FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00539/00FET
03239/00

APPLICANT:	Kenneth Hempkin

RESPONDENT:	P J Murphy 

DECISION
The unanimous decision of the Tribunal is that:
(i)	the applicant was not unlawfully discriminated against on the ground of his religious belief and political opinion;
(ii)	the applicant was not unfairly dismissed by the respondent.  

Appearances:
The applicant, Mr Hempkin, in person. 
The respondent, Mr Murphy, in person. 

1.	(i)	The applicant, Mr Hempkin, complains of unlawful discrimination on the grounds of religious belief and political opinion by the respondent, Mr Murphy.  This allegation relates to a complaint of ongoing sectarian harassment by fellow employees of the respondent, and by the respondent himself, in the period from early July 2000 until the termination of the applicant’s employment on 16 October 2000.  The alleged harassment related to remarks directed against the applicant after a photograph of him at a barricade following the annual Orange parade to Drumcree appeared in the Sun newspaper.  He also alleged that remarks of a similar nature were directed against him by third parties, not in the employment of the respondent, following publication of this photograph.
	
	(ii)	He further alleges that on 16 October 2000, he was unfairly dismissed by the respondent.  The respondent denies dismissing the applicant, and claims that he resigned.
 	
2.	(i)	The Tribunal heard evidence from the applicant and Mr Murphy in relation to the allegation of sectarian harassment.  It has heard no independent evidence on this issue, despite giving both parties, who were unrepresented, the opportunity to call further evidence.  In relation to the unfair dismissal claim the applicant’s wife gave evidence on his behalf, and documentary evidence was adduced by Mr Murphy.  The Tribunal has preferred the evidence of Mr Murphy where it conflicts with that of the applicant, and in relation to the unfair dismissal claim, Mr Murphy’s evidence is supported by the documentary evidence.
	
	(ii)	The tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.
	
3.	(i)	The applicant, Mr Hempkin, is a Protestant.  He began to work for Mr Murphy, a Roman Catholic, on 3 September 1997.  It was part-time employment, as a machine operator/labourer.  The applicant’s hours varied, but were in the region of ten to twenty hours each week.  He worked at Newry, and was one of three Protestants employed by Mr Murphy.  His employment ended, in disputed circumstances, on 16 October 2000.
	
	(ii)	The applicant had worked for Mr Murphy on and off over the previous 25 years.  They knew each other well.  The applicant conceded that these previous periods of employment had ended amicably.  In evidence, he described Mr Murphy as a man he respected, and had liked all his life.  Indeed it appears that even after his employment ended, he did some work for a member of Mr Murphy’s family, cleaning a company car.
	
	(iii)	According to the applicant, following publication of his photograph in the newspaper, the atmosphere at work changed.  He was taunted about the photograph in the tea-room by fellow workers.  On one occasion Mr Murphy joined in, asking the applicant the identity of two men in sunglasses shown standing beside him.  Remarks such as these continued until the end of his employment.
	
	(iv)	This was not the first time a photograph of Mr Hempkin had appeared in the press.  There had been other press photographs of the applicant at Orange parades.

We accept the evidence of Mr Murphy that no comments had been made about these, and that no aggressive comments were made following the Drumcree photograph.  Someone had joked that the applicant should have worn a mask.  We have to look at this remark from the applicant’s perception and his interpretation of it.  We are satisfied that he was not someone who was easily insulted and that he took no offence.  We also accept Mr Murphy’s evidence that he did not make the remark attributed to him about the men in sunglasses.
	
	(v)	Generally, the applicant enjoyed cordial relations with his work-mates and went drinking and socialising with them.  He had been involved in a court case involving allegations of indecent exposure.  His fellow workers never passed comment on this.  It is difficult to believe that if they were subjecting him to sectarian harassment, they would not also have brought up this court case.
	
	(vi)	The applicant made no complaint to Mr Murphy or anyone else about the alleged harassment.  The Tribunal accepts that when harassment occurs, the victim will more often than not be inhibited from complaining by the situation in which he finds himself.  The Tribunal will normally be reluctant to find that conduct was not unwelcome or did not occur from the mere fact that no complaint was made or that there was a delay in making a complaint.  However, in the particular circumstances of this case, we find Mr Hempkin's failure to make a complaint surprising.  He and Mr Murphy had known each other for over 25 years.  They had enjoyed a good working relationship, and reference has already been made to the applicant’s high regard for Mr Murphy as a person.  We observed Mr Murphy in the witness box.  We have no doubt he could be a difficult man to work for, and is capable of being aggressive, but we are satisfied that he would not have tolerated or permitted sectarian harassment of the applicant.  His firm had an equal opportunities policy.  The applicant only made the claim of sectarian harassment after his work ended, and we are satisfied that his reason for doing so was to bolster his claim for unfair dismissal, with which we deal at paragraph 7 below.
	
4.	As far as the incidents involving third parties were concerned, when remarks about the Drumcree photograph were made, we are satisfied that the applicant has exaggerated these incidents.  They were two isolated incidents.  Mr Murphy told the applicant he need not go back to the premises in question, notwithstanding that his own enquiries showed that the applicant may have provoked the incidents.  The events were not sufficiently under Mr Murphy’s control that he could, by good employment practice, have prevented them occurring.  In fairness to the applicant he accepted this and did not pursue this aspect of his claim with any great vigour.
	
5.	The applicant claimed that as a result of the alleged harassment he developed a stomach ulcer and began to suffer migraine attacks.  He declined the opportunity to adduce medical evidence of these conditions, which he claimed he had not suffered from before.  The Tribunal accepts the evidence of Mr Murphy, that the applicant had always suffered from, and complained of, migraine.
	
6.	The Tribunal therefore is not satisfied that the applicant has proved he was subjected to sectarian harassment by his employer, and dismisses his complaint of unlawful discrimination.
	
7.	(i)	As far as the applicant’s claim of unfair dismissal is concerned, he alleges that on 16 October 2000 Mr Murphy drove up to where he was working with a digger and cursed at him and abused him for about five minutes.  He then got out of his car with his fists clenched, backed the applicant against a digger and said “You’re 
f---ing sacked” and told him to “get out of the yard as quick as you can while you still can”.  The applicant collected his lunchbox, threw the key of the digger into its shovel, and went home.  Subsequently he was phoned at home by Mr Murphy about the key.  In the course of this phone call Mr Murphy subjected him to further verbal abuse and threatened him.  Mrs Hempkin gave evidence that she was present during the time her husband took this call, claims to have heard it, and corroborates her husband’s account of its contents.  Mr Murphy agrees that he did phone, and was very angry, but denies threatening the applicant.  We accept his evidence on this point.
 	
	(ii)	The Tribunal also accepts Mr Murphy’s evidence that he did not tell Mr Hempkin he had been sacked.  We find that Mr Murphy told the applicant to lift a pallet.  The applicant refused.  This was not untypical of the applicant’s attitude, and Mr Murphy did tell him that if he were not prepared to do as he was asked, he should consider his position.
   	
	(iii)	The applicant’s reaction was to tell Mr Murphy that he (the applicant) had enough experience with machines to get a job anywhere and that Mr Murphy could “stick his f---ing job”.  He then got his lunchbox and walked out.

	(iv)	We find support for our findings at sub-paragraphs (ii) and (iii) in the following:
	
		(a)	In evidence the applicant said he did not know what Mr Murphy was complaining about when he allegedly abused him and started swearing at him.  While we do not say this is an impossible scenario, it would have been strange for Mr Murphy to act as alleged without giving any reason for being angry.
	
		(b)	We are satisfied that Mr Murphy did not want the applicant to leave.  He did have difficulties with the applicant, but nonetheless regarded him as a good enough worker (he had after all employed him on and off for 25 years).  He found the part-time hours the applicant worked useful to the business, and the applicant’s departure left a gap.
	
		(c)	Correspondence after the applicant’s termination of employment is more consistent with his resignation than his dismissal.  The applicant requested a P45 and the respondent attempted to clarify whether or not he had resigned.  Mr Murphy indicated that he would be happy for the applicant to continue working for him, and on 19 October 2000 offered him a meeting to discuss the matter.  Despite further correspondence the applicant did not take up this offer.
	
	(v)	We find that it was reasonable for the respondent to construe the applicant’s conduct as a resignation and to accept it as such.  It was not a case where Mr Murphy acted hastily in response to words spoken and action taken by the applicant in the heat of the moment, and proceeded to take them at face value.  He allowed a reasonable time to elapse and made proper enquiries before accepting the applicant’s resignation.
	
8.	The Tribunal finds that the applicant resigned.  His claim for unfair dismissal is also dismissed.	

Chairman:

Date and place of hearing:  3 and 4 June 2003 and 5 September 2003, Belfast

Date decision recorded in register and issued to parties: