Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant has been employed by the respondent since 1994 as a postdoctoral research scientist. The issues arose in relation to the relationship that the claimant had with another colleague, Ms. A. They had a good professional working relationship until 2016. In April 2016, Ms A submitted a grievance stating that the claimant sexually harassed her. This related to leaving a note a gift on her desk as well as an alleged incident taking place in the claimant’s car.
The grievance was not upheld and Ms A appealed. The claimant issued his own grievance at the same time. The claimant’s grievance related to the request that he work away from the office and the lack of communication. That aspect was upheld whereas other elements were dismissed. Ms A’s appeal was upheld in part. Namely, that it found that the claimant had attempted to hug and kiss Ms A when they were in a car but that it was not forceful or aggressive. The grievance panel found that it was not sexual harassment taking into account the claimant’s view that he treated Ms A like a daughter.
In relation to how the claimant was treated during the grievance process and the subsequent requirement for him to undertake equality and diversity training he brought a claim citing disability discrimination and sex discrimination.
Outcome:
The Tribunal, at first instance, dismissed all of the claims. For the disability discrimination claim the claimant was found not to be disabled within the meaning of Section 6 of the Equality Act 2010. This was on the basis of a Transient Ischaemic Attack in 2012 but there was no subsequent attack since. As a result, it was not clear how it affected the claimant’s day-to-day activities. This position remained at the EAT.
In terms of the sex discrimination, the difficulty arose on the basis that the Tribunal stated that the grievance committee held that the claimant committed an act of harassment. This was a factual mistake and it had relied upon this in reaching the decision that it was not discrimination when he was required to undertake equality and diversity training (which contained aspects relating to harassment). It was not possible for the EAT to determine what the result would have been but held that the case should be remitted to allow for a fresh decision to be made on that point.
Practical Guidance for Employers:
This case demonstrates the importance in ensuring that the facts are fully understood by the Tribunal. In this case, it was undisputed that the grievance committed had not found the claimant to have committed an act of harassment. Yet the Tribunal stated it had – this tarnished the decision. This is a difficult one for the parties who have to deal with the ramifications of this decision but it is important of ensuring that the agreed factual issues are clear before the Tribunal.
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