FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   39/16 FET
48/16 FET
1073/16
1225/16

CLAIMANT:	Aydan Dzhelepli	

RESPONDENT:	Regency Carpet Manufacturing Ltd

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim of unfair dismissal and further claims of unlawful discrimination on racial grounds and on the ground of religious belief, are dismissed as set out in paragraph 10 of this decision.

Constitution of Tribunal:

Employment Judge:	Employment Judge Crothers	

Members:			Mr R Hanna
				Mrs G Ferguson

Appearances:

The claimant was represented by Mr T Campbell of Campbell Stafford Solicitors.  The claimant was assisted by a Bulgarian interpreter, Ms Spasova.

The respondent was represented by Mr Isherwood of ELAS Ltd.

THE CLAIM

1.	(i)	The claimant claimed that he had been unlawfully discriminated against on racial grounds (specifically “national origins”), and on the ground of religious belief.  He also claimed that he had been unfairly dismissed by the respondent.  The respondent denied his allegations in their entirety and contended that his pre-February 2016 complaints were out of time.

(ii)	“Racial grounds” are defined in Article 5(1) of the Race Relations (Northern Ireland) Order 1997 as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins”.

(iii)	Any reference to racial grounds in the context of this case means “national origins”.

(iv)	A copy of the record of a Case Management Discussion held on 19/12/16 is appended to this decision.

THE ISSUES

2.	The parties after considerable difficulty, eventually agreed the issues in their final form on 19 December 2016, as follows:-

ISSUES OF FACT

1.	Did the respondent fail to follow its harassment/grievance policy?

2.	Was the investigation satisfactory in addressing the claimant’s complaint?

3.	Is the respondent correct that full procedures were followed in this case?

4.	Is the respondent correct that the allegations were not shown to be proven?

5.	What was the real reason for dismissal?  Was this related to his complaint against Mark Armstrong?  Did the respondent’s conduct amount to victimisation and discrimination?

6.	Did the claimant have a clear disciplinary record and did the respondent properly consider mitigating circumstances?

7.	Did the respondent apply a disciplinary sanction inconsistently?

8. 	Did the claimant’s complaint to Mr. Large on 8th October 2015 and any subsequent clarification of this create a protected act and was the management of that process evidence of victimisation on racial grounds and/or on the ground of religious belief? Did the disciplinary process and sanction amount to victimisation of the claimant? Did Mr. Armstrong’s treatment of the claimant after 8th October 2015 amount to victimisation after a complaint had been lodged against him?

9. 	Did the claimant make reasonable efforts to mitigate his loss?

ISSUES OF LAW

A.	Was the claimant subjected to detriment by the respondent by being subjected to a disciplinary process and dismissal? If so was the reason for the detriment related on racial grounds?

B.	Did the respondent operate a fair procedure in investigating the claimant’s complaint and in taking disciplinary action: see Article 130 (a) and (b) of the 1996 Order?

C.	Having regard to the true reason for dismissal was that reason such as to justify dismissal, Ibid, Article 130 (1) (b)?

D.	Was the claimant victimised by the respondent by reason of his dismissal on disciplinary charges for making a complaint against his line manager? 

E.	Did the respondent follow a fair procedure in dismissing the claimant?

F.	Was the dismissal fair in the circumstances: Article 130 (4) (a)?

G.	Was the claimant treated less favourably on racial grounds?  Race Relations (NI) Order 1997, Article 3 (1)(a) (Racial discrimination) or Article 4 (victimisation)? Was he treated less favourably than the respondent treated Peter Long or a manual or supervisory worker on the shop floor?

H.	Was the claimant treated less favourably on the ground of his religious belief? Fair Employment Treatment Order (NI) 1998 as amended by the Fair Employment and Treatment Order (Amendment) Regulations (NI) 2003 Article 3 (1) (a) (discrimination on the ground of religious belief) or (b) (discrimination by way of victimisation)?

I.	Did the act of the respondent subjecting the claimant to a disciplinary process and sanction amount to victimisation on racial grounds and, if so, was this a detriment suffered by the claimant on prohibited grounds contrary to Article 4(2)(b) and 4(2)(a)(iv) of the 1997 Order and/or Article 5 (a) (iv) or Article 5 (b) of the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended?

J.	Given the respondent’s approach has the claimant proved facts from which a Tribunal could conclude that acts of discrimination or harassment took place, see Article 52(a) (2) Race Relations Order; Article 24, Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003?

K.	Were the claimant’s complaints raised in February 2016 within time? If not, should the Tribunal extend time to consider the matters in the ET1 prior to that said date?

L.	In terms of quantum has the claimant suffered injury to feelings and pecuniary loss and, if so, what is the proper measurement of compensation?

SOURCES OF EVIDENCE

3.	The Tribunal heard evidence from the claimant and on the respondent’s behalf from Fiona Fryer (nee Savage), temporary HR Administrative Officer, Shane Stevens, Tufting Manager, Mark Armstrong, Nightshift Manager, Stephen Large, Production Manager, Keith Megson, Warehouse Manager, Keith Parry, Backing Plant Manager, (who conducted the disciplinary hearing), and Richard Clarke, Financial Controller/ Company Secretary, (who conducted the disciplinary appeal hearing on 11 May 2016).  The Tribunal received a bundle of documentation together with other correspondence in the course of the hearing.  

4.	(i)	During the hearing the Tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (‘Rogan’) – judgement delivered on 13 October 2009.  

		In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-

	[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]

	“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the Tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…

	The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the Tribunal.  In this instance it appears that the Tribunal has strayed into the forbidden territory of making its own determination of the evidence.”

	(ii)	The Tribunal therefore sought to avoid straying into the ‘forbidden territory’ of making its own determination of the evidence.

FINDINGS OF FACT

5.	Having considered the evidence insofar as same related to the issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-

(i)	The claimant was employed by the respondent from 13 May 2013 until the effective date of termination of his employment on 7 April 2016.  

(ii)	Claim references 39/16FET and 1073/16 were presented to the Tribunal on 21 March 2016 (“the first claim”).  The claimant had had the benefit of advice from the Citizens Advice Bureau, and at that stage from the Equality Commission for Northern Ireland.  The minutes of a disciplinary investigation meeting dated 10 February 2016 contain a paragraph drafted for him by the Equality Commission for Northern Ireland, which is referred to below.  In paragraph 7.1 of his claim form the claimant asserts that he was discriminated against on racial grounds and on the ground of religious belief/political opinion.  Paragraph 7.2 specifies 10 February 2016 as the date on which the most recent matter about which he was complaining happened.  This paragraph also makes clear that his allegation was that the alleged discrimination was ongoing.  Paragraph 7.3, which refers specifically to discrimination on the grounds of religious belief/political opinion contains the date of 2 February 2016, being the date on which the claimant stated that he first knew of the matter about which he was complaining.  The claimant references paragraph 7.4 which includes details of the claim.  Although the claimant refers to typical examples of harassment subsequently in paragraph 7.4, he begins the paragraph by stating that:-

	“My claim is based on two acts of victimisation carried out by my employer, Regency Carpet Manufacturing Ltd”.

He then refers to specific alleged incidents on 8 February 2016 relating to being moved from nightshift to dayshift and 12 February 2016 regarding suspension from his job in light of accusations that he had made false statements during an ongoing grievance process.  He asserts that the alleged acts of harassment “began in and were ongoing during the grievance process, which began on 19 October, continuing until my suspension”.  

(iii)	The claimant is Bulgarian and Muslim.

(iv)	The claimant’s other claim (48/16 FET and 1225/16) (“the second claim”) was presented to the Tribunal on 25 April 2016, in advance of his appeal against dismissal.  In his claim form the claimant alleges unfair dismissal and, in paragraph 7.2, entitled “If you are complaining about discrimination” he provides the date of 7 April 2016 as being the most recent date on which the matter about which he was complaining happened.  This was also the effective date of termination of his employment.  In relation to paragraph 7.3, relating to allegations of discrimination on the grounds of religious belief/political opinion, the claimant provides the date of 6 April 2016, being the date of the disciplinary hearing, which resulted in the claimant being dismissed for gross misconduct.  

(v)	The claimant did not allege unlawful discrimination on the ground of political opinion during the hearing, and his representative clarified that no case was being made in this respect.

(vi)	In minutes of the disciplinary investigatory meeting dated 10 February 2016, it is recorded that the claimant had a statement which he wished to have included in the minutes.  He handed this to Fiona Fryer.  It reads as follows:-

			“I believe that after the conclusion of grievance proceedings the decision to take disciplinary proceedings against me may amount to victimisation on the grounds of racial origins (Bulgarian) and religious belief (Muslim) contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998, the Race Relations (Northern Ireland) Order 1997 and the relevant European Law”.

(vii)	Although the claimant was assisted by an interpreter during the respondent’s internal procedures and during the Tribunal hearing, the Tribunal is satisfied, on the evidence, that he has substantial knowledge of spoken as opposed to written English.  Keith Parry, in his evidence, referred to a half hour conversation with the claimant in English which appeared to pose little or no problem for either side.  

(viii)	The claimant also sought to rely on various diary entries made by his line manager, Mark Armstrong in order to contend that there was a culture of fear within the workplace and to undergird his case of unlawful discrimination on the ground of national origins and religious belief.  The Tribunal accepts that there was a series of ongoing problems involving Mark Armstrong, the Nightshift Manager, and Stephen Large, the Production Manager.  However all such issues were resolved between the two individuals as a result of a conversation they held on 25 September 2015.  The Tribunal is not satisfied that there was a culture of fear within the workplace.  Furthermore the diary entries opened to the Tribunal reveal that prior to February 2016, there were some generalised and sporadic references by the claimant to discrimination, harassment and bullying without reference to specific prohibited grounds such as race or religion.  The nearest reference to such a ground is recorded in the minutes of a grievance meeting held on 2 November 2015 made by Stephen Large to the claimant’s allegation that Mark Armstrong was picking on him.  Asked why he believed this, the claimant is quoted as saying “may be nationality of may be because I talk straight”.

(ix)	The Tribunal also carefully considered the diary entries it was referred to, together with the claimant’s 12 points of grievance as reflected in the grievance outcome letter dated 10 January 2016 signed by Stephen Large, Production Manager.  The only reference to race or religion in that correspondence occurs at the end in the following terms:-

			“I have checked the Night Shift Works diary and it is evident that Mr Armstrong has indeed spoken to others regarding their uniform or other P.P.E regardless of nationality or religion.  I cannot therefore uphold your claim that you were discriminated against on this point”.

(x)	Part of the claimant’s case was that the respondent’s harassment policy ought to have been employed instead of the grievance policy.  However the respondent’s witnesses were clear in their evidence, which the Tribunal accepts, that the grievance policy was the appropriate policy to use following an alleged incident on 7 October 2015, which is recorded in Mark Armstrong’s diary as follows:-

	“0300 A. Dzhelepli approached me to complain that the creeling team he was part of were throwing cones from upper level to the bins on the ground level.  I spoke to P. Long who admitted doing this and told him to cease it which he agreed to.  Dzhelepli complained that he had nearly been hit”.

In his evidence before the Tribunal, the claimant admitted that he had not been hit by a cone.  The Tribunal was also shown a sample of the cone used in the alleged incident which, being devoid of yarn, is light in nature.

(xi)	The Tribunal was afforded the opportunity of viewing CCTV footage of the alleged incident on 7 October 2015, and an earlier alleged incident on 
19 June 2015, also referred to in the grievance.  The earlier incident involved an allegation by the claimant that Mark Armstrong and Shane Stevens approached him in the car park, ignoring at least one other person, and launched a highly aggressive verbal attack on him for being in the car park too early.  The CCTV footage did not extend to the car park and was of little benefit to the Tribunal except to show time periods preceding the clocking-off time of 8.00 am.  The footage involving the further incident on 7 October 2015 was inconclusive in establishing whether the bin was being moved by the claimant when Peter Long was throwing cones into it.  Peter Long maintained in the course of the disciplinary investigation conducted by Keith Megson, that he had thrown cones down not while the claimant was moving the bin (as he alleged) but when the bin was stationary.  In any event, the cone did not hit the claimant, as he admitted in his evidence before the Tribunal.  

(xii)	At the disciplinary hearing Keith Parry thought and concluded that Peter Long was in fact telling the truth about the incident and was therefore not telling lies.  The claimant also maintained at the disciplinary hearing held on 24 March 2016 that he was 100% sure that he had been hit by the cone.  (He had also informed Stephen Large in the course of the grievance that a cone had hit him on the head).  After viewing the CCTV footage Keith Parry concluded that the claimant was being dishonest in his account.  He also concluded that the claimant was being dishonest in relation to his account of the alleged incident in the car park on 19 June 2015.  Keith Parry further concluded that the claimant’s dishonesty, which is categorised as gross misconduct in the respondent’s policy, also led to a breakdown in trust and ultimately to the claimant’s dismissal.  He described such a breakdown in trust as being “dramatic”.  

(xiii)	The earlier grievance outcome letter signed by Stephen Large the Production Manager, dated 10 January 2016, referred to 12 grievance points raised by the claimant, all of which were dismissed.  However, from these, two became the subject of Keith Megson’s disciplinary investigation and the subsequent disciplinary and appeal hearings.  They are categorised in Stephen Large’s grievance outcome letter as follows:-

	“2.	On 7th October 2015, I was sent from Desy to work on the creeling with other employees, Peter Long, Karl Lowry, John Dorrian and Peter Woods.  We worked on machine number sixteen.  I started to load empty bins.  I was driving the truck, I put the two empty bins on the floor and put one upstairs.  Then when Jonny starts to throw empty cones from the second floor.  I told him to stop and he did.  At the same time Peter Long was close to him and heard everything.  We continued to work then Peter Long started to throw cones again.  I told him to stop and he didn’t, then a cone hit me on the head.

	Response:  Further to investigation of this incident and having the opportunity to view it on cctv I can conclude that Mr Armstrong acted upon your report of the incident: he challenged the operator whom you reported.  I conclude that he did not discriminate against you.

	I would recommend further investigation of your claim that you were struck by a cone and your actions leading up to the incident ...

	11.	One morning at 7.56am, I was going to the car to change my cloths [sic], because do not have a locker.  Then Mark came with another person (I could not read name – from the interpreter).  They was highly aggressive (verbal.  Then I spoke to them that I do not have a key for a locker.  In the same time there was a lot of other workers on the part site, doing absolutely the same, but they do not tell them anything, just on me.  After that I received a key for locker (after 2 years of waiting).

	Response:  After speaking with you at the grievance meeting in regard to this point I carried out a thorough investigation of the incident.  I am satisfied that Mr Armstrong or anyone else for that matter did not discriminate against you on this point.

	Further I would recommend an investigation into this allegation in light of the inconsistencies on your part.”

	This second incident is a reference to the car park incident which allegedly occurred on 19 June 2015.

(xiv)	The Tribunal reiterates that it is satisfied that the grievance procedure was the appropriate procedure in which to address the issues raised by the claimant both orally and in writing following the alleged incident on 7 October 2015, and no representations appear to have been made by or on his behalf to the contrary, except at the hearing before the Tribunal.  Moreover, the claimant did not appeal the grievance outcome.

(xv)	The claimant was suspended by letter dated 10 February 2016, signed by Keith Megson, Warehouse Manager, in the following terms:

		“Dear Aydan,
	
Re: Suspension

I write further to our meeting on Friday 5th February 2015 when you were advised that the company believed it to be appropriate for you to work on dayshift until completion of the ongoing investigation against you.

You have since informed the company that you are unable to work dayshift hours due to outside work commitments.  I am therefore confirming that you will be suspended with full pay pending the results of a formal investigation.

Please note that suspension is standard procedure in matters of this nature and does not indicate guilt in any way.  Suspension does not constitute disciplinary action.

I must ask you to refrain from entering the Company’s premises at this stage of the investigation unless requested to do so by Management.

Yours sincerely

Keith Megson
Warehouse Manager”

(xvi)	The claimant’s comparator was identified during the hearing as Peter Long in relation to both the racial discrimination and religious discrimination complaints.  The claimant’s written submissions also refer to a hypothetical comparator, being, it is suggested, a person working at the same level on the shop floor subject to the same health and safety and disciplinary requirements accused of telling an untruth in the course of an internal investigation.  The claimant laid no evidential basis for a hypothetical comparator other than Peter Long.

(xvii)	The claimant appears to have had a clear disciplinary record.  It is obvious to the Tribunal that the respondent, both at the disciplinary and appeal hearing stages obviously concluded that any such mitigating factors were outweighed by the seriousness of the allegations and did not prevent the claimant’s dismissal for gross misconduct.  Keith Parry described mitigating factors as irrelevant in his evidence before the Tribunal.

	(xviii)	The Tribunal finds it appropriate to set out the disciplinary outcome letter dated 6 April 2016 as follows:-

	“Dear Aydan

	Re:  DISMISSAL GROSS MISCONDUCT

	I write further to our disciplinary meeting on Thursday 24th March 2016 at 9.00am.

	At this meeting your conduct/performance was discussed with regard to.

•	Dishonesty in relation to claims made during a grievance process.
		
		I have considered the evidence, the documentation, the minutes of the meetings, the CCTV footage and the statements made.

		I have reached the following conclusions;

		I have a strong belief that you made fraudulent accusations against your line managers, that you were dishonest and misleading at the time of the incident and that you later raised a grievance against your line managers with the knowledge that the basis of your grievance was untrue.

		I have considered whether or not a lesser sanction than gross misconduct should be imposed, however the inconsistency of your statements and the credibility of your explanations, which have consistently been adapted to suit your changing version of events have led to a total breach of trust and confidence.

		Accordingly, I am writing to inform you of my decision, that you be dismissed without notice or payment in lieu of notice for gross misconduct as of 8.00am on Thursday 7th April 2016.

		You have the right to appeal against this decision.  Any such appeal must be made in writing to Richard Clark within five working days of receiving this dismissal letter.

		Yours sincerely,

		Keith Parry
		Backing Plant Manager”

	(xix)	Mr Parry was not aware of Mark Armstrong’s diaries during the disciplinary hearing.  

	(xx)	In his letter of appeal against dismissal dated 8 April 2016 the claimant states that:-

	“As you are aware I utterly refute you allegations of dishonesty and stand firmly behind my complaints against the company.  I accordingly wish to appeal against the decision to dismiss me for gross misconduct”.

(xxi)	The Tribunal also considers it appropriate to set out the appeal outcome letter dated 24 May 2016 as follows:-

	“Dear Aydan

Appeal Outcome

I write further to the appeal hearing that took place on Wednesday 11th May 2016 at 10.00 am in my office.

You appealed against the decision of the disciplinary hearing chaired by Keith Parry and held on Thursday 24th March 2016.  The decision of that hearing was that you be dismissed on the grounds of gross misconduct.

In my letters to you dated 21st April 2016, 27th April 2016 and 6th May 2016 I advised of your right to be accompanied, we rescheduled the meeting in order that you could make arrangements for your trade union representative to be available however you attended alone.

I am now writing to confirm my decision.

At the hearing you gave the following grounds for your appeal:

•	That you think that this whole process is entirely against you and that you are a victim.
•	You believe that from the first day a decision has been made for you to be laid off work.
•	You think you have been sacked unreasonably and unfairly.
•	That the entire process was unfair against you and you also stand behind the thought that you are a victim of the process.

I have considered this, I have spoken to Keith Parry regarding his decision and I have considered evidence in the form of minutes, witness statements, CCTV footage and diary entries.

Having considered the grounds for your appeal and the evidence in relation to this matter, I conclude that the decision to dismiss you was fair and reasonable.

It is therefore my conclusion that the decision that you be dismissed without notice or payment in lieu of notice for gross misconduct is upheld.

You have now exercised your right of appeal.  This decision is therefore final.

Yours sincerely

Richard Clark
Financial Controller”

(xxii)	In the course of evidence reference was also made to an official complaint by J Dorrian.  However it transpired, upon investigation, that the individual whom J Dorrian thought had hit his neck with a creel was not in fact the claimant, but someone else.  The Tribunal is satisfied that nothing turns on this alleged incident in the context of the claimant’s case or in relation to the other alleged incidents recorded in the 2016 diary entries preceding 8 February 2016.  

(xxiii)	The Tribunal is not satisfied, on the evidence, that the claimant was moved against his wishes and without reasonable justification from nightshift to dayshift on 8 February 2016.  It is satisfied that the claimant agreed to such a move, for which he was paid night time rates.  Furthermore, the Tribunal 

	finds that it was appropriate for the claimant to be suspended on 12 February 2016 in light of the accusations that he had made false statements during an ongoing grievance process.  

(xxiv)	The claimant adopted a schedule of loss as part of his evidence before the Tribunal.  He also gave evidence regarding mitigation of loss.  No medical evidence was produced in relation to his claim for injury to feelings.

THE LAW

6.	(1)	The law in relation to unfair dismissal is set out in Rogan as follows:-

(i)	“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.”

“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 it 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."

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee.   If the employer successfully does so the Tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.

[16]	The manner in which the Tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
	“[48]  The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978. 

[49]  The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111. 

[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 section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-

(1)	the starting point should always be the words of section 57(3) 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 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 the 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 Homes 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, there 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.”

	(ii)	At paragraph 26 of Rogan, Morgan LCJ states as follows:-

	“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for Tribunal.  In this instance at appears that the Tribunal has strayed into the forbidden territory of making its own determination on the evidence”.  

		Again at paragraph 27 of his judgment, Morgan LCJ states:-

		“In our view the conclusion by the Tribunal that ‘the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence’ is a firm indication that the Tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.

		In paragraph 28 he continues:-

		“The Tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence.  None of this is an indicator of a lack of reasonable investigation”.

		Girvan LJ in paragraph 7 of his judgement states as follows:-

			“The investigation was one which was reasonable in the circumstances.  It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a Tribunal decision.”

	(2)	Time Limits

(i)	Article 65 of the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”) provides that a Tribunal shall not consider a complaint under Article 52 unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.  Paragraph (7) provides that a Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.  Paragraph (8) also provides that any act extending over a period shall be treated as done at the end of that period.  

(ii)	Paragraph 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”) provides as follows:

	“46.- (1)  Subject to paragraph (5) [F1 to Article 46A] [F2 and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003], the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –

(a)	the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or

(b)	the end of the period of 6 months beginning with the day on which the act was done.

(5)	A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6)	For the purposes of this Article –

(a)	any act extending over a period shall be treated as done at the end of that period.”

(iii)	Article 2(3) of the 1998 Order provides that:-

	“In this Order reference to a person religious belief of political opinion includes references to – 

(a)	 	his supposed religious belief or political opinion; and

(b)	 	the absence or supposed absence of any, or any particular, common religious belief or political opinion”.

Article 3 of the 1998 Order contains provisions relating to discrimination and unlawful discrimination on the ground of religious belief and also contains provisions regarding victimisation. 

Article 3A of the 1998 Order contains provisions relating to harassment and unlawful harassment.

The Tribunal also considered, insofar as relevant, the provisions of Article 19 of the 1998 Order.

(iv)	(a)	In relation to the claim of direct discrimination on racial grounds, (and specifically national origins), Article 3(1) of the Race Relations (Northern Ireland) Order 1997 (“the Order”), provides as follows:-

			“(1)  	A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

				(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons; …

				 (3)	a comparison of the case of a person of a particular racial group with that of a person not of that group under Paragraph (1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

(b)	“Racial Grounds” is defined in Article 5(1) of the Order as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins;”

(c)	Article 6(2) of the Order states that it is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee “by dismissing him, or subjecting him to any other detriment.”

BURDEN OF PROOF REGULATIONS

7.	(i)	Article 52A of the Order provides as follows:-

		“52A. – (1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent –

(a)	has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f), or Part IV in its application to those provisions, or

(b)	has committed an act of harassment.

		(2) 	Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

		(a)	has committed such an act of discrimination or harassment against the complainant, 

			(b)	is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

		The Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

	(ii)	Regulation 24 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 inserts a new Section 38A in the 1998 Order.  It deals with the Burden of Proof and provides:-

		“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	has committed an act of unlawful discrimination or unlawful harassment against the claimant, or

(b)	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant;

(c)	the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act”.

	(iii)	In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlains Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance is now set out in the Annex to the judgment in the Igen case.  The guidance is not reproduced but has been taken fully into account.   

	(iv)	The Tribunal also considered the following authorities, McDonagh and Others  v  Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy  v  Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing  v  Manchester City Council [2006] IRLR 748 and Mohmed  v  West Coast Trains Ltd [2006] UK EAT 0682053008.  It is clear from these authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

“The Court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

		“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

	(v)	The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41.  These paragraphs are set out in full to give the full context of this part of his judgement.  

	“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

(1)	In every case the Tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

	(2)	If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

	(3)	As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

	‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

	If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the Tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

	(4)	The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:-
	
	‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

	Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

	(5)	It is not necessary in every case for a Tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

	(6)	It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.”

	(7) 	As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated.  The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter)  v  Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party.  Lord Hoffmann summarised the position as follows (paragraphs 36-37):

			’36.  The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”.  The meaning of these apparently simple words was considered by the House in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.  Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

			(1)  The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.  

		(2)  The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

			(3)  The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143.  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

	37.  It is probably uncommon to find a real person who qualifies … as a statutory comparator.  Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life.  At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed.  In most cases, however, it will be unnecessary for the Tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator.  If the Tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

	The logic of Lord Hoffmann’s analysis is that if the Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator.  This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was.  Accordingly:

	‘employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
	
	This approach is also consistent with the proposition in point (5) above.  The construction of the statutory comparator has to be identified at the first stage of the Igen principles.  But it may not be necessary to engage with the first stage at all’”.
	
	(vi)	The Tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

		“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

	(vii)	Tolley’s Employment Handbook comments at paragraph [13.3]:-

		“... It is also important not to exaggerate the significance of the reverse burden of proof.  Where the Tribunal is in a position to make clear findings of fact in relation to allegedly discriminatory conduct, the reverse burden of proof has no effect ... see Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054 per Lord Hope, paragraph 32”.

Victimisation

8.	(1)	In relation to victimisation, the Tribunal received considerable assistance 	from the judgement of Girvan LJ in the Northern Ireland Court of Appeal 	decision in Jill Simpson v Castlereagh Borough Council (“Simpson”) 	(GIR9206, delivered 25/3/14).  In the section of the judgement headed 	“Conclusions” Girvan LJ states as follows (albeit in the context of sex 	discrimination):-

“[14]	As the agreed terms of the remittal of the Tribunal show a Tribunal determining the question of victimisation must address the issues, firstly, whether the claimant suffered a detriment and, secondly, whether she was subjected to less favourable treatment as compared to an actual or hypothetical comparator by reason of the fact that she had done a protected act.

[15] The appellant has not sought to pursue an argument that she was discriminated against on the grounds of disability and the case thus turns on whether she was victimised on the grounds of having brought a sex discrimination claim or grievance.  ... The case turned on whether the doing of the protected acts was the cause of the alleged victimisation.

[16] The Tribunal concluded that the relevant comparator would be a person who lodged a grievance and had not carried out a protected act.

...

[18] A person discriminates against the person alleged to have been victimised if he treats the person less favourably “by reason that the person victimised” has (inter alia) done anything under or by reference to the 1976 Order or the Equal Pay Act.  “By reason that” simply means “because (see Neuberger in Derbyshire v St Helen’s Metropolitan Borough Council [2007] ICR 841 at 865 paragraph 76).  As Mr Potter pointed out in argument, in determining whether an act is done because the party victimised did one or some of the things set out in Article 6(1)(a)-(d) the test to be applied may be expressed in somewhat different ways though it should lead to the same answer.  The Tribunal can ask the question “why did the respondent act as it did?”  See, for example Nagarajan v LRT [1999] IRLR 57 at paragraphs [13] and [18].  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 [2010] IRLR 136 paragraph [58] and Lord Clarke (ibid.) at paragraphs [131]-[134]).  Alternatively, it may pose the question, as Lord Mance did in JFS, whether the impugned act was inherently discriminatory”.

(2)	In relation to victimisation under the 1997 Order, Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division L para [493] as follows:

“[493]

Under the SDA and RRA (SDA 1975 s 63A and RRA 1976 s 54A) the reversal of the burden of proof provisions set out in the EC Equal Treatment Framework Directive are transposed into domestic discrimination statutes and regulations; see further paras [796]-[816] below. However, this reversal was held not to apply where the claim is of victimisation under the RRA; Oyarce v Cheshire County Council [2008] EWCA Civ 434, CA. The EAT has, however, determined in Pothecary Witham Weld v Bullimore [2010] IRLR 572, [2010] ICR 1008 that the reversal of the burden of proof provisions do apply in cases of victimisation under the SDA. Considering the correct approach generally to victimisation cases, Underhill P delivering judgment of the EAT held that 'it will be sufficient for the Tribunal to follow Nagarajan and ask '(a) whether the claimant has suffered" less favourable treatment" (which in practice answers also whether he or she has suffered a detriment) and (b) asking whether the protected act was, or was part of, the reason why he suffered that detriment.”

The position has been clarified in Great Britain under the Equality Act 2010, which does not apply to this jurisdiction.

(3)	At paragraph [13.3] of Tolley’s Employment Handbook, the position in relation to the burden of proof in a victimisation case under the 1997 Order is described in the following terms:-

	“Complainants were assisted by case law (most famously King v Great Britain-China Centre [1992] ICR 516, CA) in which the following approach was advocated.  First, the complainant had to establish a difference in sex or race and that they had been less favourably treated.  Once this prima facie case had been established, the Tribunal was entitled to turn to the employer and seek an explanation for this disparity in treatment.  If the employer’s explanation was unsatisfactory, the Tribunal was entitled but not obliged (see Glasgow City Council v Zafar [1998] ICR 120, HL) to draw an inference that the less favourable treatment was on the relevant prohibited ground ...  The revised test is similar to the approach adopted in King in that the burden is initially on the complainant to make out what might be described as the “prima facie case”.  The respondent then has to give an explanation.  However, the revised test is stricter because once a prima facie case is established, the respondent then has the burden of proving that he did not act unlawfully.  If he fails to discharge the burden, the Tribunal has to find in favour of the complainant”.

SUBMISSIONS

9.	The Tribunal carefully considered helpful written submissions presented to it on behalf of both parties together with further brief oral submissions on 18 November 2016.  The written submissions, together with updated written submissions, are appended to this decision.  The parties had been referred by the Tribunal to the Northern Ireland Court of Appeal cases of Simpson and the more recent decision in Frank McCorry and Others as the Committee of Ardoyne Association v Maria McKeith (delivered 29 November 2016).  These are referred to in the parties’ updated submissions.  An agreed chronology is also appended to the decision.

CONCLUSIONS

10.	The Tribunal having carefully considered the evidence together with the submissions having applied the principles of law to the findings of fact, concludes as follows:-

(1)	The Tribunal was alerted to the claimant’s credibility in the course of the hearing.  It has no reason to doubt the veracity of the entry in Mark Armstrong’s diary on 7 October 2015 relating to the “cone” incident in which it is recorded that the claimant complained that he had nearly been hit by the cone.  His case at the disciplinary hearing was that he was 100% sure that he had been hit.  During the earlier grievance process that he alleged that he had been hit on the head by a cone.  However, in his evidence before the Tribunal he admitted that he had not been hit at all.  The Tribunal considers that the respondent had a reasonable basis for doubting the claimant’s honesty not only in relation to the 7 October 2015 incident but in relation to the allegations made against the two managers during the car park incident on 19 June 2015.  One of the problems the respondent had in investigating his complaints was that the claimant appeared to change his account of events.  The Tribunal is satisfied that the respondent had reasonable grounds for accepting Peter Long’s statement that the bin was not moving when he threw the cones into it.  It is further satisfied that there was no real basis for any disciplinary action against Peter Long, the only named comparator. 

(2)	The Tribunal preferred the evidence of the respondent in areas of conflict of evidence.

(3)	It is not without significance that the claimant’s first claim presented on 21 March 2016 states that he first knew about discrimination on the ground of religious belief on 10 February 2016.  The relevant section 7.2 and 7.3 are set out below:-

The subsequent claim form presented to the Tribunal on 25 April 2016 contains the following at paragraph 7.2 and 7.3:-

(4)	The date of 10 February 2016 is the date shown on the minutes of Keith Megson’s minutes of the disciplinary investigation meeting, when the statement, drafted by the Equality Commission, was specifically included at the claimant’s request.  The Tribunal is not satisfied, on the evidence before it, and leaving aside the alleged acts of discrimination from 8 February 2016 onwards, that there is any real substance in the claimant’s claims of unlawful direct discrimination, bullying, harassment, or victimisation on the ground of religious belief or racial grounds (national origins) prior to 8 February 2016.  In any event, in relation to his claim under the 1998 Order, and in accordance with Article 46 of that Order, the claimant might reasonably be expected first to have had knowledge of the alleged acts complained of from at least from October 2015 (on his own case).  In his first claim to the Tribunal the claimant references paragraph 7.4 of the claim form which refers to a miscellany of allegations including allegations of harassment which he alleges “began and were ongoing during the grievance process which began on 19 October, continuing until my suspension”.  He also refers to harassment and subsequent victimisation.  Having also considered Harvey, generally at Division L 830-833 in relation to the claims of unlawful discrimination on racial grounds, the Tribunal is satisfied that any such claims are out-of-time in the period preceding 8 February 2016 and that there is no basis laid before the Tribunal for extending time under either Order.

(5)	The Tribunal was presented with a further argument on behalf of the claimant that the principles in Hendricks v Metropolitan Police Commissioner (2002) EWCA1668 were relevant to this case.  In Hendricks Mummery LJ stated – 

	“(the claimant) is entitled to pursue her claim beyond the preliminary stage on the basis that the burden is on her to prove either by direct evidence or by inference from primary fact that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of continuing discriminatory state of affairs covered by the concept of an act extending over a period ... the question is whether there is an act extending over a period as distinct from a succession of unconnected and isolated specific acts for which time would begin to run from the date when each specific act was committed”.  

The Tribunal is satisfied, that there was no satisfactory evidence of a “continuing discriminatory state of affairs”.  This means that time must run from the date when each specific alleged act was committed.  

(6)	Apart from the out-of-time issues, the test for discrimination involves a comparison between the treatment of the claimant and another person (the “statutory comparator”) actual or hypothetical who is not of the same religion or racial group, as the case may be.  The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different, from those of the claimant.  The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical statutory comparator should have been treated.  This is an ordinary question of relevance which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the claimant and all the other evidence in the case.  The Tribunal is satisfied that Peter Long, the only main comparator relied on by the claimant, is not an appropriate comparator, nor has any effective argument been advanced to persuade the Tribunal that the suggested hypothetical comparator is an appropriate comparator.  The direct discrimination and victimisation claims must fail on this ground alone.

(7)	In relation to the harassment complaints, the necessary elements of liability for harassment are threefold:

(1)	Did the respondent engage in unwanted conduct?

(2)	Did the conduct in question either 

(a)	have the purpose or 

(b)	the effect of either

(i)	  violating the claimant’s difficulty or

(ii)	  creating an adverse environment for him, the proscribed consequences.

(iii)	  was the conduct on a prohibited ground?  

There is substantial overlap between the questions that arise in each element.  Whether conduct was “unwanted” will overlap with whether it creates an adverse environment for the claimant.  Many or most acts that are found to create an adverse environment for an employee will also violate his dignity.  (Richard Pharmacology Ltd v Dhaliwal (2009) IRLR 336 EAT).  In the current case, the Tribunal is not persuaded, on the evidence, that there is a basis for a harassment claim under either the 1997 or 1998 Orders or that the respondent’s harassment policy ought to have been followed rather than the grievance policy.  The Tribunal is not aware of this contention having been raised, notwithstanding advice given to the claimant, at any time before his dismissal on 7 April 2016.  

(8)	The Tribunal is satisfied, as reflected also in the paragraph inserted in the minutes of 10 February 2016 and in the claim forms, that the claimant’s case was primarily intended as a victimisation case under both the 1997 and 1998 Orders.  The Tribunal is not satisfied that the claimant has proved protected acts under the relevant provisions in the 1997 and 1998 Orders and, even if that were to be the case, that the subsequent disciplinary investigation and disciplinary process could amount to victimisation on racial grounds (national origins) or on the ground of religious belief.  In this context the Tribunal also considered the principles set out by Girvan LJ in the Simpson case and the extracts from Harvey and Tolley relating to the burden of proof in racial victimisation cases referred to previously in this decision.  The Tribunal reiterates its conclusion that Peter Long is not a relevant comparator for the purposes of the direct discrimination and victimisation claims, and the Tribunal is not satisfied that the claimant suffered less favourable treatment than the suggested hypothetical comparator would have received.  

(9)	The plain fact is that arising out of the 12 issues raised by the claimant in his grievance, the respondent brought forward two specific matters relating to the car park and cone incidents respectively.  This is the reason why there was a disciplinary investigation and why, after suspension and a thorough disciplinary and appeal process, the claimant was ultimately dismissed for dishonesty.  In this context it is not necessary for the Tribunal to go through the two stage burden of proof test as paragraph 5 of the Ladele decision referred to previously clearly points out.

	(10)	The Tribunal, having carefully considered the evidence and the submissions made by the respondent’s representative in relation to the unfair dismissal claim and having applied the principles of law to the findings of fact concludes as follows:-

		(i)	The Tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-

			(1)	Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

(a)	Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

				(b)	Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

(i)	Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

(ii)	At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

				(c)	Was the dismissal a fair sanction in the circumstances?

(d)	Was the claimant afforded an effective right of appeal in the circumstances?

(ii)	The Tribunal answers all questions in the affirmative and therefore dismisses the claimant’s claim of unfair dismissal.

	(11)	The Tribunal is satisfied that there were clearly objective grounds for the claimant’s suspension which had nothing to do with racial or religious discrimination.  Furthermore, the Tribunal is satisfied that the claimant agreed to move from night duty to day duty on 8 February 2016 pending the completion of an investigation regarding a grievance that the claimant had raised against his line manager, Mark Armstrong.  This grievance investigation had commenced on 8 October 2015 following an informal discussion between the claimant and Stephen Large who in turn advised him to see Fiona Savage (now Fryer) in order to take forward the grievance process.  Keith Megson conducted a disciplinary investigation arising out of two specific matters in the grievance outcome letter and in order to achieve a full and fair investigation the claimant was moved to day duties to avoid any incidents occurring between himself and his line manager during the investigation.  This was a sensible arrangement devoid of any unlawful discrimination.

	(12)	The Tribunal is therefore satisfied that the claimant has not proved facts from which the Tribunal could conclude in the absence of an adequate explanation that either unlawful racial discrimination or unlawful religious discrimination,  victimisation on the ground of religious belief, (and in the case of victimisation or racial grounds under the earlier burden of proof test referred to at paragraph 8(2) and (3) above) or unlawful harassment on either ground had occurred as alleged by the claimant.  The onus of proof does not therefore shift to the respondent to prove an adequate explanation for any alleged treatment.  

(13)	The claimant’s claims are therefore dismissed in their entirety.

Employment Judge

Date and place of hearing:	14 - 18 November 2016, Belfast

Date decision recorded in register and issued to parties: