Rice v McEvoy

Factual and Procedural Background

This appeal arises from proceedings before an industrial tribunal where the Respondent, employed as a salaried partner solicitor by the Appellant's law firm, claimed discriminatory detrimental treatment on grounds of sex and age, as well as victimisation discrimination related to sick pay. The tribunal dismissed the sex and age discrimination claims but upheld the victimisation claim under sex discrimination legislation, awarding damages. The Appellant appeals only the tribunal’s decision on victimisation. The Respondent had worked for approximately 15 years, primarily in conveyancing, and was pressured to undertake criminal law work. Following a grievance letter alleging discrimination, the Respondent went on sick leave due to psychological ill-health and received only statutory sick pay rather than full occupational sick pay. The tribunal found a prima facie case of victimisation based on the withholding of full sick pay, a discretionary benefit, and concluded the Appellant failed to provide an adequate explanation. The Appellant challenges the tribunal’s findings and legal conclusions.

Legal Issues Presented

1. Whether the tribunal misdirected itself by concluding it did not need to determine if the Respondent had a contractual entitlement to three months occupational sick pay before deciding victimisation occurred under Article 8(2) of the Sex Discrimination (Northern Ireland) Order 1976.
2. Whether the tribunal misdirected itself by concluding that considerations of decency and good industrial relations practice dictated that the Appellant should have exercised discretion in favour of paying three months occupational sick pay to the Respondent.
3. Whether the tribunal was wrong in law to conclude that the Appellant victimised the Respondent by withholding three months occupational sick pay contrary to Article 8(2) of the Sex Discrimination Order.

Arguments of the Parties

Appellant's Arguments

• The tribunal erred in finding less favourable treatment as it acknowledged no contractual entitlement existed for full sick pay beyond statutory pay.
• The tribunal improperly substituted its own view of fairness and reasonableness for the actual contractual entitlements of the Respondent.
• The hypothetical comparator used by the tribunal was impermissibly narrow and the tribunal failed to analyze how such a comparator would have been treated.
• The tribunal improperly relied on the contractual sick pay entitlement of another employee (Mr Broderick) who was not comparable to the Respondent.
• The tribunal disregarded evidence that another female employee (Ms Sherlock) received only statutory sick pay, undermining the claim of less favourable treatment.
• The tribunal misapplied legal principles by focusing on what was appropriate rather than the Respondent’s actual entitlement.

Respondent's Arguments

• Where entitlement depends on employer discretion, such discretion must be exercised genuinely and rationally; failure to do so breaches the implied term of trust and confidence.
• The tribunal correctly found a prima facie case of victimisation under Article 63A and that the Respondent did not fail to discharge the evidential burden.
• The Appellant had previously exercised discretion to pay full sick pay to other employees, including the Respondent on some occasions.
• The Appellant’s explanations for withholding full sick pay were unconvincing and difficult to understand.
• The tribunal properly concluded it was unnecessary to decide contractual entitlement to full sick pay to determine victimisation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shamoon v Chief Constable of the RUC [2002] NI 174	Framework for assessing less favourable treatment and reason why issues in discrimination claims; use of hypothetical comparators; consideration of employer’s mental processes.	The court adopted Shamoon’s two-stage approach but acknowledged the less favourable treatment and reason why issues can be intertwined; relied on its guidance regarding comparators and evidential material.
Glasgow City Council v Zafar [1998] 2 All ER 953	Employer’s reasonableness is irrelevant to whether less favourable treatment occurred; focus on actual treatment rather than hypothetical reasonable employer.	The court confirmed that the tribunal should consider the discriminator’s actual mental processes rather than what a reasonable employer would have done.
Nagarajan v London Regional Transport [1999] IRLR 572	Determination of the employer’s conscious or unconscious reasons for treatment as a subjective question of fact in victimisation claims.	The court applied the principle that victimisation depends on the discriminator’s reason for the act, emphasizing the subjective nature of this inquiry.
Chief Constable of West Yorkshire v Khan [2001] IRLR 830	Clarification that the reason for an employer’s act is a question of fact, distinct from legal causation.	The court used this precedent to underscore the factual inquiry into the reason why the Appellant acted as he did.
Pothecary Witham Weld v Bullimore [2010] IRLR 572	Application of reverse burden of proof provisions in victimisation claims and the standard for rejecting explanations.	The court confirmed that once a prima facie case is established, the burden shifts to the employer to provide an adequate explanation, and tribunals should preferably make positive findings.

Court's Reasoning and Analysis

The court accepted that the Respondent had engaged in a protected act by lodging a grievance, triggering victimisation protections under the Sex Discrimination (Northern Ireland) Order 1976. The tribunal was correct to consider that the withholding of full sick pay, a discretionary benefit, could amount to less favourable treatment. Although the Respondent lacked a contractual entitlement to full sick pay, the Appellant had discretion to grant it, which he had exercised in favour of others in the past. The tribunal found a prima facie case of victimisation based on the timing of the decision to withhold full sick pay shortly after the grievance and the differential treatment compared to other employees with discretionary entitlements.

The tribunal evaluated the Appellant’s explanations for withholding full sick pay—including concerns about the "pitch" and attempts to "stimulate" the Respondent to return to work—and found them unconvincing or self-serving. The tribunal emphasized that considerations of decency and good industrial relations practice would have required the Appellant to exercise discretion in favour of the Respondent.

However, the court identified a procedural and analytical flaw: the tribunal did not explicitly reject the Appellant’s explanations with clear reasoning and appeared to apply an inappropriate standard of reasonableness, suggesting it considered what a reasonable employer would do rather than focusing on the Appellant’s actual mental processes. This misapplication undermined the tribunal’s conclusion. Consequently, the court held that the victimisation claim must be reheard by a new tribunal, which must consider the evidence afresh and make clear findings on the Appellant’s explanations and the relevant legal tests.

Due to this conclusion, the court declined to address the specific legal questions raised by the Appellant’s notice of appeal.

Holding and Implications

The court’s decision is to REMIT the victimisation claim for rehearing by a freshly constituted tribunal. The new tribunal is directed to reconsider all issues on the evidence, including whether the Appellant’s explanations for withholding full sick pay negate victimisation.

The direct effect is that the Respondent’s victimisation claim remains unresolved pending the rehearing. No new legal precedent was established, and the existing legal principles regarding victimisation, discretion in contractual benefits, and evidential burdens remain authoritative. The case underscores the necessity for tribunals to explicitly address and positively determine the adequacy of employer explanations in victimisation claims without substituting their own views of reasonableness for the subjective intent of the employer.