FAIR EMPLOYMENT TRIBUNAL
CASE REF: 56/04FET
CLAIMANT: James Neil Rogers
RESPONDENTS: 1. Dunnes Stores (Bangor) Limited
2. Gerry McLornon
3. Paul Loughran
4. Stephen Kennedy
5. Claire McPeake
The unanimous decision of the Tribunal is that the claimant's claim of unlawful discrimination on the grounds of his religious belief contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 is dismissed.
The second, third, fourth and fifth respondents were dismissed as parties from the proceedings.
Constitution of Tribunal:
Chairman: Ms J Knight
Panel Members: Mr J Barbour
Mr J McCormick
The claimant was represented by Mr Brian McMurray (Advocate Belfast Citizen's Advice Bureau).
The respondents were represented by Mr Connor Hamill, Barrister-at-Law, instructed by Tughans Solicitors.
The issues for the Tribunal were whether the claimant suffered unlawful discrimination by reason of his religious belief when he was dismissed from his employment by the respondent company, and; whether the ground of the claimant's dismissal was a sham and whether he was dismissed as a result of publicity which arose as a result of a previous incident following from an instruction given to staff about the wearing of poppies on Remembrance Day.
The Tribunal considered the originating claim of the claimant, the respondents' responses, the witness statements and oral evidence of the claimant, Mr James Neil Rogers, and the witness statements and the oral evidence of the respondents' witnesses, Mr Stephen Kennedy, Ms Avril Stevenson, Mr Paul Loughran and Ms Claire McPeake. The Tribunal considered the agreed bundle of documentation and CCTV camera footage.
The Tribunal heard evidence from the parties in relation to both liability and remedy. The claimant had prepared a schedule of loss. It became apparent however that the claimant's documentary proof of loss of earnings was incomplete and that it would not be possible for this to be obtained before the end of the time allocated for the hearing. Therefore it was agreed at the end of the hearing and the Tribunal directed that the claimant should obtain the necessary documentation from his present employer and that the parties should endeavour to agree a Schedule of Loss to be sent to the Tribunal. The Tribunal would issue a decision in relation to the liability issues, after which a further hearing would be convened, if necessary, to address the issue of remedy.
Findings of Fact
After considering the evidence the Tribunal made the following findings of relevant fact:
Article 3(2) of the Fair Employment and Treatment Order 1998 provides that "a person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order, if –
(a) on either of those grounds, he treats that other less favourably than he treats or would treat other persons".
Article 3(3) states "A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
Article 19(1) provides "It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, -
(b) where that person is employed by him –
(iii) by dismissing him or by subjecting him to any other detriment."
The Burden of Proof
Section 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) provides that:
"Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent ----
a. has committed an act of unlawful discrimination or unlawful harassment against the claimant, or
b. is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant,
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 burden of proof regulations apply in relation to complaints presented to (but not determined by the Tribunal by) the Tribunal before 1 October 2004 as well as those presented on or after that date and therefore apply to the instant case. The Tribunal considered and applied the guidance of the Court of Appeal in the case of IGEN Limited and others v Wong, Chamberlin Solicitors and another v Emokpae, Brunel University v Webster 2005 IRLR 258. This guidance, which is set out in full, applies equally to cases of religious discrimination:
"(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as "such facts".
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word "could" in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
The Tribunal was referred to the cases of Shamoon v Chief Constable of the RUC 2003 IRLR 285 and Laing v Manchester City Council 2006 IRLR 748.
1. The Tribunal could not conclude from the facts found that the claimant's dismissal was connected either directly or indirectly to the poppy incident and the surrounding publicity. The Tribunal did not consider that there was any basis for the claimant's suspicion that the respondent blamed him for the adverse publicity which ensued. The Tribunal was satisfied that it was perceived by Mr Kennedy that the claimant had raised his concerns about the decision to ban the wearing of poppies, solely in the security context, rather than an objection to the decision on grounds of his personal and religious belief. It is clear to the Tribunal that the poppy incident was only raised as an issue by the claimant in retrospect and not until some time after he had lodged his originating complaint with the Tribunal and the subsequent appeal hearing. The Tribunal concluded that the claimant's contention that he was stunned at being dismissed as he felt that he had been doing a good job contradicted his evidence that he felt shunned as a result of the poppy incident. If he had felt shunned, the Tribunal would have expected a reference to the poppy incident to have been included in the originating claim to the Fair Employment Tribunal.
2. The Tribunal was satisfied that the reason for the claimant's dismissal was gross misconduct. From its own viewing of the CCTV footage the Tribunal did not accept the claimant's version of events of 4th January 2004. The Tribunal considered that the CCTV footage provided objective evidence of the unreliability of the claimant's evidence. The tribunal was further satisfied that the claimant understood the nature of the allegations which had been made against him and that if proven, the allegations of Mr Couchman would amount to gross misconduct. The respondent did have reasonable grounds for deciding that the claimant was guilty of gross misconduct and had assaulted another employee.
3. The tribunal was satisfied that claimant was not denied representation at the disciplinary and appeal hearings. The respondent informed him that he was entitled to be represented by a colleague or a trade union representative. This is in accordance with the LRA Code of Practice in force at the time. The claimant chose to be accompanied by his wife at the disciplinary hearing and by Mr Steenson at the appeal hearing. The respondent allowed them to be present even though neither were work colleagues of the claimant nor his trade union representative. The LRA Code of Practice is silent as to an employee's right to be accompanied at the investigation stage. The Tribunal did consider that the respondent's disciplinary policy and procedures did not comply with the Labour Relations Agency Code of Practice for disciplinary procedures, for example, no reference at all is made to the Employment Rights (Northern Ireland) Order 1996. The Tribunal was also of the view that there were shortcomings in the manner in which the investigation and disciplinary hearings were conducted by the respondent, notably the failure of the respondent to provide the claimant with the CCTV footage and copies of the witness statements until after he had been dismissed. However the tribunal was mindful that at the appeal stage of the disciplinary procedure, the claimant did have all the relevant material prior to the appeal hearing and that it was the claimant who withdrew prior to the conclusion of the process.
4. The issue for the Tribunal was not whether the claimant had been treated unfairly by the respondent in dismissing him but whether he had been treated less favourably on the grounds of his religious belief. The Tribunal was not satisfied that the claimant had, on a balance of probabilities, proved facts from which it could conclude, in the absence of an explanation from the respondent, that he had been subjected to religious discrimination. The onus is on the claimant to show on a balance of probabilities that the respondent treated him less favourably than another employee of a different religion from him in the same or not materially different circumstances. The claimant did not do this as during the hearing he withdrew his evidence of more favourable treatment by the respondent of two other of its employees, identified by the claimant as actual comparators and stated that he did not seek to compare himself with anyone else.
5. The Tribunal then considered whether there was any evidence to prove on a balance of probabilities that the claimant had been treated less favourably than a hypothetical comparator. The Tribunal accepted Mr Hamill's submission that the correct hypothetical comparator in this case was a Catholic or non-Protestant security manager against whom there was an allegation of assault by a co worker. There was no such evidence before the Tribunal from which it could conclude that such a hypothetical comparator would have been more favourably treated.
Accordingly the claimant's claim of religious discrimination is dismissed in its entirety.
Date and place of hearing: 16-18 October 2006, Belfast.
Date decision recorded in register and issued to parties: