Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 432/01FET

CLAIMANT: Michael Jamison

RESPONDENT: Creative Composites Limited

DECISION

The unanimous decision of the Tribunal is that:-

1. The title of the respondent is amended to that set out above.
2. The respondent unlawfully discriminated against the claimant on the grounds of his religious belief and the Tribunal orders the respondent to pay to the claimant the sum of £4,060.00, by way of compensation.

Appearances:

The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by the Equality Commission.

The respondent was represented by Mr S A Crothers, Solicitor, Brangam, Bagnall & Co, Solicitors.

3. At the outset of the hearing, it was agreed that the title of the respondent should be amended to that set out above. Further, Mr Hamill, for the claimant, stated that the claimant's claim was of unlawful discrimination, on the grounds of his religious belief, and that, if the Tribunal found the claimant had been so discriminated against, the remedy sought by the claimant was for compensation for injury to his feelings.
4. The claimant presented an originating application to the Tribunal on 17 August 2001, in which he complained that he had been unlawfully discriminated against on the grounds of his religious belief arising out of the failure by the respondent to transfer him to another department/section of the factory because of rash problems on his hands following his wearing of latex gloves in connection with his work. He contrasted this with the treatment of two other production workers, who were Protestants and who were transferred to other production sections/departments of the factory, when they suffered Repetitive Strain Injury. The respondent presented to the Tribunal on 11 September 2001 a Notice of Appearance in which it denied that it had unlawfully discriminated against the claimant, on the grounds of his religious belief, and also stated that, whilst the claimant had appeared to suffer from a skin condition, it had not been established, despite investigations, what, if anything, connected to the claimant's work had caused or contributed to his said condition; the respondent, as a result, could make no decision regarding where the claimant might be able to work.
5. Having heard evidence from the claimant and also, on his behalf, Mr Darren Warke, the claimant's trade union shop steward, and who was also employed by the respondent; and Eamon Doone and Alan Whittaker, on behalf of the respondent, the Tribunal made findings of fact, as set out in the following paragraph.
6. .1 The claimant, who is a Catholic, was employed by the respondent as a production worker from in or about 1986. The respondent is engaged in the manufacture of various plastic and other similar materials. The claimant, during his time with the respondent, was a worker on various processes, some of which required him to wear latex/rubber gloves. In or about November 1999, the claimant was working on a particular process called vari-moulding, which required the claimant, at stages, in that process, to wear such gloves. The claimant had been engaged in this process for some years and did not deny that he would have liked a transfer from this process; but was aware that such a transfer would be unlikely to be facilitated by the management of the respondent without good reason.
7. .2 In or about November 1999, whilst engaged in the said process, the claimant began to suffer from a "rash" on his hands. This was reported to the respondent and, in particular, to Alan Whittaker, a Protestant, who at that time was the Human Resources and Environmental Manager of the respondent. In or about February 2002 Alan Whittaker became self-employed, but continued to work as a consultant with the respondent, on an almost full-time basis, with a particular emphasis on training and health and safety. The claimant informed Alan Whittaker, in or about November 1999, that his General Practitioner had advised him that he had dermatitis on his hands and had prescribed a hydrocortisone cream for him.
8. .3 In early December 1999 the claimant reported to Mr Whittaker he was continuing to suffer from a rash on his hands, after working on the vari-moulding process. Mr Whittaker, on at least one occasion at this time, observed the claimant's hands were inflamed and had some form of rash. In early January 2000 the claimant went off sick for a short period, due to continuing skin problems with his hands. In a report dated 4 January 2000, the claimant's General Practitioner reported to Mr Whittaker that the claimant had an "eczematous reaction on both hands which occurred after using fibreglass and that he should avoid work with fibreglass". Following his return to work, Mr Whittaker, despite giving various instructions in relation to the use of gloves by the claimant to see if the claimant's skin condition could be improved, again noted, as set out in his diary on or about 21 January 2000, that he had seen a rash at the back of the claimant's hands. The claimant asked Mr Whittaker for a transfer from the vari-moulding process, but he declined to do so, as he was not satisfied at that time, in the absence of appropriate medical evidence, that the use of the gloves during the said process were the cause of the claimant's skin problems.
9. .4 The claimant went off sick, due to a rash on his hands, from in or about late January 2000 until in or about June 2000. During the period he was off work he had no problems with his hands. He was seen at the Dermatology Department of the Royal Victoria Hospital, who in or about May/June 2000 reported to the claimant's General Practitioner that, having regard to his handling of impregnated fibreglass sheets with his bare hands and the taking off or on of gloves during the course of his work suggested the possibility of a primary irritant dermatitis, but there was no evidence of a sensitivity type.
10. .5 The claimant, on his return to work in June 2000, continued to have skin problems at his work in the vari-moulding section. Mr Whittaker continued to monitor the claimant's hands and noted, in various diary entries during that period, that redness and a rash had been seen on the claimant's hands. There was a reference by Mr Whittaker in his diary entries at that time that the claimant had been seen to slap his hands, with the implication that he was attempting to bring about and/or worsen his condition, but yet, it seems that the claimant was never challenged about this by Mr Whittaker. Indeed, at no time during his evidence to the Tribunal did Mr Whittaker at any time expressly allege that the claimant's condition was anything other than genuine. The Tribunal is satisfied, if Mr Whittaker had believed that the claimant's skin condition was anything other than genuine and/or that he was trying to bring about a condition that would enable him to obtain a transfer that he would have expressly challenged the claimant about this. At no time did Mr Whittaker nor any other member of the management of the respondent do so.
11. .6 On or about 21 August 2000, Dr S Hutchinson, Associate Specialist to Dr Corbett, Consultant Dermatologist at the Royal Victoria Hospital, wrote to the Personnel Director of the respondent, which letter was given to and seen by Mr Whittaker. She asked, inter alia, for the claimant to be moved to another job within the factory. After noting the history of the rash, when the claimant worked with fibreglass, and how it was only present when he was at work and absent when he was off work, she suggested that the claimant was suffering from contact urticaria to fibreglass. Mr Whittaker decided to contact Dr Hutchinson and asked her various questions relating to the claimant's condition. Surprisingly, in the Tribunal's view, Mr Whittaker, at no time, informed Dr Hutchinson of what he had already seen of the rash/redness on the claimant's hands at work and/or in what circumstances. Mr Whittaker continued to monitor the claimant's hands. At around this time, Mr Whittaker also took a photograph of the claimant's hands, but this was not shown to the medical advisors and was not able to be produced to the Tribunal, as it apparently had been lost or destroyed. This information clearly would have been particularly helpful to the medical advisors to enable them to form a considered opinion as to the cause of the condition and how it could be dealt with. Despite the foregoing, on or about 4 September, Mr Whittaker, who acknowledged that he had no medical expertise, contacted Dr Hutchinson and indicated to her that he believed that the claimant's skin condition was not work-related, but rather was caused by some non-work-related underlying problem. Following an accident report dated 4 September 2000, when the claimant was stated to have redness and dots on his hands, the claimant on 7 September 2000 went off sick, due to his skin condition, and did not return to work until on or about 29 October 2001.
12. .7 By letter dated 14 November 2000, Mr Whittaker wrote to the claimant, referring to his absence from work through sickness and "in order to properly understand the nature of your sickness and to assist us in future work planning" he proposed to obtain a medical report from the company doctor, Dr Nigel Campbell. Dr Campbell, in a report to Mr Whittaker on 23 November 2000, stated that, before he would be in a position to give an opinion on the claimant's fitness to work, he would need to consider the claimant's General Practitioner's reports, when available, and, if necessary, consult with Dr Corbett's clinic, whom he noted had already been involved in this matter. Significantly, in the Tribunal's view, he acknowledged that there was some confusion relating to the claimant's case and treatment, with a lack of concrete evidence at that time, which needed to be resolved before any conclusions were made.
13. .8 By letter dated 6 March 2001, the claimant's GP stated that, in his opinion, the claimant was fit to return to work, provided he did not have to use rubber gloves. Mr Whittaker, in response, questioned the restriction placed on his return, as he stated that such a restriction would cause problems in view of the necessity to use gloves, in aspects of the claimant's work, in order to protect the claimant's hands from chemicals which would be harmful to unprotected skin. Following this exchange of correspondence, Dr Campbell, the company doctor, decided to seek Dr Hutchinson's opinion on diagnosis, and the wisdom of the claimant returning to work and whether any restrictions should be placed upon the claimant on any such return to work.
14. .9 By report dated 30 April 2001, Dr Hutchinson gave a detailed report to Dr Campbell. She set out, in terms, the medical history, referred to above, and, in particular, the various suggestions which had been made as to the precise nature of the claimant's medical condition. Significantly, she concluded that the claimant's history of having a problem with a rash on his hands, whilst at work, seemed to be related to the wearing of gloves. She referred to the taking of a latex test and awaiting the results of same. But she indicated that she was of the opinion that there appeared to be an irritant reaction, with no evidence of allergy. She suggested that he should work in an area/process which did not require him to wear gloves for a trial period. In an addendum, by letter dated 30 April 2001, she confirmed the latex test was negative. In light of this, she concluded the claimant did not have a latex allergy and confirmed her view his rash was "more on an irritancy basis". This opinion was shared with and accepted by the company doctor who, in a letter dated 20 May 2001 to Mr Whittaker, stated that, in his view, the claimant had a purely irritant skin condition with no allergic eczema and recommended that the claimant work, if possible, where gloves would not have to be worn. He indicated, if redeployment was not possible, other options would have to be considered by the Personnel department, which at that time was headed by Mr Whittaker.
15. .10 Whilst the Tribunal would accept that prior to the receipt of the said medical reports from Dr Hutchinson and Dr Campbell, there had been some doubts/confusion about the precise nature of the claimant's condition and/or the cause of same and, by reason of such doubts/confusion, the proper action to be taken with regard to the claimant; but, after receipt of those reports and recommendations contained therein, the medical situation had, in the Tribunal's view, 'crystallised' from that time.
16. .11 Mr Whittaker, at all times, maintained to the Tribunal that his refusal to allow the claimant to transfer from the vari-moulding process, prior to receipt of these reports, related to the uncertainties in the medical situation, in relation to the nature and/or cause of the claimant's skin condition as highlighted by Dr Campbell; and that it was in light of this that he had sought the advice of Dr Campbell before taking any action, who in his turn had thought it necessary to obtain specialist advice from Dr Hutchinson, before taking any action in relation to the claimant.
17. .12 Despite the fact that the medical situation had crystallised, as set out above, no proper or meaningful attempts appear to have been made by Mr Whittaker to redeploy the claimant or to see how he could be brought back to work following receipt of the said medical reports from Dr Campbell and Dr Hutchinson. On or about 14 August 2001 the claimant wrote to Mr Whittaker seeking such redeployment in an area where he did not have to wear gloves and, in the event that that was not possible, he would initiate a grievance under the company's grievance procedure. Mr Whittaker did not offer such redeployment and, on or about 16 August 2001, Mr Whittaker agreed to progress the said grievance. In addition, subsequently on or about 5 September 2001, the claimant complained to the respondent that he had been discriminated against by Mr Whittaker, on the grounds of his religious belief and/or political opinion in refusing to allow him to return to work.
18. .13 Whilst there appears initially to have been an issue whether the complaint had been made on the proper format, Mr Jim Moore, who was then acting as Assistant Managing Director of the respondent, on or about 11 October 2001 stated that the complaint would be dealt with under the company's formal procedures and appointed an investigation team to investigate the complaint.
19. .14 An investigation was carried out by the team, which comprised Mr Hughes and Mr McMullan. They interviewed the claimant, Mr Whittaker, but also Mr Eamon Doone, who was the Production Manager until mid-2000 and thereafter the Operations Manager of the respondent. By memorandum dated 22 October 2001, the claimant was informed by the members of the investigation team of the following:-

"We are of the opinion that you have been discriminated against. We cannot however attribute these findings to religious grounds or political opinion".

No details of the finding of the investigation team or the reason for their conclusion were provided to the claimant or indeed to the Tribunal. Neither Mr Hughes nor Mr McMullan were called as witnesses to the Tribunal.

20. .15 On 24 October 2001, at a meeting with the claimant, Mr Moore agreed to the return to work of the claimant from 29 October 2001 – but that he was not to do any work which required him to work with gloves and that his hands were to be checked. Save that he was now handling the matter, Mr Moore gave the claimant no explanation for the change of view of the respondent in allowing him to now return to work, whilst not requiring him to do any job which required the use of gloves. The claimant returned to work and has continued to do so, with others doing any work which would involve the claimant having to wear gloves.

Mr Moore did not give evidence to the Tribunal about his said decision and/or the reasons for it – albeit at an earlier stage of the proceedings the Tribunal was asked to arrange dates for the hearing to accommodate Mr Moore, as he was out of the jurisdiction. Subsequently, the Tribunal was informed he would not be giving any evidence to the Tribunal.

21. .16 Following the above decision by Mr Moore, the investigation team reported to Mr Moore, at his request, about the results of the investigation in a memorandum dated 30 October 2001. The team indicated, inter alia, that the claimant's situation had been handled in an extremely vague manner and it did not become apparent during the investigation whose decision was keeping the claimant from returning to work.
22. .17 The claimant maintained in evidence to the Tribunal that the person who, at all material times, prevented him from returning to work, due to his skin condition, was Mr Whittaker. However, Mr Whittaker contended that all the actions taken by him, as set out above, were carried out by him on the instructions of and/or with the authority and/or knowledge of Eamon Doone. Mr Doone, who was a Catholic, had prior to mid-2000 been the respondent's Production Manager and thereafter the Operations Manager. Both posts were very similar, but in the latter position he had an overall responsibility not just for production but also for Human Resources. Mr Whittaker described his role as Human Resources and Environmental Manager as that of the 'gofer' – reporting all developments relating to the claimant to Mr Doone at various meetings and then acting on his instructions to progress the matter. Mr Doone, in his evidence to the Tribunal, supported Mr Whittaker's contention that the actions of Mr Whittaker were done on his instructions and/or with his authority and knowledge. The Tribunal, however, cannot accept that this was an accurate description of the respective roles of Mr Whittaker and Mr Doone in this matter. It so found, given the absence of any documentary evidence of any relevant meetings between Mr Whittaker and Mr Doone, where the claimant's situation was discussed and progressed or, indeed where Mr Doone had played any part in the matter until in or about September/October 2001, when it appears he discussed the claimant's position with Dr Campbell. Significantly, in the Tribunal's view, this was after the claimant had commenced his grievance and indeed these proceedings. The Tribunal was further satisfied that, whenever Mr Warke, as the claimant's shop steward, had attempted to raise the situation with the claimant with Mr Doone, Mr Doone at all times referred him to Mr Whittaker as the person dealing with the matter. Further, Mr Doone acknowledged, in evidence to the Tribunal, that he had at no time ever seen the diary entries of Mr Whittaker where the rash had been noted by Mr Whittaker, nor had he seen the photograph taken by Mr Whittaker, which Mr Whittaker maintained had been taken on his instructions. He also seemed to be unaware of the medical evidence, obtained by Mr Whittaker, prior to his involvement in or about September/October 2001. None of this, in the Tribunal's view, suggested that Mr Doone was in fact the relevant decision-maker for what occurred to the claimant; but rather pointed to the fact, as the Tribunal found, that Mr Whittaker was at all material times the said decision-maker.
23. .18 Further, the Tribunal found of particular assistance in determining who was the relevant decision-maker the replies given by the respondent's representatives dated 14 February 2003 to the claimant's Order for Further Particulars dated 5 February 2003 in answer to paragraph 1(b) and 2(b) of the said Order. The reply stated, without equivocation, that the person who had taken the steps in relation to the claimant's skin condition and who had refused to accommodate the claimant due to his skin condition was Mr Whittaker.
24. .19 Mr Whittaker stated he had not been consulted about the terms of the said replies, albeit he was still working for the respondent, as a Consultant, at the date of the making of the said reply. The reply was, it was suggested by Mr Whittaker, prepared by the Personnel Manager, who had taken over his Human Resource duties when he became a Consultant. This Personnel Manager was not called, nor was any evidence given how this reply came to be given, albeit it was contrary to the evidence given by Mr Whittaker and Mr Doone. At the outset of the hearing, no attempt was made to amend the reply or to put the claimant's representatives or the Tribunal on notice that the case, to be made by the respondent, was not that the decision-maker was Mr Whittaker but it was in fact Mr Doone. The Tribunal found the above reply of particular significance, since it was given on foot of an Order of the Tribunal by the respondent's legal representative. It is correct that, in a reply to the claimant's questionnaire dated 16 May 2002, the respondent's representatives had stated that Mr Doone had made or contributed to the said decisions, relating to the claimant's refusal of a transfer. In view of this earlier reply to the questionnaire, the Tribunal found the failure of the respondent to seek to amend the reply given to the said Order before the hearing or to call any evidence to explain how it came to be given all the more surprising – if it was, as suggested by the respondent's representative in submissions to the Tribunal, made in error.
25. .20 The claimant contended that his two comparators, in relation to his alleged unlawful less favourable treatment, were two other employees of the respondent, namely Colin Wilton and Gary Coulter.
26. .21 Both Mr Wilton and Mr Coulter were Protestants and in or about 1999 were production workers for the respondent. Both at that time complained of tenosynovitis, which was affecting their wrists. Following medical reports from their General Practitioners, confirming the said diagnosis, they were promptly transferred to light duties on the clear recommendation of their General Practitioners that such a transfer would aid their recovery. There was, at no time, any issue about the said medical condition of the said employees. The cause of their condition and, in particular, whether it was work-related was never apparently established. As in the case of the claimant, all documentary evidence relating to these transfers, for example diary entries, were made by Mr Whittaker; again it was Mr Whittaker who corresponded with the said employees' doctors. Similarly, as in the case of the claimant, Mr Whittaker suggested, in evidence to the Tribunal, that in relation to these transfers the relevant decision-maker was again Mr Doone and not him and that at all times he was merely Mr Doone's 'gofer'. The Tribunal, for the same reasons as set out above, in the case of the claimant, is satisfied that in relation to these transfers of Mr Wilton and Mr Coulter the relevant decision-maker was Mr Whittaker and not Mr Doone. Mr Doone, clearly as Production Manager, would have been aware of what had taken place, but, in the Tribunal's view, the relevant decisions were taken by Mr Whittaker and not Mr Doone.
27. .1 The claimant's claim was brought, pursuant to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 (the 1998 Order).
28. .2 Insofar as material and relevant to this claim:-

(a) Article 3(2) of the 1998 Order states:-

A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant to the purpose of this Order if:-

(a) on either of these grounds he treats that other person less favourably than he treats or would treat other persons.

(b) Article 3(3) states:-

A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same or not materially different from the other.

(c) Article 19 states:-

(i) It is unlawful for an employer to discriminate against a person, in employment in Northern Ireland –

…

(b) where that person is employed by him –

(i) in the terms of employment which he affords him; or

(ii) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

(iii) by dismissing him or by subjecting him to any other treatment.

29. .3 There was no dispute between the parties that the relevant comparison to be made by the Tribunal was the treatment of the claimant and that of Mr Wilton and/or Mr Coulter and further that the relevant circumstances in the case of the claimant and those of Mr Wilton and/or Mr Coulter were the same or not materially different. As stated previously, there was no claim for financial loss. It was accepted by both representatives that to succeed it would be necessary for the claimant to show detriment. Since the decision of the House of Lords in Shamoon -v- Chief Constable of the RUC (2003) IRLR 285, it is not necessary, in order to show detriment, to demonstrate some physical or economic consequence. Detriment was held, in that case, to be an act which a reasonable employee might feel places them at a disadvantage with regard to the circumstances in which they work. The Tribunal was satisfied that the failure to transfer the claimant from the vari-moulding process and/or the refusal to let him return to work, without wearing gloves, could amount to such a detriment.
30. .4 The Fair Employment and Treatment Order (second amendment) Regulations (Northern Ireland) 2003, came into operation on 1 December 2003, which provided in regulation 24 for the alteration of the burden of proof in such proceedings, by insertion of Article 38A to the 1998 Order. The Tribunal is further satisfied that, by virtue of regulation 2 of the said Regulations, the claimant's claim has to be determined, in the light of the provisions of Article 38A of the 1998 Order.

Article 38A states:-

"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 complainant; or

(b) has, by virtue of Article 35 or 36, been 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."

31. .5 The Tribunal is not aware of any decisions of the Court of Appeal in Northern Ireland, where the provisions of Article 38A have been considered. Section 63 of the Sex Discrimination Act 1975 is in similar terms. The leading authority, on interpretation of the said section, is the recent Court of Appeal decision in the case of Igen -v- Wong (2005) IRLR 285, which proved, with amendment, the guidelines set out in the earlier decision of Barton -v- Investec Henderson Crosthwaite Securities Limited (2003) IRLR 332. The Tribunal, in the absence of any other relevant authority, considered it appropriate to follow the said guidance, as amended.
32. .6 The Tribunal, following the said guidance, recognised it was necessary, in light of the facts as found by the Tribunal, as set out in the preceding paragraphs of this Decision, to firstly identify whether the claimant had established facts from which the Tribunal "could" conclude, in the absence of an adequate explanation, as defined, that the respondent had committed an act of unlawful discrimination on the grounds of his religious belief. In so doing, the Tribunal was careful to note that, since the wording of Article 38A of the 1998 Order refers to "could", it was not required, at this stage, to reach a determination that such facts would lead to a finding of unlawful discrimination.
33. .7 There was no dispute between the parties that the claimant was a Catholic and that Mr Wilton and/or Mr Coulter, his comparators, were both Protestants.
34. .8 The Tribunal identified, in light of the facts as found by it, the following matters from which such conclusions, as referred to above, "could" be made.

(i) Mr Wilton and/or Mr Coulter, both Protestants, were found to suffer from tenosynovitis in their wrists. Following medical reports from their General Practitioners, they were promptly transferred to lighter duties by Mr Whittaker, a Protestant, on the recommendations of their doctors that this would aid their recovery. The claimant, a Catholic, despite suffering from a skin condition on his hand, was not transferred by Mr Whittaker to other duties and following his period of sick absence, due to his condition, was not allowed to return to work avoiding the use of gloves, despite recommendations by medical advisers which were given to the respondent.

(ii) The claimant brought a complaint of religious discrimination, which was the subject of investigation by a team from the respondent, which reported that he had been discriminated against, albeit such discrimination was not on the grounds of his religious belief, but failed to inform him of the grounds and/or the reasons for the said finding of discrimination.

(iii) The respondent, having earlier refused to transfer him or to allow him to return to work avoiding work with gloves, Mr Moore, following the said investigation immediately allowed him to return to work avoiding work with gloves and for which change no reason or explanation has been provided.

(iv) The respondent, in reply to the Tribunal's Orders for Particulars, stated that relevant decisions had been taken in relation to the claimant by Mr Whittaker, a Protestant; whereas, in evidence, and without any amendment of the reply, the respondent maintained, through the evidence of Mr Whittaker and Mr Doone, that such decisions had been taken by Mr Doone, a Catholic. The Tribunal was satisfied, as set out above, that such decisions were taken by Mr Whittaker, as were the decisions taken in relation to Mr Wilton and/or Mr Coulter.

35. .9 In considering the explanations given by the respondent to the above said matters, the Tribunal was conscious that certain witnesses, who could have been called by the respondent to give evidence relevant to such explanations, were not called. In particular, there was Mr Moore, who took the decision to allow the claimant to return to work avoiding the use of gloves, following the investigation; and for which decision neither the claimant nor the Tribunal was ever given any explanation. Neither of the investigators were called as witnesses, who had found discrimination, albeit not on the grounds of religious belief of the complainant. At no time was the claimant nor the Tribunal informed of the basis for or the reasons for their said decision. Further, the said Personnel Manager was not called as a witness whom, it was suggested, had been responsible for the reply to the Order for Particulars which stated that Mr Whittaker took the relevant decision, and which reply was contrary to the evidence given to the Tribunal by both Mr Doone and Mr Whittaker.

In the case of Lynch -v- Ministry of Defence (1983) NI 216, Hutton J, as he then was, set out the principles to be adopted by a court where a party fails to call a witness.

"Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for the purposes, namely:-

(a) in deciding whether to accept any particular evidence, which has in fact been given either for or against that party and, which relates to matters with respect to which the person not called as a witness could have spoken; and

(b) in deciding whether to draw inferences of fact which are open to them upon evidence which has been given, again in relation to matters with respect to which the party not called as a witness could have spoken."

36. .10 The Tribunal therefore, in the absence of any evidence from Mr Moore and/or the members of the investigation team and/or the Personnel Manager, found itself relying solely on the evidence given by Mr Doone and Mr Whittaker, in determining whether the respondent had discharged the said burden of proof by providing a sufficient and adequate explanation for the respondent's said actions, as set out above.
37. .11 The Tribunal came to the conclusion that in refusing to allow the claimant to transfer from the vari-moulding process, prior to the receipt of the said medical reports from Dr Hutchinson and Dr Campbell, that this had been done, as Mr Whittaker stated in evidence to the Tribunal, in light of the uncertainties in the medical situation and the absence, prior to that, of a clear medical diagnosis. At the outset the claimant's General Practitioner had suggested that the claimant had an eczematous reaction after using fibreglass; later it was suggested that the claimant had possibly a primary irritant dermatitis, albeit there was no evidence of sensitivity type. Indeed, it was not until the said medical reports in April/May 2001 that his medical condition was confirmed as a purely skin irritant skin condition, with no allergic eczema. The Tribunal noted that, in relation to Mr Coulter/Mr Wilton, the medical diagnosis was never in dispute. However, whilst the Tribunal could accept Mr Whittaker's explanation for the situation prior to April/May 2001 where the diagnosis was uncertain, as set out above, the Tribunal was given no adequate or proper explanation for the failure, following receipt of the said reports, why the claimant was not allowed to return to work, avoiding the use of gloves, as recommended by the medical advisors; but which action was then taken in October 2001 by Mr Moore, without explanation, albeit following the complainant's grievance complaint and issuing of these proceedings.

In the absence of any proper explanation for the said failure during the said period between late April/early May 2001 and late October 2001, the Tribunal is satisfied that the respondent has failed to discharge the said burden of proof and the Tribunal is therefore satisfied that the claimant, Catholic, has been less favourably treated in comparison to Mr Coulter/Mr Wilton, both Protestants, in the same and/or not materially different circumstances and has been therefore unlawfully discriminated against on the grounds of his religious belief.

38. .12 The Tribunal was confirmed in its view, as set out above, having regard to the replies to the said Orders for Particulars, which clearly stated that Mr Whittaker was the relevant decision-maker; but which both he and Mr Doone suggested in evidence was not correct. As stated previously, this evidence was not accepted by the Tribunal. As seen in the recent decision of Dattani -v- Chief Constable of West Mercia Police (2005) IRLR 327, evasive, incorrect or nil replies to questions asked in a race discrimination case can lead to drawing of an inference of unlawful discrimination, even if the questions were not asked under the statutory procedure. This reply, albeit not under the statutory procedure, was incorrect and, in the Tribunal's view, was a blatant and clear attempt by the respondent to negate the role of Mr Whittaker, a Protestant, and enhance the role of Mr Doone, a Catholic, with the clear implication that the latter was less likely to discriminate against a co-religionist, namely the claimant. If it had been necessary to do so, the Tribunal in concluding that the claimant had been unlawfully discriminated against on the grounds of his religious belief, would have drawn an inference from this incorrect reply of unlawful discrimination by the respondent.
39. .1 The Tribunal is satisfied that the claimant was upset, frustrated and distressed by the refusal of the respondent to allow him to return to work, avoiding the use of gloves, during the period from late April/May 2001 to late October 2001 and he has thereby suffered an injury to his feelings. Having regard to the length of the said period, the Tribunal came to the conclusion that any award for such injury fell into the bound of less serious cases, as set out in the case of Vento -v- Chief Constable of West Yorkshire Police (No 2) (2003) IRLR 102. The Tribunal considered that, in the circumstances, he was entitled to an award of £3,000 in respect of his injury to feelings.
40. .2 The Tribunal considered whether to award interest under the provisions of the Fair Employment Tribunal Tribunal (Remedies) Order (Northern Ireland) 1995 and concluded that it should include interest on the amount so awarded. The amount of interest is £1,050, calculated at 8% per annum for the period from 1 May 2001 (the date of the act of discrimination) to 1 October 2005 (the date of calculation).
41. .3 The Tribunal therefore awards the following compensation:-

(a) Injury to feelings £3,000.00

(b) Interest @ 8% per annum from 1 May 2001 to 1 October 2005 £1,060.00

Total award £4,060.00

42. .4 This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

Chairman:

Date and place of hearing: 19 October 2004, 21 October 2004, 22 October 2004, 10 January 2005, 11 January 2005, 10 March 2005, 11 March 2005, Belfast

Date decision recorded in register and issued to parties: