Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  00584/08

 

 

CLAIMANT:                      Ian Rosbotham

 

 

RESPONDENTS:              1.  Department for Social Development

2.  Philip Hall

3.  Trevor Caldwell

 

DECISION

The unanimous decision of the tribunal is that the claimant was not subjected to unlawful discrimination on the grounds of sexual orientation, having determined that the tribunal does have jurisdiction to hear the claimant’s claims.  

 

The title of the proceedings is amended in light of the dismissal by order of the tribunal dated 27 May 2009 against Conrad McConnell following his withdrawal by the claimant.

 

 

Constitution of Tribunal:

Chairman:              Ms Julie Knight

Members:              Mrs Teresa Madden

                              Mr John Lyttle

 

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Aidan Sands Barrister-at-Law instructed by the Departmental Solicitor’s Office.

 

1.       Issues

The following legal and factual issues were agreed by the parties at a case management discussion:

 

Main Issues of Fact

 

a.         Whether the claimant had been improperly interrupted on a telephone call.

 

b.       Whether the claimant had been unfairly treated in relation to how named respondent number three conducted matters on the day of the telephone call.

 

c.       Whether the claimant had been unfairly treated in not being granted special leave for non attendance due to snow and domestic circumstances.

 

d.       Whether the claimant had been unfairly treated in my Line Manager’s Assessment.

 

e.       Whether the claimant had been unfairly treated in my Line Manager’s subsequent appeal.

 

f.        Whether the claimant had been assigned to work appropriate to lower grades by the second and third named respondents

 

g.       Whether the claimant had been treated less favourably in the workplace than the other EO1’s by the second and third named respondents

 

h.       Whether the claimant had been treated differently by the second and third named respondents in their social intercourse with me.

 

i.        Whether the claimant had been unfairly treated in not being kept informed about scheduled overtime.

 

j.        Whether the claimant had been unfairly treated compared to a heterosexual person (whose relevant circumstances were the same or not materially different, real or hypothetical) would have been in each of the circumstances in relation to 1-9 above.

 

Issues of Law

 

a.       Had the claimant been discriminated against on the grounds of Sexual Orientation either directly or indirectly contrary to Regulation 3 of the Employment Equality (Sexual Orientation) Regulations Northern Ireland 2003 by the named respondents? The tribunal was satisfied that all of the complaints made by the claimant were complaints of direct rather than indirect discrimination.

 

b.       Has the claimant complied with the requirements of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004, as set out at paragraph 6.2(2) of the Response Form, save in respect of his allegations about the Line Manager Assessment?  Does the Tribunal have jurisdiction to deal with his claims?

 

c.       Are the matters prior to 7^th January 2008, save for the LMA complaint, out of time?  Does the Tribunal have jurisdiction to deal with such claims?

 

           

           

 

At an earlier Case Management Discussion it was directed with the agreement of the parties that it was in the interests of justice that the tribunal should not deal with the jurisdictional issues as a preliminary point but should hear all the evidence before making its decision

2.       Evidence

The tribunal considered the witness statements and oral evidence of Mr Ian Rosbotham, the claimant, Miss Jo Ann Crossey, Mr Paul McKeever, Mr Philip Hall, and Mr Trevor Caldwell, the second and third-named respondents, Mr Conrad McConnell, Ms Janet Uhlemann, Miss Joanna Quinn and Miss Anna Walsh.  The tribunal took into consideration all documentary evidence in the agreed bundles to which its attention was drawn by the parties and their witnesses.

3.       Findings of Fact

The tribunal found the following relevant facts to be proven on a balance of probabilities.

(1)            The claimant, Mr Ian Rosbotham, has been an employee of the first named respondent since 12 September 1977. He worked within various benefits payments administration sections, at Holywood Road Social Security Office until 24 November 1992, except for a one-year career break between 3 October 1988 and 3 October 1989.  He was seconded to the Northern Ireland Public Service Alliance (NIPSA) Department for Social Development (DSD) as a Deputy Sections Secretary during which he was promoted first to Executive Officer II (EOII) and subsequently to Executive Officer 1 Grade (EO1). The claimant held a number of elected posts within the Civil Service Greater Executive Committee and General Council and sub committees.  He was appointed as a lay member of the Industrial Tribunals on 1 February 1999 and as a lay panel member of the Reserve Forces Appeal Tribunal and Reinstatement Committee on 26 May 2003.  He has subsequently been reappointed to both of these public appointments.  When the claimant’s secondment with NIPSA ended on 25 February 2005, he expressed an interest in working within a policy environment and was placed within the Fraud Policy Unit (the FPU), part of the Fraud and Error Division within the Social Security Agency. 

 

(2)            The claimant is a gay man and lives with his male partner who is not able bodied. 

 

(3)            At the time of the claimant’s transfer, the FPU was located in Francis House. It is headed up by the second named respondent, Mr Philip Hall, Deputy Principal grade, who has operational responsibility for the delivery of a programme of Fraud Policy and Security Modernisation activities.  He directly line manages two Staff Officers namely Mr Trevor Caldwell, the third named respondent, who had responsibility for modernisation issues and Ms Joanne Moore who had responsibility for policy. Mr Hall reports in turn to Mr Conrad McConnell Grade 7 in the Fraud and Error Reduction Division.  In Francis House the office layout meant that the claimant was sitting on one of two desks opposite Mr Caldwell.  The claimant told the tribunal that he did not have conversations with Mr Caldwell at this time about his partner or personal life because he assumed that Mr Caldwell would not wish to discuss these matters. 

 

(4)          This was a small unit with ten staff members. Paul McKeever joined the FPU shortly afterwards on 11 April 2005.  The FPU relocated from Francis House to James House during the summer of 2005.  When the FPU moved to James House there was a different layout and the claimant sat at one of four desks. He chatted openly with other EO1s about his partner and social life.  Ms Crossey was posted to the FPU in January 2007.  Ms Crossey gave evidence for the first time during the hearing that on her first day at work Mr Hall and Mr Caldwell made a disrespectful comment about the claimant using the “wrong door” to access the FPU. The tribunal did not find this aspect of her evidence very convincing as it was not mentioned in her evidence in chief. She did not suggest that the alleged comment was homophobic or referenced the claimant’s sexuality in any way.

 

(5)             The claimant considered that he maintained friendly and professional relationships with his colleagues and considered himself to be most friendly with Mr McKeever and Ms Crossey. There was no evidence of and the claimant accepted that neither Mr Hall nor Mr Caldwell ever made comments of a homophobic nature nor did they behave in such a manner as to suggest that they were homophobic. The tribunal accepted the evidence of Mr Hall and Mr Caldwell that they believed that the claimant was gay before he came to work in the FPU.

 

(6)            Mr Hall in consultation with Mr Caldwell drew up the proposal for the claimant’s post including a job description.  Mr Caldwell directly line managed the claimant and allocated work to him, with input and agreement from Mr Hall and with the agreement of the claimant within the performance management framework.  This involves a post holder agreeing with his or her Line Manager (the Reporting Officer) their programme of work for the incoming year in development needs which is incorporated into a Personal Performance Agreement. The jobholder’s performance is then assessed by means of in-year and end-of-year reviews with the reporting officer.  A countersigning officer has responsibility for ensuring consistent standards within their area of responsibility and providing a second opinion on the work programme detail and an assessment of the jobholder’s performance.  Mr Caldwell as the claimant’s Line Manager was also his reporting officer and Mr Hall his Countersigning Officer. 

 

(7)            When the claimant first moved to the FPU Mr Hall and Mr Caldwell considered that he would need support and time to develop his knowledge, skills and confidence within his new role.  The claimant was tasked to work on a variety of matters including on the national insurance number project (the NINO project) between October 2005 and May 2006, which involved the claimant visiting Social Security Offices throughout Northern Ireland, the Republic of Ireland and the UK and making recommendations.  He was involved in the research and commissioning phases of the FRAIMS project before it was handed over to the project team.  Mr Caldwell asked the claimant to assist him in an equal opportunities investigation from April 2006 until August 2007.  Mr Caldwell considered that the claimant played a valuable supporting role in this investigation, but ultimately that he relied on advice from the first named respondent’s Human Resources Department.  He was involved in the costing and booking of the Memorandum of Understanding (MOU) Conference which took place in 2006 in Armagh and also in the Trim project (Tower Records Information Management). He was allocated responsibility for administrative matters within the FPU in 2007 with line management responsibility for an Administrative Officer, Marion McCabe.

 

(8)            These matters are included in the claimant’s Personal Performance Agreements for the period 1 March 2006 to 13 October 2006, 16 October 2006 to 31 March 2007 and the 1 April 2007 to 31 March 2008.   Other work allocated to the claimant included maintaining a watching brief in relation to developments in RIPA and providing advice and guidance as necessary to the Benefit Investigation Services and reviewing  and developing the service level agreement between Central Services Agency and Benefit Investigation Services. 

 

(9)            The claimant’s Personal Performance Agreement for the period from 1 March 2006 to 13 October 2006 contained an agreement that throughout the year the claimant would rewrite work blocks in the Fraud Procedures and Instructions (“FPI manual”) to a standard which will allow them to be signed off and ready for publishing.  The claimant told the tribunal that he only agreed to this being included in his personal performance agreement because he was informed at the time by Mr Caldwell that other EO1s had similar references to the FPI manual in their Personal Performance Agreements.  The claimant subsequently complained to both Mr Caldwell and Mr Hall about this requirement in his Personal Performance Agreement. The claimant complained that other EO1s were not compelled to work on the FPI guide as it was not in their Personal Performance Agreement. The claimant did not dispute the importance of the FPI guide but the basis of his objection was that he was the only EOI who was obliged to re write the FPI manual because it was contained in his personal performance agreement. The claimant further contended that writing the FPI manual was below EOI grade. Following the claimant’s representations to Mr Hall and Mr Caldwell no reference to the FPI guide was made in the claimant’s Personal Performance Agreement for the next reporting period 1 April 2007 to 31 March 2008 or subsequently.

 

(10)        The tribunal accepted that the FPI guide was in the FPU’s programme of work and that staff were required to progress the work blocks in accordance with the deadlines contained in the FPI guidance timetable. The rewriting of the FPI guidance had been designated a high priority task by the Assistant Director John Nevin following its identification as an action point in a Criminal Justice Inspectorate Report.  The tribunal noted that Denise Symington’s Personal Performance Agreement and report for 1 April 2006 until 31 March 2007 states that she is to “continue development work on the FPI manual and maintain the momentum to have the work blocks consolidated and published by 31 March 2007.”  She was also line managed by Mr Caldwell. Denise Symington also had responsibility for two EOII s namely Patricia Trethewey and Marina McCann and supervised and co-ordinated their work on the FPI guide.  

 

(11)        Ms Symington took the lead role in co-ordinating and redrafting sections of the FPI guide and in September 2006 drew up a draft FPI guidance timetable through to August 2007 for the completion of 41 work blocks. There was input into this programme of work from officers from EOII grade to DP grade, depending on the complexity of the work block, from both the Fraud Policy Unit and Benefit Investigation Services.  An analysis of the work blocks shows that other EO1s namely Niall Gifford, Steven Braiden, Paul McKeever and Denise Symington wrote and completed more sections of the FPI guide than the claimant. Ms Crossey, who had come into the FPU in 2007 after long-term sickness absence, retyped section of the FPI Guidance.  She considered that this was more appropriate to EOII grade but described this as an opportunity of “honing her typing skills.”

 

(12)        Denise Symington line managed Marina McCann until September 2006 when she went on maternity leave.  Ms McCann’s Personal Performance Agreement for the reporting period 1 April 2006 to 31 March 2007 specified that she would undertake a rewriting of the FPI manual.   In September 2006 Marina McCann was retrospectively given temporary promotion for the full period 2006-2007 to EO1 Grade. The tribunal accepted that this temporary promotion was in recognition of the fact that she had been working on more complex areas of the FPI guide. Paul McKeever completed two work blocks of the FPI guide and this work was commended by his Line Manager Joanne Moore in the in year review 06/07. 

 

(13)        Towards the beginning of his transfer to the FPU claimant asked for and was granted permission by Mr Hall to take time off to carry out the duties of and to attend training as a panel member of the Industrial Tribunal. Mr Hall became aware approximately two years later that the claimant was being paid for work time off and also receiving payment for his work as a panel member, in contravention of the rules. The claimant told Mr Hall that he was continuing this practice, which he said had the approval of Personnel branch, from when he worked with Central Trade Union side by which he gave half the payment for tribunal work to NIPSA and treated the other half as expenses.  Personnel Branch advised Mr Hall that there was no record of any such agreement and an overpayment had occurred to the claimant, which should be recovered either by leave adjustment or unpaid leave. Mr Hall met with the claimant and Mr Caldwell on 15 March 2007 to resolve the issue. The claimant was upset and angry as he said that he was aware of others who were doing the same thing.  Mr Hall explained that there had been an overpayment but that he was prepared to accept that the claimant had misunderstood the position. He offered to write off the past days the claimant had taken off while being paid both by the Agency and the Tribunal. The claimant was happy with this approach and accepted this offer.

 

(14)        There was a general service Staff Officer promotion competition in 2007.  Mr Hall met with Mr Caldwell and Ms Moore on 18 October 2007 to ensure consistent and fair approach to the assessments of the EO1’s under their line management participating in the competition. Mr Hall also provided material and advised and helped candidates, including the claimant to prepare for the promotion process. On 26 October 2007 Conrad McConnell met with Ms Moore and Mr Caldwell to outline the process and the rules and responsibilities of the Reporting Officer.  The written Guidance for Managers for the 2007 SO/B2 General Service Promotion Competition provides that the Line Manager’s Assessment (“LMA”) is used as part of the overall promotions selection process which is completed for all candidates who have self-nominated and who are eligible to compete. The LMA is based on selection criteria/competences for the Staff Officer/B2 grade as detailed in the Northern Ireland Civil Service Core Competence Framework.  Candidates are to achieve a minimum pass mark of 40 or above in their LMA to be eligible to progress to the interview stage.  Candidates scoring below this mark are not invited to interview.  The LMA is focused on the extent to which the candidate has displayed evidence of capability of performing effectively at the next grade and is not about his or her effectiveness in their current grade.

 

(15)        Paragraph 2.3 of the Guidance states “if the Line Manager is unable to score a selection criterion/competence because the candidate has not had the opportunity to demonstrate capability in that particular area, he/she should take into account the candidate’s involvement in other relevant work/activities and examine these to determine if the candidate has demonstrated the necessary behaviours to enable the selection criterion/competence to be scored.  If the Line Manager is still unable and continue to score a criterion/competence, he/she should consult with the candidate’s previous Line Manager (even if the candidate was employed in a fixed term or temporary capacity) to determine if the candidate formally had the opportunity to demonstrate capability and arrive at an agreed assessment.  In all the circumstances it is important that the evidence that has been taken into account, to allow the Line Manager to score the selection criterion/competence, is recorded on the LMA.” 

 

(16)        Paragraph 2.4 sets out a six step process to be followed by the Line Manager in making the assessment of each selection criterion/competence set out in Annex C to the Guidance. Step (iii) states “In considering each selection criterion/competence, please note that the candidate is not expected to have displayed capability of all the selection criteria/competences, only those which are relevant to either his/her post.  The Line Manager should, however, score the candidate based on whatever evidence is available.  This may require the Line Manager to examine other activities the candidate has been involved in, or consult a previous Line Manager to determine if the candidate has displayed the behaviours as set out at paragraph 2.3 above”. 

 

(17)        The process provides for the candidate different stages of appeals against if dissatisfied with the LMA.

 

(18)        Mr Caldwell carried out the LMA for the claimant on 1 November 2007 and awarded him 51 out of a possible 70 marks.  He discussed this with the claimant on 5 November 2007, following which the claimant provided Mr Caldwell with his own assessment of his own ratings in which he awarded himself an overall score of 59.  Mr Caldwell carried out LMAs for Denise Symington who wasawarded 63 out of a possible 70 points and Paul McKeever who was awarded 56 out of a possible 70 marks.  Joanne Moore carried out LMAs for Steven Braiden who was awarded 67 out of a possible 70 and Jo Ann Crossey who was awarded 57 out of a possible 70.  The claimant did not dispute the validity of the marks awarded to other EO1s in their LMAs.

 

(19)        Mr Caldwell met with the claimant on 6 November 2007 and agreed to review his rating under the heading “Resources” from 10 to11, increasing the claimant’s overall score to 52.  This was to take into account his contribution to the costing and booking of the 2006 MOU Conference. 

 

(20)        The claimant subsequently lodged an appeal to Mr Hall as counter signing officer on 8 November 2007.  The claimant accepted in his appeal document that his LMA was of “a reasonably high standard” and that his own calculation of what his score should have been “is not terribly higher from that as awarded by my Line Manager.”  His grounds for appeal were that, firstly, certain aspects of his work had either not been correctly weighted when considering his capability of performing at the next grade or not considered at all; and secondly, that under each competence heading no consideration had been given by Mr Caldwell to the claimant’s public appointments and in particular his role as an Industrial Tribunal panel member. 

 

(21)        Mr Hall consulted with Mr Caldwell and considered the claimant’s detailed comments in his LMA appeal.  He wrote to the claimant on 19 November 2007 advising that his appeal was not upheld because he was satisfied that the LMA had been completed in accordance with the agreed procedures, that the scoring process that was used was fair and consistent and that no evidence had been ignored or overlooked.  The claimant requested a meeting with Mr Hall to discuss the response to his LMA appeal, which took place on 20 November 2007.  The claimant argued that Mr Caldwell had not fully reflected the assistance and advice provided by him in the Equal Opportunities investigation and that his involvement with this work should have reflected high markings under the headings of services, people, information and communication and further that his work as an Industrial Tribunal panel member should have been taken into account.  Mr Hall requested further information in writing from the claimant to enable him to review any issues which he may have missed concerning the claimant’s involvement in the equal opportunities investigation.  The claimant duly provided written details on 21 November 2007, which Mr Hall discussed with Mr Caldwell.  He then wrote to the claimant on 28 November 2007 confirming that the appeal was not upheld because he considered that Mr Caldwell had correctly weighted the claimant’s work in the equal opportunities investigation and that he was correct in not taking into account the claimant’s role as a lay panel member of the Industrial Tribunal because there was a sufficient period of time to enable the conclusion to be reached about the completion and scoring of the LMA.

 

(22)        The claimant exercised his right to appeal to the Monitoring Officer Conrad McConnell, submitting his grounds for appeal on 3 December 2007.  Mr McConnell met with the claimant who clarified the grounds for appeal to be firstly the failure to take into account his role as a panel member and to acknowledge the standard of public appointments work; secondly that the claimant’s work in the equal opportunities’ investigation was not recognised and thirdly, that areas of the claimant’s work had been incorrectly evaluated.  Mr McConnell wrote to the claimant on 20 December 2007 advising that the appeal was unsuccessful. His view was that the reporting officer and counter signing officer had applied the guidance correctly in not taking into account the claimant’s role as an Industrial Tribunal panel member; that the work carried out by the claimant in the equal opportunities’ investigation had been recognised in the LMA and the subsequent appeal but there was not sufficient evidence to increase the current LMA scores; and that finally, in relation to other areas of work Mr McConnell was satisfied that the other areas of work identified by the claimant were considered in detail by the countersigning officer in deciding the appeal and that this was reflected in the current LMA scores.

 

(23)        The claimant did not accept Mr McConnell’s decision and on 7 January 2008 he sent a written submission to Ms Janet Uhlemann, the Social Security Personnel Officer stating that his public appointments had been ignored in the LMA and subsequent appeals and therefore his work had been incorrectly evaluated.  He stated in his submission that he considered that he had suffered discrimination and had been treated detrimentally regarding how his LMA had been completed.  He made no specific reference at this stage to his sexual orientation. 

 

(24)        Paragraph 4.6 of the guidance specifies that personnel will not intervene in a disagreement about the actual marks awarded but “may intervene where there have been inappropriate comments made relating to a candidate’s domestic, health, family or personal circumstances or trade union activity or where there has been procedural shortcomings in the completion of the LMA”. Miss Uhlemann wrote to the claimant on 22 January 2008.   She advised that she was only addressing whether there were any procedural errors in the process namely whether his duties as a panel member for the Industrial Tribunals should have been included as part of the LMA scoring process.  She informed him that she was refusing his appeal because the Guidance for Managers clearly indicates that where a line manager is unable to score selection criteria-competence that he or she should take into account the candidate’s involvement in other relevant work activities and she was satisfied that the evidence was that his line manager was able to assess him against every criterion in his current post, even if not to his satisfaction, and therefore there was no need to move to any additional assessment. 

 

(25)        The claimant then appealed on the 23 January 2008 to the Social Security Agency Chief Executive Mr Bryan Davis under Rule 1.8 of the Conduct chapter of the Conduct and Discipline part of the Staff Handbook.  The grounds for his appeal were both procedural shortcomings and the incorrect assessment or scoring of his line manager’s assessment.  He requested that Mr Davis take into account additional information in relation to his involvement in the equal opportunities investigation. The claimant further stated that “I believe to date I have suffered detriment with regards to the completion of my Line Manager’s Assessment.  I also believe that I have not been treated equally or fairly with regards to the completion of my Line Manager’s Assessment.  I further believe that I have suffered discrimination with regards to the completion of my Line Manager’s Assessment.  In the light of the fact that I firmly believe that I have not been treated equally with other members of staff in connection with the completion of my Line Manager’s Assessment and because of events which have taken place within the Fraud Policy Unit during this month January 2008 and on hindsight previously, I believe I have suffered discrimination because of my sexual orientation.”   

 

(26)        The claimant was invited to interview on the 29 January 2008. He told the tribunal that he did not perform to the best of his ability. Ms Symington was the successful candidate in the competition and was promoted to Staff Officer grade.

 

(27)        Mr Davis wrote to the claimant on 15 February 2008 refusing his appeal and explaining that his role was to ensure that there had been no procedural shortcomings or major errors in the completion of the line manager’s assessment.  He noted that the central point of the claimant’s appeal was that no account was taken of the work carried out by him as a lay panel member of the Industrial Tribunal.  However he stated that this work was outside the scope of the LMA process because panel members are not NICS employees and are therefore not subject to the NICS core competence framework with regard to performance management.  He noted the claimant’s complaint of discrimination because of his sexual orientation but advised that this allegation was outside the LMA process.  He advised that a complaint of this nature would be dealt with under the Dignity at Work procedures and that the claimant contact HR Connect for advice and guidance.  

 

(28)        The claimant emailed Mr Davis on 26 February 2008.  He disputed Mr Davis’ interpretation of the Guidance for Managers with regard to his role as a panel member.  He further complained that the way in which EO1 duties-responsibilities task project had been allocated within the FPU also meant that “I suffered detriment when it came to my line manager’s assessment.”  He went on to explain why he had brought the allegation of sexual orientation discrimination to Mr Davis’ attention.  He stated “a specific chain of events took place within fraud policy unit from Tuesday 8 to Friday 11 January 2008, other issues have followed, which made me feel singled out and victimised (for the purposes of this appeal I do not think it appropriate to enter into the details of those matters, they are part of what I now believe to be a “bigger picture” and the events would be more suited being dealt with by either dignity at work and/or an industrial tribunal application)” and that “as consequence of the events which took place during January 2008 I took to examining which duties officers at EO1 grade had been allocated in general terms by management within Fraud Policy Unit. On close inspection, it appears that I was not allocated what could either be considered high profile or perhaps top priority duties, which on an ongoing basis had been given to some other EO1 officers.”  He complained that this meant that he was not on a level playing field with other EO1s with regard to the completion of his LMA.  He alleged that the most important EO1 tasks and duties had been allocated to Stephen Braiden and that this along with other events formed part of the “bigger picture” and that up until the completion of his LMA and subsequent appeals, he had always believed he had been treated both differently, unfairly, unequally with detriment following as consequences, but did not conclude that this was because of his sexual orientation until January 2008.”   He asserted that this was his first opportunity of raising a complaint of discrimination on the grounds of his sexual orientation and requested that Mr Davis re-examine his appeal taking into account this additional information. He asked for a “timely response” to enable him to comply with industrial tribunal time limits. He reiterated that his LMA score did not reflect the work he had undertaken within the policy unit or of his duties as an Industrial Tribunal Member and that secondly he attended an interview for consideration for promotion to Staff Officer on 29 January 2008 but that he did not perform to the standard of which he would have liked at the interview because of having to deal with the realisation of less favourable treatment on grounds of sexual orientation.

 

(29)        Mr Davis responded on 18 March 2008 that he was satisfied the procedures in relation to the completion of the claimant’s LMA and subsequent interview had been applied properly and that he had no evidence of unfair treatment.  He repeated that a complaint of discrimination on grounds of sexual orientation should be dealt with under the Dignity at Work procedures.

 

(30)        The claimant then subsequently appealed to the Permanent Secretary, Mr Alan Shannon, on 26 March 2008. As well as outlining his grounds for appeal the claimant referred to his intention to make a complaint under the Dignity at Work policy and to the Industrial Tribunal. Mr Shannon wrote to the claimant on 6 May 2008 refusing the appeal because it was not valid on grounds of procedural shortcomings and the claimant had had opportunities of challenging the scoring. He declined to comment in relation to the complaint of discrimination. The claimant sent an email to Mr Shannon on 12 May 2008 challenging his decision.  Mr Shannon replied to the claimant on 15 May 2008 stating that the essential point is that you are placing a different interpretation on the guidance from that of your line managers and personnel division.   This concluded the LMA appeals process.  The claimant told the tribunal that the appeal caused him considerable upset as he believed that he had not been treated either fairly or equally.   He did not accept the interpretation of the guidance to managers.  At that stage he considered that Mr Caldwell, Mr Hall and Mr McConnell were motivated to act against him because of his sexual orientation.  He did not make any similar allegations against Miss Uhlemann, Mr Davis and Mr Shannon although he believes that they treated him unfairly he did not consider that their actions amounted to less favourable treatment on grounds of sexual orientation.

 

(31)        The following paragraphs detail the events in January 2008 and afterwards which the claimant referred to in his correspondence with Mr Davis. In late December 2007 and early January 2008 a decision was taken to relocate the Fraud Policy Unit from James House to Centre House.  Mr Hall discussed the impending move with FPU staff just before Christmas and was in communication with Accommodation Services on 7 January 2008 in relation to discuss the possibility of an alternative location due to FPU staff objections to Centre House.  There was discussion within the FPU about the details of the move. The claimant offered to contact NIPSA to see whether they could provide any further information.  The claimant emailed FPU staff including Mr Hall and Mr Caldwell on 7 January 2008 confirming that he had tried to discuss the matter with NIPSA DSD.  Mr Hall then emailed Mr Caldwell expressing concern that this might disrupt his ongoing discussions with the Accommodation Services and questioning the appropriateness of the claimant’s involvement given that he was not the local trade union representative.  The following morning at about 10.30am the claimant telephoned the NIPSA DSD office secretary.  Mr Caldwell was aware that the phone call was to NIPSA and he interrupted the claimant who then cut short his telephone conversation.  Mr Caldwell asked to speak with the claimant privately in a side office. The claimant informed Mr Caldwell that he intended to raise the matter with the NIPSA section office and then step back. Mr Caldwell reported these events to Mr Hall in an email later on that morning.

 

(32)        The tribunal did not accept the claimant’s description of how the incident occurred or that Mr Caldwell gestured in the manner described by the claimant and that he raised his voice.  The tribunal did not accept the claimant’s contention that he was then subsequently inappropriately walked or marched to an interview room. On balance the tribunal preferred the evidence of Mr Caldwell that he reached across with this hand towards the claimant in order to attract his attention and said “excuse me, Ian, in a word”.  Ms Crossey and Mr McKeever witnessed the incident. Neither heard what Mr Caldwell said to the claimant although both were in close proximity. Ms Crossey confirmed that Mr Caldwell spoke quietly and did not raise his voice. Both witnesses confirmed to the tribunal that they also believed that the claimant was going to speak to NIPSA about the relocation from James House. The claimant complained afterwards to Mr Hall that he felt embarrassed and humiliated by Mr Caldwell’s actions and was caused upset and distress.  Mr Hall met with the claimant and Mr Caldwell on 10 January 2008, and during this meeting the claimant stated that he had intended to request information from NIPSA about outside catering facilities for forthcoming FPU meetings, rather than the relocation of the unit.  The claimant was very upset but appeared to accept the apology given by Trevor Caldwell for interrupting him.  Both Mr Caldwell and Mr Hall thought that was the end of the matter.

 

(33)        On Friday 4 January 2008 the claimant was unable to get into work due to heavy snowfall which caused disruption to traffic and transport services.  There was no bus service from Dundonald into Belfast when he went out at 8.25am and he telephoned Mr Caldwell to tell him that he was having difficulties getting in and that he would try again later.  There were no buses between 8.25 and 10.45. The claimant and his partner then attempted to free their car from the driveway but by 12 noon decided that it would not be possible to drive the car from the immediate vicinity of the house.  The claimant’s partner telephoned into his work to say that he would not be able to get in.  Around 1.30pm the claimant went to the shops to buy lunch for his partner.  The claimant was aware at this stage that the bus service was running again but he was concerned that he might not be able to get home again because of severe weather warnings and so decided not to go into work. 

 

(34)        On 8 January 2008 at 8.18am he received an email from Mr Caldwell asking him to confirm whether he intended to take a day’s flexi leave or annual leave for Friday 4 January.  The email did not mention the possibility of applying for special leave.  The claimant submitted an application to Mr Caldwell for one day’s special leave on 8 January.  Mr Caldwell took into account the attendance policy contained in the Staff Handbook part 1.9 and the domestic crisis section of the Special Leave section.   He sought advice from Mr Hall and from personnel section.  Rhoda France of Personnel Section advised that managers have a discretion as to whether to grant special leave which should be exercised fairly taking into account whether other officers managed to make it into work and in particular if other officers from the same area were able to make it into the office.   She pointed out that staff were expected to explore all other possible ways of getting into the office or another government office and that if Mr Caldwell was not satisfied that every effort was made then special leave should not be considered.   She informed him that she was aware that buses were running from Dundonald as officers within personnel branch (then based at James House) managed to attend work eventually. She stated that his decision to award leave under domestic crisis–partner care might be influenced by the fact that the claimant was required to attend the shops for his partner prior to coming into work.   She suggested that he may want to make further enquiries with the claimant as to the distance between the shop and the claimant’s home, how he was able to reach the shops, why it was so important that he attended the shops prior coming to work and who else was available to attend at the shops.  She further suggested that if he was satisfied that there was a genuine emergency created by weather conditions “you may wish to consider a half day paid leave for the morning.”  Mr Caldwell took the advice into consideration when he made his decision.  He also took into account that other officers made it into the fraud policy unit that day.   Mr Caldwell had also checked on arrival at work on 4 January several websites to establish the extent of the problems and how they might impact on staff.  The Translink news bulletin updated at 10.02am on 4 January indicated limited Metro bus service operating to and from Ulster hospital Dundonald.   He did not make the further enquiries with the claimant which had been suggested by Ms France and decided that in the circumstances that it was appropriate to grant a half day’s special paid leave. The claimant accepted during cross examination that there was public transport available later on in the morning and it was not unreasonable for Mr Caldwell to conclude that after he had made arrangements to get his partner’s lunch he could have come into work.  The claimant took the other half day as flexi leave. Mr Caldwell confirmed at the hearing that he has on a number of occasions authorised full day’s special leave for Mr McKeever and other officers when their partners or children have been sick and were in need of care. 

 

(35)        The claimant was due to work overtime on the weekend of 23 and 24 February 2008.  Overtime was discussed at a meeting on 20 February 2008.  The claimant told the tribunal that Mr Caldwell advised all staff that due to budgetary constraints a full eight hours’ overtime might not be available.  Mr Caldwell disputed that possible restriction in overtime was discussed at this stage and that he had simply obtained the names of persons who would be interested in working overtime that week to ensure weekend access to James House.  He and Ms Moore considered priority work areas for overtime in the light of budgetary constraints and decided to restrict overtime for each member of staff that weekend to six hours.  On either version of events it is clear that the finalised decision to restrict overtime to six hours was made on Thursday 21 February. 

 

(36)        The claimant telephoned Mr Caldwell on 22 February at 8.10am to request permission to take that day as annual leave.  Mr Caldwell did not mention that overtime would be restricted to six hours for each member of staff.  Afterwards he realised that he had not mentioned the overtime restriction and he sent an email about this to the claimant at 8.45am.  He was aware that the claimant would not receive the email until the following day when he turned up to perform the overtime.  He did not telephone the claimant but coincidentally Mr McKeever telephoned the claimant later that day and advised him of the overtime restriction.  The claimant decided nevertheless to work overtime.  The claimant’s case is that Mr Caldwell deliberately did not tell him about the overtime restriction and so he deprived of the opportunity to make an informed choice about whether he would come into work overtime or not.  The tribunal accepted as genuine Mr Caldwell’s evidence that it was simply an oversight on his part.  The claimant conceded at the hearing that taken by itself this is a small incident but that it formed part of the “bigger picture” of a course of discriminatory conduct.

 

(37)        On 21 March 2008 in view of the impending relocation from James House to the Design Centre, Mr Caldwell emailed FPU staff about skips that had been provided for the move of the unit.  Forty skips allocated to the FPU had been delivered to another part of the premises.  In the email he stated “Ian you may want to ‘retrieve’ forty skips in the interim–they could be stored behind what was Mairead’s desk.”  Ms Crossey jokingly told the claimant to go and get the skips in front of Mr Caldwell and told the tribunal that because Mr Caldwell did not make any comment, she was unsure whether he intended that the claimant should remove the skips himself or not.  The claimant told the tribunal that he interpreted the email as an order from Mr Caldwell to physically move the skips himself.  Mr Caldwell denied that that this was an instruction to the claimant personally to move the skips.  In any event the claimant did not move the skips himself but telephoned the porters and asked them to move forty skips to the FPU.

 

(38)        On 7 April 2008 the claimant lodged an originating claim with the Industrial Tribunal and also made a complaint under the first-named respondent’s Dignity at Work policy against Mr Hall, Mr Caldwell and Mr McConnell. The claimant also named his employer as a respondent in the tribunal proceedings. His originating claim and his dignity at work complaint were couched in identical terms. He made complaints under six headings:

 

1.              The telephone call incident on 8 January 2008.

 

2.              His application for special leave application and emails sent by Mr Caldwell on 8 January 2008.

 

3.              Incorrect assessment and procedural shortcomings of the Line Manager’s Assessment and subsequent appeals; that throughout the process he complained that he had been treated unfairly suffering a detriment but that in January 2008 he started to see the “bigger picture” and concluded that the detriment and discrimination was by reason of his sexuality.

 

4.              The failure of Mr Caldwell to notify him of the overtime restriction on the weekend of 23 and 24 February.  He complained that he would not have been in a position to make an informed choice as to whether to work restricted overtime had he not been telephoned by Paul McKeever and that he was treated differently than anyone else would have been in similar circumstances.

 

5.              Allocation of work duties to EO1s within the Fraud Policy Unit. He complained that he was “bottom of the pecking order” in the allocation of work duties to the five EO1’s in the FPU, with Stephen Braiden being allocated high profile work tasks and projects. He referred to email dated 21 March 2008 in relation to the skips. He complained also that he had been asked to compile blood donor lists, training lists, etc. and that he was the only member of staff asked to sign up to complete parts of the FPI guide in his Personal Performance agreement in the 2006/07 year that that this was work at EOII level and not normal duties for EOI grade.

 

6.              Work and General interaction within the Fraud Policy Unit both in relation to work related and social matters.  The claimant complained that Mr Hall and Mr Caldwell did not take his contributions seriously at meetings or in conversation; that at times they spoke over him or ignored his contributions; and that they did not treat him equally with other EOI’s. He complained that Mr Hall Mr Caldwell and Mr McConnell treated him differently and unequally to other EOI’s in social interaction and that he was excluded from general conversations and that conversations between him and these three individuals was either short or nonexistent.

 

(39)        His Dignity at Work Complaint was referred by HR Connect to Joanna Quinn, an Equal Opportunities Officer based at James House.  After a preliminary enquiry meeting with the claimant on 6 May 2008. Anna Walsh of HR Connect was instructed to conduct an enquiry.  She held separate investigatory meetings with the claimant, Trevor Caldwell, Philip Hall and Conrad McConnell.  She also separately interviewed nine witnesses who included Ms Crossey and Mr McKeever.  Ms Walsh concluded that there was no tangible evidence to substantiate the claimant’s complaint of sexual orientation discrimination and she forwarded her final report which was received by Ms Quinn on 11 March 2009.  Ms Quinn decided that there was no evidence to support the allegations against Mr Hall, Mr Caldwell and Mr McConnell by the claimant and notified him accordingly that his complaint was not upheld.   The claimant appealed but Ms Quinn’s decision was upheld.

 

(40)        The claimant subsequently withdrew that part of his complaint to the tribunal relating to Mr McConnell. The claimant decided to withdraw his complaint against Mr McConnell after considering documentation provided on discovery which he believed made it clear that Mr McConnell did not direct or allocate work in the FPU and also because in the claimant’s view since April 2008 Mr McConnell had treated him with dignity and respect and therefore the claimant believed that he had absolutely nothing to answer for.

 

(41)        The claimant identified his comparators as other EO1’s in the Fraud Policy Unit, namely Denise Symington, Stephen Braiden, Martin McDowell, Paul McKeever and Jo Ann Crossey, except in relation to his allegation that he had been unfairly treated in not being granted a full day’s special leave for non attendance due to snow and domestic circumstances in which instance he sought to compare himself with a hypothetical comparator. 

 

(42)        During the hearing the claimant raised new allegations that he had been less favourably treated than Mr Martin McDowell, an EO1, who on his return from a career break on 2 July 2007, was placed in a specialist type post with the Assistant Director, Mr Nevin, an opportunity that was not offered to the claimant; and that Mr McDowell was between July and November 2007 temporarily promoted to Staff Officer gave him an advantage when it came to recommendations for promotion to the Staff Officer grade and the completion of the line manager’s assessments.  The claimant contended that he only became aware of the temporary promotion after lodging his originating claim through discovery of a copy of Mr McDowell’s line manager’s assessment.  He initially relied on this as further evidence of less favourable treatment on grounds of his sexual orientation. In fact Mr McDowell was not temporarily promoted to staff officer until October 2008 and this was at the behest of the Assistant Director and not Mr Hall.

 

(43)        He told the tribunal at the hearing that he believed that the less favourable treatment from Mr Hall and Mr Caldwell began when they realised “beyond any shadow of a doubt” that he was a gay man.  He believed that this would have been when the FPU moved from Francis House to James House in the summer of 2005. He complained that Mr Caldwell ignored him when he greeted him in the morning and that he would not discuss any personal matters with him.  Mr Caldwell however was able to describe conversations with the claimant about meals out with his partner, wines and cider they had drunk and in particular the claimant’s disappointing holiday in Bulgaria during 2006.  Around this time Mr Caldwell provided useful financial advice to the claimant in relation to an underperforming endowment policy. Both Ms Crossey and Mr McKeever gave evidence about the different levels of interaction between individuals within the FPU and Mr McKeever’s perception was that on occasion Mr Caldwell ignored him. The claimant complained that his contributions at meetings were talked over by Mr Hall and that his contributions were not as valued as other EO1s and that socially Mr Hall did not treat him in the same way as he did other EO1s.   The claimant was not able to give any specific examples of occasions when he felt that Mr Hall had treated him less favourably and his evidence was vague and contradictory in this regard.  The claimant agreed that neither Mr Hall nor Mr Caldwell had ever made any comments of a homophobic nature or had behaved in a way which would suggest that they were homophobic. 

 

(44)        Mr McKeever confirmed to the tribunal that there were occasions when the claimant spoke to Mr Caldwell and he did not respond but Mr McKeever told the tribunal that there were occasions when the claimant spoke to Mr Caldwell and he did not respond but Mr McKeever told the tribunal that there were occasions when Mr Caldwell didn’t speak to him either.  None of the witnesses interviewed by Anna Walsh during the investigation of the claimant’s complaint detected any less favourable treatment on grounds of sexual orientation.

 

 

4.       The Law

Article 19 of the Employment (Northern Ireland) Order 2003 states that:

                    19(1)   This Article applies to the jurisdictions listed in Schedule 3. 

                        (2)  An employee shall not present a complaint to an Industrial Tribunal under a jurisdiction to which this article applies if –

(a)       it concerns a matter in relation to which the requirement in   paragraph 6 or 9 of Schedule 1 applies, and

                                         (b)      the requirement has not been complied with.

              (3)  An employee shall not present complaint to an industrial tribunal under a jurisdiction to which this article applies if–

                                       (a)       it concerns a matter in relation to which the requirement in paragraph 6 or 9 of schedule 1 has been complied with, and

                                       (b)       less than 28 days have passed since the day on which the requirement was complied with.

                                  Schedule 1 Part 2 Chapter 1 of the 2003 Order sets out the standard procedure for grievance procedures.

                  (4)  The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 prohibit direct and indirect discrimination on grounds of sexual orientation. Direct discrimination is defined in Regulation 3(1) which states “for the purpose of these Regulations a person (“A”) discriminates against another person (“B”) if –

(a)        on the grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons”.

Regulation 24 (1) sets out provisions in relation to the liability of employers and principals and provides that:

“Anything done by the person in the course of his employment shall be treated for the purpose of these regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”

Regulation 24 (3) provides in proceedings brought under these regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.  

Regulation 41 specifies the period in which proceedings should be brought before an industrial tribunal.

Regulation 41 (1) states that “an industrial tribunal shall not consider a complaint under Regulation 34 (jurisdiction of industrial tribunals) unless it is presented to the tribunal before the end of

(a)        the period of three months beginning when the act complained of was done;

                    However a “court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.” (Regulation 41(3)). 

    Regulation 41(4) provides that “For the purpose of this regulation and regulation 39 (help for persons in     obtaining information etc)–

(a)       when the making of a contract is by reason of the inclusion of any term, an unlawful act, that act shall be treated as extending throughout the duration of the contract and

(b)        any act extending over a period shall be treated as done at the end of that period; and

(c)        a deliberate omission shall be treated as done when the person in question decided upon it, and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this regulation to decide upon an omission when he does an act inconsistent with the doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.” 

Regulation 35 sets out the burden of proof to be applied by the tribunal in complaints of sexual orientation discrimination.

Regulation 35(2) states that “Where on the hearing of 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 34 applies; or

(b)          is by virtue of Regulation 24 (liability of employers and principals) or 25 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

(c)          the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”

The tribunal was referred to the following cases:

 

Suffolk Mental Health Partnership NHS Trust v Hurst and Others [2009] IRLR12; London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154; Igen Limited and others v Wong, Chamberlin Solicitors and Another v Emokpae, Brunel University v Webster [2005] IRLR 258; Zafar v Glasgow City Council [1997] IRLR 229;

Nagarajan v London Regional Transport [1999] IRLR 172; Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24; Law Society v Bahl [2003] IRLR 640, Shamoon v the Chief Constable of the RUC [2003] UKHL11 [2003] IRLR 285 2003. 

 

The tribunal considered the following additional cases:

 

Madarassey v Nomura International PLC [2007] EWCA CIV 33; Shergold v Fieldway Medical Centre [2006] IRLR 76, Canary Wharf Management Ltd v Adebi [2006] IRLR416.

 

5.       Conclusions

(1)            Under the statutory dispute procedures an employee is obliged to set out the grievance in writing and send it to the employer and to wait 28 days thereafter before lodging a complaint with the Office of the Tribunals.  The respondent’s case is that the claimant, apart from his complaint regarding his Line Manager’s Assessment, did not satisfy the requirements of the Employment (Northern Ireland) Order 2003 and consequently the tribunal has jurisdiction to deal with his other complaints.  The claimant lodged his originating claim to the industrial tribunal on the same day as he lodged his Dignity at Work grievance which set out the basis for his other complaints in addition to the LMA. The claimant relies on comments made by him in his letter to the Chief Executive on 23 January 2008 and in his subsequent email of 26 February 2008. These complaints were made more than 28 days before lodging his claim with the tribunal. 

 

(2)            The tribunal has carefully considered the contents of the claimant’s communications to Mr Davis and the legal authorities in deciding whether the matters raised in these communications were capable of constituting a grievance which encompassed all the matters subsequently raised in his complaint to the tribunal. In the Shergold case Mr Justice Burton, then President of the EAT, reviewed the case law on this issue and emphasised that the purpose behind the statutory grievance procedures is to give the parties a chance to settle disputes before litigating.  However the statutory requirements are “minimal” in terms of what is required.  This was accepted by Counsel for the respondents in the present case.  Although the grievance must be set out in writing it is not necessary for the employee to make it clear that he or she is raising a grievance or invoking a grievance procedure.  Nor is there a requirement that every detail of the complaint set out in the grievance letter.  It is sufficient if the employer can “understand the general nature of the complaint being made.” There is no requirement that an employee comply with any company or contractual grievance procedure.  Step1 of the standard grievance procedure simply requires the employee to “set out the grievance in writing.” However step 2 requires that prior to the meeting to discuss the grievance, the employee must notify the employer of the basis for the grievance.  The modified procedure requires the basis for the grievance to be set out at step 1.   The word “basis” is not defined in the Regulations but in the Canary Wharf  case, Elias P explained that the basis for the grievance requires some additional information from the employee to substantiate his or her complaint.  The tribunal is satisfied that the comments of the claimant in his appeal of 23 January 2008 together with the contents of the email subsequently on the 26 February 2008 when read together are not confined simply to the Line Manager’s Assessment and subsequent appeals.  Specific reference is made to the allocation of duties and the incidents which occurred in January 2008 and “on hindsight previously”.  On balance the tribunal is satisfied that taken together these documents constitute compliance with step 1 of the statutory grievance procedure.

 

(3)            It was the respondents’ case that all of the complaints prior to 7 January 2008 were lodged outside the prescribed three month time limit, except for the LMA complaint. Nevertheless the claimant and Counsel for the respondents agreed at the outset of the hearing that it would be both necessary and in the interests of justice for the tribunal to hear all of the evidence before it could make a ruling in this regard. The claimant’s contention was that he had been subjected to a continuing act of discrimination, as distinct from a succession of isolated and unconnected acts, for which time would begin to run from the date when each specific act was committed. The tribunal was mindful that even if certain matters were out of time, they would potentially be capable of providing evidence as to whether the claimant had been less favourably treated and if so, the reason for the treatment. The tribunal was therefore satisfied that in this regard also it had jurisdiction to determine the claimant’s complaints.

 

(4)            The claimant’s complaints concern allegations of direct discrimination on the grounds of his sexual orientation. Mr Justice Elias P in the Ladele case at paragraph 32 of the decision states:

 

“The concept of direct discrimination is fundamentally a simple one. The claimant suffers some form of detriment (using that term very broadly) and the reason for that detrimental treatment is the prohibited ground. It is implicit in that analysis that someone in a similar position to whom that ground did not apply (the comparator) would not have suffered that detriment. By establishing that the reason for the detrimental treatment is the prohibited reason, the claimant necessarily establishes at one and the same time that he or she is less favourably treated than the comparator who did not share the prohibited characteristic. Accordingly, although the Directive and Regulations both identify the need for a tribunal to determine how a comparator was or would have been treated, that conclusion is necessarily encompassed in the finding that the claimant suffered the detriment on the prohibited ground. So a finding of discrimination can be made without the tribunal needing specifically to identify the precise characteristics of the comparator at all.”

 

          The tribunal also relied on the advice of Lord Nicholls in Shamoon where he stated that “employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (s)he was. Was it on the proscribed ground which is the foundation of application? Or was it for some other reason? If the latter, the application fails.”

 

          The task of the tribunal is to apply the Burden of Proof regulations and ask firstly “Has the claimant proved that on the balance of probabilities such facts from which it could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against them?” Applying the guidance of the Court of Appeal in the Igen case, if the answer is in the affirmative the burden then will shift to the respondents to demonstrate that the reason for the treatment was in no way related to the claimant’s sexual orientation. However if the claimant does not prove “such facts”, the application will fail. In deciding whether “such facts” have been made out, the tribunal must consider all of the evidence and not just that of the claimant and his witnesses. The Court of Appeal in England and Wales confirmed in the Madarassy case that the burden does not shift simply on the claimant establishing the facts of a difference in status and a difference in the treatment of him.

 

(5)            The claimant’s contention was that he had been subjected to a deliberate and intentional campaign of less favourable treatment by Mr Hall and Mr Caldwell and that they so treated him because of his sexual orientation, although he only realised the reason for the treatment after the events in early January 2008. The tribunal did not consider that the facts support the claimant’s contentions and accordingly he has not discharged his burden of proving facts from which it can infer, without explanation, that there has been discriminatory treatment.

 

(6)  On a number of matters the tribunal did not accept the claimant’s version of events and found his evidence to be lacking in credibility.  In particular the tribunal found the claimant’s evidence in relation to his complaint that both Mr Hall and Mr Caldwell excluded him from both social and work discussions to be inconsistent vague and contradictory both during his own evidence and in questions put by him during his cross examination to the respondent’s witnesses.  The claimant’s case was that this treatment started when Mr Hall and Mr Caldwell “knew beyond a shadow of a doubt” that he was a gay man and that his communications with Mr Caldwell got progressively worse to the point where he no longer spoke to the claimant.  The tribunal considered that both Mr Hall and Mr Caldwell were able to give concrete examples of personal interaction with the claimant which undermined his case that they were motivated to act against him because he is gay. By contrast the claimant was not able to give concrete examples of such occasions and considered that the claimant chose not to speak about personal matters to Mr Caldwell because of an assumption that he made and not because of anything Mr Caldwell did. In any event the tribunal has found as a fact that both Mr Caldwell and Mr Hall believed that the claimant was gay when he first started in the FPU. The tribunal took into account that witnesses during the Dignity at Work interviews did not discern any difference in treatment between the claimant and other EO1s and that there was no perception that he was treated differently due to sexual orientation.  Paul McKeever’s evidence was that Mr Caldwell did not speak to him much either.

 

(7)  The tribunal did not accept that Mr Caldwell gave a literal instruction to the claimant personally to retrieve the skips. The tribunal is satisfied that the claimant did not interpret this as such given that he obtained the services of the porter to carry out this task.  In relation to the interrupted telephone call on 8 January 2008 the tribunal accepted Mr Caldwell’s evidence in relation to the manner of and the reason for the interruption.  McKeever also believed that this was the purpose of the telephone call.

 

(8)            The tribunal did not accept that Mr Caldwell intentionally interrupted the claimant’s telephone call deliberately to upset and annoy him as a consequence of his sexual orientation.  The tribunal accepted that Mr Caldwell acted as he did because he had reason to believe and did genuinely believe that the claimant was about to discuss the move of the FPU from James House to another location, and this belief was shared by Ms Crossey and Mr McKeever. The tribunal is satisfied that Mr Caldwell would have similarly interrupted a telephone conversation had it been made by one of the claimant’s heterosexual colleagues in similar circumstances.

 

(9)            The claimant’s complaint in relation to Mr Caldwell not informing him about the decision to restrict weekend overtime hours, was that he would have been deprived of the opportunity of making an informed choice as to whether to work the restricted hours, had Mr McKeever not telephoned him. The tribunal’s view was the detriment complained of by the claimant did not in fact occur, as the claimant was able to make an informed choice. Furthermore the tribunal has found as a fact that the failure to inform by Mr Caldwell was an oversight and not a deliberate act and therefore considers that there was no evidence from which it could infer less favourable treatment. 

 

(10)        In other matters the claimant did not convince the tribunal that he had been subjected to less favourable treatment than his heterosexual EO1 colleagues. The claimant’s case was that Stephen Braiden had been given more high profile work than the claimant and similarly that Martin McDowell had been given opportunities that were not afforded to him. The tribunal considered that even had this been the case, other heterosexual EO1s would have been disadvantaged in equal measure.

 

(11)        The tribunal did not accept the claimant’s argument that he was essentially bottom of the “pecking order” among the rest of the EO1s and that he was allocated duties below grade. His main complaint in this regard was that he was the only EO1 who had the FPI guide included in his personal performance agreement. The tribunal concludes that this is incorrect because the FPI guide was referred to in Ms Symington’s 2006–2007 assessment. The tribunal noted that Ms Symington who took the leading role in relation to the FPI guide was allocated the second highest score in the LMA assessment and was ultimately promoted in the Staff Officer competition. The tribunal further noted that Marina McCann was given a retrospective temporary promotion to EO1 because of carrying out more complex work on the FPI guide.  The tribunal did not accept that Miss Crossey’s experience of working on the guide was typical or that this was the nature of the claimant’s work on the guide. The tribunal considered that the claimant’s personal performance agreements and his LMA do not support his contention that he was allocated work below grade. The claimant was the EO1 responsible for administrative matters and therefore the tribunal did not accept that it was inappropriate for matters relating to skips, blood donor’s lists and training lists to be referred to him. There was also evidence before the tribunal that similar tasks had been given to the claimant to which he did not object such as ordering desks and other equipment for the new premises. 

 

(12)        The tribunal did not accept the claimant’s contention that Mr Caldwell completed his line manager’s assessment unfairly or improperly or that he failed to take on board the representations in relation to the assessment.  The contents of the LMA showed that Mr Caldwell did make an assessment of the claimant’s contribution to the equal opportunities investigation.  The tribunal is satisfied that Mr Caldwell applied the proper procedure and did not act contrary to the Manager’s Guidance in refusing to take into account the claimant’s experience as an industrial tribunal panel member.  The tribunal considers the fact that the claimant was allocated the lowest mark of all the EO1s is not evidence of less favourable treatment of him by Mr Caldwell.  Some of the marks were awarded by Joanne Moore, not Mr Caldwell. The tribunal further notes that even had Mr Caldwell agreed to revise the marks upwards to 59 he still would have had a lower mark on his LMA than either Denise Symington or Steven Braiden.  In any event the mark allocated to the claimant was well above the 40 mark threshold and he was invited for interview. He therefore had an opportunity to continue in the competition at the interview.  The person who conducted the interview was not made aware of the LMA score. The tribunal therefore considers that the claimant did not in fact suffer a detriment in the LMA. Therefore it was not necessary for the tribunal to decide whether the claimant would have performed better at interview but for these events. In any event the tribunal considered that there was insufficient evidence to support the claimant’s contentions in this regard.

 

(13)        Similarly the tribunal considers that the facts contradict the contention that Mr Hall did not meaningfully consider the claimant’s grounds of appeal. It is clear that Mr Hall carefully considered the issues before him.  He requested further information and reviewed his own decision.  The documentation relating to the appeal is full.  He correctly applied the guidance for the appeal.  The tribunal considers it significant that the claimant subsequently withdrew his complaint of sexual orientation discrimination against Mr McConnell with regard to his participation in the LMA appeal procedure and that the claimant has never suggested that anyone else at a higher level in the appeals process sought to discriminate against him on grounds of sexual orientation.  Yet all took the same approach both to Mr Hall and Mr Caldwell.   There was no evidence to suggest that either Mr Hall or Mr Caldwell would have taken any account the outside activities of the heterosexual colleague who had been in the post for the same amount of time as the claimant.

 

(14)        The tribunal considered the claimant’s contention that he had been refused special leave because of his sexual orientation. The tribunal did not consider Mr McKeever to be the correct comparator, but accepted that the manner in which Mr Caldwell dealt with his special leave applications could be relevant to the issue of how a hypothetical comparator would have been treated. Mr Caldwell previously granted special leave to Mr McKeever for domestic responsibilities and emergencies.  The tribunal considers that Mr Caldwell decided the claimant’s special leave application in accordance with the guidelines and guidance issued from the personnel section. The tribunal considers that he exercised his discretion reasonably in circumstances where the claimant accepted that there was public transport available later on in the morning and conceded that it was not unreasonable for Mr Caldwell to conclude he could have come into work after getting his partner’s lunch.  There were no facts from which the tribunal could conclude that a hypothetical heterosexual comparator would have been treated any differently in these circumstances. The tribunal did not consider that it could draw an inference that Mr Caldwell deliberately refused to grant a full day’s special leave because of the claimant’s sexual orientation. 

 

(15)        Therefore the tribunal determines that the claimant has not established facts from which it can infer that he was treated less favourably by either Mr Hall or Mr Caldwell on grounds of his sexual orientation. This being the case, it is not necessary for the tribunal to make a determination as to the liability of the first named respondent under Regulation 24 of the 2003 Regulations.  The tribunal therefore dismisses the claimant’s complaints against all three respondents in their entirety.

 

 

 

 

Chairman:

 

 

Date and place of hearing:      5–9 October 2009, 12–13 October 2009, 15 October 2009, Belfast.

 

 

Date decision recorded in register and issued to parties: