Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 420/04 FET

2801/04

CLAIMANT: Ronald Millican

RESPONDENTS: 1. Roe Valley Rural Community Transport Partnership

Limited

2. Limavady Community Development Initiative

DECISION

The unanimous decision of the Tribunal is that the Tribunal determines that the claimant has failed successfully to make out a case in regard to any complaint in respect of which this Tribunal might otherwise have had jurisdiction to find in his favour. Accordingly, the claimant's claims of unlawful discrimination on grounds of religious belief, and unfair dismissal, fail and the claims are dismissed by the Tribunal, without further order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr M Gallagher

Mrs C Lewis

Appearances:

The claimant was represented by Ms D McLean, Employment Adviser.

The respondents were represented by Mr D Corr.

Reasons

1. Reasons are given in accordance with Rule 26(2) contained in Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter.

The issues

2. The claimant presented two claims to the Industrial Tribunals and the Fair Employment Tribunal. The first of these, Case Reference No: 420/04 FET, was presented to the Fair Employment Tribunal on foot of a claim form dated 12 October 2004 and in that claim the claimant contended that he had been subjected to discrimination on grounds of religious belief. The claimant's second claim, Case Reference No: 2801/04, was an application presented to the Industrial Tribunal on foot of a claim form dated 12 October 2004 and in that claim the claimant claimed unfair dismissal.
3. Responses to each of these claims were lodged on behalf of each of the two named respondents, each response being dated 15 November 2004. Firstly, in regard to the first-mentioned complaint of religious discrimination, the first-named respondent, Roe Valley Rural Community Transport Partnership Limited ('RVRCTP'), conceded that the claimant had been an employee of that organisation and had been dismissed on grounds of gross misconduct; RVRCTP denied unlawful discrimination. The second-named respondent, Limavady Community Development Initiative ('LCDI') denied that the claimant ever had a contract of employment with that organisation. Further, in regard to the second-mentioned complaint of unfair dismissal (RVRCTP's position being, as mentioned, that the claimant had been fairly dismissed on grounds of gross misconduct), LCDI denied that there ever had existed a contract of employment and thus that there had been no unfair dismissal by that organisation, LCDI.
4. By Direction dated 1 March 2005 and made under Article 5 of the Fair Employment and Treatment (Northern Ireland) Order 1998, it was directed by the Vice-President of the Tribunals that the matters which would otherwise fall to an Industrial Tribunal for consideration should instead be heard and determined by the Fair Employment Tribunal and that all applications should be heard and considered together.
5. From these claims and responses, the Tribunal had to determine the following issues:-

(a) The correct identity of the claimant's employer and whether the claimant was employed by one or more of the two named respondents.

(b) Whether the claimant was subjected to unlawful discrimination on grounds of religious belief by one or both of the named respondents.

(c) Whether the claimant was unfairly dismissed by one or both of the named respondents.

(d) If any of the claimant's complaints of unlawful discrimination and unfair dismissal were satisfactorily made out, the Tribunal had to determine the matter of appropriate remedy.

The evidence

6. The Tribunal had before it, by agreement between the parties, a bundle of documents consisting of a substantial indexed bundle divided into 11 sections. In addition, by agreement, the Tribunal was presented with a number of documents including some documentation and information from the Community Transport Association ("CTA"). In consequence of earlier case management directions, the Tribunal also had before it the witness statements of various witnesses on behalf of both the claimant and the respondents. These witnesses adopted and read their respective statements to the Tribunal and were subjected to cross-examination and further questioning regarding the contents of these statements and other matters. These witnesses comprised the claimant, Mr William Brian Hogg of the Department of Regional Development, Ms Shauna Haughey of Community Transport Association, and Mr Nicholas Wray, and for the respondents, Mr Damien Corr, Mr Ivor Doey, Mr Frank Guy, Mr Mervyn Madden and Mrs Maureen Hudson.

The Tribunal's determinations of fact

7. On foot of the oral and documentary evidence before it, on the balance of probabilities the Tribunal determined the following facts:-

(a) The second-named respondent, LCDI, is a charitable organisation based in the Limavady area which has been operational since 1987. LCDI is managed by a board of volunteer directors and co-ordinates the operation of approximately fifteen different community-based projects, these projects employing approximately fifty people. The general manager of LCDI since 1995 has been Mr Damien Corr.

(b) The unfulfilled need for a transport initiative to provide community transport on what is termed a " not for profit" basis was, it seems, apparent to the board of LCDI for a considerable period of time. In that regard, LCDI was aware of the existence and the success of various community transport schemes that had been running for some time in Great Britain. The organisation, CTA, was set up in Northern Ireland approximately twelve years ago; LCDI became affiliated to CTA in or around 1998. At that time there were no other community transport partnerships existing at all in any part of Northern Ireland, the first such one therefore being LCDI.

(c) Flowing from this observed need, a decision was taken to proceed with the setting up of a dedicated transport partnership company. Accordingly, a company limited by guarantee, Roe Valley Rural Community Transport Partnership Limited ("RVRCTP") was incorporated. RVRCTP was a distinct organisation to LCDI; however, at the time (and subsequently) it was felt to make sense to have a common administration and organisational facility for both LCDI and RVRCTP. Thus, for example, both organisations shared the same premises for administration purposes. There was an expressly stated "partnership" between LCDI and RVRCTP. One of the issues in this case is whether the claimant was employed by one or by both of these organisations and the Tribunal will return to the facts bearing upon that issue further below.

(d) In its advisory capacity CTA have issued a booklet entitled "A Guide to Section 10B Permits in Northern Ireland" which booklet explains in some detail the particular regime applicable to not for profit organisations operating minibuses and larger vehicles for community transport use. That booklet contains references to such statutory provisions as those that are contained in the Transport Act (Northern Ireland) 1967 (as amended) and provides information concerning these material amendments to that Act, such providing for certain exemptions from vehicle licensing requirements. The purpose of this exemptive legislation is to provide for specific statutory exemptions to these community-based not for profit organisations; however, the operations of such organisations are controlled by particular restrictions embodied in these legislative provisions.

(e) Thus amendments to the said 1967 Act provide, at Section 10B of the Act (as amended), statutory definitions for interpretation of the exemptions as to what constitutes a "bus", a "large bus" and a "small bus", and other provisions as to how these exemptions shall apply to certain vehicles. In summary, Section 10B provides that such a not for profit organisation may apply for a permit granting exemption from a road service licence regarding a qualifying vehicle, provided that the particular conditions specified in Section 10B are met. These particular conditions include that the vehicle is not being used for the carriage of members of the general public, nor with a view to profit, nor in regard to an activity which is itself carried out with a view to profit. As was explained to the Tribunal, the purpose of these restrictions is (perhaps amongst other matters) to avoid there being direct competition between such organisations, on the one hand, and the commercial suppliers and operators of public transport facilities, on the other, who would, of course, not be exempt from the licensing regime.

(f) Specifically excluded from the application of Section 10B are vehicles with a capacity for carrying up to and including eight passengers, but no more (this would be the type of vehicle commonly called an "MPV" or "people carrier"). As is stated in the CTA guide, "voluntary groups which are running smaller vehicles and which wish to make a not for profit charge would need to comply with Section 66A of the Road Traffic (Northern Ireland) Order 1981 (car-sharing arrangements) if they wish to avoid road service and/or taxi licensing". The Tribunal shall hereafter refer to "Section 10B" and "Section 66A" with reference to these two categories of vehicle.

(g) The regime referred to above operates on a permit system and the issuing of Section 10B permits in Northern Ireland is entrusted to CTA. CTA has devised a standard application form to be used for the administration of these permits. CTA also provides general advice and information to its members in respect of this and many other matters. It should be noted that there are no "Section 66A" permits as such; the car sharing provisions (for vehicles up to eight seats) do not require an exemptive permit, but merely compliance with the Act.

(h) Returning to an issue mentioned above, there was much argument before the Tribunal as to whether or not the claimant was employed solely by RVRCTP or, as the claimant contended, both by that organisation and also by LCDI. What is not in contention is that the claimant, who possessed considerable experience in the road transport industry, was engaged in the post, "Transport Co-ordinator", with effect from 5 January 2004. From hearing all of the evidence and from an examination of all the documents, including contract documentation, wages documentation and documents relating to the assignment of various employment duties and activities, the Tribunal had little difficulty in determining that the claimant's employment was jointly with both LCDI and RVRCTP, as partners. By way of illustration of this, on the claimant's written job description it is stated:-

"EMPLOYED BY Roe Valley Rural Community Transport Partnership/LCDI

RESPONSIBLE TO The Board of Directors Roe Valley Rural Community Transport Partnership/LCDI.

PURPOSE OF THE JOB To co-ordinate the transport activities of the Roe Valley Rural Community Transport Partnership and LCDI "

It is correct to say (as has been contended by the claimant) that the majority of the claimant's duties were taken up with performance of tasks on behalf of LCDI. However, his employment also included other responsibilities and duties performed on behalf of RVRCTP. LCDI operated a fleet of five vehicles at the time of his recruitment, and RVRCTP one.

(i) The claimant's salary was £20,000.00 annually. This was funded to the extent of £19,500.00 by the Department of Regional Development ("DRD"). DRD was the main funding body for RVRCTP on foot of an RVRCTP Action Plan, with the grant funding being administered by DRD under what was known as the "Rural Transport Fund". In regard to the balance of the claimant's annual salary, amounting to the sum of £500.00, and the matter of employer's National Insurance contributions, on the balance of the evidence the Tribunal determines that both RVRCTP and LCDI contributed towards that additional cost.

(j) Before the claimant was appointed as Transport Co-Ordinator with RVRCTP/LCDI in January of 2004, the transport operations had been managed by a Mr Sean Crumlish. The Tribunal understands that Mr Crumlish was appointed in September 2002 and that he left in September 2003. The Tribunal shall comment below on certain contentions made by the claimant in regard to the management of the transport project by Mr Crumlish during the tenure of his post. It is sufficient to say that Mr Corr, on behalf of the respondents, appears to have had no issue with the performance of his job functions by Mr Crumlish. Mr Corr conveyed the impression that Mr Crumlish was at all times a professional and an effective manager of these transport operations.

(k) Prior to the claimant taking up his post, the servicing of the LCDI vehicles was entrusted to a firm called Browne & Day Limited of Claudy, Co Londonderry. The single RVRCTP vehicle, so the Tribunal understands, was leased to RVRCTP and was subject to a different servicing arrangement maintained by Translink. The evidence suggests that there was indeed some servicing regime maintained in respect of the relevant vehicles with Messrs Browne and Day, the only issue of doubt being whether or not there was what might be termed a proactive preventive maintenance schedule. It seems certainly to be the case that all vehicles requiring statutory inspection such as MOT tests were properly presented and tested and the vehicles were generally maintained in a proper, safe and roadworthy condition. The Tribunal does not accept the claimant's contention, as a proven fact, that these vehicles, at either the stage when Mr Crumlish was in charge or after the claimant took up his post, were consciously either deliberately and recklessly, or negligently, permitted by the respondents to be in and to remain in an unroadworthy condition. The claimant's endeavours to persuade to Tribunal to take a contrary view were not accepted, on the evidence.

(l) In his evidence, the claimant stated that shortly after taking up his post he discovered a litany of problems and difficulties both in respect of administration and also in respect of the maintenance and repair of the vehicles. The claimant in the course of the hearing endeavoured to portray Mr Corr, as manager, as having a cavalier attitude generally towards record-keeping and health and safety issues. Having taken up his post on 5 January 2004, the first reasonably contemporaneous documentary evidence as to the claimant's approach to the affairs of RVRCTP can be gained by looking at the minutes of an RVRCTP board meeting held on 13 January 2004, that is to say about a week after the claimant's start date.

(m) It is clear from the minutes of the 13 January 2004 meeting that the claimant was being tasked to look into legal requirements for the Section 10B permit. There was also some allusion in these minutes to Messrs Browne and Day being seen as expensive and to other issues of dissatisfaction; the suggestion was discussed of sourcing a different organisation to carry out servicing, in regard to which the claimant put forward the suggestion of Western Education and Library Board ("WELB"). He was requested to do a costing of that proposition. There is certainly nothing recorded in the minutes of that meeting nor indeed (and the Tribunal will return to this point below) in the notes or minutes of any other meetings of RVRCTP, LCDI staff meetings, or the services sub-committee meetings, to suggest that throughout the course of his employment is it recorded that the claimant personally encountered any significant difficulties in regard to the conduct of the respondents and as a result voiced any significant concerns at any of these various meetings and discussions.

(n) Notwithstanding this presumably quite contemporaneous documentary evidence (for the claimant did not challenge that point itself), the claimant's contention was that he had fundamental and significant difficulties with quite a large number of aspects of the manner in which business was conducted by the respondents, particularly in regard to the issues of servicing, licensing and compliance with various statutory requirements, and also in regard to applications for grants and funding. The claimant contended that these significant difficulties existed right from the very outset. However, none of these stated concerns and difficulties is apparent from any of these minutes and notes, and these relate to various meetings throughout the course of the claimant's employment. On the evidence, and considering the claimant's case, there is a conspicuous absence of any note of discord or dissent on the claimant's part. Indeed, it can be said that the claimant's contribution to these meetings appears to be entirely matter-of-fact. The contributions recorded on his part serve, if taken at face value, to illustrate an individual who is making a positive and a helpful contribution to any of the various discussions within his remit of responsibility.

(o) To give but a few details of what was discussed at these meetings, the first board meeting attended by the claimant on 13 January 2004 was, as regards the claimant's contribution, as above-mentioned. The claimant attended a transport committee meeting on 9 March 2004 at which he reported upon work being done by him to bring in outstanding debts; further, the claimant was to carry out some work on enhancing membership numbers. It was reported to that meeting that a 24-seat bus was to be put into operation on for what was known as the 'Magilligan run'. That proposed operational route was intended to provide a good and regular service. It was decided that a contractor named Oscar Harper was to provide buses on contract in the short term and the claimant was to speak to Mr Harper about price. There is no recording in these minutes of any difficulty or objection being raised whatsoever by the claimant at that meeting regarding any technical or legal issues nor any allusions to any difficulties in regard to the Magilligan run and to the provision of a suitable vehicle for that run. There is nothing other than the impression to be gained from these records that the claimant was fully participating in these discussions and in the planning of any action required.

(p) At an RVRCTP meeting on 27 April 2004 there is mention made of a "flyer". That "flyer issue" indeed featured as an issue in the case and is mentioned below. In the course of an LCDI sub-group meeting concerning transport held in June 2004 the claimant presented a detailed report to that meeting concerning the proposed launch on 8 June 2004 of the new Magilligan bus service, proposals for liaison with Translink (to whom it was believed that the new Magilligan service would be acceptable), progress on the WELB vehicle maintenance programme, an application having been submitted for a Section 10B permit for a new 37-seat bus, and other matters. Finally, the minutes of the RVRCTP annual general meeting record that this was held on 28 June 2004. There was some doubt cast on the accuracy of that date in the course of the hearing (the minutes of the services sub-committee meeting of 7 June 2004 mention that the RVRTC annual general meeting and the launch of the new bus would take place on "8 June 2004"). However, at whatever date, these minutes record that the claimant reported to the annual general meeting concerning the issues of future funding and increased utilisation of the transport service and also the provision of the new bus route from Limavady to Magilligan. These recorded minutes display no hint of any difficulty or doubt harboured by the claimant with regard to the Magilligan proposal.

(q) At this point the Tribunal makes an observation regarding any matters of fact specifically in regard to the claimant's claim of religious discrimination. A considerable part of the claimant's evidence in this case was designed to support his claim for discrimination on grounds of religious belief. In that regard, part of the evidence adduced on behalf of the claimant consisted of drawing the Tribunal's attention to the alleged disparity between the treatment afforded to the claimant and that alleged to have been afforded to Mr Crumlish. The Tribunal declines to record in this decision specific findings of fact in respect of that evidence for the reason that the claimant, in the course of the hearing, failed to establish any evidence as to the religious belief of Mr Crumlish, his expressly stated chosen comparator. This was a case where the claimant endeavoured to argue direct discrimination on grounds of religious belief.

(r) Material to some of the claimant's complaints is that there seems to have been a certain deficiency in record-keeping regarding vehicle servicing schedules. That fact indeed seems to have been alluded to by Mr Corr in the first board meeting that was attended by the claimant. It was perhaps for that reason, as well as for reason of cost, that a decision was taken to move the servicing from Messrs Browne and Day to WELB. That decision seems to have been a decision fully supported by Mr Corr on behalf of the board. However, it was the claimant as Transport Co-ordinator who was entrusted to make the necessary arrangements for the servicing to move to WELB. There was however a delay in that process.

(s) It seems to be the fault of no party that the commencement of vehicle servicing by WELB was somewhat delayed. Whilst the responsibility for making the arrangements rested with the claimant, nothing that either LCDI or RVRCTP did, or omitted to do, seems to have been responsible for any delay in the implementation of a servicing programme. It was certainly not the case that vehicles were consciously instructed by Mr Corr or any other person in authority to be driven in breach of any health and safety requirements, for want of adequate servicing and maintenance.

(t) The claimant did contact CTA regarding the Section 10B bus permit situation and he sought advice and guidance from CTA. The first contact on his part with CTA was made at the very start of his employment. The claimant further contacted Ms Shauna Haughey of CTA on 3 April 2004, again to query a particular issue in respect of Section 10B permit licensing requirements, regarding membership. Ms Haughey confirmed to the claimant that members of the general public were not licensed to be carried under the Section 10B permit. In order to be carried, persons had to belong to one of a number of specific categories of persons, including members of the organisation that held the Section 10B permit.

(u) The claimant further contacted Ms Haughey of CTA regarding competitive tendering for funded vehicles and the issue of appropriate arrangements for a seven-seater vehicle. Ms Haughey confirmed that such should not be operated under a Section 10B permit but, rather, properly under the Section 66 car-sharing arrangements. However, at no stage did the claimant make any complaint to Ms Haughey, nor did he put forward any allegation that the respondents were behaving in a way which was generally unlawful or specifically in breach of health and safety legislation.

(v) Mr Brian Hogg, Staff Officer at the Ports and Public Transport Division, Department of Regional Development ("DRD"), confirmed to the Tribunal that the DRD was the main funding body of RVRCTP. Whilst Mr Hogg did allude in his evidence to the suggestion that he was contacted on a number of occasions by the claimant to discuss a number of issues concerning the RVRCTP project, it seems that Mr Hogg did not maintain any written records or notes of the dates and times of these communications on the claimant's part nor details of any precise matters which were discussed. If that had been done, it might well have been of some value to the Tribunal.

(w) It appears that Mr Hogg's approach to matters was to request the claimant to put anything of interest or concern in writing, addressed to the DRD. As nothing at that time was received in writing, Mr Hogg took no particular action in response to any such telephone communications such as he might have received from the claimant. Mr Hogg referred the claimant on to his Deputy Principal, Mr Preston.

(x) The claimant did write a letter dated 6 July 2004 to Mr Preston. That letter was apparently received by Mr Preston some time after 16 July 2004. As a result of the letter, Mr Preston requested Mr Hogg to meet with the claimant, which Mr Hogg did at the claimant's home on 27 July 2004, with a view to discussing matters with the claimant and reporting back to Mr Preston.

(y) Mr Preston then entered into further correspondence with Mr Corr in early August 2004 and Mr Hogg made a visit to RVRCTP on 9 August 2004. That visit was followed up by a further letter from Mr Preston to Mr Corr dated 17 August 2004 confirming that the purpose of the visit had been to satisfy DRD that the transport services would continue satisfactorily after the claimant's departure, and that the remaining staff and procedures were sufficiently robust to carry on in the interim. Various suggestions were made by Mr Preston to Mr Corr in the letter regarding membership and financial issues. There is no evidence that any member of either of the respondent boards knew anything about the letter of 6 July 2004 from the claimant to Mr Preston prior to the termination of the claimant's employment. Although Mr Preston was not called and did not appear as a witness, Mr Preston had sent to Mr Corr an e-mail dated 5 April 2006 (presumably in contemplation of these proceedings) stating, "at no stage did Ronnie Millican make a Public Disclosure on Health and Safety (or any other) grounds".

(z) An analysis of Mr Hogg's oral evidence to the Tribunal and the documentary evidence failed to disclose details of any specific or precise allegations made by the claimant to Mr Hogg personally, save for what might be referred to as 'the membership issue' and possibly some references also to financial matters.

(aa) Regarding any material communications that there might have been between the claimant and the members of the boards of the respondents, the evidence from a board member of RVRCTP, Mrs Maureen Hudson, which the Tribunal fully accepted, was to the effect that the claimant did speak to Mrs Hudson in her office regarding the Section 10B permit issue. That conversation took place towards the end of May 2004. Mrs Hudson confirmed to the Tribunal that she had heard the claimant talk about 'permit issues for the bus'. When closely questioned in the course of the hearing about any oral communications that there may have been between the claimant and Mrs Hudson, and whether the claimant had suggested that operating the Magilligan run using a large bus, operating under a Section 10B permit, might have been 'illegal', Mrs Hudson's answer as recorded by the Tribunal was: '...he possibly, probably, did...'. However, Mrs Hudson, together with other witnesses, confirmed that the claimant did fully participate in any work concerning the acquisition of the new bus for the Magilligan run. Indeed he fully participated in the advertising and publicity attendant upon the pre-launch arrangements for this Magilligan bus service. Having certainly raised the issue of the applicability of the Section 10B permit to the use of a large bus with Mrs Hudson, the claimant then seems to have got on with making the practical arrangements in regard to that bus without undue difficulty.

(bb) The claimant's evidence to the Tribunal contained many suggestions of specific observations he contended he had made to Mr Corr and allusions to specific difficulties raised by the claimant with Mr Corr regarding a considerable number of issues. The claimant stated to the Tribunal that he had continually raised issues with Mr Corr. Mr Corr denied this. Accordingly, the Tribunal was interested in observing if there was any corroboration of the claimant's suggestion. For example the claimant suggested to the Tribunal that he had consistently drawn to Mr Corr's attention the deficiencies in the service and maintenance scheduling for the vehicles and he suggested to the Tribunal that Mr Corr displayed an entirely cavalier disregard to that and thus the vehicles were driven in an unsafe condition and illegally.

(cc) Examining such corroboration as might perhaps exist, the Tribunal, endeavouring to gauge the weight of the claimant's suggestion, notes that certainly from the documentation seen by the Tribunal, for example the various minutes, any corroboration is absent. By way of illustration, when one examines the minutes of the first board meeting, Mr Corr appears to be fully supportive of the claimant's suggestion, at a very early stage in his employment, that the prospect of servicing by WELB ought to be explored; Mr Corr seems to have had no difficulty whatsoever in the claimant exploring that option and carrying out any necessary assessment of cost. The claimant was thereafter, it seems, given an entirely free hand to change over the servicing arrangements to WELB. In no way did Mr Corr impede him in that regard. Any delay in that servicing commencing (for there was some delay) appears to flow not from any constraints of cost or other obstacles put in place by Mr Corr (which the claimant had suggested to the Tribunal was the case), but rather resulted from certain practical difficulties in getting the vehicle maintenance schedule up and running with WELB. WELB's servicing operation seems to have been extremely busy at that time and it proved quite difficult to book vehicles in for servicing and maintenance. It was the claimant's responsibility of course to make the necessary arrangements.

(dd) A similar situation would seem to apply also to the Section 10B permit issue. At the first board meeting the claimant was entrusted with the task of looking into the permit situation. That was his responsibility. Ms Haughey from CTA confirmed that the claimant had approached her with a number of enquiries and she provided him with information. The evidence heard and seen by the Tribunal on balance suggests that Mr Corr did not unduly impede or obstruct the claimant in carrying out any part of his function in endeavouring to ensure that an appropriate permit regime was put into place in respect of the fleet of vehicles.

(ee) The balance of the evidence therefore does not support the claimant's suggestion that he was continually bringing to Mr Corr's attention difficulties either in regard to the permitting issues or in regard to vehicle fleet maintenance and servicing issues, nor, indeed, in regard to issues of illegality, and having done so, that the claimant was thwarted by Mr Corr at every turn. The claimant would have wished the Tribunal to believe that, but the general tenor of evidence did not bear out these claims.

(ff) There were one or two instances of direct friction between Mr Corr and the claimant. One such was the "flyer issue". The claimant had designed a "flyer" to deal with the task of enhancing the membership. Mr Corr took the claimant to task regarding the design and content of the flyer, and also the cost. The claimant took Mr Corr's comments rather badly. The Tribunal heard much evidence about that issue but, put simply, this was an instance of normal workplace friction and disagreement such as would be from time to time encountered in most workplaces, and the Tribunal drew no more sinister conclusions from it than that. There was also another issue concerning grant funding for computers. In the course of a discussion, Mr Corr seems to have become frustrated at what he saw as the claimant's negative attitude. Mr Corr, somewhat abruptly, said to the claimant that in the course of finding problems he would rather have passed by a number of solutions. The claimant took that rather badly. Again, the Tribunal would repeat the same conclusion as that regarding the 'flyer issue'.

(gg) Notwithstanding the claimant's contention that he was generally subjected to a regime of oppression, and indeed fear, on the part of Mr Corr, looking at the totality of the evidence the Tribunal cannot accept that the claimant was subjected to an oppressive and intimidating regime of such a nature that he simply acquiesced in anything that Mr Corr wished to do, whether legal or illegal, or good or bad for the interests of the respondents and for the members and users of these transport services.

(hh) To give but one example of the reason the Tribunal formed the view it did, at a services sub-committee meeting held on 7 June 2004 at LCDI, the claimant is recorded in the minutes as having reported that the Section 10B permit had been applied for in connection with the new bus. Whilst the claimant was himself in attendance at that meeting, Mr Corr was absent and had extended his apologies. It seems to the Tribunal that it would have been quite open to the claimant to have voiced any concerns in Mr Corr's absence to any other persons then present. He did not do so.

(ii) The claimant seems to have become ill with stress on 29 June 2004. He was off work with that illness. He obtained a doctor's medical certificate for two weeks' absence from work on 6 July 2004. During the claimant's sickness absence, Mr Corr became extremely concerned at what as he saw as the claimant's failure to implement the Magilligan bus project. As far as Mr Corr was concerned, in view of the attendant publicity preceding the launch of the project, that publicity then being followed by the non-implementation of the project caused grave concern on the part of his board. The view was taken that the claimant's conduct potentially constituted gross misconduct.

(jj) By letter dated 30 June 2004, Mr Corr wrote to the claimant. Mr Corr stated in the letter that, having made enquiries, he was astounded and disappointed to learn that the advertised service had not started; nothing had been put into place to enable the agreed service to commence on the agreed date, 28 June 2004, and that in recent discussions the claimant had led Mr Corr to believe that everything was in order. A board meeting had been called for the following Monday to consider disciplinary action. The letter requested the claimant to contact Mr Corr at his earliest convenience.

(kk) By letter dated 2 July 2004 the claimant responded, requesting details of the misconduct alleged against him and stating that, as he was currently off sick with work-related stress, he could not contact Mr Corr either in person or by phone as he felt that that would exacerbate his condition.

(ll) Notwithstanding the foregoing, a disciplinary sub-committee meeting of the board of RVRCTP took place on 5 July 2004. That sub-committee of RVRCTP presumably considered itself to have the necessary authority to conduct any disciplinary proceedings against the claimant on behalf of the employers. As a result of that meeting on 5 July 2004 a decision was taken that the claimant's conduct constituted gross misconduct and that the contract was to be terminated. Mr Corr was tasked to inform the claimant in writing of the outcome. Mr Corr, by letter dated 5 July 2004, invited the claimant to contact him within five working days. The claimant replied to Mr Corr by letter dated 9 July 2004 stating that he was unfit to attend any meeting and that he was due to attend an appointment with his GP on 19 July 2004, after which he would contact Mr Corr to arrange a suitable meeting.

(mm) By letter dated 14 July 2004, Mr Corr wrote to the claimant stating that his contract was being terminated with effect from 16 July 2004 and if he wished to appeal that decision he could do so within three working days.

(nn) By letter dated 19 July 2004 the claimant replied to Mr Corr stating that he had not been given an opportunity to state his case and had not received a fair hearing. Mrs Hudson, in her capacity as a Director of RVRCTP, then wrote to the claimant by letter of 27 July 2004 inviting him to attend an appeal hearing on 30 July 2004. An appeal was duly held and that was attended by the claimant and by his representative, Ms McLean. By letter dated 4 August 2004, Ms Hudson wrote to the claimant confirming that the outcome of the appeal was to uphold the original decision to terminate the claimant's contract.

(oo) The Tribunal did not need to determine any further findings of fact for the purposes of its decision in this matter.

The applicable law

The claimant complained of discrimination on grounds of religious belief. The Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order") provides at Article 3 for the definition of discrimination, as far as material to this case:-

"3. —

(1) In this Order "discrimination " means –

(a) discrimination on the ground of religious belief or political opinion;

(b)

and "discriminate " shall be construed accordingly.

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applies, if —

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

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

The claimant in this case contended that he made a qualifying disclosure under the Public Interest Disclosure (Northern Ireland) Order 1998 ('the PID Order'). Insofar as material, the PID Order, Article 3, inserts the following amending provisions into the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') as follows:-

"67A. a 'protected disclosure' means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.

67B. —

(1) …. a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following —

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) …

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) …

(f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed."

Articles 67C to 67H, thus inserted, provide that such a qualifying disclosure may be made by that worker to his employer or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. Thus by this means disclosures may be made under Articles 67C to 67H to various qualifying persons, including prescribed persons, and including to a Minister of the Crown or a Northern Ireland department.

The PID Order also inserts the following amending provisions into the 1996 Order:-

"134A. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.".

"Exclusion of restrictions on right not to be unfairly dismissed

10. —

(1) In Article 140(3) of the 1996 Order (cases where qualifying period of employment not required), after sub-paragraph (e) there shall be inserted –

"(ee) Article 134A applies,"."

Thus, on foot of these foregoing provisions, the normal qualifying period, of one year's continuous service, does not apply.

That disapplication of the normal qualifying period of one year's continuous service in respect of protected disclosures as foregoing is also to be found in the particular exemption to the "one year rule" provided for by Article 140 (3)(c) of the 1996 Order. That covers the situation where an employee is dismissed for raising health and safety concerns with his employer. That statutory protection is afforded by Article 132 as follows:-

"132. —

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a) …

(b) …

(c) being an employee at a place where —

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. "

This also carries the exemption from the normal qualifying period of continuous service (one year) as provided for by Article 140 (3)(c) of the 1996 Order.

THE TRIBUNAL'S DETERMINATION

The complaint of unlawful discrimination

8. Having examined the evidence in the case and made findings of fact, and having listened to the submissions of the respective parties, the Tribunal without difficulty and unanimously determines that there is no case properly made out by the claimant of unlawful discrimination on grounds of religious belief. That is for the reasons which follow. This was a complaint of direct discrimination on grounds of religious belief, with no reference to political opinion. The reason for the Tribunal coming to that conclusion is that, looking at the statutory requirements in the 1998 Order, any party bringing a claim of discrimination on grounds of religious belief is required to show, on foot of Article 3, less favourable treatment on the prohibited ground, in this case religious belief. That less favourable treatment must be adjudged with reference to a comparator; Article 3 (3) expressly sets out how that comparison is to be conducted in that the comparison of the cases of persons of different religious belief must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
9. In this case, the claimant has chosen an actual comparator, Mr Sean Crumlish. However, for Mr Crumlish to be a valid comparator, and for the less favourable treatment alleged to be on grounds of religious belief, the claimant ought properly to have satisfactorily made out the case that Mr Crumlish was a proper and a valid comparator with reference to religious belief. When questioned by the Tribunal as to how the Tribunal was to be enabled to draw conclusions of fact to assist in determining whether or not Mr Crumlish was or was not a valid comparator, the best that the claimant's representative was able to submit was that "everyone knew" that Mr Crumlish was a Roman Catholic, whereas the claimant was, firstly, a Protestant and, secondly, was also a born-again Christian.
10. The Tribunal observed some uncertainty in the claimant's representative's submission as to whether or not the comparison invited was between the claimant as a born-again Christian and others who were not born-again Christians, or between the claimant as a Protestant and others who were not Protestants, or were Roman Catholics. In any event, the onus rests on any claimant, as a first step, to make out the factual basis for any proper and valid comparison. The Tribunal notes in particular the guidance issued by the EAT in the case of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT, which has been clarified and modified by the English Court of Appeal in the case of Igen Limited & Ors v Wong & Ors [2005] EWCA Civ 142; [2005] IRLR 258. The "revised Barton guidance" is set out in the Annex to Court of Appeal's judgement in Igen. The part of this, insofar as material, reads as follows:-

"(1) It is for the claimant ..... to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful ..... These are referred to below as "such facts".

(2) If the claimant does not prove such facts he or she will fail."

11. Here the claimant has failed to establish such facts as would entitle a Tribunal to conclude that there has been any unlawful discrimination on this ground. Accordingly, the claimant's complaint of unlawful discrimination on grounds of religious belief is not made out and is dismissed by the Tribunal.

The complaint of unfair dismissal

12. In regard to the claimant's complaint of unfair dismissal, the duration of the claimant's employment was for less than one year. In most cases the Tribunal has no jurisdiction where a claimant has been employed for less than one year but there are certain statutory exceptions such as are mentioned above. One such exception is where an employee has been dismissed for making a public interest disclosure. The Tribunal therefore examined whether or not the facts supported the conclusion that there has been made a public interest disclosure and whether any such possible disclosure was connected with the reason for the dismissal, thus affording to the claimant exemption from the "one year rule" on the facts of the case. The Tribunal, in carrying out that exercise, examined, in turn, the various persons to whom the claimant contended he had made a qualifying public interest disclosure in the terms of the legislation. These persons were as follows:-

(a) Mr Hogg / DRD

The Tribunal has commented above on the precise nature of the dealings between the claimant and Mr Hogg. There is an insufficiency of precise evidence as to when any telephone conversations took place between the claimant and Mr Hogg. Further, the precise nature of any discussions that might have taken place is far from clear. Mr Hogg took no steps as a result of any discussions which might have occurred save to refer the claimant to his Deputy Principal, Mr Preston. It is the case that the claimant wrote a letter dated 6 July 2004 to Mr Preston, and as a result of that Mr Hogg was tasked by Mr Preston to take various further steps. However, at no stage prior to the date the decision was taken to dismiss the claimant, that is to say 5 July 2004, or indeed the date the letter of dismissal was issued to the claimant, 14 July 2004, did the DRD (whether Mr Hogg or Mr Preston or anyone else), appear to have communicated to Mr Corr or any members of the board the fact of the claimant's letter having been received, nor the content of that letter.

(b) Ms Haughey of CTA

The Tribunal has commented on the nature of the dealings between the claimant and Ms Haughey of CTA. It is clear that the claimant directed a number of enquiries to Ms Haughey in regard to permitting and other issues. There is no clear evidence that any of these communications appeared to involve specific allegations that the respondents were, for example, behaving or acting in an unlawful fashion (for example, when asked in the course of proceedings if the claimant ever raised an issue with CTA concerning Health and Safety, Ms Haughey responded that she was not aware that he did). These enquiries seem to illustrate merely that the claimant was quite properly doing the job that was entrusted to him. He was engaged in the process of making due and proper enquiries and in ensuring that the transport services which he was entrusted to manage were conducted in the light of any appropriate information, advice and assistance that might readily be obtained from CTA.

(c) Mr Corr

As mentioned, the claimant's evidence as to the nature of his dealings with Mr Corr was not accepted to any extent by Mr Corr. In view of the conflict between Mr Corr's evidence and the claimant's regarding the contention that the claimant made repeated references to the illegality of the operations, to health and safety risks, and to other such allegations, the Tribunal looked for any corroboration. There was witness evidence on both sides but the most compelling evidence, the evidence of the minutes of the meetings, does not bear out the claimant's contentions. The facts are that, at least in any formal or semi-formal forum, the claimant did appear to fully participate in the discussions and proposals for, amongst other matters, the implementation of the Magilligan bus project. From all of this evidence the Tribunal cannot conclude that there was a qualifying disclosure (as defined in Article 67B of the 1996 Order) made by the claimant to Mr Corr.

(d) Mrs Hudson

Mrs Hudson's evidence to the Tribunal did include an apparent acceptance that about the end of May 2004 the claimant raised issues with her in respect of the large bus. The Tribunal is quite certain that any reference to Mrs Hudson by the claimant was purely in relation to the large bus and to the operation of that bus under a Section 10B permit. However, when questioned as to whether or not that conversation (which certainly took place between the claimant and Mrs Hudson concerning the legality of otherwise of running the large bus on the Section 10B permit) was discussed with any other board members, Mrs Hudson gave evidence, which the Tribunal entirely accepted as accurate, that there was no such discussion or imparting of that information to other board members. What Mrs Hudson seems to have done at the time was to suggest to the claimant that it was his responsibility to get the permit issue resolved. Consequently she did not refer this matter to Mr Corr nor indeed to the other members of the board.

13. To avail of the exemption of the "one year rule" there must be a significant degree of connection between the alleged public interest qualifying disclosure and any dismissal; the material test is whether the reason for dismissal (or, if more than one, the principal reason) is that the employee made a protected disclosure. It was argued for the claimant that there were potential disclosures which might have applied and did apply in this case. These would be, firstly, that a criminal offence had been, was being, or was likely to be committed, or, secondly, that a person had failed, was failing, or was likely to fail to comply with a legal obligation to which he or she was subject or, thirdly, that the health and safety of an individual had been, was being, or was likely to be endangered (or that information intending to show any matter falling within any one of the foregoing had been or was likely to be deliberately concealed).
14. Looking, however, at the factual conclusions to be drawn from any evidence concerning potential public interest disclosure, and scrutinising the communications and the connections between the various personalities, even if the Tribunal were to determine that any qualifying disclosure had indeed been made, the Tribunal then looks at the disciplinary proceedings and examines the dismissal of the claimant consequent upon the disciplinary sub-committee meeting held on 5 July 2004. Whilst there are certainly a number of aspects of the procedures which preceded and coincided with the ultimate decision to dismiss the claimant on 5 July 2004 which would give substantial cause for concern in terms of procedural fairness, nonetheless under the particular circumstances of this case the Tribunal looks to the issue of whether or not any facts might enable the conclusion to be drawn that this dismissal was connected to the issue of protected disclosure. The material question is whether the statutory protection from detriment afforded to any person who has made a qualifying public interest disclosure is afforded, on the facts of the case, to the claimant. The closest that the facts come to this must be Mrs Hudson's candid admission that towards the end of May 2004 the claimant expressed to her concerns as to whether or not the large bus could legitimately operate under a Section 10B permit. However, Mrs Hudson's response to that suggestion was to do no more than to suggest to the claimant that he ought to resolve the matter himself, for Mrs Hudson saw that as being part of his job to do so.
15. Looking at the facts that might assist in drawing conclusions concerning the reason for the dismissal (and leaving aside questions of procedural fairness), in the light of all of the information then available to the board and to Mr Corr at the time of the termination of the contract, the decision to dismiss was quite evidently grounded upon the view being taken that the claimant had fundamentally failed in his duty to put into place the Magilligan bus service. The Tribunal determines that the reason for the dismissal was that, and the reason was in no way connected with any public interest disclosure on the claimant's part, whether to Mrs Hudson or to any other party; no part of the cause of dismissal was in any way connected to any public interest disclosure matter. Indeed the Tribunal had difficulty in discerning from the facts that there had been any potential qualifying disclosure save, possibly, such as might be deemed to have been made in the course of the conversation which took place between Mrs Hudson and the claimant in late May 2004.
16. There was of course the matter of the letter dated 6 July 2004 sent by the claimant to the DRD (to Mr Preston). That letter did result in certain actions being taken by the DRD. However any such action post-dates the decision being taken to dismiss the claimant and, upon the evidence and concluded facts, that could have formed no part of the dismissal decision.
17. Similar observations can properly be applied to the affording of an appeal and to the decision made upon conclusion of the appeal. The Tribunal unanimously concludes that no part of the outcome of the appeal was influenced or in any way determined by any potential qualifying disclosure on the claimant's part. In summary therefore, the claimant was not dismissed for any reason connected with a protected disclosure. He therefore cannot avail of the protection afforded by Article 134A (protected disclosure) and the exemption from the normal qualifying period of continuous service (one year ending with the effective date of termination as provided by Article 140 (1)) as provided for by Article 140 (3)(ee) of the 1996 Order.
18. It was also submitted on behalf of the claimant that the claimant had been unfairly dismissed for raising health and safety concerns with his employer. That statutory protection is afforded by Article 132, and also carries the exemption from the normal qualifying period of continuous service (one year) as provided for by Article 140 (3)(c) of the 1996 Order.
19. The argument was made on the claimant's behalf that, quite apart from the alleged lack of proper and effective maintenance of the vehicle fleet, operating the vehicles with alleged incorrect or illegal permits endangered the health and safety both of employees of the respondents and also the users of the transport services by infringing the requirements to have proper and valid insurance in place. In short, the Tribunal was not satisfied that the health and safety of any persons had been placed in jeopardy by any action taken on the part of the respondents, or by any failure to act. There was insufficient evidence adduced to establish conclusive facts concerning the matter of the insurance position and the issue of whether or not the vehicles were or were not operating on foot of invalid insurance arrangements. There was insufficient evidence that the claimant had raised health and safety concerns with the respondents in such a manner as to enable the Tribunal to conclude that this played any part in his dismissal or in the outcome of the appeal. Accordingly, the Tribunal by a unanimous decision declines to take the view that the claimant was dismissed for raising health and safety concerns with his employer. Thus the claimant is not entitled to the statutory protection afforded by Article 132, and the exemption to the "one year rule" provided for by Article 140(3)(c) of the 1996 Order.
20. Taking all of the foregoing conclusions into account, the Tribunal unanimously determines that the claimant has failed successfully to make out a case in respect of any complaint in respect of which this Tribunal might otherwise have had jurisdiction to find in his favour.
21. Accordingly, the claimant's claim fails and the matter is dismissed by the Tribunal, without further order.

Chairman:

Date and place of hearing: 12 - 16, 20 - 21 and 26 June, and 31 July 2006, Belfast

Date decision recorded in register and issued to parties: