Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 363/03 FET

CLAIMANT: Francis Foy

RESPONDENT: Moy Park Limited

DECISION

The unanimous decision of the Tribunal is that the respondent is entitled to rely on the statutory defence set out in Article 36(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998. Accordingly, the respondent is not vicariously liable for the act of discrimination perpetrated by its employee. The claimant's claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Ms Turkington

Members: Mr Holland

Mr Pyper

Appearances:

The claimant was represented by Mr B Lundy, Barrister-at-Law, instructed by Agnew Andress Higgins, Solicitors.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Mr Conn Burns, Company Solicitor.

The claim

1. The claim was a claim of religious discrimination.

The issues

2. As set out in the Record of Proceedings at a Case Management Conference on 30 November 2004, the only issue to be determined by the Tribunal is whether the respondent is vicariously liable for the act of its employee by virtue of Article 36(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 ('FETO').

Sources of evidence

3. The Tribunal heard evidence from the following witnesses on behalf of the claimant:-

The claimant;

Mr John McLaughlin;

Mr Jim Quinn; and

Dr Paul Bell, Consultant Psychiatrist

4. The Tribunal heard evidence from the following witnesses on behalf of the respondent:-

Mr John Cromie;

Mr Ronnie Newell;

Mr Ian Hughes;

Miss Mandina Fulton;

Mr Gary Leslie; and

Mr James French

5. The Tribunal was also referred to a number of documents in the agreed bundle of documents.

Contentions of the parties

6. In his claim form, the claimant alleged that he had been accused by a fellow employee of being a member of the IRA. The claimant stated that he believed this amounted to harassment on the grounds of his community background and perceived political beliefs. He contended that the respondent had not taken this matter seriously in dealing with the harasser or protecting him from harassment. The claimant's counsel confirmed at the beginning of the hearing that the claim related to one incident of discrimination only, namely the words spoken by the fellow employee. It was not alleged that the respondent's handling of the claimant's complaint amounted to a further act or acts of discrimination.
7. The respondent conceded that one of its employees had said the words set out in the claim form. It was further conceded by the respondent that these words constituted an act of religious discrimination against the claimant.
8. However, the respondent's counsel pointed out that the claimant had not brought a claim against the employee who had committed the act of discrimination. The respondent further contended that it was not vicariously liable for the act of discrimination perpetrated by its employee since it was entitled to rely on the statutory defence set out in Article 36(4) of FETO. The respondent submitted that it had taken such steps as were reasonably practicable to prevent the employee from perpetrating such an act of religious discrimination.
9. In response to the respondent's submissions, the claimant's counsel submitted that the respondent should be held vicariously liable for the acts of its employee under Article 36(1) of FETO. Counsel further contended that the respondent failed to take such steps as were reasonably practicable to prevent the act of discrimination occurring. Counsel pointed to a number of incidents which he said suggested that the respondent's policies had not been properly implemented. In relation to compensation, counsel for the claimant submitted that this case fell into the second band in the case of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 EWCA so the claimant should be awarded compensation for injury to feelings in the range £5,000.00 to £15,000.00. Counsel also contended that the claimant should be awarded compensation for loss of earnings and psychiatric injury suffered as a result of the act of discrimination.

Facts of the case

10. Having considered the evidence of the witnesses for the claimant and respondent, the medical reports of Dr Paul Bell and Dr Fred Browne and the documents referred to in evidence, the Tribunal found the following facts:-
11. The claimant was employed by the respondent as a factory operative in its Dungannon factory from 1989. The claimant was a hard-working employee who regularly worked overtime.
12. The claimant has suffered from chronic post-traumatic stress disorder from in or around 1997.
13. The respondent's Equal Opportunities and Anti-Harassment Policies were introduced in April 1997. The Anti-Harassment Policy stated that discriminatory remarks could amount to an act of harassment and that such behaviour was unacceptable in the workplace. Some 6,000 copies of the Policies were produced, sufficient copies for each of the respondent's employees at that time. The Anti-Harassment Policy was distributed to each of the respondent's managers and employees in 1997. Copies of the Policy were distributed to weekly-paid staff in batches along with their pay-slips. Staff were asked to read the Policy and familiarise themselves with the content. In view of the method of distribution adopted by the respondent, the Tribunal is satisfied that it is more likely than not that the person who perpetrated the act of discrimination against the claimant, that is Mr Crawford, received a copy of the Policy in 1997.
14. There was some dispute during the hearing as to whether the claimant himself had received a copy of the Anti-Harassment Policy in 1997. The Tribunal notes that when he was first asked whether the respondent had sent him copy of the Policy in 1997, the claimant answered "I think so", whilst at a later stage in his cross-examination, the claimant denied having received a copy. The Tribunal considers that the claimant's initial reaction is more likely to be reliable. The Tribunal has therefore concluded that it is more likely than not the claimant did receive his own copy of the Policy in 1997.
15. Copies of the Policy were placed on all staff notice boards, which were located outside the staff canteen and in locker rooms.
16. Since 1997, copies of the Anti-Harassment Policy have been given to all new employees and the Policy is covered during the induction procedure for new employees.
17. The respondent's managers received formal training in relation to Equal Opportunities and the respondent's Anti-Harassment Policy between 1997 and 2003. It was accepted by the claimant's witnesses and the Tribunal finds as a fact that the respondent normally responded to and investigated complaints of harassment promptly.
18. Designated Harassment Advisers were appointed under the respondent's Anti-Harassment Policy and the claimant's shop steward, Mr John McLaughlin, was one of these Harassment Advisers. The designated Harassment Advisers received formal training in counselling skills and in relation to the respondent's Policy. The names of the Harassment Advisers were placed on the notice boards in the respondent's factory. Employees could approach a Harassment Adviser for confidential advice and support in relation to any incident of harassment.
19. The claimant had previously raised a complaint of harassment by another employee, Mr Morton. Following an investigation, Mr Morton was dismissed by the respondent under its Disciplinary Procedure.
20. The claimant's evidence was that, prior to the incident which was the subject of this claim, he had approached his shop steward, John McLaughlin, on 'thousands' of occasions reporting issues of harassment. In his evidence to the Tribunal, Mr McLaughlin was adamant that the claimant had approached him on four previous occasions only. The Tribunal prefers the evidence of Mr McLaughlin on this point since he was clear and consistent in his evidence on this issue and had no difficulty in outlining the occasions on which the claimant had sought his assistance.
21. In or around April 2003, one of the claimant's colleagues, Mr Ronnie Crawford, said to another employee, namely Mr Des Cumberland, that the claimant was an IRA man, or words to that effect.
22. This did not come to the attention of the claimant until on or about 7 July 2003 when Mrs Fiona Crawford, the wife of Mr Ronnie Crawford, had approached him to tell him what her husband had said. The claimant was very shocked and distressed when he heard this. Shortly afterwards, he approached his trade union representative, Mr John McLaughlin, who was also a designated Harassment Adviser.
23. On 11 July 2003, Mr Ronnie Crawford collapsed at work and was taken to the first aid room by Mr Ian Hughes who was a designated first aider. Mr Crawford was very distressed and he broke down and told Mr Ronnie Newell, Factory Manager, and Mr Ian Hughes that he had done something terrible. Mr Crawford told Mr Newell and Mr Hughes that, one day, when he and Des Cumberland had been walking past the claimant, Mr Crawford had said hello to the claimant, but the claimant had not replied. Mr Crawford had then said to Mr Cumberland "that provo needs a bullet in the head". Mr Crawford also told Mr Newell and Mr Hughes that he knew the claimant had not heard him say hello.
24. The claimant did not dispute the evidence of Mr Newell that the claimant and Mr Crawford had worked together for many years and were quite friendly.
25. Mr Newell and Mr Hughes discussed the situation and decided that it may be a good idea if Mr Crawford was to speak to the claimant face to face in an effort to resolve the situation. Mr Crawford agreed this was a good idea and asked Mr Newell to telephone the claimant and ask him to come into the factory. When the claimant arrived at the factory, Mr Newell indicated to the claimant that Mr Crawford wanted to speak to him.
26. The Tribunal accepts the evidence of Mr Newell that the claimant said that he knew why Mr Crawford wanted to speak to him. Mrs Fiona Crawford had approached the claimant a few days before on 7 July 2003 to tell him what her husband had said about him. Against that background, the Tribunal considers it more likely than not that the claimant was aware of why Mr Crawford wanted to speak to him and that he told Mr Newell he knew why Mr Crawford wanted to speak to him. Mr Newell also stated in his evidence that the claimant did not raise any objections to speaking to Mr Crawford and appeared quite happy to speak to Mr Crawford. Mr Newell's evidence was that when the claimant entered the room, he sat down beside Mr Crawford. This evidence was not disputed by the claimant. The Tribunal considers the fact that the claimant sat down next to Mr Crawford to be consistent with him being happy to speak to Mr Crawford.
27. Mr Newell then took the claimant to the first aid room where Mr Crawford was waiting along with Mr Hughes. The claimant entered the room and sat next to Mr Crawford. Mr Hughes and Mr Newell then left the room leaving the claimant and Mr Crawford alone together.
28. Shortly after he left the first aid room, Mr Newell met Mrs Fiona Crawford. Mr Hughes had contacted Mrs Crawford to tell her that her husband was unwell. Mr Newell asked Mrs Crawford to wait until Mr Crawford had an opportunity to speak to the claimant. Mrs Crawford ignored this request and went immediately into the first aid room and took her husband away so that he could receive medical attention.
29. Mr Crawford and the claimant were left alone together in the first aid room on the morning of 11 July 2003, but the Tribunal believes this was for a short time only. After Mr Crawford was taken away by his wife, the claimant was left alone in the first aid room and he left shortly afterwards.
30. After 11 July, the claimant reported what had happened to his union representative, Mr John McLaughlin, who in turn reported the matter to John Cromie, Human Resources Manager for the respondent's Dungannon factory. The Tribunal believes on the balance of probabilities that Mr McLaughlin spoke to Mr Cromie about the claimant's complaint for the first time on 22 July 2003. Mr McLaughlin accepted that this was the correct date during an investigation meeting on 3 September 2003. The Tribunal also believes on the balance of probabilities that Mr McLaughlin first spoke to Mr Newell, the Factory Manager, about the claimant's complaint on or about the same date, that is 22 July 2003.
31. As advised by John Cromie, the claimant made a written statement of complaint later on 22 July 2003 to his manager, Miss Mandina Fulton. In this statement, the claimant alleged that Mr Crawford had said he was an IRA man. He also complained about the incident on 11 July when he had been asked to come into the factory to meet Mr Crawford.
32. Having taken the claimant's written statement, Miss Fulton decided to wait for her manager, Mr Ronnie Boyd, to return from holiday rather than progress the matter herself. Miss Fulton was a relatively inexperienced manager having been a trainee manager until she was appointed as Evening Shift Department Manager in October 2002. Miss Fulton's Manager, Mr Boyd, returned to work on 31 July 2003.
33. The claimant was on holiday for the whole of the week commencing 28 July 2003. The claimant's union representative, Mr John McLaughlin, and the respondent's Human Resources Manager, Mr John Cromie, were both on holiday during the week commencing 4 August 2003. Mr Cromie returned to work on 11 August 2003 and he discussed the claimant's complaint with Mr Ronnie Boyd on 13 or 14 August.
34. Miss Fulton and Mr Cromie then arranged to meet the claimant on 19 August 2003 to obtain further clarification in relation to his grievance. During that meeting, the claimant was asked to clarify his statement. The claimant stated "That's all I'm saying. It's in other hands here at the moment". At a later stage, the claimant said "I don't care if it goes to the highest court. I'm taking it to the top". The claimant stated in the course of cross-examination that he had been told by his union representative that he could take his complaint to Tribunal, although the claimant said he could not recall whether this was before or after the meeting on 19 August. In view of the statements made by the claimant at the meeting, the Tribunal has found as a fact that the claimant had decided to bring his claim to the Tribunal before this meeting
35. During the meeting on 19 August 2003, the claimant became distressed and expressed fears for his own safety. Mr Cromie therefore suggested that the claimant should consider the option of remaining at home on paid leave during the investigation into his grievance. The claimant decided to take up this offer and remained on paid leave until he was informed of the outcome of his grievance.
36. The claimant attended his General Practitioner on 20 August 2003. The GP's note records "works Moy Park. Request medication. Depressed re work." In view of the facts set out at Paragraph 34. above, the Tribunal accepts that the claimant did not attend his General Practitioner until after he had decided to bring a claim against the respondent.
37. On 27 August 2003, the claimant wrote a letter to Mr Brian Cains, Interim Group HR Manager. In this letter, the claimant reiterated the two elements of his grievance, namely the false accusation by a Moy Park employee that he was a member of the IRA and the failure of the company to properly investigate and resolve this issue of harassment. The claimant asked for the matter to be dealt with as soon as possible. He concluded by saying that he did not feel it was safe for him to return to work until this matter was fully investigated and resolved in a satisfactory manner.
38. The investigation into the claimant's grievance was conducted by Mr Brian Cains from 3 to 4 September 2003. The claimant's counsel conceded at the hearing that this investigation was thorough, albeit the claimant considered it had been unduly delayed.
39. The statements and other information obtained during the investigation were passed to Mr Gary Leslie, Retail Factory Manager. Mr Leslie reviewed this information in order to decide whether the claimant's grievance should be upheld. Mr Leslie then conducted a meeting with the claimant and his trade union representative, Mr McLaughlin, on 17 September 2003 when he informed the claimant of the outcome of his grievances.
40. Mr Leslie confirmed that the first part of the claimant's grievance was upheld, namely that Mr Crawford had used language which was inappropriate in the workplace. He also indicated that Mr Crawford had been dealt with appropriately under the respondent's Disciplinary Policy. Mr Crawford received a final written warning. He never returned to work for the respondent following the events of 11 July 2003.
41. In relation to the second part of the claimant's grievance, namely that the company had failed to properly investigate and resolve the issue, Mr Leslie found that the grievance was investigated thoroughly and this was the basis on which appropriate disciplinary action was taken against Mr Crawford.
42. The claimant was informed that his grievance was completed and he was expected to return to work. At this stage, the claimant remained at home on full pay. Mr Leslie confirmed at the meeting on 17 September 2003 and in his letter to the claimant of the same date that these payments would now be stopped. The claimant was also informed of his right of appeal.
43. The claimant signed the claim form on 17 September 2003 and the claim form was received by the Office of the Industrial Tribunal and the Fair Employment Tribunal on 23 September 2003.
44. The claimant appealed the decision of Mr Leslie by letter dated 18 September 2003. This letter was drafted on the claimant's behalf by Mr Jim Quinn, full-time Official of ATGWU. The grounds of appeal were (in summary):-

(a) The claimant was not satisfied that the company had taken sufficient steps to investigate the source of the sectarian remarks nor advised him of any measures to prevent a reoccurrence. Neither had the claimant been given any assurances regarding his personal safety in the company for the future.

(b) As a result of this incident, the claimant and his family had suffered extreme stress and the claimant sought compensation for injury to feelings and stress.

(c) The claimant had lost a considerable amount of earnings whilst off work due to sectarian harassment.

(d) The company had behaved wrongly at the start of this process by putting Mr Crawford and the claimant in a room without being accompanied which could have put the claimant in further danger.

This letter of appeal did not explicitly make any complaint in respect of delay during the investigation process.

45. The claimant's appeal was heard by Mr James French, Processing Director at a meeting on 3 October 2006. The claimant was represented by Mr Quinn and Mr McLaughlin both of ATGWU.
46. Mr French's decision was communicated to the claimant by letter dated 13 October 2003. In this letter, Mr French referred to the respondent's Anti-Harassment Policy and a copy of the Policy was furnished to the claimant. Mr French stated that, in his view, when this issue was brought to the attention of management, it was dealt with in a thorough and systematic manner and as a result an appropriate level of disciplinary action was taken in relation to the individual concerned. Mr French indicated that, in order to reduce the claimant's anxiety and accelerate his return to work, the company would be prepared to consider a change of shift pattern and/or Department. The claimant's requests for compensation in respect of stress and loss of earnings were rejected by Mr French. In relation to the incident of 11 July 2003, Mr French stated that, in his view, the investigation notes clearly demonstrate that neither Mr Newell nor Hughes were aware of the details of the incident at the outset. It was Mr French's view that they were acting entirely in good faith. The claimant was invited to contact Mr Cromie to indicate when he would be able to return to work and whether he wished to take up the offer of a change of shift and/or Department. Finally, Mr French confirmed that the grievance had now exhausted all the available internal mechanisms available to the claimant.
47. The Tribunal has concluded that the claimant suffered an exacerbation of his post-traumatic stress disorder following the act of discrimination. This exacerbation lasted for two to three months. After this period, the claimant's condition returned to its pre-existing level. In reaching this finding of fact, the Tribunal has given detailed consideration to the medical evidence on behalf of each of the parties and, in particular, the oral evidence of Dr Paul Bell. Further, the Tribunal noted that the claimant was attending at work until it was suggested by Mr Cromie at the meeting on 19 August 2003 that the claimant should take some paid time off. The Tribunal has also noted that the claimant did not attend his General Practitioner until 20 August 2003, some six weeks after he became aware of the incident of discrimination. The Tribunal therefore concluded that the exacerbation of the claimant's pre-existing condition of post-traumatic stress disorder was of a fairly modest level.
48. The respondent commenced a programme of formal Diversity training for all of its 3,500 employees in the Autumn of 2003. This training took place over a six month period. The Tribunal is satisfied that such an extensive programme of training required considerable planning and that the planning for this programme of training was under way before the incident of discrimination against the claimant occurred.
49. At the date of hearing, the claimant had not returned to work for the respondent, although he was still an employee of the respondent and remained 'on the books'. The claimant had not made any attempt to obtain alternative employment since, in his view, he has not been well enough to do so.

Statement of law

50. The issue to be determined by the Tribunal is whether the respondent is vicariously liable for the act of its employee by virtue of Article 36(4) of FETO. Article 36 of FETO is in the following terms:-

"Liability of employers and principals

36. —

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Order as done by that other person as well as by him.

(3) Paragraph (2) applies whether the authority was—

(i) express or implied; or

(ii) given before or after the act in question was done.

(4) In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description."

51. Article 36(4) is in virtually identical terms to Section 41(3) of the Sex Discrimination Act 1976 ('the SDA'). Accordingly, the Tribunal has reviewed and considered the case law relating to Section 41(3). Counsel for each of the parties referred the Tribunal to the case of Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 (EAT). In the Canniffe case, the Employment Appeal Tribunal held that the proper approach to the statutory defence under Section 41(3) of the SDA is for the Tribunal firstly, to identify whether the respondent took any steps at all to prevent the employee from doing the act or acts complained of in the course of his employment. Secondly, having identified what steps, if any, the respondent took, to consider whether there were any further acts the respondent could have taken which were reasonably practicable. Whether taking any such steps would have been successful in preventing the acts of discrimination in question is not determinative. An employer should not be exculpated if it has not taken reasonably practicable steps simply because, if it had taken those steps, they would not have prevented the act of discrimination from occurring. In the Canniffe case, the Tribunal had found that the respondent had a relevant policy which they had drawn to the attention of employees, but the Tribunal had failed to consider whether there were any other steps which could reasonably have been taken which the respondent had failed to take.
52. Counsel for the respondent referred the Tribunal to the case of Balgobin and Francis v London Borough of Tower Hamlets [1987] IRLR 401 (EAT). In that case, an employee of the respondent had committed very serious acts of sexual harassment against the female claimants. The Tribunal found that "No one in authority knew what was going on prior to (… the date on which the claimants had first complained). .the respondents were running the hostel with proper and adequate supervision insofar as the staff were concerned. They had made known their policy of equal opportunities. We do not think that there were any other practicable steps which they could have taken to foresee or prevent the acts complained of". The majority of the EAT held that the Tribunal had not erred in finding that the employers could rely on the statutory defence under Section 41(3) of the SDA and that the employers were therefore not liable for the sexual harassment perpetrated by their employee.
53. The Tribunal has approached the case of Balgobin and Francis with some caution since the decision is now almost 20 years old and since it pre-dates the case of Caniffe referred to at Paragraph 50 above which sets out the general approach which Tribunals should take to the statutory defence under Section 41(3) of the SDA.
54. The Tribunal has also considered the commentary in relation to the statutory defence under Section 41(3) of the SDA which is set out in Harvey on Industrial Relations and Employment Law at Division L Section B2 Paragraphs (l) 398 and 399. This commentary states as follows:-

"The onus is on the employer to establish his defence, and he can do that by showing either that he attempted to prevent the particular act of discrimination or that he attempted to prevent that kind of act in general. It may also be the case that the onus is discharged if there are no practical steps which the employer can take Balgobin and Francis v London Borough of Tower Hamlets [1987] IRLR 401, [1987] ICR 829, EAT) although in practice it may be anticipated that such circumstances will be rare. It is, however, a question of fact in every case whether the employer has taken such steps as were reasonably practicable to prevent the discrimination (cf Enterprise Glass Co Ltd v Miles, [1990] ICR 787, EAT). For instance, it is no defence to assert that you once sent the personnel office a memo prohibiting discrimination, if you know (or should have known) that in practice the office disregards it. Proper training in the elements of discrimination law for those in supervisory positions might be seen as necessary in order to show the appropriate standard".

Conclusions

55. In the course of the hearing, the claimant was particularly critical of the actions of the respondent's managers on 11 July 2003 when the claimant and Mr Crawford were left alone in a room together. The claimant was also critical of delay in the investigation of his complaint. These matters may have been relevant to the issue of compensation. In view of the conclusions of the Tribunal in relation to the statutory defence, it is not strictly necessary for the Tribunal to make formal determinations in relation to these matters. However, since the Tribunal heard considerable evidence in relation to these issues, the Tribunal considers it appropriate to set out its views on these matters.
56. In respect of the incident on 11 July 2003 when the claimant and Mr Crawford were left alone together, the Tribunal believes, with the benefit of hindsight, that this was somewhat unwise. The Tribunal can also understand that the claimant found this upsetting, particularly since it appears that Mr Crawford was taken away by his wife before any meaningful discussion had taken place. However, the Tribunal has concluded this was a genuine attempt on the part of Mr Ronnie Newell to bring about a resolution directly between the claimant and Mr Crawford, particularly since Mr Crawford had appeared keen to speak to the claimant. As set out at Paragraph 24. above, the claimant and Mr Crawford had known each other for many years and were quite friendly. It was suggested by Mr James French during cross-examination that the outcome may have been different had Mr Crawford had a proper opportunity to apologise to the claimant before he was taken away by Mrs Crawford. The Tribunal agrees with this analysis.
57. With respect to the claimant's criticism of delay in the investigation of his complaint, the Tribunal can understand the claimant's desire to have his complaint dealt with as quickly as possible. The claimant made his written statement of complaint on 22 July 2003 and the outcome of his grievance was notified to him on 17 September 2003, less than two months later. The Tribunal has considered and taken into account the periods for which either the claimant or his trade union representative, Mr John McLaughlin, or relevant managers were on holiday as set out at Paragraph 23. above. Having taken these periods into account, the Tribunal is of the view that there was no unreasonable delay on the part of the respondent in investigating and responding to the claimant's complaint.
58. In his submissions to the Tribunal, counsel for the claimant referred to a number of incidents or examples which he argued demonstrated that the respondent's Anti-Harassment Policy had not been implemented properly. For example, he referred to the fact that, as conceded by the respondent, Mr Crawford had used inappropriate language to his co-workers. Counsel also relied on the fact that when Mrs Crawford learned what her husband had done, she had not acted in accordance with the Anti-Harassment procedure. She had not reported the matter to management, but had instead gone to Mr Cumberland's home. Another example relied upon by the claimant's counsel was the fact that Mr Cumberland had failed to report to management the discrimination words used by Mr Crawford. Counsel for the claimant also relied on a number of other examples, including the incident on 11 July 2003 and the respondent's handling of the claimant's complaint.
59. The Tribunal has given careful consideration to these submissions by counsel for the claimant. The statutory defence under Article 36(4) of FETO implicitly recognises that acts of discrimination may occur despite an employer taking such steps as were reasonably practicable to prevent employees committing acts of discrimination in the course of employment. Therefore, the Tribunal does not believe that the fact that an act of discrimination occurred can play a significant part in the Tribunal's consideration of the statutory defence. Further, the statutory defence also appears to recognise implicitly that an employer cannot exercise absolute control over all the actions of its employees. It is therefore not appropriate for the Tribunal to focus on examples which may tend to demonstrate that the respondent failed to exercise absolute control over its employees which is not what is required by Article 36(4) of FETO. Finally, the Tribunal has concluded that, in considering the statutory defence, it is required to focus on the preventative steps that were taken by the respondent before the relevant act of discrimination occurred. The vast majority of the incidents relied on by counsel occurred after the act of discrimination which is the subject of this claim. For these reasons, the Tribunal has concluded that the examples relied upon by counsel for the claimant are not directly relevant to the statutory defence.
60. As set out at Paragraph 8. above, the respondent conceded that an act of discrimination was committed against the claimant by its employee, Mr Crawford. Therefore, the issue to be determined by the Tribunal is whether the respondent is vicariously liable for the act of its employee under Article 36(1) of FETO or whether the respondent can rely on the statutory defence under Article 36(4) of FETO. The respondent can only avoid liability if it is entitled to rely on the statutory defence.
61. The Tribunal approached this issue on the basis of the two step process set out by the EAT in the case of Canniffe referred to at Paragraph 51. above. Firstly, the Tribunal considered whether the respondent in this case had taken any steps at all to prevent Mr Crawford from committing the discriminatory act complained of, or acts of that type, in the course of his employment. The act committed by Mr Crawford consisted of saying words which amounted to sectarian harassment of the claimant. As set out at Paragraph 13. above, the Tribunal found as a fact that the respondent had an Anti-Harassment Policy which made it clear that discriminatory remarks could amount to sectarian harassment and this was not acceptable behaviour in the workplace. The Tribunal was therefore satisfied that the respondent had taken at least some steps to prevent the harassment occurring.
62. The Tribunal then proceeded to consider the next element of the process set out in the EAT decision in the Canniffe case. As set out in the Tribunal's findings of fact at Paragraphs 13. to 19. above, the Tribunal found that the respondent had taken the following steps to seek to prevent acts of harassment occurring in their workplace:-

(i) The respondent had Equal Opportunities and Anti-Harassment Policies which were introduced in 1997.

(ii) The respondent's Anti-Harassment Policy made it clear that acts of the type committed by Mr Crawford, that is discriminatory or sectarian remarks, amounted to harassment and were not acceptable in the workplace.

(iii) 6,000 copies of the respondent's Anti-Harassment Policy were produced and distributed to all the respondent's employees in 1997. Copies were distributed to weekly paid staff in batches along with their pay-slips. The Tribunal considers this to be an efficient method of distribution. The Tribunal is satisfied that it is more likely than not that both Mr Crawford and the claimant received copies of the Policy in 1997.

(iv) Copies of the Anti-Harassment Policy were placed on all staff notice boards, which were located in areas readily accessible to all employees, for example, outside the staff canteen and in locker rooms.

(v) After 1997, copies of the Anti-Harassment Policy were provided to all new employees of the respondent and the Policy was covered during induction for new employees.

(vi) The respondent's managers received formal training in relation to the respondent's Anti-Harassment Policy between 1997 and 2003.

(vii) The respondent normally responded to and investigated complaints of harassment promptly.

(viii) Designated Harassment Advisers were appointed under the respondent's Anti-Harassment Policy. The Harassment Advisers received formal training in counselling skills and in relation to the respondent's Policy.

(ix) The names of the Harassment Advisers were displayed on the notice boards and employees could approach a Harassment Adviser for confidential advice and support in relation to any incident of harassment.

(x) On a previous occasion when the claimant had complained of harassment, the perpetrator had, following an investigation, been dismissed by the respondent under its Disciplinary Policy.

63. The Tribunal then proceeded to apply the second stage of the process set out in the Canniffe case. The Tribunal considered whether there were any further acts which the respondent could have taken which were reasonably practicable. In addressing this question, the Tribunal noted that when the claimant was asked in cross-examination what further steps the respondent could have taken to prevent Mr Crawford saying the words complained of, the claimant's reply was "I don't really know". However, the fact that the claimant himself could not identify any such steps is certainly not determinative of this issue.
64. In his submissions, the claimant's counsel submitted that the respondent should have ensured that all employees received formal anti-harassment training to ensure they were aware of how they should behave and what they should do if harassment occurred. The claimant's counsel further submitted that the respondent's managers should have received 'sufficient' training to ensure they knew how to deal with complaints in accordance with the respondent's policy. He suggested that the respondent's managers had not dealt with the claimant's complaint in accordance with the respondent's Anti Harassment Policy. The claimant's counsel did not, however, make any specific criticism of the content of the training for the respondent's managers and supervisors. More generally, the claimant's counsel submitted that a number of incidents related to this case demonstrated that the respondent's policy had not been properly implemented and he submitted, in essence, that the respondent should have ensured that the Policy was properly implemented. The Tribunal has addressed this point at Paragraph 57. above.
65. The respondent's Counsel submitted that the statutory defence under Article 36(4) of FETO focussed on preventative measures. In relation to anti-harassment training, the respondent's counsel submitted that the respondent's approach was not only reasonable, but also in accordance with the approach suggested by the Equality Commission for Northern Ireland and the Labour Relations Agency in their joint publication entitled 'Harassment and Bullying in the Workplace' ('the Harassment Guide'). Counsel submitted that the approach suggested in the Harassment Guide was that training should begin with managers and supervisors and then be 'cascaded down' to the remainder of the workforce.
66. Whilst the Tribunal recognises that the Harassment Guide does not have statutory force, nevertheless the Tribunal considers that it sets out useful practical guidance as to the measures which employers can adopt in order to reduce the risk of acts of harassment occurring in the workplace. In particular, the Tribunal considered the section of the Harassment Guide which sets out 'Dos and Don'ts' for employers at Pages 11 and 12. The Tribunal also considered the section of the Guide which contains commentary on the statutory defence under Article 36(4) of FETO (Pages 62 to 64).
67. The Harassment Guide suggests that employers should draft a harassment and bullying policy and associated procedures and inform all staff about the existence of the policy. The Guide also recommends that employers should 'cascade training, beginning with senior management and those with designated roles in the procedures' and that employers should engage in a tailored training programme with all staff. Further, employers should ensure that all necessary services are available as set out in the procedures, for example, counselling services or advisers.
68. As noted at Paragraph 62. above, the claimant's counsel submitted that one reasonably practicable step which the respondent had not taken was the provision of anti-Harassment training for all its staff before the act of discrimination occurred. The respondent's diversity training for all staff did not commence until Autumn 2003 which was several months after this incident occurred. The Tribunal concluded that the provision of such training was potentially a relevant preventative step, but it was then necessary for the Tribunal to consider whether this was a step which was reasonably practicable at that time. The Tribunal noted that the recommendation in the Harassment Guide is for training to be 'cascaded down' beginning with senior managers and those with designated roles under the policy. This was the approach adopted by the respondent as the respondent's managers, supervisors and designated Harassment Advisers had received formal training in equal opportunities and the respondent's policy before the incident occurred. The Tribunal also accepts the evidence of Mr Cromie that the diversity training which was delivered to all the respondent's 3,500 employees took a considerable period of time to prepare and a period of six months to deliver. The Tribunal has found as a fact that this programme of training was already being planned at the time when the act of discrimination occurred. The Tribunal has therefore concluded that it was not reasonably practicable for relevant training to have been provided to all the respondent's 3,500 employees at the relevant time, that is before this incident occurred.
69. The Tribunal was not able to identify any other reasonably practicable steps which the respondent could have taken to prevent acts of sectarian harassment occurring.
70. In all the circumstances, the Tribunal has concluded that the respondent has taken such steps as were reasonably practicable to prevent acts of sectarian harassment occurring in its workplace. Accordingly, the respondent is entitled to rely on the statutory defence under Article 36(4) of FETO and the respondent is not vicariously liable to the claimant in respect of the act of discrimination committed by one of its employees.

Respondent's application for costs

71. At the conclusion of the hearing, the respondent's Counsel made an application for an Order for Costs against the claimant. A copy of a letter from the respondent's solicitor to the claimant's solicitor dated 18 May 2006 was handed into the Tribunal. This letter was marked 'Without prejudice save as to costs' and put the claimant on notice of the respondent's intention to use this correspondence in support of an application for costs against him. The respondent's counsel submitted that the greater part of the claim was frivolous and vexatious and that the claim had been brought in the wrong forum. Counsel also submitted that the claim could have been heard in one day. He made application for an Order for Costs in the sum of £2,000.00, being a portion of counsel's fee for representing the respondent at the hearing.
72. The claimant's counsel resisted this application and pointed out that the claimant had brought a claim under FETO in respect of words which had been used by a fellow employee and which the respondent had accepted amounted to an act of religious discrimination. The claimant's counsel emphatically denied that the claim could ever have been properly heard in one day.
73. The power of the Fair Employment Tribunal to make an Order for Costs is set out in Rules 34 and 35 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules'). By Rule 35(2) and 35(3):-

"(2) A Tribunal or chairman shall consider making a Costs Order against a paying party where, in the opinion of the Tribunal or chairman (as the case may be), any of the circumstances in Paragraph (3) apply. Having so considered, the Tribunal or chairman may make a Costs Order against the paying party if it or he considers it appropriate to do so.

(3) The circumstances referred to in Paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived".

74. In this case, the Tribunal was not satisfied that the claimant or his representative had acted vexatiously, disruptively, abusively or otherwise unreasonably in the conduct of the proceedings. Further, the Tribunal did not consider that the bringing of the proceedings by the claimant had been misconceived. This was a case in which it was admitted that an act of discrimination had been committed by an employee of the respondent and the Tribunal does not consider the claimant acted vexatiously or unreasonably in seeking to test the statutory defence raised by the respondent.
75. Accordingly, the respondent's application for an Order for Costs against the claimant is refused.

Chairman:

Date and place of hearing: 14 - 15 June 2006;

17 - 18 August 2006; and

22 September 2006, Belfast

Date decision recorded in register and issued to parties: