Court of Appeal in Northern Ireland overturns Industrial Tribunal decision and finds that there was victimisation using the ‘why question’ or ‘but for’ test


Simpson v Castlereagh Borough Council GIR9206

The Claimant in this case was successful at first instance in the Industrial Tribunal (Northern Ireland) in her constructive unfair dismissal claim.  The IT found that the Council had breached a fundamental term of her contract by failing to resolve and conclude her grievance process in a timely fashion.  The Tribunal rejected her victimisation claim, however, concluding that the reason why the Council had not got on and determined the grievance in a timely way as it was obliged to do was because it did not want to accept the findings (which were that some of its senior officers had discriminated against the Claimant on grounds of her sex).  This rejection was the subject of the appeal.

The Court of Appeal took a different view to that of the IT.   It concluded that the delay in determining the grievance flowed from the efforts of the Council to overturn adverse findings against its senior officers contained in the grievance investigation report, which it had commissioned.   The Tribunal had decided that the Council would have dealt with matters in a more timely manner if there had not been an on-going sex discrimination claim, and that it did not want to accept the findings of the report ‘because some of them related to sex discrimination’.   The Court said it must logically follow that one of the effective causes of the delay was the fact that the Claimant was pursing a grievance alleging sexually discriminatory acts on the part of the Council.  The ‘why question’ or the ‘but for’ test led to the conclusion that there was victimisation.

Read the judgment here.