CASE REF: 363/03 FET
CLAIMANT: Francis Foy
RESPONDENT: Moy Park Limited
The unanimous decision of the Tribunal is that the respondent is entitled to rely on the statutory defence set out in Article 36(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998. Accordingly, the respondent is not vicariously liable for the act of discrimination perpetrated by its employee. The claimant's claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Ms Turkington
Members: Mr Holland
The claimant was represented by Mr B Lundy, Barrister-at-Law, instructed by Agnew Andress Higgins, Solicitors.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Mr Conn Burns, Company Solicitor.
Sources of evidence
Mr John McLaughlin;
Mr Jim Quinn; and
Dr Paul Bell, Consultant Psychiatrist
Mr John Cromie;
Mr Ronnie Newell;
Mr Ian Hughes;
Miss Mandina Fulton;
Mr Gary Leslie; and
Mr James French
Contentions of the parties
Facts of the case
(a) The claimant was not satisfied that the company had taken sufficient steps to investigate the source of the sectarian remarks nor advised him of any measures to prevent a reoccurrence. Neither had the claimant been given any assurances regarding his personal safety in the company for the future.
(b) As a result of this incident, the claimant and his family had suffered extreme stress and the claimant sought compensation for injury to feelings and stress.
(c) The claimant had lost a considerable amount of earnings whilst off work due to sectarian harassment.
(d) The company had behaved wrongly at the start of this process by putting Mr Crawford and the claimant in a room without being accompanied which could have put the claimant in further danger.
This letter of appeal did not explicitly make any complaint in respect of delay during the investigation process.
Statement of law
"Liability of employers and principals
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Order as done by that other person as well as by him.
(3) Paragraph (2) applies whether the authority was—
(i) express or implied; or
(ii) given before or after the act in question was done.
(4) In proceedings brought under this Order 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 the same description."
"The onus is on the employer to establish his defence, and he can do that by showing either that he attempted to prevent the particular act of discrimination or that he attempted to prevent that kind of act in general. It may also be the case that the onus is discharged if there are no practical steps which the employer can take Balgobin and Francis v London Borough of Tower Hamlets  IRLR 401,  ICR 829, EAT) although in practice it may be anticipated that such circumstances will be rare. It is, however, a question of fact in every case whether the employer has taken such steps as were reasonably practicable to prevent the discrimination (cf Enterprise Glass Co Ltd v Miles,  ICR 787, EAT). For instance, it is no defence to assert that you once sent the personnel office a memo prohibiting discrimination, if you know (or should have known) that in practice the office disregards it. Proper training in the elements of discrimination law for those in supervisory positions might be seen as necessary in order to show the appropriate standard".
(i) The respondent had Equal Opportunities and Anti-Harassment Policies which were introduced in 1997.
(ii) The respondent's Anti-Harassment Policy made it clear that acts of the type committed by Mr Crawford, that is discriminatory or sectarian remarks, amounted to harassment and were not acceptable in the workplace.
(iii) 6,000 copies of the respondent's Anti-Harassment Policy were produced and distributed to all the respondent's employees in 1997. Copies were distributed to weekly paid staff in batches along with their pay-slips. The Tribunal considers this to be an efficient method of distribution. The Tribunal is satisfied that it is more likely than not that both Mr Crawford and the claimant received copies of the Policy in 1997.
(iv) Copies of the Anti-Harassment Policy were placed on all staff notice boards, which were located in areas readily accessible to all employees, for example, outside the staff canteen and in locker rooms.
(v) After 1997, copies of the Anti-Harassment Policy were provided to all new employees of the respondent and the Policy was covered during induction for new employees.
(vi) The respondent's managers received formal training in relation to the respondent's Anti-Harassment Policy between 1997 and 2003.
(vii) The respondent normally responded to and investigated complaints of harassment promptly.
(viii) Designated Harassment Advisers were appointed under the respondent's Anti-Harassment Policy. The Harassment Advisers received formal training in counselling skills and in relation to the respondent's Policy.
(ix) The names of the Harassment Advisers were displayed on the notice boards and employees could approach a Harassment Adviser for confidential advice and support in relation to any incident of harassment.
(x) On a previous occasion when the claimant had complained of harassment, the perpetrator had, following an investigation, been dismissed by the respondent under its Disciplinary Policy.
Respondent's application for costs
"(2) A Tribunal or chairman shall consider making a Costs Order against a paying party where, in the opinion of the Tribunal or chairman (as the case may be), any of the circumstances in Paragraph (3) apply. Having so considered, the Tribunal or chairman may make a Costs Order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in Paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived".
Date and place of hearing: 14 - 15 June 2006;
17 - 18 August 2006; and
22 September 2006, Belfast
Date decision recorded in register and issued to parties: