Hearty v South Eastern Health and Socia... [2011] NIFET 00115

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 115/09 FET

CLAIMANT: Martin Hearty

RESPONDENT: South Eastern Health and Social Care Trust

DECISION

It is the unanimous decision of the Tribunal that the claimant was not discriminated against on account of his religious belief or political opinion.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr B Gourley

Mr G Jones

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by the Directorate of Legal Services.

SOURCES OF EVIDENCE

1. The claimant gave evidence on his own behalf. The following persons gave evidence on behalf of the respondent:-

Allister Campbell;

Billy Bateman;

Martin O’Toole;

Jennifer Buchanan;

David Fenton;

Joseph Dunne;

Caroline Spencer;

Paul McBrearty;

Eamonn Malloy;

Mark McBurley;

Nolleen McCreanor;

Mary McCormick;

Jennifer Harrison.

Additionally, there were agreed bundles of documents before the Tribunal.

THE CLAIM AND THE DEFENCE

2. The claimant claimed that he had been discriminated against on the grounds of his religious or political belief. The respondent denied this claim.

3. In reaching its decision the Tribunal had before it submissions on the facts and the law from Mr McArdle on behalf of the respondent. The Tribunal advised Mr Hearty throughout the hearing of the case that he would have the opportunity to make submissions upon the close of the evidence. At the close of the evidence the Tribunal adjourned a number of times to give Mr Hearty the opportunity to make his submissions but he failed to do so and eventually the Tribunal decided to reach a decision without the benefit of his submissions.

LIST OF RELEVANT LAW

4. Fair Employment and Treatment (Northern Ireland) Order 1998

Regulation of Investigatory Powers Act 2000.

Home Office Code of Practice on Covert Surveillance (pursuant to Section 71 of the Regulation of Investigatory Powers Act 2000).

Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order (Northern Ireland) 2002.

Case Law cited on behalf of the Respondent

Gina Jones v University of Warwick [2003] EWCACIV151.

Robert McGowan v Scottish Water EAT/0007/04.

Shamoon v Chief Constable of the RUC [2003] UKHL11.

Bahl v Law Society [2004] IRLR799.

Igen v Wong [2005] IRLR258.

Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR865.

Laing v Manchester City Council [2006] IRLR748.

Madarassy v Nomura International Plc [2007] IRLR246.

McDonagh v Samuel Hamilton Thom, trading as Royal Hotel Dungannon [2007] NICA3.

Kevin Curley v Chief Constable of PSNI [2009] NICA8.

Chief Constable of West Yorkshire Police v Khan [2001] UKHL48.

St Helen’s Metropolitan Borough Council v Derbyshire and Others [2007] IRLR540.

Richmond Pharmacology v Dhaliwal [2009] IRLR336.

British Coal Corporation v Keeble [1997] IRLR336.

Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR116.

Robertson v Bexley Community Centre [2003] IRLR434.

ANALYSIS OF EVIDENCE

5. In general the Tribunal preferred the evidence given on behalf of the respondent as it was in the most part evidence of persons directly involved in the events considered.

6. The evidence of the claimant was largely based on his suppositions and contentions he made arising from those suppositions. He called no witnesses to support his case.

FINDINGS OF FACT

7. The claimant was employed by the respondent from 1 October 1985 to 29 June 2005.

8. At the time his employment terminated, the claimant was a Podiatrist Chief IV. Mr David Fenton was Line Manager to the claimant and Mr Allister Campbell was Mr David Fenton’s deputy. Both Mr Fenton and Mr Campbell described their long-term relations with the claimant as good. However, the good relationship started to deteriorate upon the arrival of the claimant’s wife, Ms Bernadette Lynn, as a member of staff in the Podiatry Department in or around 2000.

9. The claimant contended that Mr Fenton discriminated against him on the grounds of his religious/political belief. The claimant based this initially on a number of situations in which persons allegedly were mistreated by Mr Fenton, and we will consider them in turn.

Bernadette Lynn

Ms Lynn had difficulties in and around having to account for her timetable to Mr Fenton, her Department Manager. There were tensions between her and line management. This eventually led to a “Chiefs’ meeting” in early 2004 at which it was decided that Ms Lynn’s clinics, meetings and administrative time were to be fully identified on the health centre software appointment system. It appeared from the evidence of Mr Fenton and Mr Campbell, his deputy, that Ms Lynn would conform for a while and then would revert to previous behaviour and make it difficult for Mr Fenton to know where she was for part of the working day. Ms Lynn did not give evidence to the Tribunal but the claimant did confirm that her timetable accounting difficulties may have been because she resented having her clinical sessions interrupted by telephone calls from managers wanting to know where she was. In effect, he was suggesting she took her telephone “off the hook” during her consultations.

The claimant also tried to argue that as Ms Lynn was on secondment to the Local Health Commissioning Team she did not have to answer to Mr Fenton at all. However, the weight of the evidence was that although she might have been on secondment to this team for part of her time, she was still under the control of and answerable to Mr Fenton. Given that Ms Lynn would on one hand allow her timetable to be made transparent as soon as the issue was raised with her, but on the other did not recognise Mr Fenton’s right to manage her time while she was deployed to the Commissioning Team, shows that there was undoubtedly a problem regarding Ms Lynn’s attitude to work.

10. It was apparent to the Tribunal that at some stage late in 2003/2004 Ms Lynn and the claimant attempted to persuade the Deputy Manager, Mr Campbell, to support a vote of “no confidence” in Mr Fenton. This happened on a number of occasions according to Mr Campbell’s version of events and on one occasion in 2003/2004 on the claimant’s version of events. It was a common feature of the witnesses’ evidence on behalf of the respondent that the claimant and Ms Lynn started to function as a kind of a department within a department. They were hostile to Mr Fenton and did not wish to mix socially or professionally with other members of the Podiatry department.

11. It became necessary to recruit another Podiatrist to the department and Mr Fenton invited the claimant and Ms Lynn to sit on the interview panel with him. Ms Caroline Spencer was appointed to the position but very quickly after her appointment started experiencing difficulties with Mr Hearty which we will discuss further at paragraph 15 in this section. The claimant accepted that Ms Lynn had said to him about Ms Spencer “I told you she’d be trouble and we shouldn’t have given her the job”. This remark supports the Tribunal’s finding based on the impression of Mr Fenton and Mr Campbell that the claimant and his wife had set themselves up as a “parallel service to the main one”.

12. These facts are a background to the staff dynamics and events that transpired involving the claimant from 2003 to 2005.

13. The claimant developed a view no doubt fed by Ms Lynn’s perceptions that Mr Fenton had a difficulty with Roman Catholic members of staff, especially females, between 2000 and 2003 and that he sought to have Roman Catholic members of staff removed from the Podiatry Department in Lisburn between 2001 and 2005. The claimant cited the following examples and the Tribunal will set out its findings in relation to each person:-

(a) Mary McCormick

The claimant alleged that he had seen her coming out of Mr Fenton’s office crying. Ms McCormick gave evidence to the Tribunal that Mr Fenton was one of the best Managers she had ever worked for. The claimant was unable to sway Ms McCormick although he made an unpleasant suggestion that she would not know what bullying was. We find Mr Fenton did not discriminate again this witness as alleged.

(b) Caroline O’Hare

The evidence of Mr Fenton and Mr Campbell was that this was a problem employee who had a poor record with timekeeping in that she came late to clinics and left early, misplaced patient’s records and behaved aggressively towards patients. It appeared that she was managed by Mary O’Prey and not by the claimant. The claimant was not able to challenge Mr Campbell’s strong evidence that he had met with her and Miss O’Hare admitted that she was “lazy” and that she had found other employment more suited to her tastes. We find Mr Fenton did not discriminate against this former colleague.

The claimant’s allegation centred around alleged treatment by Mr Fenton of Ms Conway at interview. However, Mr Campbell challenged that view and pointed out that Ms Lynn (one of the three interview panel members) had herself chosen the successful candidate over Ms Conway. Mr Campbell gave evidence of a lengthy post interview discussion. The claimant claimed that Mr Campbell and Miss Lynn both preferred Ms Conway but did not choose to cross-examine Mr Campbell on this point. In the light of this evidence, the claimant alleged that he had not discussed this matter with his wife and claimed that Mr Fenton would have been able to mislead his fellow panel members and make the better candidate appear to be worse. This contention was not supported by any evidence. The Tribunal does not accept this contention of the claimant, especially as Ms Conway obtained promotion elsewhere and Mr Fenton provided a reference for her. Again the Tribunal finds that Mr Fenton did not discriminate against this person.

(d) Róisín McCluskey

The claimant alleged that Ms Jennifer Harrison, the Office Manager, had told him that Ms McCluskey was sitting in tears in reception on account of having been told by Mr Fenton that she should not bother to apply for a job. Ms Harrison had no recollection of this and could not support the claimant’s version of events. She said that if she had witnessed it, she would have reported it to her own line management.

Furthermore, the claimant alleged there was an incident when Róisín McCluskey parked in the car parking space of a nursing home manager and an altercation ensued. The claimant, although he did not know what had been said in the interview between Mr Fenton and Ms McCluskey, alleged that this showed Mr Fenton accepted, at face value, allegations made about Catholic employees without properly investigating them. As the claimant could not give actual direct evidence of what happened and based his allegations on his own speculation, the Tribunal does not find that Mr Fenton discriminated against this person.

(e) Janet Horan

The difficulties with this employee concerned an alleged conversation between her, Ms Lynn and Mr Fenton. The claimant alleged that Mr Fenton had made anti-Catholic sectarian remarks. This was although he admitted that he had worked with Mr Fenton for 20 years and had never heard him utter anything that could be interpreted as a sectarian or discriminatory remark. The claimant did not hear the remark himself and did not call Janet Horan to give evidence. That being the case, the Tribunal is unable to give any weight to the claimant’s contentions.

(f) Sean Savage

Finally, it was alleged that Mr Fenton had “got rid of” Mr Sean Savage, a Paediatrics Specialist. The Tribunal does not accept this contention as the evidence was clearly that, Mr Savage left to take up a post at the University of Ulster.

14. In summary, Ms McCormick, Ms Conway, Ms Horan, and Mr Savage left Lisburn Health Centre to obtain promotions. They were provided with references by Mr Fenton and only in the case of Ms Conway did he express any reservations (and that was concerning her sickness record). Perhaps the most telling point against the claimant is the fact that Mr Fenton sat on the panel that recommended the appointment of the claimant and on the panel that recommended the appointment of Ms Lynn. If Mr Fenton had such difficulty with Roman Catholic employees, why would this have taken place? In addition, to these specific assertions about Mr Fenton allegedly mistreating Roman Catholic female employees, the claimant advanced the contention that generally the numbers of Catholic employees in Lisburn Health Centre had declined over the period of years during which Mr Fenton was Manager of Podiatry. The figures disclosed to the Tribunal did disclose a fluctuating proportion of Roman Catholic staff over four years. In 2003 there were seven Roman Catholic staff out of seventeen. In 2004 the figure went down to five Roman Catholic staff out of fifteen. However, in 2005, the figure became eight Roman Catholic staff out of nineteen. In 2006, the figure was five Roman Catholic staff out of sixteen. In the evidence before the Tribunal, we saw nothing that showed that this was due to Mr Fenton wishing to cut down the numbers of Roman Catholic staff in his Department and in fact that most of these members of staff all left for promotion reasons.

SUMMARY
Year	Total Staff	Roman Catholic Staff
2003	17	7
2004	15	5
2005	19	8
2006	16	5

THE RECRUITMENT OF CAROLINE SPENCER

15. Ms Caroline Spencer was a Paediatric Podiatrist Specialist. It was alleged by the claimant that she had been recruited by Mr Fenton as a Roman Catholic female to offset the adverse look of the reduction in Roman Catholic personnel. There was a question mark in the evidence over how Mr Fenton recruited Ms Spencer as he appeared to have some prior direct contact with her, but she did go through the usual appointment process. The Tribunal considered that the claimant’s contentions were undermined by the fact that both he and his wife sat on the interview panel with Mr Fenton, and presumably could have outvoted Mr Fenton if they considered that Ms Spencer was not suitable. It appeared Mr Fenton however, was keen to make the appointment lest funding for the position be lost.

16. The claimant did not have a good professional relationship with Ms Spencer. He denigrated her competence and experience. He alleged that she had failed to obtain the agreed pass mark in the interview although the matter on which he really relied for putting forward that contention was her alleged failure to answer a question correctly about Asperger’s Syndrome. With the passage of time and the claimant’s undoubted delay in bringing proceedings, the records of the appointment process were destroyed after three years, so it is impossible for the respondent to properly answer the claimant’s allegation that Ms Spencer did not achieve the agreed pass mark. On the balance of probabilities, the Tribunal considers that this is an example of the claimant trying to manipulate events to fall in line with his theory that Ms Spencer had been recruited by Mr Fenton purely to “cover his tracks” when he was allegedly trying to reduce the numbers of Roman Catholic female employees in the Department.

17. The claimant attacked Ms Spencer’s account of her experience in biomechanics in working with pressure plate systems. He tried to present her as a novice to the tribunal. He ignored her account of full-time employment at a senior grade and her long experience as a specialist in biomechanics. On the balance of probabilities, given that Ms Lynn and Mr Hearty endorsed the recommendation of the appointment of Ms Spencer, we do not consider that the claimant’s subsequent attempts to undermine her performance at interview and qualifications for the job have any merit. In or around 12 March 2004 the claimant approached Ms Spencer and alleged that Mr Fenton had difficulties with Roman Catholic women.

THE GAIT LAB

18. In or around 2003/2004 Mr Fenton utilised a claim for funding to provide money to set up a proper biomechanical laboratory and to further invest in the claimant’s specialism. The claimant allegedly offered training but there was allegedly very little take-up. The claimant also tended to regard the Gait Lab as his own personal workspace and office. He said that the other members of staff were not allowed to use it as he had not yet developed “sufficiently robust” procedures. This seemed to take a very significant length of time. There were also some difficulties with the machinery. It appeared to the tribunal that the claimant wished to restrict use of this new facility to himself. When he left the building, no key could be found to get into this facility. Mr Fenton’s view was that it was a facility that could be used by all members of staff and he was concerned that even when this new facility was not being used by Mr Hearty, staff were being prevented from using it to view in private their patients walking. Instead they were being forced to continue to use the corridor. Ms Spencer had considerable experience in paediatric biomechanics and she wished to share the use of the facility. This did not meet with the claimant’s approval. He allegedly called her a “mouthy bugger” or “a loud mouthed bitch” or simply “a bitch”. Whilst the claimant took exception to being alleged to have called Ms Spencer a “loud mouthed bitch”, the tribunal does not consider that his admitted version - “a mouthy bugger” is any less demeaning.

19. Ms Spencer had seventeen years of experience as a Podiatrist and nine years of experience as a specialist in biomechanical work prior to arriving in Lisburn Health Centre. As this is the case, the Tribunal does not consider that the claimant can really argue that he had reservations about her using the equipment. It is more likely than not that the claimant was hostile to any attempt to take over what he regarded as his own domain. Furthermore, the Tribunal does not understand why if the claimant had had such deep reservations about the competence of Ms Spencer, he co-operated in her appointment in the first place.

20. The Tribunal finds that the claimant was hostile to other members of staff using the facility and was putting forward the need to provide “robust” procedures before letting them do so, as an excuse. It was not really challenged by the claimant that after he left on sick leave, Ms Spencer had managed to get the facility up and running and the procedures in place within about three weeks.

The Tribunal does not consider that it needs to comment upon the claimant’s allegation that Mr Fenton espoused the management consultancy theories of Sun Tzu. We found absolutely no evidence that this was the case, and do not in any case understand how this could possibly be relevant to this case.

THE CLAIMANT’S TIMETABLE

21. Did Mr Fenton interfere with the claimant’s timetable? Aside from the background of allegations of mistreatment of Roman Catholic female employees, this was a major allegation against Mr Fenton levelled directly by the claimant. The claimant seemed to the Tribunal to require a considerable amount of additional allowances to be made for him. He needed travelling time when he was travelling to outside centres and this was something that no other member of staff received. The reason for this was that the claimant said he had to come in in the morning and pick up the equipment. He did not explain why he could not take it home with him the previous evening. He quite obviously resented being allocated routine work saying that he and other Catholic members of staff were singled out to do this. However, he did not provide any actual objective evidence that that was the case. Neither did he challenge that Mr Fenton and Mr Campbell also undertook some of the routine work. There was a perception amongst junior staff, raised by Ms Shauna Gamble, that the claimant was reluctant to help with the routine work. There had been pressure on waiting lists in late 2003 and 2004. The Tribunal does not consider that the allocation of routine work to the claimant could be regarded as less favourable treatment as all members of staff including senior staff were asked to do additional routine clinical work. However, his claim that all Catholics were being allocated such an additional workload is inconsistent with his claim that the reason he was allocated such work was by reason of having done a “protected act”. The Tribunal does not consider that asking the claimant to carry out routine work was in any way discriminatory, simply he was being asked to share a burden which applied to the whole Department.

22. The claimant complained that taking on routine work caused additional pressure on and increased his backload of specialist practice patients. However, this would surely have been the case for any of the senior staff and the claimant was not singled out. Furthermore, the Tribunal has taken account of Mr Fenton’s evidence that the claimant had many blank spaces in his schedule and his waiting list would not have been so long if this had not been the case. In essence, the claimant was not making productive use of his time.

23. The claimant further complained that many of the routine patients he saw in early 2004 were “return visit patients”. He alleged that the average return time for 80% of the routine patients he was being allocated was one to two months which was well below the return time the Department normally applied. Effectively, he was contending that Mr Fenton, acting with the administrative staff, were trying to make life difficult for him. The Tribunal does not accept the claimant’s contention that this was the case. Mr Fenton was the Manager of the facility and he was trying, with the co-operation of the administrative team, to improve or reduce the turnaround time. That was a perfectly proper and legitimate aim. The claimant did not provide any evidence that the return times for his patients were substantially different to the return times for other podiatry patients and accordingly, the Tribunal considers that the claimant was not being less favourably treated by being asked to carry out additional routine work, and furthermore that there was no evidence in this category of any discrimination against Roman Catholic employees.

THROUGHPUT

24. This was not the only complaint that the claimant had regarding Mr Fenton’s interference with his timetable. Mr Fenton had spoken to a managerial colleague in Foyle Trust about throughput. He had been provided with the basis of a comparison with the work of the lead Biomechanical Clinician of Foyle Trust, Mr Robert Pole. In a month the claimant’s average was sixty-seven patients processed and the Foyle average was approximately three hundred and thirty-two per month. By any frame of reference this is a large disparity. The figures appeared to show that Foyle was processing four times as many patients as the claimant. The claimant tried to allege that this was another example of him being mistreated by Mr Fenton because of his religion. The Tribunal does not accept the claimant’s contention. The Tribunal was satisfied on the evidence that what Mr Fenton was implementing was properly within his managerial remit to try to improve the productivity of his department. No matter how the claimant tried to attack the comparison, there was a huge discrepancy between what the Foyle Clinician was achieving and what the claimant was achieving per month. However, Mr Fenton did not come to the claimant with this new timetable set down and not capable of amendment. He did listen to the claimant’s representations and amended the timetable in accordance with the claimant’s requirements. The tribunal did not consider on the evidence that the claimant was so overburdened with administrative duties that adding extra appointments into his timetable was less favourable treatment on the ground of his religion. He had to carry out two fairly short audits in two years. He had the management of Ms Spencer (previously Mr Savage) and we do not consider this to be onerous. The ordering of clinical supplies was reassigned by Mr Fenton to one of the claimant’s colleagues to address the complaint of the claimant.

Matters between the claimant and Mr Fenton escalated at a meeting between them on 9 April 2004 at which the claimant accused Mr Fenton of verbal assault and threatening behaviour. Given the overall weight of evidence about Mr Fenton’s personality, we consider it is much more likely that the claimant acted aggressively to Mr Fenton who recalled him lunging at him and snatching something from him.

Next the claimant went out on sick leave in late April/early May. The reason for his absence was workplace stress leading to a high level of anxiety. The claimant was referred to a Doctor Black who reported at various stages to the Personnel Department and ultimately to Mrs Jennifer Buchanan in around 27 August 2004. At this point, Doctor Black stated the difficulties remained in the interpersonal relationship between the claimant and his manager, Mr Fenton. A meeting was arranged by Mr Martin O’Toole of the Personnel Department, and this took place on 2 September 2004. The claimant seemed to think that it was a “back to work” meeting, but it was categorised as a routine office visit by Mr O’Toole. The claimant attended with Mr Bob Werne, his Trade Union Representative and the agenda was drawn up by Mr Fenton. The goal of the meeting was to clear the way of the obstacles or issues barring the claimant’s return to work. The claimant was confrontational and contested the Trust’s right to hold the meeting. Despite the claimant’s attitude, Mr O’Toole was hopeful that they had made progress.

25. At the beginning of December 2004 the claimant lodged a grievance that Mr Fenton’s changes to his timetable made it impossible for him to carry out his role as Chief IV Podiatrist. The Tribunal has already indicated that the action by Mr Fenton to try to increase productivity was not with any view to discriminating against the claimant and in fact was something that no doubt had been introduced by his managers above him in the chain of command. Furthermore, we do not accept that Mr Fenton bullied the claimant and was dismissive regarding the timetable changes. We find that Mr Fenton took full account of the claimant’s representations and did not dismiss what the claimant said about the proposals. There were amendments which demonstrated, that Mr Fenton had taken account of what the claimant said. This is not symptomatic of religious discrimination.

26. We have noted that the claimant considers that launching this grievance was one of three protected acts. We do not consider that the lodging of a grievance that his timetable was interfered with can constitute a grievance for the purposes of Article 3(5)a. That does not refer to the 1998 Order. However, we do accept that the allegation about the Catholic women being mistreated is capable of constituting a protected act under Article 3(5)(a)(iii).

27. Whilst the claimant was off sick the respondent discovered that he was practising privately while in receipt of sick pay. The Tribunal accepts the evidence that this was the case. The respondent deferred consideration of the claimant’s grievance until the conclusion of covert surveillance of the claimant, that it commissioned in accordance with the Regulation of Investigatory Powers Act 2000. The respondent subsequently decided to defer it until a conclusion of any disciplinary process.

28. However, in response to complaints from the claimant about delays in the process the Human Resources Director, Mr Alan Best, by letter dated 27 May 2005, proposed that the grievance might be better dealt with under the respondent’s Dignity at Work Policy. The claimant agreed to this by letter dated 3 June 2005 and Mr Best confirmed on 9 June 2005 that Ms Linda Davidson had been appointed to investigate the claimant’s complaint. Ms Davidson wrote to the claimant by letter, dated 13 June 2005, offering a choice of three appointments on which to have a preliminary meeting. The claimant maintained that the respondent had abandoned his grievance in contrast to their tenacious pursuit of the disciplinary allegations against him. On cross-examination, however, the claimant claimed that he had not pursued the Dignity at Work complaint because of legal advice from his former solicitor, Mr Brangam. As that is the case, any complaint that the claimant has arising from his failure to attend the Dignity at Work procedure is a matter to be taken up with the representatives of the late Mr Brangam. The claimant also contended that the Dignity at Work Policy was a diluted form of the grievance policy.

29. The claimant was not able to contend that Mrs Buchanan was wrong in contending that this is the main framework within which the respondent deals with allegations of discriminatory harassment. Accordingly we find that it was the claimant who abandoned his grievance, and not the respondent.

THE CLAIMANT’S MISCONDUCT?

30. Ms Nolleen McCreanor found out in December 2004 that a friend of hers was seen and treated by the claimant who was offering services privately as a Podiatrist while on sick leave and while receiving sick pay. As a result, Mrs Buchanan was advised by the Human Resources Director on authorisation by the Chief Executive of the respondent to commission a firm of private investigators to carry out covert surveillance on the claimant. This revealed that the claimant was working in a private practice in premises on the Malone Road, Belfast. The Tribunal did not accept the claimant’s claims that Mr Fenton was involved in giving the information which led to the discovery of this misconduct or in the decision to carry out surveillance. There was no evidence this was the case, to in any way counter Ms McCreanor’s evidence of what happened.

31. The allegations of misconduct were raised with the claimant at a meeting on 20 April 2005 attended by Mr Joe Dunne, Presenting Officer, and Mrs Jennifer Buchanan, the Human Resources Manager. Mr Dunne was accompanied by Mr Graham Perry, a Trade Union official. The allegations were then formally set out by a letter of 2 June 2005 to the claimant from Mrs Buchanan although the decision to refer the matter to a disciplinary hearing and as to the substance of the charges had been taken by Mr Joe Dunne.

32. The charges were:-

“It is alleged that you have been working whilst receiving sick pay from Down Lisburn Trust.

It is further alleged that you have failed to account for Trust equipment allocated to you.”

The claimant tried to blur the issue by saying that he did not work while receiving statutory sick pay, the inference being he was wrongfully disciplined. In response to direct questions from the tribunal the claimant admitted he had been in receipt of Occupational Sick pay while undertaking a number of private consultations in December 2004. We do not consider the respondent’s action was wrongfully taken.

At the meeting of 20 April 2005 and in subsequent correspondence on the claimant’s behalf Mr Perry admitted that the claimant had carried out some work privately. However, he claimed then, and the claimant has claimed before the tribunal, that he had been doing nothing wrong. It was alleged on behalf of the respondent that the claimant was in breach of his contract of employment by working privately while in receipt of sickness pay. He was too sick to work for the respondent and needed sickness pay, yet in the evenings he was able to work privately.

These statements contradict each other.

The Tribunal accepts the submission that the claimant’s action could be classified as a species of fraud (obtaining property or money by deception). The members of the Disciplinary Panel Mr Paul McBrearty and Mr Billy Bateman, agreed with Mr Dunne. Public confidence in the respondent especially in the current economy would be seriously undermined if the respondent was not seen to take a very serious view of this activity.

33. The claimant contended that it was none of the respondent’s business; he was working outside his contracted hours; it was good for his health and morale and kept his skills up-to-date. Finally, the claimant relied on alleged breaches of his human rights. The Tribunal did take note of the claimant’s argument that other healthcare professionals such as Physiotherapists do this sort of work, but was unable to take it into account in its overall decision whether the respondent had treated the claimant less favourably on the grounds of religion because quite bluntly this is a different profession and we were not provided with details of the numbers of Physiotherapists in all the trusts who were in fact doing private work. Essentially, the Tribunal was not able to regard this as in any way relevant as a comparator as it was a materially different profession and no evidence of religious denomination was provided. Neither did the Tribunal regard the claimant’s contention that Mr Fenton was a valid comparator, in that he was a Protestant and did some private work without being disciplined as being of assistance. Again the situation of Mr Fenton was materially different as there was no evidence that Mr Fenton was in receipt of sick pay.

34. The claimant resigned from the Trust on 30 June 2005. Notwithstanding this resignation the panel decided to hear the evidence in relation to the allegations and that eventually happened on 25 August 2005. The claimant chose not to attend and did not send any representations or submissions in relation to the allegations.

35. The Disciplinary Panel found the allegation of the claimant working while receiving sick pay to be proved. The panel concluded that the charge about not accounting for missing Trust equipment was not sufficiently clear and made no finding in relation to it. Finally, the panel concluded that working while receiving sick pay was an offence of gross misconduct and that had the claimant still been in employment they would have summarily dismissed him.

36. Given that the respondent made no finding in the respect of the laptop, the Tribunal has disregarded the additional issues regarding the identification of the laptop which the claimant sought to introduce during the hearing as being of no relevance.

37. The circumstances surrounding the resignation on 30 June 2005.

The claimant faced a disciplinary hearing that was initially fixed on 17 June 2005 and subsequently adjourned to 8 July 2005. The claimant was on sickness absence leave. By Ms Linda Davidson’s letter of 13 June 2005 the claimant had the option of pursuing his complaint under the Dignity at Work Policy on a variety of dates in June.

38. The claimant alleged that his legal advisor, Mr George Brangam, deceased, advised him to resign. If that is indeed the case, then the Tribunal considers that is a matter between the claimant and the estate of Mr Brangam, as there was a possibility of a conflict of interest arising which is not a matter for this Tribunal. The claimant placed great emphasis on the fact that he had told the respondent that he was not able to return to work until his grievance had been resolved. However, given that the claimant had been offered a variety of dates in June 2005 on which to pursue his grievance, and he neglected to do so then the tribunal does not see that there is any merit in this contention.

THE QUESTION OF THE RIGHT OF APPEAL

39. By letters dated 16 September 2005 and 8 February 2006, the respondent said that it would afford the claimant a right of appeal against the disciplinary finding, when his mental health would improve sufficiently to allow him to conduct an appeal. It was this correspondence that has resulted in the case being brought by the claimant. The claimant viewed this as an open-ended commitment by the respondent to allow him a right to appeal indefinitely. However, the subsequent incumbent of the post of Human Resources Director, Mr Eamonn Molloy, disagreed with this interpretation. Given that the claimant resigned on 30 June 2005 and did not seek to exercise his appeal until in or around August 2008, it is not surprising that Mr Molloy took this view. However, for the total avoidance of any doubt, it would have been preferable and better employment practice if the Human Resources Director, at the time when the claimant was seeking confirmation about the right of appeal, had in fact made it clear that this right would not stand open indefinitely and placed a time limit on the right. This would have avoided the claimant seeking to re-open a right to appeal after an incredible delay of around three years from the events in question.

CONCLUSIONS ON THE JURISDICTION ISSUE

40. Limitation

On the facts before us the claimant was considerably out-of-time in lodging his proceedings. The last act of which the claimant complains (the decision of Mr Molloy (excepted)) is the decision of the Disciplinary Panel that was communicated to him on 16 September 2005. However, the claimant did not lodge proceedings with the Tribunal until 15 April 2009. The relevant law is found in Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and that provides:

“the tribunal shall not consider a complaint unless it is brought before whichever is the earlier of:-

(a) the end of the period of three months beginning with the day on which the complainant first had knowledge of the act complained of; or

(b) the end of the period of six months beginning with the day on which the act was done.”

Article 46(5) provides that a tribunal may nevertheless consider any such complaint which is out-of-time if in all the circumstances of the case it considers that it is just and equitable to do so.

In the case of Robertson v Bexley Community Centre [2003] IRLR434 the Court of Appeal indicated that it is not open for the Employment Appeal Tribunal to interfere with the tribunal’s exercise of discretion merely because it would have reached a different conclusion on the facts if it had decided the issue at first instance. An appeal can only succeed if the Employment Appeal Tribunal can identify an error of law.

41. In reaching its decision to grant an extension of time under the just and equitable formula the tribunal has had regard to the case of British Coal Corporation v Keeble [1997] IRLR336. This case has set down the test for the exercise of the discretion and basically above all the Tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regard to all the circumstances, ie:-

(a) the length of and reasons for the delay;

(b) the extent to which the cogency of evidence is likely to be affected by the delay;

(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

42. The respondent has suffered the prejudice of having difficulty in being able to defend the case because due to the claimant’s delay of in excess of three years, papers that would have been of assistance had been destroyed. Furthermore, with the passage of time memories can fade and a strain is put on witnesses in that they have to live with the threat of a very serious allegation for a longer time. It is undoubtedly the case that the respondent did have some difficulties in that some documentation had been destroyed, however, this only seemed to pose difficulty in one particular tangential area of the case. While the Tribunal has sympathy with witnesses who are left with serious allegations hanging over them, it still has no doubt that any person in respect of whom discrimination is alleged at all will suffer strain as a result of such an unpleasant allegation being made against them.

43. The Tribunal noted that Mr Fenton had some difficulty in answering the
cross-examination questions of the claimant as his memory had faded and it could be alleged that he was thus a less valuable witness for the respondent. However, the Tribunal considered in the weighing of the evidence that it had the benefit of powerful evidence from Mr Allister Campbell, Ms Caroline Spencer, and Ms Mary McCormick, which was unaffected by the passage of time. The claimant on the face of things seemed to suffer less prejudice than the respondent, but this case is of importance to the claimant in deciding whether or not the related litigation he is bringing against Mr Brangam, deceased, would have any validity. As such, and very unusually in the particular circumstances of this case, the Tribunal considers that the balance of prejudice lies with the claimant. The Tribunal has also subjected this case to the Keeble tests as follows:-

We have considered paragraphs (a), (d) and (e) together:

(a) The length of and reasons for the delay.

(d) The promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

(e) The steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

44. Given the inter-related nature of the facts in this area of the case, the Tribunal is considering these three tests together having discarded Tests (b) and (c) set out in paragraph 41 of this decision.

45. Why did it take the claimant so long?

There were a variety of reasons for this. The claimant said that he suffered from extreme anxiety and had to see a Psychiatrist. The occupational health reports before the tribunal are limited to the period of May to August 2004 and are not of assistance to the Tribunal in assessing the claimant’s behaviour from 2006 to 2009.

46. The Tribunal did not have the benefit of the report of any Consultant Psychiatrist but the claimant claimed that he was being treated for depression. The Tribunal was presented with a letter from the claimant’s General Practitioner, Doctor Kelly, dated 10 January 2011 in connection with the repeated failure of the claimant to provide submissions at the end of the case. This letter confirms that the claimant has been attending the Springfield Road Surgery since 2004 with stress related to employment issues and we quote as follows:-

“This stress has gradually impacted upon your mental health and you are currently receiving anti-depressants for depression. Your depressive illness could certainly result in poor concentration which could have an adverse effect upon your ability to prepare documentation for your evidence.”

Whilst this letter is of very recent origin, it nonetheless comments in respect of the period which the Tribunal is considering in that the doctor starts his consideration of the claimant’s condition in 2004. Therefore the Tribunal considers that it is justified in including this letter from the claimant’s General Practitioner in considering its decision on this preliminary point, despite the fact that this letter was produced by way of mitigation in respect of the claimant’s behaviours in the submissions section of the hearing. Accordingly, we accept that the claimant had been unwell and this could have had an impact on his ability to deal with his situation. The respondent submits, and there is merit in the submission, that if the claimant was well enough to consult with and direct three successive sets of solicitors firms, in relation to judicial review proceedings, a protection from harassment claim and to practise part-time as a Podiatrist, he was well enough to complete an application form to the Fair Employment Tribunal.

47. However, it is also the case that a difficulty with mental health could have affected the claimant’s judgement to the extent that he felt that he could not prove discrimination on the evidence he had in his possession and had to wait until he had such evidence. Against this contention, it has to be remembered that the claimant was legally represented. The Tribunal does not consider that it can enter into any assessment of the advice given to the claimant by his various sets of legal representatives. In the very particular circumstances of this case as a result, we do not consider it would be just and equitable to deprive the claimant of the ability to bring his case.

One of the claimant’s subsidiary arguments was that he had decided on foot of Mr Molloy’s refusal, to lodge proceedings. The Tribunal does not accept this as a valid explanation in the light of the alleged “scurrilous” disciplinary decision, that Mr Molloy’s refusal in itself should have proved to be the trigger. However, overall, we consider that the claimant’s ability to deal with his situation from in and around June 2005 was affected by his mental health condition and was emphatically not helped by the alleged behaviour of Mr Brangam in allegedly telling the claimant to resign.

48. Whatever way the Tribunal considered the matter it could not be validly argued that the claimant acted promptly once he knew of the facts giving rise to the cause of action and we question the steps taken by him to obtain professional advice. We cannot accept that the claimant acted promptly and plainly he was in a position to get legal advice. However, it is possible that in the circumstances of his particular case, his mental condition made it difficult for him to act promptly and to properly handle whatever legal advice he was given in relation to this case.

However, we would not wish this to be a principle of general application and consider it should refer only to the circumstances of this case because on any reckoning the claimant was extremely out-of-time.

CONCLUSIONS ON THE SUBSTANTIVE ISSUE

49. The statutory definition of discrimination is contained in Article 3(2) and Article 3(3) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and these say:-

“A person discriminates against another person on the ground of religious belief or political opinion… if

(a) On either of those grounds he treats that other less favourably than he treats or would treat other persons…”

and

“A comparison of the cases of persons of different religious belief or political opinion under paragraph 2 (must be such that the relevant circumstances in the one case are the same, or not materially different, in the other).”

The Tribunal has been helped by the dicta of the House of Lords in the case of Shamoon v Chief Constable of the RUC [2003] IRLR285HL which said:-

“In deciding a discrimination claim one of the matters employment tribunals has to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the ‘less favourable treatment’ issue) and then, secondly, whether the less favourable treatment was on the relevant prescribed ground (the ‘reason why’ issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus, the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

No doubt out 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 prescribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparators is a matter of 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.”

50. In this case, the claimant indicated that he wished to rely upon Mr David Fenton, his former Manager, and Mr Willis, employed by another trust, as comparators. The basic premise for relying on the treatment of Mr David Fenton is that the claimant contends the disciplinary allegations against him were pursued as far as a panel finding but the respondent did not pursue the grievance against Mr Fenton. We do not accept Mr Fenton as a valid comparator. These are two different procedures and we do not think that we can regard them as anything other than materially different situations. On the one hand, the respondent was dealing with a disciplinary procedure and on the other the respondent was dealing with a grievance. However, we do not find that the respondent failed to pursue the grievance. We found that this was the claimant’s fault. He was written to and offered a selection of dates upon which to meet and he did not take up this option. He abandoned the Dignity at Work/Grievance Complaint in June 2005. Whether he did so on the advice of his Solicitor is not relevant, the fact is that the grievance was not pursued through his inaction.

51. The second comparator is a Mr Ian Willis from Craigavon, in Banbridge Trust. There was no evidence led but the claimant submitted that Mr Willis was a comparable health care professional and was discovered to have been working while on sickness leave. He was initially disciplined and later the disciplinary action was reduced to a written warning. The claimant is claiming that this Trust is part of one bigger organisation the National Health Service and as a consequence he is entitled to have his case and treatment compared with that of Mr Willis who is a Protestant. We accept the respondent’s submission that the persons taking the decision in question are the people against whom Article 3(2) actually operates. It is the decision of Mr McBrearty and Mr Bateman that is being challenged as discriminatory. It is of course interesting to note that the issue of the comparison of Mr Willis was not raised by the claimant with either Mr McBrearty or Mr Bateman.

The terms of Article 3(3) clearly call for a comparison between the treatment that Mr McBrearty and Mr Bateman accorded the claimant on the one part and how they treat or would treat other persons. It does not provide for a comparison of how Mr Bateman and Mr McBrearty treated the claimant a Roman Catholic (or for the purposes of the claimant’s victimisation claim) someone who had committed a protected act, on the one hand and how Mr X or Ms Y of Craigavon and Banbridge Trust treated Mr Willis. The case of Shamoon provides that the situations must be the same or not materially different. We once again refer to that case.

“Second, Superintendant Laird, the alleged discriminator, had no managerial responsibility or function in relation to the staff appraisal procedures followed in the South Branch and North Branch. He could not, even if he had wanted to, have deprived the Chief Inspectors of those Branches of their counselling officer duties.”

“The tribunal’s decision is vitiated by two fundamental errors. First, it overlooked the fact that Laird had no authority over the two male chief inspectors. So, if they continue to do assessments, this was not because of any decision which Laird [had taken to allow them to do so]. He did nothing to them - he did not treat them at all. For that reason it was not open to the tribunal to find in terms [of the statute] that Laird [had treated the applicant less favourably than he treated the two male Chief Inspectors].”

This dictum of Lord Rogers is very much on point. Neither Mr McBrearty or Mr Bateman had anything to do with Mr Willis. The comparison fails.

52. The Tribunal has already dismissed Mr Fenton and Mr Willis as actual comparators. However, we must now look at constructing a hypothetical comparator with the claimant’s attributes but of the Protestant faith and ask ourselves whether Mr Fenton first, and the Disciplinary Panel next, would have treated someone in the claimant’s position but of the Protestant faith (alternatively, for the purposes of the victimisation claim, somebody who had not committed a protected act), any differently, any more favourably, than they were alleged to have treated the claimant. In short we should ask why the claimant was treated as he was. We conclude that the claimant was treated as he was because he was guilty of gross misconduct and that the Trust had to resolve this issue both in terms of its duty to give future references for the claimant and to uphold public trust and confidence in the Trust. We do not consider that the treatment of the claimant would have been any different if he had been a Protestant. We have already set out our findings that the claimant was not less favourably treated by Mr Fenton. Thus the reason why does not arise in connection with Mr Fenton.

The Victimisation Claim

53. The statutory reference to victimisation is found in Article 3(4), (5), and (6) of the 1998 Order. The essence of a victimisation claim is whether or not a person is treated less favourably than others because he has done a protected act, as was set out in the case of Chief Constable of West Yorkshire Police v Khan [2001] IRLR830 House of Lords. The Tribunal accepts that in his comments to Mr Campbell about Mr Fenton having a difficulty with Catholic females concerning Caroline O’Hare and by his comments to Caroline Spencer in or around 12 March 2004, the claimant had committed protected acts. We have already concluded that the grievance lodged with the respondent did not amount to a protected act as it was not done with reference to the Fair Employment and Treatment (Northern Ireland) Order 1998.

54. However, we have not been able to find any evidence to in any way tie the respondent’s treatment of the claimant to his having made these comments to Mr Campbell and Ms Spencer. Therefore his claim to be victimised on the ground of doing a protected act fails.

BURDEN OF PROOF

55. If a complaint of discrimination is to be upheld there is a two stage decision-making process. The first stage requires that the complainant 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 claimant. Once that hurdle has been surmounted, the burden of proof passes to 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. We have also had regard to the case of Bahl v Law Society [2004] IRLR799. Racial discrimination [and any other form of discrimination in Northern Ireland], may be inferred if there is no explanation for unreasonable treatment. This is not an inference to be drawn from unreasonable treatment itself but an absence of an explanation. The alleged discriminator can not avoid an adverse inference by proving he behaved equally unreasonably to everybody. Proof of equally unreasonable treatment of all is one way of avoiding an inference of unlawful discrimination. However, an employer can counter this by needing a genuine reason which is not discriminatory and which was the ground of his conduct. In this case, we consider that the reason why the claimant had his timetable reworked by Mr Fenton was due to the need to increase productivity of the Department which is a very valid economic reason and one which we have no hesitation in accepting as a non-discriminatory reason. We also consider that the respondent pursued the disciplinary proceedings to a conclusion as it wished to have a clear outcome of the misconduct for future reference. We do not in any way find that this was done to discriminate against the claimant, but rather to fulfil the respondent’s responsibility to be able to give a reference in the future against the claimant. We do not in any way accept the claimant’s contention that he was not able to return to work because the respondent did not deal with his grievance. We consider that the reason that the claimant did not return to work lies with him. We do not intend to enter into any discussion of what advice was allegedly given by the claimant’s legal representative at the time, as we consider that that is a matter for another court to adjudicate upon. In summary, we consider that the respondent did all that it could to pursue the claim and that it was the claimant’s failure to take up a date for a meeting that stopped it being progressed. Furthermore, as we do not have any useful comparator, we cannot find whether or not there was a difference in treatment.

56. The only possible scintilla of discrimination that the tribunal was able to identify was the fact that there were fluctuations in the numbers of Roman Catholic persons employed in the Podiatry Department over the period in question. However, we have not been able to draw an inference that this was as a result of behaviour or a concerted plan by Mr Fenton to rid the Department of Roman Catholic Podiatrists. There was simply no evidence to suggest this. One of the persons allegedly mistreated by Mr Fenton gave very telling evidence to the tribunal to the effect that Mr Fenton was one of the best managers she ever had. Therefore, we do not consider that any inference of discrimination can be drawn from the background fluctuations of the religious composition of the workforce of the respondent.

57. We also wish to consider the dictum of Coghlin LJ in the case of Kevin Curley v Chief Constable of PSNI [2009] NICA8. This is as follows:-

“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 respondents had committed an unlawful act of discrimination. ‘Could conclude’ in section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all of 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 on by the claimant to prove less favourable treatment, evidence as to whether the comparisons made by the complainant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment… 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 that the situations with which comparisons are made are not truly like the claimant or the situation of the claimant; or that, even if there has been less favourable treatment of the claimant, it was not on the grounds or her sex or pregnancy (in this case religion). Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the claimant’s allegation of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the prescribed ground.”

Having subjected the evidence to the tests set out in this helpful passage, we have not been able to find that there was any differential treatment of the claimant. Where we have found that the acts occurred, we are not able to find from the evidence that there was anything to suggest that they were engineered by a desire to discriminate against the claimant and we have not been able to draw any inferences from the only possible primary fact which was the fluctuating levels of Roman Catholic employees in the Podiatry Department. Mostly, these people left from time-to-time for reasons of promotion, to which references by Mr David Fenton assisted them. In short, we are not able to find sufficient facts that would allow us to shift the burden of proof from the claimant to the respondent.

HARRASSMENT CLAIM

58. The law relating to harassment is found in Article 3A of the Fair Employment and Treatment (Northern Ireland) Order 1998. Article 3A says as follows:-

“A person (“A”) subjects another person (“B”) to harassment in any other circumstances relevant for the purposes of any provision referred to in Article 3(2)B (where, on the ground of religious belief) or political opinion, A engages in unwanted conduct which has the purpose or effect of:-

(a) violating B’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

The Tribunal did not have any submissions from the claimant on this point in particular or at all. Therefore, it can only be speculation on the part of the Tribunal that the claimant was seeking to characterise Mr Fenton’s reorganisation of his timetable and the meeting of 9 April 2004 as interference that violated his dignity or created an intimidating hostile degrading, humiliating or offensive environment for him.

Did the way Mr Fenton went about it constitute, behaviour within Article 3A?

We have found that Mr Fenton took account of the claimant’s objections. This is not behaviour symptomatic of harassment.

We have already concluded that the reorganisation of the timetable was generated by perfectly valid management concerns to try to improve the productivity of the department in general and Mr Hearty in particular. Neither do we think that the fact that his junior colleagues wanted to use the biomechanical facility was in any way a violation of his dignity or something that created a hostile atmosphere to him. To the contrary, we consider that any harassment that took place was generated by the claimant and to a certain extent by his wife and was directed by them in a concerted campaign to undermine Mr Fenton’s authority. The vast bulk of the evidence the Tribunal heard was that Mr Fenton was by nature a gentle individual. The Tribunal is supported in concluding that Mr Fenton did not harass the claimant over the timetable, because of the clear evidence that Mr Fenton tried to incorporate the claimant’s point-of-view in reaching the final version of the timetable. The Tribunal also concludes that Mr Hearty’s angry behaviour towards Mr Fenton in the meeting of 9 April 2004 which occurred after he agreed the changes to the timetable and which was partially witnessed by the claimant’s wife, was in fact harassment by the claimant of Mr Fenton.

COVERT SURVEILLANCE

59. The claimant alleged that by undertaking covert surveillance against him the respondent had violated his human rights contrary to the Human Rights Act 1998. The Tribunal considered the various statutory instruments that the respondent relied upon. These are as follows:-

- Regulation of Investigatory Powers Act 2000 (“the Act”).

- The Regulation of The Investigatory Powers (Prescription of Offences, Ranks and Positions) Order (Northern Ireland) 2002; and

- The Code of Practice on Covert Surveillance issued by the Home Office.

The Tribunal is satisfied that the respondent’s Chief Executive at the time in question acted properly on the basis of this body of statutory authority. The Chief Executive was one of the persons named in the Act who was able to authorise covert surveillance. The suspected activity of the claimant, which was engaging in private practice as a Podiatrist while on extended sickness absence and in receipt of sickness pay, amounted to appropriate circumstances within which to authorise covert surveillance. We do accept the respondent’s submission that the behaviour of the claimant could amount to serious misconduct such as fraud. We have considered the authorities in reaching this decision and these were as follows:-

- McGowan v Scottish Water [2005] IRLR167

The claimant alleged his dismissal was unfair because his right to respect for his private life had been breached. In this case, he was suspected of falsifying timesheets in relation to call-out times and periods of call-outs and his employer undertook covert surveillance of his home by private investigators. The film footage proved that the employer’s suspicions were well-founded and the claimant was dismissed. The EAT found by a majority decision that this dismissal was fair. While there may be rights to respect for one’s private life, this could be put in issue by the very persons subsequently citing a breach of the convention. The issue of proportionality has to be considered. The employer in this case was a public corporation and they were investigating what was effectively criminal activity in the sense of fraudulent timesheets. In such a case, an employer’s surveillance of an employee’s home was not disproportionate the claimant’s alleged conduct in submitting the false timesheets forced the employer to investigate the matter.

In this case, which had very similar circumstances to the McGowan case, it was Mr Hearty’s behaviour in working while in receipt of sickness pay that forced the employer (also a public body) to investigate the matter.

In the case of Jones v University of Warwick [2003] EWCACIV151 the claimant sued her employer for personal injuries alleging that she had a significant continuing disability as a result of her injuries. The defendant denied that the claimant had the disability and relied on secret video recordings made by a Private Investigator at the claimant’s home. He had gained access by falsely posing as a Market Researcher. Relying on Article 8 of the Human Rights Act 1998 the claimant said that this evidence should not be admitted. The Court of Appeal held that it could be admitted reflecting on the reality of the situation and that the Court’s disapproval of the insurer’s conduct could be reflected otherwise and by exclusion of evidence in an order for costs against it. Was the surveillance disproportionate in this case? We do not think so. The authorised period of four weeks was exceeded by one or two days, which is not in the circumstances material. The claimant claimed that the surveillance initially included his wife. Whilst Ms Lynn, as a Senior Podiatrist, had also been absent on extended sick leave for approximately the same period of time, there was nothing in the evidence that suggested that surveillance had been authorised against her. However, if subjecting her to additional surveillance was a breach of human rights, we consider that the person entitled to raise this matter was in fact the claimant’s wife as the object of the surveillance and not the claimant.

COSTS

60. At the conclusion of the evidence in the case Mr McArdle made an application for costs against the claimant for the wasted day of 16 December 2010. The evidence in this case finished on 9 December 2010 and the parties were given seven days within which to prepare their submissions. When the parties attended the hearing on 16 December 2010, it transpired that the claimant had not provided any written submissions. There were subsequent dates given to allow the claimant further opportunities to provide his submissions. Originally, the submissions hearing was listed for 15 December 2010 and it was adjourned at the requirement of the claimant to 16 December 2010. The claimant, however, did not produce any submissions and the hearing on 16 December 2010 was wasted. There were, further opportunities given to the claimant to provide his submissions. The parties' submissions were to be exchanged simultaneously on or before 23 December 2010 with the submissions hearing being adjourned to 6 January 2011, to also allow the claimant the opportunity to bring evidence of his means to the hearing to be considered in connection with the costs application. The hearing on 6 January 2011 was once more a wasted hearing as the claimant did not provide any submissions. At the request of the respondent, the claimant was given a final opportunity to present his submissions by sending them to the tribunal on Monday, 17 January 2011. Once again, he failed to do so. At the hearing of 6 January 2011 the Tribunal made it plain to the claimant that this was a final opportunity for the claimant to present his submissions and no further extensions or adjournments would be given. The Tribunal has no doubt that the claimant has behaved unreasonably at various stages in the conduct of the case not only by his delay in bringing the proceedings at all, but by his attempts to adduce new documents and allegations on a very great number of days in the hearing. The behaviour of the claimant in and around the provision of submissions was also unreasonable in that various hearing days were simply made pointless by his failure to provide submissions (16 December 2010 and 6 January 2011). The amount claimed by the respondent which is a total of £940.00 is not of itself in any way extraordinary. However, we have taken into account the means of the claimant in reaching a decision whether or not to award costs against him. Plainly, the claimant who is in receipt of statutory benefits and having to borrow from his family, does not have the means to meet any award at all. Given that the claimant’s behaviour from 15 December 2010 onwards appeared to be as a result of his mental health difficulties (and there was medical evidence to that effect) the tribunal does not wish to be punitive towards the claimant and is not in the very particular circumstances of this case going to award any costs to the respondent, although it acknowledges that the claimant’s behaviour was unreasonable at various stages throughout his conduct of the hearing and in particular by not providing submissions.

Chairman:

Date and place of hearing: 15-19, 22-26, 29-30 November 2010,
1-3, 6-9, 16 December 2011 and 6 January 2011.

Date decision record ed in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Hearty v South Eastern Health and Socia... [2011] NIFET 00115_09FET (22 June 2011) URL: http://www.bailii.org/nie/cases/NIFET/2011/00115_09FET.html Cite as: [2011] NIFET 115_9FET, [2011] NIFET 00115_09FET

Fair Employment Tribunal Northern Ireland Decisions