Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 29/17FET

2797/17IT

 

 

 

CLAIMANT: Bogdan Szczesny-Bury

 

 

RESPONDENT: Robinson Services Ltd

 

 

DECISION

 

The decision of the Tribunal is that the claimant's claims are dismissed.

 

 

Constitution of Tribunal:

 

 

Employment Judge: Employment Judge Murray

 

Members: Mr R Hanna

Mrs M O'Kane

 

 

Appearances:

 

The claimant represented himself.

 

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Mr M Reid, Solicitor.

 

Interpreter: Ms Andrejkow.

 

 

THE CLAIM

 

1. The claimant's claims were for: unfair dismissal; that he was treated less favourably because he was a part-time worker; that he was discriminated against on grounds of his religion because of his treatment by his supervisor Mr Crumley; and that his dismissal was an act of discrimination on grounds of religion.

 

THE ISSUES

 

2. The issues for the Tribunal were agreed by the parties at a CMD on 23 August 2017 as follows:

"(1) Was the claimant's dismissal due to conduct, namely "aggressive/inappropriate behaviour towards a colleague - in relation to an incident involving a knife?"

 

(2) If so, was this a fair or unfair dismissal in the circumstances?

 

(3) By being dismissed, was the claimant subjected to less favourable treatment due to:-

 

(a)   part-time working; and/or,

 

(b)   religion as a Seventh Day Adventist.

 

(4) Were there any other instances of less favourable treatment due to:-

 

(a)   part-time working?

 

(b)   religion?

 

(5) (a) If so, what do these consist of?

 

(b)   Who was the claimant treated less favourably than?

 

(c)   When did the less favourable treatment take place?

 

(d)           Does the Tribunal have jurisdiction to consider these claims or are they outside the time limit, and if so, should time be extended?

 

(6) Did the respondent take such steps as were reasonably practicable to prevent such discriminatory actions?

 

(7) If the claimant was unfairly dismissed,

 

(a)   Is there contributory fault on the part of the claimant?

 

(b)   What loss has the claimant suffered?

 

(8) If unlawful discrimination occurred what remedy is appropriate in the circumstances?"

 

SOURCES OF EVIDENCE

 

3. The Tribunal considered the written statements and oral evidence from all the witnesses and considered the documentary evidence to which it was referred.

 

4. The Tribunal heard evidence from the claimant on his own behalf. The Tribunal heard evidence from: the claimant's supervisor Mr Crumley; Ms Fry, the investigating officer; Ms Mitchell, the disciplining officer who took the decision to dismiss; Ms Bradley, the appeals officer who confirmed the decision to dismiss; and Ms Sharpe, the HR director.

 

 

THE LAW

 

5. Discrimination on grounds of religious belief and political opinion is rendered unlawful by virtue of the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended ("FETO"). The provisions on direct discrimination and victimisation are set out at Article 3. The burden is on the claimant to prove facts from which the Tribunal could conclude that a detrimental act on prohibited grounds has occurred. The burden then shifts to the respondent to provide an explanation for the acts which is untainted by unlawful discrimination.

 

6. The provisions on harassment are also set out at Article 3A of FETO which states where relevant as follows:

 

"3A.   (1)   A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) 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.

 

(2)  Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect."

 

7. The burden is on the claimant to prove facts from which the Tribunal could conclude that he suffered such unwanted conduct on grounds of religion, which had the required purpose or effect. If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to religion or that it did not have the alleged purpose or effect.

 

8. The burden of proof is dealt with at Article 38A of FETO which provides:-

 

"Where on the hearing of a complaint under Article 38 the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

 

(a)   has committed an act of unlawful discrimination or unlawful harassment against the complainant or

 

(b)   is by virtue of Article 35 or 36 to be treated as having committed an act of discrimination or harassment against the complainant,

 

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or as the case may be treated as having committed that act."

 

9. The Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof. The court stated:

 

"22 The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires 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. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

 

'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 matter 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 in 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 being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

10. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

 

"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

11. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. 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 in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it 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 analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

 

(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real 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 believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage."

 

12. The right not to be unfairly dismissed is enshrined in ERO. At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the Tribunal finds that the employer has dismissed for a potentially fair reason, the Tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4) which states:

"(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 reason 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 in 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".

13. The task for the Tribunal in a misconduct dismissal case is set out as follows in British Home Stores Ltd v Burchell 1980 ICR 303:

 

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question ... entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case".

 

14. The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 endorses the Burchell approach and outlines the task for the Tribunal in a misconduct dismissal case. The test is whether dismissal was within the band of reasonable responses for a reasonable employer. The Tribunal must not substitute its own view for that of the employer but must assess whether the employer's act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances. This assessment applies to both procedure and penalty.

 

15. The case of Connolly v Western Health and Social Care Trust [2017] NICA 61 confirms that the task of the Tribunal is not to substitute its view for the employer's. The Tribunal must decide in a gross misconduct case whether dismissal was an appropriate sanction. The Tribunal must look at whether the actions of the employer with regard to process and penalty were within the band of reasonable responses for a reasonable employer in the circumstances. The Tribunal must then determine whether the dismissal was fair or unfair in accordance with equity and the substantial merits of the case. As part of this assessment the Tribunal must look at whether a lesser sanction was appropriate in the circumstances.

 

16. The law in relation to less favourable treatment on grounds of being a part-time worker is set out in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000.

 

17. Mr Mulqueen in submissions relied on the cases of Rogan and Nelson.

 

FINDINGS OF FACT AND CONCLUSIONS

 

18. The Tribunal found the following facts proved on a balance of probabilities and applied the legal principles to the facts found in order to reach the following conclusions.

 

19. The claimant was employed as a part-time cleaner by the respondent from 2013 until 14 February 2017 when he was summarily dismissed for gross misconduct. The conduct related to an incident which occurred in May 2016 (referred to in this decision as "the knife incident").

 

20. The claimant is a Seventh Day Adventist and it was accepted by the respondent that he cannot therefore work on the Sabbath because his religious beliefs mean that he cannot work from sunset on a Friday until sunset on a Saturday. Depending on the time of year that can mean that he has to stop work in the afternoon on a Friday and cannot resume work until the afternoon of Saturday. The claimant stated that this is why he worked as a cleaner so that he could have flexibility to finish work early on a Friday and not to work on a Saturday if necessary. The respondent accepted this restriction on his ability to work shifts from a Friday to a Saturday and they thus accommodated this aspect of the claimant's religious observance for several years.

 

21. The respondent's business is that it provides cleaners to various locations throughout Northern Ireland. In the claimant's case this meant that he worked shifts at various retail locations including at shopping centres in the Londonderry area.

 

22. The claimant had been given a Written Warning in March 2015 which expired in March 2016 and this related to aggressive behaviour towards a manager, Ms McC, when the claimant worked shifts in the Foyleside Centre. The claimant then received a Final Written Warning in June 2015 and this related to inappropriate behaviour against a supervisor. As a consequence of the Final Written Warning, the claimant moved from the Foyleside Centre to the Richmond Centre in or around April/May 2015 and it was then that he started to work with Mr Crumley who was his supervisor in the Richmond Centre. It was common case that the claimant and Mr Crumley were friends until late July 2016.

 

The Diary Entries

 

23. Having assessed carefully all of the evidence of the witnesses we find that the matter which led to the relationship between the claimant and Mr Crumley changing, related to two diary entries in July 2016. We find that the following occurred.

 

24. On 26 July 2016 Mr Crumley had written in the hand-over diary that the claimant had not finished his shift. It later came to Mr Crumley's attention that another manager had told the claimant to go to another site and, when Mr Crumley became aware of this, he wrote a correction in the diary stating that it had been a misunderstanding.

 

25. Mr Crumley's practice was to put up a note on the noticeboard showing dates on which he needed people to volunteer to cover shifts. His evidence, (which we accept), was that the claimant had put his name down on this note for several shifts, one of which was on 29 July 2016. That day was a Saturday, although that was not indicated on the note as it comprised simply a list of dates on the noticeboard. The claimant did not go to work on that day because it was a Saturday and Mr Crumley wrote in the hand-over diary: "Bogdan missing". As far as Mr Crumley was concerned the claimant had not turned up for the shift that he had undertaken to cover.

 

26. The claimant took exception to the diary entry on 29 July 2016 because he felt that it related to the requirements of his religion. The claimant claimed that this and the other diary entry on 26 July 2016 showed that Mr Crumley was harassing him because of his religion.

 

 

The claimant's grievance

 

27. The claimant raised a grievance dated 18 August 2016 against Mr Crumley which ran to just over one typed page and at the end of it he stated that he could no longer work with Mr Crumley. The claimant in Tribunal characterised this grievance as a complaint by him that his "religious rights had been breached" by Mr Crumley. We do not accept that things were as clear in this regard in the grievance as the claimant seems to have believed.

 

28. The thrust of the claimant's grievance was that Mr Crumley was blaming the claimant over shifts when it was Mr Crumley's lack of organisation that was the problem.

 

29. The reference to religious belief is in the following extract from the grievance:

 

"We let's analysis of the case accusations from the date 29.07/2015 - Friday. Noel wrote in Hand Over Book, I quote:

 

3 Cleaners on 9-11pm Bodgan - missing

 

It works with the supervisor Noel already about one and a half years - so he knows that I do not work on Friday evening, because of my religious principles. When in 2013 he was admitted to Robinson Services Ltd (with Momentumsupport ltd), I forestalled, in which the during the week, I can not work because of religious beliefs. Robinson Service LTd is accepted.

 

So If I do not work in the evening on Friday, that it could not happen that quotes: Bogdan - missing 9-11pm, which on Friday evening.

 

The same could not happen with Bogdan late to work on Friday evening; Bogdan from the slept at work on Friday evening.

 

It's logical.

 

So why Noel dared to accuse me that on Friday evening, I did not come to work?"

 

30. The claimant then stated as follows:

 

"I no longer can work with Noel - because I lost confidence in him. I'm sure that he does not have a brake to falsely accuse, when he is forced to put the blame on me for his mistakes".

 

31. The employer dealt with the grievance by having an investigation meeting with the claimant on 12 September 2016. At that meeting the claimant's complaint was about the diary entries and that Mr Crumley laughed when he did not come into work. He complained that Mr Crumley had previously made a comment in relation to his religion stating that the claimant should change to work on a Friday and the claimant said he took this as a joke at the time. The claimant said that the comment should be withdrawn and he also requested that he should work permanently on his own.

 

32. Ms Fry spoke to Mr Crumley about the claimant's grievance and Mr Crumley readily accepted that he knew about the claimant's pattern of work because of the Sabbath. He stated however that the claimant had offered (on the list of dates on the noticeboard) to work that shift and he said that the claimant was making up complaints that Mr Crumley was laughing at him about his religion. It was then that Mr Crumley raised the fact that he had complained previously about a knife incident involving the claimant. This was the first time that Ms Fry had heard about the knife incident, details of which are given below.

 

33. One of the claimant's complaints in Tribunal was that he was never notified of the outcome of the grievance. We accept the managers' evidence which was that they reminded Mr Crumley about his requirement not to work on the Sabbath and they monitored timesheets to make sure that the claimant was not being given shifts on a Saturday. Ms Mitchell's evidence was that she believed that that was the end of the grievance, in circumstances where the claimant had made it clear that he did not want to make the grievance formal. We accept her evidence on this as it is supported by the contemporaneous documentation and we find that it was reasonable of her to believe this. We find that the fact that the claimant was not notified of a formal outcome in these circumstances did not amount to a detriment.

 

The knife incident

 

34. The knife incident occurred in May 2015. The claimant had spoken to Mr Crumley about his holidays in the kitchen area and Mr Crumley told the claimant that he would have to speak to HR about that as this involved the holidays he would have taken in his previous location in the Foyleside Centre. The claimant then lifted a knife from the kitchen and pointed it towards Mr Crumley stating that he needed to know about his holidays. All of the witnesses including Mr Crumley said that they wondered if the claimant was joking but that they were nevertheless afraid.

 

35. Mr Crumley's evidence was that he had mentioned the knife incident to a manager soon after it had occurred but had heard nothing more about it. That manager had left the company so it could not be verified as to whether or not he had raised it at the time. The managers involved in the period with which we are concerned had never heard of the knife incident and HR had no record of it.

 

36. Mr Crumley raised the knife incident again on 9 September 2016 when Ms Fry spoke to him about the claimant's grievance.

 

37. In the course of a disciplinary hearing on 18/11/16 in relation to an incident (unrelated to the claimant) which ultimately led to Mr Crumley receiving a written warning about inappropriate behaviour, Mr Crumley raised the knife incident again. The context was that Mr Crumley was making the point that he felt he was being disciplined over a minor matter involving his manager when the knife complaint he had made twice about the claimant had not been dealt with at all.

 

38. Part of the claimant's case was that Mr Crumley only raised the knife incident in that meeting on 18 November 2016 because that was the very day Mr Crumley had rung the claimant to ask him to work a shift on Saturday. The claimant's point was that Mr Crumley did this "in revenge" because the claimant refused to work the shift on the Saturday. We reject the claimant's point on this as set out below.

 

 

 

Telephone call 18 November 2016

 

39. The claimant recorded the telephone conversation he had with Mr Crumley on 18 November 2016 and at the parties' request, the Tribunal panel listened to that recording in full prior to the hearing. The claimant characterised this conversation as Mr Crumley continuing to harass him because of his religion and that it was proof that he "broke an agreement" he had made with managers after the grievance, namely that he would not ask the claimant to work shifts on a Saturday.

 

40. We do not accept the claimant's interpretation of the conversation. In the recording, it is clear that it is a friendly conversation where neither side is sure about which day of the week they are in nor the day of the week that the shift they are discussing is on. Mr Crumley offers a shift the next day to the claimant and the claimant ultimately says that he will not do it as it is on a Saturday. Mr Crumley immediately accepts that and there is absolutely no suggestion of Mr Crumley reacting adversely to that. The whole tenor of the conversation is very friendly and there is no suggestion of pressure being put on the claimant to work on Saturday. In the conversation there is absolutely no complaint by the claimant of the fact that he is being offered a shift on a Saturday. It is our assessment that the telephone recording illustrates the friendly nature of the relationship between the two men, and does not support at all the claimant's account that Mr Crumley was harassing him on any grounds never mind on grounds of religion.

 

41. The nature of the business was that cleaners were allocated shifts for different days at different times and in different locations and the rota of shifts and staff was therefore constantly changing. Part of Mr Crumley's job was to ensure that shifts were covered so we can understand why there could be confusion at times. Mr Crumley gave evidence (which was unchallenged by the claimant) that he had particular pressures that day due to the terminal illness of a relative, the absence of workers on sick leave and the fact that he was short of cover.

 

42. We accept Mr Crumley's evidence which was that he simply made a mistake by ringing the claimant to offer him a shift the next day, which happened to be a Saturday. We do not accept that this act of Mr Crumley was detrimental to the claimant, it did not amount to harassment and we do not accept that it was capable of amounting to discrimination on grounds of religion.

 

43. We reject the claimant's point that there was a breach by Mr Crumley of some agreement with managers following the claimant's grievance. The outcome of the grievance was that Mr Crumley confirmed that he knew that the claimant could not work on the Sabbath and shifts were monitored by managers. At no point was the claimant actually required to work on the Sabbath, we do not accept that
Mr Crumley ever put the claimant under pressure to do so, and we do not accept that Mr Crumley reacted badly to the claimant over this.

 

44. In summary we reject the claimant's case that Mr Crumley was engaged in harassing him at all never mind on grounds of his religion. The two points relied upon by the claimant namely the diary entries and the phone call did not support his case that he was harassed on an ongoing basis by Mr Crumley. In particular we reject the case made at Tribunal that Mr Crumley treated the claimant badly from 2015 as the claimant agreed that he had been very friendly with Mr Crumley until July 2016 and the recording supported that account.

 

The Investigation and Disciplinary Process

 

45. Given the nature of the knife incident allegation managers were right to investigate the matter and it is regrettable that this did not happen when it was first raised shortly after it occurred in May 2015. The investigation and disciplinary process ultimately began in November 2016.

 

46. Mr Crumley stated that the incident had been witnessed by three other workers. Ms Fry undertook the investigation by interviewing Mr Crumley and the three witnesses all of whom confirmed that a knife incident had occurred. She then spoke to the claimant who told her that two of the three witnesses had a motive to lie about this. The claimant denied that a knife incident had occurred at all. Ms Fry went back to the witnesses to follow up the points made by the claimant and the outcome of the investigation was that Ms Fry recommended that disciplinary action be taken against the claimant. We find no fault with the investigation by Ms Fry.

 

47. Ms Mitchell then dealt with the disciplinary process. She questioned everyone involved, considered the papers and followed up on points made by the claimant. She outlined her decision-making thought processes in a document dated 10 February 2017 which she kept on file and she decided to dismiss the claimant.

 

48. The outcome letter was sent to the claimant on 10 February 2017 and the finding was that he was guilty of the charge that he displayed aggressive inappropriate behaviour towards a colleague in relation to an incident involving a knife. In the letter it is stated:

 

"Dear Bogdan

 

I am writing with regard to the disciplinary hearing you attended on 30 January 2017 in relation to the following allegation;

 

•         Aggressive/Inappropriate behaviour towards a colleague - In relation to an incident involving a knife

 

After careful consideration of the full investigation and supporting evidence regarding the allegations against you and all mitigating evidence put forward by you, the decision reached is that your employment with the company is terminated with effect from the date I expect you to receive this letter. As this letter has been sent first class I would expect you to receive it no later than Monday 13 February 2017 and therefore your final date of employment with Robinson Services is 13 February 2017."

 

49. This charge was listed under the heading "Gross Misconduct" in the relevant policy. We accept that Ms Mitchell considered lesser sanctions and reasonably concluded that moving the claimant would not be appropriate given the nature of the behaviour and the fact that he had previously been moved because of aggressive behaviour towards managers.

 

50. Ms Mitchell was faced with the claimant who denied completely that a knife incident had occurred as against Mr Crumley and the three witnesses who stated that it did happen. A key point in assessing who to believe was the fact that the third witness was not impugned by the claimant in that he gave no reason for her to lie. That witness was clear that the incident occurred as set out in paragraph 34 above.

 

51. Ms Mitchell was entitled to conclude that the incident had taken place and she was entitled to regard it as a serious matter of itself. We are therefore satisfied that she believed that the claimant was guilty of misconduct and had reasonable grounds on which to base that belief. There was a reasonable investigation in the circumstances and the claimant was given a reasonable chance to put his side of the case.

 

52. In deciding on the penalty Ms Mitchell was also entitled to take account of the fact that the claimant did not have a clear record even though the previous warnings had expired. The relevance of the existence of those expired warnings was in relation to her assessment about whether or not he might behave like this in the future. In our judgment she reached a reasonable conclusion in deciding to dismiss rather than imposing a lesser sanction especially as the claimant had denied that the incident occurred at all. We therefore find that the dismissal decision by Ms Mitchell was not unfair.

 

53. The claimant appealed and Ms Bradley dealt with the appeal. We find no fault with the appeal. The claimant's criticism of the appeal was that he did not have certain documents. We reject that case and accept Ms Bradley's evidence that she sent him the relevant documents. The claimant also alleged that he did not have a chance to "verify" the documents. In Tribunal the claimant clarified that by this he meant that he did not go through each of the witness statements with Ms Bradley to compare them to see if there were any discrepancies. We reject the claimant's point that this was somehow a flaw in the procedure. Ms Bradley confirmed the decision to dismiss and we find no flaw in the appeal process nor in her decision.

 

54. The claimant alleged that his dismissal was an act of discrimination on grounds of his religion. We reject that claim. There was nothing to suggest that the decision to dismiss was anything other than based on information gathered in the investigation and the disciplinary process.

 

Part-time worker claim

 

55. We reject any claim that any alleged adverse treatment was suffered by the claimant on grounds that he was a part-time worker. There was no evidence before us of any less favourable treatment of the claimant on these grounds and there was no evidence of any animus by the respondent towards such workers.

 

Case management

 

56. The claimant's claim in his claim form and the focus of his case of discrimination was firstly on Mr Crumley and his alleged behaviour at laughing at the claimant about his religion and requiring him to work on Saturdays. The second aspect of the religious discrimination claim was that the dismissal was an act of discrimination. The claimant had confirmed when he was cross-examined that that was the scope of his claim and that that was what he had stated in the claim form to the Tribunal. The Employment Judge therefore made it clear to the claimant from an early stage in the hearing that the Tribunal would therefore not go into the details of the events which led to the Written Warning in March 2015 nor to the Final Written Warning in March 2016 as the claimant accepted that he had received them, he did not appeal them and they occurred in another shopping centre with different managers. The written warning had also been appealed externally to the LRA and had been upheld.

 

57. The claimant made mention of the warnings in the internal processes and in the Tribunal in the context of making the point that he would not be aggressive again because he had that history and that managers therefore should have believed him that the knife incident had not taken place at all. The claimant was however stopped in Tribunal from attempting belatedly to change the focus of the case and/or adding to the factual or legal allegations by claiming that these were acts of discrimination against him in 2015 by other managers or by the LRA.

 

58. In the course of questioning the last witness on the fourth day of hearing the claimant wanted to question her about alleged events in 2015 involving other staff employed by the respondent at another location. The Employment Judge stopped the claimant from pursuing that line of questioning as it was not relevant to the case. When the claimant stated to the Tribunal on the last day of hearing that he wished to allege discrimination against the LRA too he was told that it was too late to do so.

 

Summary

 

59. It is for the claimant to prove facts from which we could conclude that an act of harassment and/or discrimination on the grounds of his religion occurred. In the light of our factual findings we find that he had not proved such facts and his claims of discrimination on grounds of religion are therefore dismissed.

 

60. As set out above we find that the dismissal was on grounds of misconduct and that dismissal was not unfair. The claimant's claims are therefore dismissed in their entirety.

 

61. We reject the claim of part-time worker discrimination.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 18 December 2017 and 12-16 February 2018, Belfast.

 

 

Date decision record ed in register and issued to parties: