Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2003] NIFET 474_2, [2003] NIFET 474_02

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 474/02 FET

2583/02

APPLICANT: Abdul Al-Jibouri

RESPONDENT: Seagate Technology (Ireland) Limited

DECISION

The unanimous decision of the Tribunal, on a preliminary point, is that the Tribunal has jurisdiction to determine the applicant's complaints of victimisation.

Appearances:

The applicant was represented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.

The respondent was represented by Mr C Hamill, Barrister at Law, instructed by Elliott Duffy Garrett, Solicitors.

The Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision. Consequently these reasons are given in extended form.

2.	(i)	By an originating application dated 13 November 2002, the applicant alleged that he had been victimised by the respondent company, contrary to the provisions of Article 3(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 and Article 4 of the Race Relations (Northern Ireland) Order 1997.

	(ii)	At the time of his application, the applicant had a number of ongoing originating applications alleging religious and racial discrimination against the respondent company.

2.	(i)	By notice of appearance dated 19 December 2002 the respondent company denied the allegation made by the applicant. It was contended on its behalf that the victimisation provisions of the relevant legislation did not apply to the applicant as he had ceased to be employed by the respondent company at the time of presenting his applications and when the matter of which he complained occurred.

	(ii)	The applications were listed for a preliminary hearing on the issue of whether the Tribunal had jurisdiction to determine the applicant's complaints of victimisation. The facts set out in the following paragraphs were agreed by the parties for the purposes of the hearing.

3.	(i)	The applicant, Mr Al-Jibouri, had been employed by the respondent company, Seagate Technology (Ireland) Limited (hereafter referred to as Seagate), between July 1995 and April 1999. He was employed as a Senior Research and Development Engineer. The company manufactures hard disc drives for computers.

	(ii)	On leaving Seagate in 1999 the applicant worked for two other, unrelated, companies, in the hard drive sphere.

	(iii)	On 14 February 2001, the applicant brought complaints of religious and racial discrimination against Seagate. This related to his failure to obtain employment with the company as Research and Development Manager in December 2000. He alleged that he had not been appointed because he was a Muslim and of Iraqi national origin.

	(iv)	In February 2001 the applicant also attended an interview with Seagate for a different position. He had travelled for interview from England. When he claimed his travelling expenses, he was told by Seagate that they were not prepared to pay them. On 21 May 2001 he lodged claims alleging that this non-payment constituted victimisation on religious and racial grounds because of his earlier claims.

	(v)	In January 2002 the applicant attended a further interview with Seagate for the post of Process Engineering Manager. He was not successful. In fact Seagate decided not to fill the post. Soon afterwards the applicant lodged two further applications alleging religious and racial discrimination and victimisation. The applicant alleged that he should have been appointed to the post, but was not, because of his ongoing applications.

4.	(i)	In November 2002 the applicant obtained employment with Invest NI. His position required him to work with people and companies in the computer industry – his particular qualifications were in the area of hard drive discs – and he was told he would be working directly with Seagate.

	(ii)	When Seagate became aware of this they informed Mr Al-Jibouri's current employers, Invest NI, that they were not prepared to work with him. On 25 October 2002, Seagate's Human Resources Manager, Mr Kevin Caldwell, wrote to Invest NI to this effect. Invest NI removed Mr Al-Jibouri from the Seagate assignment, and allocated him to other tasks.

	(iii)	This chain of events led to these, the fourth set of proceedings, being issued by the applicant against the respondent company.

	(iv)	Mr Al-Jibouri, who issued these proceedings in relation to an alleged act of victimisation by Seagate in October 2002, had last worked for the company in 1999.

5.	(i)	The relevant law relating to victimisation is set out in similar terms in Article 3(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998, and Article 4 of the Race Relations (Northern Ireland) Order 1997.

	(ii)	Article 4 of the latter states:- (1) A person (A) discriminates against another person (B) in any circumstances relevant for the purposes of any provisions of this Order if – (a) he treats B less favourably than he treats or would treat other persons in those circumstances; and (b) he does so for a reason mentioned in paragraph (2). (2) The reasons are that – (a) B has – (i) brought proceedings against A or any other person under this Order. ………………………………………………………………………………………

	(ii)	At the outset, we wish to deal briefly with one point. Mr Canavan, for the applicant, contended that victimisation 'stood alone'. However, we agree with Mr Hamill BL, for the respondent company, that Article 6 of the 1997 Order places victimisation in terms of the employment relationship which concerns discrimination in the way an employer affords (or refuses or omits to afford) access to benefits, or subjects an employer to any other benefit.

	(iii)	The main issue which the Tribunal has had to consider is whether the applicant, as an ex-employee, could claim the protection of the relevant legislation in relation to events which took place after his employment had ended. We are concerned with post-employment discrimination.

6.	(i)	The relevant law is now to be found in the group of cases reported as:- Rhys-Harper v Relaxion Group PLC; D'Souza v London Borough of Lambeth; Jones v 3M Healthcare Ltd & Others [2003] IRLR 484. These appeals, heard consecutively, raised the issue of whether discriminatory acts done by an employer after termination of the employee's contract of employment, were outside the scope of the Sex Discrimination Act 1995, the Race Relations Act 1976, and the Disability Discrimination Act 1995. The relevant legislative provisions correspond to Article 3(4) of the 1998 Order and Article 4 of the 1997 Order.

	(ii)	It was held in these cases by the House of Lords that a tribunal has jurisdiction to hear complaints brought by an employee under anti-discrimination legislation in respect of conduct following the termination of employment, provided that the alleged act of discrimination arises out of the employment relationship. The successful appeals related to alleged discrimination against an ex-employee during the currency of an internal appeal process, the giving of references to ex-employees, and the failure of a former employer to return property which the employee claimed belonged to him.

	(iii)	In order for a claim of post-employment discrimination to be successful, there must be a substantive connection between the discriminatory conduct and the employment relationship. Lord Nicholls stated, at 489:- "The preferable approach is to recognise that in each of the relevant statutory provisions the employment relationship is the feature which triggers the employer's obligation not to discriminate ……. ……." Once triggered, the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise. For the reasons already given, this obligation cannot sensibly be regarded as confined to the precise duration of the period of employment if there are incidents of the employment which fail to be dealt with after the employment has ended. Some benefits accrue during the period of employment, some afterwards. For the purposes of discrimination, there is no rational grounds for distinguishing the one from the other. They all arise equally from the employee's employment. To be an 'incident' of the employment relationship for this purpose the benefit in question must arise between employer or former employer as such and employee or former employee as such. A reference is a prime example. Further, save perhaps in exceptional circumstances which it is difficult to envisage, failure to provide a non-contractual benefit will not constitute a 'detriment', or discrimination in an opportunity to receive a 'benefit', within the meaning of the anti-discrimination legislation unless the non-contractual benefit in question is one which normally is provided, or would be provided to others in comparable circumstances".

	(iv)	Lord Hobhouse at p.501, spoke of the conduct complained of having a 'substantive and proximate connection' to an applicant's employment by the alleged discriminator, and Lord Rodger, at p.510, stated that "the [relevant] provisions should be interpreted as making it unlawful to discriminate against former employees as well as current employees if there is a substantive connection between the discriminatory conduct and the employment relationship. In other words, the former employer must discriminate qua former employer".

7.	(i)	Mr Hamill BL, for the respondent, argued that failure to provide a non-contractual benefit will not constitute discrimination unless it was one which was normally provided or would be provided to others in comparable circumstances. In the instant case, the applicant's difficulty did not arise out of his contract of employment with the respondent, but rather out of his contract with a third party, Invest NI.

	(ii)	While of course it was Invest NI who removed the applicant from the assignment with Seagate, it was the act of Seagate which brought about this effect. The applicant is effectively alleging that Seagate wrote to Invest NI as a reprisal because he had brought claims against them. If they had failed to give him a reference he would have had a cause of action, and we consider that there is an analogy to a reference in this situation. Seagate's letter, though not solicited like a reference, can arguably have been intended to affect the applicant in his employment.

8.	(i)	It seems to the Tribunal that whether Seagate, in writing the letter to Invest NI, did so because of their concern that they could not have a proper working relationship with the applicant as a representative of the latter, or because they intended to damage him or malign him in his new employment, is something which can only be determined after hearing all the relevant evidence at a full hearing.

	(ii)	There is an obvious difficulty for the applicant, in that the alleged conduct on the part of Seagate took place almost two years after the applicant left his employment. The further removed the alleged conduct is in time from the termination of the employment, the harder it will be to show a sufficient connection between the two. Again, this is a matter which can only be appropriately determined having heard and considered all the relevant evidence at a full hearing.

The Tribunal is therefore satisfied that it does have jurisdiction to determine the applicant's complaints of victimisation, and directs that the matter be listed for a substantive hearing.

Chairman:

Date and place of hearing: 26 September 2003, Belfast

Date decision recorded in register and issued to parties:

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