THE INDUSTRIAL TRIBUNALS

CASE REF:	2976/11

CLAIMANT:			Colleen Coleman

RESPONDENT:		1.	Sportsbowl Ltd
2.	Jim Devine
3.	Oonagh Devine

DECISION 
The decision of the tribunal is, firstly, that the claimant did not suffer sex discrimination and, secondly, that she was not unfairly dismissed. 

Constitution of Tribunal:
Chairman:		Mrs Ó Murray
Members:		Mr D Hampton
			Mrs T Madden

Appearances:
The claimant was represented by Mr P Ferrity, Barrister-at-Law, instructed by Anderson Agnew Solicitors.

The respondents were represented by Mr T Sheridan of Peninsula Business Services.

The Claim

1.	The claimant claimed, firstly, sex discrimination in the form of victimisation and, secondly, that she was constructively dismissed.

2.	The respondent denied sex discrimination and alleged that the claimant resigned and was therefore not unfairly dismissed.

Sources of Evidence 

3.	The tribunal heard evidence from the claimant on her own behalf and heard from the following witnesses for the respondent: Jim Devine the Managing Director of the respondent company; Oonagh Devine the Manager of the respondent company; Karen Oliver, Elsa McQuillan, John Herbison, Debbie Hanna, Diane Donnelly, Linda Rainey, Stephanie Oliver and Claire McQuillan all of whom were employees of the respondent company.  The tribunal had regard to the oral evidence from the witnesses, the witness statements and the documents to which it was referred during the hearing.

Issues

4.	The following issues were before the tribunal:	

(1)	Was the claimant discriminated against on grounds of sex in the form of victimisation because she had previously raised a grievance and lodged previous claim to the industrial tribunal.

(2)	Did the victimisation take the form of a course of conduct leading ultimately to the claimant being forced to resign.

(3)	Was the claimant constructively dismissed or did she resign in response to a fundamental breach of contract in the form of a course of conduct leading to a last straw.

(4)	Was the claimant entitled to rely upon the evidence given by Mr Devine during the previous tribunal hearing, as a protected act upon which to base a victimisation claim or did absolute privilege attach to that evidence and thus preclude her relying upon that as a protected act.

(5)	Did the rule in Henderson v Henderson mean that the claimant was estopped from relying upon some or all of the allegations of detrimental treatment as these were, or should have been, dealt with as part of her previous claim to the tribunal.

 The Law

5.	The case of Western Excavating – v-  Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

(i) 	there must be a breach of contract by the employer;

(ii) 	  the breach must be sufficiently serious to justify the employee resigning;

(iii) 	the claimant must leave in response to the breach and not for some other unconnected reason; and

(iv) 	the employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise she may be deemed to have waived the breach of contract. 

6.	Under the “last straw” principle, an employee can be justified in resigning following a relatively minor incident if it is the last in a serious of acts, one or more of which, amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal.  

7.	The case of Malik [1997] 3 All ER 1 confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee.  If the employer breaches that term, it can amount to repudiation of the contract.

8.	The House of Lords decision in Shamoon -v- The Chief Constable of the Royal Ulster Constabulary 2006 UK HL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings and gives guidance to tribunals on the approach to adopt.    The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment.  It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment.  It is therefore an objective test which must be applied.  A tribunal should look at the reason for the treatment and if that reason was unconnected to the prohibited grounds alleged, then no less favourable treatment or detriment is proved

9.	The burden is on the claimant to prove that she was dismissed and that the elements for a constructive dismissal claim are present.  

10.	The respondent raised a jurisdiction issue in relation to all of the specific allegations of victimisation citing the rule in Henderson and Henderson.  This rule is a form estoppel which is based on abuse of process.  The parties referred the tribunal to relevant paragraphs in Harvey Division P1 paragraphs 1018 to 1025.01.  The key cases refer to the House of Lords decision of Johnston v Gore Wood 2002 2AC1, Chaudhary v Royal College of Surgeons 2003 ICR 1510 (CA) and Devine-Bortey v Brent London Borough 1998 IRLR 525 (CA).  The key principles relevant to this case in relation to this point are as follows:

	(1)	The onus is on the party raising the estoppel issue to persuade the court that the claim should have been raised in the previous proceedings if it was to be raised at all.  

	(2)	The tribunals should apply a broad “merits based” approach to take account of the public and private interests involved and to take account of all the facts of the case.

	(3)	The crucial question is whether in all the circumstances a party is misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before.

	(4)	It is not necessarily the case that it is an abuse of process for a claimant to bring a separate discrimination complaint in respect of matters that occurred after the institution of earlier proceedings even though they could have been raised by amendment to those proceedings.

11.	Taking account of the principles outlined, we find that the claimant could, and should, have raised the spying allegation of 20 August 2010 as part of her previous claim as this alleged act pre-dated the lodgement of her tribunal claim on 31 August 2010.  The same applies to the allegation raised by the claimant about behaviour on 2 and 19 June 2010.

12.	We do not accept the respondents’ submission that the allegations post-dating the lodgement of the tribunal claim on 31 August 2010 cannot be aired before this tribunal.  A claimant who alleges detrimental treatment after she lodges tribunal proceedings has two choices: she can either apply to amend her proceedings to include the later acts as part of that case or she can lodge fresh proceedings.  The previous claim related to the alleged acts of a co-worker and the investigation into the claimant’s complaint about that worker’s acts by the Devines.  The claimant’s claim before this tribunal related to an alleged course of conduct which culminated in the claimant’s alleged dismissal.  In the circumstances we do not regard it as an abuse of process for the claimant to have issued a second set of proceedings and we therefore find that we have jurisdiction to hear the claimant’s claims of adverse treatment following the lodgement of the claim form on 31 August 2010.

13.	The respondent invoked the doctrine of absolute privilege in respect of the comments made by Mr Devine in the course of his evidence during the hearing of the previous claim on 5 and 6 September 2011.  We were referred to the case of Heath v The Commissioner of Police for the Metropolis 2005 IRLR 270 (CA).  That decision confirms that the rule of absolute immunity from suit attaches to judicial proceedings including employment tribunals.  

		“The absolute immunity from suit is a core immunity which is critical to the integrity and effectiveness of our judicial system, and which, save for a few well defined exceptions … applies to all forms of collateral action however worthy the claim and however much it may be in the public interest to ventilate it.”  (Paragraph 52)

14.	The exceptions referred to are suits for malicious prosecution, for perjury and for contempt of court.

15.	The wide scope of the immunity is illustrated in the recent case of Parmar v East Leicester Medical Practice 2011 IRLR 641 EAT where Mr Justice Underhill summarises the position as follows:

		“A witness enjoys absolute immunity from any action brought on the basis that his or her evidence is false, malicious or careless. …  The immunity is absolute and does not, where it applies, involve any exercise of discretion by the court or tribunal.  It is extended as a matter of public policy in order to ensure that witnesses are able to give the evidence that they ought to give and thus to participate in the administration of justice without fear of being subjected to subsequent legal liability or harassment. Iit is recognised that the immunity may sometimes benefit dishonest or malicious witnesses but that is a price that has to be paid.” (Paragraph 4)

16.	The authorities are clear that this doctrine applies to tribunal proceedings.  

17.	The evidence given by Mr Devine in the first tribunal hearing in response to a question in cross-examination about the claimant’s motivation for bringing the first claim is therefore covered by the judicial proceedings immunity rule.  The effect of this is that the claimant cannot use those comments to found any subsequent claim.  In our view this encompasses both her discrimination claim and her claim for fundamental breach of contract leading to unfair dismissal.

Findings of Fact and Conclusions

18.	The tribunal considered carefully the demeanour of the witnesses in assessing their veracity and considered carefully the statements and documents when reaching the following findings of fact.  The tribunal considered the submissions of both sides and took account of all the evidence in reaching the following facts and conclusions having applied the law to the facts found.   

19.	The claimant relied on two protected acts for the victimisation claim as follows:

	(1)	The raising of a grievance on 9 June 2010 in relation to previous adverse treatment by another member of staff.  This adverse treatment formed the subject of the claimant’s previous claim.

	(2)	The presentation of a claim for discrimination to the tribunal on 31 August 2010 in relation to the adverse acts referred to at sub-paragraph (1) above.

20.	The claimant’s principal allegation was that, after she had raised the grievance and lodged her tribunal claim, the attitude of Oonagh Devine, in particular, and of Jim Devine altered towards her.  The claimant alleged that Oonagh Devine bullied and harassed her on an ongoing basis from June 2010 until her resignation on 
	7 September 2011.  The claimant further alleged that Mr Devine ignored her and ‘blanked’ her on an ongoing basis.  The claimant also alleged that she was “made to feel invisible” and that no-one spoke to her during that period and that she frequently was distressed and used to go home and cry.  The claimant cited several specific incidents to illustrate the alleged ongoing adverse atmosphere and treatment.

21.	The respondent in the form of Mr Devine and Miss Devine (and supported by their witnesses) denied that the claimant was treated differently and denied that she was excluded or made to feel invisible or unwelcome.

22.	The respondents’ business involved amongst other things a restaurant and play area for children where children’s parties could be held.  The claimant was initially employed as a waitress in the restaurant and, at the relevant time for these proceedings, was employed as an assistant in the Tumble Towers play area which involved supervising children at play.

23.	We found the claimant’s evidence to be unsatisfactory and unreliable in several key respects.  Specifically we did not accept her interpretation and account of several specific events as detailed below.  Because of this, where there was a conflict in evidence between the claimant and Oonagh or Jim Devine in particular, we preferred the evidence of the Devines as we found that the claimant did not discharge the burden of proving the relevant facts.

24.	Mr Ferrity submitted that the evidence of the employees was rendered valueless because of the fact that their statements were prepared by the respondents’ representative following a ‘question and answer session’ conducted by Miss Devine with each employee.  We do not accept that the statements were rendered valueless however we do accept that the mode of preparation of the statements is a factor in our assessment of the veracity of witnesses.  We can see how young employees in particular could feel under pressure to agree with management when faced with their boss asking the question:  “Did you ever see me bully or harass X?”.  We did not assess Miss Devine to be an overbearing or domineering type of person but it remains the case that there could have been some element of pressure felt by the employees being questioned in this way.

25.	Nevertheless we found the employees to be consistent and not nervous in any way about standing over their statements.  In particular we found Diane Donnelly to be an impressive witness.  Miss Donnelly recounted an incident (which was agreed by the claimant to have occurred) whereby both women were discussing personal matters in front of the children they where supervising and this led to Miss Devine calling them both into the office to admonish them.  Miss Donnelly accepted that they were justifiably ticked off and denied that this amounted to humiliating behaviour by Miss Devine.  This was an incident relied upon by the claimant to support her case that she was singled out for detrimental treatment by Miss Devine.  Given that both women were treated the same we do not accept that this was detrimental treatment of the claimant.  Indeed it is one illustration of the claimant’s unjustified feeling of persecution.

26.	We also found Claire McQuillan to be an impressive witness.  She left the respondents’ employ in January 2011 and, whilst her sister continues to be employed by the respondent, we did not find her evidence tainted by any sense of loyalty or compulsion to support the respondent.  The claimant stated in evidence that she had always got on very well with Miss McQuillan and there was no evidence that she had any ulterior motive in supporting the respondents’ denial of the claimant’s case.  One of the claimant’s allegations was that Miss Devine had other staff spy on her in August 2010.  Miss McQuillan was the Assistant Manager and was asked to keep an eye on the claimant and the co-worker who was alleged to have harassed her.  This occurred in June 2010.  We regard it as legitimate of Miss Devine (who was going on holiday) to ask Miss McQuillan to keep an eye on the situation given the impending tribunal proceedings as it was clearly important to ensure that nothing further occurred between the two employees.  We do not accept therefore that this was an example of the claimant being treated detrimentally quite apart from any legal argument in relation to whether the claimant could use this incident as part of the case before us.

27.	The claimant in her statement alleged that a few months after her successful claim to the tribunal in September 2011, a story appeared in the Sunday Life newspaper accompanied by a photograph of the claimant which reported on that case.  The claimant alleged that the Devines were behind the publication of that story.  At hearing before us however the claimant resiled from this and stated that she was not blaming the Devines for the story appearing but alleged that the photograph was taken by someone without her permission from her Faceook page.  She stopped short of accusing the Devines of doing this.  This is an example of the claimant making an implausible allegation and then changing her story.  This tainted her evidence generally for us.  We find it incredible that the claimant could ever have thought that the Devines would seek to have a newspaper publish a story about them having discriminated against an employee.  The obvious thing for an employer to do in that circumstance is to shy away from publicity.  We find it surprising that the claimant could ever have believed that this was another way for the respondent to “make her look small” as she alleged in her claim form.

28.	The claimant alleged that she was forced to go to Fire Safety Training even though she had had such training in her other job for a supermarket.  We accept the respondents’ evidence that it was very important that all staff go on Fire Training and that they could not accept training with another employer as being compliant with that requirement.  We do not accept the claimant’s case on this point as it appears that all staff had to go on the Fire Safety Training.  The fact that the respondent insisted that the claimant attend their training did not amount to a detriment in this case.  

29.	The claimant alleged that she repeatedly raised health and safety concerns, that these where ignored, and that this was part of the pattern of ignoring her generally.  An example of this was when the claimant reported a damaged step in one of the play areas on 5 February 2011.  After a period, steps were taken to fix the damage and the claimant alleged that Miss Devine told another member of staff that the claimant was a troublemaker and had done the damage to the step herself.  The claimant did not elaborate on this until she was asked to do so by our questions at the hearing.  The claimant then alleged that Miss Devine told that member of staff that it was funny there are only problems when Colleen came on duty.  Both Miss Devine and the member of staff Miss Oliver denied that this was said.  Even if this was said we find it surprising that the claimant would interpret this as an accusation that she had done the damage herself.  The damage comprised a piece of foam that had been cut and would have involved the claimant taking a knife or pair of scissors to cut it.  We do not accept the claimant’s evidence on this as, if she really believed that she was being accused of damaging the step in this way, she would have reacted at the time and would have challenged Miss Devine on this.  

30.	The claimant alleged that on 3 March 2011 she refused to let an adult male into one of the play areas to take photographs.  The duty manager overruled her and let the man (whom he knew to be a parent) in to take photographs.  The duty manager was later admonished by Miss Devine for failing to follow company policy that no adult should be allowed into the play area.  Despite this, the claimant took Miss Devine’s reaction as criticism of her.  We do not accept the claimant’s point on this and regard this as another example of the claimant being over-sensitive and perceiving criticism where there was none.  The duty manager received a warning and we accept that Miss Devine told the claimant that she was right not to let the adult in.

31.	The claimant and other members of staff pointed out a hazard in one of the play areas where there was a sink which could constitute a hazard if someone tripped and hit it.  Some action was taken by the respondent soon after this was raised by the claimant and subsequently a child was injured on 13 March.  The claimant wrote on 13 March expressing her concern that she had raised this issue and she received a response from Miss Devine by letter of 14 March 2011.  The claimant sought to characterise the response from Miss Devine as detrimental to her.  We do not accept the claimant’s point on this.  Some action was taken (albeit that it was inadequate) following the claimant’s initial raising of the issue.  Miss Devine’s response to the claimant’s letter commended the claimant for having raised the matter and we do not find her response to have been a detrimental act.

32.	The claimant alleged that she was effectively accused of stealing chocolate mice on 25 June 2011.  The claimant’s case on this was that there was a shortage of sweets for party bags and when this was brought to the attention of Miss Devine and Miss Devine then asked the claimant to check in the store as four boxes had been delivered the previous week.  Despite this only one box of chocolate mice was available and it later transpired that they had all been used in other party bags.  The height of the claimant’s point on this was, that the fact that Miss Devine asked her to check how many boxes there were, (as she believed there should be four in the store) made the claimant perceive this to be an accusation that she (the claimant) had stolen the other boxes.  We find it incredible that the claimant would put that interpretation on the encounter she had with Miss Devine.  We accept entirely Miss Devine’s point that she at no point believed or accused the claimant of having taken boxes of chocolate mice.

33.	The incident with Diane Donnelly whereby the claimant and she were chatting about personal matters after the claimant had attended Miss Donnelly’s 21st birthday party does not fit in with the picture painted by the claimant of her being ostracised by everyone and treated as invisible.  In contrast it lends weight to the respondents’ case which was that the claimant was not treated differently or detrimentally because of her previous case.

34.	The claimant went off sick on 25 August 2011 and did not return to work before her resignation on 7 September 2011.

35.	The claimant alleged that when she rang in to say that she was sick and stated that a sick line was on its way, she was thereafter pestered that day by Elsa McQuillan who accused her of not being sick at all.  We accept Miss McQuillan’s evidence that she had to ring the claimant to ask for the start date of her two-week line so that she could fill in the staff rotas because she was afraid of the claimant being left off the rota.  The height of the claimant’s case in this was that she was phoned three times by Miss McQuillan who could not get speaking to her on one of the occasions but did speak to her twice.  We were shown phone records from the respondent which showed one phone call made lasting 29 seconds on the relevant date.  We accept Mr Ferrity’s point that the phone records presented do not necessarily prove that only one phone call was made.  However in assessing the veracity of Miss McQuillan and Mrs Coleman on this point we take into account the claimant’s unreliability and lack of credibility on other points in our decision to accept the evidence of Miss McQuillan.  We note that the phone call which appears on the record is very brief and this supports Miss McQuillan’s point which was that all that she was doing was that she was checking dates.  Miss McQuillan was a very junior member of staff and we do not believe that she was engaged in pestering the claimant or in querying her sickness.

36.	The claimant resigned by letter of 7 September 2011.  She had been off on sick leave from 25 August 2011 and had attended her tribunal hearing on 5 and 6 September 2011.  Whilst Mr Ferrity, in opening the case, referred to the evidence of Mr Devine during the case on 5 September 2011 as the last straw, the claimant did not actually give evidence in her witness statement or in oral evidence that that was the last straw which led her to resign.  When pressed by the chairman twice during the panel questions as to what was it that led her to leave, the claimant said that the reason she left was because of the atmosphere and because there was no-one to talk to.  There was no evidence before us that it was the comments of Mr Devine during the hearing that constituted the last straw leading to the claimant resigning.  

37.	We are therefore not clear as to what constituted the last straw event.  It is for the claimant to show that she resigned in reaction to a last straw and we are not satisfied that she has given evidence of a last straw event.  In addition we note that the claimant was out of the workplace from 25 August 2011 so she was therefore away from the alleged atmosphere.  Whilst she was on sick leave, she was sufficiently fit to give evidence and be engaged in her tribunal hearing and we therefore do not accept that the claimant resigned sufficiently close to any last straw event which occurred on or before 25 August 2011.  Of the major allegations made by the claimant none of them were close in time to her resignation.

38.	It is for the claimant to prove that she was dismissed rather than that she resigned.  We are not satisfied that she has discharged that burden and we therefore find that she resigned and was not dismissed.  Her unfair dismissal claim therefore failed.

39.	As we have not accepted the claimant’s claim in relation to this specific key events alleged by her as outlined above, we do not accept her case on the other matters alleged.  Specifically we do not accept that the claimant was subjected to an ongoing atmosphere of bullying and harassment by Miss Devine and Mr Devine and others nor do we accept that the claimant was ignored and ‘blanked’.  

40.	The claimant claimed that Miss Devine, as an act of victimisation, refused to give her rotas to fit in with the shifts she worked in her other job in a supermarket.  The claimant stated that she had no problem getting rotas to suit her during the time that Claire McQuillan was the manager but that this changed when Claire McQuillan left in January 2011 and Miss Devine used this as a way of victimising her.  We do not accept the claimant’s case on this.  If Miss Devine had been intent on treating the claimant badly in this way she could have done this at any point before Miss McQuillan left.  We accept the evidence of Miss Devine that the respondent was flexible with the claimant and the other staff in relation to fitting in rotas round their other jobs.  

41.	The claimant alleged for the first time in tribunal that the reference provided by the respondents after she resigned was inaccurate in that it stated that she had received “Quadz” training.  When challenged on this, the claimant changed her story to say that the training provided was inadequate.  This tainted her credibility and reliability for us.

42.	The claimant raised a grievance on 13 May 2011 and received a letter from KM who was the assistant manager in the Glengormley Branch of the respondents’ business, to invite the claimant to a grievance hearing to discuss the grievances she had raised.  The claimant declined to attend the meeting stating that her letter did not amount to a grievance but was merely her way of “expressing herself”. In evidence to us the claimant stated that she did not want to go to the hearing because it would serve no purpose and she did not know KM.  We do not accept this as a good reason for not engaging with the grievance process which the respondents were trying to provide to the claimant.  Essentially the claimant did not allow the respondent to deal with issues that she raised and this does not sit well with the claimant’s claim to tribunal that she kept raising issues and the respondent would not deal with them.

43.	The claimant made other specific allegations which we do not intend to go into in detail given that we accept the respondents’ account of events following our assessment of the reliability of the witnesses on other key matters.  

44.    In cross-examination Mr Devine candidly accepted that he was not particularly happy that he had been found liable for sex discrimination in the previous claim.  Whatever might be the feelings of an employer who has been found to have discriminated against an employee, a victimisation claim requires more than simply annoyance on the part of an unsuccessful employer: a victimisation claim requires detrimental treatment of an employee due to a protected act.  The fact that Mr Devine was annoyed was no more than evidence potentially supporting the claimant’s case that detrimental treatment occurred.  However in this case we reject the claimant’s claim that detrimental treatment occurred for the reasons given above.

45.	We wish to make clear that we are not accepting the respondents’ case simply because of the number of witnesses brought forward by the respondent.  We are fully aware that there are cases where a claimant can give evidence on her own and be accepted even when numerous witnesses are ranged against her.

46.	The evidence of several of the respondents’ witnesses was lessened in value because of the way those statements were prepared.  The fact that questions were prepared by the representative and Miss Devine, was not necessarily the best way to elicit the witnesses’ statements.  One possible option was to ask the witnesses to write out their own statements.  However we would not wish to be prescriptive in any way as to the way evidence is gathered from witnesses particularly in small companies where there may be a limited number of people in managerial posts who would be able to take such evidence and where a representative may not be engaged.  

47.	In summary the claimant’s claim of sex discrimination by way of victimisation fails because she has failed to prove facts from which we could conclude that discrimination occurred.

48.	The claim of constructive dismissal fails because the claimant has failed to prove that she was dismissed.  

49.	The claimant’s claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing:  18-21 June, Belfast.	

Date decision recorded in register and issued to parties: