The deceased was employed by the Belfast Bible college as a part-time receptionist from 2003 until 2016.  She died in February 2017 and the proceedings were brought by her husband as personal representative.   The claims were vast, comprising direct discrimination for religious and/or political belief and age, indirect discrimination on grounds of sex as well as victimisation.

The Court of Appeal acknowledged the length of the claims brought against the respondents but specifically pointed to an excerpt which stated that the claimant was the only catholic employee at the college throughout her tenure and that the issues only arose when Mr McCormick was appointed as Director of Operations in 2009.    The claimant alleged that he was involved in a series of discriminatory acts against the claimant and it related to his position as an elder in a Presbyterian Church in Newtownards which was known for being on the ‘far right’ of the Presbyterian Church.   This came to a head when the claimant was selected for redundancy in November 2015 and she did not return to work from that point.    There was also a victimisation claim brought on foot of a failure to pay the Claimant’s pay into her account in February 2016.  The respondent stated that this was due to a genuine error in payroll rather than anything to do with a letter sent intimating a claim or that proceedings were lodged.  There were also other issues relating to pay and failure to provide an agreed reference.

In terms of the specific allegations of discrimination, the Court of Appeal outlined that the factual findings at the Tribunal did not find any specific claims of direct age or political discrimination.  Instead, it was based upon the general assumption that Mr McCormick was ‘nasty’ because of his evangelical Christian beliefs compared to the claimant’s Catholicism.  Accordingly, the discrimination claims were dismissed with the Tribunal finding that there was no evidence to show less favourable treatment than the hypothetical evangelical Protestant comparator.  Furthermore, there was no discrimination due to any lack of engagement in positive discrimination to recruit more Roman Catholics.

The appeal only centred upon the victimisation claim.   This was on the basis that the Tribunal had failed to apply the correct legal test, there were inadequate reasons and procedural unfairness.   The Court held that on the legal test that with victimisation it may involve both conscious or subconscious bias.  However, on subconscious bias it did not arise in the facts and for that reason the Tribunal had considered it and applied the correct legal test.  On the need to provide reasons, the Court of Appeal put it very succinctly in stating that:

‘…the essence of the legal test is whether the judicial text conveys adequately to the parties why they have won or lost and includes a sufficient statement of the reasoning to enable an appellate court…to determine whether the first instance court has made an error of law.’

Accordingly, the appeal on this ground was dismissed as the Tribunal decision had covered the victimisation claim in a clear and comprehensible way.  The final grounds of appeal on victimisation were regarded as being a combination of bare assertion and speculation and were therefore dismissed.

Practical Lessons

This case demonstrates a more streamlined approach to the appeal with the Court of Appeal opting for a case run on written submissions rather than having an oral hearing.   The case gave rise to a number of discrimination issues but was focused on victimisation in the appeal.    This clearly demonstrated that there has to be a strong evidential basis for victimisation.  The fact the Tribunal had correctly directed itself on the applicable law under the Sex Discrimination Order and the Age Discrimination Regulations meant that the allegations of failing to apply the law correctly were unsubstantiated.
https://www.judiciaryni.uk/judicial-decisions/2020-nica-17