Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF NOS: 00203/99FET, 02422/99,

02423/99, 02424/99

APPLICANT: Edward McCann

RESPONDENTS: 1. Commissioners of Inland Revenue

2. Gary Thompson

DECISION

The unanimous decision of the Tribunal is that the applicant has not proved that he was discriminated against on any of the grounds contained in his originating application nor was he unfairly dismissed. His application to the Tribunal is dismissed.

APPEARANCES:

APPLICANT: The applicant was represented by his father.

RESPONDENTS: The respondents were represented by Mr P Lewis, Barrister-at-Law, instructed by Crown Solicitor's Office.

1. The applicant was employed as a Revenue Assistant at Grade E2 which was the basic entry grade. He started in the post room with a manager called Seamus Larkin and it appeared to the Tribunal that he was able to work with this manager who also gave him a favourable progress report. The Tribunal accepted from the evidence that there were problems with Mr Larkin's style of management and Mr Gary Thompson was brought in to improve management and deal with the arrears of work that had built up. It was common case the applicant did not have a harmonious working relationship with him. The applicant, whilst working under Mr Larkin, was used to working in the post room and then helping out other sections from 4-5pm in the afternoon. Mr Thompson asked the applicant to help out other sections during the day. The Tribunal noted that Mr Thompson had himself done this job for five years and was fully aware of what jobs had to be done.
2. The Tribunal accepted that Mr Thompson liked the applicant and wanted to work with him but at the same time he was his manager and responsible for recommending the applicant for a permanent post. He found great difficulties with the applicant in terms of attendance and time-keeping and output of work and this resulted in a formal warning in October 1998. Mr Thompson made a note of what was said and the reasons for this formal warning. The Tribunal accept that the applicant was advised by his union to mend his ways and as a result he went to Mr Thompson on the same day and said that he would try and improve his work.
3. From the evidence heard by the Tribunal this did not happen. The applicant involved the Trade Unions and complained about Mr Thompson's management style. At first management decided to give the applicant less supervision to see if he could improve. The Tribunal noted that the applicant had a degree in hotel and leisure management and the job that he was being asked to do was by all accounts a fairly simple, menial type of job in which he had to input information into computers as well as post room and switchboard. The applicant was given an opportunity to do the work of the senior officer's secretary for four weeks in December. He agreed to do training in order to take over this role but then he went to his manager, Mr Thompson, and asked if he could have three weeks' holiday out of the four week period for which he was supposed to be filling in. As a result he was told that he could not continue training for that post.
4. The applicant's work did not improve and Mr Thompson kept notes of all the various incidents of poor performance. It was obvious to the Tribunal that the applicant did not like this and he resented being told that he was not performing adequately. Mr Thompson relayed the matter forward to the office manager, Mrs Lyske. She was aware of the weaknesses of the applicant in performing his post but she decided that she would try and have an informal discussion with the applicant to see if the matter could be resolved to the satisfaction of everyone. She noted that he lay back in the chair when she talked to him with his legs crossed and smiled at her a lot. She said "her message was not getting home to him". He did say he felt the jobs were very routine and bitty. She came up with the suggestion of changing his job to movements to see if he could improve. A new role was found for the applicant in movements section. This required some training and the Tribunal accepted that the applicant had longer training for this post than anyone else had before or since. He worked on a one-to-one basis with Mrs Sloan. The Tribunal accepted her evidence that whilst he was capable of doing the job, he was making frequent errors and in her words she thought it was carelessness and he was not totally interested in the job. She said that they would expect one or two errors after training but not to the extent of the error rate of the applicant. She reported back to her superior officers that he was not fit for the permanent position. It was commonplace in the Lisburn Office to have performance agreements when someone moved to a new post. The applicant refused to sign a performance agreement when Mr Thompson put it to him and he filled out his part of the form by saying that there may be discrimination.
5. The applicant made the case that he was treated less favourably than Lorraine Thompson, a female Protestant, in that she got a risk assessment when she started her work and he did not. The evidence accepted by the Tribunal is a complete conflict namely that the applicant had two risk assessments in October and November and Lorraine Thompson had none.
6. Mrs Hewitt was a Deputy District Inspector and she was trained by the Inland Revenue to investigate complaints of discrimination. She contacted Mr Farrelly, the Personnel Officer, and they decided that they would try and speak to the applicant and have an informal resolution. The applicant was accompanied by his trade union representative and they had a meeting on 27 January 2002. The Tribunal accepted that the applicant had sent a formal complaint to the Inland Revenue on 26 January and yet he sat through the meeting on 27 January and never mentioned it. Mrs Hewitt's evidence, which was accepted, was that his trade union official implied the opposite – namely that they wished the matter to be resolved informally. She had arranged a further meeting because the applicant had not got any notes with him and was not in a state of readiness for this meeting. The further meeting was to take place on 29 January but when she became aware of a formal complaint she was extremely surprised and under the respondent's procedures could take the matter no further.
7. Mr Browne was the District Inspector in charge of Lisburn during the period of the applicant's employment. He was well aware that the applicant was not performing up to standard and he was also aware of the problems that the applicant was causing in the office. His manager, Gary Thompson, was under considerable strain because the applicant was not performing well and was also causing trouble with his meetings with union officials and his attitude to his manager. When Mr Browne became aware, on 28 January 1999, about the applicant's formal complaints against Mr Thompson and the Lisburn Office he decided to suspend the applicant on full pay. He had made this decision because the applicant was becoming a disruptive person in the office and was putting pressure on office time and his manager in particular. The matter had to be investigated and Mr Browne felt it was better to take the applicant out of the office altogether. The applicant was dismissed and he appealed the decision to dismiss him. Eventually he decided not to appeal as he presented an originating application to the Tribunal on 3 June 1999.
8. The Tribunal considered the evidence in this case. As was pointed out to the applicant and his representative the onus is on the applicant to prove that he was treated less favourably on the balance of probabilities for any claim of discrimination. The Tribunal looked at each claim put forward

(a) sex discrimination – there was no evidence on which the applicant was found to be telling the truth in relation to this. His only comparator was Lorraine Thompson who was not treated more favourably than he was. The claim on this ground is dismissed.

(b) religious belief/political opinion – the applicant stated to the Tribunal that his manager was a Protestant and in one of his written complaints to the Inland Revenue he stated that there was some banter in the office but this was not even mentioned at the Tribunal. That is the height of his evidence of religious discrimination/political opinion and it does not come anywhere near a balance of probabilities. The claims are dismissed.

9. The applicant complained that he was discriminated against on the grounds of his race. When his father was asked what was meant by this he stated that it was to do with his "Irishness". There is mention in his originating application about cultural identity but again there was no evidence given in relation to this and no evidence given about being less favourably treated than anyone else in the office. It appears to be just a throwaway line given by the applicant and it is not sustained against the respondents.
10. The applicant was not employed for the requisite period of two years and so his claim of unfair dismissal is dismissed. He also claimed harassment and victimisation and there quite simply is no evidence of this that the Tribunal can accept. This was a case of a young man with a degree who came into an office and it would appear did not like having to do menial work. There was a change of management style and it appears to the Tribunal that his previous manager had caused problems in not dealing with the work and so the applicant may have been trained in a relaxed type of management style at the start.
11. As was said in the Tribunal to the parties this is one of the worst cases that the Tribunal has ever seen for lack of cogent evidence of any kind. The allegations made by the applicant are very serious ones to make and the Tribunal saw the time, money and trouble that the respondents have been put to not to mention the personal distress that allegations like this can make. It is a case that the applicant simply failed to carry out the duties of his post and he was not retained because even after training he still could not do the job which was expected of him. The originating application is dismissed.

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M P PRICE

Vice President

Date and place of hearing: 10 & 12 June 2002, Belfast

Date decision recorded in register and issued to parties: 14 June 2002