for HSE 24 hour rota to monitor the chemical reactions ongoing in the Pilot Plant.  These clearly were not able be to run on a 9 to 5 working day basis and often had to run over lengthy periods for which constant monitoring was required.

36.	Sir Allen McClay acquired CSS in January 2002. Mr McMeekin transferred with the company. As Sir Allen McClay acquired other businesses, mostly but not exclusively from Galen PLC, Mr McMeekin took over the health safety and environmental responsibilities for those businesses.

37.	The tribunal heard considerable evidence on the respective roles of the claimant and Mr McMeekin and the functions they performed.  The tribunal was satisfied that both the claimant and Mr McMeekin cooperated, where appropriate, as co-employees in their similar and overlapping fields when both employed by Galen Limited.  This cooperation continued in a more limited way, confined to shared site specific matters after Mr McMeekin left Galen to join Almac. Both companies, though legally distinct, operated from the same site.

38.	The tribunal found that the claimant’s academic qualifications were better than those of Mr McMeekin’s; but also found on the evidence that Mr McMeekin was suitably qualified for the position he held and had established wide-ranging experience in the areas for which he had responsibility

39.	There were significant and material differences in the scope of their duties.  The tribunal is satisfied that Mr McMeekin’s environmental responsibilities were significantly greater than the claimant’s.  Any environmental responsibility that she had was very much incidental to her main role as a Health & Safety Manager. The claimant’s main role was a managerial function, developing and setting policies, providing health and safety advice and conducting audits.  Mr McMeekin had similar duties, but in addition had responsibility for a range of hazards within the Pilot Plant for which the claimant had no comparable responsibility. He required to obtain consents for various operations of the plant. Monitoring was required on a 24 hour basis. He had responsibility for explosive and inflammable substances for which the claimant had no similar responsibility.  Mr McMeekin held various licenses, such as radioactive licence, an IPPC licence and a GMO licence.  The claimant held no such licenses.  The claimant’s title from the commencement of her employment was Group Health & Safety Manager, whereas Mr McMeekin had the title of Health, Safety and Environmental Manager.

40.	In December 2003 the claimant had responsibility for health and safety issues in PDMS only. She no longer had any Group function as a result of the divestments made by Galen. She had no significant environmental responsibilities. Mr McMeekin had health, safety and environmental responsibility for the range of companies in the Almac Group, was managing these as a group function, and had significantly different responsibilities to the claimant in relation in particular to the highly hazardous activities undertaken in the Pilot Plant.

41.	The tribunal is satisfied that the claimant and Mr McMeekin were not engaged in similar or like work. 

The claimant’s return to work in January 2005

42.	The claimant contacted Graeme McBurney to arrange her return to work.  She met with Mr McBurney on 6 December 2004. The claimant sought a restructuring of her working hours, but agreement was not reached.  Mr McBurney told the claimant to submit a formal request to Human Resources.  Mr McBurney did not tell the claimant at the meeting on 6 December 2004 that he was no longer her line manager.

43.	On 8 December 2004 the Human Resources department of Almac received a letter from the claimant requesting her working hours be reduced to 18 hours per week.  On 23 December 2004 Mr McBurney met with Chris Lillie, Sarah Watterson (both from Human Resources) and Wayne McMeekin to discuss the claimant’s request.  They agreed the claimant’s request and a letter was written to her on 23 December 2004 confirming her return to work on reduced hours.  That letter also invited the claimant to a meeting with Mr Lillie, Mr McBurney and Mr McMeekin on 4 January 2005 (which would in fact be the first day of work after the Christmas holidays).  The purpose of this meeting was not stated in the letter although the letter was headed “request for flexible working/return to work”.  

44.	There was then considerable confusion in the respondent’s evidence as to what transpired immediately after the meeting on 23 December 2004.  The two members of the Human Resources department left.  Mr McBurney and Mr McMeekin gave conflicting evidence of the timing of a subsequent meeting when they discussed what was to happen at the meeting on 4 January 2005.  Whilst unclear as to the precise date the tribunal is satisfied that such a conversation did take place, at which Mr McBurney and Mr McMeekin discussed, in an informal way, their approach to the meeting with the claimant on 4 January 2005.  What was sought was a way of reacquainting and allowing the claimant to familiarise herself with Almac and how the claimant would do this on the revised hours of 18 hours per week and on her working pattern.  They considered that the appropriate way for this to happen was for the claimant to conduct audits on a temporary basis.  

45.	The letter to the claimant of 23 December 2004 was basic and lacked detail. It did not indicate that the meeting on 4 January 2005 was to discuss the immediate proposals for the claimant. It did not suggest it would explore ways in which the claimant could familiarise herself with Almac. The letter did not indicate any proposals for a temporary role for the claimant nor did it say that the meeting of 4 January 2005 was a preliminary meeting and further meetings were envisaged.

The meeting on 4 January 2005 and subsequent events that day 

46.	 The claimant met with Mr McBurney, Mr McMeekin and Mr Lillie on 4 January 2005.There was dispute as to the content and conduct of this meeting and subsequent events that day. There was no note or minute of the meeting and few objective facts. Although there were inconsistencies in the evidence of the three witnesses for the respondent, the tribunal found their account more reliable for the following reasons:

(a)	Mr Lillie had not met the claimant before this meeting. He left the company a few months later. There was no apparent motive for Mr Lillie to present an inaccurate picture.

(b)	The evidence of the respondent’s witnesses was largely consistent with their earlier statements made to the grievance investigation some weeks after the meeting took place.

(c)	The evidence of the three witnesses was largely consistent with each other.

(d)	The tribunal considered the overall probabilities of the differing accounts including the tribunal’s view that it was most unlikely that all three witnesses would provide inaccurate or untruthful evidence.

(e)	The lack of evidence supporting the claimant’s account, including in particular the absence of evidence from Lynn Ryan. The claimant contended she was told at the meeting that Lynn Ryan was promoted to take over the claimant’s job, and that Lynn Ryan saw how shocked and humiliated the claimant felt as a result of the meeting.
 
(f)	The claimant accepted that she raised no issues or concerns at the meeting and remained for most of the day touring the facilities with Mr McMeekin.

47.	The tribunal has therefore found the following facts:

(a)	The claimant was told she was returning to the same job on the same terms with an agreed reduction in working hours. She remained the health and safety manager of PDMS and an employee of PDMS. The only change was in reporting structure.

(b)	The claimant was no longer to report to Mr McBurney but to Mr McMeekin, who had overall responsibility for the health, safety and environmental functions of all the Almac companies including PDMS.

(c)	The claimant was told that she would conduct audits on a temporary basis to familiarise herself with Almac. No particular audits were identified to her.

(d)	It was the intention of the respondent to seek to expand the claimant’s role from health and safety responsibilities in PDMS to a cross divisional Almac function in health and safety.

(e)	The claimant raised no issues or queries at the meeting regarding the proposed role.

(f)	The claimant remained on the premises after the meeting for several hours in the company of Mr McMeekin, meeting various people including Lynn Ryan and Mr Lillie on her tour. She did not tell anyone what she perceived her new role to be, ie a permanent dedicated position doing audits with Lynn Ryan taking over her role in PDMS.

(g)	The tribunal heard inconsistent evidence from the respondent’s witnesses as to whether the claimant was told that the temporary audit role would last for 4 - 6 weeks and that there were plans to conduct further meetings with her. The tribunal is satisfied that such comments were not made for the following reasons:

i.	The statements made to the grievance investigation by Mr Lillie and Mr McMeekin shortly after the meeting of 4 January 2005 make no reference to the comments in question.

ii.	Neither Mr McMeekin nor Mr Lillie subsequently confirmed the comments.

iii.	There was nothing in the evidence of Mr McBurney or Mr McMeekin regarding these matters in their meetings in December 2004 when they were considering the claimant’s return to work in January 2005.

(h)	The tribunal does not accept the claimant was demoted or Mr McMeekin promoted as a consequence of this meeting, nor that Lynn Ryan was to take over the claimant’s job. 

The grievance procedure

48.	After the meeting on 4 January 2005 the claimant wrote to Mr McBurney on 8 January 2005.  In this letter the claimant makes a number of complaints.  She stated that she was informed her role was limited to the carrying out of health and safety audits and that many of her former managerial responsibilities and duties had been transferred to Mr McMeekin with day-to-day responsibilities to Lynn Ryan.  She contended she had been demoted whilst Mr McMeekin was promoted.  The claimant further contended that she had been publicly undermined in front of work colleagues and that on a pro rata basis she was being paid less than Mr McMeekin.  The claimant advised the company that she had suffered a relapse of her pre-existing work-induced stress condition, being a direct result of the persistent denial by senior management of resources required for her to fulfil her role as group health and safety manager.

49.	Mr McBurney responded by letter of 14 January 2005 indicating that because of the seriousness of the issues the respondent would investigate these fully and give them their urgent attention.  A further response was sent by Mr McBurney on 25 January 2005 in relation to the pay difference between the claimant and Mr McMeekin.  Mr McBurney said that the respondent did not believe that Mr McMeekin was a comparable full-time worker and pointed out further that the respondent considered that the claimant’s “group” management function ceased with divestment by Galen PLC of several of its companies over a period of time.  Mr McBurney stated that Mr McMeekin’s role was wider and encompassed environmental issues and stated that the claimant had never had responsibility for environmental issues.

50.	In another letter from Mr McBurney, also dated 25 January 2005, he stated that he assumed that the claimant wished to invoke the grievance procedure and invited the claimant to a meeting at stage 1 of that procedure.  He also indicated that as the claimant was currently on sick leave and may wish to provide further details in written form he set out a list of questions.  

51.	On 31 January 2005 the claimant’s solicitors set out in writing, in considerable detail, the grievances raised by the claimant.

52.	On 22 March 2005 the claimant’s solicitors wrote to Miss Watterson indicating that as a response to the grievance process had not yet been made, proceedings had been commenced in the Industrial Tribunal to protect the claimant’s position.

53.	On 1 April 2005 Miss Watterson sent a five-page letter setting out the findings of the grievance investigation.  A number of specific findings were made in the letter which included the following:

“Evidence arising from the investigation establishes that it was expressly stated that due to your reduced hour working pattern, it would take four to six weeks to complete this exercise, after which time more detailed discussions could take place regarding your role.  … At the date of your return to work no decision had been taken as to the exact nature of your role and as stated at the meeting on 4 January 2005 it was management’s intention to hold further discussions with you. … Those interviewed were not aware of any matter which would have led to humiliation on your part nor did they notice any unease on your part. … While every effort was made to investigate previous instances of alleged work induced stress, there is no evidence of any formal grievances raised by you relating to this and furthermore no evidence to suggest that Galen Holdings was aware of this situation. … The persistent denial by Senior Managers for additional resources was difficult to investigate as this allegedly occurred whilst you were employed by an entirely different company, Galen Holdings and was not an issue you raised after the acquisition of PDMS by Allen McClay.”

54.	Miss Watterson’s letter concludes by saying that all issues were investigated fully and that the claimant’s grievance could not be substantiated.  It offered the right of appeal to the company VP/Director and the claimant was invited should she wish to appeal to forward this in writing to Human Resources.  The letter also asked if the claimant would meet with management to discuss her return to work. 

55.	At the tribunal, evidence regarding the grievance procedure was given by Miss Watterson and by Mr Milliken.  Miss Watterson was a Human Resources Manager and Mr Milliken was the Finance Director of Almac.  Mr Milliken had never met the claimant and was unaware of the circumstances surrounding her grievance prior to his participation in the investigation.

56.	From the evidence heard the tribunal make the following findings of fact arising from the investigatory procedure:

57.	The investigation commenced on 8 February 2005 and a number of employees were interviewed.  The investigatory panel focussed on the claimant’s letter of 8 January and her solicitor’s letter of 31 January for the terms of reference.  They did not look at the claimant’s personnel file nor at her job description.   Miss Waterson had the claimant’s personnel file including medical certificates for absences, and a copy of the claimant’s note to her line manager in September 2001 asking for a review of her job as it was having a detrimental effect on her health.  Mr Milliken told the tribunal that he did not look at any of these documents. They did not look at the group health and safety minutes of various meetings. 

58.	Mr Milliken and Miss Watterson met prior to commencing the process but kept no notes of any of their meetings.  There was no formalised structure for each interview.  Questions were agreed by Mr Milliken and Miss Watterson. These would be asked in no particular order and by either of the two individuals.  

59.	Miss Watterson made a hand-written note at the time of the meeting and then shortly afterwards drafted typewritten notes.  The typewritten notes were prepared perhaps some days later and were then presented to the interviewees for signature.  The document was given to the witness to read and review prior to signing.

60.	There were significant differences between the content of the handwritten notes and the typewritten notes.  In the main these differences between the handwritten and typewritten version largely favoured the respondent’s position in the typewritten signed version of notes.  By way of example only, the tribunal highlights two matters:

61.	Lynn Ryan in her minutes was talking of the safety audits that the claimant was asked to do on her return to work.  On the handwritten notes it is recorded that Miss Ryan “tried to sound very positive about safety audits”.  In the typewritten note this was changed to read “LR said that she was very positive about the safety audits”.

62.	Mark Glass in his minutes refers to the environmental responsibilities of the claimant.  In the handwritten record of the meeting Mr Glass is recorded as saying that environmental issues were not a “big part of the claimant’s role”.  In the typewritten version this has been changed to “no part”.

63.	The investigation found that the claimant was not undermined or humiliated.  However Miss Lynn Ryan, who it was acknowledged was the person most likely to know the claimant well, was not asked in her interview whether she felt the claimant was humiliated.

64.	Mr Milliken and Miss Watterson did not put to the interviewees the specifics of the claimant’s complaint as set out in her correspondence but carried out a more confined question and answer session.

65.	Mr Milliken and Miss Watterson made a finding that it was expressly stated at the meeting on 4 January 2005 that the audit role would take four to six weeks to complete after which time more detailed discussions could take place regarding the claimant’s role.  This is not supported by the evidence taken by the investigators.  Only Mr McBurney referred to the four to six week period for conducting audits and neither Mr Lillie nor Mr McMeekin referred to that period.  None of the three witness statements refers to any subsequent detailed discussions which would take place regarding the claimant’s role. No reasons were given for preferring Mr McBurney’s account.

66.	There was evidence to support the claimant’s complaint that she had been consistently denied resources.  Despite receiving evidence from Mr McBurney, Mr Armstrong and Mr Barron confirming that resources had been denied this part of the claimant’s grievance was not upheld but rather Miss Watterson in her letter said that the persistent denial “was difficult to investigate”.  Indeed in his evidence at tribunal Mr Milliken accepted that the claimant had had resources denied to her.

67.	In relation to the claimant’s grievance of suffering from work-related stress, Mr Milliken and Miss Watterson found that there was no evidence to suggest that Galen PLC was ever aware of work-induced stress, however, Mr Barron gave evidence to the investigation saying that he knew the claimant was distressed and fed up with the situation and the constant battle for additional resources but could not be sure which absences were related to work or which were maternity related. Miss Waterson was aware of the contents of the claimant’s personnel file and the claimant’s note, to her then line manager, Alan Barron in September 2001 complaining of work related stress. Mr Milliken had no regard to these documents. No reference was made by the panel to the claimant’s personnel records or the medical certificates provided by the claimant to her then employer in 2001.

68.	Mr Milliken and Miss Watterson never invited the claimant to have a meeting to discuss the statements made by the various witnesses nor did they give the claimant an opportunity to comment on those statements before they arrived at their conclusions.  The claimant had no opportunity to answer the respondent’s case.  Miss Watterson maintained that this could have been addressed by the claimant if she had appealed their decision. 

69.	Mr Milliken and Miss Watterson gave evidence that they held a number of meetings before finalising their letter to the claimant.  However, there were no notes or minutes of any of these meetings even though some of these would have taken place after Mr Milliken and Miss Watterson were aware that industrial tribunal proceedings had been lodged by the claimant.

70.	The outcome of the grievance investigation was communicated to the claimant by letter of 1 April 2005. The letter also contained the offer of an appeal. The claimant then wrote to the respondent on 21 April 2005 tendering her resignation. She  commented :

	“ I feel that the investigative process was a sham and that no genuine attempt was made to address my specific grievances”

		The claimant further stated that she saw no merit in appealing the decision.

The applicable law

71.	The legal issues were set out at the beginning of this decision.  We do not propose to set out again in full detail the various statutory provisions which have been fully set out in the written submissions provided by the parties.  However some short consideration on each head of claim is appropriate followed by the tribunal’s conclusions and the reasons for those conclusions.

Sex Discrimination

72.	A person discriminates against another person by reason of sex if on the grounds of sex, he treats that other person less favourably than he treats or would treat other persons.  The other person with whom the comparison is sought must be such that the relevant circumstances in the one case are the same or not materially different than the other.  

73.	The legislation goes on to direct that if the tribunal finds facts from which it could, in the absence of an adequate explanation, hold that the respondent has committed an act of discrimination against the claimant then the tribunal should uphold the complaint unless the respondent proves that he did not commit the act of discrimination or is not to be treated as having committed that act.  Thus in such a situation the burden of proof passes to the respondent to show that he has not committed any act of discrimination.  Guidance on the application of these regulations has been given by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. This  guidance has been endorsed and applied in a number of cases and most notably in the Court of Appeal in the case of Madarassy v Nomura International PLC [2007] EWCA Civ 33.  The guidelines have been fully set out in the written submissions.  However the tribunal sets out the first four points on the 13 point guidance as follows:-

“Pursuant to Section 63A of the Sex Discrimination Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities the facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2 or which by virtue of Section 41 or Section 42 of the Sex Discrimination Act is to be treated as having been committed against the claimant.  These are referred to below as “such facts”.

	If the claimant does not prove such facts he or she will fail.

	It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal”.

74.	In Madarassy Lord Justice Mummery said at paragraph 56:

“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment 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”.

75.	Lord Justice Mummery then went on to say at paragraphs 71 and 72:

“Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant’s allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground”.

Maternity and Parental Leave (Northern Ireland) Regulations 1999

76.	The relevant parts of the legislation are set out in the claimant’s written submissions.  An employee has the right not to be subjected to any detriment by any act, or deliberate failure to act, by her employer, done for a reason that relates to pregnancy, childbirth, maternity or maternity leave.  “Detriment” is not defined in the legislation but is generally understood to encompass any adverse treatment which relates to pregnancy or maternity leave except for dismissal which is dealt with separately.  Under the regulations, a woman has the statutory right to return to the job in which she was employed before her absence unless, in the case of additional maternity leave, that is not reasonably practicable, in which case she is entitled to return to a suitable and appropriate alternative job.

77.	Regulation 2(1) provides that “job” must be defined by reference to “the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed”.  The level of specificity with which the three matters of nature, capacity and place are to be addressed, is a matter of factual determination for the tribunal.

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

78.	Again, the relevant provisions have been set out in the claimant’s written submissions.  A part-time worker has the right not to be less favourably treated on the grounds of working part-time than a comparable full-time worker, unless that treatment can be objectively justified.  Less favourable treatment can only be established by comparison with an actual full-time comparator, defined as someone employed by the same employer and under the same type of contract and engaged in broadly similar work (and, where relevant, having a similar level of qualification, skills and experience).  In judging whether or not there is less favourable treatment the part-timer’s treatment should be proportionately the same as the full-timer’s unless there are objectively justified grounds for any difference.

Equal Pay

79.	The relevant terms of the Equal Pay Act (Northern Ireland) 1970 have been fully set out in the claimant’s written submissions.  The legislation provides for equal pay between women and men in the same employment.  It does so by inserting an equality clause into every contract, giving a woman the right to equality in the terms of her contract where she is employed on like work, work rated as equivalent or work of equal value to that of a male comparator.  In this case the claimant’s claim was for like work, that is work of the same or a broadly similar nature, and the differences [if any] between the things that she does and the things they do are not of practical importance in relation to terms and conditions of employment.  The legislation requires a male comparator employed on like work.  The comparator must be in the same employment as the claimant, meaning that the comparator must be employed by the claimant’s employer or an associated employer at the same establishment.  European case law allows a comparison to be made by employees of different employers so long as it can be shown that any pay can be attributed to a single source, that is, where there is one body responsible for the inequality and which could restore equal treatment.

80.	In considering the issue of like work, the tribunal should look first at whether the work is the same or of a broadly similar nature and, if it is, then whether any differences on the work performed are of practical importance in relation to terms and conditions.  Case law suggests that the tribunal should try to avoid a minute examination of detail and trivial differences in the work performed.

Constructive Dismissal

81.	Under Articles 126 and 127 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  Circumstances in which an employee is dismissed include if the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct. 

82.	In order to establish that she has been constructively dismissed the claimant must show that the respondent has committed a fundamental breach of the contract.  It is not enough to show merely that the employer has behaved unreasonably.  The claimant must also show that she left because of the breach and that she has not waived the breach. In other words, she must not have delayed her resignation too long or done anything else which indicates acceptance of the change to the basis of her employment.  Even if the employer’s act which was the immediate cause of an employee’s resignation is not by itself a fundamental breach of contract, the employee may be able to rely upon the employer’s course of conduct and consider it as a whole in establishing that she was constructively dismissed.  The “last straw” must contribute, however slightly, to the breach of contract.  

83.	In Balwin v Brighton and Hove City Council [2007] ICR680 the EAT clarified that the appropriate test is “that the employer will not, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously undermine mutual trust and confidence between employer and employee”.  There is no requirement for the employee to show that the employer’s actions were calculated or intended to destroy trust and confidence, provided they were likely to do so.

Conclusions on the legal issues

1.	Has the respondent breached in any manner the Maternity and Parental Leave (Northern Ireland) Regulations 1999 with regard to the claimant’s return to work after maternity leave?

2.	Has the respondent caused any detriment to the claimant in the alleged contravention of Reg 19 of the Maternity and Parental Leave (Northern Ireland) Regulations 1999?

84.	Having applied the relevant principles of law to the facts found, the tribunal is satisfied that the claimant returned to the same job in which she was employed before her absence from February 2004.The tribunal has found as a fact that the claimant was returning to the same job on the same terms as she had left.  She returned as the health and safety manager of PDMS with no diminution in her responsibilities or salary or terms of employment.  In looking at the three matters of nature capacity and place the tribunal finds that the claimant returned to work in the same capacity, ie, as a health and safety manager of PDMS enjoying the same terms and conditions of employment apart from the hours that required to be worked which were altered as a result of her request in December 2004.  Her place of work was unchanged.  The question then arises as to the nature of the work.  The tribunal concludes that the nature of the work which is suggested to the claimant being the conduct of health and safety audits for a temporary period falls within the nature of the claimant’s ongoing work.  The nature of her work was as a health and safety manager and an essential component of that work is the conduct of audits. It was for a temporary period to allow the claimant to familiarise herself with the Almac Group. She had only been working in this new setting from December 2003 to February 2004 before going off work with threatened premature labour.

Has the respondent discriminated against the claimant on the grounds of her gender contrary to the Sex Discrimination (Northern Ireland) Order 1976?

85.	The claimant’s comparator is Mr McMeekin.

86.	Having applied the relevant principles of law to the facts found, the tribunal is not satisfied that the claimant has established facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination on the grounds of sex against the claimant.  In reaching this conclusion the tribunal has taken into account the facts found from the evidence of both the claimant and the respondent.  

87.	The claimant was not provided with resources in accordance with her many requests. However a request for additional resources does not necessarily mean that resources are required. There were valid reasons for the refusal of resources to the claimant. It was open to Galen PLC to decide on the best use of resources and how they should be allocated. There was no business need identified by the company to invest further resources in the areas requested by the claimant. The claimant did receive additional resources most notably Mark Glass who was appointed as health and safety officer in August 2000. Other resources were provided to Mr McMeekin to deal with specific requirements for the work carried out in the areas for which he had health safety and environmental responsibilities. Resources were given to health and safety matters directly to the managers of departments who retained day to day responsibility for many health and safety issues.

88.	The claimant’s requests for resources in the latter years of 2002/2003 were largely met with silence.  The respondent had valid reasons for being unable to provide either the resources requested or further information because of the possibility of redundancies and because of concerns over inappropriate information being released about potential divestments by a Public limited company. 

89.	More resources were directed to Mr McMeekin who had responsibility for Syngal, but the tribunal has also found that there was a significantly higher risk threat in the areas for which he had responsibility most pertinently the pilot plant which constituted a risk not just to employees but to local residents and the local environment.  

90.	There was no evidence that the claimant was denied any resources after her transfer to PDMS and indeed her request for assistance made just prior to her absence with premature labour was considered by the respondent and Lynn Ryan was appointed as a Safety Officer reporting to the claimant, and in her absence Mark Glass who was acting up in the claimant’s place. 

91.	Whilst the claimant had a period of work related stress necessitating sick leave from August  to October 2001, there was no credible evidence of further complaints after this time or that the respondent had any knowledge of any further work related stress. 

Has the respondent breached the provisions of the Equal Pay Act 1970?

92.	The tribunal is satisfied that in this case there is a common employer of the claimant and her comparator, Mr McMeekin, from December 2003.  Even if incorrect on this basis the tribunal would certainly consider that any pay can be attributed to a single source. Decisions on salary and recruitment were taken by the main board of Almac.  Each of the individual companies was composed of the main board of Almac plus a further individual director directly involved in the company in question.  In the case of PDMS the additional Director was Mr McBurney.  

93.	The central issue for the equal pay claim is whether or not the claimant and Mr McMeekin were engaged in the same or similar work.  The tribunal have found as a fact that the claimant and Mr McMeekin were not engaged in the same or similar work. Although there were similarities there were significant differences principally in the environmental duties of Mr McMeekin for which the claimant had no similar responsibility. Also, at the time the claimant and Mr McMeekin were in common employment from December 2003 onwards, Mr McMeekin had considerably more responsibility for health safety and environmental issues across the Almac group, whilst the claimant’s responsibilities extended only to PDMS. The claimant’s claim for equal pay on the basis of like work therefore must fail.

94.	 In the claimant’s written submissions reference is made to a claim for equal value.  The tribunal does not accept that such a claim was ever properly made.  It does not appear as an issue in the case and was not identified as such at any of the Case Management Discussions and in particular, the Case Management Discussion on 13 November 2006 at which the legal and factual issues set out at the beginning of this decision were agreed by the parties.  The subject of equal value was not advanced at any stage in the hearing of the case and it is the tribunal’s view that it was not an issue properly before the tribunal for consideration.  The tribunal’s considerations are confined to the question and issue advanced by the claimant at hearing, that is that she was engaged in like work to that of Mr McMeekin.  If the claimant had advanced a claim for equal value this would have required, in the tribunal’s view, the consideration of an independent expert.  The comparison being sought is not necessarily between two employees on like or even similar work but between two jobs that may be entirely different.  Because of the evidential difficulties that are created, the Equal Pay Act provides for special tribunal procedure in equal value claims contained in Schedule 3 of the Industrial Tribunals Rules of Procedure 2005.  That has not been followed nor requested in this case by the claimant or her representatives.  It is the tribunal’s view therefore that the issue of equal value has not been raised in this case and requires no further consideration. 

Has the respondent unlawfully discriminated against the claimant contrary to the provisions of the Part Time Workers (Prevention of Less Favourable Treatment) (Northern Ireland) Regulations 2000?

95.	The claimant is clearly a part-time worker for the purposes of the regulations.  The claimant submitted that Wayne McMeekin was the comparable full-time worker.  The tribunal has found as a fact that the claimant and Wayne McMeekin were employed by the same employer from the date on which the claimant was acquired into PDMS in December 2003.  The tribunal has also found as a fact that the claimant and Mr McMeekin were not engaged in the same or broadly similar work sufficient to engage Mr McMeekin as a comparator.  In December 2003 when the claimant and Mr McMeekin were in common employment and indeed thereafter, the claimant’s role was as a health and safety manager for PDMS.  PDMS was effectively the old Galen division.  Although the claimant and Mr McMeekin had previously been employed by Galen PLC, Mr McMeekin obtained his current post in 2001 by open competition.  Since then, his responsibilities for health, safety and environmental issues have expanded considerably by the further acquisitions made by Sir Allen McClay.  He retained responsibilities for the very different range of hazard within the pilot plant for which the claimant had no comparable responsibility and in particular had environmental duties the claimant did not have.  The tribunal therefore does not consider that Mr McMeekin is an appropriate comparator and the claimant’s claim must fail.

Was the claimant constructively dismissed?

Conclusions from the meeting of 4 January 2005

96.	It is the claimant’s case that the respondent intended to unilaterally change the terms of her contract by demoting her and changing her job duties, thus fundamentally breaching her contract.  She further maintains that this is a breach of the duty of trust and confidence.  

97.	There is no doubt that bad behaviour can amount to behaviour sufficient to destroy mutual trust and confidence.  Equally there is no doubt in the tribunal’s mind that the meeting on 4 January 2005 and the preparation for that meeting was badly dealt with by the respondent.  The claimant had no clear idea of precisely what the meeting was about, no agenda was provided, and the format of the meeting when she initially arrived undoubtedly caused her some concern.  The respondents had put little thought into precisely what they were suggesting to the claimant at this meeting other than a very vague and generalised idea that the claimant should perform health and safety audits for an indeterminate period to allow the claimant to refamiliarise herself with the workplace in light of her further revised working hours.  Because little thought had been put into the preparation for the meeting, the information communicated to the claimant was vague and imprecise.  However the claimant did not raise any queries or seek any explanation at the meeting, nor did she show any signs of a material reaction to her perceived demotion and change of job role despite spending the rest of the day at the respondent’s premises being shown around. 

98.	 The tribunal has found that the claimant’s allegations regarding the content of the meeting, and in particular that Mr McMeekin was to take over her job and that Lynn Ryan would no longer report to her, are unsubstantiated. The tribunal does not consider that the actions of the respondent were designed to nor likely to destroy the mutual duty of trust and confidence required between employer and employee as a result of the meeting of 4 January 2005.

Conclusions on grievance procedure

99.	In view of the facts found, the tribunal is not satisfied that the grievance process conducted by Mr Milliken and Miss Watterson was a fair procedure.
   
100.	There were significant amendments made to the contemporaneous handwritten notes of the interviews generally to a form which was more sympathetic and supportive of the respondent’s position.  The tribunal finds it difficult to believe that the contemporaneous handwritten note is not a more accurate reflection of what was actually said during the interviews than a typewritten version prepared from memory some days later.  The typewritten notes were prepared by Miss Watterson.  Mr Milliken reviewed those notes but had taken no notes himself of the interview process and was unable to assist greatly in this process.
  
101.	The tribunal has also noted that it did not hear from either Lynn Ryan or Mark Glass.  However Mr Milliken and Miss Watterson did.  They had interviews with those individuals from which statements were derived.  The claimant put a substantial number of points for consideration in the grievance procedure, many of which were not addressed to the individuals who would have known the claimant best.  Both Miss Ryan and Mr Glass’s statements were significantly altered as pointed out earlier.  

102.	The system employed by Mr Milliken and Miss Watterson did not enhance the accuracy of the process.  They kept no notes or minutes of their meetings and did not conduct structured interviews with each of those that they interviewed.  They did not explore each of the claimant’s complaints with every witness even where it would have appeared appropriate. For example they did not ask Lynn Ryan if the claimant seemed to be humiliated.  They asked Miss Ryan if the claimant appeared to be annoyed.  Mr Milliken in his evidence acknowledged that this was an entirely different thing.

103.	The claimant was given no opportunity to comment on any of the material gathered by the investigatory panel before they arrived at their decision.  Whilst it is understandable that they would not perhaps have required a meeting, in view of the claimant’s stated position, there is no reason that copies of the typewritten notes of evidence could not have been provided.

104.	They made no reference to the documents available to them, particularly in relation to the claimant’s allegation of work related stress, and Mr Milliken had no regard for these documents in reaching his conclusions.
 
105.	It may have been possible for the respondents to correct the claimant’s misperception of the meeting on 4 January 2005.  Indeed in their letter to the claimant of 1 April 2005 they do confirm quite clearly that the role is of a temporary nature to allow familiarisation.  However they provide this information to the claimant in the context of an outcome to her very fully particularised grievance which does not support her on any aspect whatsoever. 

106.	It is the tribunal’s determination that the manner in which the grievance procedure was conducted was sufficient to constitute a breach of the trust and confidence the claimant was entitled to expect from her employer. The employer’s conduct of the grievance procedure was not within the range of reasonable responses to the grievance presented by the claimant. The tribunal consider that it was reasonable for the claimant to view any further appeal as without merit in the circumstances.

107.	It is clear that there is a direct causal connection between the repudiatory conduct of the respondent and the resignation of the claimant and the tribunal finds that the claimant was unfairly constructively dismissed.

Remedy

108.	The tribunal heard evidence in relation to remedy. However subsequent to hearing the parties’ oral submissions, the tribunal became aware of the Court of Appeal decision in the case of GAB Robins (UK ) Ltd v Triggs [2008] EWCA Civ 17. As this case may be relevant to the issue of compensation and neither party has had an opportunity to address the tribunal on the matter, the tribunal has not dealt with the issue of remedy. A further hearing will be arranged if required to deal with the issue.

Aggravated damages

109.	Ms Bradley, on behalf of the claimant, made an application for aggravated damages.  Aggravated damages are not applicable to unfair dismissal cases.  As no finding of discrimination was made there are no aggravated damages awardable.

Costs

110.	Ms Bradley made a further application for the claimant’s costs in relation to two matters.  The first relates to the late discovery of documents by the respondent on two occasions during the course of the tribunal hearing, creating total delays of five days.  Costs for those days are claimed at the rate of £750 +VAT per day as Counsel’s fee and a solicitor’s daily fee of £625.00 + VAT.  Ms Bradley submitted that the respondent had acted vexatiously, disruptively and unreasonably regarding the late provision of discovery.  

111.	The second application and submission made by Ms Bradley is in relation to the cross-examination of the claimant by the respondent which she contended was unnecessarily vexatious and which was protracted by reason of the necessity to re-open matters after the discoverable documents were eventually provided.  Ms Bradley submitted that for the respondent to continue to defend the claims relying on inconsistent and conflicting evidence was misconceived and that an award of costs at the top of the permissible range was appropriate.

Costs relating to discovery

112.	At the hearing on 25 September 2007 the respondent sought to introduce new documents which the respondent submitted were relevant to two narrow issues in the case that is, whether or not monitoring of certain equipment was carried out by the respondent.  As a result of that application the claimant’s representative had furnished a letter to the respondent making further requests for discoverable documentation.  The tribunal considered the applications of the parties in relation to these matters on 26 September 2007.  It appeared that the claimant had made a request for discovery in proceedings and considerable correspondence between the parties then ensued.  However, the end result of that correspondence was that no order for discovery was requested or obtained by the claimant.  On 25 September 2007 the documents which the respondent wished to produce were accepted by both parties as being relevant and having clear evidential value.  They concerned matters which were addressed in the witness statements of the claimant and of Mr McBurney.  Miss Finnegan, on behalf of the respondent, submitted that the respondent had discovered a large amount of information and had made great efforts to track down documents over a period of many years.  It may have been these documents were simply missed.  Ms Bradley, on behalf of the claimant, indicated that the respondent had been given every opportunity to address specific and general requests for discovery and that it was inappropriate to allow new documents to be put seven days into the hearing of the matter.  She pointed to the resources of the respondent firm.  It has a Human Resources Department and would have been aware of all issues throughout.  She submitted that the respondent with those resources should have been fully aware of discovery issues in this case.  As a result of these documents being found, the claimant’s representative furnished a further list of other documents which they believed were in the possession of the respondents and of which they sought discovery.

113.	The tribunal considered the representations made and considered the general principle that evidence sufficiently relevant to an issue is admissible.  It considered the overriding objective and Rule 14(2) of the Industrial Tribunals Rules of Procedure 2005.  It considered its discretion and the proper exercise of that discretion, including the tribunal’s general supervisory function and obligation to ensure a fair trial in accord with the overriding objective.  The tribunal concluded that the admission of the various documents as identified by the tribunal at that stage would not have an adverse effect on the fairness of proceedings in that the evidence was relevant and had probative weight and was not subject to any rule of exclusion.  The tribunal determined that it would be in the interests of a fair trial to admit the evidence in accordance with the overriding objective.  The tribunal however was mindful that it must ensure that the admission of the documents did not prevent any party from dealing with the claims properly and to allow them to prepare adequately for the hearing.  The tribunal determined that this could be done by allowing the parties sufficient time to deal with the evidence produced and the evidence sought at this late stage in proceedings.  The tribunal therefore adjourned the hearing to allow the parties to consider the documents, to consult and take instructions and to allow the parties sufficient time for them to be properly prepared for the hearing.  The tribunal also however indicated clearly to the respondent that they were to make a comprehensive examination of their records and to make sure that all matters which were properly discoverable were now produced so that there would be no further delay in the proceedings.  The parties agreed that a timetable for such discovery would be to have the matter adjourned until 2 October 2007.  

114.	On 2 October 2007 it was clear that a significant amount of discovery had been made available and further time was required.  In the event, the tribunal did not recommence the hearing of the substantive case until 4 October 2007.  

115.	In her application for costs, Ms Bradley pointed out that three additional bundles of discovery had been made, most of which were clearly relevant and should have been provided in accordance with earlier notices for discovery in the case.  She pointed in particular to emails that had been provided and contended that with adequate enquiries of the respondent and its employees, these documents should have been obtained at an earlier stage.  Any proper investigation would have identified these documents.

116.	Ms Finnegan in response submitted that in the interlocutory proceedings the respondent had identified to the claimant matters and requests which it regarded as too broad and requested the claimant to identify specific documents.  She said it was open to the claimant to seek orders from the tribunal which she did not do, neither did she identify specific documents in the general groups of documents she was searching for.  Ms Finnegan was unsure as to the relevance of all the documents that had now been discovered.  She did however accept that some of these documents would be relevant but this was a matter for the tribunal to decide.  Ms Finnegan pointed out that the respondent was a company which was created in December 2003, prior to which the records were owned by Galen.  Assets and personnel transferred at different times and in their exercise in examining discoverable documents the respondents have gone well above what might be expected of a corporate entity.

117.	Subsequently, at the resumed hearing of this matter, on 4 December 2007, during cross-examination of Mr McMeekin, it transpired in that evidence that Mr McMeekin kept diaries and had used these to obtain dates for the purposes of making his witness statement and providing his evidence.

118.	The diaries were produced the following day by the respondent together with work books of Mr McMeekin’s and also a book containing notes made by Mr McBurney which were relevant to the conduct of the meetings in December 2004 and January 2005.  Ms Finnegan accepted that Mr McBurney’s notes should have been discovered.  In relation to the diaries and work books, Ms Finnegan said there had not been a request for those documents.

119.	The tribunal considered that the documents in question were relevant to the issues in the case and necessary for a fair trial.  It also considered that it was appropriate for the claimant to have sufficient time to consider the documents and take legal advice.  The rest of that day was lost for hearing.

120.	The tribunal lost five hearing days as a result of the late discovery of documents.

The law

121.	Rule 40 of the Industrial Tribunals Rules of Procedure 2005 provides that a tribunal may award costs in favour of a legally represented party where on the application of a party the tribunal has postponed or adjourned a hearing or a party in conducting the proceedings has acted vexatiously, abusively, disruptively or otherwise unreasonably.  Similar provisions are contained within the 2004 Rules of Procedure.  The tribunal’s power to award costs is discretionary and the fundamental principle is that the purpose of an award of costs is to compensate the party in whose favour the order is made, and not to punish the paying party.

122.	It is clear that the respondent is responsible for the delay in this hearing by not providing full discovery and necessitated the adjournment of the hearing on two occasions.  In the circumstances of this particular case therefore the tribunal considers that it is appropriate and correct that the respondent should pay the claimant the costs of the time which was lost totalling five days at the rate claimed by the claimant at a total cost of £6,875 + VAT.

123.	In relation to the second costs application the tribunal does not consider that the respondent’s conduct of the defence of these claims was misconceived or that the respondent was vexatious in the cross-examination of the claimant and no award for costs is made in relation to these matters.

Chairman:

Date and place of hearing:	17-28 September 2007, 3-20 December 2007, 5 March 					2008, at Belfast

Date decision recorded and registered and issued to the parties: