The Tribunal reached its original decision in June 2019 and took the decision to anonymise the parties, witnesses and all other parties employed by the respondent under Rule 49 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) 2005, which were in force at the time. The claimant objected to this decision and applied for a Review. The Review upheld the original decision on anonymity. The original decision and the Review were referred to the Northern Ireland Court of Appeal.

In January 2020 the 2005 Industrial Tribunal Rules were revoked and replaced by new rules. Rule 44 of the 2020 Rules deals with anonymity and states that consideration must be given to the principle of open justice and to the Convention right of freedom of expression, as well as the Convention rights of the individuals concerned.

With the closure of the Tribunals due to Covid-19, the parties, prompted by the Tribunal, entered into negotiations and agreed that the claimant and first respondent should be named, but the second respondent and two others should remain anonymous. They failed to agree on how witnesses or others referred to in the judgment should be treated. The Tribunal went along with what the parties had agreed in relation to the claimant and the first respondent but decided the remaining witnesses and others should be named in the interests of open justice. It further ruled that, in line with Ameyaw v Pricewaterhousecooper Services Ltd (2019) UKEAT /0244/18,the Court of Appeal judgment would be published, rather than the decision at first instance.

The case itself was for constructive unfair dismissal, harassment on the grounds of age and sexual harassment.

Ms McNicholl started employment with the respondent in May 2015 when she was around 25 years old. The case revolves around allegations she made about a 51-year-old, long-standing, male employee known as ‘F’. From almost her first day of employment the claimant stated that F singled her out for special treatment – stopping by her desk for unsolicited chats and commenting on her appearance, hair and an imagined ‘bikini photoshoot’. On one occasion he printed out celebrity hairstyle pictures, made a small book and delivered it to the claimant’s desk suggesting that she try out some of the styles. He also touched her hair and referred to the respondent’s incoming post, which the claimant was responsible for opening and sorting, as her ‘fan mail’. The Tribunal accepted that he also contrived ways to ensure he always left at the same time as her so they could share a lift, and that he sent unsolicited and inappropriate emails to the claimant.

This behaviour made the claimant feel uncomfortable and she reported it to her line manager, Lisa McManus. Ms McManus took advice from her own manager, Liam Lagan and from in-house HR. At no point did either the managers or HR reference the comprehensive Bank of Ireland Harassment and Bullying Policy or their Equal Opportunities Policy. The Tribunal also noted that the joint Equality Commission for Northern Ireland (ECNI) and Labour Relations Agency (LRA) Harassment and Bullying in the Workplace Policy was in existence, but not relied on by the first respondent for best practice advice.

F was reminded of appropriate office etiquette and was told to stay away from the claimant. The claimant was informed of this approach and told that if there was any repeat of the issues, formal action would be taken. The claimant was informed by Lisa McManus and Liam Lagan that the next step would be up to her, (e.g., escalation of complaint, face to face apology, email apology, etc). The claimant advised that as F had been spoken to, if there was no repeat and a full investigation would be undertaken if there was, she was satisfied to leave it at that.

While the Tribunal accepted that the claimant had not been pressurised into agreeing to this informal action, they did conclude that the detailed harassment policy had not been explained to the claimant nor all the options within the policy outlined to her, nor was she told that F had been informally warned about similar behaviour towards a female employee in the Bangor branch.

Several months passed without incident. The claimant was disciplined herself for a series of short-term absences. The Bank of Ireland policy on this issue was followed to the letter. F then began to approach the claimant again, making conversation and finding ways to chat. Another young, female colleague told the claimant that she also felt uncomfortable with F and so the claimant approached her line manager again. The respondent enlisted the expertise of Emma Woods, an experienced investigator and HR consultant. The Tribunal believed her report to be detailed and accurate but disagreed with her assessment of the seriousness of the harassment. The claimant resigned before its outcome saying that she felt unable to “return to work for a company who let [her] down on so many occasions”. Ms Woods’ investigation was the basis for her constructive unfair dismissal claim.

The claim for constructive dismissal was dismissed by the Tribunal, not least because the claimant had booked a ‘trip of a lifetime’ to Australia with her boyfriend, just after she received the formal warning for short term absences, and months before the incident with F which prompted her second complaint. The Tribunal did not accept her evidence that she had intended to ask for a sabbatical from work, nor that Emma Woods’ second interview with her was the ‘last straw’. It was held that her resignation was made in order to go travelling, not a reaction to her treatment by the respondent.

The age discrimination claim failed as the Tribunal considered that Fs treatment of the claimant was because she was female, not because she was young. The Tribunal held that F repeatedly violated the claimant’s dignity and created an adverse working environment for her and that it was on grounds of her sex. While the tribunal accepted that the injury to the claimant’s feelings were increased as a result of the informal resolution and subsequent resumption of F’s action, they found that allegations by the claimant in relation to panic attacks and severe anxiety wrongly sought to exaggerate her feelings and increase any award.  The claimant was awarded £18,483.07 which was held to fall within the middle Vento band.

Practical Lessons

This is a lengthy judgment, running to some 90 pages in all. It’s packed with caselaw and a step-by-step approach to the application of statute, so worth a closer look. It serves as a useful guide to when, and why, a case may be anonymised - it will take more than a ‘a vague reference to a preference’ to convince a Tribunal that it’s necessary.  This case is also a cautionary tale for employers. It’s not enough to have policies, you must also ensure thorough training for HR and management, and good support throughout any process. There should also be a flow of information between managers to ensure that recurring problems are correctly addressed. The respondents are a large organisation with in-house HR support and comprehensive policies and procedures. But managers were unaware of policies and how to deal with serious allegations of harassment. There was no central way of linking allegations against F. If there had been, perhaps the claimant’s complaints would have been dealt with differently.
McNicholl-v-BankofIreland-Decision.pdf (equalityni.org)