FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 97/11FET
CLAIMANT: Thomas McCann
RESPONDENT: Extern Organisation Limited
The decision of the Tribunal is that the claimant's claim is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Murray
Members: Mr J McKeown
Mr R McKnight
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by O'Reilly Stewart Solicitors.
The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.
1. The claimant's claim was for discrimination on grounds of political opinion under the Fair Employment and Treatment (NI) Order (referred to below as FETO).
2. The claimant's claims were heard and determined by a tribunal (hereinafter referred to below as the first tribunal). In those proceedings the claimant was successful in his unfair dismissal claim. The claims for detriment on grounds of trade union activities failed, the claim for discrimination under FETO failed and the claim for sex discrimination victimisation also failed.
3. The claimant appealed the dismissal of the FETO claim to the Court of Appeal and was successful in that appeal. The FETO case was therefore referred back to a different Tribunal for determination.
4. The Court of Appeal outlines the claim at paragraph 20 of its decision as follows:
" It is alleged that the appellant was treated less favourably because of his perceived involvement in the trade union lunchtime protest. In essence it is claimed that his perceived involvement caused or contributed to his unfair dismissal".
5. The Court of Appeal at paragraph 28 of the decision outlined the task for the Tribunal:
" In all the circumstances we consider that the proper course is to send this issue back to a differently constituted Tribunal for determination. We offer, and of this there should be no doubt, no view whatsoever as to whether the claim of discrimination should or will succeed. It will only be possible to reach a conclusion after the Tribunal has made findings in respect of those matters that are alleged to constitute discrimination and secondly, if the burden does shift, whether the respondent can provide a satisfactory explanation for its actions."
6. The Court stated at paragraph 26 as follows:
" This court, despite the further response from the Tribunal, can still not be sure of the basis upon which the Tribunal concluded that there was no credible evidence that the appellant was discriminated against because of his political opinion. The following facts relied upon by the appellant do not appear to be contested:-
(i) Mr Keenan, who took part in the lunchtime protest and was the Project Manager for the Ormeau Centre was found by another Tribunal to have suffered "detriment" for taking part in the lunchtime protest by the respondent bringing forward the date of his departure from the original agreed date of 14 October 2010 to 13 August 2010. The Tribunal's explanation for ignoring this decision is not entirely satisfactory although blame appears to rest to some extent with the appellant and his advisors for not specifically drawing it to the Tribunal's attention.
(ii) Mr Crossan had found the appellant was involved in contributing to the lunchtime protest leaflet (as did Ms Brown) despite the absence of any evidence.
(iii) The advice of Ms Stevenson was not to speak to Ms Kerr, the trade union representative, because her input was "not likely to be objective", when investigating the appellant. Ms Kerr was particularly well placed to advise whether or not the appellant did contribute to the leaflet as was alleged by the respondent."
7. The parties identified in the first tribunal's decision the findings of facts which were agreed by them to be relevant to the case before us. Using the numbering of the first tribunal's decision those findings of fact are found in paragraphs 2-21 (apart from paragraph 7); and paragraphs 36-46. Both sides agreed that paragraph 34 was a finding of fact but only the respondent submitted that it was relevant to the case before us.
8. The Tribunal's task in essence therefore was to deal with the task set by the Court of Appeal in light of the agreed facts and in light of the oral and documentary evidence adduced by the parties during our hearing. As the claimant has already succeeded in his unfair dismissal claim the issue for the Tribunal was whether that dismissal and the other alleged detrimental act involving Ms Stevenson's comment to Ms Brown were tainted by political discrimination thus constituting discrimination on grounds of political opinion.
9. The parties produced a list of issues to which findings of fact were required to be made by the new Tribunal. An agreed document was presented to the Tribunal which narrowed further at a CMD on the first morning. Under the heading "Legal Issues" the parties agreed that issue 2 was no longer for the Tribunal and parties agreed that the following factual issues were no longer before the Tribunal: 2, 3, 4, 18 and 20.
10. The claimant alleges that the discrimination was because of the perception that he was involved in perceived trade union activities namely the lunchtime protest, the leaflet and the Facebook campaign related to the protest. On behalf of the claimant Mr Potter accepted that adverse treatment was suffered by the claimant before 22 July 2011 and the claimant therefore accepts that trade union activities could not be the only factor in the adverse treatment.
11. If the claimant succeeds in his claim for discrimination issues on quantum relate to future loss, injury to feelings and the valuation of a personal injury claim.
12. Mr Potter submitted that we do not have to have recourse to the burden of proof given the findings of the previous tribunal. We reject that contention, firstly, due to the comments of the Court of Appeal set out at para 5 above and, secondly, we agree with Mr Phillips' contention that it is for the claimant to prove facts from which we could conclude that an act of discrimination occurred. It is therefore for the claimant to prove less favourable treatment meaning a difference in status and a difference in treatment as compared with the hypothetical comparator. The claimant must also prove "something more", ie facts from which we could conclude that discrimination occurred on grounds of his political opinion.
SOURCES OF EVIDENCE
13. The Tribunal heard evidence from the claimant on his own behalf together with evidence from Mrs Millar of NIPSA.
14. For the respondent the Tribunal heard evidence from Ms Stevenson of HR, Ms Brown the independent investigator and Mr Crossan who dealt with the disciplinary hearing and took the decision to dismiss.
15. The Tribunal also heard evidence from the claimant's Psychiatrist Doctor Mangan together with evidence from Dr Bell, a Consultant Psychiatrist retained by the respondent.
16. The parties presented us with numerous authorities but in the event the following authorities were the only ones relied upon by both sides:
(1) McConkey & Others v The Simon Community  UKHL 24
(2) John William Emerson v Northern Ireland Ambulance Service - Fair Employment Tribunal (184/03FET 1168/03)
(3) Shane O'Hare v South Eastern Health & Social Care Trust (113/13FET 2097/13)
(4) Extract from Harvey - Burden of Proof and Drawing of Inferences
(5) Yvonne McEvoy v Joseph Rice (6564/09IT)
(6) O'Neill v Governors of St Thomas More Roman Catholic School & Another  IRLR 372 EAT
(7) Nagarajan v London Regional Transport - House of Lords  IRLR 572
(8) English v Thomas Sanderson Blinds Ltd (2008) EWCA Civ 1421
(9) Anya (Appellant) v University of Oxford and Another (Respondent)  EWCA Civ 405
(10) Derbyshire and Others v St Helens Metropolitan Borough Council (Equal Opportunities Commission and others intervening  UKHL 16.
(11) Arnold & Others v Sandwell Metropolitan Borough Council (EAT) UKEAT/0332/08/RN
(12) Glasgow City Council v Stefan Cross Claimants (EAT) UKEATS/0007/09/BI
(13) Hatton v Sutherland  ICR 613CA
(14) Hartman v South Essex Mental Health & Community Care NHS Trust 2005 ICR 782 CA
(15) Firma Feryn 2008 ECJ - C54/07
(16) Shamoon v The Chief Constable of the RUC, HL  UKHL11
(17) Simpson v Castlereagh Borough Council  NICA 28
(18) R v JFS  UKSC15
17. In the O'Neill case, which relates to the issue of causation, it is stated that the question for the tribunal is what was the "effective cause" of the adverse treatment. That cause need not be the only cause. At paragraph 43 of that decision it states as follows:
"The basic question is: what out of the whole complex of facts before the tribunal is the "effective and predominant cause" or the "real or efficient cause" of the act complained off?
The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. It is enough if it is an effective cause". (emphasis added).
18. The Derbyshire case is a House of Lords case which was particularly relied upon by the claimant albeit that no specific submissions were made on it. For this reason the claimant's side was directed to come back to make submissions if they wished. At the reconvened submissions hearing Mr Potter stated that he did not place reliance on this case but rather on the cases of Simpson and on the JFS case discussed by the Northern Ireland Court of Appeal in Simpson. As these points and authorities were referred to for the first time at the reconvened submissions hearing, the hearing had to be adjourned to enable Mr Phillips to consider the impact of the two authorities on this case. The final submissions hearing took place on 12 October 2015.
19. The Simpson case is a victimisation case where the Northern Ireland Court of Appeal outlined the approach for the tribunal and stated at paragraph 18 as follows:
"The tribunal can ask the question "why did the respondent act as it did?" See for example, Nagarajan v LRT  IRLR 57 at paragraphs  and . In Derbyshire Lord Neuberger put the matter thus:
"The words 'by reason that' require one to consider why the employer has done the particular act ... and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused a detriment, one must view the issue from the point of view of the alleged victim."
Alternatively the tribunal may pose the question "Would the respondent have acted as it did but for the fact that the victimised party did what he or she did acting under Article 6(1)(a)-(d). (See for example Lady Hale in R v Governing Body of JFS  IRLR 136 paragraph  and Lord Clarke (ibid.) at paragraphs -. Alternatively, it may pose the question, as Lord Mance did in JFS, whether the impugned act was inherently discriminatory".
20. The three approaches outlined in the JFS case and approved in the Simpson case, have been described as: "the reason why test", the "but for test" and the "inherently discriminatory test".
21. Mr Potter relied particularly on paragraphs 13 and 78 in the JFS case which state as follows:
" 13. In the phrase "grounds for discrimination", the word "grounds" is ambiguous. It can mean the motive for taking the decision or the factual criteria applied by the discriminator in reaching his decision. In the context of the 1976 Act "grounds" has the latter meaning. In deciding what were the grounds for discrimination it is necessary to address simply the question of the factual criteria that determined the decision made by the discriminator. This approach has been well established by high authority. (emphasis added)
78. Direct discrimination can arise in one of two ways: because a decision or action or action was taken on a ground which was, however worthy or benign the motive, inherently racial within the meaning of section 1(1)(a), or because it was taken or undertaken for a reason which was subjectively racial: R v Birmingham City Council, Ex p Equal Opportunities Commission  AC 1155, 1194 c-d per Lord Goff of Chievely, James v Eastleigh Borough Council  2 AC 751, 772 b-g per Lord Goff, and Nagarajan v London Regional Transport  1 AC 501, 511 a, per Lord Nicholls of Birkenhead, and 520 h-521b, per Lord Steyn. In the Birmingham case  AC 1155, girls were required to achieve a higher standard than boys for grammar school entry because of a disparity in the number of grammar school places available for boys and girls.
"Whatever may have been the intention or motive of the council, nevertheless it [was] because of their sex that the girls in question receive[d] less favourable treatment than the boys, and so [were] the subject of discrimination": per Lord Goff, at p 1194.
It was for the council to find some way of avoiding this, eg, by balancing the places available. In the James case  2 AC 751 the motive for adopting as the test for free entry to the swimming pool to people who had reached state pension age was no doubt benign (it was probably because they were perceived as more likely to be needy). But being of pensionable age is not to be equated with ceasing to work or being in receipt of a pension, and the difference between the ages (65 and 60 respectively) at which men and women became of pensionable age made the test inherently discriminatory on the ground of sex. In the Nagarajan case  1 AC 501, 511 a [sic] Lord Nicholls noted that "Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator" ..."
22. The JFS decision of the Supreme court was cited in the Simpson case and it is stated in JFS at paragraph 16 as follows:
"This "but for" test was another way of identifying the factual criterion that was applied by the council as the basis for their discrimination, but it is not one that I find helpful. It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision"
23. The Supreme Court stated further as follows at paragraph 116:
"... the need to recognise the distinction between, on the one hand, the grounds for the decision (what was the basis on which it was taken) and on the other, what motivated the decision-maker to make that decision".
24. In the JFS case the reason for the impugned decision was very clear, in that, it was because of the nature of the claimant's Jewish origins but the decision-makers raised arguments about their motivations for doing so. We reject the submission that the "but for" test is appropriate in the present case. That test was appropriate in the JFS case where the reason for the adverse treatment was clearly connected to the protected characteristic as there was no doubt what caused the school in that case to act as they did.
25. We reject the suggestion that the respondent's acts were inherently discriminatory. Simply because the context for the disciplinary action was the trade union activities does not mean that any disciplinary action was discriminatory, per se. (See O'Neill at paragraph 17 above). The issue is one of causation so the Tribunal must examine the reason why the adverse treatment occurred by assessing all the circumstances and any inferences it is appropriate to draw from the facts.
26. In the present case, the reason for the adverse treatment was not clearly connected to the protected characteristic and had to be determined by us from looking at all the evidence to see if adverse inferences could be drawn. The appropriate test in our case is the "reason why" test and this is the test we have applied in order to reach the conclusions we have. (see below).
FINDINGS OF FACTS AND CONCLUSIONS
27. The Tribunal found the following facts proved on a balance of probabilities and reached the following conclusions by applying the law to the facts found.
28. The respondent raised for the first time in our hearing a jurisdiction point claiming that because the claimant had not raised a grievance and waited 28 days before lodging his claim that the Tribunal was deprived of jurisdiction under article 20 Employment (NI) Order 2003. The respondent sought to raise this point by way of an amendment of its defence.
29. In the case of Glasgow City Council v Stefan Cross claimants the EAT found that it was too late to raise such a jurisdictional point once the tribunal starts to consider the merits of the complaint. It is up to the respondent to raise the jurisdiction point and it is then for the tribunal to decide in its discretion whether to grant an amendment to the response form to include the jurisdiction point as a defence.
30. We reject the respondent's point on jurisdiction for the following principal reasons:
(1) It was agreed by the parties that the political discrimination claim was the issue before the first tribunal, that it had been dismissed without reasons and that following a successful appeal to the Court of Appeal, the matter before us was that element of the case. In these circumstances it was agreed that the first tribunal considered this claim. In line with the authorities it is therefore too late to raise this as an issue as that claim has already been adjudicated upon by the first tribunal and the Court of Appeal.
(2) The following comments of Lady Smith in the Stefan Cross case are directly relevant to this point:
" ... I would suggest that the structure of Section 36(6)(b) also indicates that the time at which the issue must be raised is before the Tribunal starts considering the merits of the complaint: once it has started "considering the complaint" it is too late to prevent it from doing so".
Background and Relevant Chronology
31. The claimant was a Senior Manager for Extern having been employed by them until 12 May 2011 when he was sacked for gross misconduct following a long period when he was out of the workplace on suspension and sick leave.
32. The claimant was initially suspended from work on 22 January 2010 prior to a disciplinary charge which followed a complaint against the claimant by another member of staff.
33. The claimant was off on sick leave from 28 August 2009.
34. A lunchtime protest outside Extern premises took place on 27 July 2010 by staff protesting at the treatment of the claimant. Around the same time, a leaflet was circulated entitled: "Justice for Tom McCann" and a Facebook page with that title appeared on the internet.
35. Ms Brown, an independent consultant, was appointed in June 2010 as disciplinary investigator. Ms Stevenson (a manager in Extern) told her not to talk to Ms Kerr, a trade union representative because she was not likely to be objective. This related to the leaflet issue. The Brown Report issued in December 2010.
36. Mr Crossan, who dealt with the disciplinary process and took the decision to dismiss the claimant, joined the organisation on 1 September 2010.
37. Mr Boomer was the claimant's trade union representative. On 20 January 2011 there was an "extraordinary report" into Mr Boomer's alleged behaviour in another matter (unrelated to the claimant) which led to Mr Boomer being excluded from Extern premises from 3 February 2011. At that time Mr Boomer was the claimant's trade union representative in the disciplinary process and the claimant's disciplinary hearing was due to take place on Monday 6 February 2011.
38. On 6 February 2011 the claimant's disciplinary hearing was postponed because Mr Boomer was not available and Mr Crossan agreed to the request of Mr Graham (who was the claimant's new trade union representative) to reschedule the disciplinary hearing.
39. On 24 February 2011, after receipt of Ms Brown's report, Mr Crossan added two disciplinary charges to those which were recommended by Ms Brown and the claimant was informed of this in February 2011.
40. On 7 March 2011 the first day of the disciplinary hearing was heard and the claimant attended with his trade union representative.
41. On 31 March 2011 the claimant's sick line was submitted with a further sick line of 7 April 2011 asking for the next disciplinary meeting to be rescheduled.
42. On 11 April 2011 there was a continuation of the disciplinary hearing in the claimant's absence. This was one of the reasons the first tribunal found the dismissal unfair.
43. On 12 May 2011 Mr Crossan produced his disciplinary report and it, together with the letter of dismissal, were sent to the claimant.
44. On 14 June 2011 the appeal took place before Mrs McKillop and was unsuccessful.
45. There were 9 grievances raised by the claimant or on his behalf, of which 6 preceded the lunchtime protest:
5 March 2007 against Ms Cuddy (Chief Executive of Extern) and
Ms Stevenson in relation to their handling of the outcome of a bullying and harassment grievance brought against the claimant by another member of staff;
(2) 25 September 2009 against Mr Rooney, a Director in Extern;
(3) 5 October 2009 against Ms Stevenson and Mr Rooney;
(4) 19 May 2010 to Ms Cuddy about the bullying and harassment complaint against him that had been dismissed;
(5) 11 June 2010 and 12 June 2010 relating to grievances about delay in the disciplinary process;
(6) 27 October 2010;
(7) 1 March 2011 which was Mr Graham's list of the claimant's grievances from 2009 onwards;
(8) 10 August 2011. This was sent after the claimant's dismissal and after the Keenan decision and it related to unfair dismissal and raised an allegation of discrimination on grounds of political opinion for the first time.
Summary of First Tribunal's Decision
46. The original claim to the first tribunal was based on three arguments: firstly, that Ms Cuddy victimised the claimant because of a previous sex discrimination claim which settled; secondly, that trade union activities were part of the reason for the adverse treatment suffered by the claimant; and, thirdly, that there was unfair dismissal substantively and procedurally.
47. The first tribunal found that the claimant had been unfairly dismissed and rejected the other claims.
48. Paragraph 12 of the first tribunal's decision states as follows:
"12. The disciplinary process was then handed to Mr Crossan (who had joined the respondent as Director of Resources in September 2010). He considered the reports. In doing so he also created two additional charges which he communicated to the claimant in February 2011. These were that the claimant had made wilful misrepresentations and made defamatory statements to Ms Brown in the course of that investigation. The wilful misrepresentations involved a statement made to the investigators by Mr Boomer to the effect that by resolving Tribunal proceedings involving a different employee the respondent acknowledged that its behaviour was unreasonable. The alleged defamatory statements included statements made by Mr Boomer and also some by the claimant, including an allegation that Ms Cuddy had victimised the claimant."
49. Paragraph 14 of their decision relates to the Mr Boomer matter and states:
"At the time Mr Crossan was considering these reports he had to deal with another matter. Mr Boomer had been involved in a separate matter as a trade union representative. The employee of the respondent, who had conducted the hearing, felt that Mr Boomer had behaved inappropriately and made a complaint. Although the meeting in question took place in October 2010, no complaint was made until January 2011. Mr Crossan then investigated the issues before referring the matter to NIPSA. Mr Crossan told the Tribunal he was very angry at the comments attributed to Mr Boomer and that he was "deeply affected" by Mr Boomer's alleged behaviour. Mr Boomer was banned from the respondent's premises by a hand-delivered letter of Friday 3 February 2011. He was due to represent the claimant on the following Monday at his disciplinary hearing. NIPSA later carried out its own investigation and found the charges against Mr Boomer unsubstantiated."
50. The first tribunal's criticism of Mr Crossan was as follows:
(1) That there was a decision to go ahead with the disciplinary hearing without the claimant. Mr Crossan advanced the reason that this was to avoid delay and deal with the claimant's stress because the claimant was off with work-related stress but the first tribunal found his evidence in this regard to be "disingenuous". (paragraph 36(a)).
(2) The tribunal found Mr Crossan to have been "over-zealous" and " for whatever reason his objectivity was clouded" in relation to the outcome on the five charges. (paragraph 46).
51. The only one of the five charges found by the first tribunal to have constituted misconduct (not gross misconduct) was charge five which related to "defamatory and unsubstantiated remarks". This related to the leaflet and Facebook page and was one of the charges added by Mr Crossan which arose from his reading of the Brown report. The first tribunal found these to be complaints rather than disciplinary offences and found that Mr Crossan was "angry and deeply affected" because of Mr Boomer's action in an unrelated matter stating:
"The Tribunal have taken into account the fact that when Mr Crossan was receiving the investigation reports he was already very angry and deeply affected by his view of Mr Boomer's actions in an unrelated matter. The Tribunal concluded this may have coloured Mr Crossan's approach."
52. Whilst the written submissions to us stated otherwise, Mr Potter accepted in oral submissions that it is for this Tribunal to determine whether the claimant has established less favourable treatment and that the findings of the first tribunal do not, of themselves, establish less favourable treatment. Further Mr Potter agreed that it is for us to assess the demeanour and credibility of witnesses and in particular that of Mr Crossan. In this regard we note that there was no finding of dishonesty on Mr Crossan's part by the first tribunal. Even if there had been such a finding it was up to us to assess his credibility in our case.
53. The political opinion relied upon by the claimant is outlined in the pleadings as follows:
"The Claimant as an active trade union member believes as a political opinion that workers have the right to collectively organise in the workplace to promote their collective rights and interests. The Claimant believes that workers have the right to take appropriate action to challenge public policy and law which prejudices the rights of workers individually and collectively. In particular the Claimant believes as a political opinion that workers' representatives should be able to engage in lawful collective action to promote workers rights and interests."
54. In summary the political opinion relied upon relates to an opinion supportive of "trade unionism" and "collective action" in the workplace. It was not disputed by the respondent that the political opinion relied upon came within the scope of FETO.
55. The respondent conceded at our hearing that the organisation of the lunchtime protest was a trade union activity. It was therefore agreed that it was not necessary for us to hear evidence in relation to the level of involvement of the trade union in organising that activity.
56. The claimant's case was that he was perceived to have been involved in trade union activities as it was agreed by the parties that the claimant was not actually involved in the agreed trade union activity which was the lunchtime protest. It was uncontested that a perception that a claimant possesses the protected characteristic is enough for FETO protections to apply. This is in line with the English decision. We find that Mr Crossan perceived the protest, leaflet and Facebook to be trade union activities and further perceived the claimant to have been involved in them and in the content of the leaflet in particular.
Trade Union activities
57. We were referred to at least two leaflets entitled 'Justice for Tom McCann'. A leaflet bearing that title was sent anonymously to NICVA and NIHE, both of which were funding bodies for the respondent. The claimant agreed that NIPSA disowned the leaflet but the claimant's case was that the leaflet was perceived to be a trade union activity.
58. We were also referred to a Facebook page which was entitled: 'Justice for Tom McCann'. The respondent did not accept that this was a trade union activity and indeed the trade union through their solicitors disowned the postings on the internet by letter of 25 August 2010.
59. Whilst there was debate at hearing about whether the leaflet and Facebook page actually were trade union activities we find it to be irrelevant to this case to determine whether they actually were trade union activities as the case has been validly advanced on the basis that there was a perception that they were and a perception that the claimant was involved in them.
60. In summary therefore it was the claimant's case that there was a perception that the leaflet was a trade union activity and it was this perception coupled with the perception that the claimant had been involved in the lunchtime protest and leaflet and Facebook page which led to the adverse treatment by Mr Crossan and
Ms Stevenson. We find that it is clear from the Mr Crossan report that the protest, the leaflet and the Facebook page were all bound up together and perceived to be trade union activities. It is clear from the Mr Crossan's report that he did perceive the claimant to be involved with them. The focus of our case is on whether the claimant suffered detriment and whether an effective cause of any detrimental treatment was the claimant's trade union beliefs.
61. The alleged acts of detriment were as follows:
(a) The claimant's dismissal which was unfair on substantive grounds;
(b) The claimant's dismissal which was procedurally unfair as he was not given the opportunity to appear and make submissions at the second day of the disciplinary hearing or at the appeal notwithstanding his being unfit to attend and seeking an adjournment;
(c) That similarly he was not afforded the opportunity to attend his grievance hearing and make submissions as it had been rolled-up into the disciplinary hearing;
(d) That he was subjected to discrimination by reason of Ms Stevenson advising Ms Brown not to interview Ms Kerr (his trade union representative) because she was not likely to be objective. It is the claimant's case that this act disadvantaged him and was not trivial because if Ms Brown had spoken to Ms Kerr she might have said that the claimant was not involved in contributing to the leaflet and this might have had an impact on whether the claimant was charged with the fifth disciplinary charge.
62. The claimant contended that adverse inferences should be drawn from the following:
(1) That Ms Brown was told by Ms Stevenson not to question Ms Kerr about the claimant's involvement in the leaflet as she would not be likely to be objective.
(2) The exclusion of Mr Boomer, per se, and its timing which was 2 days before the scheduled disciplinary hearing.
(3) The criticism by Mr Crossan of Mr Graham and the referral to NIPSA because of his "misrepresentation". This related to Mr Graham saying in correspondence that Mr Boomer had been excluded because he was representing the claimant whereas Mr Crossan said it was only after getting a report of serious allegations against Mr Boomer in another matter.
(4) The outcome of the disciplinary process showed "disproportionality" between Mr Crossan's acts and the misconduct alleged.
(5) The fact that Mr Crossan on 24 February 2011 added two charges to those recommended by Ms Brown and that these were added after the protest which took place on 27 July 2010.
(6) The unfairness found by the first tribunal in not adjourning the disciplinary and appeal hearings despite the claimant's medical difficulties.
(7) The Keenan decision in that Mr Keenan was found by a tribunal to have suffered detriment because of trade union activities following the lunchtime protest. The Keenan decision issued in June 2011.
(8) The adverse treatment of Ms Kerr following the lunchtime protest in that she was suspended because of the leaflet.
(9) The contents of the Crossan report at Part 7 in particular which, Mr Potter submitted, showed that Mr Crossan had a wider problem with the trade union and its representatives. Mr Crossan's evidence was that he had to examine the relationship between all the actors to assess the likely level of communication between them so he could decide whether to believe the claimant that he knew nothing about the serious comments which had been made about managers.
63. The respondent contended that no less favourable treatment had been shown when looking at the relevant circumstances of the hypothetical comparator ie a hypothetical comparator with the same characteristics would have been treated no differently.
64. The respondent further contended that the reason for the treatment was not tainted by discrimination but was due to:
(1) A history of ill-feeling between the claimant and different managers preceding the protest which, the claimant accepted at tribunal, was unrelated to trade union activities and beliefs;
(2) The breakdown of the relationship between the claimant and senior managers over a long period which led to the claimant feeling unwanted before protest;
(3) Mr Crossan's reasonable perception of the seriousness of the comments in the leaflet and those made to the Brown investigation about senior managers;
(4) The behaviour and comments of Mr Boomer as an individual not because he was a trade union representative. If another trade union representative had been involved instead there would have been no problem as evidenced by the accommodation of Mr Graham;
(5) Trade union activities were the context and not an effective cause of the adverse treatment;
(6) Ms Kerr was suspended for comments in an anonymous email enclosing the leaflet and circulating it to outside bodies. The claimant accepted in our hearing that any adverse treatment in that regard which could be tainted by the lunchtime protest could not have involved Mr Crossan as he only joined the organisation on 1 September 2010;
(7) The Keenan decision only shows that the respondent failed to discharge the onerous burden of proof in a different type of case and also that the claimant accepted that any adverse treatment in that regard could not have involved Mr Crossan as it occurred before he started with the organisation;
(8) Unfairness is not of itself evidence of discrimination and it is up to the claimant to show "something more" before the burden shifts;
(9) The claimant and representatives did not raise political discrimination at any stage internally, nor in the claim form for this Tribunal, as a reason for his treatment until after the Keenan decision was issued.
The Reason Why
65. It is for the Tribunal to determine the reason why the claimant was treated as he was and whether the protected characteristic was an effective cause of the treatment. This means a cause which was not insignificant. In essence we must decide whether the perceived trade union activities comprised the context of any adverse treatment or whether the perception that the claimant was involved in them was an effective cause of such treatment and the treatment was thus discriminatory.
66. Mr Phillips contended that the fact that the claimant was found to have been dismissed unfairly does not of itself mean that any such dismissal or finding of gross misconduct amounted to unlawful discrimination. We agree with this proposition; it is for the claimant to prove facts from which we could infer that a discriminatory reason was an effective cause.
67. Mr Crossan produced a report dealing with disciplinary charges and the claimant's grievances. Both sides wanted us to read the whole of the Crossan report for its tenor. Both sides in questioning however only referred to specific parts of that report. Central to our decision is our assessment of Mr Crossan's evidence as he was the key decision-maker in relation to the claimant. We assessed carefully the demeanour of Mr Crossan and found him to be genuine and honest in his evidence.
68. We do not find that the Crossan report as a whole portrays a view that is inimical to the trade union or trade union beliefs and activities. Mr Crossan seems to have been very exercised about Mr Boomer and about his and Ms Kerr's non-compliance with the notification requirements relating to her appointment as a trade union representative as this was in breach of agreements with the trade union. He was also concerned about the apparent concealment of the claimant as Mr Keenan's referee during the period when the claimant was suspended as this appeared to be in breach of the terms of his suspension.
69. Mr Crossan added two charges to those recommended by the Brown report. The added charges related to the alleged comments about senior managers. We accept Mr Crossan's evidence that these matters came to his attention when he saw them referred to in the Brown report and we accept that he added them as he could not ignore such serious comments about senior managers by a manager.
70. We accept that Mr Crossan had a genuine belief that the claimant was guilty of misconduct. Whilst that finding of guilt was found to have been unfair by the first tribunal, we have looked at this issue to decide whether his decision-making was tainted by his perception that the claimant had been involved in these activities. We find that Mr Crossan's focus was on the claimant's behaviour and his grievances. We find it significant that Mr Crossan had only recently joined the organisation ie in September 2010; he had also been in NIPSA for many years and he had been a NIPSA official for a period. This points away from an inference that he had an animus to trade unionism.
71. The claimant also pointed to 3 specific matters namely, the fact of excluding Mr Boomer, the complaint raised about Mr Graham, and the Crossan report, as showing an animus by Mr Crossan towards the union. We reject the claimant's case on these points as set out below.
72. Mr Crossan's uncontested evidence was that the complaint about Mr Graham was well-founded in that Mr Graham accepted the point made. We therefore decline to draw an adverse inference from Mr Crossan's complaint about Mr Graham, and we do not find that it displays animus by Mr Crossan to the trade union.
Exclusion of Mr Boomer
73. There clearly were issues between Extern and Mr Boomer in relation to the way he allegedly dealt with things. The issues for us are whether Mr Boomer's removal was detrimental to the claimant and whether that removal was on grounds of the claimant's political opinion.
74. The detail behind the removal of Mr Boomer was not relevant to our hearing. We therefore have taken account of the following material before us in that regard namely that he was removed and banned from Extern premises on 3 February 2011 after a complaint was made to his union about his alleged behaviour in another unrelated matter. We also have material from the first tribunal's decision set out at paragraphs 48 and 49 above.
75. Mr Boomer was excluded two days before the disciplinary hearing and the disciplinary hearing adjourned on 6 February 2011 because Mr Boomer was not available. Mr Crossan had had the report about Mr Boomer from 12 January and considered it during the intervening three weeks and made enquiries before taking that step of excluding him.
76. The first tribunal clearly recognised that Mr Crossan had been deeply affected by the allegations made against Mr Boomer. We also have Mr Crossan's evidence to us of his view of the seriousness of the allegation. This reaction does not seem unreasonable to us given the seriousness of the allegation against Mr Boomer. We have taken account of this material without reaching any view as to whether or not the raising of issues against Mr Boomer was justified or not or whether those issues were well-founded or not.
77. We accept that Mr Crossan was prompted to move against Mr Boomer because of a complaint that had been made about him in an unrelated matter. We do not accept there was any delay in his dealing with that matter as we accept his evidence that it took him three weeks to investigate the allegation which had been made before he took the step to bar Mr Boomer from the premises. This does not seem unreasonable to us given the seriousness of the allegation against Mr Boomer.
78. We find it noteworthy that Mr Boomer was not restricted earlier; it only occurred after Mr Crossan received a complaint about him.
79. We therefore find that the reason for the exclusion was because of the report which raised a complaint about Mr Boomer in a matter unrelated to the claimant and consequently we find that the reason did not relate to the claimant's perceived involvement in trade union activities.
80. The respondent also contended that the removal of Mr Boomer did not amount to a detriment at all because Mr Graham, who replaced him was more senior and he had dealt with the grievance on behalf of the claimant. The height of the claimant's point on this was that Mr Boomer had dealt with matters in Extern generally and was more knowledgeable about the situation and was removed days before the disciplinary hearing.
81. We do not accept that the exclusion of Mr Boomer the Friday before the scheduled disciplinary hearing amounted to a detriment given that: firstly, the hearing was put off to allow the claimant to obtain new representation; secondly, Mr Graham was a more senior trade union official; and, thirdly, in our hearing there was no criticism of Mr Graham's performance during the disciplinary proceedings. From the correspondence between the parties it is clear that Mr Crossan was at pains to accommodate the claimant and his trade union representative. The problem was with Mr Boomer as an individual because of the complaint made against him.
The Crossan report
82. We find (as set out below) that the grounds for the decision in this case, ie the factual criteria that determined the decision made by the alleged discriminator, are set out in Mr Crossan's report in his finding that the claimant made the statements and was guilty of gross misconduct in five respects.
83. The claimant pointed to paragraphs 7.1-7.14 of the Crossan report relating to
Mr Crossan's consideration of charge 5 which is described at para 7.1 as follows:
"This issue relates to Mr McCann's alleged provision of information which subsequently led to the promulgation of statements which Extern considered to be potentially defamatory. This is one of the outputs from the action that certain Extern employees took in mid-2010 as part of what is described as "The Justice for Tom McCann Campaign." Before considering this specific part, the disciplinary panel considered what involvement Mr McCann had in "The Justice for Tom McCann Campaign." (emphasis added)
84 . The report outlines the claimant's involvement in the campaign by setting out the chronology starting with the circumstances of Ms Kerr's appointment as a trade union representative. It was uncontested that proper notification of her appointment had not been made by Mr Boomer and that this was in breach of trade union and management agreements. Mr Crossan then reaches conclusions on the likelihood of the claimant being involved in the "Justice for Tom McCann campaign" by setting out his assessment of the claimant's involvement in the content and circulation of the leaflet.
85. It is clear from the report that Mr Crossan connects all 3 matters ie the lunchtime protest the leaflet and Facebook page and it is also clear he perceives them to be trade union activities. He concludes that the claimant was involved in them after having examined how close the connections were between the key players. We accept his evidence that he believed it was necessary for him to look at these connections in order:
(1) To decide whether the claimant was telling the truth when he said that he knew nothing of the campaign;
(2) To determine the claimant's level of culpability relating to the content and circulation of the leaflet; and,
(3) To determine whether trust and confidence had broken down between the claimant and his employer because he had to assess whether the claimant's actions undermined senior managers.
86. We find that the context was Mr Crossan's genuine belief that there was an attempt to promulgate defamatory allegations and statements with the intention of damaging Extern.
87. Mr Crossan's conclusions at 7.12 (c) and (d) of his report relate to the connections between Ms Kerr, Mr Boomer, the claimant and Extern as his focus was on the claimant's conduct in providing information and promulgating the information We accept that Mr Crossan was looking at those actors as employees who made statements about Extern because the claimant's behaviour as an employee was connected to that.
88. We accept Mr Crossan's evidence that the claimant's trade union activities had nothing to do with his treatment of the claimant. The comments in issue are outlined in the report at paragraph 4.7:
"In giving evidence to the independent investigator, Mr McCann and Mr Boomer made a number of statements about the outcome of Ms Melaugh's claim to an industrial tribunal. On the basis of these statements about the outcome of Ms Melaugh's industrial tribunal claim, Mr McCann and Mr Boomer made further allegations about the conduct of Ms Cuddy, Mr Rooney and Ms Stevenson. These allegations included:
· Ms Cuddy and Mr Rooney (sic) were "bullies and dictators and disciplinary action is being stamped on people";
· Ms Cuddy, Mr Rooney and Ms Stevenson "were a triangle of oppression - they were behind the discrimination."
· the allegation of oppressive management culture could also be made against Ms Cuddy and Mr Rooney
· Mr McCann was being singled out and victimised by Mrs Cuddy;
· Mr Rooney "was part of the monster who had created fear and intimidation".
89. We find that those comments were reasonably regarded by Mr Crossan as very serious because effectively it appeared to him that a senior manager was involved in undermining the organisation and other senior managers. It was uncontested in the evidence to us that Mr Boomer answered for the claimant in relevant meetings. That is why Mr Crossan regarded them as "speaking with one voice" and therefore that the claimant endorsed the comments made by Mr Boomer in addition to the claimant making inappropriate comments himself.
90. It was also common case that the claimant had a difficult relationship with Mr Rooney and Ms Cuddy. The claimant accepted in cross-examination that he had felt left out and unwanted long before the lunchtime protest took place.
91. Mr Crossan sets out his conclusions in the report and the claimant pointed us to paras 10.3 and 10.4 under the heading "Summary of Outcome" which state:
"10.3 It is clear that with the appointment of the Chief Executive in 2005 and the appointment of the Director of Adult Services in 2007, that Mr McCann has not been prepared to work with the senior team to support strategic and corporate management in the business. When McCann's line managers, began to expect and seek Mr McCann's positive engagement in strategic and corporate management, Mr McCann has resisted this at every opportunity. The further processes, including the redundancy process and the Courtney report showed that he is not willing to act for the benefit of the organisation.
10.4 By his own admission he had no trust and confidence in the organisation and his subsequent actions have led to fundamental breaches of trust and confidence on his part and an irretrievable breakdown in the trust and confidence that his employer could reasonably have expected to have in him as a senior manager."
92. The respondent pointed to this as evidence that it was extreme disharmony caused by the claimant over the years that influenced Mr Crossan. We accept that point and we find that they outline Mr Crossan's thinking ie linking misconduct (which we find he genuinely believed in) to the history of dealings between the claimant and his managers. We find that this was not tainted by any perception on his part that the claimant was involved in trade union activities and we therefore do not find facts from which we could conclude discrimination.
93. We find that the fact that the whole scenario involved perceived trade union actions in the form of the protest, the leaflet and Facebook page did not taint the decisions taken about the claimant as we find that the trade union activities comprised the context, rather than an effective cause, of those decisions.
The Keenan decision
94. Whilst the parties referred in oral submissions at hearing to several authorities on admissibility and Phipson on Evidence, it was ultimately agreed by the respondent that the Keenan decision was admissible in evidence to us. It is not therefore necessary for the detailed submissions on Phipson and the law of evidence to be considered in this decision. The issue for us is how much, if any, weight to attach to that decision in the context of our case.
95. Mr Keenan tendered his resignation on 14 July 2010 and met Ms Cuddy on 20 July 2010 to ask for early release from his contract. This was refused. The lunchtime protest took place on 27 July 2010 and Mr Keenan was then told to leave early which meant that he was out of pocket. It was decided by the tribunal that Mr Keenan had shown trade union activities and detriment and under ERO it was then for the respondent to prove that the detriment was not on grounds of trade union activities. The tribunal set out carefully its findings on the respondent's failure to discharge the burden of proof and Mr Keenan succeeded in his claim. The Keenan hearing and decision took place in June 2011.
96. Mr Potter submitted that the fact that Mr Keenan was successful in his claim to the tribunal was material which we could consider when deciding whether or not the claimant had proved facts from which we could conclude that Mr McCann suffered discrimination under FETO.
97. We have considered the Keenan decision in our deliberations and attach no weight to it for the following principal reasons:
(1) The focus of criticism in the Keenan case was Ms Cuddy and she was not the focus of criticism by the claimant in our case. The claimant had focussed on her in the case before the first tribunal alleging that she treated him adversely because he had previously had a sex discrimination case which was successful. That claim of victimisation by Ms Cuddy was dismissed by the first tribunal, it was not appealed and was therefore not before us. The person who was the main focus of the claimant's allegations in our hearing was Mr Crossan with a discrete allegation being made against Ms Stevenson. Ms Cuddy did not feature to any material extent in our case.
(2) We accept the proposition that Mr Crossan would not have been unaware of the difficulties between the claimant and his managers when Mr Crossan joined the organisation however we do not accept that there is any evidence that Mr Crossan was "taking up the baton" of discrimination on grounds of trade union belief from Ms Cuddy in circumstances where any historical allegations against her related to sex discrimination proceedings and associated victimisation allegations.
(3) Whilst Mr Keenan's claim arose from the lunchtime protest incident, it proceeded on a different basis (under ERO) to Mr McCann's claim which is under FETO. The distinction is important in that the burden of proof operates in a different way in each claim: in essence the ERO claim involved a lower hurdle for the claimant to surmount before the burden shifted. We agree with Mr Phillips' contention that Mr Keenan succeeded in his claim because the respondent was not able to satisfy the burden of proof in that case on the evidence before that tribunal. That was a very specific exercise carried out by that tribunal and we find that it does not assist us in dealing with this discrimination claim where the initial burden on the claimant is more onerous.
98. The issue here is whether it was detrimental to the claimant that Ms Stevenson told Ms Brown not to talk to Ms Kerr about whether or not the claimant was involved with the leaflet and Facebook page. This relates to the charge whereby the claimant was charged with providing information about his salary which led to an inaccurate leaflet about the cost of the process involving the claimant. The height of the claimant's point on this seemed to be that it caused a detriment in that a charge was later levelled against him by Mr Crossan in relation to the leaflet.
99 . It was clear that Mr Crossan regarded all the "actors" as having worked closely together and this fed into his assessment of the level of the claimant's involvement. It is not therefore clear to us what the actual detriment was following Ms Stevenson's comment to Ms Brown.
100. It is for the claimant to prove detriment and we find that he has failed to do so as it would involve speculation for us to conclude that things would have been different if Ms Stevenson had not spoken in that way and if Ms Brown had actually spoken to Ms Kerr. Mr Crossan's evidence was that he regarded the claimant as involved given the close connection between all the actors so he might have added charges anyway. There was also no evidence before us that Mr Crossan knew that Ms
Stevenson had told Ms Brown not to talk to Ms Kerr when he decided to add the charges.
101. We infer that Ms Kerr would likely have confirmed that the claimant was not involved in the leaflet. It would, however, involve speculation for us to go a step further to draw a further inference that he might not have been charged by Mr Crossan with one of the charges as the charge might have been levelled by Mr Crossan in any event given his view of the connections between the claimant and the other "actors". We also found no evidence of taint ie that Ms Stevenson did this because of the claimant's trade union beliefs.
102. The claimant also contended that we should look at the alleged adverse treatment of Ms Kerr following the lunchtime protest in support of his contention that Mr Crossan's treatment of him was on grounds of his political beliefs. The only evidence before us on this point was the suspension letter which outlines that Ms Kerr was suspended on 3 August 2010 for an email of 24 July 2010 from an anonymous email account. Mr Crossan was not in the organisation at the time Ms Kerr was suspended as he joined in September 2010.
103. There is reference in the suspension letter to the content of the leaflet being: "inaccurate, inflammatory, potentially indicative of an intention to act contrary to the interests of Extern". We regard this as evidence pointing to the content of the leaflet being the problem rather than the fact of it (and the other associated activities) being trade union activities. We therefore find that it was the content of the leaflet that was the problem and the fact that it was circulated anonymously to outside funding bodies rather than the fact that Ms Kerr may have been (or may have been perceived to have been) doing this as a trade union official.
The Parties' Submissions
Construction of the Hypothetical comparator
104. Mr Potter submitted that the hypothetical comparator had the following characteristics:
(1) That he was materially similar to the claimant except for the protected characteristic, that is, the perception of involvement in trade union activities.
(2) That he was not perceived as involved in trade union activities.
(3) That he was someone potentially facing misconduct charges;
(4) That he was guilty, or not guilty, of the same level of conduct or misconduct as the claimant. In this regard we note that the first tribunal found that four charges were unreasonably found to constitute gross misconduct and the remaining charge (which was charge 5 the defamatory remarks issue) was found by the first tribunal to be misconduct which fell short of gross misconduct.
(5) That he would not have been charged with these offences or any charges.
105. Mr Potter submitted that the hypothetical comparator would have been treated differently by Mr Crossan in the following respects as this is what any reasonable manager acting rationally would have done:
(1) He would only have dealt with the three charges presented to him and would not have added two following the Brown report. We reject that point as we find that the comments in issue were reasonably regarded by Mr Crossan as serious and we accept his evidence that they could not be ignored.
(2) He would have adjourned the hearing to accommodate the claimant's medical condition and would have given an opportunity for submissions to be made in relation to the disciplinary matters and the grievance.
(3) He would have found misconduct on one charge at most and that would have been less than gross misconduct.
(4) The claimant would not have been dismissed.
(5) The suspension would have been lifted.
106. Mr Phillips contended that, in constructing the hypothetical comparator the following constituted relevant circumstances:
(1) That disciplinary charges had been raised against the claimant before the lunchtime protest.
(2) That there had been three investigations relating to the claimant none of which the claimant connected to his trade union beliefs or activities and all of which preceded the lunchtime protest.
(3) That the claimant had been suspended for a period before the lunchtime protest.
(4) That the relationship had broken down between the claimant and senior managers in that it was common case that the claimant had raised six grievances before the lunchtime protest took place; he had been kept out of the workplace on suspension and the claimant accepted that there were difficulties between him and senior managers (other than Mr Crossan) between 2007 and 2010.
(5) That his representative Mr Boomer had made incorrect representations during the claimant's investigation relating to another employee (Ms M's tribunal claim which had previously settled) and had also made inflammatory comments about senior managers.
(6) That the claimant's evidence was that he had had no trust and confidence in the organisation for a lengthy period prior to the lunchtime protest.
107. The respondent, in essence, submitted that it was someone without the claimant's political opinion but with the same history as the claimant, namely, someone in conflict with senior management over a long period in that he had raised six grievances and had had a long history of dispute with a series of managers.
108. Whilst Mr Phillips contended that a relevant circumstance was that Mr Crossan reached the view that the claimant was not prepared to work with senior managers from 2005 to 2007, we agree with Mr Potter that this circumstance relates to the "reason why" Mr Crossan acted as he did and does not constitute a relevant circumstance for constructing the hypothetical comparator. One must construct the hypothetical comparator using circumstances other than the content of the impugned decision.
The correct test to be applied
109. At the reconvened submissions hearing, the further contentions were as follows for the claimant.
(1) That the present case is an obvious case of discrimination firstly, because of the nature of the Crossan report as there is primary fact evidence of discrimination contained in that report, and secondly, because of the unfair dismissal finding of the first tribunal. In accordance with the JFS guidance, in an obvious case one does not need to consider the mental processes of the alleged discriminator.
(2) That this is a case of an inherently discriminatory act in that the purported reasons for dismissal contained in the Crossan report make clear that a significant part of those reasons address trade union factors and that those factors were therefore an integral or intrinsic part of the dismissal decision. Mr Potter further submitted that there were disingenuous grounds for the dismissal and that reasons were trumped up for it.
(3) That the tribunal must consider whether a hypothetical comparator would have been dismissed anyway, whether that comparator would have been dismissed unfairly and, if so, then the reason why that unfair dismissal might have occurred. It was Mr Potter's submission that the respondent had not established that it would have dismissed the comparator regardless of trade union activities.
110. We reject the contention that this is an obvious case of discrimination and we do not accept that the reason for the impugned treatment was inherently discriminatory. The fact that the dismissal was found to have been unfair is no more than one factor for us to assess in deciding at the first stage of the process whether or not the claimant has proved facts from which we could conclude discrimination. In reaching our conclusions at the first stage of the process, we have had to determine as a fact, the reason why Mr Crossan acted as he did by examining his mental processes and by assessing whether to draw adverse inferences from surrounding facts. We have also had to determine factually whether the perceived trade union activities were merely the context for, or an effective cause of, the impugned acts.
111. It is only after the claimant discharges the initial burden of proof that the burden shifts to the employer to provide an untainted explanation. We therefore reject the claimant's contention that the burden is on the employer to prove that the hypothetical comparator would have been dismissed unfairly for a non-discriminatory reason. In our judgment this would reverse the burden of proof to put the burden on the employer to disapprove discrimination before the claimant proves the necessary facts and detriment.
112. As set out above we reject the contention that the "but for" test is appropriate in this case. As stated in the JFS case, when reference is made to the James v Eastleigh Council case and the Birmingham case, the "but for" test is appropriate where the reason for the treatment is clear from the facts but the respondent seeks to put forward a benign motivation for making the impugned decision. This is not the scenario in the present case as one of the key points we have had to decide is whether the perceived trade union activities were merely the context for the alleged discrimination.
113. The respondent essentially exhorted us to look at the adverse treatment to find that impugned decisions were related to personalities and a history of difficulties between the claimant and senior managers and that there was no evidence of less favourable treatment due to perceived trade union activities: the trade union activities were the context not the cause of any adverse treatment.
114. In contrast the claimant's case was that everything sprang from perceived trade union activities and that this fact, together with the surrounding circumstances, was enough to taint the unfair and unreasonable decisions in that the circumstances show that a cause of the treatment was the perception of involvement in trade union activities.
115. The claimant was very clear in his evidence that the respondent, in the form of several senior managers, was "out to get him" by treating him unfairly in breach of natural justice for a long period before the lunchtime protest. The issue for us is whether the perception of involvement in the lunchtime protests and associated matters was an effective cause of the dismissal.
116. The fact that the claimant may not have recognised that any adverse treatment was because of his trade union belief is not determinative of the "reason why" issue but it is one factor for us to weigh in the balance as, if the claimant and his trade union representatives at no point put this forward as a reason for the treatment (even though the disciplinary process had connections with the lunchtime protest and leaflet) then it can be argued that there is little or no reason for us to attribute that reason to Mr Crossan.
117. We do find it relevant to our deliberations that the claimant in his grievances did not attribute any of his adverse treatment to his trade union beliefs. He made no reference to that in his claim form to the tribunal, and his NIPSA representatives did not allege this throughout the internal processes. The first statement for the first tribunal said that detrimental treatment was because of the sex discrimination claim in 2007 and in the claim form he said the same. The claimant only alleged political discrimination following the Keenan decision in August 2011. The claimant in cross-examination accepted that the adverse treatment before the lunchtime protest was not because of his trade union beliefs as his focus was very much on Mr Crossan's decision following the protest.
118. The first issue therefore for the Tribunal is to determine factually what was the reason for the alleged detrimental treatment. In this case the primary allegation of detriment was that Mr Crossan decided to dismiss the claimant. In determining the factual reason for that decision we have set out above our findings on Mr Crossan's mental processes and our factual findings on the reasons for his decisions which we have found to have been untainted by discrimination.
119. The authorities make clear that it is permissible for the tribunal to look at the 'reason why' question first where (as in this case) there are difficulties in clearly outlining the characteristics of the hypothetical comparator. When the tribunal determines as a fact what the reason for the treatment was, it can then go on to assess whether that treatment was less favourable than treatment which would have been accorded to the hypothetical comparator. In other words the tribunal determines whether that treatment was on prohibited grounds in that an "effective cause" of the treatment was the protected characteristic, namely the perception that the claimant was involved in trade union activities. After conducting that exercise the tribunal can look at whether the claimant has shown less favourable treatment than a hypothetical comparator.
120. In this case the claimant asks the Tribunal, firstly, to find that the contents of the Crossan report amount to primary fact evidence of discrimination and to look at the surrounding circumstances in order to draw an adverse inference that the facts proved are facts from which a tribunal could conclude that discrimination occurred. The inferences to be drawn from surrounding facts are relevant both to the issue of the reason why the claimant was treated as he was and to whether detriment occurred.
121. Whilst the context of the treatment was partly the trade union activities, our findings from the evidence as a whole (as set out above) are that there was also an issue about Mr Boomer's behaviour as an individual and there was a valid perception on the part of Mr Crossan that the claimant made unacceptable comments and was also involved in unacceptable comments made by Mr Boomer. This led to a reasonable perception by Mr Crossan that the claimant was engaged in comments which undermined the relationship between him and senior managers.
122. We find that the severity of the penalty imposed by Mr Crossan related to his genuinely-held belief that the claimant engaged in comments which demonstrated a breakdown in the relationship between him and his managers. Mr Crossan's report makes clear his assessment that the problems the claimant had with management and the respondent reached back over many years. He also makes clear that the charges he was considering were connected to that history. The difficulties in that relationship had developed and gained momentum during the long period before the lunchtime protest took place.
123. Whilst this led Mr Crossan to treat the claimant severely in the process which led in turn to the dismissal following his conclusion that all five charges amounted to gross misconduct, we are not persuaded that the claimant has shown that that unfairness could have been tainted by his trade union belief given our factual findings on the reasons for Mr Crossan's actions. Mr Crossan was found to have unfairly dismissed the claimant but we do not find that unfair decision to have been tainted by discrimination as we do not find that he had any animus towards trade union activities.
124. We therefore find that the reason why the claimant was treated as he was untainted by discrimination. The claimant has therefore failed to prove facts from which we could conclude that acts of discrimination occurred.
125. Insofar as we need to do so we find that the circumstances relevant to the construction of the hypothetical comparator are as follows: that he was a manager with a clear record who had a history of conflict with a number of his managers over several years to the extent that he raised six grievances against various managers. The hypothetical comparator would have been unhappy in the organisation, would have felt unwanted over a long period, and would have believed that his employer wanted him out of the organisation. He would have been guilty of misconduct short of gross misconduct and would initially have been represented by an individual in respect of whom a serious complaint had been made in an unrelated matter.
126. As a consequence, we find that the claimant has not shown that he was treated less favourably than a hypothetical comparator would have been. At this initial stage it is for the claimant to prove less favourable treatment and, contrary to Mr Potter's submission, we find that it is not the case that the burden is on the respondent to prove how a hypothetical comparator would have been treated.
127. In summary, we accept that Mr Crossan genuinely believed that the claimant was guilty of serious misconduct and that his actions in relation to the disciplinary process and penalty were not influenced by the perception that the claimant was involved in trade union activities. We decline to draw the inference that the treatment could have been on prohibited grounds given our assessment of Mr Crossan and our factual findings on the reasons for his treatment of the claimant.
128. We do not draw adverse inferences from the treatment of Mr Keenan, Ms Kerr,
Mr Boomer and Mr Graham as set out above.
129. We find no evidence from which we could conclude that the comment by Ms Stevenson to Ms Brown amounted to a detriment at all, nor that the reason for making it was related, as alleged, to the claimant's political opinion.
130. The claimant's claim is therefore dismissed.
Date and place of hearing: 11, 12, 13, 14 and 15 May, 30 September and
12 October 2015 at Belfast.
Date decision recorded in register and issued to parties: