THE INDUSTRIAL TRIBUNALS

CASE REF:	1229/05

CLAIMANT:			Cathie McKimm	

RESPONDENT:		Down District Council	

DECISION ON AN APPLICATION FOR REVIEW

The unanimous decision of the tribunal is as follows:

(A)	This is an application for review of a decision which was issued on 30 July 2008 (“the Decision”), whereby this tribunal decided that the respondent was legally liable in respect of certain specified acts of unlawful victimisation discrimination.
(B)	The application for review is made on the argument that certain factual determinations of the tribunal were (in the legal sense) perverse and that, accordingly, the tribunal can and should review and revoke its decision.
(C)	In the context of this review application, we have assumed (but not decided) that, in the circumstances of this case, the tribunal could and should review its decision in response to this review application.
(D)	Having made those assumptions in favour of the respondent, the tribunal proceeded to review the relevant determinations.  
(E)	The outcome of that review is that we have confirmed the original decision.  

Constitution of tribunal:
Chairman:		Mr P Buggy
Members:		Mrs T Hughes
			Mr J Nicholl

Appearances:
The claimant appeared in person.
The respondent was represented by Mr D McAughey, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.

REASONS
1.	In the Decision, the tribunal made the following determinations:

“The claimant was subjected to the following acts of unlawful victimisation discrimination:

(1)	During the course of a telephone conversation in November 2004, Ms Sharon O’Connor engaged in aggressive and abusive behaviour towards the claimant, by raising her voice and by “hanging up”.

(2)	Ms O’Connor criticised the contribution being made by the Council’s Arts team to the 2005 St Patrick’s Day Parade.

(3)	Ms O’Connor’s instigation of a disciplinary process against the claimant was inappropriate and unjustified.

The application for review

2.	In this application for review, the respondent does not assert that the tribunal’s statement of the applicable legal principles is in any way incorrect, or that the tribunal has misapplied those legal principles to its findings of facts in this case.

3.	Instead, the application for review is based on the assertion that the tribunal has made perverse findings of fact.  (According to the respondent, because of those perverse factual findings, the tribunal’s ultimate determinations are invalidated).

4.	As Mr McAughey accepted, the relevant legal principles in respect of perversity are to be found in the decision of the House of Lords in Edwards v Bairstow [1956] AC 14.  In his speech in that case, Lord Radcliffe propounded what has become the classic definition, by endorsing the view that a particular finding of fact will be perverse if there is no evidence to support it, or if the only reasonable conclusion contradicts the relevant determination.  

5.	In this case, the respondent says that the following factual determinations of the tribunal were legally perverse:

(1)	The tribunal’s conclusion that, during the telephone conversation in November 2004, Ms O’Connor raised her voice.

(2)	The conclusion that the carrying out (by the claimant) of the relevant protected act was the main reason for Ms O’Connor making the 2005 St Patrick’s Day Parade criticisms.

(3)	The finding that the decision to instigate a disciplinary process was inappropriate and unjustified.

(4)	The determination that the fact that the claimant had carried out the relevant protected act was a significant reason for the launch of the disciplinary process.

The legal context of this application for review

6.	This application for review is made under Rule 34 of the Industrial Tribunals Rules of Procedure 2005.  Under Rule 34, a party may apply to have a tribunal decision reviewed, but only on certain grounds, which are specified in Rule 34.  Among the grounds there specified is the following:

“(e)	the interests of justice require such a review”.

7.	This application for review is made on the “interests of justice” ground.

The outcome of this application for review

8.	We have doubts as to whether or not this tribunal has power to vary or revoke a decision in response to an application for review which is based solely on the argument that the decision is founded upon legally perverse factual conclusions.    

9.	However, we do not have to arrive at definitive conclusions on that issue, because we are satisfied (having reconsidered the relevant determinations in light of this application for review) that the relevant determinations are not legally perverse.  

10.	Indeed, we are still convinced (even with the benefit of hindsight and having had the benefit of the additional arguments which have been made in the course of this application for review) that the relevant determinations are proper and appropriate.

Perversity (General comments)

11.	 The respondent’s arguments in respect of perversity are based on a detailed critique of the relevant determinations.  That critique is to be found in 38 paragraphs within the written application for review (“the Application”), which is appended to this decision.  Those arguments have been amplified in some respects during the course of oral argument at the hearing of this application for review.

12.	We have carefully considered all of those arguments.

13.	However, in the interests of proportionality, we have focused, in this review Decision, on some of the main arguments, rather than providing a comprehensive commentary in respect of each and every criticism which the respondent has made.

Perversity (The telephone conversation)

14.	Our comments in relation to this topic are as follows:

(1)	Tribunals and courts often have to resolve conflicts of testimony between two individuals who (according to the court or tribunal) have limited credibility.  

(2)	The admitted fact that Ms O’Connor hung up on the claimant at the end of the relevant telephone conversation is a piece of evidence which the tribunal was entitled to take into account in deciding whether to accept the claimant’s version of events or Ms O’Connor’s version of events (in respect of the voice-raising issue).

(3)	As we made clear (at sub-paragraph (22) of paragraph 21), in the Decision, we accept that the claimant used the telephone conversation of 17 November as a pretext to raise her issues about the changing of the consultant’s brief.

Perversity (The St Patrick’s Day criticisms)

15.	Our comments in relation to this topic are as follows:

(1)	Contrary to the views indicated at paragraph 23 of this (review) Application, a tribunal does not act improperly, in assessing the general credibility of a witness, by taking account of the degree of detail, or lack of detail, in a witness's uncontroverted account of events.

(2)	On the question of confrontation and stridency, we have noted the last sentence of Ms O’Connor’s email of 17 February, which invited the claimant to clarify “… why you have accorded this event so little effort?”.

(3)	The tribunal’s detailed chronology of events (as set out in the Decision) shows that the tribunal was well aware of the date of the protected act and of the date of the St Patrick’s Day criticism.

(4)	The claimant’s protected act was carried out in November 2004 and the St Patrick’s Day memo was written in February 2005, and the claimant had been absent from work from a date in November 2004 until a date in January 2005.

(5)	In the Application, the respondent says that, in the course of the hearing, the claimant did not contest the fact that “the colleagues” were disappointed, and did not cross-examine Ms O’Connor to that effect.  In our view, the normal rules as to the evidential implications of failing to cross-examine on a particular topic are rules which do not apply in their full rigour in circumstances in which the cross-examiner is a self-represented party.  In any event, throughout a lengthy hearing, the claimant made it clear that she regarded the sending of the St Patrick’s Day communication as unfair retaliatory action.

Perversity (The disciplinary initiation issue)

16.	Our comments in relation to this topic are as follows:

(1)	Contrary to paragraph 32 of the Application, Mr Hobson decided that there was no sufficient evidence to pursue disciplinary charge in respect of insubordination.  (He did decide that there was an adequate basis for pursuing disciplinary action in respect of “offensive” behaviour).

(2)	The decision of the internal disciplinary authority was not the subject of any discrimination claim.  Therefore, at paragraph 21(56) of the Decision, there was no need for us to explain how we arrived at the view that the disciplinary decision was perverse.  However, we had already explained (at sub-paragraph 23 of paragraph 21 of the Decision) that it was entirely reasonable of the claimant to raise the issue (regarding the change in the Capita consultant’s brief) with Ms O’Connor, in the circumstances in which she did raise it.  (See also paragraph 81(1) of the Decision).

(3)	Paragraph 38 of the Application suggests that the disciplinary proceedings were instigated by Ms O’Connor because of the claimant’s insubordination.  However, the respondent’s own internal investigator concluded that there was an insufficient basis to pursue disciplinary charges in respect of insubordination.

Chairman:

Date:

Date decision recorded in register and issued to parties:

THE OFFICE OF INDUSTRIAL TRIBUNALS     
AND FAIR EMPLOYMENT TRIBUNAL 
CASE No 1229/05
Between 
                                                                Cathie McKimrn 
                                                                                                 Claimant
                                                                            and 
                                                           Down District Council 
                                                                                                      Respondent
Respondent’s Request for a review of the decision of the Tribunal 
Pursuant to Rule 34( l)(e) the Respondent hereby requests the Tribunal to review it’s 
decision.

The Tribunal found that the Claimant was subjected to three acts of unlawful 
victimisation.
The Telephone Conversation of 17 November 2004 
1.	This conversation took place between the Claimant and Ms O’Connor. Subject to the observation at paragraph 1l (below), there is no evidence in relation to this conversation other than what they say happened. 
2.	The Tribunal rightly observes that the Claimant’s evidence must be treated with caution, In the Respondent’s submissions an example was given of one instance 
where during her evidence the Claimant deliberately lied to the Tribunal. 
3.	The Tribunal, at paragraph 2 1(40) of its decision, recites its findings in relation to the Capita Report and makes reference to the telephone conversation. It came to
no conclusion as to who introduced the subject into the conversation, indicating 
that in its view it was unnecessary to resolve that factual conflict.
4.	The Tribunal deals expressly with the telephone conversation at paragraphs 63 — 
65 of its decision.
5.	The key components of the allegation were twofold — that Ms O’Connor 
raised her voice and that Ms O’Connor hung up the phone on the Claimant.
6.	There was direct conflict in the evidence on the first of those points. Ms O’Connor denied raising her voice.
7.	As regards the second component Ms O’Connor agreed that she did in fact hang 
up the phone. Ms O’Connor said she hung up because she had had enough — enough of being indirectly accused of having changed the terms of reference of 
the Capita Report in an underhand manner.

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8.	The Tribunal had to resolve the direct conflict on the first component. The Tribunal found Ms O’Connor’s evidence unconvincing. It paid particular attention 
 to her demeanour and manner of giving evidence in relation to her reasons for her 
reactions during the telephone conversation.
9.	The Tribunal, it is submitted, ought to have determined the question of who raised 
the Capita issue in the conversation. If it was the Claimant who introduced it then the telephone conversation must be viewed in the way. Ms O’Connor saw it.
10.	In evidence there was direct conflict about this. Ms McKimm denied that she 
introduced it, asserting that it was Ms O’Connor who did so. The weight of the 
evidence goes against this. Ms O’Connor was clear in her mind that the Claimant had raised the issue using the expression “who pays the piper calls the tune.” The 
Claimant vehemently denied saying It claiming that she would never use such an expression.
11.	The Tribunal received in evidence the draft unsent e-mail from the Claimant, to 
Ms O’Connor date15 November 2004 at 13.45. That e-mail clearly shows the 
mind-set of the Claimant at that time. In it she postulates that the form of the 
Capita Report can only be explained by the consultant working back from 
conclusions that were already framed from the beginning. Further in it she uses 
the very expression that in evidence before the Tribunal she claimed she would never use. The Claimant said in evidence that this document found during the hearing of’ the case was a forgery initiated by the Council (presumably the reasoning being that the Council wanted to have her appear to be familiar with 
and use the relevant expression.) 
12.	The Tribunal also received in evidence the Report on the Disciplinary Hearing by Tony McCrory dated July 2006 and the Report on the Disciplinary Appeal by 
Joseph A. Birt dated 5 October 2006. 
13.	 The Claimant in the former case explained that she needed to raise her voice in 
that conversation because Ms O’Connor had begun shouting. At no point did she make the allegation that Ms O’Connor was victimising her for her protected act. 
14.	The hearing concluded that there was no evidence that Ms O’Connor had
influenced the Capita Report and that since the Claimant admitted to the Mr
Hobson that she had made that remark the hearing also concluded that the Claimant’s behaviour was inappropriate and merited discipline. There is nothing. perverse in such a finding. It appears to flow from the evidence presented to the hearing. 
15.	On appeal it was found to be significant that the Claimant did not take the opportunity to rebut the comment “whoever pays the piper, calls the tune.” 
16.	It is clear that the Claimant used the telephone conversation of 17 November 2004 
to air her view that Ms O’Connor influenced the Capita Report or fixed its
 outcome and form. The draft e-mail is evidence of the Claimant’s intention to 
worry away at this point. It is also points to the likelihood that it was the Claimant who raised the issue during the conversation. It is proof beyond doubt (unless as 
the Claimant suggests it is a forgery) that the Claimant used the words which 
under oath she so vehemently denied using.
17.	All of the above indicates that, whatever reservations the Tribunal may have 
about Ms. O’Connor’s demeanour, the weight of the evidence points to the 

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Claimant deliberately using the telephone conversation to introduce the content of 
the Capita Report and her perception that Ms O’Connor manipulated the outcome. 
In such circumstances the natural reaction for Ms O’Connor would be one of 
annoyance as Ms O’Connor stated in her evidence, It was not annoyance purely at 
the issue being raised on 17 November 2004. (See paragraph 21(27). She had had 
enough she said of the continual behaviour of the Claimant raising issues and then 
not being satisfied with Ms O’Connor’s efforts to deal with them and the 
outcomes therefrom
18.	The above also indicates that the Claimant lied about the content of the telephone 
conversation — the piper remark. The Tribunal accepted that she did. 
19.	The Claimant lied to the Tribunal as to the content of the telephone conversation 
yet the Tribunal accepts her assertion as to whether Sharon O’Connor raised her 
voice It is submitted that in the circumstances such acceptance is contrary to 
reason. 

Criticism of the Contribution of the Arts team to the 2005 St Patrick’s Day Parade 

20.	The Tribunal refers to this allegation at paragraphs 71 —73 of its decision. 
21. 	The evidence before the Tribunal was that the Claimant received glowing 
  	appraisal reports prior to 2005. There was no evidence to suggest that there were any
criticisms of the Art team’s contribution to previous St Patrick’s Week 
activities, It is therefore possible that the reason that any criticism was raised was
in fact because there was then in 2005 something to be critical of. 
22.	Little evidence was given on the point. The Claimant did not contest the point that 
others (“the colleagues”) were disappointed, nor did she cross-examine Ms 
O’Connor to that effect.
23.	At paragraph 21(63) the Tribunal noted that it was never informed of the 
identities of the colleagues who were so critical. At no point was Ms O’Connor 
asked to name them, nor was the Respondent through Counsel, so asked. The
absence of this information cannot be used as a foundation for the Tribunal’s 
finding. 
24.	The Tribunal noted in paragraph 73 that the criticism was made in strident and 
confrontational terms. The memo referred to in the papers at page C39 (?) does 
not contain any language or expression that could be so construed. This could not 
be a foundation for the Tribunal’s finding. 
25.	There was no evidence before the Tribunal on which the Tribunal could base a 
finding that the criticism was unjustified. 
26.	There was no evidence that Ms O’Connor was motivated by the Claimant haying 
carried out the protected act.
27.	The Tribunal places the criticism as being weeks after the protected act. In actual 
fact it was three and a half months after the protected act. 
28.	In light of the foregoing it is submitted that the Tribunal’s finding is contrary to 
the evidence before it.

 
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The decision to instigate a disciplinary process was inappropriate and unjustified 
29.	 The Tribunal refers to this allegation at paragraphs 78— 83 of its decision. 
30. 	At paragraph 21(44) - 21(46) the Tribunal deals with the factual background of 
the initiation of the disciplinary process and the investigating officer’s decision 
31.	 During the course of giving her evidence Ms O’Connor explained, as best she 
could, the non-verbatim notes taken by someone else, Mr Patrick Hobson, during 
the disciplinary investigation.  She accepted the notes as accurate insofar as she 
could not gainsay them, but could not remember who had raised the issue of 
discrimination. The only time we heard Ms O’Connor’s motivation for initiating
the disciplinary process was during the Claimant’s cross-examination of her on
the ‘Hobson note’. Ms O’Connor emphatically denied any suggestions of an 
improper motive and the Claimant never pursued that in cross-examination. Ms
 O’Connor stated several reasons for instigating the disciplinary proceedings; the
consistent dispute with the job description, the accusations regarding the Captia
Report and the continual disregard Ms McKimm had Ms O’Connor’s instructions. 
32. 	Mr Hobson determined that there was a prima facie case in relation to the offence
 of insubordination. Clearly there was evidence to justify his decision. 
33. 	The Tribunal criticised the Chief Executive for not preventing Ms O’Connor from 
initiating the disciplinary process. The Tribunal accepts that his reasons for not 
discontinuing it were appropriate, There would or could be no possible ground for 
the Chief Executive to intervene in the disciplinary process. To do so in one case 
and not in another would bring the process into disrepute. 
34. 	The Tribunal states at paragraph 21(56) that Mr McCrory and Mr Birt reached 
perverse decisions. This statement is made without analysis of those decisions nor 
are any reasons given. The outcome of both processes was consistent with and 
flowed from the evidence each received. The Claimant admitted that she made the
remark - that she accused Ms O’Connor of influencing the Capita Report. There 
was no factual foundation for such an allegation against Ms O’Connor. Therefore
as defined under the disciplinary process the Claimant was guilty of 
        insubordination. The reasoning could not be clearer. 
35. 	The internal process of the Council operated by independent factfinders with 
        Union representation for the Claimant found the allegation upheld. Therefore the 
        decision to initiate the procedure was justified. 
36.	The Tribunal therefore ought not to proceed from the position stated at paragraph
        81(1).
37.  The initiation of the disciplinary process was in February 2005. The protected act 
was done on 5 November 2004. Is February 2005 soon after the protected act? 
38. 	If Ms O’Connor wanted to take disciplinary proceedings against the Claimant 
from the Claimant’s Capita allegation she could have done so on 17 November 
2004 after the telephone conversation which was soon after the protected act. It is 
submitted that the protected act had nothing to do with the initiation of the 
disciplinary process. The latter was as a result of the Claimant’s insubordination 
and continued insubordination in respect of the Capita report - itself an attempt to 
rectify the Claimant’s grading issue which had subsisted for a number of years. 

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