THE INDUSTRIAL TRIBUNALS

CASE REF:	710/05

CLAIMANT:			Andrew Zammit

RESPONDENTS:	1.	Royal Group of Hospitals & Dental Hospitals
HSS Trust
				2.	Kevin McMahon

DECISION
The unanimous decision of the tribunal is that the claimant was not racially harassed by the second-named respondent at a meeting on 9 February 2005.

Constitution of Tribunal:
Chairman:		Ms Crooke
Members:		Mr Kinnear
			Mr McKenna

Appearances:
The claimant appeared in person and represented himself.
The respondents were represented by Ms S Owens, Solicitor, of MSC Daly, Solicitors.

Sources of evidence

1.	The claimant gave evidence on his own behalf and called Mr Kane who was a Unison representative at the Royal Group of Hospitals.  The respondents called evidence from Mr K McMahon (the second-named respondent), Mr H McGreevy, Duty Manager, Mr M Shanks, Line Manager of the second-named respondent,     Mr E Adair and Mr A McKay.  Additionally, the tribunal was provided with an agreed bundle of documents and statements.  Finally, the claimant required the tribunal to read the statement of Mr G McGuinness.  However, Mr McGuinness was not going to be attending at the tribunal due to ill-health.  Therefore the tribunal is unable to attach anything greater than the slightest of weight to                              Mr McGuinness’ evidence.

The issue before the tribunal

2.	The issue before the tribunal to be determined was:-

“Whether the claimant was subjected to racial harassment by the         second-named respondent at a meeting on 9 February 2005.”

The relevant law

3.	The relevant law is found in the Race Relations (Northern Ireland) Order 1997.  In reaching its decision the tribunal also considered the case of Laing v Manchester City Council [28 July 2006].

4.	The facts found

4.1	The claimant had worked for the first-named respondent as a security guard for in and around 16 years.

4.2	The claimant and the second-named respondent were friends and indeed had holidayed together in Malta, which is the claimant’s country of origin.

4.3	In or around the evening of 8 February 2005, the claimant discovered from perusing the rota of duties posted in the security department at the Royal Group of Hospitals that he had been assigned once again to the control room.  He considered that it was not his turn to do this duty and expressed this view when he met the second-named respondent by chance in the corridor.  The second-named respondent explained to the claimant that the persons he named as being due to carry out the control room were both absent on leave and therefore it was his turn to do this duty.  

4.4	At the start of the next shift the claimant realising that the duty was not changed, went to speak to the second-named respondent in the duty manager’s office.  Mr McGreevy, the other duty manager, indicated that the second-named respondent was not available and said that the      second-named respondent would call the claimant to a further meeting once he had finished the business he was engaged in.  It was also the case that Mr Terry Boyle, another security officer, was complaining about the duty rota and the claimant and Mr Boyle were summoned to attend at the duty manager’s office by the second-named respondent about half an hour after they first visited the duty manager’s office.  

4.5	The claimant was interviewed first by the second-named respondent and was told again that the duty was not going to be changed.  There was considerable evidence from a number of witnesses that the claimant became agitated by the refusal to change the duty and started to shout at the   second-named respondent.  The second-named respondent asked the claimant to leave his office a number of times.  Finally, Mr McGreevy came between the claimant and the second-named respondent and tried to calm the situation down.  The claimant left the security offices and met Mr Bernard Kane who was a Unison shop steward.  He asked Mr Kane for his help in dealing with this matter as his own T&G shop steward was not present on the site on that evening.  The extent of Mr Kane’s evidence was that he had witnessed the claimant behaving in an agitated way.  Mr Kane was not at the meeting or even in the vicinity of the duty manager’s office.

4.6	After the meeting with the claimant concluded, the duty manager, the second-named respondent, then met with Mr Terry Boyle.  Mr Boyle did not give evidence to the tribunal but his statement confirmed that there was a dispute between the claimant and the second-named respondent and both were shouting.  The claimant walked away and then returned to speak again to the second-named respondent after Mr Boyle had finished his meeting with him.  He became agitated to the point of aggression and it was at this point that Mr McGreevy stepped between the claimant and the           second-named respondent.

4.7	At a later stage in the evening, but not long after this interchange, Mr McGreevy and the second-named respondent went into the control room and the claimant informed Mr McGreevy that he was stressed out and was going to accident and emergency.  He was allowed to do so, but it later transpired that he had simply gone home.  

4.8	Early the next day, the claimant made a formal complaint to Miriam Gibson, the Equality Officer of the Royal Group of Hospitals.

4.9	The fact of the complaint being made was relayed to the                     second-named respondent by Mr Matthew Shanks, his line manager, in a telephone call in which the second-named respondent outlined his version of events.  

4.10	The claimant was allowed to be absent for that weekend immediately after the events of 9 February 2005 and the second-named respondent was also absent for part of that weekend.  

4.11	There was a formal investigation and the second-named respondent was not found to have racially harassed the claimant.  There were various operational recommendations made in the report of the investigation.

Analysis of evidence

5.	In reaching its decision, the tribunal preferred the version of events given by the respondents’ witnesses.  The evidence of Mr Hugh McGreevy largely corroborated the evidence of the second-named respondent.  There was also evidence from various witnesses each of whom corroborated the other to the extent of the claimant’s behaviour on 9 February 2005.  His behaviour was variously described as agitated and aggressive.  

Conclusions

6.	While Mr Terry Boyle did not give evidence to the tribunal, his statement was before the tribunal and it was to the effect that the second-named respondent was off-hand in the way in which he dealt with him.  Mr Boyle used the word ‘cheeky’.  While the second-named respondent may have been less than sympathetic and less than polite in the way in which he dealt with the claimant’s complaint, the claimant did not present any evidence at all to back-up his assertion that the behaviour was on racial grounds.  He did not deny that he and the second-named respondent had previously been good friends and had holidayed together.  It appeared his only ground for considering that the behaviour was racially motivated was that he was not aware of any other member of staff amongst his colleagues who had been treated in this way by the second-named respondent.  The tribunal has already noted from the statement of Mr Boyle, to which the claimant did not object, that Mr Boyle was also treated in a similar manner.  The tribunal were not able to find any primary facts from which an inference of discrimination could be drawn.  There was certainly a dispute between the claimant and the second-named respondent, but there was absolutely no evidence to suggest that the dispute had been on the grounds of the claimant’s nationality.  Therefore, we do not consider that the burden of proof shifts to the respondents in this case and accordingly unanimously dismiss the claimant’s claim for racial harassment.

Chairman:

Date and place of hearing:	14 – 15 December 2006, Belfast

Date decision recorded in register and issued to parties: