FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   256/09 FET
7564/09
90/10 FET
1697/10

CLAIMANT:		Darren Grainger

RESPONDENT:		Ministry of Defence 

DECISION

The complaints of unlawful harassment on the grounds of religious belief and/or political opinion, direct discrimination on the grounds of religious belief and/or political opinion, victimisation on the grounds of a protected act in relation to either religious belief and/or political opinion, harassment on the grounds of race and automatically unfair dismissal for raising health & safety complaints were withdrawn in the course of the hearing and dismissed.  

In relation to the remaining claim of unfair dismissal, the unanimous decision of the Tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mr J Devlin
				Mr D Walls

Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by The Crown Solicitor’s Office.

Background

1.	The claimant was employed as a lifeguard at a swimming pool in the RAF Camp at Aldergrove from 4 July 1994 to 2 April 2010, when he was summarily dismissed for making a malicious complaint about another lifeguard who is identified for the purposes of this decision as ‘Mr B’.  

2.	The swimming pool had been under the control of the Army, rather than the RAF, when the claimant commenced employment in 1994.  In or around 2000, the RAF took over the running of the pool and indeed the running of the camp at Aldergrove.  At all relevant times, the two relevant civilian lifeguards, ie the claimant and Mr B, were employees of the Ministry of Defence, and were line-managed by a Sergeant and in turn by a Flight Lieutenant.  

Issues

3.	The complaint lodged by the claimant, as originally formulated, and then explained at a Case Management Discussion on 10 November 2010, included a complaint of unfair dismissal, harassment on the grounds of religious belief and/or political opinion, direct discrimination on the grounds of religious belief and/or political opinion, victimisation on the grounds of a protected act in relation to either religious belief and/or political opinion, harassment on the grounds of race and automatically unfair dismissal for raising health & safety complaints.  

4.	At the start of the hearing, Mr Potter, for the claimant, indicated that following extensive discussions, the scope of the claim was to be limited to two matters only; to a complaint of unfair dismissal and a complaint that that dismissal had been an act of victimisation, the relevant protected acts being complaints of religious belief and/or political opinion harassment and a complaint of racial harassment, both made by the claimant about Mr B.  

5.	On the third day of the hearing (discounting the reading day which was spent reading the witness statements and relevant documentation) the claimant withdrew the victimisation claim.  The only remaining issue for the Tribunal to determine was whether the summary dismissal of the claimant was a fair dismissal for the purposes of the Employment Rights (Northern Ireland) Order 1996.  

6.	Mr Potter, on behalf of the claimant, submitted that the argument he would make on behalf of the claimant was that there had been insufficient evidence before the decision-makers to allow them to properly conclude that the claimant had made a malicious complaint about Mr B and therefore to allow them to summarily dismiss the claimant for that offence.  Mr Coll, for the respondent, argued that there had been ample evidence before the decision-makers to enable them to reach that conclusion and that the penalty of summary dismissal had been appropriate.  

The hearing

7.	The Tribunal read witness statements comprising 136 pages before the hearing.  At the hearing, the witnesses went straight to cross-examination and re-examination on the basis of their witness statements.  The following witnesses were            cross-examined and re-examined; the claimant, Group Captain C, who referred the charge of making a malicious complaint for consideration under the respondent’s disciplinary procedure, Brigadier S, the decision-maker at first instance in the disciplinary procedure and Major General T, the decision-maker on appeal.  The Tribunal was also referred to documentary evidence comprising some 1,280 pages in several Lever Arch folders.

Relevant findings of fact

8.	The claimant and Mr B were both employed as lifeguards by the respondent and worked together at the swimming pool in the Aldergrove RAF camp.

9.	The working relationship between the two men had broken down by early 2008.  The claimant stated in evidence that he only spoke to Mr B when he had to speak to him in relation to work and that he did not speak to him at all for lengthy periods of time.  

10.	Matters eventually came to a head on 8 August 2008.  An argument occurred between the claimant and Mr B which appears to have centred on which of the two lifeguards was likely to obtain promotion to the post of pool supervisor.  It is by no means clear how the argument started or the extent to which either or both of the individuals contributed to that argument.  However, that is not the issue before the Tribunal and no finding of fact in that respect is necessary.  

11.	Mr B’s version of events was that he had telephoned Flight Lieutenant P, his second line manager, on that day in a distressed state to complain about the claimant’s treatment of him.  He followed this up with a letter of 11 August 2008.  Mr B complained that he received abuse and ‘silent treatment’ from the claimant and that this was causing him stress.  He included the words:-

“Perhaps all the blame doesn’t lie with [the claimant].  In recent times you and your staff have had issues with him, but no matter what happens he brings his grievances back to the pool and vents his frustration on me.  I feel that I can’t have any sort of working relationship with yourself or the PED staff as I am in fear of backlash I will get back from [the claimant].  I cannot take any more of the verbal abuse that [the claimant] directs towards you and your staff behind your backs.  On a couple of occasions I have had to walk away from [the claimant] because my anger and frustration has reached such levels that I became scared as to what my reaction would be and I don’t want to be put in that situation ever again.  I have tried to help [the claimant] on numerous occasions by writing letters backing him up on his recent disciplinary charge and reminding him about the correct uniform, whilst on poolside, but still all I get in return is more verbal abuse and then silent treatment for the entire week.”

12.	It was not in dispute that Mr B had told the claimant, in the course of the argument on 8 August 2008, that he was going to lodge a complaint about the claimant.

13.	It is also not in dispute that the claimant, very shortly after being told of that potential complaint against him from Mr B, stopped Flight Lieutenant P, who was on his way home, and alleged that he had been threatened by Mr B.  He told                 Flight Lieutenant P that Mr B had said:-

		“Grow up and fuck off because I lose it and beat you up.”

The claimant then went on prearranged annual leave for the following two weeks and, immediately on his return, lodged a written complaint and a written grievance.  

14.	The written complaint dated 27 August 2008 stated that Mr B:-

“Said he would beat me up and called me a ball-bag several times.  This is the second time he has threatened me in recent months.”

15.	The written grievance, dated one day later on 28 August 2008, stated:-

“On Friday 8th of August 2008 I was threatened with violence and verbally abused by B at approximately 1530.  I reported this incident to [Flight Lieutenant P] at 1700 outside the guardroom.  This is the second time in several months I have been threatened with violence by [B].  He also consistently bumps into me when walking past me.  This happened in the pool office.  He was going on about how much he didn’t like me and started calling me childish names etc.  I said to him, do not talk to me if you don’t like me.  He then went bright red and said if I spoke one more word to him that he would put my head through the glass panel of the pool office.  I would like to highlight other issues which have been happening this year.  Throughout my recent case with PPPA, [the claimant] consistently played songs with his guitar, making up lyrics to the effect of me getting sacked.  He also makes up racist and stereo typical lyrics regarding my wife.  This would happen on a daily basis.  I can no longer take these type of abuse in my place of work.  I feel very threatened by his very presence.  He has violently attacked staff in the past.  This can be confirmed by a Major ____________ and Warrant Officer _____________.”

16.	In his evidence to the Tribunal, the claimant further expanded his complaint against Mr B to include that ‘he was very bitter’, that he painted the Sinn Fein office and a Hibernian hall in Randalstown without payment, that he always referred to ‘Ireland’ and not ‘Northern Ireland’, that he got too close to officers’ wives, and that he played recorded sectarian music on his laptop in the pool building including a song entitled ‘Up the IRA’.  

	None of these matters were raised by the claimant earlier in relation to his complaint, his grievance or in the course of the disciplinary proceedings.  They were therefore not before the respondent when the decision to dismiss was made initially by Brigadier S or confirmed on appeal by Major General T.  Nevertheless the fact that these allegations, some of which would have been potentially very relevant to the claimant’s stated position of fearing violence from Mr B, were not made until the Tribunal hearing, is something that the Tribunal can properly take into account when assessing the credibility of the claimant.  

	However, when determining the reasonableness of the decision to dismiss, the Tribunal is conscious that it must focus, and focus exclusively, on the evidence that was before the respondent when that decision to dismiss was made.  

17.	Mr B decided not to proceed with his complaint against the claimant.  He indicated to line management that he was concerned that continuing a complaint against the claimant might have repercussions outside work.  

18.	Ms O, a civilian harassment investigation officer, was appointed to investigate the claimant’s complaint against Mr B.  She took statements from the claimant, Flight Lieutenant P, Sergeant No 2 (the current first line manager), Sergeant No 1 (the previous first line manager), two Corporals and Mr B.  The claimant was formally interviewed on 9 January 2009 in connection with his complaint of harassment.  He stated that on a Friday in February 2008 (he could not remember the exact date) Mr B had flown off the handle and had stated:-

“If you open your mouth one more time, I’ll put your head through the glass window.”

The claimant stated that he had been shocked but that he had decided not to complain about the incident.  On Friday 8 August 2008, Mr B stated that he was going to apply for the new pool supervisor’s post.  When the claimant stated that he was also going to apply, he stated that Mr B went ‘red with anger’ and said:-

	“If I lose my temper here I will knock you out.”

“I’m going to put a letter of complaint in against you, I can’t work with you anymore.’

“You’re a ball-bag, you’re a ball-bag.”

19.	The claimant further alleged that Mr B ‘likes to instil fear in people’ and that Mr B had boasted about threatening a union representative and also the swimming pool maintenance operator.  He also alleged that Mr B had boasted of beating up two chefs in the camp.  He stated that when Mr B ‘gets angry’:-

“It is pure anger, he becomes very red, agitated and has an aggressive stance as if he’s about to thump you.”

The claimant further alleged that Mr B bragged about his aggressive behaviour and he further alleged that Mr B had been thrown off a building site for hitting someone and that he had threatened a man in a bar after a house purchase had fallen through.  He also alleged that Mr B played the guitar in his office and had made up songs about the IRA and the claimant’s wife.  

20.	The trade union representative and the pool maintenance operator who the claimant alleged had been threatened by Mr B were not called to give evidence by the claimant.  The claimant alleged to the Tribunal that the pool maintenance operator had been threatened with violence if he gave evidence in favour of the claimant.  When he was asked by the Tribunal whether a Witness Attendance Order had been sought on his behalf of the pool maintenance operator, the claimant told the Tribunal that he had been advised by his solicitor that since that this was not a criminal case, that was not possible.  The Tribunal does not accept this evidence.  The Tribunal made plain to the claimant that an allegation that a witness had been threatened with violence if that witness were to give evidence in internal disciplinary proceedings before a Fair Employment Tribunal was a serious matter and one which it would have expected to have been brought to its attention immediately by the experienced solicitors who were acting on the claimant’s behalf.  If the respondent had not properly investigated the disciplinary charge by interviewing relevant witnesses that would have been potentially significant in relation to the unfair dismissal claim.

	Ms Smith, in her investigation report, had recorded only that the pool maintenance operator did not want to get involved in the matter.

21.	The allegations made by the claimant by January 2009 were wide-ranging.  He had painted the picture of Mr B being someone who liked to instil fear in people, that he had bragged or boasted about using violence and that he was aggressive.  If that had been the case, it would have been reasonable for the respondent to expect some corroboration of this evidence from other witnesses.  Someone who was violent, who boasted they had been violent and who went red in the face with anger could hardly past unnoticed by those with whom he worked.  There was no such corroboration.

22.	When interviewed by Ms O, Flight Lieutenant P was recorded as having said:-

“Mr B likes to chat, he is very polite and he has never seen Mr B lose his temper with anyone.”

	In contrast, Flight Lieutenant P criticised the claimant’s behaviour:-

“The claimant caused many difficulties at work and he has had to speak to him many times about the way he speaks to him and his behaviour towards pool users.”

23.	Sergeant 1 stated:-

“That Mr B was very friendly and chatty.  He had never seen him lose his temper or become angry.  B is a team player and just gets on with his job.  B likes to keep busy, is flexible and be the first volunteer for the more mundane jobs in the gym.”

24.	One of the Corporals interviewed is recorded as having stated:-

“[B] is always happy to help out; if you needed something doing he would ask [B] as he didn’t want the hassle from [the claimant].”

“He never saw B lose his temper or shout at anyone.  They have talked about situations they have got themselves into when they were younger but he has never heard B brag about being ‘fisty’.”

“B was teaching himself how to play the guitar and had heard him play many times, but not any made-up songs.”

“Sergeant 2 was fair to both parties, despite the difficulties the claimant caused with his interference.  During a training session regarding the proper use of the spinal board, the claimant kept interrupting and then refused to sign the certificate to say that he had received the training for no particular reason.”

25.	It was not in dispute at any stage during the disciplinary process or before this Tribunal that the claimant had not made any complaint about either the alleged incident in February 2008 or the alleged racial or sectarian abuse that he told the respondent and the Tribunal that he had suffered at Mr B’s hands on a daily basis between February and 8 August 2008, before he was informed by Mr B that a complaint would be made against him.  

26.	The claimant was clearly someone who was not afraid to complain or to assert his rights.  His evidence was that he had raised matters frequently with line management, including complaints about health & safety issues.  Sergeant 1 described him to the HIO as disrespectful and obstructive.  He stated that the claimant had been verbally abusive over the telephone and that he had been very argumentative.

27.	Against that background, a reasonable employer would be entitled to wonder how likely it was that the claimant would have tolerated a threat of violence in February 2008, and thereafter daily sectarian and racial abuse, particularly when that included racial abuse directed at his wife, without complaint for a period of six months.  The claimant also made it plain to the HIO that he did not like Mr B, at least since February 2008, which made his failure to lodge an earlier complaint all the more difficult to understand.

28.	On 20 May 2009, Ms O, the Harassment Investigation Officer, submitted her report to Group Captain C, who was the deciding officer tasked with determining the harassment complaint made by the claimant about Mr B.  She dealt with the two complaints made by the claimant about the alleged incident on a Friday in February 2008 and the alleged incident on Friday 8 August 2008.  She also dealt with the additional matters raised by the claimant, ie that Mr B was an angry and aggressive man who intimidates people, instils fear and who had threatened the claimant with violence, that Mr B played his guitar in the office and made up songs about the IRA, the claimant’s wife and anything to annoy the claimant, and an additional allegation that the claimant had been sent an e-mail by Mr B wishing him Happy New Year in December 2008.  

29.	Ms Smith concluded that there were no witnesses to either of the two incidents in February 2008 or August 2008 but that statements obtained from Mr B, Flight Lieutenant P, Corporal P and Sergeant 1 provided details of an aggressive and obstructive personality demonstrated by the claimant.  Flight Lieutenant P, Corporal P and Sergeant 2 stated they had never seen Mr B lose his temper.  There was no evidence of aggressive behaviour being demonstrated by the claimant.

30.	On his return from a period of sick leave, the claimant was advised that Group Captain C had determined that his complaint against Mr B was unfounded and further that it was malicious.  He was suspended pending disciplinary action.  

31.	A fact-finding interview was held on 27 October 2009 between Group Captain C and the claimant who was represented by a Ms Trainor from Unite.  The claimant reiterated his position that Mr B had ‘lost it’ on 8 August 2008 and that he had ‘wanted to knock him out’.  He criticised the way in Mr B helped people in the pool with their swimming and the way in which he was ‘always chatting up army military personnel and wives’.  He stated that he, the claimant, would only approach them if they asked him specifically for help.  When asked by Group Captain C why Mr B’s willingness to help people was a matter for criticism, the claimant stated that it was because Mr B had ‘no respect and has contempt for these people’.  

32.	By letter dated 10 January 2010, the claimant was invited to a formal disciplinary hearing on 17 February 2010.  That disciplinary interview was to be chaired by Brigadier S.  The Brigadier was assisted by an independent member and a PPPA Case Adviser.  

33.	At the disciplinary hearing, the claimant stated that his complaints against Mr B were accurate.  He said his only witness, the pool maintenance worker, had been threatened and had therefore not given a statement.  No evidence of any threat was produced.

34.	The claimant was summarily dismissed for making a malicious complaint and that dismissal was notified to the claimant by letter dated 30 March 2010.  He was notified of his right to appeal to Major General T and also of a further right of appeal to the Civil Service Appeal Board.

35.	The appeal hearing was held on 12 May 2010.  Major General T heard the appeal together with an independent panel member.  The claimant was represented by a representative from Unite.

36.	At the appeal hearing, the claimant stated that everyone who had been interviewed by the HIO had been against him.  He asked for a Major and a Warrant Officer to be interviewed in respect of what he alleged had been disciplinary proceedings against Mr B for a previous assault.  No records could be found for any such incident.  He also asked for the pool maintenance operator to be interviewed.  The claimant did not produce a statement form the pool maintenance operator.

37.	After the appeal hearing, and before Major General T had formulated his decision, the PPPA representative submitted a written recommendation that the dismissal should be upheld.  The recommendation was not forwarded to the claimant for comment and that is regrettable.  However the Major General was clear in his evidence that he had not placed any weight on the recommendation when reaching his decision to uphold the dismissal.  The Tribunal therefore concludes that the recommendation made no material difference to the outcome of the appeal.

38.	Major General T concluded that he was satisfied that the claimant had made a malicious complaint against Mr B and he dismissed the appeal.

39.	The claimant did not exercise his right to appeal to the Civil Service Appeal Board.

Relevant law

40.	The proper approach for a Fair Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.  

41.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or if more than one the principal reason) for the dismissal and

(b)	that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

			   (2) 	a reason falls within this paragraph if it – 

					(b)	relates to the conduct of the employee, 

(4)	where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

42.	The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined principally in the judgements of Mummery LJ in two further cases Foley  v  Post Office and HSBC Bank Plc (formerly Midland Bank)  v  Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR111.

(50)	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1)	the starting point should always be the words of [equivalent GB legislation] themselves;

(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	in many, though not all, cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; 

(5)	the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
			
(51)	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated –

“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief, that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

43.	In Paragraph 1466 of Harvey (Unfair dismissal Division) states:-

“The standard of proof which an employer must meet has been discussed in a number of cases.  As the extract from Arnold J’s judgment in the British Home Stores case indicates, the Tribunal should not require the employer to be satisfied beyond all reasonable doubt, which would be a far too stringent standard, or even on the balance of probabilities.  Indeed in Lees  v  The Orchard [1978] IRLR 20, EAT, it was suggested that the latter test might possibly be too rigid.  It is submitted that, exceptional circumstances apart, it will be difficult for a Tribunal to conclude that an employer has acted reasonably unless it is at least more likely than not that the employee committed the misconduct relied upon.  Exceptional cases might include those where the need for an employee with complete and unimpeachable integrity is so important that any real doubt about his reliability will justify the dismissal.  On the other hand as Arnold J pointed out in the British Home Stores case, if the balance of probabilities test satisfied, then it would be extremely difficult – and may be virtually impossible – to allege successfully that the employer has acted unreasonably in deciding that the employee committed the act of misconduct.”

44.	The Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47 (see above) considered the issue of the appropriate standard of proof to be applied by an employer when considering an allegation of misconduct.  In the circumstances of that case it stated at Paragraph 17:-

“It was accepted that the civil standard was the appropriate standard of proof for the disciplinary panel but the respondent placed emphasis on the passage in the opinion of Lord Nicholls in Re: H (Minors) [1996] AC 563, referring to the need for more cogent evidence to overcome the likelihood of what is alleged if a serious allegation is made.  That passage has been considered again by the House of Lords in Re: D [2008] UKHL 33 and a proper approach is helpfully set out in Paragraphs 27 and 28 of the opinion of Lord Carswell.

Richards LJ expressed the proposition neatly in R (N)  v  Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, 497 – 8, Paragraph 62, where he said:-

“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application.  In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.  Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.

In my opinion this paragraph effectively states the concise terms of the proper state of the law on this topic.”

Decision

45.	The first issue for the Tribunal to determine is the reason for the dismissal.  The onus of proof on this issue is on the respondent in this respect.  Having listened to the evidence, particularly of Brigadier S and Major General T, and having examined the documentation, the unanimous decision of the Tribunal is that the respondent has discharged that onus and has established that the reason for the dismissal was conduct, a potentially fair reason for dismissal within the meaning of the 1996 Order.  Furthermore, no convincing evidence of an alternative reason was produced.  The claimant, in his evidence to the Tribunal, alleged that the RAF held it against him that he had been appointed by the Army; that he had been a marked man since the RAF took over the running of the camp in 2000 and that he was ‘tarred with the Army brush’.  His position from 2000 had been untenable but he had refused to be pushed out.  He alleged that inter-service rivalry between the RAF and the Army contributed to his dismissal.  The Tribunal does not accept that this was the case.  Firstly, if the claimant’s position had been made untenable since 2000, it is surprising that he retained his employment for a further 10  years.  Furthermore, the two decision-makers, ie Brigadier S and Major General T, who made the decision to dismiss, respectively at first instance and on appeal, were both Army officers.  The Tribunal heard unsupported evidence from the claimant to the effect that there was a great deal of rivalry between the RAF and the Army; that this led to fights in bars and to service wives ‘not sitting together’.  The Tribunal has already referred in this decision to its conclusions in relation to the claimant’s credibility.  In the claimant’s evidence to the Tribunal the allegations against Mr B multiplied and no satisfactory explanation was given for the claimant’s failure to make these allegations earlier.  The allegations themselves were inconsistent and manifestly unbelievable.  For example, the claimant’s sworn testimony was that Mr B was ‘bitter’ and that he played ‘Up the IRA’ in the swimming pool area but also that he was too friendly with Army pool users and their wives.  In particular, he was also too friendly with the sergeants who were their line managers.  It defines belief that someone who was ‘bitter’ as alleged would be too ‘friendly’ with Army personnel or even work in the camp.  The Tribunal therefore rejects the claimant’s allegation that his dismissal was rooted in inter-service rivalry as the unsupported assertion of a witness who lacks credibility.

46.	The claimant, again in his evidence, also sought to suggest that he had been singled out for raising health & safety issues.  This was not an issue on which he presented any clear evidence.  If he had raised such issues, and if he had been singled out for dismissal, it is remarkable that no witness came forward from his trade union or from amongst his colleagues to support this version of events.  It is even more remarkable that an earlier disciplinary procedure had been resolved in his favour.  The Tribunal therefore rejects this evidence also.

47.	Both parties agreed that it was unusual for a disciplinary charge of making a malicious complaint of harassment to be brought and to be upheld.  That is also the collective experience of the Tribunal.  However, neither party could point to any case law which would suggest that such a disciplinary charge should have been treated in any way differently from any other serious disciplinary charge which could properly be brought by an employer against an employee.

48.	Mr Potter, for the claimant, argued the core issue for the Tribunal to determine in this case was whether or not the two decision-makers who acted on behalf of the respondent, ie Brigadier S and Major General T, respectively at first instance and subsequently on appeal, had sufficient evidence before them on which they could each properly draw the conclusion that the claimant had indeed been guilty of making a malicious complaint.  

49.	Brigadier S and Major General T were forthright and clear witnesses, who impressed the Tribunal with their honesty and with the fairness which they sought to answer the questions put to them in cross-examination.  It was clear that both had taken into account the contents of the HIO investigation report and the witness statements which were appended to that report.  The timing of the allegations made by the claimant, the nature of the allegations and the fact that the allegations had not been made by the claimant against Mr B at any point before August 2008 weighed heavily upon both decision-makers.  

50.	There are certain points which appear to the Tribunal to be crucial in this matter and which the two decision-makers were entitled to consider.  Firstly, it was inherently unlikely that the claimant would have, as he had alleged to the respondent and, in fact, repeated to this Tribunal, borne without complaint a daily campaign of sectarian and racial abuse, particularly racial abuse directed at his wife.  It is equally inherently unlikely that the claimant would have accepted a threat of violence in February 2008 without complaint for six months.  It is beyond reasonable coincidence that all these complaints only emerged, in a piecemeal fashion, once Mr B  had made it known to the claimant that he was going to lodge a complaint about the claimant’s conduct towards him.  While Brigadier S did not concern himself with motivation, Major General T had considered motivation.  In that context, it was also significant that, apart from the risk that such a complaint from Mr B would pose to the claimant’s continued employment at Aldergrove, it would have posed a significant risk to the claimant’s prospects for promotion to the new pool supervisor post.  It was also significant that the initial complaint, made hastily, it would appear, to Flight Lieutenant P on the evening of Friday 8 August 2008, centred simply upon the allegation of violence on that date.  The allegations then expanded significantly to include an allegation that Mr B was the type of person who sought to intimidate people.  There was no evidence to support those allegations and the evidence before the respondent’s decision-makers pointed to the opposite conclusion, ie that Mr B was not aggressive by nature.

51.	The Tribunal’s unanimous conclusion is that a reasonable employer was entitled to conclude on the basis of this evidence , and on the balance of probabilities, that the claimant had made a malicious, ie a false and spiteful, complaint about Mr B.  The decision to uphold the disciplinary charge was therefore fair and reasonable.

52.	Mr Potter made it plain that the claimant’s argument was that the two decision-makers, Brigadier S and Major General T, had not had reasonable grounds to conclude that his complaint had been malicious.  He referred to the EAT decision in ‘A’  v  ‘B’ [2010] ICR 849 and expressed surprise that this decision had not been appealed further.

	In the Tribunal’s opinion that decision is not relevant to the present case.  It concerned a dismissal which had been based on suspicion of guilt rather than a dismissal which was based on a belief in guilt on the balance of probabilities and following an investigation.

53.	The unanimous decision of the Tribunal is also that, in the circumstances of this case, summary dismissal was a penalty within the band of reasonable responses open to the respondent and therefore lawful.  Making and maintaining a malicious complaint against a colleague is a very serious matter.  Once an employer reaches a reasonable conclusion that this has occurred, the continued employment of the person who made the malicious complaint is likely to be impossible.  The necessary degree of trust between that employee and his employer and between that employee and his colleagues would have been irrevocably lost.

Vice President:

Date and place of hearing:	24 – 26 May 2001; and
31 May 2011, Belfast

Date decision recorded in register and issued to parties: