Allen v Charles Hurst Limited [2010] NIIT 1449

THE INDUSTRIAL TRIBUNALS

CASE REF: 1449/08

5487/09

CLAIMANT: Ronnie Allen

RESPONDENTS: 1. Charles Hurst Limited

2. Dylan Bell

3. Andrew Gilmore

DECISION

By a majority the tribunal held that the claimant was not discriminated against on the ground of his age and neither was he constructively dismissed.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr R J Hanna

Mr J Hall

Appearances:

The claimant was represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by the Equality Commission.

The respondent was represented by Mr Peter Bloch of Engineering Employers Federation.

Sources of Evidence

1. The claimant gave evidence on his own behalf. Additionally, Dr Philip McGarry FRC Psych Consultant Psychiatrist and Ms Wendy McGrath of Harbinson Mulholland Forensic Accountants also gave evidence on behalf of the claimant.

2. The following persons gave evidence on behalf of the respondents:- Dylan Bell, Andrew Gilmore, Rosemary Chapman, Colin McNab, Gordon Haining, John Brankin, and Richard Stinson.

The Claimant the Defence

3. The claimant claimed that he had been constructively dismissed by the first respondent and also claimed that he had been discriminated against on account of his age.

4. The respondent denied that the claimant had been constructively dismissed;

that the claimant had been discriminated against on the grounds of his age or that he had been harassed on the grounds of his age.

5. As in her summing up to the tribunal Ms Bradley indicated that for the purposes of quantification of the claim she was going to adopt the calculation that was based on the senior service advisor remuneration, the tribunal finds that accordingly there was no unauthorised deduction of the claimant’s wages and this claim is dismissed.

The relevant Law

6. The relevant law is as follows:-

Employment Equality (Age) (Regulations) (Northern Ireland) (2006)

Discrimination on grounds of age

3.-(1) for the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if:-

(a) on the grounds of B’s age, A treats B less favourably than he treats or will treat other persons; or

(2) a comparison of B’s case with that of another person under Paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

(3) in this Regulation:-

(a) “Age group”

Means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and

(b) The reference in Paragraph (1)(a) to B’s age, includes B’s apparent age.

Discrimination by way of Victimisation

4.-(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if he treats B less favourably than he treats or would treat other persons in the same circumstances, and also by reason that B has:-

(a) brought proceedings against A or any other person under these Regulations;

(b) given evidence against A or any other person under these Regulations;

(d) alleged that A or any other person has committed an act which (whether or not the allegations so states) would amount to a contravention of these Regulations, or by reason that A knows B intends to do any of these things, or suspects that B has done or intends to do any of them.

(2) Paragraph (1) does not apply to treatment of B by reason of any allegation made by him, or evidence or information given by him, if the allegation, evidence or information was false and not made (or, as the case may be, given) in good faith.

Harassment on Grounds of Age

6.-(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of age, 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 effects specified in Paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.

Discrimination in Employment and Vocational Training

Applicants and Employees

(2) It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person:-

(a) In terms of employment which he affords him;

(b) any opportunities which he affords him for promotion, a transfer, training, or receiving any other benefit;

(d) by dismissing him, or subjecting him to any other detriment.

The law relating to constructive dismissal is found in Article 126 of the Employment Rights
(NI) Order 1996.

Analysis of Evidence

7. In general, where there was a dispute as to the facts or the dates upon which events occurred, for the most part the majority of the tribunal preferred the evidence given by and on behalf of the respondents. Any occasion upon which the claimant’s evidence was preferred will be specifically noted hereafter in the body of the decision. The reason why the majority of the tribunal considered the version of events given by and on behalf of the respondents to be preferable was that in general the respondent witnesses were clear in giving their evidence and there was internal cohesion between the various accounts. The claimant was sometimes evasive, at other times confused.

The claimant’s main criticism of the respondents’ version of events was that the respondents had wrongly dated a meeting in the Lidl car park in Newtownards. The claimant contended that this meeting took place on Friday, 18 April 2008 while the respondents contended that it took place on Thursday, 17 April 2008. In this specific example, the tribunal accepts the chronology put forward by the respondent. The respondents have nothing to gain by falsifying the date. The tribunal was supported in reaching this view by the fact that it was not denied that the meeting took place.

The facts found

8. (1) The first respondent is a company which sells motor cars. The second respondent was the first respondent’s Service Manager at its branch in Newtownards. The third respondent was the company’s Franchise Service Manager. The claimant was Service Manager at the company’s branch in Bangor. The claimant had in excess of 40 years of service with the first respondent.

(2) On Tuesday, 15 April 2008 Colin McNab, the Franchise Director of the company announced to the employees at the Renault Bangor branch a proposal to close this branch. This announcement was made in the presence of Rosemary Chapman, the Human Resources Advisor of the company. The employees were told that the first redundancy consultation meetings would take place on Friday, 18 April 2008. During a telephone call from Andrew Gilmore, the Franchise Service Manager to the claimant that morning, the claimant became upset and asked if he could bring his redundancy consultation meeting forward. This meeting took place later that afternoon at the administration building of the company in Boucher Road in Belfast. Rosemary Chapman and Andrew Gilmore met with the claimant who at this stage in the sequence of events declined to be accompanied, and they discussed other possible work opportunities for the claimant and in particular a potential Senior Service Advisor job role at the Renault dealership in Newtownards, details of which were not yet available.

(3) On Wednesday, 16 April 2008 employees at the company’s branch in Renault Bangor were issued with a letter confirming the proposal to close the dealership at the end of May 2008. The claimant asked Rosemary Chapman if he could keep his BUPA membership and this was agreed. The claimant sent Colin McNab an e-mail stating that while he wished Renault Bangor was staying open, he realised telling everyone must have been difficult and thanked Colin McNab for all his help and advice.

(4) The first respondent and the third respondent went to considerable lengths to secure a job opportunity for the claimant. To leave the position of Senior Sales Advisor open for the claimant in Newtownards, the respondent had to ask Mr Darren O’Kane, who held this position in the Newtownards branch whether he would be prepared to move to Belfast to leave his position open for the claimant who lived in Conlig. Mr O’Kane agreed to do this. Mr Darren O’Kane was a member of staff who was highly valued by the Service Manager in Newtownards at that time - Dylan Bell. In fact, Dylan Bell did not wish to lose the services of Mr Darren O’Kane whom he regarded as his “right-hand man”. Dylan Bell informed Andrew Gilmore of his concerns.

(5) On Thursday, 17 April 2008 Andrew Gilmore arranged a meeting with Dylan Bell and the claimant to discuss any concerns or issues relating to the Senior Service Advisor job role and this meeting took place in Lidl’s car park in Newtownards at the claimant’s request. It was at this meeting that Dylan Bell told Ronnie Allen “I would not be happy with you in my Department”. Dylan Bell went on to say “you would just put the day in at Ards and would have no intention of carrying out your duties as Senior Services Advisor”. Dylan Bell’s version of events was that he told the claimant that he was concerned that if he came to Renault Newtownards he may not pull his weight, that he wouldn’t want to do the menial work and that he would just put his day in until he got a better job offer. Andrew Gilmore’s version of events was that Dylan Bell said with Ronnie Allen having been a Service Manager for such a long time he thought he might find it difficult to go from running the business to being at the front desk taking instructions. Andrew Gilmore contended that Dylan Bell continued to say that he was concerned that Ronnie Allen “may not do his fair share of the work as he was used to delegating, rather than having work delegated to him”.

(6) On Friday, 18 April 2008 Andrew Gilmore conducted redundancy consultation meetings with employees at Renault Bangor, with Rosemary Chapman in attendance. While he was at that branch he spoke to the claimant who advised that although he had received offers from outside the company he wished to remain with the first respondent and transfer to the Senior Sales Advisor position as discussed.

(7) On Wednesday, 30 April 2008 Rosemary Chapman called at the Renault Bangor dealership. Ronnie Allen asked if his Service Manager salary could be continued to the end of the tax year. This request was denied. The claimant asked if there would be compensation for him as he was taking a lower paid job. Rosemary Chapman said that the first respondent would come back to him on this request.

(8) Over the next few days, the claimant made further requests to Rosemary Chapman about improving his terms and conditions. Specifically he wanted his trial period extended to six months and wished to know whether Colin McNab would involve Ken Surgenor, the Chief Executive of the first respondent’s parent company in discussions about the claimant’s future and written confirmation of details of salary, bonuses, company car and fuel allowance. On 7 May 2008 Rosemary Chapman told the claimant that his trial period could be extended to eight weeks. The claimant asked for details of his redundancy payment and if it could be topped up or if he could have compensation for transferring to the Senior Service Advisor job. Once again Rosemary Chapman agreed that the first respondent would come back to him on this request. On Thursday, 8 May 2008 Rosemary Chapman e-mailed redundancy figures to the claimant.

(9) On an unspecified date but presumed to be on Thursday, 8 May 2008 the claimant’s wife spoke to Colin McNab to request the first respondent to make the claimant redundant and to give him the Senior Service Advisor job in Renault Newtownards. Colin McNab indicated that it would be one option or the other. He pointed out that if the claimant was declared redundant he would have to be considered along with other applicants with an externally advertised vacancy. The claimant’s wife tried to persuade him from this position but Colin McNab reiterated that the claimant could not be redundant and have the Senior Service Advisor position as well.

(10) On Friday, 9 May, at the claimant’s request Rosemary Chapman faxed a letter to Carol Allen confirming details of the Senior Service Advisor job role and that a trial period would be extended to eight weeks. On Monday, 12 May 2008 the claimant went on Annual Leave for one week. On 9 May 2008 the claimant accepted the Senior Service Advisor post.

(11) On Monday, 19 May 2008, a secretary in the first respondent received a telephone call from the claimant’s wife stating that he would not be attending work. A sick line citing work related stress for two weeks was subsequently received.

(12) On Monday, 26 May 2008 Andrew Gilmore wrote to the claimant inviting him to a meeting on 28 May 2008 to discuss the issues at work which were causing him anxiety. The claimant did not attend the meeting.

(13) On Thursday, 29 May 2008 Rosemary Chapman telephoned the claimant at 10.10 am following his non-attendance at the meeting scheduled for 28 May 2008. The claimant said that he had not received the letter in time to attend the meeting. Rosemary Chapman explained the purpose of the meeting. The claimant said his issues were that Renault Bangor was closing down, he was offered a job at Newtownards on less money and it was causing him stress and worry. He also explained that he was on medication and had difficulty thinking straight. Rosemary Chapman again said that the claimant would have a trial period of eight weeks. Once more the claimant stated his concerns over money and wanted to know if Ken Surgenor, the Chief Executive, would top up his redundancy payment. Rosemary Chapman tried to reschedule the meeting but the claimant said he did not feel he could speak to anybody and was attending his own Doctor.

(14) On Saturday, 31 May 2008 Andrew Gilmore informed the claimant was told the redundancy payment would not be enhanced and informed that the first respondent wanted him to be seen by their company Doctor. He was told he would receive sick pay at the rate of the job accepted in Renault Newtownards. On Thursday, 5 June 2008 Rosemary Chapman wrote to the claimant with details of the medical appointment that was scheduled for 17 June 2008.

(15) On Tuesday, 10 June 2008 the claimant sent in a grievance letter dated 9 June 2008. His grievance concerned his position, his terms and conditions, and salary. He reminded the first respondent of his hearing difficulties. The tribunal has noted that no mention was made of the allegedly ageist comments by Dylan Bell in the Lidl car park on 17 April 2008. Rosemary Chapman invited the claimant to the meeting on 18 June 2008 to discuss his grievance by a letter dated Wednesday, 6 June 2008. She enquired as to what assistance he needed in relation to his hearing difficulties.

(16) On Tuesday, 17 June 2008 the claimant wrote to the first respondent saying that he would be unable to attend the grievance meeting due to illness and asked if it could be rescheduled for 27 June 2008 with his wife accompanying him at the meeting. The claimant attended a medical with Doctor D Courtney an Occupational Health Consultant. On Thursday, 19 June 2008 the claimant telephoned the first respondent and spoke to Colleen Moore of the Human Resources Department. He requested the services of an electronic note taker from RNID for the meeting. Rosemary Chapman replied to the claimant on Thursday, 26 June 2008 requiring clarification of whether the electronic note taker would attend as well or in place of his wife, asking him to specify the nature of the assistance required and confirming that his right to be accompanied by his wife would only be allowed if it was for a medical reason. The claimant responded to this letter on Wednesday 2 July 2008 confirming that the electronic note taker would attend in place of his wife and requested that Rosemary Chapman give a week’s notice for rescheduling the meeting. On Monday, 7 July 2008 Rosemary Chapman wrote to the claimant asking for alternative dates to arrange the meeting. She confirmed that the purpose of the meeting would be:-

1. to consider his grievance; and

2. to review the medical report received following his consultation with the company Doctor on 17 June 2008.

On 10 July 2008 the claimant’s wife agreed the date of Monday, 28 July 2008 with Rosemary Chapman. On Monday, 28 July 2008 the claimant attended the meeting with Colin McNab for the purposes already discussed. The tribunal has noted that this was the first time that the claimant informed the first respondent of the allegedly ageist comments made by Dylan Bell at the meeting in Lidl car park on 15 April 2008. The tribunal has also noted that the claimant changed his concern concerning the branch closure. He now said at this meeting that it was not the fact of the branch closure that had caused him anxiety. The claimant refused to explain his contention that the comments were ageist to Colin McNab.

(17) By Wednesday, 6 August 2008 no decision had been made regarding the claimant’s grievance. The claimant’s wife was informed of that when she telephoned Colleen Moore of the first respondent.

(18) On Friday, 8 August 2008 Colin McNab wrote two letters to the claimant in which he advised that he found no merit in his grievance and summarised the contents of their meeting at which the medical report was discussed. His letter stated that a copy of the report was enclosed but that this was not the case.

It appeared that his medical report had been forwarded in error to another employee. A great deal of this error was made by the claimant’s wife. Initially she refused to return it contending it was evidence if matters should proceed to a tribunal. When she finally agreed to return it in the accompanying letter she requested a written explanation as to how the error occurred. On Friday, 15 August 2008 Rosemary Chapman checked the other employee to see whether he had received his own report and he confirmed that he had. Rosemary Chapman explained what had happened and apologised and the other employee accepted that apology. As requested Rosemary Chapman gave the claimant an explanation of the error and confirmed that the other employee did not in fact receive the claimant’s medical report, apologising for distress this may have caused.

(19) On Monday, 18 August 2008 Colin McNab received a letter dated 13 August 2008 from the claimant appealing the decision not to uphold his grievance. At the same time by a letter dated 14 August 2008 from the claimant, he was required to give information regarding the change of management at Renault Newtownards. Colin Cunningham, the Service Manager at Renault Lisburn, and Dylan Bell, the Service Manager at Renault Newtownards have swopped dealership positions. On Monday, 25 August 2008 Rosemary Chapman acknowledged the grievance appeal letter from the claimant and confirmed that arrangements were being made to hear his grievance at the next stage. On Tuesday, 26 August 2008 Colin McNab confirmed to the claimant that there was no vacancy at Renault Newtownards and that Dylan Bell and Colin Cunningham had simply swopped dealerships. By letter dated 1 September 2008 Rosemary Chapman informed the claimant in writing of the arrangements for his grievance to be heard on 12 September. The claimant’s wife telephoned Human Resources and informed Colleen Moore of that Department that the claimant and herself would be on holiday on 12 August 2008. The claimant’s wife went on to e-mail Rosemary Chapman asking for the meeting to be held before they went on holiday. Rosemary Chapman said that this was not possible. It was agreed that the meeting would be rescheduled for Wednesday, 24 September 2008.

(20) In and around this time Rosemary Chapman received an age discrimination questionnaire from the claimant. The claimant also wrote to Colin McNab refusing to accept the explanation given by him to the claimant’s letter of 14 August 2008 and requiring information relating to the closure of Renault Lisburn and Renault Bangor and about the procedure for redeployment.

(21) On Thursday, 4 September, Rosemary Chapman informed the claimant that the grievance meeting had been rescheduled for 24 September 2008. The claimant also wrote to Colin McNab requiring further information about the dealership “swap”. On Friday, 5 September 2008, Dylan Bell received the age discrimination questionnaire from the claimant.

(22) On Friday, 19 September 2008, Rosemary Chapman received an emotional telephone call from the claimant’s wife, the eventual outcome of which was that she agreed to the claimant’s wife accompanying him at the grievance meeting which subsequently took place on Wednesday, 24 September 2008 in the presence of Gordon Haining with Rosemary Chapman as note taker.

(23) On Thursday, 2 October 2008 Rosemary Chapman acknowledged receipt of the claimant’s age discrimination questionnaire. On Friday, 3 October 2008 Colin McNab responded to the claimant’s letter of 2 September 2008. On Monday, 6 October 2008 Andrew Gilmore wrote to the claimant following receipt of an invoice from Armstrong and Beattie for repairs to the claimant’s company vehicle.

This letter told the claimant that the work was carried out in-house and that he was not authorised to take his vehicle elsewhere. The claimant was asked to liaise with Colin Cunningham if his vehicle required any further work.

On Friday, 10 October 2008 Andrew Gilmore received a letter dated 8 October 2008 from the claimant whose tone was out of all proportion to the fairly low key issue that Andrew Gilmore had raised with the claimant. The letter was rude and aggressive. On the same date Colin McNab received a letter from the claimant dated 8 October 2008 asking further questions about the closure of Renault Lisburn and redeployment opportunities and particularly asking why the first respondent did not explore an alternative opportunity for him. On Monday, 13 October 2008 Dylan Bell responded to the claimant’s age discrimination questionnaire.

On Thursday, 16 October 2008 Andrew Gilmore responded to the claimant’s letter of 8 October 2008 defending the company’s letter as perfectly standard business practice with nothing untoward in its content. He contended that the claimant’s response was objectionable and if the claimant continued to correspond so offensively it could lead to disciplinary action being taken against him. On the same day Colin McNab responded to the claimant’s latest letter saying that decisions taken regarding the continued operation of the dealership were confidential and confirming that the company did explore the possibility of alternative employment for him in that he was offered and accepted the Senior Service Advisor role. The claimant’s wife contacted Andrew Gilmore by telephone on Friday, 17 October 2008 informing him that the claimant was suicidal after receiving his letter. Andrew Gilmore restated his position and the claimant’s wife indicated she would check future correspondence. However, she further wrote to Andrew Gilmore explaining why the vehicle was taken to Armstrong and Beattie, contending that Andrew Gilmore had accused the claimant wrongly and requiring an apology from him. She also copied the correspondence about this issue to Gordon Haining offering to pay for repairs and restating that she would appreciate Andrew Gilmore apologising.

(24) At this stage in the sequence of events a query arose over holiday pay while the claimant was sick. Eventually an ex gratia payment was made. Andrew Gilmore responded to the letter from the claimant’s wife dated 17 October 2008, on Friday, 24 October 2008 reiterating his previous contentions and closing the correspondence.

(25) Gordon Haining wrote to the claimant advising him that his grievance was not upheld on Monday, 3 November 2008. On the same day Andrew Gilmore advised the claimant in writing that the company wanted a follow-up medical appointment and gave details of the appointment. Rosemary Chapman provided the claimant with notes of the grievance meeting of 24 September 2008 on Wednesday, 5 November 2008. On that date the first respondent also received the claimant’s claim to the Industrial Tribunal.

By a letter dated 10 November 2008 received by Rosemary Chapman on 11 November 2008 the claimant appealed Gordon Haining’s decision. He further stated that he had not received a full reply to his letter of 8 October 2008 to Colin McNab nor had he received a reply to the letter to Gordon Haining sent by his wife. On the same day the claimant’s wife required discovery by e-mail of all documents relating to the claimant’s complaint upon which the first respondent might rely on at a Tribunal. Rosemary Chapman advised that this should be addressed to the respondents’ legal representatives. On Wednesday, 12 November 2008 the claimant attended a medical with Doctor D Courtney.

(26) Rosemary Chapman wrote to the claimant on 18 November 2008 confirming that:-

a. arrangements were being made for his grievance to be heard at the next stage.

b. the company believed Colin McNab’s letter fully addressed the claimant’s questions.

c. It was not customary for the company to correspond with an employee’s spouse; and

d. that Gordon Haining would not enter into any correspondence with the claimant’s wife.

By letter dated 17 November 2008 the claimant requested confirmation as to whom future correspondence should be sent and on 26 November 2008 Rosemary Chapman told the claimant that his request should be directed to EEF.

(27) Rosemary Chapman communicated the arrangements for the grievance appeal to be heard by John Brankin on 10 December 2008 by a letter dated 2 December 2008. By an e-mail received on 9 December 2008 the claimant contended that according to the Employee Handbook the appeal to Gordon Haining was final. The claimant queried what part of the grievance procedure a further appeal came under. Rosemary Chapman clarified this point and asked the claimant to confirm whether or not he would attend the Stage Three meeting. The claimant confirmed that he would and the Stage Three grievance meeting was conducted by John Brankin, attended by Rosemary Chapman.

(28) On Tuesday, 6 January 2009 Colin McNab wrote to the claimant proposing a meeting on 15 January 2009 to review Doctor Courtney’s medical report and to discuss the possibility of his return to work. There followed various e-mails which culminated in the claimant confirming by
e-mail on Wednesday, 14 January 2009 that he would attend the meeting but that the time did not suit. The time and date of the meeting were organised for 22 January 2009 and on Tuesday, 20 January 2009 John Brankin wrote to the claimant advising that he declined his grievance. It was notable that at the meeting on 10 December 2008, the claimant simply read out a statement and his behaviour was such that Mr Brankin did not consider that he could ask him questions.

(29) By an e-mail on 9 January 2009 the claimant once more corresponded aggressively making various accusations against the personnel of the company. By an e-mail sent on 13 January 2009 Colin McNab confirmed that the claimant’s wife could accompany him to the meeting and fixed the date for 15 January at 4.00 pm, the claimant was also advised that if he failed to attend the meeting the company might have to consider his continued employment with it. After some correspondence the date of the meeting with Colin McNab was eventually fixed for 22 January at 3.00 pm. This was a general discussion and certain options were discussed. The claimant said he would consider any proposals the company might wish to make to him. It was agreed that Colin McNab would come back to the claimant. The claimant required further details of the options discussed at the meeting by an e-mail to Rosemary Chapman sent on 28 January 2009. On 2 February 2009 Rosemary Chapman explained to the claimant by e-mail that Colin McNab was on annual leave and his correspondence would be given to him on his return to work.

(30) By letter dated 24 February 2009 the claimant raised a further grievance. He said that management had not properly investigated his grievance relating to the remarks made by Dylan Bell. He also contended that management had not come back to him on foot of his e-mails 28 January and that management had failed to consider him for alternative posts. By letter dated 4 March 2009 Rosemary Chapman indicated that point two of his grievance letter would be considered by Richard Stinson. The claimant did not attend this meeting and Richard Stinson dismissed his grievance.

(31) The claimant resigned from his employment on 24 February 2009.

Conclusions

9. a. The claim for constructive dismissal

It is settled law that to make a finding of constructive dismissal the following elements must be present:-

1. there must be a breach;

2. it must be fundamental, i.e., it goes to the root of the contract;

3. the claimant must leave in response to the breach;

4. he must not delay.

(1) Was it a breach of his contract of employment for the company to find for him, in a redundancy situation, a job that was one step below his existing job?

In the initial grievance letter dated 9 June 2008, the claimant raised a grievance about his position, terms and conditions and salary. It is worthwhile remembering how this situation arose. The company was closing a branch of its operation. The claimant faced redundancy. A job was effectively created for him that was as close as possible to his position. Certainly, the claimant initially accepted it.

We emphatically consider that the first respondent and in particular Andrew Gilmore went to huge lengths to try to accommodate the claimant bearing in mind his length of service with the company. We do not consider that the first respondent could have done more for the claimant other than to keep the Bangor branch open which was of course impossible, bearing in mind that there were other people being made redundant who were not receiving the level of consideration extended to the claimant. Redundancy happens and in seeking to find suitable alternative employment for the claimant the first respondent and Andrew Gilmore operated within the framework of good redundancy procedure and not a fundamental breach of contract.

(2) The allegedly ageist comments

The claimant is entitled not to be harassed. The question of whether or not was he harassed in law will be discussed later on in this decision but at this point the majority of the tribunal notes that if this was a breach let alone a fundamental breach of the contract of employment then it was some weeks before the claimant even mentioned it to the first respondent. The claimant met with Dylan Bell and Andrew Gilmore in the Lidl car park (at the claimant’s request) on 15 April 2008. It was not until the grievance hearing of 28 July 2008 that this issue was even mentioned. We consider that if this really was a fundamental breach of the claimant’s contract of employment, then it is more likely than not that he would at least have mentioned it at the start of his correspondence on 9 June 2008. We do not consider that the claimant regarded it as a fundamental breach. Furthermore we are supported in reaching this conclusion by the claimant’s inability to fully articulate why he felt the remarks were ageist under cross-examination.

(3) Failure to Investigate

Failure to investigate the grievances.

On the evidence, we are satisfied that the grievances were fully investigated. Whilst formal reports may not have been made for the claimant to peruse, and there may have been some delays in the timescale for deciding the grievances, we accept the evidence of the respondent witnesses that there was an investigation. Dylan Bell and Andrew Gilmore the main protagonists did provide accounts of the events in writing. Furthermore, when Colin McNab tried to probe the claimant’s contention, the claimant became defensive and said that the company should take legal advice, batting the question back rather than straight forwardly answering questions.

We find that the claimant had the full benefit of the company’s grievance procedure which is more demanding than the statutory grievance procedure. The claimant was given every consideration. If he did not feel able to attend the meetings due to his health then they were rescheduled. Although it was not the company policy, he was allowed to bring his wife. On one occasion they arranged for an RNID electronic note taker to come to a meeting. We find that the company from the evidence, was trying to find out what the grievance was about and was keen to try to resolve it.

In conclusion we do not consider that any of the actions of the company taken singly or together would constitute a fundamental breach of the claimant’s contract of employment and as such his claim for constructive dismissal is dismissed. Having so found, the issues of whether the claimant left in response to the breach and whether he delayed in leaving do not arise.

b. The Victimisation Claim

(1) The tyre incident

The majority tribunal considers that the claimant was making a great deal of very little. The company is entitled to make rules about how its vehicles are used and maintained. The claimant acted in breach of those rules and was politely reminded of the proper procedure to follow in future. The claimant’s response was rude and aggressive and we consider that this was needless. We are not aware of any principle of employment law or any other law which requires employees to unprotestingly accept such behaviour when the claimant’s error was gently pointed out to the claimant in the first place.

(2) Grievances dismissively treated

We do not accept, as argued, that the claimant’s grievances were dismissively treated. There were delays in the process and formal investigation reports were not prepared, but we do not consider that this is sufficient to categorise the way in which the company operated its procedure as being dismissive. The claimant met with Mr McNab, Mr Haining and Mr Brankin. The claimant was defensive when his contention that he had been the subject of age discrimination was probed. He said to Mr McNab that he should get legal advice about this. He was unable to explain why he felt that the comments were ageist. However the important point to note is that the company tried to enquire into his grievances and they devoted a considerable amount of time to giving him a platform upon which to air his grievances. If he was ill the dates were rescheduled. If he needed a note taker that was provided. If he needed his wife for moral support that was permitted. These are not the hallmarks of dismissive behaviour. The time given in the hearing alone in Mr McNab’s part of the procedure was 55 minutes. The meeting with Mr Haining lasted over an hour. We dismiss the claimant’s claim for victimisation as we consider that the evidence simply does not support his contentions. There was no evidence to show that the actions of the persons involved in these incidents were in any way linked to the claimant having brought a claim.

The claimant’s claim under this heading was that he had not been afforded an opportunity for promotion, a transfer, training or receiving any other benefit. This arose because of the swop of Service Managers between the two Renault dealerships, one in Lisburn and one in Newtownards.

When the claimant found out about this he contended that this was an opportunity for promotion or transfer that he should have been afforded as part of the redundancy procedure. On the evidence, the Tribunal is satisfied that this was a straight swop between two dealerships and persons in the same position. We accept that it was not a vacancy for which the claimant could have been considered. Furthermore this swop took place after the claimant had been accommodated with his Senior Sales Advisor job and he accepted the post.

(d) Discrimination on Grounds of Age

This claim arose because subsequent to the dealership swop described in the forgoing paragraph Dylan Bell became potentially redundant upon the prospective closure of the Lisburn dealership. Dylan Bell was considering a move to the Kia dealership as Senior Sales Advisor when Andrew Gilmore asked him to take up the post of Senior Sales Advisor in the first respondent’s Newtownabbey dealership. To help him make up his mind, Dylan Bell was allowed to call himself Assistant Service Manager and was given a fuel allowance bearing in mind that he had to travel from Lisburn to Newtownabbey. The claimant’s claim arose under this heading because he contended that this was another vacancy for which he should have been considered. The respondent’s view on this was that these were exactly the same positions and that Dylan Bell had been allowed as a concession to call himself Assistant Service Manager although he was really a Senior Sales Advisor which was exactly the same rank as the claimant. There was never any suggestion that the claimant’s feelings of hurt would have been assuaged by a similar title. The tribunal noted that Dylan Bell transferred to Newtownabbey in or around 1 September 2008 which was a period of three months after the claimant had accepted the Senior Service Advisor position in Newtownards at which stage surely the first respondent is entitled to treat the claimant’s situation as settled?

Was the claimant less favourably treated than Dylan Bell on the grounds of his age? And were the circumstances the same or not materially different?

On the evidence we find that the claimant was treated no less favourably than Dylan Bell. Both were essentially provided with the same position and both received a benefit. In the claimant’s case it was his continuation of BUPA membership. In Dylan Bell’s case it was a fuel allowance. In considering the circumstances of both of these persons while the fuel allowance may have had a higher monetary value the tribunal has noted that the claimant was travelling from Conlig to Newtownards and Dylan Bell was travelling from Lisburn to Newtownabbey which is a longer journey and a material difference in circumstances. The tribunal has also noted in the claimant’s redundancy consultation meeting notes that while he said he was flexible regarding location he preferred not to go to Newtownabbey. Given this preference, it is hard to see how the respondent could be accused of treating the claimant less favourably. There was nothing in the evidence to suggest that moving Dylan Bell to Newtownabbey was for anything other than commercial need. The question of age did not enter into the evidence at all.

(e) Harassment on Grounds of Age

This claim arose as a result of the remarks made by Dylan Bell to the claimant in the presence of Andrew Gilmore in the Lidl car park in Newtownards. The claimant contended that they violated his dignity and created a humiliating environment for him. This was why when he was on holiday and considering the matter, he considered that he was not able to return to work in the Dylan Bell team at Newtownards.

Regulation 6(2) makes it clear that conduct shall only be regarded as having the effect specified in paragraphs a and b if having regard to all the circumstances including the perception of b it should reasonably be considered as having that effect. Looking at the matter objectively, the majority considered that these were innocent comments not related to age but which were arising from Dylan Bell’s concern that commercially Ronnie Allen, the claimant, would not be as much of a benefit to him as Darren O’Kane had been. The Tribunal was not provided with detailed medical evidence which showed precisely what element of the claimant’s condition could be attributed to the respondent’s alleged conduct and what element was there already and whether an “underlying psychological vulnerability” rendered him more likely to take offence, but did note that the claimant was never clear on why he thought the conduct was ageist. This inability or unwillingness persisted through his cross-examination by Mr Bloch.

The Burden of Proof

10. Article 42 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 states as follows:-

(1) This Regulation applies to any complaint presented under Regulation 41 to an Industrial Tribunal.

(2) Where, on the hearing on the complaint, the complainant proves facts from which the Tribunal could, apart from this Regulation, conclude in the absence of an adequate explanation that the respondent:-

(a) has committed against the complainant an act to which Regulation 41 (jurisdiction of Industrial Tribunals) applies; or

(b) is by virtue of Regulation 26 (liability of employers and principles) or Regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act, the Tribunal shall not pull the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act.

The tribunal considered that the following primary facts have been proven by the claimant:-

(i) That the claimant was confronted with comments by Dylan Bell, his intended Line Manager, which led the claimant to believe there were concerns about the claimant becoming Senior Service Advisor.

(ii) There was no satisfactory explanation given for those concerns.

(iii) There was a linkage in Dylan Bell’s mind between his express concerns and age. In reaching its decision the majority has had regard to the case of Madarassy v Nomura International Plc (2007) IRLR 246 in which the Court stated:-

“The burden of proof did not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination:-

Could conclude in Section 63a(2) must mean that “a reasonable tribunal could properly conclude from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent 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…”

The majority of the tribunal accepts that there was a difference of status and a difference in treatment in that there was no evidence that any other redeployed younger person had to defend themselves against the allegation that they would not be committed to the job, in the same way that the claimant had to do in the Lidl car park. We do not consider that we have found sufficient material over and above the difference in status and treatment to justify the burden of proof passing to the respondent.

Consequently the claimant’s claim fails.

The Minority Decision

The Age Discrimination Claim

11. It was the view of the minority that it was entirely reasonable for the claimant to consider that the comments made to him in the Lidl car park were age related. The minority considered there was a clear link in Dylan Bell’s mind between his concerns and age. In reaching this conclusion the minority has also noted the various accounts of the incident given by Dylan Bell:-

At Paragraph 13 of Dylan Bell’s witness statement he states:-

“I was concerned that if Ronnie came to Renault Newtownards he may not pull his weight, that he would not want to do the menial work and that he would just put his day in until he got a better job offer.”

In his replies to the statutory questionnaire:-

“I told you I was concerned that, as you have been in management for a considerable number of years you would view the job role of Senior Service Advisor as a temporary measure and would not give it your full commitment.”

In his email of 28 July 2008 he states:

“We talked about my worries, that Ronnie wouldn’t be interested in working as he had been a Manager for 30 plus years and wouldn’t be willing to do his share of the work.”

12. This was supplemented by various accounts of Andrew Gilmore such as Dylan Bell saying that as Ronnie Allen had been a Service Manager for such a long time he thought he might find it difficult to go from running the business to being at the front desk taking instruction. Dylan Bell continued that he was concerned that “ Ronnie may not do his fair share of the work as he was used to delegating, rather than having work delegated to him.” And “Dylan said his main concern was that Ronnie had been a manager for a long time and he was concerned about how he would adjust to the role of Service Supervisor and would he do his fair share.” What is common to all these accounts is the longevity of the service of the claimant and a person can only give long service if they are of a considerable age.

13. Additionally, the minority was concerned at one aspect of the situation not being raised with Dylan Bell. Emphasis was put by the respondents in defending this case on the suggestion that the claimant was a very valued member of staff because of his length of experience. The minority was concerned to note that this issue was never raised with Dylan Bell. If this was really the view of the respondents, the minority considers that it would have been more likely that not that the question of why these concerns were being raised at all by Dylan Bell was not asked in the various investigations and meetings.

14. Furthermore no evidence was adduced by or on behalf of the respondents to suggest that any other person who was redeployed had to satisfy their prospective manager as to their commitment to the lesser job. The minority of the tribunal considers that these are primary facts from which an inference of discrimination on the grounds of age should properly be drawn and that it was reasonable for the claimant to consider the remarks of Dylan Bell to be age related and as such violating his dignity.

The Constructive Dismissal Claim

15. Having found the remarks to the claimant to be ageist, the minority also found that was a fundamental breach of the claimants contract of employment as he was entitled not to be harassed in the workplace.

16. It could be argued that the claimant waived this breach by accepting the Senior Service Advisor job. However as that job was always subject to a probation period we do not consider this to be the case. It was possible that the post might have ceased on or before the end of that period of probation.

17. Did the claimant leave in response to this fundamental breach and not delay? The minority considers that the first respondent’s interactions after the comments thereafter with the claimant constituted a continuing of the fundamental breach given that they knew there was a mental health problem, all the respondents were on notice that this claimant needed careful and sympathetic treatment. Instead the view of the minority was that the investigation was a sham. There was doubt whether Dylan Bell and Andrew Gilmore were actually interviewed in person and this fundamental flaw in procedure was a characteristic of how the grievance process was carried out - dismissively and without due care. There was no adequate explanation for this failure and the minority draws the inference that there was none.

Did it really matter that the claimant got his tyre mended by someone other than the first respondent? The manner in which the claimant was reprimanded for such a petty incident added to his sense of ill-treatment.

18. The “last straw” was that Colin McNab met with the claimant and threw out various options to be considered on 28 January 2009. This was never followed up, despite the claimant saying he was open to proposals. The claimant resigned on 24 February 2009, so the minority considered the claimant left in response to the breach and did not delay.

The Victimisation Claim

19. The minority considered that for all the reasons discussed such as the ageist comments, the failure to properly investigate, the tyre, the failure to consider him for the Newtownabbey job in relation to the constructive dismissal claim that the claimant had been victimised on the grounds of his making a complaint of age discrimination.

The Claim for Discrimination on grounds of age and in Employment and Vocational Training

20. On the facts the claimant plainly was not considered for the post in Newtownabbey, so the minority considered he had been discriminated against on these grounds. Given the proximity in time to the claimant’s redundancy exercise, if the first respondent had genuinely wanted to accommodate the claimant, it would have been easy to consider him.

21. In short the minority considered the claimant was constructively dismissed, discriminated on the grounds of age by way of direct discrimination and harassment and victimised for bringing a claim.

Chairman:

Date and place of hearing: 19 - 30 April 2010 and 11 - 12 August 2010, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Allen v Charles Hurst Limited [2010] NIIT 1449_08IT (05 November 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/1449_08IT.html Cite as: [2010] NIIT 1449_08IT, [2010] NIIT 1449_8IT

Industrial Tribunals Northern Ireland Decisions