Sean Paul Bailey -v- Northern Ireland Fire and Rescue Service (Case Ref: 1699/08)

Discrimination against part-time workers - objective justification

Regarded as a lead case in respect of a number of cases against the Respondent, the Claimant was a part-time (‘retained’) Fire Fighter. He was deemed ineligible for a full-time vacancy which the Respondent had available in Antrim because the Service had decided that, although the vacancy was to be filled internally, it was to be trawled only among full-time Fire Fighters. The Claimant claimed that the Respondent had unlawfully discriminated against him, contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.

The Respondent accepted that within the meaning of Regulation 5, the Claimant was treated less favourably than a comparable full-time worker in that the Claimant was subjected to a ‘detriment’ on the ground that he was a part time worker. The issue to be determined was whether or not the relevant treatment in this case was justified on objective grounds and as such whether the treatment amounted to unlawful discrimination.

The Respondent sought to justify the exclusion of part-timers from the relevant internal trawl by reference to the Service’s obligation to promote equality of opportunity within its workforce and further that the way in which the relevant posts were filled allowed the respondent to avoid redundancies, it being a general obligation on the part of employers to try to avoid redundancies by offering alternative work where possible.

In seeking to justify the exclusion, the Respondent submitted that the recruitment of full-time Fire Fighters is carried out approximately every 18 months to two years by public advertisement, allowing access to the competition by all those interested whereas, part-time Fire Fighters are recruited by reference to how close they live/work to the nearest station (they must be within 5 minutes) and as a result, there are many fewer candidates for the position of retained or part-time Fire Fighter because the number of people who can comply with the job requirements, including the requirement to be available for work and to be within the required response area, is severely limited.

The Respondent submitted that it would have been inappropriate, in light of the Service’s obligation to promote equality of opportunity, within its workforce, for the Service to have recruited internally from among its part-timers and that it was not appropriate to confer recruitment advantages upon people from a relatively unrepresentative pool.

The Claimant contended that the Respondent ought to have included part-timers and full-timers within the internal trawl.

The Tribunal concluded that in reality, nobody would have been at risk of redundancy if the posts had been filled on the basis of a full internal trawl (as distinct from being filled on the basis of an internal trawl which was limited to full-timers). Accordingly, the Tribunal rejected the proposition that the avoidance of redundancies provided a justification for the restriction of the internal trawl to full-timers.

Redundancy avoidance did not provide justification either because the restriction was not necessary to achieve that particular objective, or because the restriction (of the internal trawl to full-timers) was not an appropriate and proportionate way to achieve that objective.

The Tribunal did however accept that the alternative basis of justification (the ‘equal opportunities’ justification) was an adequate justification for the discriminatory effect of the exclusion of part-timers from the relevant internal trawl and in so doing noted the following:

* part-timers are recruited from a narrow pool (mainly because of the requirement that they must be available at very short notice to deal with fire duties, and because of the requirement that they must live within five minutes of the nearest station); in contrast, the pool of candidates from which full-time firefighters are recruited is significantly more representative of Northern Ireland as a whole, especially in terms of religious/political community backgrounds.

* Because of the requirement that a retained part-time firefighter must make himself/herself available at very short notice, on an entirely irregular basis, the role of part-time firefighter is likely to have been significantly less attractive to women with caring responsibilities.

* In terms of objectivity, transparency and documentation, the process by which part-time retained firefighters are recruited is much inferior to the process by which the great majority of full-timers have been recruited.

* The Respondent’s decision to pursue a restricted (as distinct from a full) internal trawl was based on the respondent’s contention that it was appropriate to do so in light of the Service’s obligation to promote equality of opportunity between men and women in connection with its workforce and in the Tribunal’s view, this is an important and legitimate aim.

* The Tribunal shared the Claimant’s scepticism as to whether the restriction of the internal trawl to full-timers would ever be likely, in reality, to have any significant impact on the general composition of the workforce but the extension of the trawl to cover part-timers would have been a retrograde step in terms of gender equality of opportunity. The restriction of the trawl to full-timers at least offered the potential to make more opportunities available to women.

* The practical equality of opportunity significance of this policy (the restriction of the internal trawl to full-timers) was obvious in the context of religious/political opinion equality of opportunity. Because of the sectarian geography of Northern Ireland, a requirement that retained firefighters must live within five minutes of a particular fire station is likely, in practice, to restrict the availability of such posts to Protestants mainly (in some areas) or to Roman Catholics mainly (in some other areas). On the other hand, external trawls (which are the sole means by which full-timers become employed in the Service) are carried out on a Northern Ireland-wide basis, and they are potentially open to everybody, regardless of their religious beliefs/political opinion

Satisfied that objective justification had been proven in this case, the Tribunal dismissed the claim of unlawful discrimination.


Linsey Blair -v- Impact Marcom Limited Case Ref 7019/09

Statutory dismissal procedures - flaws and defences

Instead of the claimant receiving a Step 1 letter, a “preliminary meeting” was held with the claimant – which was aimed at providing the information required to be provided by the letter required by Step 1. There were also two other meetings held. In the view of the tribunal, the minutes of the second meeting, which were provided to the claimant prior to the third meeting, could be viewed as the respondent complying with the obligations imposed by Step 1 of the Statutory Dismissal Procedure. The third meeting in the view of the tribunal did comply with the obligations imposed by Step 2 in that the claimant was provided with information as to why she was selected for redundancy. Accordingly the tribunal concluded that the respondent had in essence complied with the Statutory Dismissal Procedures.

There were deficiencies in the procedure adopted by the respondent. There was no genuine consultation regarding the redundancy as the decision had been taken prior to the claimant being notified that she was at risk of same. No other employee was included in the pool of employees under consideration for redundancy when the claimant was advised that she was at risk. Mr Brea selected the claimant for redundancy and then delegated the task of communicating same to the claimant. Later he was the person who held the claimant’s appeal against her dismissal on the grounds of redundancy. There were other directors who could have carried out that appeal function. The Tribunal noted that the procedure adopted flouted all the rules of natural justice.

The tribunal was however satisfied that the posts the claimant suggested as alternative posts were not posts that were “substantially similar” to the post she held and having considered all the evidence was equally satisfied that although the process was procedurally unfair, a change of appellate authority would have made no difference to the outcome. In the tribunal’s view, the claimant would still have been dismissed if the respondent had arranged and conducted an appeal hearing by a fair and impartial member of management who had not been involved in the initial decision. The tribunal was therefore satisfied that the dismissal was not unfair and the claim was dismissed.


Gillian Robinson -v- Frying Squad (Franchising) Limited Case Refs: 6764/09 & 7298/09

Pregnancy discrimination - high award reflects offensive remarks by respondent

The Tribunal unanimously held that the claimant was discriminated against by the respondent on the grounds of her sex, pregnancy, maternity leave, that the claimant suffered harassment from the respondent and was constructively dismissed by the respondent. The respondent was ordered to pay to the claimant the sum of £7,476.22 by way of compensation for constructive dismissal and £19,704.33 for compensation for the various heads of sex discrimination making a total of £27,180.55.

The Tribunal considered that given the course of conduct taken as a whole, there was a fundamental breach of the claimant’s contract of employment which was specifically a breach of the implied term of mutual trust and confidence. The claimant’s previously harmonious working relationship with Mr Neill had suddenly deteriorated and disintegrated. Mr Neill was not able to provide any explanation at all as to why this would be the case and given the factual situations and the times when they occurred, the tribunal considered that the reason for the disintegration was the claimant’s pregnancy and that the dismissal was automatically unfair as the reason that she was entitled to treat herself as constructively dismissed was that she had been unfairly treated by Mr Neill on the grounds of her pregnancy. The tribunal also noted that no pregnancy risk assessment was carried out until the day after the claimant had gone on sickness leave.

The Tribunal considered that the injury to feelings in this case had been substantial and that it had arisen under a number of heads of claim. The tribunal considered that the respondent has breached Article 3(1)(a), Article 5A, Article 6A and Article 8(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976. As such, and particularly in light of Mr Neill’s highly unpleasant comment “in case the arse falls out of things – sorry to be so negative” while nodding at the claimant’s stomach, made in the knowledge of the claimant’s previous recent miscarriage, the tribunal awarded the sum of £18,000 plus interest to reflect compensation for all these heads of claim.

As a result of the respondent’s failure to enter a response to the claimant’s claim for constructive dismissal, it was necessary for this to be entered on the first day of hearing. The tribunal rejected the application and it was necessary to hold a review under Rule 34 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Consequently, the hearing of this matter was elongated by one day and the tribunal awarded costs in respect of the claimant’s extra disbursements of a total of £28.80 and the sum of £13.80 in respect of the Claimant’s Representatives car parking for the day wasted.