Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 17/03FET

138/03

CLAIMANT: Brian Wilton

RESPONDENT: Short Brothers Plc

DECISION

The unanimous decision of the Tribunal is that:-

(1) The claimant was not unlawfully discriminated against on the grounds of his religious belief/political opinion by the respondent and case reference number 17/03FET is therefore dismissed.

(2) The claimant was unfairly dismissed by the respondent and the respondent is ordered to pay the claimant the sum of £23,000.77.

Appearances:

The claimant was represented by Mr J B McKee, Barrister-at-Law, instructed by Campbell Stafford Solicitors.

The respondent was represented by Mr R Murphy of the Engineering Employers' Federation.

With the agreement of the parties the title of the respondent was amended to that shown above.

The Tribunal heard evidence from the claimant and two witnesses for the respondent, Mr Bingham, a Human Resources Adviser for the respondent, and Mr Joseph Morgan, who is the respondent's Director of Customer Support.

The Tribunal was provided with an agreed bundle of documents.

The issues for determination in this case were:

(1) whether the claimant was less favourably treated than a person of a different religious belief/political opinion would have been treated in the same circumstances in being dismissed for having received goods of a loyalist nature on company premises; and

(2) whether the claimant was unfairly dismissed.

The applicable law is contained in Article 3(1)(a), 3(2)(a) and 3(3) of the Fair Employment and Treatment (Northern Ireland) Order 1998 which define discrimination and Article 19 of the same Order which sets out the circumstances in which such discrimination is to be regarded as unlawful in the employment field. The Tribunal, in coming to its decision, applied the burden of proof contained in Article 38A of the same Order. With regard to the allegation of unfair dismissal, the applicable law is contained in Articles 126 and 130 of the Employment Rights (Northern Ireland) Order 1996.

The claimant was employed by the respondent as an Operations Team Manager in the final assembly area. He commenced employment with the respondent in February 1986 and he was dismissed on 1 October 2002 on the grounds of his involvement in the sale, purchase or handling of items on Company premises and the subsequent breach of the Company's Equal Opportunity Policy after an investigatory meeting and a disciplinary hearing. The claimant also availed himself of the opportunity to appeal the decision to dismiss him. The claimant is a Protestant and was perceived as a loyalist.

The claimant alleged that he had been unlawfully discriminated against on the grounds of his perceived political opinion as a loyalist and Protestant and unfairly dismissed after he volunteered the information that he had been given on company premises two compact discs featuring a flute band which played marching tunes and other melodies, some of a loyalist nature.

The claimant's volunteering of the information that he had received the two compact discs came about as a result of a wider investigation conducted by the respondent into the unauthorised sale of Rangers replica shirts and T-shirts which contained sectarian slogans on the shop floor. Up to nine managers and several lead-hands were interviewed as part of this investigation. The claimant had been one of the interviewers at a disciplinary hearing for the person who it was believed was running a business on the company premises selling these goods. An allegation was made at that disciplinary hearing that the claimant had been involved in the sale of five compact discs featuring the loyalist flute band on the shop floor. The claimant was withdrawn from the disciplinary panel and was subsequently asked by Mr Bingham and Ms Kelly, a Human Resources Officer who had been present at the disciplinary hearing, to sign off the notes of that hearing. That meeting then turned without warning into an investigative meeting of the allegation that the claimant had been selling the band's compact discs on the respondent's premises. The claimant denied selling any compact discs but indicated to Mr Bingham and Ms Kelly that he had been given two compact discs of the flute band in the respondent's car park one Saturday morning, having purchased them in Forestside some time earlier.

The following day Ms Kelly spoke to several people about the allegation that the claimant had been selling compact discs. The persons interviewed categorically stated that the claimant had not sold them compact discs and they had no knowledge that he had done so. On 1 October 2002 around 10.00 am Mr Bingham handed the claimant a letter at the main factory requiring him to attend a disciplinary hearing at 1.00 pm that same day at the respondent's Interpoint premises. The letter was in the following terms:

"Dear Brian

Over recent days we have been conducting an investigation regarding the sale and purchase of items on Company premises and related matters in respect of the Company's Equal Opportunity Policy.

I am writing to advise you that you are required to attend a Disciplinary Hearing on Tuesday 1 October 2002 at 1.00 pm at Interpoint.

The disciplinary proceedings will consider the following areas, which may, in accordance with the Company's Disciplinary Procedure, constitute acts of gross misconduct:

1. Your involvement in the sale, purchase or handling of items on Company premises.

2. A Breach of the Company's Equal Opportunity Policy.

I would confirm that you have the right to be represented by a fellow worker or a Trade Union official."

The letter was signed by Mr Bingham. The claimant was not a member of a union but he tried in the time available to get a fellow worker to accompany him but was unable to do so. He attended for the disciplinary hearing on his own.

Present at the disciplinary hearing were Mr Bingham, Mr Paul Davidson, who was a Unit Manager, and the claimant. Mr Bingham made notes at the meeting which he was unable to produce at this hearing. He provided a summary of the disciplinary interview which he prepared after the interview. The allegation that the claimant had been selling the band's compact discs was put to the claimant again, and again he denied it. The claimant told the disciplinary panel of the sectarian way he felt that he had been treated in being asked by a fellow manager to identify workers who had attended a parade on 1 July 2002 in East Belfast because he "was a cert to have been there" and by the failure of Mr Galway, the respondent's Equal Opportunities Manager, to whom the claimant complained to do anything about the matter contrary to the company's Equal Opportunities Policy.

The claimant told the disciplinary panel that he had paid for the compact discs around Christmas time in Forestside Shopping Centre. He also pointed out that they had been handed over to him in one of the respondent's car parks one Saturday morning in May wrapped in a store-type plastic bag which he had immediately put into the foot-well of the passenger seat of his car. The disciplinary panel, having recessed for a short while, came back and told the claimant that they found he was in clear breach of the respondent's disciplinary procedure and Equal Opportunities Policy which they regarded as gross misconduct and that he was being summarily dismissed.

The claimant exercised his right to appeal which was heard by Mr Crawford, who was a Protestant, and a Human Resources Director, Ian McBride, a Protestant, who was Director of Special Projects and Joseph Morgan, who was from a Roman Catholic background. Mr Crawford is apparently no longer with the company. The claimant was accompanied by Mr John Ritchie, a Material Control Manager, who acted as an observer.

The appeal hearing had in front of it Mr Bingham's summaries of the investigatory hearing and the disciplinary hearing, the letter of dismissal and the claimant's appeal letter. It appears that the only matter dealt with at the appeal was the matter of the claimant receiving the two compact discs in the respondent's car park. The appeal panel were told that the compact discs had been purchased at Christmas away from the workplace and were simply handed over in the car park, never brought into the workplace and were not visible to anyone passing the car. The claimant and Mr Ritchie both had a full opportunity to speak and pointed out that people who had been found fighting and drinking on the premises had not been dismissed. However, after an overnight recess and an investigation for Mr McBride's benefit of a website to establish the type of band which featured on the compact discs, the appeal panel upheld the disciplinary panel's decision to dismiss the claimant on the grounds of gross misconduct. The appeal panel however did note the claimant's 16 years of service to the respondent and his position as an experienced manager. The panel's conclusion as to the type of compact disc was that the band featured loyalist tunes which could have been offensive to some people.

The respondent company has had well-documented problems with regard to the wearing, display and operation of sectarian items in the workplace and strenuous steps have been taken to establish a neutral and harmonious working environment. However, despite this, the sale and wearing of Rangers shirts and other sectarian paraphernalia appear to have continued, albeit that persons seen wearing items such as Rangers shirts were told to cover them up.

Mr Murphy maintained that the claimant had not been either unfairly dismissed or unlawfully discriminated against on the grounds of his religious belief/political opinion. He pointed out that the nature of the compact discs received by the claimant was such that on the claimant's own admission if they had been sitting openly on his desk they could have given offence to some sections of the workforce. He also suggested that the claimant had not been entirely open with the company because he had refused to name the person who sold him the compact discs until the Tribunal hearing. He maintained that once the company were aware of the allegation that a manager was selling compact discs it had to be investigated.

Mr Murphy suggested that any procedural deficiencies in the way the investigatory meeting, disciplinary hearing and appeal hearing were dealt with were minor matters and that a person who was a manager such as the claimant should have known to ask for more time on such matters if he had required it.

Mr Murphy referred to the respondent's Equal Opportunities Policy and the requirement to promote a good harmonious working environment and he referred in particular to the case of Brennan -v- Short Brothers Plc and the definition given of "neutral" therein which said that "anything identifying community allegiance needs justification in the workplace". He pointed out that the claimant was well aware of the neutral working environment requirement with regard to the complaint that the claimant had been unlawfully discriminated against on the grounds of religious belief/political opinion. Mr Murphy referred to statistics produced on behalf of the respondent which clearly demonstrated that considerably greater numbers of Roman Catholics as a percentage of the workforce had been dismissed than had Protestants. He pointed out that the claimant was relying on hypothetical comparators and he suggested that the statistics provided contradicted that hypothesis. He suggested that if a Roman Catholic employee had been found with a compact disc which contained Irish rebel songs he too would have been dismissed. Mr Murphy also pointed out that at the time of this investigation into the buying and selling of sectarian paraphernalia three Protestants including the claimant had been dismissed and one Roman Catholic had also been dismissed.

With regard to the allegation of unfair dismissal, Mr Murphy maintained that the decision to dismiss the claimant came within the range of reasonable responses. He also maintained that the respondent had adopted a reasonable procedure and that the claimant had been given reasonable hearings and that as a manager more was expected of him than of a shop floor employee.

Mr McKee pointed out that the claimant's failure to give the name of the person who sold him the compact discs was never pressed with him at any of the hearings. He also suggested that the failure of Mr Galway to take action when the claimant complained to him suggested the company were not dealing even-handedly with the claimant, particularly when viewed in the circumstances that a fellow manager quite clearly perceived him as a loyalist. He suggested that the Tribunal should take this into account in considering whether the claimant had been unlawfully discriminated against on the grounds of his religious belief/political opinion. He suggested that one could be discriminated against within the Protestant community on the grounds of their political belief in that community.

With regard to the unfair dismissal aspect of the case, Mr McKee suggested that the procedure adopted by the respondent was in many ways deficient. He pointed out that no warning was given to the claimant in relation to the investigatory meeting. He was totally unaware of the nature of the misconduct which was to be dealt with, which was the allegation that he was selling compact discs in the workplace. He pointed out that it appeared that Mr Bingham had no details of the accusations being made against the complainant and that he decided that there should be a disciplinary hearing prior to any interviews taking place with persons to whom the claimant was alleged to have sold compact discs.

With regard to the disciplinary hearing, Mr McKee suggested that the claimant had been given insufficient notice of the hearing and that no details of the allegations against him were given, apart from the vague statement of sale, purchase and handling of items on company premises and a breach of the company's Equal Opportunity Policy. He pointed out that the sale, purchase and handling of items on company premises was not a matter set out in the disciplinary guidelines as an act of gross misconduct. He pointed out that subsequent to the claimant's dismissal a "B notice" was issued throughout the factory which emphasised that unauthorised business and trading on company time should not be undertaken and if this occurred that it may be treated as gross misconduct.

Mr McKee also pointed out that it was clear that Mr Bingham's summaries of the investigatory and disciplinary meetings were not contemporaneous and by no means comprehensive, particularly in the way they failed to make any mention of the claimant's explanation that he had agreed to buy the compact discs and had paid for them at Forestside and that they were received in an opaque bag and put straight into the car. Mr McKee suggested that simply saying that the claimant was a manager and therefore would have known to ask for extra time or information in relation to his hearings had he required them was inappropriate. He pointed out that in the end the claimant was dismissed simply for receiving the goods rather than the matters set out in the letter of 1 October. He maintained that the disciplinary panel had taken no account of the claimant's 16 years' service nor of the fact that he had no disciplinary record at that time.

With regard to the appeal, Mr McKee maintained that as it was not a re-hearing it could not remedy the flaws in the disciplinary hearing. He suggested that there were also flaws in the appeal hearing in that the appeal panel relied on the summary prepared by Mr Bingham which was clearly deficient and secondly he maintained that the appeal panel took into account extraneous matters such as the content and type of the compact discs without giving the claimant the opportunity to comment thereon.

Mr McKee maintained that the claimant was entitled to purchase the compact discs outside work and that the only connection to the respondent was that delivery took place at the workplace. He maintained that the claimant did not know that it was going to be handed over at his workplace and that this certainly did not constitute the sale, purchase or handling on company premises and that it was therefore ludicrous to suggest that this was a breach of item 15.4 of the Employee Handbook which referred to unauthorised business and trading and which said that whilst on Company time employees may not be engaged in any business or do any work other than the work authorised by the Company. He suggested that the claimant was not involved in any business as envisaged in the Employee Handbook at 15.4. Mr McKee maintained that, as far as the neutral working environment was concerned, no one could have felt intimidated by the action of the claimant in putting an opaque bag straight into his car. He suggested therefore that the dismissal was entirely unfair and outside the band of reasonable responses.

He suggested that in the circumstances the respondent had been overenthusiastic in treating what the claimant did as a sufficient reason to dismiss him and that the only reason this was done was because he was perceived as a loyalist. Mr McKee conceded that the claimant was not seeking compensation with regard to injury to feelings in this regard.

The Tribunal, having considered all the evidence, was not satisfied that the claimant had established facts from which the Tribunal could conclude, in the absence of an adequate explanation, that he had been less favourably treated on the grounds of his religious belief/political opinion than a person of a different religious belief/political opinion would have been treated in similar circumstances. The claimant's representative, in his opening statement, referred to a hypothetical comparator but no facts were established to show, or from which the Tribunal could infer, that such a hypothetical comparator would have been treated differently. The Tribunal accepted the respondent's submission that a comparator in similar circumstances would have been a manager who was a Roman Catholic with republican views who had taken delivery of compact discs containing Irish rebel songs at the company's premises. The Tribunal concluded that such a comparator would not have been treated any differently to the way in which the claimant was treated in the particular circumstances of the respondent's history as an employer and in their efforts to eradicate sectarian items which could give offence from the workplace. The Tribunal was strengthened in this view by the statistics produced by the respondent which showed that a proportionately greater number of Roman Catholics were dismissed by the respondent than were Protestants.

With regard to the unfair dismissal aspect of the case, the Tribunal found that the respondent's procedures for dealing with the claimant's dismissal fell short of what would reasonably be expected in a business of the size and sophistication of the respondent. In coming to this conclusion, the Tribunal took into account the shortness of notice given to the claimant to attend the disciplinary hearing, the contravention of the respondent's own policy that such disciplinary hearings should be heard early in the day rather than when workers were tired, and the failure of Mr Bingham to record accurately the information and defence which the claimant provided. The Tribunal also were of the view that it was not sufficient for the respondent to say that if the claimant had wanted more time he would have known to ask for it.

The Tribunal was also satisfied that the appeal hearing was flawed in that it was not a complete rehearing and so could not remedy the flaws in the disciplinary hearing, particularly where it relied on Mr Bingham's inaccurate and incomplete records of the investigative and disciplinary hearings. The Tribunal also considered that where the appeal panel had investigated via the internet the type of band whose tunes were recorded on the compact discs they should have afforded the claimant the opportunity to comment on their research before confirming the decision to dismiss him.

The respondent's disciplinary code makes no mention of the type of behaviour for which the claimant was dismissed being a disciplinary offence. The respondent's Equal Opportunities document describes the visual display of sectarian items as likely to constitute sectarian harassment. The Employee Handbook at 15.4, headed "Unauthorised Business and Trading":

"Whilst on company time employees may not be engaged in any business or do any work other than the work authorised by the company."

Neither of these situations applied to the claimant's behaviour. The only evidence before the disciplinary and appeal panels came from the claimant himself that he had received two wrapped compact discs which he had immediately placed in his car. There was no indication or suggestion that any other person apart from the two people concerned saw or were involved with the occurrence. There was no evidence of business activity or dealing and no evidence of any offence given to anyone, either actually or potentially. It is difficult therefore to see how on the basis of the evidence, the conclusion could have been reached that the disciplinary code or handbook could have been breached. This is confirmed by the subsequent issue of the B Notice indicating that such behaviour might in future be regarded as an offence. The Tribunal therefore considered that the conclusions reached by the respondent were unreasonable.

The Tribunal noted that in taking the original decision to dismiss no account was taken of the claimant's length of service and clear disciplinary record. The Tribunal also noted that the offences for which the other employees were dismissed around the same time were more serious. Given all these factors and the lack of evidence of a breach of either the disciplinary code or the Employee Handbook already referred to, the Tribunal was not satisfied that the dismissal of the claimant was a reasonable response. The Tribunal therefore concluded that in all the circumstances the claimant's dismissal was unfair.

The representatives helpfully agreed a schedule of loss between them, which is attached hereto, and the Tribunal adopts this as the basis for its award of compensation to the claimant.

The claimant, however, has an ongoing loss as between his current salary and that which he could have earned with the respondent if he had not been unfairly dismissed. This amounts to £78.90 per week net. The Tribunal considers that it would be just and equitable to compensate the claimant for this ongoing loss for a further period of 13 weeks up until end September 2005. In coming to this conclusion the Tribunal has taken into account the claimant's ability to obtain such well-paid employment over the last three years and his prospects for obtaining increases in his current employment or other such employment in the future.

The Tribunal therefore computes the amount of compensation to be awarded to the claimant as follows:

Basic Award

£250 (statutory cap) x 16 £4,000.00

Compensatory Award

Total loss to 29 June 2005 £72,341.37

Less earnings received to 29 June 2005 £54,566.80

£17,774.57

Loss of statutory rights £200.00

Ongoing Loss

£78.90 x 13 (29 June 2005-28 September 2005) £1,025.70

£23,000.77

The claimant applied for Jobseeker's Allowance when he was dismissed and so the provisions of the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 apply and the parties' attention is drawn to the Annex attached to this Decision which is intended to form part of it. The prescribed element amounts to £17,774.57 and the period attributable to the prescribed element is from 1 October 2002-29 June 2005.

This is a relevant Decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:____________________________________

Date and place of hearing: 9-11 May 2005, Belfast

Date decision recorded in register and issued to parties:

Case Ref No: 138/03

CLAIMANT: Brian Wilton

RESPONDENT: Short Brothers PLC

ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£
(a) Monetary award	23,000.77
(b) Prescribed element	17,774.57
(c) Period to which (b) relates:	1 October 2002-29 June 2005
(d) Excess of (a) over (b)	5,225.70

The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker's Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker's Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.