Mea Culpa

Nelson v Newry and Mourne District Council

When claiming sex discrimination, claimants have to show that the circumstances of their comparator are the same or not materially different to their own. In Nelson v Newry and Mourne District Council, the Northern Ireland Court of Appeal said that tribunals have to consider whether or not the employer had a “discriminatory intention” when deciding that the claimant was more culpable than the comparator.

Basic facts

In June 2005 an “angry ratepayer” wrote to the Council saying they had seen a female employee in a Council vehicle hand over plants to a male employee in another. The Council identified the woman employee as Ms O’Donnell and the man as Mr Nelson.

Both were then invited to informal interviews with different people. Mr Nelson was not given 24 hours notice before his, nor was he told that he had a right to be accompanied. Ms O’Donnell, on the other hand, was given 24 hours’ notice and the right of representation. She also saw a copy of the “angry ratepayer’s” letter.

Ms O’Donnell confirmed the incident at the formal interview but argued in her defence that she did not know the plants were for Mr Nelson’s personal use. She was given a formal written warning for “major misconduct” to stay on her file for six months. Mr Nelson, on appeal, also received a formal written warning, but for 12 months and was moved to another job.

Mr Nelson claimed sex discrimination on the basis that his treatment was different to that meted out to Ms O’Donnell.

Tribunal decision

And the tribunal agreed with him. It said that it was appropriate for Mr Nelson to compare himself with Ms O’Donnell as they were both Grade 4s in the Council hierarchy and both carried responsibility for the incident.

Mr Nelson, however, had been treated differently from Ms O’Donnell in a number of ways such as the failure to give him notice; the failure to let him see a copy of the letter; and the fact that he received a more severe sanction.

The Council asked for a review of the decision on the basis that Ms O’Donnell was not an appropriate statutory comparator. It pointed out that the two parties had been treated differently because Mr Nelson failed to co-operate initially whereas Ms O’Donnell had been open about her part from the outset; Mr Nelson was guilty of theft whereas Ms O’Donnell did not know the plants would end up in his garden.

The tribunal confirmed its original decision and the Council appealed again.

Court of Appeal (Northern Ireland)

The Northern Ireland Court of Appeal upheld the appeal. It said that the question for the tribunal was whether the Council was motivated by a discriminatory intention when it decided that Mr Nelson was more culpable than Ms O’Donnell.

The tribunal should therefore have weighed up the allegations of unlawful discrimination as part of the “whole relevant factual matrix” in order to decide whether the Council had acted unlawfully

It decided that the Council had not been motivated by a discriminatory intention because there were sufficient differences between the two cases that could quite easily lead to a difference of treatment.

It pointed out that Mr Nelson had asked Ms O’Donnell for the plants and intended to use them himself, although he must have known that this was an improper use of Council property. And at the initial, informal meetings, he had actively tried to divert attention away from himself by suggesting that someone else was involved.

The Council had quite reasonably viewed both the taking of the plants and his reaction at the earlier stages of the investigation “as disclosing dishonesty, a viewpoint which it could legitimately have reached on the material before it”. 
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The Court of Appeal concluded that there was no evidence to suggest any intention on the part of the Council “indicating collusion in favour of Ms O’Donnell as against Mr Nelson or indicating an intention to visit on Mr Nelson a disproportionate sanction because he was a man”.