FAIR EMPLOYMENT TRIBUNAL

CASE REF:        5705/09
     88/09FET
3825/09

CLAIMANT:		Vincent Jones

RESPONDENTS:	Cullen Cleaning Limited and Others

DECISION

The unanimous decision of the Tribunal is that the claimant’s claims are not well-founded.  Accordingly, all of those claims are dismissed.

Constitution of Tribunal:
Chairman:		Mr P Buggy
Members:		Ms C Stewart
			Mr I Foster

Appearances:

The claimant was self-represented.

The respondents were represented by Mr P Moore of Employment Law Consultancy Limited.

REASONS

1.	The claimant is a middle aged American male.  He is a practising Roman Catholic (“a Catholic”).  

2.	The claimant was briefly employed by the first named respondent, Cullen Cleaning Limited (“the company”), in January 2009.  His employment with the company came to an end because he was dismissed.

3.	In these proceedings, the claimant makes claims, against the company and against the other respondents, in respect of his dismissal and in respect of various instances of alleged mistreatment. 

4.	The claimant says that the various instances of alleged mistreatment and the dismissal itself, constituted unlawful discriminatory treatment, contrary to various employment discrimination enactments.

5.	The claimant says that  the person who was his supervisor within the company (who we will call “Mr X”) and the person who was his supervisor’s immediate line manager (who we will call “Ms Y”) were the perpetrators of the various instances of mistreatment, including the act of  dismissal itself.  He says that the company is legally responsible for those discriminatory acts on the part of Mr X and Ms Y.

The Cases

6.	In this Decision, we refer to 88/09FET as “Case 1A”, to Case 3825/09 as “Case 1B” and to Case 5705/09 as “Case 2”.

7.	Cases 1A and 1B are based on the same factual allegations.  Case 2 is based on one allegation (which was not contained within Cases 1A and 1B).  

8.	In Case 1A (the case brought under the Fair Employment and Treatment (Northern Ireland) Order 1998), the claimant does not claim that his dismissal was an act of religious or political discrimination.  However, in that Case, he does claim that he has been subjected to two acts of discriminatory detrimental treatment, that discrimination taking the form of religious or political discrimination. Those allegations are referred to below, respectively, as the “Londonderry” allegation and the “Rangers” allegation.

9.	In Case 1B, the claimant complains that his dismissal was an unlawful racially discriminatory dismissal (because it was caused by anti-Americanism).  He also complains of various acts of racial discrimination which, the claimant says, were perpetrated against him during the course of his period of employment within the company.  Below we refer to those allegations, respectively, as the “interview positioning” allegation, the “privacy intrusion” allegation, the “Yankie daughter” allegation and the “marbles” allegation.

10.	In Case 1B, the claimant claims that his dismissal was also an unlawful dismissal, contrary to the Sex Discrimination (Northern Ireland) Order 1976, in that it was a sexually discriminatory dismissal.  He also complains that he has been subjected to various instances of sexually discriminatory detrimental treatment during the course of his employment with the company.  Those allegations of detrimental treatment are based on what we refer to below as the “video” allegation, the “you’re married” allegation (both of which are contained in Case 1B) and the “lift “allegation (which is the only factual matter complained of in Case 2).

11.	Ultimately, Cases 1A, 1B and 2 were all considered together.  In April, we considered the evidence which was relevant generally or which was mainly of relevance in the context of Cases 1A and 1B.  In May, we heard the evidence which was mainly of relevance in the context of Case 2; and then, immediately afterwards, we considered the oral submissions of the parties in respect of all of the issues in all of the three cases.  

Overview of this Decision

12.	In the following paragraphs we deal with the issues in the following order:

(1)	First, we deal with the allegations of racially discriminatory detrimental treatment.

	(2)	Then we deal with the allegations of discriminatory detrimental treatment which are the basis of claims of religious and/or political discrimination.

	(3)	We go on to deal with the allegations of sexually discriminatory detrimental treatment.

	(4)	Next, we deal with the claims that the claimant’s dismissal was racially discriminatory and sexually discriminatory.

	(5)	We then explain the conclusions which we have arrived at in respect of the credibility of the various witnesses.

	(6)	We then set out some details about the context of this litigation. 

The law on “detriment”

13.	What are the legal principles which have to be applied in deciding whether or not particular conduct constitutes detrimental treatment, for the purposes of the Race Relations Order 1997, for the purposes of the Fair Employment and Treatment Order 1998, and for the purposes of the Sex Discrimination Order 1976?  The test is the same under each of those three separate pieces of legislation.  In every instance, the position is as follows.  It is sufficient to show that a reasonable employee would or might take the view that he or she had been disadvantaged in the circumstances in which that employee would thereafter have to work.  A claimant is not subjected to detrimental treatment merely because that treatment gives rise to an unjustified sense of grievance on his part.  In considering whether or not any particular treatment constitutes “detrimental” treatment, it is necessary and appropriate to have regard to all of the tribunal’s findings of fact in the case (and not just to those findings of fact which are of particular relevance in the context of that particular treatment).

The allegations of racially discriminatory detrimental treatment

14.	This group of allegations consists of the following:-

		 (1)	The interview positioning allegation,

		 (2)	The privacy intrusion allegation,

		 (3)	The Yankee daughter allegation, and

		 (4)	The marbles allegation.

15.	Our findings and conclusions in relation to the interview positioning allegation are as follows. When the claimant was interviewed in respect of the relevant vacancy (a part-time cleaning post) he was interviewed by Y, the company’s area manager, in the presence of X (who was going to be his supervisor).  The claimant objected to the presence of X.  However, his claim of racially discriminatory detrimental treatment is not based on the presence of X, instead, it is based on X’s positioning.  According to the claimant, X was not seated in the claimant’s line of vision during the interview.  Instead, he was seated directly opposite from the claimant.  The claimant says that he found this to be intimidating.

16.	Our conclusions on that matter are as follows.	This claim of racial discrimination fails because the treatment complained of does not constitute detrimental treatment.  An employer must have a broad measure of discretion as to where it seats an interviewer in the interview room.  We do not accept that the positioning of X was intended to be intimidating to the claimant, or that any reasonable job applicant would have been intimidated by the positioning of X.

17.	The next allegation of racial discrimination is the “privacy intrusion” allegation.  According to that allegation, Y, during the course of the recruitment interview, asked the claimant various questions which were unduly intrusive; that unwarranted intrusion into the claimant’s privacy constituted detrimental treatment; and that treatment was racially motivated detrimental treatment.

18.	Even if we assume, in favour of the claimant, that he was indeed asked all of the questions which he claims Y asked him during the interview, we are satisfied that the posing of those particular questions did not constitute detrimental treatment, even when the posing of those questions is viewed against the background of our findings of fact in this case generally.  (The questions to which the claimant took particular objection, which were allegedly asked during the course of the interview, were the following:	How long have you been here? 	Did you marry an Irish girl? Where did you meet here? Where are you from?)

19.	The next allegation of racially discriminatory detrimental treatment arises out of what Y allegedly said to the claimant when he was being sacked.  This is the “Yankee daughter” allegation.

20.	According to that allegation, there was a discussion on the phone, between the claimant and Y, about the number of times that Y had telephoned his house on a particular date.  According to this allegation, the claimant told Y that the claimant’s daughter had said that a woman had called only once.  According to the claimant, Y’s response to that point was to say:  “Your Yankee daughter is lying”.

21.	In her testimony to us, Y denied having made any such remark.  On this point, there is a clear conflict of evidence between the claimant’s testimony on the one hand and Y’s testimony on the other hand.  We are satisfied that Y’s testimony on this point is true and that the claimant’s evidence on this point is untrue.  Therefore, this allegation must be dismissed because it is not factually well-founded.

22.	The last of the racial discrimination allegations is the “marbles” allegation.  According to that allegation, on one occasion during the claimant’s brief period of employment with the company, X said to the claimant that he would throw a marble on the floor and the claimant could then fall down and break his neck and go back to his (the claimant’s) own country.

23.	There was a clear conflict of evidence between the claimant on the one hand and X on the other hand in relation to that allegation.  X said that no such incident ever occurred.  We are satisfied that X’s evidence on that point was truthful testimony and that the claimant’s testimony on this issue was untruthful.  Therefore, this claim of racial discrimination is not factually well-founded and must be dismissed.

The allegations of religious and political discrimination

24.	There are two such allegations.

25.	The first such allegation is the “Londonderry” allegation. Part of the context of this allegation is that Y comes from a Catholic community background.  According to the claimant, during the course of the interview, there was a reference to the place of origin of Y.  (She comes from County Londonderry).   According to this allegation, Y referred to herself as having come from a location in “Derry”, to which the claimant responded with a remark along the lines of “Or Londonderry, whichever you prefer”.

26.	According to this allegation, the effect of that remark was to make Y irate.  However, when the claimant was asked, during the course of his testimony, to identify the words and actions which indicated that Y was irate, he told us only that he thought that her face had become red, that her eyes were glowing, that she started doodling, and that she gave him a “mean look”.  He could not remember anything else which she said or did in response to his “Londonderry” remark.

27.	Even if we make the assumption that the claimant is telling the truth on this matter, we are satisfied that the conduct complained of does not amount to detrimental treatment.  Whether somebody’s face has become red, or whether their eyes are glowing, or whether they are giving us a “mean look”, are all matters of subjective perception.  The combination of words and actions which are referred to by the claimant in the context of this allegation is a combination which is not   sufficiently serious to constitute detrimental treatment within the meaning of the fair employment legislation.

28.	The second allegation of religious or political discrimination is the “Rangers” allegation.

29.	The gist of that allegation is as follows.  According to the claimant, X knew the claimant was from a “Catholic” area of Belfast.  X first told the claimant that he (X) was from “A” (which is a particular area of Belfast which is often regarded as a “Catholic” working-class area), and that he was a Celtic fan.  Then, according to the allegation, X told the claimant that he (X) was from “B” (an area of Belfast which is often regarded as a “Protestant” working-class area), and that he was a Rangers fan.  Then, the allegation continues, X again said that he was from A (the Catholic area already referred to), but this time reiterated that he was a Rangers fan.

30.	Having heard the testimony of the claimant and of X during the course of these proceedings, we are satisfied that the position is as follows.  X did tell the claimant that he was from A and that he was a Rangers fan.  He did not ever suggest to the claimant that he (X) was from B, or that he was a Celtic fan.  In telling the claimant that he was from A and that he was a Rangers fan, X was telling the claimant the truth; his statement about that matter was unaffected by religious or political bias.  It was merely a statement of fact.  By providing the claimant with that information, X was not subjecting the claimant to any detrimental treatment.  Against that background, and for all those reasons, the Rangers allegation is not a well-founded allegation of religious or political discrimination.

Allegations of sexually discriminatory detrimental treatment

31.	This group of allegations consists of the “video” allegation, the “you’re married” allegation and the “lift” allegation.

32.	According to the “video” allegation, the position was as follows.  The claimant turned up for work early on the morning of Tuesday 20 January 2009. X came walking up the street.   When he reached the spot where the claimant was waiting, he handed him his (X’s) telephone, so that the claimant could speak to Y, who had by that point been telephoned by X.  When the claimant was handed the telephone, there was a video playing on that telephone.  According to the claimant, that video 
	(the video which was playing on that telephone, at that moment)  was a pornographic video; and the woman in that video was someone who looked  very like the claimant’s estranged wife.  According to this allegation, Y at that point told the claimant, over the telephone, that he was being sacked and she immediately thereafter asked him, laughing, how he liked the video.

33.	In their oral testimony in this case, both X and Y denied that there had been any video.  We accept their denials.  We are satisfied that there was no video.  Therefore, the video allegation is not a well-founded allegation of sex discrimination, because it is a false allegation.

34.	The next sexually discriminatory detrimental treatment allegation is the “You’re married” allegation.  According to this allegation, during the claimant’s brief period of employment with the company, at a place near the escalator, Y:

		 “… stood there staring at my groin saying you’re married, you’re married”.

35.	Y denied that this alleged incident ever took place.  We believe that denial.  We are satisfied that this allegation is an untruthful allegation.

36.	The final allegation of sexually discriminatory detrimental treatment is the allegation that X, who is male, while in a lift along with the claimant, made a gesture which indicated that he (X) wished to have sexual relations with the claimant.  We are satisfied that this is a false allegation, and that no such conduct occurred.

The discriminatory dismissal allegations

37.	The claimant claims that his dismissal by the respondent company constituted an unlawfully discriminatory dismissal, contrary to the race relations legislation (because it was racially discriminatory) and contrary to the sex discrimination legislation (because it was sexually discriminatory).

38.	In our view, the claimant was indeed dismissed, and the process by which he was dismissed was an unfair process, but we are also satisfied that the dismissal was not tainted by racial discrimination or by sex discrimination.

39.	In arriving at that overall conclusion, we took account of the following findings of fact and of the following conclusions.

40.	Y is employed by the company as an Area Manager.  In that capacity, X reports directly to her.  When the claimant was appointed as a part-time cleaner by the company, X became the claimant’s immediate line manager.

41.	The claimant was interviewed for one of two cleaning positions by Y and by X on 9 January 2009.  His interview was successful.   He was offered and accepted a position, which was for two hours per day, seven days a week.  The claimant began work on Thursday, 15 January 2009, at the relevant location, which was a large department store in the centre of Belfast (“the Store”).  He also worked on Friday, 16 January 2009.  However, as he admits himself, he failed to attend work at the store on Saturday, 17 January 2009, and he did not speak to Y on that date about his absence.  Y telephoned the claimant’s home number on the Saturday.  She spoke to a person who informed Y that she (the recipient of the call) was the claimant’s daughter, and that he was “in bed”.

42.	The claimant did not attend for work, during the hours when cleaning was being carried out at the Store, on 18 or 19 January either.

43.	The claimant did turn up for work on Tuesday, 20 January.  X saw the claimant in the distance, when X was himself approaching the Store, prior to the start of the cleaning shift on that date.

44.	When X saw the claimant in the distance, X rang Y.  She asked X to put the claimant on to her.  X did so. There was some discussion, between the claimant and Y, about Y having telephoned the claimant’s house on the previous Saturday. The claimant was told by Y to go home until she “got back to him”. (In effect, he was being told that he was being dismissed).  The claimant swore at Y and threw the telephone onto the ground.

45.	The claimant’s understanding of the outcome of this conversation with Y was that he would not be offered any future work by the company.  That was a well-founded
perception on his part.  In effect, he was being sacked.  He was being sacked without having been given an adequate opportunity to explain his position, or to put forward any mitigating factors.

46.	Nevertheless, we are satisfied that this dismissal was not racially discriminatory. We are satisfied that Y was the person who decided to dispense with the services of the claimant.  Yet Y was the very person who had appointed the claimant in the first place.  The reason now being given by the employer for this dismissal (the failure of the claimant to turn up for work on several dates, at the time in which the cleaning was actually taking place), is a plausible non-discriminatory explanation for the decision to tell him to go home until Y got back to him. We believe that that explanation is the true explanation for the dismissal.

47.	For the reasons given above, we are also satisfied that the claimant’s dismissal was not sexually discriminatory.  Indeed, as has already been noted above, we are satisfied that each of the claimant’s allegations of sexually discriminatory detrimental treatment is a false allegation.  Accordingly, Y had no motive for treating the claimant less favourably, in the circumstances of this case, than she would have treated a female in similar circumstances.

Credibility

48.	Where there was a clear conflict of testimony between the claimant and X, we have preferred the evidence of X. Where there was a clear conflict of evidence between the claimant and Y, we have preferred the evidence of Y. Where there was a conflict of evidence between the evidence given by the claimant on the one hand, and the evidence given by X and Y on the other hand, we have preferred the evidence of X and Y.

49.	We have arrived at our credibility conclusions against the following background and for the following reasons.

50.	In its response in these proceedings, the company failed to frankly acknowledge that the effect of what the claimant was being told, at the time of the dismissal, was that he was being sacked.  However, we have carefully noted the evidence of X and the evidence of Y.  In considering the credibility of X, we took account of the manner in which he gave his evidence.  He was forthright and clear.  His evidence was internally consistent.   His evidence was also consistent with the known facts.  Y gave her evidence in a clear and forthright manner.  Her evidence was internally consistent.  Her evidence was not inconsistent with the known facts.

51.	On the other hand, in the course of his own testimony, the claimant was vague and evasive on a number of matters.  There were various internal inconsistencies in his evidence.

52.	In Cases 1A and 1B claim form, the claimant unequivocally stated that the pornographic video (the video which was allegedly playing when the claimant was being sacked) was a video of the claimant’s estranged wife. However, in the course of his oral testimony at this hearing, the claimant told us that now he was not sure that it was his wife who was on the video.

53.	At one point during his oral testimony, the claimant suggested that there might possibly have been two phones in use by X at the time of the dismissal.   The implication of that provisionally revised version of events, presumably, is that one telephone was used to convey the news of the dismissal, while the other (the videophone) was simultaneously being used to taunt the claimant. We consider that it is highly implausible that the woman who freely decided to appoint the claimant a few days earlier would arrange an elaborate scheme for taunting the claimant (through the playing of the video) and  it is even more unlikely that she would carry out  that taunting scheme at the very moment that she was dismissing him.

54.	We consider it to be inherently implausible (although not of course impossible) that  the claimant was the subject of sexual attentions from both of the only two figures of authority within the company with whom he had significant dealings, during the course of his very brief (four hours) of active employment in the company.

55.	We also note that the lift allegation was not contained in the claimant’s first letter of grievance to the respondent and was not a feature of Cases 1A and 1B.  It was an afterthought.  We think that if the conduct which is the subject of the lift allegation had really happened, it would have been a prominent feature of the first statement of grievance, and it would have been a prominent feature of the first claim form.

General context

56.	The claimant told us the following. He came to Northern Ireland in 1994 and has been here most of the time since then. Since 2004, he has been continually resident in Northern Ireland. In the past, he had lodged four previous employment or unlawful discrimination claims, against four different respondents. The first of those, in 1996, ended when the claimant was paid £336 for unpaid wages.  The other three were resolved by agreement, on the basis that the claimant accepted sums of money and discontinued his claims.  In the first of that group of cases, the claimant accepted £300, in the second of those cases, he accepted approximately £2,000.  In the third of those cases, he accepted £5,555.55.
.

57.	The claimant also told us that, since 1994, he had made between 15 and 20 separate claims, in respect of 15-20 separate and distinct alleged incidents of personal injuries.  The claimant was “paid out” in respect of all of those claims.

Chairman:

Date and place of hearing: 	15 April, 16 April and 28 May 2010.

Date decision recorded in register and issued to parties: