Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 122/06FET;

1250/06

CLAIMANT: Ronan Francis Small

RESPONDENTS: 1. Oasis Caring in Action Ltd

2. Cliff Kennedy

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Panel Members: Mr J Collins

Dr T Cradden

Appearances:

The claimant did not appear and was not represented.

The respondents were represented by Mr Bunting, Solicitor of Peninsula Business Services.

DECISION

The unanimous decision of the Tribunal is that the claimant was dismissed on grounds of redundancy and that dismissal was fair. The Tribunal further finds that the claimant was not discriminated against on the grounds of his religion.

Preliminary Matters

1. The claimant failed to appear on the morning of hearing. Having checked that a Notice of Hearing had been sent to the claimant, the clerk rang his home and there was no reply. The respondents' representatives had no information as to why the claimant had not turned up and applied for the claim to be struck out. The Tribunal refused the application to strike out the claim and proceeded to hear the claim in accordance with Rules 27(5) and (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
2. The respondents' representative submitted a bundle of documents including witness statements for both the claimant and the respondents' witnesses. The Tribunal was initially reluctant to use the claimant's statement because it was unsigned and had not been lodged with the Industrial Tribunal. However, Mr Bunting submitted that the statement had been sent to the respondent by the claimant's then solicitor and, as the respondents' witness statements referred to a paragraph in the claimant's witness statement, they would only make sense if the claimant's witness statement were admitted in evidence. The Tribunal therefore agreed to receive the claimant's unsigned witness statement in evidence.

The Claim

3. The claimant's claims were, firstly, for unfair dismissal on the grounds of unfair selection for redundancy and secondly unlawful discrimination on the grounds of religious belief.

The Issues

4. The issues for the Tribunal to determine were as follows:-

a. What was the reason for the claimant's dismissal?

b. Was that reason a fair reason within the meaning of the legislation? The reason engaged in this case was redundancy.

c. Was suitable alternative employment available and was it offered to the claimant?

d. Was the claimant less favourably treated on the grounds of his religion?

The Sources of Evidence

5. The Tribunal had the claimant's witness statement, the witness statement and oral evidence of Clifford Kennedy, Director of the Oasis Centre, and the witness statement and oral evidence of Ruth Wallace, Centre Manager at the Oasis Centre. The Tribunal also had a bundle of documentation which included the claim and response forms and a Notice of Further and Better Particulars served by the claimant's then solicitors together with the respondents' reply.

Findings of Fact

6. The Tribunal found the following facts relevant to the issues before it.
7. The claimant started working for the respondent on 1 November 1999. He worked as an IT Manager/Tutor/Project Co-ordinator until he left on 30 June 2006 having been made compulsorily redundant.
8. The claimant was one of a few Roman Catholics in the organisation. There were three Protestant workers two of whom were in the Christian Fellowship Church. On the First Steps Project prior to re-funding two-thirds of the workers were Protestants from the Christian Fellowship Church and after re-funding two-thirds of them were Protestants who were not in the Christian Fellowship Church.
9. In 2002 the respondent had kept the claimant's contract continuing even though funding had run out because funding was in the pipeline which would enable his contract of employment to continue.
10. The first named respondent is a community and voluntary organisation which runs various projects including, at the time relevant to these proceedings, an IT Express Project and the Sure Start Project.
11. The IT Express Project delivered NVQ Level 3 and IT skills to approximately 25 people over a two-year period.
12. The Sure Start Project was aimed at providing basic literacy and numeracy skills and provided that training to approximately 300 people over a two-year period.
13. As a charitable organisation the respondent relied heavily on public funding. Fundraising was available from several sources including the PEACE II European Funding Scheme. The PEACE II funding had dried-up and an organisation named Proteus administered some funding for projects having taken over from EGSA just before the application for funding which is in issue in these proceedings was lodged.
14. The forms for the IT Express Project and First Steps Project had to be lodged by 15 September 2005 for the 2006 to 2008 funding period. The funds available generally were very limited following the PEACE II European Funding drying up.
15. The application for funding for IT Express was drafted by Clifford Kennedy and others after consultation with the claimant who made 20% to 30% contribution to the form. Because the funding was for the continuation of the project that the claimant was working on it was shown to the claimant for approval and he had heavy involvement in its content.
16. On 7 October 2005 Proteus sent a letter to the respondent advising that because of vast over subscription for limited funds they had to tighten up their selection criteria and they were therefore unlikely to be in a position to allow more than one application from any organisation. Prior to receiving this letter the respondent believed that there would be no problem with multiple bids for funding if those bids for funding were under different categories which was the case with the two applications for funding which they had lodged.
17. The Tribunal received no evidence of any other places to apply to for funding other than Proteus.
18. In February 2006 the respondent received a telephone call from Pat Donnelly of Proteus saying that both projects had reached the threshold for funding but that only one could be funded due to the limited funds. He stipulated that there would be several tight pre-conditions for the IT Project in contrast to the Sure Start Project which would have no such pre-conditions. The respondent decided to opt for the funding for the Sure Start Project.
19. On 3 March 2006 it was confirmed that First Steps would receive project funding and that the IT Express Project would not receive funding.
20. There was a meeting in March regarding the implications of the end of funding.
21. The claimant had been told verbally on 28 February 2006 that the funding would cease. He became very withdrawn and was clearly shocked and devastated.
22. There was a meeting held with the claimant on 7 March 2006 to discuss with the claimant the implications of the end of funding for his project which would run out of funds in June 2006.
23. On 10 April 2006 the respondent wrote to the claimant advising that, due to the failure to obtain funding, the project would end in June 2006 and invited the claimant to a meeting to discuss the termination of his employment on the grounds of redundancy. The Tribunal finds this to have been a step one letter in accordance with the statutory dismissal procedures.
24. A meeting took place with the claimant at the end of April although no note was taken at that meeting.
25. On 5 May 2006 the respondent wrote to the claimant confirming that he would be made redundant and outlining the redundancy package payable to him and advising of his right to appeal. The claimant did not avail of the right to appeal.
26. On 10 August 2006 an exit interview took place with the claimant and there was no mention of any issue to do with religion by the claimant.
27. The claimant sent a letter on 10 August 2006 raising a grievance stating that the redundancy was a sham and mentioning for the first time the claimant's belief that his treatment was on the grounds of his religion.
28. At the grievance meeting, which took place on 12 October 2006, the respondent gave information to the claimant on possible job opportunities which he could follow up with other organisations.
29. On the issue of alternative employment the only suggestion that the respondent was in a position to make was that the claimant could apply for a part-time job which was open to everyone. It was a condition of the funding that the respondent would require people to apply for jobs when funding was granted anew. The claimant could have applied for any of those jobs but did not do so as he said that he could not afford to go for a part-time job. There were no other available posts.
30. Ms C was a general administrator who had one-third of her salary funded by the IT Express Funding. When that funding ran out she was kept on as a part-time worker and brought back into the organisation where she had originally been. Her job was then funded by central funds as it had been before.

The Law

31. The law on unfair dismissal is found in the Employment Rights (Northern Ireland) Order 1996 as amended. The right not to be unfairly dismissed is outlined at Article 126. The potentially fair reasons for a dismissal are outlined at Article 130 and one of those reasons is that the employee was redundant. Redundancy is defined at Article 174 of the Order. The dismissal must be procedurally fair in accordance with Article 130A of the Order in that the statutory dismissal procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 must have been carried out prior to the dismissal.
32. The law on discrimination on the grounds of religious belief is contained in the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended. Article 3 of that Order defines discrimination providing that a person discriminates against another person on the grounds of religious belief if on that ground "he treats that other less favourably than he treats or would treat other persons". The appropriate comparator issue was addressed in the Northern Ireland Court of Appeal decision in the case of RUC Chief Constable -v- Sergeant A [200] NI 261. A comparator is a person whose circumstances are the same or not materially different to those of the claimant. This approach was approved by the House of Lords in the Shamoon -v- RUC Chief Constable Case [2001] NIJB 253.
33. The burden of proof provisions applies to these proceedings and the approach for the Tribunal to adopt is outlined in the case of Igen -v- Wong. In a discrimination case the burden is on the claimant to prove facts from which the Tribunal could conclude in the absence of an explanation by the respondent, that the respondent was guilty of unlawful discrimination on grounds of religion. If the claimant proves such facts, the burden shifts to the respondent for it to disprove that discrimination had any bearing whatsoever on the behaviour. In performing this exercise, the Tribunal looks at primary facts and inferences to be drawn from primary facts before deciding if the burden should shift.

Conclusions

Unfair Dismissal

34. The Tribunal finds that it was reasonable for the respondent to opt for the Sure Start Project on the basis that firstly, there would be no pre-conditions secondly, that project fitted in with the organisation's values as it targeted those with poor educational achievement rather than specialist IT skills and thirdly, the Sure Start Project would reach much larger numbers than the IT Skills Project.
35. As a consequence, there was a redundancy situation in the respondent company. As the respondent organisation was wholly driven by funding, there was a redundancy situation when that funding dried up for the project on which the claimant was employed.
36. The Tribunal finds that it was not open to the respondent to offer the claimant alternative employment as there was no suitable alternative post available. All funded posts had to be advertised as a condition of the funding and the claimant declined to apply for the part-time post which was available.
37. The claimant was therefore dismissed for a fair reason having been properly consulted. There was no alternative employment that could be offered to the claimant. The Tribunal therefore finds that the dismissal was for a fair reason and was fair in all the circumstances.

Discrimination on Grounds of Religion

38. The only comparator named by the claimant was Ms C as she was given employment even though the funding for IT Express had dried up. Two-thirds of her salary was paid from central organisational funds whereas the claimant was wholly paid by the project funds obtained from external funding. The Tribunal finds that her circumstances were different in that her job was funded in a different way, the work she was doing was different in that she was an administrator rather than a specialist IT Trainer and she came from a central role. The Tribunal therefore finds that she was not a valid comparator for the purposes of discrimination proceedings and as a consequence finds that there was no less favourable treatment.
39. The Tribunal heard no evidence in relation to any less favourable treatment compared to a hypothetical comparator. On the contrary the claimant was treated well by the respondent on the previous occasion when funding dried up and he was kept on the payroll pending the new funding which was in the pipeline.
40. The claimant has, therefore, not proved facts from which the tribunal could conclude that he was discriminated against on the grounds of his religious belief and the discrimination claim is therefore dismissed.
41. The respondent complied with the statutory dismissal procedure and with the statutory grievance procedure.
42. Both the claimant's claims are therefore dismissed.

Chairman:

Date: 18 March 2008, Belfast.

Date decision recorded in register and issued to parties: