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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Bell v Child Support Agency [2008] NIFET 128_06 FET (22 December 2008) URL: http://www.bailii.org/nie/cases/NIFET/2008/00135.html |
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The unanimous decision of the Tribunal is that:-
the claimant was not discriminated against by the respondents on the grounds of his religious belief and/or by way of victimisation, contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998;
the claimant was unfairly dismissed by the first-named respondent.
The Tribunal makes an award of compensation to be paid by the first-named respondent to the claimant in the sum of £4,650.00.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr Maguire
Mr Margrain
Reasons
1.1 The claimant presented a series of complaints to the Tribunal, which were consolidated by Order of the Tribunal dated 19 September 2007 and which are the subject of an Article 85 Order, made pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998, and which were given the Case Reference Numbers as set out above. In the said claims, the claimant claimed against the respondents that he had been unlawfully discriminated against on the grounds of his religious belief and/or political opinion and/or discriminated against by way of victimisation contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’); and further was unfairly dismissed by the first-named respondent and/or the eighth-named respondent. The respondents presented responses to the said claims in which liability was denied. There was no dispute between the parties that the first-named respondent was an agency of the eighth-named respondent and that for the purposes of these proceedings the appropriate employer of the claimant was the first-named respondent; and that no distinction was to be made between the first and eighth-named respondents in relation to any line-management responsibility and/or any vicarious liability, arising out of the actions of any of the respondents.
At a Case Management Discussion held on 25 October 2007, as set out in the Record of Proceedings dated 29 October 2007, the parties set out, inter alia, an agreed statement of the legal and main factual issues to be determined by the Tribunal:-
Legal issues :
Whether the claimant was discriminated against on grounds of his religious belief/political opinion by the first-named respondent, by its employees who are named as respondents or by the seventh-named respondent.
Whether the claimant was victimised by either of the persons or bodies identified at Point (1).
Whether the claimant was unfairly dismissed by the first-named respondent in or about August 2006.
Whether the claimant was unfairly dismissed by the first-named respondent in or about June 2007.
Whether the alleged unfair dismissal described at Point (3) and (4) are further examples of victimisation of the claimant.
Whether the alleged matters described in Claim 13/06 FET, which occurred prior to 13 October 2005, are out of time and, if so, does the Tribunal consider it fair and equitable to exercise its discretion to extend time.
Whether the alleged matters described in Claim 103/07 FET, which occurred prior to 19 March 2007, are out of time and, if so, does the Tribunal consider it fair and equitable to exercise its discretion to extend time.
Factual issues :
Whether the first-named respondent treated the claimant unfairly vis à vis its action in respect of the complaints by the claimant against 21 other members of staff compared with how it treated fifth-named respondent’s complaint against the claimant.
Whether the first-named respondent or any of its employees refused to follow procedures in respect of the complaints either by or against the claimant or deliberately misled the complaint against him.
Whether the first-named respondent or any of its employees fabricated a complaint against the claimant or colluded against the claimant in respect of a fabricated complaint.
Whether the first-named respondent or any of its employees failed/ refused to follow procedures in relation to dealing with long-term sickness or in dismissing the claimant (2006).
Whether the first-named respondent or any of its employees failed/ refused to follow procedures in relation to dealing with grievances, in particular, in refusing to allowing meetings.
Whether the seventh-named respondent (Permanent Secretary of eighth-named respondent) allowed officials of the first-named respondent to breach the law by refusing to allow any meeting throughout the entire grievance procedure.
Whether the first-named respondent or any of its employees failed to follow proper procedures prior to the decision to dismiss the claimant (2007).
Whether the first-named respondent failed to protect the claimant from ongoing harassment as outlined in the application to the Tribunal.
At the outset of the hearing, the claimant’s representative confirmed that the claimant was not making any claim pursuant to the terms of the Disability Discrimination Act 1995. He also confirmed that any claim to discrimination pursuant to the 1998 Order was on the grounds of religious belief and not political opinion.
The claimant’s representative also confirmed to the Tribunal that, in relation to any remedy to which the claimant is entitled, in relation to his claim of unfair dismissal, he was no longer making an application for any Order for Reinstatement or Re-engagement.
2.1 The Tribunal made the following findings of fact insofar as relevant and material after hearing evidence from the claimant himself, Dr Kenneth Addley, Kenneth Bailie, Alan Shannon, Eleanor Cusick, Barry McMullen, Linda Barlow, Sharon Gallagher (née Toner), Barry McGahan, Andrea Orr, Sharon Courtney, Claire Henderson, and Dawn Taylor.
The claimant, a Protestant, worked as an Administrative Officer in the Child Support Agency (‘the Agency’) from in or about 1993. The claimant suffered from anxiety and as a consequence had been off sick for a period in 1996. In April 2003, the claimant was transferred into a different section of the Agency. The members of that section were not members of the section where the claimant had previously been working when he had to go off sick due to his anxiety. However, the Tribunal could accept that the claimant’s previous absence may have been known to some of those working in the section to which he was transferred, as indicated above. The Tribunal noted that from in or about 1996 to 2003, the claimant had no complaints of harassment by any of his fellow employees.
The unit where the claimant worked from in or about 2003 consisted of approximately 21 persons, which was made up of both males and females and Protestants and Catholics.
On 28 October 2004, the claimant made an oral complaint to the Equal Opportunities Unit of the Agency about various allegations of harassment by his work colleagues from in or about July 2003 including, in particular, comments which he believed were related to his previous illness. He was advised by Ms Marcelline Cheevers of the Unit to put his complaint in writing. He was further informed on 28 October 2004, by Ms Cheevers, after she had consulted with the then Equal Opportunities, Ms Linda Barlow, a Protestant, the claimant could proceed with his complaint formally or informally. He was also informed by Ms Cheevers where he could obtain copies of the relevant procedures and what was required in order to comply with the said procedures. On 2 November 2004, the claimant informed Ms Cheevers that he wanted to leave the matter in the meantime; but might contact her again in the future.
On 10 November 2004, an incident occurred between the claimant and another person who worked in the said unit, Mr Seamus Blaney, the fifth-named respondent. The claimant was the same grade as Mr Blaney but had seniority of service. The claimant believed that Mr Blaney had been moving about his workstation and had been mimicking symptoms of stress, which he believed were directed at him. The claimant asked Mr Blaney, without any instruction to do so, if he had no work to do, to which Mr Blaney had responded saying, what business was it of the claimant’s and the claimant was not his employer. As a result there then followed a series of insults and expletives exchanged between the claimant and Mr Blaney. Mr Blaney asked whether the claimant had a problem with him; to which the claimant replied, he believed Mr Blaney’s actions were directed at him. At this point, in what was clearly a heated exchange, Mr Blaney said he was not taking this and would take the matter further. Mr Blaney left his workstation and in fact left the building and went home. Neither Mr Blaney or the claimant ever spoke to each other again. The claimant himself went off sick or on about 14 November 2004 and did not return to work until on or about 14 February 2005. When the claimant returned to work at that time, he returned to work at a different location to where he had been working in November 2004. The claimant went off sick from work again in March 2005 and did not return to work again prior, to his dismissal by the first-named respondent.
Following the incident on 10 November 2004, Mr Blaney met with Mr Sean Kerr, his Staff Officer, on 11 November 2004 and indicated, as set out in the signed notes of the meeting dated 12 November 2004, that he wanted to make a formal complaint against the claimant. He gave to Mr Kerr details of his various complaints, including details of his complaint in relation to the incident of 10 November 2004. The Tribunal initially had some doubts about the precise date when Mr Blaney put his complaint in writing and actually gave it to Mr Kerr. However, the Tribunal is satisfied that the note of his complaint, signed by Mr Blaney, was a genuine document and had to have been given to Mr Kerr some time between the specific incident involving the claimant and Mr Blaney on 10 November 2004 and before 15 November 2004, when Mr Blaney referred to having given written details of his complaint to Mr Kerr when interviewed by Ms Cheevers, as referred to below. There was no evidence produced by the claimant to show this document was not written by Mr Blaney. In any event, the Tribunal is satisfied that by 16 November 2004, Ms Barlow had a copy of the written complaint of Mr Blaney and dealt with it, as set out, as referred to elsewhere in this decision. In particular, the Tribunal was not satisfied that this was, as suggested by the claimant, in some way a document fabricated by Mr Blaney and/or Ms Barlow and/or members of the Equal Opportunities Unit, Mr McMullen and Ms Cusick, following their appointment to the Unit in April 2005, in order to have a response to the claimant’s own complaint, which he later made in April 2005, or was fabricated in some way in order to negate the claimant’s later said complaint in April 2005. To have established the document was fabricated as suggested by the claimant would have required specific detailed evidence and something more than just the allegation itself. No such detailed evidence was produced by the claimant.
Ms Cheevers interviewed Mr Blaney on or about 15 November 2004 in relation to his complaint against the claimant and he informed her that he had given details in writing, and signed by him, of his complaint to Mr Kerr, as indicated above, details of which were subsequently received from Mr Kerr, upon request by the Equal Opportunities Unit, on or about 16 November 2004. At his meeting with Ms Cheevers, Mr Blaney, on 15 November 2004, had indicated he wanted the matter, if possible, to be handled informally by the Equal Opportunities Officer. He was informed the Equal Opportunities Officer, Ms Barlow, would look at his statement and get back to him.
It emerged during the course of the subsequent investigation of the complaint that Mr Blaney subsequently told Mr Kerr that he did not want the formal complaint progressed but kept on file, which, in the judgment of the Tribunal, was not inconsistent with what he had told Ms Cheevers.
Ms Linda Barlow, a Protestant, the then Equal Opportunities Officer, who had been in post from in or about January 2003, upon receipt from Mr Kerr of the written details of Mr Blaney’s decided she needed to speak with the claimant about the complaint made by Mr Blaney; but was informed he was on sick at that time. In the Tribunal’s view, correctly, Ms Barlow did not consider it appropriate to contact him, whilst off sick, in relation to this complaint. However it is correct to note that, at no time during this period, after the claimant went off sick, was he informed by Ms Barlow that she wished to speak to him about Mr Blaney’s complaint or indeed was he given any notification of any such complaint by Mr Blaney. The Tribunal is satisfied, when Ms Barlow sought to contact the claimant, as indicated above, she had not at that stage taken any formal steps to treat the complaint of Mr Blaney as a formal complaint requiring investigation, despite what Mr Blaney had said to Ms Cheevers; but it could accept she was clearly minded to take those formal steps, having regard to the serious nature of the complaints made, of which some were of a religious/sectarian nature; and would have done so if she had had the opportunity to speak to the claimant if he had remained at work. Further reference shall be made elsewhere in this decision to some of those complaints, which were ultimately upheld.
The Tribunal was satisfied that under Paragraph 10.2 of EO2/94, the Agency’s relevant complaint procedure, it is provided that investigations would not normally be conducted until informal procedures are completed; but it is also provided there may be instances where, due to the seriousness of the complaint, the Agency can instigate a formal investigation outside the provision of these procedures, even though a complainant might have preferred to deal with the complaint informally.
The Tribunal had no doubt that the complaints made by Mr Blaney against the claimant were of a serious nature and, in particular, that some were of a religious/ sectarian nature. In the circumstances the Tribunal was not surprised Ms Barlow decided to proceed, as set out above. Certainly, a different view could have been taken by Ms Barlow; but the Tribunal did not consider to have proceeded, as she did, was wrong, given the nature of the complaint. The procedures gave a discretion to the Equal Opportunities Officer whether or not to instigate an investigation in such circumstances. This was obviously a matter for Ms Barlow’s judgment, who, as indicated above, was an experienced Equal Opportunities Officer.
The Tribunal was therefore satisfied that Ms Barlow was entitled, under the Agency’s procedures, if she considered the complaint serious, to have it investigated under the formal procedure, even if the complainant had indicated he wished to pursue it informally. Unfortunately, Ms Barlow, in addition to not advising the claimant of the complaint by Mr Blaney, she also did not inform Mr Blaney of her intentions in relation to his said complaint. Clearly to have notified both might have avoided many of the issues that have arisen in this matter. But the Tribunal did not consider her failure to do so was for any sinister reason; but arose from the absence of the claimant from work and the absence of any formal steps by her, in the circumstances outlined above. The Tribunal is satisfied Mr Blaney had made his complaint and it was not fabricated, as alleged by the claimant.
Whenever the claimant returned to work on a phased return basis on or about 14 February 2005, Ms Barlow again properly, in the Tribunal’s view, decided it would not be appropriate to contact the claimant about Mr Blaney’s complaint but to allow him to settle back into his work, which as referred to earlier was in a different section from which he had been working in November 2004, whenever he had commenced his sick absence. However, before Ms Barlow had an opportunity to speak to the claimant, he went off sick again during March 2005, suffering from stress. Ms Barlow ceased to be the Equal Opportunities Officer on 4 April 2005.
On 4 April 2005, Barry McMullen took up the post of Equal Opportunities Officer, in succession to Linda Barlow. Mr McMullen, for the purposes of the Monitoring Regulations under the 1998 Order, is perceived to be a Roman Catholic; but maintained, at the Tribunal, that he was a Christian with no practising denomination. Prior to taking up his said position, Mr McMullen had been working in the Personnel Branch and, prior to that, he had held various operational posts. On the same day, Eleanor Cusick, upon her return from six months maternity leave, took up the position of Deputy Equal Opportunities Officer. She is a Roman Catholic. Prior to taking up this position, Ms Cusick had had no direct involvement with the Equal Opportunities Unit, having since 1994 held various positions in various grades in the Operational and Support areas of the Agency; and in 2001 she was transferred to a Personnel function in the Personnel Branch.
The Tribunal was very concerned that, despite the importance and difficulty of what are the specialist roles of Equal Opportunities Officer and Deputy Equal Opportunities Officer, neither Mr McMullen nor Ms Cusick were given any appropriate training to carry out their respective roles before taking up their respective positions. In the Tribunal’s view this was a very serious omission by the Agency. It was agreed by Mr McMullen and Ms Cusick, with the agreement of Personnel Branch, that, before they commenced their new posts, that Ms Cusick would handle all complaints from staff up to including Executive Officer, whilst Mr McMullen would handle all other complaints.
On 4 April 2005, the same day that Mr McMullen and Ms Cusick took up their roles, the claimant hand-delivered a written complaint to the Unit in which he requested a formal investigation into allegations of harassment against him by 21 of his work colleagues, which included Mr Blaney, in the Unit where he had previously worked. Given the fact that Mr McMullen and Ms Cusick had taken up their posts on that day, for which they had no previous experience and had not been given any training, the timing of the arrival of the claimant’s complaint was, in the circumstances, somewhat unfortunate. In the Tribunal’s view, it was in these circumstances not surprising, but also very understandable and sensible, that Mr McMullen and Ms Cusick sought the advice of Ms Barlow, Mr McMullen’s predecessor as Equal Opportunities Officer. Ms Barlow had been in that post since 2003 and she had therefore considerable experience in relation to what they should do in relation to the claimant’s complaint. The Tribunal is satisfied that there were various discussions between Ms Barlow and Mr McMullen and Ms Cusick between 4 April 2005 and 26 April 2005 at which date the investigation officer was asked to investigate the complaint made by the claimant and also the complaint made by Mr Blaney.
The Tribunal is satisfied that, in light of advice received from Ms Barlow during the said discussions, it was agreed that, due to the seriousness of the allegations made in the claimant’s complaint that a formal investigation should be commenced in accordance with the Agency’s Harassment Complaints Procedures. Indeed, the Tribunal concluded that, whilst Mr McMullen and Ms Cusick took the formal decision, in reality the decision was made by Ms Barlow, upon whose advice they completely relied, given their inexperience and lack of training.
During the course of their discussions, in relation to the claimant’s complaint, the Tribunal is further satisfied that Ms Barlow informed Mr McMullen and Ms Cusick that a complaint had already been made by Mr Blaney against the claimant; but which she had not progressed in circumstances previously set out. The Tribunal has no doubt that it was proper for Ms Barlow to inform Mr McMullen and Ms Cusick about the complaint by Mr Blaney as part of the normal process of hand-over from one officer to a new post holder. The Tribunal is equally satisfied that, having done so, Mr McMullen and Ms Cusick sought Ms Barlow’s advice in relation to how Mr Blaney’s complaint should be progressed, if at all, and in particular whether it should be treated by them as a formal complaint and therefore the subject of a formal investigation. Given that Ms Barlow had been previously minded to treat Mr Blaney’s complaint as a formal complaint but had not, due to the claimant’s absence from work, taken the formal steps to do so, the Tribunal was not surprised that her advice to Mr McMullen and Ms Cusick remained consistent, namely to treat it as a formal complaint. This had always been her intention, as indicated above.
Thus it was not surprising, in the circumstances, that Mr McMullen and Ms Cusick in April 2005, given their lack of experience of training, were content to accept, without question, Ms Barlow’s advice that Mr Blaney’s complaint should also be treated as a formal complaint and should be investigated in accordance with the procedures.
Although Mr McMullen and Ms Cusick were in fact the formal decision-makers in relation to the decision to treat Mr Blaney’s complaint as a formal complaint, the Tribunal concluded that, in reality, as with the claimant’s own complaint, that the decision-maker in the circumstances was Ms Barlow. Given the nature of her close involvement in these decisions, which were because of the unusual circumstances referred to above, the Tribunal could well understand how, in subsequent correspondence/memoranda, there were some differences/ inconsistencies in relation to who was stated to have taken the actual decision. Equally, the Tribunal did not accept the claimant’s contention that the involvement of Ms Barlow in these decisions, which the Tribunal accepts she had, was in some way designed to ensure that a co-religionist, namely Ms Barlow, of the claimant had an involvement with the said decisions and that the said decisions were not the sole responsibility of Mr McMullen and Ms Cusick, who were Catholics. It equally does not accept that Mr Blaney’s complaint was in some way fabricated by Ms Barlow, Mr McMullen and Ms Cusick to act as a counter to the complaint brought by him or that they conspired to fabricate such a complaint. Mr Blaney’s complaint was genuine and there was no evidence of any such fabrication or conspiracy. To make such allegations required a high degree of proof on the part of the claimant, which was singularly lacking.
In the course of their discussions with Ms Barlow, Mr McMullen and Ms Cusick discussed with her whether both of the said complaints should be investigated by the same investigating officer. Following such discussions, Mr McMullen and Ms Cusick decided to proceed in this way. Whilst, with hindsight, it would be possible to criticise this decision, the Tribunal is prepared to accept that Mr McMullen and Ms Cusick believed, in their judgment, that this was a logical way to proceed. However, in so deciding, the Tribunal has no doubt they again relied heavily upon Ms Barlow’s advice, which was crucial in all their decisions in relation to this matter. Her advice was completely supportive of their decision in relation to the manner in which they proposed to proceed with the said complaints, as indicated above.
As a consequence of the above decisions, Ms Cusick wrote to Mr Ken Bailie on 26 April 2005 to investigate concurrently both the complaints of Mr Blaney and also the complaint of the claimant. Mr Bailie is a Roman Catholic and, prior to his involvement in this matter, had received formal training as an Equal Opportunities Investigation Officer; but also taken part in a number of formal Equal Opportunities investigations. Some of these involved joint investigations but, on most occasions, he had acted as Lead Investigator rather than as the note-taker. The decision, whether or not to treat any complaint as a formal complaint or to deal with it informally was, at no time his decision. He was merely informed by the Equal Opportunities Unit of their requirement for him to carry out the necessary investigation under the formal procedures. Thus, Mr Bailie, in the circumstances, could not be said to have had any involvement in any fabrication and/or conspiracy in relation to the claimant’s said allegations.
Mr Bailie initially commenced work on the complainant’s complaint and an interview was held with him on or about 10 May 2005. A full record of the interview was taken, which was signed by the claimant on 16 May 2005. In subsequent weeks, Mr Bailie interviewed all the alleged offenders and the witnesses to events (other than one who was absent from work) and detailed records were kept of the interviews and signed off by each person interviewed. On 18 July 2005, Mr Bailie furnished a report to the Equal Opportunities Unit. The Tribunal found that Mr Bailie had conscientiously carried out his task in relation to his investigation of both complaints and that he did so independently of the Equal Opportunities Unit and without any interference from the said Unit.
Mr Bailie interviewed Mr Blaney on or about 31 May 2005, and a record of that interview was signed by Mr Blaney on 22 June 2005. The claimant was interviewed by Mr Bailie on 15 June 2005 in relation to Mr Blaney’s complaint; and it is apparent from the record of the interview signed by the claimant on 21 June 2005 that, during the course of the interview, Mr Bailie put to the claimant the allegations made against him and he was given a full opportunity to respond to each allegation, which opportunity he made use of.
However, it is correct to note, at this stage, that the notification to the claimant of Mr Blaney’s complaint, which, as seen above, had originally been made in November 2004, and how it was to be treated and it was to be made the subject of a formal investigation, had not been previously given to the claimant, whenever Mr Bailie had been informed by Ms Cusick to carry out the investigation of the said complaint. Indeed, it was not until arrangements were being made for the interview by Mr Bailie, in relation to his investigation of Mr Blaney’s complaint, that the above omission was realised by Mr McMullen and Ms Cusick. As a consequence, Mr McMullen telephoned the claimant on or about 9 June 2005, to inform him that a complaint had been made against him by Mr Blaney on or about 14 November 2004 and that it had been decided not to investigate it at that time, due to his absence from work and that it was now to be investigated by Mr Bailie. The Tribunal does not believe that, in the course of the telephone call, Mr McMullen set out the full detail of Mr Blaney’s complaint but it does accept that he outlined to Mr Bailie the main thrust of the allegations. Indeed, in response to Mr McMullen’s telephone call, the claimant indicated he was not surprised that such a complaint had been made. During that call the date for Mr Bailie’s interview with the complainant was agreed; and, as seen above, the Tribunal, having considered the written record of the interview conducted by Mr Bailie, is satisfied that the claimant was given full opportunity to respond to the allegations made by Mr Blaney during the course of the said interview with Mr Bailie. The omission to previously inform him of Mr Blaney’s complaint and how the said complaint was to be dealt with did not, in the judgment of the Tribunal, place him at any disadvantage in his ability to respond to the allegations. Indeed, at no time did the claimant ever suggest otherwise. However, the Tribunal can readily understand the claimant’s annoyance at what happened; but notes that, on a number of occasions, subsequently, he has received a full and proper apology for what happened and the omissions that occurred. However, the Tribunal whilst accepting the said omissions were wrong and clearly unfortunate, for which he properly deserved and was given an apology, also has no doubt these omissions arose, not as part of some sinister sectarian conspiracy on the part of those involved to in some way fabricate or withhold the complaint from the claimant, but rather arose due to a misunderstanding/mistake. The Tribunal has concluded such misunderstanding/mistake occurred because of the circumstances in which Ms Barlow had effectively ‘parked’ Mr Blaney’s complaint, whilst the claimant was off sick and her subsequent change of role; albeit she still retained a crucial and significant advisory role following the taking up of their new roles in the Equal Opportunities Unit of Mr McMullen and Ms Cusick. In such circumstances the Tribunal can readily understand that it was not realised by Mr McMullen and/or Ms Cusick the claimant had not been properly informed of Mr Blaney’s complaint and how it was to be handled, albeit he clearly should have been; and that Ms Cusick and/or Mr McMullen had wrongly thought it had already been done, which unfortunately was not in fact the case.
Following Mr Bailie’s interview with the claimant on 15 June 2005, Mr Bailie interviewed relevant witnesses and obtained a signed record of each interview and furnished his report to the Equal Opportunities Unit, in relation to Mr Blaney’s complaint on 18 July 2005.
The Tribunal accepts that, although there was some overlap between the two said complaints, not least of some staff, who had to be interviewed, that Mr Bailie properly conducted each investigation separately; albeit, with hindsight, this was not always an easy task. Given the nature of the complaints it may have been better, again with the benefit of hindsight, to have had each complaint investigated separately and by a different person. Although such criticism can be made with hindsight, in the Tribunal’s judgment, it had no effect on the work carried out by Mr Bailie nor did it result in any prejudice to the claimant. Mr Bailie carried out his task diligently interviewing all relevant persons in considerable detail in relation to the allegations made in each complaint.
The Tribunal noted the absence of any complaint by the claimant, in the course of his evidence, of the process followed by Mr Bailie in relation to the investigations and the evidence obtained by him in the course of his many interviews with the various relevant members of staff.
Following the sending of his reports to the Equal Opportunities Unit, Mr Bailie was not asked to carry out any further investigation in relation to the said complaints and indeed had no further involvement in relation to the said complaints or their outcome.
Following receipt of the report by Mr Bailie, enclosing copies of all the interviews, which he had carried out in relation to the claimant’s complaint and also the complaint of Mr Blaney, Ms Cusick’s task, under the relevant procedures, was to analyse what had been found by Mr Bailie in the course of his said investigations and to reach a decision in relation to each said complaint. In view of Ms Cusick’s lack of training and previous experience in the area of equal opportunities, prior to taking up her post as Deputy Equal Opportunities Officer, and the fact that she had never previously dealt with a formal investigation, the Tribunal again could readily understand why it was agreed by the Head of Personnel, Ms Forster, that Ms Barlow would go through the case papers, cross-reference the interviews, draw conclusions and make recommendations on the decision to be made, which recommendations Ms Cusick could either agree or disagree with. To do this was clearly somewhat unorthodox; and, again with hindsight, it may have been better if Ms Barlow had dealt with all these matters from the beginning to the end, even though she had ceased to be the Equal Opportunities Officer in April 2005. Despite her ceasing to be Equal Opportunities Officer, she in fact played a decisive role, in all that took place in relation to the conduct of the formal investigation of the said complaints, as set out previously in this decision. The Tribunal concluded that Ms Barlow properly analysed the evidence, drew conclusions and made recommendations in relation to each complaint on the evidence before her, which she was entitled to make, and which, in or about June 2005, she sent to Ms Cusick to either agree or disagree with. Following receipt of Ms Barlow’s analysis and recommendations, Ms Cusick carried out her own analysis of the documents and independently came to her own conclusions in relation to each of the said complaints. It is not disputed that both Ms Barlow and Ms Cusick came to the same conclusions; but the Tribunal is satisfied, having observed Ms Cusick give her evidence that Ms Cusick, if she had felt it appropriate to do so, would have come to a different decision to that of Ms Barlow. In the event she did not. Equally, the Tribunal has no doubt that the fact that Ms Barlow had, independently, also reached the same conclusion strengthened Ms Cusick’s view about the correctness of her decision. Prior to their appointment to the Equal Opportunities Unit, neither Mr McMullen nor Ms Cusick had any involvement with the claimant.
The Tribunal did not accept there was any evidence to support the claimant’s contention that the result of the said complaint was in any way predetermined. For that to have happened, Mr Bailie, Mr McMullen and/or Ms Cusick, together with Ms Barlow, would have had to have been part of some conspiracy to have achieved such a result. There was no evidence of such a conspiracy; and indeed it was apparent that Mr Bailie had carried out a detailed and thorough interview of all relevant persons, without any interference from the Equal Opportunities Unit. The height of the claimant’s criticism was that Mr Bailie, in his opinion, had not asked the questions he believed should have been asked. The Tribunal could find no grounds for such criticism. Mr Bailie was an experienced investigator. The questions put, as set out in the records of all the interviews, related properly to the various allegations set out in each of the said complaints. Indeed, in relation to his own interview, the claimant was given an opportunity to make any amendments, which he did not do, before signing the relevant record.
2.19 By detailed letter dated 17 October 2005, Ms Cusick informed the claimant that she had rejected the claimant’s complaint against the said colleagues of harassment. These complaints related to complaints made by him against his work colleagues over a period; including, in particular, comments made by those workers which he believed were directed against him, relating to mental illness, anxiety attacks, depression and mental health problems as well as gestures simulating someone having a nervous breakdown. Having considered each allegation in turn and the available evidence, Ms Cusick informed the claimant she had concluded none of the many witnesses interviewed had been able to substantiate his allegations and she had not been able to find any substance in any of the complaints. The Tribunal could fully understand that the claimant did not accept the decision taken by Ms Cusick, which he believed should have been different. However it must be also noted that he acknowledged, during the course of his evidence, that although he knew the harassment, which he had complained of in his complaint, had taken place he could not prove it. In such circumstances it was therefore not surprising, in the Tribunal’s judgment, that, after careful analysis, Ms Cusick had rejected his complaint. Again the Tribunal could find no evidence to support the claimant’s contention this result was also predetermined. Similarly the Tribunal rejected any allegation of conspiracy in relation to the result.
2.20 By letter dated 17 October 2005, Ms Cusick informed the claimant of the conclusion she had reached in relation to Mr Blaney’s complaint against him. She upheld three of the said complaints, on the basis of the evidence before her. Again, the Tribunal can find no basis for criticism of the conclusions reached by her following her analysis of the evidence which had been obtained by Mr Bailie in the course of his investigation.
Again, as with the claimant’s complaint, Ms Cusick in her letter dated 17 October 2005 set out in some detail her conclusions and the reasons for upholding three of Mr Blaney’s complaints and her rejection of the others, on the grounds that either they could not be substantiated due to lack of witness evidence or due to their lack of substance. In her letter she referred to the clash of personalities between the claimant and Mr Blaney which had contributed, in her view, to the situation. She also noted that the claimant had now been transferred to a new team in a new building, which in her opinion had thereby resolved this issue of clash of personalities.
She upheld the following complaints, namely:-
“(1) Cecil Bell allegedly made comments in relation to the newspapers read by Seamus Blaney.
(2) Cecil Bell allegedly made comments about North and West Belfast and claimed that people from these areas were inferior to people from his area of the city, namely East Belfast. Cecil also allegedly referred to West Belfast as ‘the Wild West’ and that people from there were a ‘differently clientele, same fraternity as yourself’.
(3) Cecil Bell allegedly used the term GAA ‘in a horrible voice’.
The Tribunal could see no reason to reject Ms Cusick’s conclusions on the evidence before her, which included the detailed interviews conducted by Mr Bailie; and which, as seen above, were not the subject of any challenge or criticism as inaccurate records of what Mr Bailie had been told during the course of those interviews.
At the conclusion of each letter informing the claimant of the result of each complaint the claimant was informed of his right to ask for a review of the decision, under the procedures, if he was unhappy with the outcome setting out the reasons why he was dissatisfied.
2.21 Given the Tribunal’s judgment that Ms Cusick’s decisions in relation to the said complaints were decisions which she was entitled to make, on foot of the evidence before her, the Tribunal could see no basis for the claimant’s contention that the findings were some form of Catholic conspiracy on the basis that Mr Bailie, Mr McMullen and Ms Cusick were Roman Catholics, whereas the claimant was Protestant. In making such an allegation the claimant ignored the fact that Ms Barlow, a co-religionist, had played a major role in relation to this matter and indeed had come to the same conclusion, as Ms Cusick, in relation to the results of each complaint. This view of the claimant was hard to reconcile with the fact that, in the course of his evidence, he contended that if Ms Barlow, a Protestant, had been the decision-maker, and there had been no involvement by Mr Bailie/Mr McMullen and/or Ms Cusick, a different result, favourable to the claimant, would have been reached in relation to each complaint.
The Tribunal was also informed by Ms Cusick in the letter dated 17 October 2005, in which she upheld certain of Mr Blaney’s complaints, as set out above, that the matter would be referred to the Personnel Officer for a decision on what disciplinary action was appropriate.
2.22 It is correct that in her letter of 17 October 2005, informing the claimant of her decision in relation to Mr Blaney’s complaint, Ms Cusick wrote:-
“I am writing to advise that further to the formal complaint made by Mr Seamus Blaney …”;
she did not state the date of his said formal complaint; whereas in relation to the claimant’s complaint against his work colleagues, Ms Cusick had stated:-
“I am writing to advise that further to your formal complaint of 4 April 2005 …”.
Ms Cusick was clear in her evidence that the omission of the date was not deliberate or in any way an attempt by her to deceive and/or mislead the claimant; but suggested it was in fact a simple error on her part. The Tribunal did not consider the omission was of any significance in relation to how each of the complaints were treated or determined. Firstly, the claimant, at this stage, already knew that the complaint of Mr Blaney had been treated as a formal complaint; and there was no evidence to suggest that, having been so treated by the respondent, as set out previously, that it was treated in any different way to the complaint of the claimant, which was also treated as a formal complaint. The omission of the date of the complaint in the said letter informing the claimant of the outcome of the complaint by Mr Blaney made no difference to the outcome, which was the sole purpose of the letter. In relation to the claimant’s complaint there was no doubt that it was made on 4 April 2005, a specific date, and it was treated as a formal complaint at all material times. For the reasons set out previously in this decision, in relation to Mr Blaney’s complaint against the claimant, the position could never be as clear cut in relation to ascertaining a specific date when it was decided the complaint was to be treated as a formal complaint. In the circumstances, it was therefore not surprising, in the Tribunal’s opinion, that no specific date had been given. Indeed, it might have been difficult, in the circumstances, to give such a specific date.
2.23 Following the decisions taken by Ms Cusick, as set out in the letters dated 17 October 2005 in relation to the claimant’s complaint and Mr Blaney’s complaint against the claimant, the claimant was clearly dissatisfied with the decisions of Ms Cusick. However, although he was entitled to do so, under the relevant procedures, the claimant did not seek a review of those decisions.
The claimant, by letter dated 15 December 2005, wrote to Mrs Sharon Gallagher (neé Toner), the Personnel Officer of the Agency, in which he complained, inter alia, that:-
(i) Mr McMullen and Ms Cusick, as Equal Opportunities Officer and Deputy Equal Opportunities Officer, had discriminated against him on grounds of religious belief.
(ii) These officers had further victimised him after he had raised a complaint that several colleagues had harassed him.
(iii) These officers had colluded with Mr Seamus Blaney to fabricate a claim against him.
Mr Bailie, the investigating officer, failed to carry out the investigation in an appropriate way was therefore also guilty of discrimination.
2.24 Mrs Gallagher, is a Roman Catholic and had been the Personnel Officer for the Agency from in or about November 2005. As Personnel Officer, she had responsibility to oversee the Human Resources function of the Agency, the administration of its policies and the administration of its policies and procedure. She was also responsible for decisions relating to the dismissal of staff in the Agency.
2.25 In essence, the claimant in the said correspondence was making a complaint of unlawful discrimination against those who, under the relevant Equal Opportunities procedure, were charged with investigating and making decisions in relation to complaints under the said procedures. It would be hoped such a complaint, in any organisation, would be unusual. Indeed, the Tribunal accepted that no such complaint had ever been previously made in the Agency. In the circumstances, it was therefore not surprising that the Equal Opportunities procedures did not expressly provide for the handling of such a complaint. Having acknowledged receipt of the claimant’s letter, Mrs Gallagher decided to conduct, in the circumstances, a review ‘on paper’ of what had taken place involving Mr McMullen, Ms Cusick and Mr Bailie in relation to the said complaints made by the claimant and Mr Blaney. In addition, she also spoke to Mr McMullen, Ms Cusick and Mr Bailie to obtain an understanding of the time sequence in this matter. Unfortunately, which failure she recognised in evidence at the hearing, she did not document these discussions. However she contended, which evidence the Tribunal accepted, that she made her decision, on foot of the above review, based largely on the written documentation relating to these matters – which, insofar as relevant and material, has been referred to previously in this decision. In a letter dated 9 January 2006, Mrs Gallagher set out the detailed review of the matter carried out by her. She acknowledged and accepted in the course of her letter that the claimant had made allegations of a serious nature. However, in essence, she rejected the allegations of unlawful discrimination made by him; albeit she accepted there were failings in note taking and/or notification and communication. She did not consider that these failures were evidence of unlawful discrimination. Mrs Gallagher was the line manager for Mr McMullen and Ms Cusick and the Tribunal considers that it was appropriate, in the circumstances, and in the absence of specific procedures for such a situation, that she dealt with the claimant’s complaint of discrimination against Mr McMullen, Ms Cusick and Mr Bailie, given her line management responsibilities for the Equal Opportunities Unit. The Tribunal also recognised that this was a unique situation, given the complaints were against those charged under the procedures to deal with such complaints. However, the Tribunal was concerned that, although there was a complaint by the claimant of unlawful discrimination, Mrs Gallagher was content to merely carry out a paper review and not to carry out a full investigation, as was carried out in relation to the earlier complaints, in the absence of specific procedures to cover this situation. Indeed, despite the fact that Mrs Gallagher was Personnel Officer for the Agency, she was not in fact specifically trained to carry out such an investigation. Under the Agency’s Equal Opportunities procedure, where the decision of the Equal Opportunities Officer, following an investigation of a formal complaint, is disagreed with by the complainant, the complainant can ask for the decision to be reconsidered. If, following a review, the decision is unchanged and the complainant is still dissatisfied, he/she can write to the Resources Director of the Agency asking that the case be re-examined under the normal Agency grievance procedures. As indicated previously, the claimant did not take advantage of this provision in relation to the decisions taken by Ms Cusick; but rather made a specific complaint of discrimination against Ms Cusick herself and Mr McMullen and Mr Bailie. The Tribunal concluded that, in essence, Mrs Gallagher, faced with the said apparent ‘lacuna’ in the procedures, decided to carry out a review of what had taken place and, in particular, in relation to the actions of the Equal Opportunities Officer, his deputy and the investigation officer – the sort of review which would have been carried out if a complainant was dissatisfied with the decision of an Equal Opportunities Officer investigating a complaint of discrimination in the normal way. She decided not to carry out an investigation, like that carried out by Mr Bailie, and which would have been carried out if the complaint had been against a member of staff who was not in the Equal Opportunities Unit. This was clearly somewhat unorthodox; but the Tribunal could understand why she did so, given the provision for such a review in the Equal Opportunities procedures but, in particular, because of the unique situation which had occurred and which was not expressly provided for under the procedures. Mrs Gallagher was the relevant line manager for the members of the Equal Opportunities Unit. It was also apparent from her detailed response to the claimant that she considered, albeit on paper, what had taken place in considerable detail. Although she did not uphold the complaint of discrimination she was prepared to acknowledge and accept that there were justified criticisms to be made in relation to failures of notification and/or communication, as indicated previously. The Tribunal found that this review was not, as suggested by the claimant, ‘a rubber-stamping exercise’ on the part of Mrs Gallagher of actions taken by members of staff for whom she had line management responsibility or was designed in some way to cover up any alleged discriminatory actions against him. The Tribunal considers that some express provisions should be made in the future to the Agency’s procedures to deal with the situation where the allegation of discrimination is against the very persons, normally charged to investigate such allegations. With the benefit of hindsight, the Tribunal thinks that it would have been better, in the absence of a specific procedure, rather than to adapt the procedures and to carry out the said review, if Mrs Gallagher had given the claimant’s complaint to be investigated by an independent and trained investigator with no previous involvement with the matter or the Equal Opportunities Unit. To have done so, might have avoided many of the issues raised in these proceedings.
2.26 Following Mrs Gallagher’s rejection of the claimant’s complaint, the claimant, in a letter dated 21 February 2006 raised a complaint of unlawful discrimination and/or victimisation against Mrs Gallagher on the grounds she had failed to fully investigate his complaint, as set out in the letter dated 13 December 2005. This was referred to Ms Andrea Orr, the Agency’s Resources Director. She informed the Tribunal she was a Christian but with no practising denomination. As a Grade 6 Director in the Agency, she was the responsible person to deal with a grievance under Phase 3 of the Agency’s grievance procedures.
Phase 3 of the Agency’s grievance procedures provides as follows:-
“Phase 3 – Grade 6 Director
Will deal with any grievance which has not been resolved at Phase 2
The Grade 6 Director will endeavour to resolve the matter within 10 working days of receipt of a referral and within that time notify the officer(s) concerned of the outcome.
When the matter cannot be resolved within that period the Grade 6 Director will arrange a meeting of those directly concerned, including the trade union representative, and will notify the officers of the outcome in writing within a maximum of 10 working days of receipt of the referral. Where the officer(s) are dissatisfied with the outcome the matter may at their request, be referred to the next phase as follows:-
In the case of an individual grievance to the Chief Executive (Phase 4)
…
Where either Phase 4 or 5 is to be invoked, written reasons why the officer(s) is/are not satisfied should be provided within 10 working days of the date of receipt of the letter from the Grade 6 Director advising the officer(s) of the outcome of Phase 3.”
Ms Orr, by letter dated 28 February 2006, pointed out to the claimant, he at no time had sought a review of Ms Cusick’s decisions in relation to his complaint and the complaint of Mr Blaney; and that following such a review, if he remained dissatisfied, he could write to her asking for the case to be re-examined under the normal grievance procedures. She pointed out also that there was no time-limit in relation to such a review. Indeed, as indicated previously, the claimant had not sought such a review.
In relation to his complaint of discrimination in relation to the officers of the Equal Opportunities Unit, she also referred to what the Tribunal has previously referred to as the ‘lacuna’ in the procedures, and that she was satisfied that, in these circumstances, Mrs Gallagher had taken appropriate action when she dealt with the matter in the manner set out in the previous paragraph. She rejected the claimant’s claim and invited him, if he wished, to invoke Phase 4 of the Agency’s grievance procedures, by writing to Mr McGahan, the Chief Executive.
2.27 It is necessary to note at this stage, although she was conducting a grievance, she did not write to the claimant, prior to giving her decision, as set out in the letter dated 28 February 2006, to invite the claimant to any meeting in order to discuss his grievance with him but merely wrote to him on 28 February 2006 rejecting his grievance. Although the grievance may have been sent to Ms Orr, the Tribunal accepts the grievance was against the Agency, his employer, arising out of actions alleged to have been carried out by its employees for which it was responsible.
Ms Orr contended that such a meeting was not necessary under Phase 3 of the procedures, provided she was able to resolve the grievance within the 10 day period referred to; and, ‘by resolving the grievance’, she interpreted this to mean that she was been able to reach and take a decision on the matters raised. Since she had been able to do so, as set out in her letter dated 28 February 2006, under her interpretation of the provision, no such meeting was required to be given by her.
The Tribunal is satisfied that this interpretation of the said procedure and, in particular, Paragraph 6.2 of the said procedures is not a proper interpretation of those procedures; albeit, the Tribunal is also satisfied that, at that time, this was the interpretation given to it by the Grade 6 Director. Indeed, the Tribunal was also satisfied in doing so she was applying the interpretation, which was the custom and practice followed at that time by the relevant staff of the Agency in relation to the said grievance procedures. It was confirmed in this view because, whenever it came to consider the operation of Phase 4 of the grievance procedures and the appeal to the Permanent Secretary, as set out later, similar wording was interpreted in a similar manner by the Chief Executive and the Permanent Secretary. The Tribunal accepted the interpretation followed by Ms Orr, albeit wrong, was not therefore an interpretation followed only by her but was the custom and practice at that time in the Agency. Further it was not an interpretation used to deal solely with the claimant’s allegations but, in the Tribunal’s view was the interpretation followed in relation to any grievance brought by any employee under the procedures at that time.
2.28 In this case, regardless of the above interpretation, there is no doubt that no meeting was arranged by Ms Orr. This was done, despite the fact that the new statutory grievance procedures, introduced in April 2005 under the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 required the claimant to have been invited by his employer to such a meeting (see further Paragraph 5.12). Despite Ms Orr’s senior role in the Agency as Resources Director, which post she took up in July 2005, the Tribunal found it most unsatisfactory that, in this position, she appeared to have no knowledge of the introduction under the said legislation in April 2005 of the new statutory grievance procedures and/or any potential impact on the Agency’s grievance procedure, in the absence of any amendment, following the introduction of the new procedures. Indeed, she does not appear to have become properly aware of the new statutory grievance procedures until in or about December 2007, when the Central Personnel Group of the Department of Finance & Personnel notified the Agency of the new statutory procedures and/or their implication for the Agency’s procedures, which had been originally published in December 1999 by the then Resources Director but had not been the subject of any relevant amendment thereafter. The Tribunal found Ms Orr’s lack of knowledge of the new procedures following her appointment until December 2007 all the more surprising given her responsibilities for personnel matters and her qualification in such matters. The new statutory procedures were introduced in April 2005, but yet nothing was done to amend the Agency’s grievance procedures until notification by the Central Personnel Group in December 2007. In essence, Ms Orr took the view that she was required to follow the Agency’s grievance procedures unless and until they were amended, which had not occurred at the relevant time. Given that Ms Orr, as the Resources Director of the Agency, had responsibility, amongst other matters, for Personnel and indeed was Mrs Gallagher’s line manager, the Tribunal was shocked that Ms Orr, despite the considerable publicity that there was at the time of the introduction of these statutory grievance procedures, had not taken, at the time, any steps to acquaint herself with these new procedures and/or to ensure that the Agency’s procedures were fully compliant with the new statutory grievance procedures. Whilst the Central Personnel Group might have overall responsibility for such amendments, as stated by Ms Orr, the Tribunal found it difficult to understand why Ms Orr, in her said position, had not taken steps to contact the Central Personnel Group to ask for their advice in relation to whether their procedures required to be amended to comply with the new statutory grievance procedures. The Tribunal had no doubt that by failing to invite the claimant to a meeting, prior to taking her decision, Ms Orr failed to comply with the new statutory grievance procedures, which applied to the claimant’s grievance.
2.29 Mr Bernard McGahan, a Roman Catholic, was the Chief Executive of the Agency between 12 January 2004 and 12 November 2006. He received a letter dated 7 March 2006 from the claimant seeking to invoke Phase 4 of the Agency’s grievance procedures, as he was not satisfied with the response of Ms Andrea Orr, the Agency’s Resources Director, dated 28 February 2006. In particular, he contended Ms Orr had not addressed the issues previously raised with Mrs Gallagher and also Ms Orr had failed to follow the procedures for dealing with such grievances. The Tribunal was again satisfied Mr McGahan was following the Agency’s grievance procedures (P10/99, made in December 1999 and which had not been updated/amended, as indicated previously).
Under Paragraph 7 of the Agency’s grievance procedures it is provided:-
“7 Phase 4 Chief Executive
Will deal with individual grievances not resolved in Phase 3.
The Chief Executive will endeavour to resolve the matter within a maximum of 10 working days of receipt of a referral and within that time notify the officer concerned of the outcome.
When the matter cannot be resolved within that period the Chief Executive will arrange a meeting of those concerned, including any representative and will notify the officer of the outcome within a maximum of 10 working days from receipt of the referral.
At the end of Phase 4 the internal procedure for individual grievances has been exhausted – but see Paragraph 9.1 (this relates to the right of appeal to the Permanent Secretary, to which reference will be made later).”
The Tribunal noted that the wording in Paragraph 7 of the grievance procedures was similar to the wording found in Paragraph 6 of the grievance procedures, as referred to above.
The Tribunal is satisfied that, in connection with his dealing with the claimant’s Phase 4 grievance, Mr McGahan did not merely evaluate the process that had been previously undertaken but had taken a wider view as to his role, given that the complaint to Mrs Gallagher related to the actions of the Equal Opportunities Officer and the Deputy Equal Opportunities Officer. The Tribunal is satisfied that, in adopting this wider role, he had interviews with Ms Toner, Ms Barlow, Ms Cusick and Mr McMullan and considered all the relevant documents/correspondence obtained in relation to their involvement in the matter.
By letter dated 24 March 2006, Mr McGahan wrote to the claimant and informed him that he did not uphold the claimant’s Phase 4 grievance. His letter was detailed; and it is apparent from its contents that he considered all the circumstances of this matter from the initial complaints made by the claimant and/or Mr Blaney. Again, Mr McGahan recognised the failures of notification and/or notification and communication, to which previous reference has been made, and again apologised for them but rejected any suggestion that these were deliberate or malicious or part of some wider conspiracy, as alleged by the claimant. In summary, he concluded they were simply mistakes that should not have happened and for which he apologised. In particular, he rejected any suggestion that the above errors were part of some unlawful discriminatory conspiracy. Again the Tribunal is satisfied that it is apparent from Mr McGahan’s letter and the notes of his meetings in relation to the matter that this was not, as contended by the claimant ‘a rubber-stamping exercise by the Chief Executive’.
2.30 Mr McGahan did not consider it was necessary for him to hold a meeting with the claimant before making his said decision. In doing so, he also took the view that it was unnecessary to do so under the interpretation of the grievance procedures as followed at that time by the Agency. He again took the view that under Paragraph 7 of the grievance procedures it was for him to resolve the matter within the relevant 10 day period; and it was only, if he could not do so, was it necessary for a meeting to be arranged, as provided for under Paragraph 7.2. Again, the Tribunal did not accept that this was a proper interpretation of the wording in Paragraph 7 for similar reasons to those set out in relation to Paragraph 6 of the grievance procedures. However, it was also clear that Mr McGahan, like Ms Orr, was following the same interpretation, albeit wrongfully, of the grievance procedures; and that, in those circumstances, he had decided no meeting was required to be offered. As the in the case of Ms Orr’s failure to hold a meeting in breach of the new statutory grievance procedures, the Tribunal also came to the conclusion that Mr McGahan’s failure to invite the claimant to a meeting was also a breach of the new statutory grievance procedures by the Agency, the claimant’s employer.
2.31 Although Mr McGahan was the Chief Executive of the Agency, he also had no awareness in March 2006 of the requirements, since April 2005, following the introduction of the new statutory grievance procedures, for the claimant, who was making a grievance against the Agency, as his employer, to be invited to a meeting before a decision was reached. This lack of awareness by a Chief Executive of the Agency the Tribunal found most unsatisfactory. The Tribunal has little doubt that, if Mr McGahan, and indeed Ms Orr, had been aware of the necessity to arrange such a meeting, before a decision was reached, that they would have done so. Mr McGahan had some awareness of the Northern Ireland Civil Service Handbook, which provided for such a meeting; but as he was following the Agency’s own procedures, interpreted as seen above, he did not consider he was required to hold such a meeting. The evidence before the Tribunal, whether, in March 2006, the said procedure in the Handbook was in force or introduced at a later date was unclear. Indeed it seemed likely the version of the Handbook produced in evidence did not come into force until October 2007. The Agency, although part of the Northern Ireland Civil Service, was entitled to operate its own procedures and did so and the said grievance procedures, as indicated above, were part of those Agency procedures. The Tribunal found it particularly disturbing that a Government Agency, which fell under the jurisdiction of the eighth-named respondent, could continue to operate for some considerable period after their introduction by legislation, grievance procedures which did not comply with the statutory grievance procedures. This was in circumstances where another Government Department, the Department for Employment and Learning, had introduced these new statutory grievance procedures and indeed had widely published them on the date of their introduction. In the Tribunal’s opinion, this was a lamentable failure, which should not have occurred.
2.32 Alan Shannon, a Protestant, from 10 September 2003 has been the Permanent Secretary of the eighth-named respondent, the Department for Social Development. He became involved in this matter when the claimant, wrote to him on 3 April 2006, to appeal against the decision of the Chief Executive, as referred to previously, not to uphold the claimant’s grievance, which decision had been notified to him in the letter dated 24 March 2006. There was no dispute that, at that time, under the grievance procedures the claimant was entitled to contact the Permanent Secretary, as an employee of the eighth-named respondent, on a personal matter with which he was dissatisfied.
Under Paragraph 9 of the grievance procedure it was provided:-
“9 Permanent Secretary
9.1 Any officer who is dissatisfied on a personal matter has the right of appeal to the Head of the Department.”
The Tribunal accepted that, in dealing with this reference by the claimant to him under the said procedures, Mr Shannon was not seeking to second-guess decisions made by others as a product of due process or to re-investigate every allegation surrounding this case; but rather was concerned to satisfy himself that the claimant had been afforded appropriate access to the investigating procedures and that these had operated satisfactorily.
Mr Shannon, in evidence, confirmed that, in reviewing the decision and the circumstances which had led up to it, he had also relied on the Agency’s own grievance procedures, in force at that time, and to which reference has been made above; and not to any grievance procedures, which were issued by the Department of Finance & Personnel and contained in the Northern Ireland Civil Service Staff Handbook. The latter document made provision, whenever a grievance was raised, for the person raising the grievance to discuss the grievance with the officer appointed to deal with the grievance. Mr Shannon confirmed that the Agency, at the time, had delegated authority to make its own arrangements for the dealing with the conduct of grievances brought in the Agency. The relevant procedures were those contained in Circular P10/99 and he confirmed that it was therefore correct for Ms Orr and Mr McGahan to have followed those procedures and not any procedures contained in the Northern Ireland Civil Service Handbook. Mr Shannon was of the view that the procedures under the grievance procedure had been operated properly by them and, in particular, in relation to the failure of either Ms Orr and/or Mr McGahan to hold a meeting with the claimant before each had reached their decisions, to which reference has been more particularly referred to elsewhere in this decision. In doing so, it was apparent to the Tribunal, that Mr Shannon had also adopted the interpretation of the procedures taken by Ms Orr and Mr McGahan that no such meeting was required if he/she was able to resolve the matter (ie take a decision) within the relevant time period. For reasons previously set out, the Tribunal does not accept that their interpretation of the procedures and the failure to provide a meeting to the claimant was correct. For the same reasons, the Tribunal considers that Mr Shannon was also mistaken in upholding that interpretation of the procedure, which he relied upon in refusing to hold any meeting with the claimant before reaching his decision. By letter dated 21 April 2006, Mr Shannon rejected the claimant’s appeal. In so notifying the claimant in his memorandum of 21 April 2006 that the appeal was not upheld the Tribunal accepts that Mr Shannon considered that this was the final decision under the grievance procedures of the Agency. Again, it is noteworthy to note that Mr Shannon, a Protestant, gave a detailed reply, repeating many of the matters which had already been addressed by Ms Orr and Mr McGahan. Mr Shannon also had a meeting, before making his decision, with Mr McGahan. However, in line with the above interpretation he did not consider it was necessary for him to have a meeting with the claimant; and he informed the Tribunal that it had not been the practice, following such interpretation, for such a meeting to be granted whenever any such appeal had been previously made to the Permanent Secretary. However, it became clear, in the course of his evidence, that Mr Shannon also had no awareness or appreciation of the introduction in April 2005 of the new statutory grievance procedures and of their impact on the Agency’s grievance procedures and, in particular, the requirement to invite the person making a grievance to discuss the grievance before any decision is taken. The Tribunal can fully accept that Mr Shannon, as Permanent Secretary, of the eighth-named respondent would not have been involved in the day-to-day arrangements for implementing such legislation and, in particular, implementing any amendments required to the procedures operated by the Agency. However, it was very concerned that he seemed unaware of the necessity to ensure, following the commencement of the above legislation in April 2005, that the Agency, for which he as Permanent Secretary had overall responsibility, continued to operate procedures which did not provide, inter alia, for a Step 2 meeting to be arranged, as required under the said statutory grievance procedures; and that no amendments had been made to the grievance procedures to ensure the procedures operated in compliance with the new statutory requirements. Mr Shannon appeared to be unaware the new statutory procedures were requirements, rather than mere guidance, which had to be followed by an employer. The Central Personnel Group of the Department of Finance & Personnel, Mr Shannon made clear in evidence, which evidence the Tribunal accepts, would have had the formal responsibility to inform the Department of the changes required to be made. However, this was all in the context of the publicity issued by Government at the time of the introduction of the new statutory grievance procedures which does not appear to have filtered through to the Agency or Mr Shannon in advance of any action by the Central Personnel Group. If, as accepted, the responsibility for providing guidance to the eighth-named respondent and/or the Agency was that of the Central Personnel Group, Department of Finance & Personnel, then it is clear that there was a clear failure by the Central Personnel Group to give such guidance; but this had the consequence that the claimant was not invited to a meeting by either Ms Orr, Mr McGahan, or indeed Mr Shannon, before decisions were taken and notified to him. Again the Tribunal finds it most unsatisfactory that such a Group, with the responsibility to advise other Government Departments and/or Agencies, did not do so promptly and/or in time, following the commencement of the new procedures.
Following Mrs Gallagher’s decision to reject his grievance, the claimant contacted, in February 2006, his member for parliament, Mr Peter Robinson MP MLA, who referred the matter to Mr Nigel Hamilton, the then Head of the Northern Ireland Civil Service. In his letter of reference, he asked, in particular, “Mr Hamilton to satisfy himself that in equal opportunities terms those who look at these kind of cases do not just come from just one community. This seems to have been part of the problem in this instance and in order for any outcome to be accepted it must be seen to have been fairly addressed”.
Mr Hamilton provided a detailed reply to Mr Robinson, dated 10 April 2006. In the course of that reply, Mr Hamilton said:-
“The Equal Opportunities Officer who had made the original decision not to pursue the complaint against Mr Bell until he returned from sick leave decided that the two complaints should be investigated concurrently and that the same investigating officer and note taker should be appointed to consider the complaints.”
The Tribunal could understand the claimant’s contention that he did not consider this reply was accurate, as the formal decision-maker that the complaints be investigated concurrently and the same investigating officer and note taker be appointed to consider the complaints, was not Ms Barlow; but, as the Tribunal has set out in previous paragraphs of this decision, although Ms Barlow did not take the formal decision, she was the effective decision-maker in the circumstance, given Mr McMullen and Ms Cusick were new to their posts, untrained and relied on Ms Barlow’s advice. In the circumstances, the Tribunal did not consider that what was stated by Mr Hamilton, albeit not strictly accurate in the circumstances, gave any strength to the claimant’s contention that such a reference to Ms Barlow’s role was in order to deflect from the fact that ‘an all Catholic Equal Opportunities Unit had discriminated against him’.
2.34 As stated previously, the claimant in or about March 1996 was off work for a short period. Following the incident in November 2004 the claimant was off work but returned to work for a short period. He returned to work in a different unit for a phased return in mid-February 2005 but went off work again in March 2005 due to stress and never returned thereafter to work with the Agency. Indeed, in evidence to the Tribunal, he informed the Tribunal he had not worked since suffering from hypertension, taking medication of seven tables a day, and was continually tired and easily annoyed. He referred to problems with his blood pressure. Prior to his absence from work due to illness from March 2005, the claimant worked in the Call Handling Unit.
2.35 Following his absence from work from in or about March 2005, the claimant was the subject of various Occupational Health Service (OHS) examinations during the course of 2005. In May 2005 it was accepted he was temporarily unfit but by July 2005 OHS advised he was fit for work, but noted he was not willing to return to his post and that resolution of his work problems might give a clearer indication of a return date. He was reminded by his then line manager, Mr Montgomery, at a meeting in June 2005 that inability to return to work might lead to dismissal on grounds of inefficiency being considered; and in July 2005 he was warned that failure to resume work by 1 September 2005 might result in occupational sick pay being withheld. The claimant appealed the OHS decision that he was fit to return to work and was asked to provide a detailed medical report which was received on 15 November 2005 from the claimant’s doctor – stating, inter alia, he suffered from hypertension and an anxiety state. In December 2005, OHS advised that he was unfit for work. However, OHS also concluded that he would not be considered permanently incapacitated and therefore ill-health retirement would not be appropriate. In January 2006, a written warning, relating to his ongoing (since March 2005) unsatisfactory attendance was issued by Ms Sharon Courtney, a Catholic. She was aware the claimant had an Equal Opportunities case but did not know any of the details and did not take anything in relation to it into account. This warning was subsequently upheld.
2.36 By June 2006, OHS again advised the claimant was unfit for work. It advised, with further medical treatment it was hoped his medical condition would improve, although it might be subject to relapse. Again it was noted retirement on medical grounds was not appropriate.
2.37 In a letter dated 10 July 2006, Mr McGrattan, Personnel Branch, wrote to the claimant. In particular, he was informed that if he did not resume duty by 31 July 2006 the Agency would actively consider his employment position which could result in his dismissal on grounds of inefficiency as a consequence of his continuing long-term sick absence from March 2005 in accordance with the agreed procedures, followed in the Agency, as set out in the NICS Staff Handbook (Paragraphs 1.6.1 – 1.6.4). The letter acknowledged that he had been examined by OHS and remained unfit for work but stated:-
“Unfortunately the stage has been reached whereby the Agency cannot continue to sustain your absence from duty any longer.”
It is relevant to note in this context that, by this time, the claimant’s grievance and appeal to the Permanent Secretary had been rejected. It is also relevant to note that since November 2004 he had not been required to work with Mr Blaney or any of the colleagues against whom he had complained and indeed had not been at work for some 15 months. Following this letter he sought a meeting with Mr McGrattan. No meeting took place but in the course of a phone call the claimant alleged that he felt he was being victimised, as his attendance had not been previously a problem. In the course of the call the claimant maintained he would not be able to return to work at the Agency. It was clear to the Tribunal that, given his dissatisfaction with the results of his complaints, albeit none had been upheld, the claimant had no intention of returning to work, even if he was found to be fit to work. He was told that was his decision and of the potential consequences of such action. The claimant did not resume work on 31 July 2006.
2.38 No further meeting was held with the claimant. On 10 August 2006, Mrs Sharon Gallagher, as Personnel Officer, wrote to the claimant dismissing him on grounds of inefficiency due to unsatisfactory attendance in accordance with the said relevant procedures contained in the Staff Handbook – referring, in particular, to his prolonged absence from work which she considered extended far beyond what could be regarded as reasonable. He was informed of his right of appeal, which he exercised.
2.39 The Tribunal accepted her evidence that, although she had, as previously referred to, had involvement with the claimant in relation to his complaint against the members of the Equal Opportunities Unit and his subsequent grievance in relation to her handling of that complaint, her decisions both in 2006 and later 2007 (see later) in relation to the dismissal of the claimant had no regard to same and she only had regard to the issue of his lengthy absence. The Tribunal was so satisfied, in the absence of any other evidence and having heard her strong denials in cross-examination which did not alter. She accepted that she had failed to offer the claimant a meeting prior to dismissing him, which she acknowledged was in breach of the statutory procedures. However she informed the Tribunal that she had taken up her post in late 2005, as Personnel Officer, and was at that time unaware of the new procedures, introduced in April 2005. The Tribunal has already criticised the lack of awareness in the Agency and the eighth-named respondent of these new changes. Mrs Gallagher was the Personnel Officer but yet was unaware of the changes in 2006, when dealing with this dismissal. Once again she pointed the blame, for her lack of awareness, at the Central Personnel Group. Despite its misgivings and recognition of the unfairness, the Tribunal accepts her failure to grant a meeting at the time was by reason of her lack of awareness.
2.40 The appeal was heard by Ms Orr, the Agency’s Resources Director, who had previously dismissed the claimant’s grievance. She decided, in a letter dated 21 November 2006, that the appeal should be upheld and the decision overturned. She considered it was procedurally flawed as the procedures set out in Paragraph 17.8 of the Agency’s Guidance for Line Managers on Sick Absence Procedures and Managing Attendance were not followed due to a failure to explain to the claimant the options in relation to his continuing absence following the OHS decision that he remained temporarily unfit.
2.41 It is relevant to note that Ms Orr, who upheld his appeal, was the same person against whom the claimant complained of unlawful discrimination under the 1998 Order, when she rejected his grievance. In addition the Tribunal, if it had been required to do so, would have considered the dismissal, if it had proceeded, unfair and indeed automatically unfair, due to the failure of the Agency to invite the claimant to a meeting prior to taking such action. In the judgment of the Tribunal, this failure was in breach of the statutory dismissal and disciplinary procedures introduced under the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolutions) Regulations (Northern Ireland) 2004 (see further Paragraphs 5.2 – 5.6 of this decision).
2.42 In November 2006 the claimant, via his trade union representative, advised the Agency he did not feel he could return to work and wished to be considered for ill-health retirement and OHS were asked to take this into account when OHS carried out the next medical examination, which took place in December 2006.
Following that examination on 8 December 2006, Dr Beattie who carried out that examination found that it was not appropriate for the claimant to be retired on grounds of ill-health – there was not the necessary permanent incapacity. But, secondly, he also accepted he was unfit at that time. Dr Beattie, in the Tribunal’s judgment, was properly carrying out an examination for two purposes. Firstly, whether he was medically fit at the time – but also whether he satisfied the necessary test of permanent incapacity for medical retirement. These are separate and distinct matters but also matters for the judgment of the relevant medical officers of the OHS. In particular, these were not the decision of the administrative staff of the Agency.
2.43 Following this examination, the claimant met on 19 December 2006 with his line manager, Mr Montgomery, but also Ms Claire Henderson, Staff Officer, in the Agency’s Helpline. She is a Protestant, though non-practising. This meeting was held in a coffee shop in Botanic Avenue, Belfast. A minute of the meeting was prepared, which the claimant signed on 21 January 2007. In the course of the meeting the claimant confirmed he would not be returning to work as his health had significantly deteriorated and referred to increased medication. But he also said he would not return to work unless protection could be guaranteed and he had no confidence in the Civil Service as a whole and referred to his pending Tribunal proceedings. He was informed by Ms Henderson she understood OHS had found him unfit for work, but was unaware of the decision relating to ill-health retirement. She confirmed in letter dated 20 December 2006 that OHS had decided retirement on medical grounds was not appropriate based on the evidence provided.
He was also informed by her:-
“As you have advised that you would wish to appeal this decision, the next stage is to provide medical evidence to an independent medical board. A new report is required that is comprehensive and clearly supports your case on medical grounds.”
The Tribunal accepts that was her understanding of what would happen; and in view of her lack of detailed knowledge of the process had indicated Personnel would advise him separately about the process.
2.44 On 24 January 2007 a report was received from the claimant’s GP in relation to his appeal for ill-health retirement which was forwarded to OHS. On 6 February 2007, Dr Beattie informed Mr McGrattan of Personnel the report from the GP did not overturn his earlier recommendation that ill-health retirement (permanent incapacity) had not been established – since the GP stated it would seem unlikely he should be able to return to this environment or work in the foreseeable future. In Dr Beattie’s opinion, foreseeable future was not the same as permanent incapacity. Dr Addley, Director of OHS, confirmed that an independent medical appeal board would not be arranged, in circumstances where the new evidence produced for the appeal was not thought to alter the initial decision of Dr Beattie, for the reasons set out above. The Tribunal could understand there was expense and difficulty in arranging an independent medical board for such an appeal, in particular where it was considered no new evidence had been produced for that appeal to have any prospect of overturning the original decision. Whilst the Tribunal accepts Dr Beattie’s confirmation of his earlier decision, on receipt of the GP report, was in essence treated by OHS as a rejection of the appeal the Tribunal, was concerned it was more in the nature of a review filtering out of ‘useless appeals’ than a true appeal, as suggested by the procedures for such appeals – which filtering process had been incorporated, as a matter of practice by OHS into the procedures. The decision on the appeal in relation to the ill-health retirement was final, which required to be acted upon by the Agency. Ill-health retirement required a finding of permanent incapacity to satisfy the Pension Scheme criterion. The claimant in his evidence attempted to suggest Dr Addley, as Director of OHS who rejected his appeal, was also part of this conspiracy to discriminate against him. However, when asked what evidence he had to support such an allegation, he was unable to provide any.
2.45 By letter dated 15 February 2007, Dawn Taylor, a Protestant, in the Agency’s Workforce Health Unit informed the claimant of the decision of OHS to reject his appeal and also invited him to a meeting to discuss this and his ongoing absence. The claimant refused to attend the meeting.
2.46 By letter dated 22 February 2007, Dawn Taylor again wrote to him formally advising him of his unsuccessful appeal but also requiring him to return to work on 8 March 2007. In particular the letter stated:-
“Failure to return to work by the date stated would result in the Agency giving serious consideration to your dismissal on the grounds of inefficiency due to your long-term absence since 11 March 2005.”
2.47 The statutory dismissal and disciplinary procedures, referred to previously, apply when an employer contemplates dismissing or taking disciplinary action against an employee. When such action is ‘contemplated’ by an employer is a subjective one (see Madhewoo v NHS Direct [EAT0030/06]) and it is for the employer to establish the date when such contemplation occurred (see Madhewoo).
The Tribunal was satisfied that the Agency was not entitled to rely on meetings which had taken place prior to the earlier successfully appealed dismissal. Nor could it rely, as it sought to do, on the invitation to a meeting in the letter dated 15 February 2007, which the claimant refused to attend. That referred to a meeting about his ongoing absence, not dismissal. In contrast, the letter of 22 February 2007 referred to serious consideration of dismissal if he failed to return to work. Although it was dependent on whether or not he returned to work on the due date, the Tribunal concluded dismissal was in contemplation at that date. In the judgment of the Tribunal contemplation of dismissal, in the absence of express wording, could not be inferred from the reference to his ongoing absence. Thus a meeting at that stage should have been arranged. The letter again referred to the procedures in Paragraph 1.6 and following Chapter 1 Inefficiency leaving the Service Section of the NICS Handbook, which had been also relied upon in the dismissal, subsequently, appealed in 2006. These provide, inter alia:-
“1.6 The Long Term Sick
When an officer is on a continuous period of sick absence, ie 20 days or more; the Department may refer the case to the OHS in order to obtain an estimate of the likely date for the officers return to duty or to establish if medical retirement is appropriate. The officer should be made aware that consideration may be given to dismissal on grounds of inefficiency due to unsatisfactory attendance.
…
If the Department feels that it can no longer cover the absence, it may, after consultation with the officer and, if requested his/her trade union representative, decide to terminate the appointment.”
In any event, in the judgment of the Tribunal, there could be no doubt that dismissal was in contemplation of the Agency, when Mrs Gallagher, as Personnel Officer, sent the letter dated 30 March 2007. The letter set out the history of this matter, as referred to in the previous paragraphs. In particular, it then referred to his failure to return to work on 20 March 2007, the earlier return date having been extended due to confusion by the claimant about the result of the appeal of the decision of OHS not to medically retire him. He was then told he was to be dismissed on grounds of inefficiency due to unsatisfactory attendance in accordance with the procedures in the NICS Handbook, referred to previously, his prolonged absence from work, March 2005, having extended far beyond what was reasonable. No meeting to discuss the dismissal was arranged; nor as seen above, had one been arranged prior to sending either that letter or the earlier letter of 22 February 2007, where dismissal was clearly referred to. Mrs Gallagher did not consider, when applying the said procedures in the Handbook, that such a meeting was required as the Agency considered it could not longer cover the absence, but had in the letter dated 15 February 2007 offered a meeting, which the claimant declined. She also referred to the history of his absence and correspondence relating thereto and the earlier meeting in the coffee shop. However in the judgment of the Tribunal, as seen above, a meeting was required. The failure to offer such a meeting, following the letter of 22 February 2007 was in breach of the statutory procedures.
2.48 In the letter of 30 March 2007, the claimant was advised of his right of appeal. In the absence of any appeal he was then informed, by letter dated 17 April 2007 by Mrs Gallagher, that his last day of service would be 28 June 2007. He was advised of his right of appeal to the Civil Service Appeal Board which right be exercised but the Board rejected the appeal and found the dismissal to be fair. In the letter he was also informed that the NICS also had a discretion whether or not to award compensation on the termination of an officer’s employment on the grounds of inefficiency. He was told Mrs Gallagher had decided not to pay compensation under the Principal Civil Service Pension Scheme (NI). She had done so, on a recommendation from Mr McGrattan on the grounds that although the claimant’s absence had been medically certified, there was no evidence, given rejection of his original complaint he had been harassed, whilst employed at the Agency. The procedures provide for the exercise of such discretion when the inefficiency is caused by factors beyond the control of the individual. In this case, as set out above, the claimant despite the rejection of his complaints was not prepared to return to work, even if he was found fit for work.
3.1 The claims of the claimant of unlawful discrimination on the ground of religious belief and/or discrimination by way of victimisation were brought pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’).
Under Article 3 of the 1998 Order, it is provided:-
“(1) In this Order (discrimination) means:-
(a) discrimination on the ground of religious belief …; or
(b) discrimination by way of victimisation; and ‘discrimination’ shall be construed accordingly.
(2) A person discriminates against another person on the ground of religious belief … in any circumstances relevant for the purposes of this Order if:-
(a) on … [that ground] … he treats that other less favourably than he treats or would treat other persons; or
…
(3) A comparison of the case of persons of different religious belief … under Paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, than the other.
(4) A person (‘A’) discriminates by way of victimisation against another person (‘B’) in any circumstances relevant to the purpose of this Order if:-
(a) he treats ‘B’ less favourably than he treats or would treat other persons in those circumstances; and
(b) he does so for a reason mentioned in Paragraph (5).
The reasons are that:-
(a) ‘B’ has –
(i) brought proceedings against ‘A’ or any other person under this Order; or
given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or
alleged that ‘A’ or any other person has (whether or not the allegations so states) contravened this Order; or
otherwise done anything under or by reference to this Order in relation to ‘A’ or any other person; or
‘A’ knows that ‘B’ intends to any of those things or suspects that ‘B’ has done, or intends to do, any of those things; or
(6) paragraph (4) does not apply to treatment of a person by reason of any allegation made by him that the allegation was false and not made in good faith; or
(7) for the purposes of this Order a person commits unlawful discrimination against either if –
(a) he does an act in relation to that other which is unlawful by virtue of any provision of Part III …; or
(b) … .”
Under Article 19 of the 1998 Order (which is contained in Part III), it is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-
“ …
(b) where that person is employed by him –
on the terms of employment which he affords him; or
the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or
by dismissing him or by subjecting him to any other detriment.”
In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, the House of Lords held that, in order for a disadvantage to qualify as a detriment, the Tribunal must find, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to ‘detriment’.
3.4 Regulation 24 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 amended Article 38 of the 1998 Order, in relation to the burden of proof applicable to these proceedings – by the insertion of Article 38A, which states as follows:-
“Article 38A –
Where on the hearing of a complaint under Article 38, the complainant proves the facts from which the Tribunal could [Tribunal’s emphasis] apart from this Article, conclude in the absence of an adequate explanation that the respondent –
committed an act of unlawful discrimination … against the complainant; or
is by virtue of Article 35 or 36 to be treated as committed such an act of discrimination … against the complainant;
the Tribunal shall [Tribunal’s emphasis] uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”
The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered the provisions equivalent to Article 38A of the 1998 Order, in a sex discrimination case, and approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions the Northern Ireland Court of Appeal has approved the decision of Igen v Wong and the said two-stage process.
In the case of Bridget McDonagh & Others v Samuel Thom T/A The Royal Hotel Dungannon [2007] NICA 3, the Court of Appeal, in referring to the said two-stage process stated:-
“ … The first-stage required the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second-stage (which only came into effect if the claimant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld … .”
The Court of Appeal, in the above decision, also confirmed that the amended Barton Guidance, as to the correct approach to be taken to the incidences of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1998 Order, as well as to all other forms of unlawful discrimination.
The Barton Guidance, as amended in Igen, provides as follows:-
“(1) Pursuant to Section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by Section 41 or Section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers will be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
It is important to note the word ‘could’ in Section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage the Tribunal is looking at the primary facts before it to see what inferences if secondary fact could be drawn from them.
In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
These inferences can include, in appropriate cases, an inference that it is just and equitable to draw in accordance with Section 74(1) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the SDA.
Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining, such facts pursuant to Section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.
To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since ‘no discrimination whatsoever is compatible with the Burden of Proof Directive’.
That requires the Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
Since the facts necessary to prove an explanation would normally be in the possession of the respondent, the Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.”
The decision in Igen v Wong has been the subject of a number of further decisions, including Madarassy v Nomura International PLC ]2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL (UK) Limited [2007] NICA 25.
In Madarassy, the Court of Appeal held, inter alia, that:-
“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. ‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.
Subject only to the statutory ‘absence of an adequate explanation’ at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied up by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong … .
Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first-stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination. The respondent may adduce evidence at the first-stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the claimant; or that the comparators chosen by the claimant or the situations with which comparisons are made are not truly like the claimant or the situation of the claimant; or that, if there has been less favourable treatment of the claimant, it was not on the ground of her sex or pregnancy. Such evidence from the respondent could, if accepted by the Tribunal, be relevant to showing that, contrary to the claimant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground.
The approach of Elias J in Laing v Manchester City Council would be approved … .”
In Laing v Manchester City Council [2006] IRLR 748, which was approved by Campbell LJ in the Arthur case, Elias J said in relation to the two-stage process:-
“71 There seems to much confusion created by the decision in Igen v Wong [2005] ICR 931. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.
…
73 No doubt in most cases it would be sensible for a Tribunal to formally analysis a case by reference to the two-stages. But it is not obligatory on them formally to go through each step in each case.
…
The focus of the Tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, ‘there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and is nothing to do with race’.”
(See further Brown v London Borough of Croydon [2007] IRLR 259.)
In the case of Network Rail Infrastructure Limited v Griffiths-Henry [2006] IRLR 865, the Employment Appeal Tribunal held that:-
“A Tribunal at the second-stage is simply concerned with the reason why the employer acted as he did. The burden imposed on the employer will depend on the strength on the prima facie case …
It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. Unfairness is not in itself sufficient to establish discrimination.”
3.5 In a case of unlawful discrimination on the grounds of religious belief under the 1998 Order, there requires to be a comparison, as set out above, in Article 3 of the 1998 Order. As seen in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, in the absence of a named comparator, a hypothetical comparator is permissible in relation to any such claim.
Lord Nicholls in the course of his judgment in the case of Shamoon stated:-
“8 No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question:-
‘Did the claimant, on the proscribed ground, receive less favourable treatment than others?’
But, especially, where the identity of the relevant comparator is a matter for dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
…
This analysis seems to me to point to the conclusion that Employment Tribunals might sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”
3.6 As set out above, the claimant has also made a claim under the 1998 Order of victimisation, pursuant to the provisions of Article 3(2) and (4) of the 1998 Order.
As the House of Lords made clear in the decision of Chief Constable of Yorkshire v Khan [2001] IRLR 830, victimisation occurs when, in any circumstances relevant for the purposes of any provision of the act, a person is treated less favourably than others because he has done one of the protected acts.
The burden of proof provisions, to which reference has been made above, are also therefore applicable to such a claim. Further, in order to make the necessary comparison, it is necessary to compare the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. In the absence of an actual comparator, the Tribunal has also to consider the position of the hypothetical comparator.
Lord Nicholl said in the Khan case, the situation should be looked at subjectively and the questions:-
“Why did the alleged discriminator act as he did – what consciously or unconsciously was his reason?”;
or, as Lord Scott said:-
“The real reason, the core reason, the motive for the treatment complained of.”
In other words, whether a claimant has been victimised ‘by reason’ he has done a protected act is not to be determined by application of a ‘but for’ test. Whether a particular act can be said to amount to victimisation must be judged primarily from the point of view of the alleged victim, whether or not they suffered any ‘detriment’ rather from the point of view of the alleged discriminator (St Helen’s Metropolitan Borough Council v Derbyshire [2007] IRLR 540 HL).
Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 HL made clear that conscious motivation on the part of the discriminator is not a necessary ingredient of unlawful victimisation. Lord Nicholls also confirmed, in the Nagarajan case, that discrimination can be made out if the prohibited ground had a ‘significant influence’ on the outcome. In Igen v Wong that wording was interpreted as meaning ‘influence more than trivial’. In the decision of Villalba v Merrill Lynch & Company [2006] IRLR 437, Elias J held that, if in relation to any particular decision a discriminatory influence is not a material influence or factor, then it was trivial and therefore according to Igen v Wong, insufficient to breach the principle of equal treatment.
The claimant claims that he was unfairly dismissed. Under Article 130 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) it is provided:-
“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (if more than one the principal reason) for the dismissal; and
(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) The reason falls within this paragraph if it –
(a) relates to the capability or qualification of the employee for performing work of a kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) is that the employee was redundant; or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision.
(3) In Paragraph (2)(a) –
(a) ‘Capability’, in relation to employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and
…
(4) Where the employer has fulfilled the requirements of Paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably as treating it as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
In relation to the issue of ill-health and absence it was held in the case of Spencer v Paragon Wallpapers Limited [1976] IRLR 373, Philips J emphasised the importance of scrutinising all the relevant factors:-
“Every case depends on its own circumstances. The basis question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?
Relevant circumstances included (the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do.”
As was held in the case East Lindsey District Council v Daubney [1977] IRLR 181:-
“Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary he should be consulted and the matter discussed with him, and then one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in each case, for what would be necessary in one case may not be appropriate in another.”
This was confirmed in the later Court of Session case in the case of A Links & Company v Rose [1991] IRLR 353 when it held:-
“In deciding whether an employer acted fairly in dismissing an employee on grounds of ill-health, an Employment Tribunal must determine, as a matter of fact of judgment, what consultation, if any, was necessary or desirable in the known circumstances of the particular case, what consultation, if any, in fact took place; and whether or not that consultation which process was adequate in all the circumstances.”
It was made clear in the case of Merseyside and North Wales Electricity Board v Taylor [1975] IRLR 60 that, whether, before dismissing on grounds of incapacity, an employer should offer the employee alternative work, depends upon the circumstances of each case. There is no rule of law that an employer is obliged to create a special job for such an employee. Nor is there a rule of law which obliges the employer in a ill-health case to find other work for the employee.
It was confirmed in the case of Slaughter v C Brewer & Sons [1990] IRLR 426 that in cases of unfair dismissal on grounds of ill-health it will rarely be appropriate for a Tribunal to make a reduction in compensation on grounds of contributory fault.
The Tribunal in considering the issue of the unfair dismissal of the claimant was at all times conscious that it must not substitute its own view, but rather consider the reasonableness of the actions of the employer and, whether, in particular, the actions of the respondent, as the claimant’s employer, fell within the band of reasonable responses, which an employer might have adopted. (See further Iceland Foods Ltd v James [1982] IRLR 439.)
In addition to the provisions of the 1996 Order referred to in the previous paragraph, it was also necessary for the Tribunal to have regard to further statutory provisions, as set out below.
Substantial changes to the law of unfair dismissal were introduced following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal. These provisions came into operation on 3 April 2005 and were therefore applicable to this matter.
In essence, the statutory procedures introduced under the said legislation requires employers, subject to certain exemptions which were not applicable in this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely:-
(a) ‘Standard’ dismissal and disciplinary procedure (DDP) or a modified DDP.
There was no dispute that the latter procedure was not applicable in this matter. Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-
“Step 1 - A statement of grounds for action and invitation to meeting
1(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
1(2) The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2 – Meeting
2(1) A meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
2(2) A meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement on Paragraph 1(1) the ground or grounds given in it; and
(b) the employee has had a reasonable opportunity to consider his response to that information.
2(3) The employee must take all reasonable steps to attend the meeting.
2(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3 – Appeal
3(1) If the employee does wish to appeal, he must inform the employer.
3(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
3(3) The employee must take all reasonable steps to attend the meeting.
3(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
3(5) After the appeal meeting, the employer must inform the employee of his final decision.”
There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-
“Introductory
The following requirements apply to each of the procedures set out above (so far as applicable).
Timetable
Each step and action under the procedure must be taken without unreasonable delay.
Meeting
13
(1) Timing and location of meetings must be reasonable.
(2) Meetings must be conducted in a manner that enables both employer and employee to explain their cases.
(3) In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”
Under Regulation 12 of the 2004 Regulations it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-
“12(1) If either party fails to comply with a requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, … the non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.
… .”
Arising from the introduction of the said statutory procedures, there also required to be further amendment made to the 1996 Order, including, in particular, the introduction of Article 130A of the 1996 Order:-
“(1) An employee who is dismissed shall be regarded for the purpose of this Part as unfairly dismissed if –
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non-completion of the procedures is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to Paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
… .”
Thus, if an employer fails to comply with the applicable DDP, when dismissing an employee, the dismissal will be automatically unfair (Article 130A of the 1996 Order).
The Employment Appeal Tribunal in the case of Venniri v Autodex Limited [UKEAT/0436/07] at Paragraph 34, held that Tribunals are under duty to consider whether or not a dismissal is automatically unfair (under the equivalent provision in the Employment Rights Act 1996 (which applies in Great Britain) to Article 130 of the 1996 Order) even where that allegation has not been expressly pleaded, on the grounds that these new provisions are part of the ‘essential fabric of unfair dismissal law’. The Employment Appeal Tribunal has also held in the case of Metrobus Limited v Cooke [UKEAT/0490/06], (Paragraphs 27 – 29) where a Tribunal had made a finding of automatic unfair dismissal, pursuant to similar provisions in the Employment Rights Act to Article 130A(1) of the 1996 Order, it may be ‘useful’ for the Tribunal to record its judgment, in the alternative, on the ‘ordinary’ unfair dismissal allegation (pursuant to Article 130 of the 1996 Order).
Although decisions of the Employment Appeal Tribunal are not binding on this Tribunal; however, the Tribunal in the absence of any relevant decisions of the Court of Appeal in Northern Ireland in relation to the said statutory procedures, found the decisions of the Employment Appeal Tribunal, in relation to such matters, persuasive and appropriate to follow. In this context, it has to be noted that the statutory provisions applicable in Great Britain are in similar terms to the relevant statutory provisions in Northern Ireland, to which reference has been made.
A failure to comply with the relevant statutory procedures in relation to the applicable DDP has an impact on compensation in relation to a claim of unfair dismissal, resulting in an adjustment upwards (in the case of default by the employer) or an adjustment downwards (in the case of default by the employee). Under Article 17(2) and 17(3) of the 2003 Order, the adjustment must be at least 10% and, if the Tribunal considers it just and equitable, up to 50%. However, under Article 17(4) of the 2003 Order, the Tribunal can apply no adjustment (or an adjustment of less than 10%) if there are exceptional circumstances making a 10% adjustment unjust or inequitable. Any potential uplift or reduction is limited to the compensatory award only; and there is no provision in a unfair dismissal claim to uplift the compensatory award beyond the statutory maximum (Article 158A of the 1996 Order). The fact that the uplift is limited to the compensatory award was confirmed in the case of Hope v Gordon Engineering Limited [UKEAT/0545/07].
The Employment Appeal Tribunal has been reluctant to set down principles that fetter the discretion of the Tribunal in relation to this issue of the uplift and reduction of the compensatory award in a claim of unfair dismissal (see Cex Limited v Lewis [UKEAT/0031/07]). The EAT in that case refused to interfere with an uplift of only 10% ‘in compensation payable to an employee’; noting the Tribunal had been entitled to take into account the culpability of the defaulting party such as whether the employer had deliberately flaunted statutory requirements or was merely ignorant of the law.
In Metrobus v Cooke [UKEAT/0490/06], the EAT did not interfere with an uplift of 40% where the employer had ‘blatantly’ failed to comply with the obligations to send a Step 1 letter and acknowledged that the uplift to the provisions were ‘more penal than compensatory in nature’.
In the case of Davies v Farnbrook College of Technology [2008] IRLR 4, Burton J suggested a maximum uplift would apply where had been a ‘complete and deliberate breach of any procedures’. Ultimately, in summary, the extent of any uplift would appear to be a matter within the discretion of the Tribunal, having regard to all material circumstances, which are ‘unlimited’. Further, the statutory provisions do not require the Tribunal to start at an uplift of 50% and work downwards in accordance with evidence on mitigation provided by the respondent (see Butler v GR Carr (Essex) Limited [UKEAT/0128/07]). However, in contrast, in the case of Aptuit (Edinburgh) v Kennedy [UKEATS/0057/06], the Employment Appeal Tribunal (in Scotland) held that in exercising its discretion to uplift an award, the only circumstances the Tribunal may take into account are those surrounding the failure to complete the statutory procedures. Whether the employer treated the employee in a shoddy manner/lack of consultation/employer’s size and administrative resources were all irrelevant considerations. In the case of McKindless Group v McLaughlin [2008] IRLR 678 the Employment Appeal Tribunal (in Scotland) has again confirmed that, in exercising the discretion, the Tribunal must do so by reference to some particular facts and circumstances surrounding the failure to complete the statutory procedure, which can properly be regarded as making it just and equitable the employer should be penalised further.
In view of the Tribunal’s findings in this matter in relation to the Tribunal’s findings as to unfair dismissal and the compensation payable in relation to same, as set out later in this decision, it was not necessary for the Tribunal to consider the above authorities further and to resolve the different approaches as seen above.
The statutory dismissal and disciplinary procedure applies only if the employer first contemplated dismissing the employer or taking relevant disciplinary action. (See Madhewoo v NHS Direct [EAT/0030/06].)
Similar provisions to those seen above in relation to the dismissal and disciplinary procedures are also to be found under the 2003 Order and 2004 Regulations in relation to the grievance procedure to be applied in relation to claims made under the 1998 Order.
Under the statutory grievance procedure, pursuant to Paragraphs 6 to 8 of Schedule 1 of the 2003 Order:-
The employee must set out the grievance in writing and send it to the employer (Step 1).
The employer must invite the employee to a meeting at which the grievance can be discussed. The meeting must not take place unless the employee has informed the employer of the basis for the grievance and the employer has had a reasonable opportunity to consider his response. The employee must take all reasonable steps to attend the meeting and, after the meeting, the employer must inform the employee of its decision and offer a right of appeal (Step 2).
If the employee wishes to appeal, he must inform the employer. The employer must then invite him to a further meeting (which again the employee must take all reasonable steps to attend). After the meeting, the employer must inform the employee of his decision (Step 3).
There has been much case law in relation to what is a grievance and has been give a wide meaning. (In the case of Canary Wharf Management Ltd v Edebi [2006] IRLR 416, Elias J stated:-
“ … the objectives of the statute can be fairly met if the employer on the fair reaching of the statement and having regard to the particular context in which it is made can be expected to appreciate the relevant complaint is being raised … .”.)
In Smith v Network Rail Infrastructure [EAT/0047/07] it was held that where an employee submits a grievance relating to a continuing discriminatory act, he is not required to serve (and to keep serving) a further grievance in respect of the same continuing act.
The failure to make a grievance can be relevant to whether a claim can be accepted by the Tribunal. In this matter there was no dispute the claimant made a relevant grievance and the particular issue related to the provision of meetings in relation to the said grievance under the statutory procedures. Again, as set out previously, there are similar provisions to those set out above relating to the impact on compensation, in circumstances where the statutory grievance procedure has not been followed by either the employer or the employee; and it is not necessary to set out these provisions in detail.
Again, in view of the Tribunal’s findings in this matter in relation to the claimant’s claims under the 1998 Order, as set out later in this decision, it was not necessary for the Tribunal to consider further the respondent’s compliance with the said statutory procedures and the consequences for the respondent of any such failure.
Following the introduction of the new statutory procedures, Article 130A(1) and (3) of the 1996 Order, as set out above, provided that a dismissal was automatically unfair if the new procedures were not followed. Article 130A(2) made further changes to the law in relation to unfair dismissal. The well-known House of Lords decision of Polkey v AE Dayton Services Limited [1988] ICR344 provided that, in essence, an employer who has acted unreasonably and in breach of procedures cannot contend that, since the dismissal would have occurred anyway even if proper procedures had followed, the dismissal should be found to be a fair dismissal. It is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be utterly futile. However, although the Tribunal may find the dismissal to be unfair, the Tribunal is able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still have been dismissed. The Polkey reduction requires an employer to satisfy the Tribunal it would have dismissed the employee even if it had complied with fair procedures. Article 130A(2), as set out above, has made a further change to the law and has resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above. Article 130A(2) provides that dismissal following a failure to follow other procedural steps will not affect the fairness of the dismissal, if the employer can show he still would have been dismissed if he had followed those steps correctly. So the Polkey decision was partially reversed and the ‘no difference rule’ which had previously applied before Polkey, reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures. Reference to procedures in Article 130A(2) has been the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem to be that it applies to any procedure, written or otherwise, which the Tribunal considers a reasonable employer might follow (see Kelly-Madden v Manor Surgery [2007] IRLR 17).
However, what is clear from the authorities is that Article 130A(2) is only of assistance to an employer whenever the DDP has been complied with. ‘Automatic and fairness’ cannot be cured by invoking [Article 130A(2)] (Butt v CAFCASS [UKEAT/0362/07]. As was made clear in the case of Goodin v Toshiba [EAT/0271/08] there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case where the breaches of procedure would have made no difference to the dismissal.
Thus, where there has been a breach of DDP, the normal Polkey principles, which applied before Article 130A(2), apply.
As can be seen from the issues, the subject-matter of the claimant’s claim (see Paragraph 1.2 of this decision), issues of time were relied upon by the respondents in relation to the claimant’s claim of discrimination under the 1998 Order.
Under Article 46(1) of the 1998 Order, such proceedings require to be brought before which is the earlier of:-
(a) the end of the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably expected first had knowledge, or might reasonably be expected first to have had knowledge, of the acts complained of; or
(b) the end of the period of six months beginning with the day on which the act was done.
Under Article 46(5):-
A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time, if in all the circumstances of the case, it considers that it is just and equitable to do so.
Under Article 46(6):-
(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.
In determining whether there was ‘an act extending over a period’, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, it was held in the case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, the focus should be on the substance of the complaints that the employer who was responsible for an ongoing situation or a continuing state of affairs.
The Tribunal was satisfied that the claimant’s complaints of discrimination under the 1998 Order were on the grounds that the Agency was responsible from in or about November 2004 until his dismissal in June 2007 for an ongoing situation or a continuing state of affairs and the claimant, in his various claims to the Tribunal, (and, in particular, Case Reference No: 13/06 FET; Case Reference No: 103/07 FET) was making a claim of continuing discrimination. The respondents’ representative properly accepted if the Tribunal found the various acts were so linked no issue of time would arise. These were not isolated acts but were a series of connected acts. Therefore the Tribunal was satisfied no issue of time arose and the Tribunal had jurisdiction to determine the claimant’s claims of discrimination under the 1998 Order.
In relation to the claimant’s claims of discrimination on the ground of religious belief and/or by way of victimisation contrary to the 1998 Order, the Tribunal considered all the findings of fact made by it, as set out in Paragraph 2 of this decision. In accordance with the two-stage test and guidance set out in the case of Igen v Wong and the legal authorities referred to in Paragraph 3.5 of this decision it was firstly necessary for the Tribunal to determine whether the claimant had established facts from which the Tribunal could [Tribunal’s emphasis] conclude, in the absence of an adequate explanation, that the respondents had committed an act of unlawful discrimination against the claimant on the ground of religious belief and/or victimisation. In so doing, the Tribunal was careful to note at this stage, it was not, by reason of the word ‘could’ required to each a determination that such facts would lead to a finding of unlawful discrimination on any of the above grounds. It was not disputed that, for the purposes of these proceedings, if the Tribunal found the second, third, fourth, fifth, sixth, seventh, eighth, or ninth-named respondent had so discriminated against the claimant the first-named respondent, the Agency, would be vicariously liable for their actions, in addition to any liability which might attach to them personally.
As was emphasised by Mummery LJ in the case of Madarassy (see Paragraph 3.5 of this decision) the burden of proof does not shift where there is established a difference of treatment between two persons of a different sex or, as applicable in this case, a difference in religious belief. The burden of proof does not shift on such bare facts, which only indicate a possibility of discrimination. In addition the Tribunal noted, in this context, the judgment in the case of Network Rail Infrastructure Limited v Griffiths Henry (see Paragraph 3.5 of this decision) where the Employment Appeal Tribunal emphasised that unfairness is not in itself sufficient to establish discrimination. The Tribunal was concerned that these distinctions were not always appreciated or understood by the claimant and his representative.
There was no doubt that the claimant was Protestant and Mr Blaney was a Roman Catholic. Both made complaints which were treated as formal complaints. At the conclusion of the investigation the claimant’s claim was rejected and Mr Blaney’s complaint was upheld in part. There was therefore a difference in treatment; but such bare facts, as seen above, were not sufficient. The Tribunal rejected the claimant’s assertion that Mr Blaney’s complaint was a fabrication. It was also satisfied that it was entitled to be treated as a formal complaint, due to its serious nature which included allegations of sectarianism. Indeed the decision to do so was in reality taken by Ms Barlow, a co-religionist of the claimant, albeit the formal decision was taken by Mr McMullen/Ms Cusick (see further Paragraphs 2.7 – 2.14 of this decision). There were failures to notify the claimant properly and in time about Mr Blaney’s complaint but the Tribunal noted that, although such failures were wrong and should not have occurred, that equally there was a failure to keep Mr Blaney updated on the status of his complaint. Such failure were unfair but did not amount to less favourable treatment. The investigation of the said complaints was conducted by Mr Bailie in exactly the same way. Ms Cusick and Mr McMullen took all the relevant formal decisions in relation to these complaints, but the Tribunal was satisfied that Ms Barlow played a significant and major role in all those decisions, having been the previous Equal Opportunities Officer and Mr McMullen and Ms Cusick were new to their roles and inexperienced and untrained. The Tribunal acknowledged that there was some confusion in subsequent correspondence in relation to who took the actual decisions, but concluded that this was understandable in the circumstances. The Tribunal rejected that Ms Cusick, Mr McMullen, Mr Bailie were part of some Catholic conspiracy by the Equal Opportunities Unit to treat him, as a Protestant, less favourably then Mr Blaney, a Catholic, in relation to his complaint. Such serious allegations of conspiracy/fabrication required strong and clear evidence, which was not forthcoming from the claimant. Indeed he acknowledged in evidence that, if Ms Barlow had been the Equal Opportunities Officer, a different result would have been achieved – but this was to ignore she was the effective decision-maker to treat Mr Blaney’s complaint as a formal complaint and had also advised and reached the same conclusions as Ms Cusick in relation to the outcome of each complaint. There was no evidence such outcomes were predetermined. The Tribunal found no criticism to make of the investigation itself by Mr Bailie or the outcomes reached in relation to each complaint and the reasons found for reaching such outcomes. To establish the claimant was the victim of fabrication/conspiracy/predetermination, which were very serious allegations, required strong and certain evidence, which was not given. Merely making such an allegation is not enough. In these circumstances, the Tribunal was not satisfied the claimant had established the Tribunal could conclude the claimant was discriminated against on the grounds of his religious belief and the burden of proof had not therefore shifted.
The claimant dissatisfied with the decisions of Ms Cusick sought to claim that Mrs Gallagher (nèe Toner) had discriminated against him on the grounds of his religious belief and/or victimised him by not formally investigating his complaint of religious discrimination against Ms Cusick, Mr McMullen and/or Mr Bailie when dealing with the original complaints. Mrs Gallagher is a Roman Catholic but that in itself would not be sufficient to establish such a claim. In relation to the claim of victimisation by complaining of religious discrimination against the said members of the Equal Opportunities Unit, there was a protected act, for the purposes of the 1998 Order.
Mrs Gallagher did not conduct a formal investigation under the procedures, as she would have done if the complaint had been against anyone but the members of the unit. The members of the unit were the persons, under the procedures, who would normally carry out such work. This had never happened before and was not a normal situation. Indeed the Tribunal would hope such a situation would not normally occur. Unfortunately, but understandably, the procedures did not provide for this situation. The Tribunal acknowledged there was a ‘lacuna’ in the procedures. Mrs Gallagher adapted the procedures and did a paper review. Indeed such a review would have been open to the claimant, under the procedures, if he wished to challenge the decisions of Ms Cusick in relation to the said complaints. But this was not done by the claimant.
Unlike previously, where the claimant compared himself to Mr Blaney, the claimant in this instance was relying on a hypothetical comparator. In relation to his complaint of religious discrimination he was comparing himself with a Roman Catholic, who had made a complaint of religious discrimination against a member of the Equal Opportunities Unit and the less favourable treatment he received in comparison to the treatment he alleged such a hypothetical comparator would have received. In relation to his complaint of victimisation he was comparing himself with a person who had not previously made a complaint of religious discrimination and the less favourable treatment received by him in comparison to the alleged treatment of such a hypothetical comparator. As indicated above, to conduct a paper review was not within the terms of the procedure. The Tribunal was satisfied that to conduct the investigation by way of a paper review could establish, in the absence of an explanation, a claim of religious discrimination and/or victimisation. If the complaint had been against anyone but the members of the Equal Opportunities Unit, it would have been treated differently.
The burden having shifted, the Tribunal was however not satisfied that discrimination on the grounds of religious belief and/or victimisation could be established in the circumstances in view of the explanation of Mrs Gallagher for dealing with the matter by way of a paper review. Again, it has to be noted the Tribunal had no criticism of her review. The Tribunal was satisfied that she had dealt with the matter in this way due to the ‘lacuna’ in the procedures to cover this particular situation and had adapted a review procedure, which would have been open to the claimant in any event in order to challenge the decisions of Ms Cusick in relation to the complaints. This was a non-discriminatory explanation for the alleged less favourable treatment. Thus the Tribunal rejected his complaint of unlawful discrimination on the grounds of religious belief and/or victimisation under the 1998 Order as the respondents had discharged the burden of proof.
7.5 The claimant brought grievances following rejection of his complaint by Mrs Gallagher. These were dealt with by Ms Orr, Mr McGahan and by Mr Shannon on appeal and again he claimed unlawful discrimination on grounds of religious belief and/or victimisation, when his grievances/appeal were rejected. The basis for his said complaints, in essence, against each of them, was that he had been treated less favourably on grounds of his religious belief and/or victimisation because none of the said persons invited him to a meeting before taking their respective decisions. Again the claimant relied in a similar way on a hypothetical comparator; namely, in relation to his complaint of religious discrimination, a Roman Catholic, who had brought a grievance in similar circumstances to him. In relation to his complaint of victimisation he compared himself with a person who had made a grievance but who had not made a previous complaint of religious discrimination. It is correct that he was not offered such a meeting. This was clearly unfair, and indeed contrary to the statutory grievance procedures. The Tribunal has elsewhere in this decision heavily criticised the failure of the Agency to amend its procedures to ensure a meeting was provided, as required under the procedures. However, it also accepted, mindful of such criticism; the procedures had not been amended and the above persons, who handled the grievances and appeal, followed the Agency’s unamended procedures and followed the interpretation of those said procedures, which interpretation was the custom and practice at the time. The Tribunal mindful it must ignore any explanation, accepted the failure to offer him such a meeting could establish a finding of unlawful discrimination; though it did not ignore that Mr Shannon was a co-religionist of the claimant. However, although the Tribunal considered the interpretation of Ms Orr, Mr McGahan and Mr Shannon of the Agency’s procedures was wrong in relation to the necessity for such a meeting, it accepted that this interpretation, albeit wrong, was the interpretation of the procedures followed by them, as custom and practice, at the time in the Agency. Again the Tribunal concluded this was a non-discriminatory explanation and that the burden of proof had been discharged by the respondents and rejected these complaints of unlawful discrimination on the grounds of religious belief and/or victimisation..
7.6 In relation to the claimant’s claim of unlawful discrimination arising out of his dismissal in 2006 and/or 2007, the claimant relied in a similar way, to that seen above, upon a hypothetical comparator, namely a Roman Catholic, who had also been absent from work for a long period and the subject of action under the attendance procedures in relation to his claim of religious discrimination; and, in the case of victimisation, a person similarly dismissed but who had not previously made a complaint of religious discrimination. Firstly, it must be noted the dismissal in 2006 was the subject of appeal to Ms Orr, which appeal was upheld. Mrs Gallagher was responsible for the dismissal letters in both 2006 and 2007. The Tribunal accepted that in making those decision she had no regard to her previous involvement with the claimant but had taken those decisions having regard to his long absence. Mrs Gallagher had also accepted she had no meeting, as required by the statutory procedures when she sent the letter of dismissal in 2006. In failing to do so, the Tribunal was prepared to accept that, in the absence of an explanation, the claimant could establish a claim of religious discrimination and/or victimisation. However her explanation for not holding such a meeting in breach of the procedures, was because of her lack of awareness of them in the absence of notification by the Central Personnel Group. The Tribunal recognises the unfairness of this; but equally accepts that unfortunately she was so unaware. This is a non-discriminatory explanation and in the circumstances the respondents had discharged the burden of proof and rejected these claims of unlawful discrimination
In relation to the 2007 dismissal, Mrs Gallagher did not accept that she was in breach of the statutory procedures in failing to offer him a meeting. As previously set out, the Tribunal did not accept that there was no breach of the statutory procedures. In these circumstances, the Tribunal concluded that, in the absence of an explanation for this failure, the claimant could establish a claim of unlawful discrimination on the grounds of religious belief and/or victimisation against the respondents. Again the Tribunal does not underestimate the unfairness of the failure to offer a meeting, to which further reference shall be made later in this decision. However, the Tribunal was satisfied that Mrs Gallagher did not offer such a meeting because she believed, albeit wrongly, that such a meeting was not necessary, given the long history of the claimant’s absences, the previous correspondence relating thereto, his previous coffee shop meeting but, in particular, the earlier offer of a meeting in the letter of 15 February 2007 to discuss his absence from work, which he had rejected. Again the Tribunal was satisfied that the respondents had provided a non-discriminatory explanation and the burden of proof had been therefore discharged. The Tribunal therefore rejected these claims of unlawful discrimination. Leaving aside this issue of the failure to offer a meeting, as seen above, the Tribunal was satisfied the actual decision on dismissal by Mrs Gallagher was by reason of his absence and there was no evidence of any unlawful discrimination in relation to the said decision itself to dismiss the claimant in 2007l
The Tribunal, as set out previously, was satisfied that the Agency, the first-named respondent, was in breach of the statutory disciplinary and dismissal procedures, when it failed to invite him to a Step 2 meeting under the statutory dismissal procedures, before he was dismissed in 2007. This was therefore an automatically unfair dismissal (see Article 130A of the 1996 Order). The claimant’s dismissal in 2006 was not proceeded with after a successful appeal by the claimant and is not therefore relevant to any claim of unfair dismissal. This meeting should have taken place. However the Tribunal reached the conclusion that, even if the invitation to attend the meeting had been made, it was by no means certain the claimant would have attended. He had refused to attend the meeting sought in the letter dated 15 February 2007. The claimant, after March 2005, had made no attempt to resume work, indeed he had made it clear he would not even contemplate resuming work with the Agency even if his health improved. This was at a time when he was no longer required to work in the unit, where his initial difficulties were alleged by him to have occurred. His complaints and grievances had been dealt with and rejected. He continued to be medically unfit. The Tribunal reached the conclusion that the claimant’s aim at all times was to obtain medical retirement, and when it was unsuccessful he was not prepared to contemplate any resumption of work with the Agency, even if his health was to improve. In such circumstances, the Tribunal do not consider such a meeting would have been likely to achieve any real solution to the claimant’s continuing absence from work. Applying the principles in Polkey (see Paragraph 5.5 of this decision) the Tribunal is satisfied, even if a meeting had been offered, and assuming the claimant would have attended, the claimant would still have been dismissed on grounds of inefficiency due to unsatisfactory attendance. The claimant was not prepared to contemplate any return to the Agency, even though all his complaints and grievances had been dealt with, albeit not to his satisfaction. He continued to remain unfit for work, with no prospect of fitness in the near future. He had already been off work some two years. The Tribunal therefore accepted the Agency, faced with no prospect of resolution in sight, would, even if it had given the opportunity for a meeting, have still have dismissed the claimant, but a month later (see further the decisions referred to at Paragraph 4.2 of this decision).
To organise such a meeting would have taken approximately a month. At this time the claimant was not in receipt of any earnings from the Agency (see Paragraph 9.2 of this decision), so he is not entitled for the loss of any earnings for that month, in relation to any compensatory award upon the above finding of unfair dismissal.
Even if the claimant had not been found to have been automatically unfairly dismissed, the Tribunal would still have found him to be the subject of ‘ordinary unfair dismissal’ (Article 130 of the 1996 Order). To dismiss for inefficiency due to unsatisfactory attendance is a potentially fair reason; but to fail to arrange a meeting before dismissal in such circumstances was not fair and was not within the range of reasonable results. But, for the same reasons, as set out above, even if it the Tribunal made a finding of ‘ordinary’ unfair dismissal, the result would have been the same even if a meeting had taken place. Again no compensatory award would be payable for the loss of earnings during the period of one month to arrange the meeting upon the finding of unfair dismissal.
9.1 In light of the Tribunal’s decision that the claimant had not been unlawfully discriminated against on the grounds of his religious belief and/or by way of victimisation, contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998, no compensation was therefore payable to the claimant. Although there had been breaches of the statutory grievance procedures by the first-named respondent in failing to invite the claimant to the necessary meetings, in the absence of any finding of unlawful discrimination pursuant to the 1998 Order, no issue required therefore to be considered by the Tribunal, in relation to any uplift of any award, in circumstances where no award was payable.
9.2 The claimant was born on 7 March 1964 and was employed by the first-named respondent from on or about 1 October 1993 to on or about 28 June 2007. At the date of his said dismissal, there was no dispute, the claimant was not in receipt of any earnings from the Agency under his contract of employment due to the length of time he had been absent from work. At the date of his said dismissal the earnings of an Administrative Officer was £16,116.00. This salary was revalorised to £16,412.00 under the terms of the 2007 pay award; but because of his absence he was not entitled to the uplift. In any event, even if the uplift was payable the claimant would have been restricted, in the calculation of any basic award for unfair dismissal, to £310.00 (the relevant statutory cap for a week’s pay at the date of dismissal).
9.3 In light of the Tribunal’s decision that the claimant was unfairly dismissed by the first-named respondent the Tribunal therefore assessed the compensation payable to the claimant by the first-named respondent, as follows:-
Basic award
15 x £310.00 (subject to statutory cap)
Total : £4,650.00
As set out in Paragraphs 8.2 – 8.3 of this decision, the claimant was not entitled to any compensatory award for unfair dismissal and therefore no issue of uplift required to be considered by the Tribunal arising from the first-named respondent’s failure to comply with the statutory dismissal and dismissal procedure in failing to invite the claimant to a meeting. No uplift is applicable to any basic award (see further Paragraph 5.8 of this decision).
This award is not subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
9.4 The Tribunal therefore makes an award of compensation to be paid by the first-named respondent to the claimant in the sum of £4,650.00.
9.5 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Date and place of hearing: 6 – 9 May 2008;
13 – 16 May 2008; and
19 May 2008, Belfast
Date decision recorded in register and issued to parties:
00128-06
FET
(33)
