Introduction

Hello and welcome to our case of the week. This week we’re in Northern Ireland looking at a discrimination case. The case demonstrates that Tribunal’s aren’t afraid to award the maximum amount for injury to feelings in instances of particularly blatant discrimination.

Facts

Mr. Breslin (the Claimant) and Ms. Loughry (the Respondent) had known each other for three years prior to his engagement as her Personal Assistant in March 2016.

The Claimant was a devout Catholic with significant personal issues and had spent the last few years unemployed, claiming benefits. He viewed the role with the Respondent as a significant opportunity for personal growth. He also lived on premises provided by her.

Soon after beginning the role, the Claimant noticed the Respondent engaging in strange behaviour. The day that he signed off benefits (owing to his newfound financial security) he overheard the Respondent saying, “I’ve got that b****** where I want him now”. Upon realising the Claimant was in the room, the Respondent put the phone down and looked embarrassed.

What followed was described by the Tribunal as a “blatant and corrosive campaign of conduct”. It found that the Respondent would frequently let herself into the Claimant’s accommodation, interfere with his religious statues and personal belongings, and then send him photographs of what she had done. These included:

  • a photograph of the Virgin Mary lying on the floor of the claimant’s house, along with his personal documents removed from a drawer;
  • a photograph of the Virgin Mary statue with a cigarette in its arms and a glass of whiskey in front of it;
  • a photograph of a teddy bear lying on top of the Virgin Mary, accompanied by a text message saying “the puppet you worship is no longer a virgin”;
  • a photograph of a statue of Padre Pio (a Roman Catholic Saint) lying on top of the Virgin Mary in a clearly sexual way.’

After the whisky incident, the Claimant asked the Respondent to stop coming into his home. She replied, “I pay your f****** wages, not some make believe puppet.” The Claimant also maintained that the Respondent repeatedly berated him because he was male, and often told him that “all men are bastards”.

On 24 June 2016, the Claimant received a text saying, “you are f***** Paddy, get back up to the old house, you will need to sign back on.” He replied, “Am I sacked or something?” to which she responded “Yes.” He asked why, maintaining that he had done nothing wrong, and she replied” Yes u did now go away”. The Claimant did not report for work the following Monday. He subsequently put in a claim for religious and sex discrimination.

The Tribunal’s decision

The Respondent argued that the abovementioned occurrences were ‘just a bit of banter between friends’ and were unrelated to either of his protected characteristics. She said his dismissal was more attributable to a redundancy situation, as there “simply wasn’t any work for him to do”.

The Tribunal found that “the individual acts regarding the religious statues were, in the absence of credible explanation, associated with the claimant’s religious beliefs” and the Claimant’s allegations of sex discrimination were also well-founded compared to the unreliable and inconsistent evidence of the Respondent.

It concluded: “[The dismissal] flowed from and was inextricably linked to both characteristics and was simply an extension of her less favourable treatment of him. As such … his dismissal was a detriment for the purposes of the relevant discrimination legislation.” It awarded the Claimant £30,000 for injury to feelings.

Appeal

The Respondent appealed on two points:

  1. There was insufficient evidence to demonstrate the dismissal was on the grounds of either protected characteristic; and
  2. The award of £30,000 for injury to feelings was manifestly excessive.

In relation to the first point, the Court of Appeal in Northern Ireland highlighted that a Claimant must only prove that the less than favourable treatment could have occurred on the grounds of a protected characteristic for the burden of proof to shift to the Respondent, who must then prove that it did not.

The Court considered that the Tribunal had satisfied this evidential threshold and were entitled to find direct discrimination in the absence of any plausible alternative raised by the Respondent.

In relation to the second point, although a very high figure under the Vento bands, the Court noted the deliberate and provocative nature of the discrimination faced by the Claimant. They agreed with the Tribunal’s finding that “This case properly falls at the upper end of the scale. It is difficult to conceive of a more blatant and corrosive campaign of conduct conducted by the respondent, who additionally involved other members of staff in the humiliation of the claimant, in his house and at work.”

The Court therefore dismissed both the Respondent’s appeals.

Takeaway point

Although the behaviour of the Respondent was vile, this case serves as a reminder to always keep protected characteristics in mind. Any action that relates to an employee’s protected characteristic should be properly and carefully thought over. The case also shows us that Tribunal’s will award the upper end of the Vento scale if they consider it appropriate, although this is generally reserved for blatant, deliberate, and particularly harmful acts of discrimination.