Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 00558/00FET;

03309/00

CLAIMANT: Mark Stokes

RESPONDENTS: 1. Tudor Journals Ltd

2. Tom Mackin

DECISION

It is the unanimous decision of the tribunal that the claimant was discriminated against on the grounds of his national origin and the tribunal awards him the sum of £1,000.00 as damages for the hurt feelings he suffered as a result of such discrimination. The claim that the claimant had been discriminated against on grounds of his religious belief or political opinion is hereby dismissed.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Ms Adams

Dr Cradden

Appearances:

The claimant was represented by Mr Daire Murphy of the Law Centre (Northern Ireland).

The first respondent was represented by Mr William Campbell. The second respondent did not appear and the history of this case prior to hearing is one of some difficulty in contacting the second respondent. However documents were eventually sent to 109 Keady Road, Armagh, BT60 3AD which was the address identified as the home address of Mr Mackin in his telephone message to the Law Centre on 30 January 2004.

SOURCES OF EVIDENCE

The Tribunal heard evidence from the claimant on his own behalf and from Mr William Campbell, Mrs Paula Pavis and Mrs Charlene Devine. Mr Mackin although he put in an appearance to the Tribunal dated 29 January 2001, did not appear and did not instruct any representation even though he indicated in his response that he intended to resist the claim. The Tribunal declined to take note of a witness statement from Mr James Bartlet another candidate for the post applied for by the claimant, as he did not appear to give his evidence in person and the Tribunal accordingly attaches no weight to the statement.

THE CLAIM AND THE DEFENCE

The claimant claimed that he had been the victim of unlawful discrimination on the grounds of religious belief/or political opinion and for racial discrimination. The respondent denied this claim.

LEGAL AND FACTUAL ISSUES

1. Whether remarks allegedly made by the second named respondent during the interview were in fact made.
2. Whether those remarks constitute discrimination on the grounds of race, national origin, religious belief or political opinion.

RELEVANT LAW

The Fair Employment and Treatment (Northern Ireland) Order 1998 and the Race Relations (Northern Ireland) Order 1997.

ANALYSIS OF EVIDENCE

In connection with the first factual issue, the tribunal prefers the evidence given by the claimant. The tribunal weighed up the direct evidence of Mr Stokes who appeared gave evidence and submitted himself for cross examination before the Tribunal, against the fact that Mr Mackin did not appear and subsequent to his response in 2001 did not engage with the Tribunal or indeed with the other parties to the case in bringing the matter to hearing. In default of Mr Mackin giving evidence, the Tribunal was left to measure the hearsay evidence of Mr Campbell (that the remark was denied by Mr Mackin) against the direct evidence of Mr Stokes. The Tribunal considers that it prefers Mr Stokes' evidence on this issue. However the Tribunal also found that in peripheral matters and his response to the remark Mr Stokes' evidence was full of inconsistencies some of which have affected the quality and consistency of his evidence.

FINDING OF FACTS

3. The claimant applied for the job of sales executive of the publication ("Golf Days") with the first respondent.
4. The claimant is a person of English racial or national origin.
5. At his second interview on 6 October 2000 (the date of the claimant's contemporary note was 5 October 2000) the claimant was interviewed by Mr Campbell, the Managing Director of the first respondent, who then introduced him to the sales manager Mr Tom Mackin. They were left to talk when Mr Campbell left the room. Mr Campbell said that his leaving the room was a covert signal to Mr Mackin that he was not interested in employing the claimant. Whilst Mr Campbell was absent from the room, Mr Mackin said to the claimant:-

"Isn't it funny how the Irish like the English?".

The claimant said that he did not understand and the question was repeated. After a few seconds silence Mr Mackin said "I think they feel guilty because they killed Lord Mountbatten".

There was a divergence in the claimant's own evidence as to whether the word used was "killed" or "executed". As the word "killed" featured in the claimant's contemporary note of the interview made within hours of the interview on the same day, the tribunal has accepted that terminology as being more likely than not to be the terminology that was used. Although the tribunal considers it is more likely than not on the balance of probabilities that the statement should have been dated 6 October 2000, it will continue to refer to the statement as being dated 5 October 2000.

6. The claimant said to Mr Mackin that he did not know anything about politics and in his evidence before the Tribunal said that he did not then know who Lord Mountbatten was. The claimant also alleged that Mr Mackin told him that he came from South Armagh and that he was dressed all in black with a black leather jacket. There was no mention of either of these points in the statement of the claimant of 5 October 2000. As it is a contemporaneous statement made when recollection was likely to be most clear, the tribunal on balance of probabilities rejects the evidence of the claimant on the dress of Mr Mackin and where he came from, as less likely than not to be true.
7. The claimant contended that the atmosphere which had previously been pleasant turned cold and he felt intimidated. Yet in his contemporaneous statement dated 5 October 2000, no mention was made of the change in atmosphere, although he did say in this statement that he felt intimidated. The Tribunal accepts the contemporary statement as more likely to be true as it was made within hours of the events and it is expected that the claimant's recollection would be very fresh and thus more reliable.
8. After a short time Mr Campbell came back into the office and asked the sales manager how he got on with the claimant. Mr Mackin said "fine" and left the room. Mr Campbell asked the claimant to look at the golf book publication while he also left the room. He returned after three to four minutes and asked did the claimant have any questions.
9. The claimant's perception at this point was that Mr Campbell was trying to get rid of him. On the balance of probabilities the Tribunal accepts that it is more likely than not that Mr Campbell was trying to move the claimant on out of the interview situation as he said that he had another person waiting, and the claimant wanted to go over a number of issues, which Mr Campbell classed as "buying back" the goods sold. This is what losing the sale is known as in sales management parlance.
10. The claimant made a contemporaneous statement to which reference has already been made and it was dated 5 October 2000.
11. The claimant obtained advice from the Equality Commission who advised him to find out from the first respondent whether or not he had been appointed to the post.
12. The claimant made a number of calls without success and eventually was allegedly told by telephone that the post had gone to a "girl". In this connection, the Tribunal accepts the evidence of Mrs Paula Pavis that she was the person involved in dealing with these phone calls and that she would not have divulged information regarding the position especially as the company was going to put this information in writing to the claimant.
13. The first respondent had a system of training and equality policies in place. Mr Campbell the managing director of the first respondent contended that having Mr Mackin in the interview was "training" for Mr Mackin.
14. Mr Mackin was subsequently dismissed from employment with the first respondent for committing an offence of dishonesty.

Conclusions

15. The Tribunal dismisses the claim that the claimant was discriminated against on the grounds of his religious belief or political opinion. There was no evidence before the Tribunal to suggest that the fact that the claimant had an involvement with the Hare Krishna movement had any bearing whatsoever on the remark made. Furthermore, there was no evidence at all before the Tribunal concerning what was the political opinion allegedly held by the claimant, so the Tribunal dismisses the claim made under these headings.
16. Having found that a remark was made as a fact, the Tribunal now has to consider whether that constituted discrimination on the grounds of race or national origin. In answering this question, the Tribunal has had regard to Section 52A (2) which says -

"where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent

(a) has committed such an act of discrimination or harassment against the complainant,

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the claimant,

the Tribunal shall uphold the claimant unless the respondent proves that he did not commit or, as the case may be is not to be treated as having committed, that act."

The Tribunal considers that the complainant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that the first respondent has committed such an act of discrimination or harassment against him. The claimant is of English racial or national origin. Remarks were made in his presence the constituent elements of which were "the Irish", "the English" and "killed". The claimant is a person who has both lived and worked in the North of Ireland and the South of Ireland. Although he said that he did not know anything about politics and did not know who Lord Mountbatten was, we consider that there is sufficient basis in the remarks for him being left feeling uncomfortable and intimidated.

17. There was no adequate explanation from the respondent despite submissions from Mr Campbell that one had been given. Much was made by Mr Campbell in his evidence to the Tribunal of the delays in bringing the case to hearing which were partly caused by difficulties in ensuring that Mr Mackin was served properly with all relevant papers. Mr Campbell also contended that Mr Mackin was a person of integrity, despite the fact that he had dismissed him for events of dishonesty. The view of the Tribunal is that this undermines whatever credibility remained to Mr Mackin. The points made by Mr Campbell about his system of training on equality issues shall be dealt with below. However, none of these points constitute an explanation for the behaviour of Mr Mackin, adequate or otherwise.

The Tribunal finds that Mr Mackin did commit an act of discrimination or harassment against the claimant. The Tribunal also finds that the first respondent has not proved that it did not commit or as the case may be is not to be treated as having committed that act. In reaching this conclusion, the Tribunal has weighed up the direct evidence of Mr Stokes who appeared and subjected himself to cross-examination against the hearsay evidence of Mr Campbell that Mr Mackin told him that he did not make the remarks complained of. It would have been open to Mr Mackin to also appear to defend his conduct. He chose not to do so. Given that he has not done so and he was dismissed by Mr Campbell for an act of dishonesty, the Tribunal is unable to regard Mr Mackin as having the integrity claimed for him by Mr Campbell, and finds that he has to be treated as having committed that act.

18. We find that remarks having the constituent elements of "the Irish", "the English" and "killed" when made to a person of known English national origin are capable of creating an intimidating environment for the person to whom they are made contrary to Article 4A(1)(b) of the Race Relations Order (Northern Ireland) 1997.
19. Although it was not a case managed issue in the proceedings, the first respondent raised the defence set out in Article 32 of the Race Relations (Northern Ireland) Order 1997, saying firstly that remarks made were not made in the course of employment and alternatively that the first respondent took such steps which were reasonably practicable to prevent the employee from (a) doing that act or (b) doing, in the course of his employment, acts of that description. The Tribunal does not understand how Mr Campbell can advance his contention that the act did not take place in the course of Mr Mackin's employment. Plainly it happened on the premises of the first respondent and Mr Mackin was in the interview at the request of Mr Campbell. Whilst the Tribunal accepts the uncontroverted evidence of Mr Campbell that he had a system of equality training and equality policies in place, the Tribunal does not accept that he took such steps as were reasonably practicable to prevent the employee from doing the act complained of. On Mr Campbell's own evidence he left the room in which the interview took place and thus created the opportunity for the remarks to be made.
20. The claimant's only claim was for an award to injury to his feelings. Whilst accepting that the remarks made by Mr Mackin were capable of creating an intimidating environment for the claimant, the Tribunal has had regard to all the circumstances of the case including the claimant's perception that he did not know anything about politics and did not know who Lord Mountbatten was. Taking these two factors into account along with all the other relevant circumstances, the Tribunal would regard the injury to the feelings of the claimant as falling towards the lower end of the three bands of compensation set out in the case of Vento and awards the sum of £1,000.00 as compensation for the injury to feelings suffered by the claimant.

Interest

21. In all the circumstances of the case, the Tribunal does not consider that it would be just and equitable to award interest on the sum due as there has been a substantial delay in getting this case to hearing, part of which was caused by difficulties on the claimant's side and part of which was caused by difficulties in ensuring that the second respondent was served with notice of the proceedings.

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

Chairman:

Date and place of hearing: 8 January 2008, Belfast.

Date decision recorded in register and issued to parties: