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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McCreight v GMB Union [2009] NIFET 29_07FET (12 August 2009)
URL: http://www.bailii.org/nie/cases/NIFET/2009/29_07FET.html
Cite as: [2009] NIFET 29_7FET, [2009] NIFET 29_07FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REF: 29/07FET
210/07
1369/07
110/07FET
2069/07
162/07FET
698/08
103/08FET
CLAIMANT: William Brian McCreight
RESPONDENT: 1. GMB Union
2. Paul McCarthy
DECISION
The unanimous decision of the Tribunal is that the claimant was subjected to discrimination on the ground of political opinion and victimisation on the ground of sex discrimination. The claimant was also unfairly dismissed. The claimant’s claim for unlawful deduction from wages is dismissed.
Constitution of Tribunal:
Chairman: Mr Kinney
Members: Mrs Adams
Mr Gourley
Appearances:
The claimant was represented by Mr Brian McKee, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The respondents were represented by Mr Daly, Solicitor of Francis Hanna & Co, Solicitors.
The Issues
The issues were determined at a Case Management Discussion in October 2008. By the date of the hearing the issues had been refined to the following:-
Case Ref No: 210/07IT & 29/07FET
(1) From July 2006, did Charlie Leonard seek to undermine the claimant’s position as a Senior Organiser by organising meetings in Northern Ireland and challenging unnecessarily areas of work following the claimant’s imposition of a written warning on John Dawson in June 2006.
(2) If so, did this amount to an act of discrimination against the claimant on the ground of political opinion?
(3) Did a grievance submitted by John Dawson against the claimant in August 2006 amount to act of discrimination against the claimant on the ground of political opinion?
(4) In September 2006, did John Dawson describe the claimant as dangerous to equality legislation in Northern Ireland in correspondence to the respondent’s Regional Secretary? If so, did this amount to an act of discrimination against the claimant on the ground of his political opinion.
(5) In October 2006, did the respondents’ Regional Secretary state to the respondent’s regional committee that the problems in Northern Ireland “political or otherwise” would be dealt with. If so, did this amount to an act of discrimination on the grounds of political opinion?
(6) Did the respondents’ acting Regional Secretary discriminate against the claimant because he had taken action to protect women employees thereby victimising him contrary to the Sex Discrimination (Northern Ireland) Order 1976.
Case Ref Nos: 1369/07IT & 110/07FET
(7) Did the respondents fail to deal with the claimant’s grievances dated 19 December 2006 and 11 April 2007.
(8) Did the respondents’ failure to deal with the claimant’s grievances dated 19 December 2006 and 11 April 2007 amount to:-
(a) an act of discrimination on the ground of political opinion;
(b) an act of victimisation contrary to the Sex Discrimination (Northern
Ireland) Order 1976.
(9) Did the suspension of the claimant by the respondents on 15 January 2007 amount to:-
(a) an act of discrimination on the ground of political opinion;
(b) an act of victimisation contrary to the Sex Discrimination (Northern
Ireland) Order 1976.
(10) Did the conduct of the respondents regarding the claimant’s office amount to:-
(a) an act of discrimination on the ground of political opinion;
(b) an act of victimisation contrary to the Sex Discrimination (Northern
Ireland) Order 1976.
(11) Did the conduct of the respondents concerning the disciplining of the claimant amount to:-
(a) an act of discrimination on the ground of political opinion;
(b) an act of victimisation contrary to the Sex Discrimination (Northern
Ireland) Order 1976.
Case Ref Nos: 2069/07IT & 126/07FET
These issues were not pursued at the hearing.
Case Ref Nos: 698/08IT & 103/08FET
(12) Did the respondents breach the claimant’s contract of employment by failing to pay his contractual notice?
(13) Did the respondents make an unauthorised deduction from the claimant’s wages of £400?
(14) Was the claimant unfairly dismissed?
(15) Was the claimant’s dismissal part of a campaign to remove him from his job as Senior Organiser in Northern Ireland.
(16) Was the claimant’s dismissal:-
(a) an act of discrimination on the ground of political opinion;
(b) an act of victimisation contrary to the Sex Discrimination (Northern
Ireland) Order 1976.
(c) an act of discrimination on the ground of religious belief.
The facts found
1. The claimant was a Senior Organiser in the first named respondent union. He was appointed Senior Organiser in June 2005. His perceived community background is unionist and Protestant but he is a socialist and atheist, supports the unification of Ireland, and identifies his political beliefs with the Nationalist community.
2. Four days after his appointment as Senior Organiser, a grievance was made against the claimant by another employee of the first named respondent, John Dawson. Mr Dawson is perceived to be of a unionist political background. The grievance made against the claimant by Mr Dawson was that the claimant had discriminated against Mr Dawson on the basis of religious belief and gender.
3. This grievance was investigated by Paul McCarthy, the second named respondent and the Regional Secretary of the first named respondent. The claimant was given a copy of the grievance and he made a response. This response was sent to Mr Dawson. There was no outcome to the grievance other than the claimant being advised by Mr McCarthy that the grievance had been withdrawn. The claimant discovered in September 2006 (the following year) that Mr Dawson had made comments in correspondence to Mr McCarthy that the claimant was “dangerous”. No action was taken against Mr Dawson by the respondent on foot of this allegation.
4. In September 2005, Paul McCarthy moved on a temporary basis to work in the Lancashire region of the union. From September 2005 to September 2006 Mr Charlie Leonard was the Acting Regional Secretary for the region including Northern Ireland.
5. In October/November 2005, the claimant received a complaint from two female employees regarding the conduct of Mr Dawson. The claimant sought to resolve this informally with Mr Dawson but was unsuccessful. A formal disciplinary process commenced. Mr Dawson went off on sick leave and did not return to full-time work until April 2006. In June 2006 the claimant gave Mr Dawson a written warning and corrective action as a disciplinary penalty. Mr Dawson appealed the decision of the claimant to Mr Leonard, the Acting Regional Secretary. The penalty was reduced to a verbal warning. Mr Leonard then sent a memo to the claimant regarding his handling of the disciplinary process. Mr Dawson had complained that the claimant did not allow him to arrange the attendance of two witnesses. Mr Leonard commented:
“I believe your refusal to allow the witnesses at the disciplinary hearing to be flawed. As a trade union and as a trade unionist, I would expect in most situations that witnesses are allowed to be cross-examined. John Dawson didn’t have the authority to do this, but you did and I believe that was fundamentally wrong within this process.”
6. The claimant provided regular written reports to the Regional Secretary on all the activities of the Belfast Office. These were never challenged or criticised.
7. By August 2006, the claimant was convinced that Mr Leonard was working against him to the extent that he sent a statement to the union’s solicitor for safekeeping alleging that Mr Leonard was working to undermine his position and was seeking to take detrimental action against him. In August 2006, Mr Dawson submitted a further grievance against the claimant to Mr Leonard. Despite several requests by the claimant he was not shown a copy of the grievance until October 2006. The grievance against the claimant was investigated by another Regional Secretary of the union, Andy Worth and by the Head of HR, Michael Dearden. The grievance was not upheld.
8. In or about September 2006, a female member of staff reported a further incident involving Mr Dawson. The claimant reported this to the Regional Secretary, Paul McCarthy. (Paul McCarthy had returned as Regional Secretary in September 2006. Charlie Leonard went off on sick leave from September 2006 to September 2007.)
9. Mr Dawson was suspended and the issue was dealt with under the grievance procedure. It was investigated by two Senior Organisers from Liverpool, Giovana Holt and Graham MacDermott. Hearings were conducted in Belfast. The grievance was upheld and a disciplinary hearing for Mr Dawson was conducted by Andy Worth and Michael Dearden. Again the hearing was conducted in Belfast. Mr Dawson was suspended during the investigation.
10. In October 2006 another female employee submitted a grievance against Mr Leonard and Mr Dawson. She then resigned from the GMB union. With Mr Dawson suspended, there were now just two officers working in Northern Ireland, the claimant and Michael Mulholland. The claimant met with Mr McCarthy in October 2006. Mr McCarthy agreed to put two organisers in Belfast on a temporary basis until jobs could be advertised in Northern Ireland.
11. The following day Mr McCarthy made a report to the Regional Committee on Northern Ireland. The minutes of the meeting record:-
“He stressed that the situation within Northern Ireland cannot be allowed to continue. He confirmed that no request had been received for assistance for officers here to help officers in Northern Ireland. Our members want and are paying for a service and we will deal with the problems, political or otherwise, as we have enough officers and staff to provide this service to the members.”
12. On 1 November 2006, Mr McCarthy came to Belfast. With him was Eamon Coy a Senior Organiser from the London region. Mr McCarthy told the claimant that Mr Coy would be working in Northern Ireland on a temporary basis from the middle of November.
13. The following week the claimant received correspondence dated 9 November 2006 from Mr McCarthy. Mr McCarthy raised concerns about the appearance of the building in Belfast, the lack of recruitment packs and the fitting of a security camera. He also raised an issue regarding Mr Mulholland. Mr McCarthy stated that the claimant had spoken to him about Mr Mulholland working whilst off sick. The allegation made was that Mr Mulholland was fitting fridges in Germany whilst absent from the first named respondent union on sick leave. Mr McCarthy said that he was amazed the claimant had not done anything about the situation. Mr McCarthy had written to Mr Mulholland about the allegation and had spoken to Mr Mulholland on his recent visit to Belfast. Mr Mulholland had denied the allegation and asked that it be substantiated. Mr McCarthy asked the claimant to inform him who had told the claimant and when the claimant was told of the allegation.
14. The claimant responded to the various issues on 11 November 2006. In relation to Mr Mulholland’s absence, the claimant set out his recollection of his conversation with Mr McCarthy. He said he had made no allegations against Mr Mulholland. He suggested that Mr Leonard, Mr McCarthy, Mr Mulholland and the claimant:
“Sit down together and discuss the situation in order that we are absolutely clear about who said what to whom and when.”
15. Mr McCarthy responded on 26 November 2006. On the issue of Mr Mulholland he said:-
“With regard to Michael Mulholland, I have no intention of sitting down with Michael, Charlie Leonard or yourself until such time as you tell me who made the allegation against Michael Mulholland and why it was not dealt with either informally or formally at the time, given the serious nature of the allegation that Michael was allegedly receiving payment from GMB whilst off sick and working elsewhere.”
16. On 30 November 2006 the claimant wrote to Mr McCarthy. Again on the subject of Mr Mulholland he said:-
“I made no allegation at any time to Charlie Leonard or any one else about Michael Mulholland as suggested in your previous correspondence. I am not aware of any complaint being made. I became aware of a rumour Michael was abroad while not available for work. I sought to contact Michael by telephone and letter as he had not been in contact while off sick. I spoke to Michael while he was off and on his return to work. I believe I dealt with the situation at the time.”
17. At or around this time, the claimant also sent a memo to Mr McCarthy and Mr Leonard expressing concerns about a lack of consistency by them in how issues were handled and in particular the different way the two grievances by Mr Dawson against the claimant in June 2005 and August 2006, had been dealt with.
18. Mr Coy arrived in Northern Ireland on 20 November 2006. The claimant was absent at the time on holidays. Mr Coy addressed the staff in Belfast and said he was now responsible for staffing issues. The claimant had heard that Mr Dawson was returning from suspension. He raised this with Mr McCarthy who confirmed Mr Dawson was returning to work. Mr McCarthy asked the claimant and Mr Coy to conduct a return to work interview. On 6 December 2006 the claimant was advised by Mr Coy that Mr Coy had completed the return to work interview with Mr Dawson. The claimant told Mr Coy he was raising these matters with Mr McCarthy as no one had discussed with him the removal of his work.
19. On 6 December 2006 the claimant received a letter from Mr McCarthy. Mr McCarthy said he had spoken to Mr Coy that morning. He also set out concerns about the claimant’s recent management of issues in Belfast, in particular regarding Mr Dawson and the “unsubstantiated allegations against Michael Mulholland”. He said he would write under separate cover and arrange to sit down and discuss these issues. He said he felt the claimant was personalising matters against Mr Dawson and in that respect was failing in his management. He concluded by saying:-
“It may well be appropriate that I arrange this with your representative present.”
20. The claimant responded on 8 December 2006 welcoming a meeting, preferably before Christmas. In his response the claimant also raised the following:-
(a) He again denied making any allegation against Mr Mulholland and asked why Mr McCarthy was pursuing this matter.
(b) He expressed concern that he had been excluded from communications.
(c) He asked why he was not told as Senior Organiser of Mr Dawson’s return from suspension.
(d) He asked why Mr Coy met with Mr Dawson on his own and what areas of the claimant’s work had been passed by Mr McCarthy to Mr Coy.
(e) He said that he believed Mr McCarthy was deliberately undermining the claimant’s position as Senior Organiser in Northern Ireland.
21. On the same day the claimant received an e-mail addressed to all Liverpool staff. It advised that Mr McCarthy had agreed a permanent transfer to Northern Ireland of Mr Coy as a Senior Organiser. Historically there had only been one Senior Organiser in Northern Ireland.
22. On 19 December 2006 the claimant submitted a grievance to Mr McCarthy. He complained that he had been bullied and harassed and believed it was on the grounds of gender, religious belief and political opinion. The complaints made by the claimant were against Mr McCarthy and Mr Leonard. On 21 December 2006 Mr McCarthy acknowledged receipt of the grievance which he said he would pass to the HR Department. He then went on to say that he would hold an investigatory meeting regarding the claimant’s management of Northern Ireland staff and Organisers. The claimant was warned:-
“If, during the course of my investigation, I find that your conduct is serious, as in the case of intentional discrimination, I would advise you that the matter will be treated as gross misconduct and may well lead to your dismissal under stage 4 of the rule book procedure.”
23. On 3 January 2007, Mr McCarthy sent a copy of the claimant’s grievance to Michael Dearden, Head of the HR Department. Mr McCarthy informed Mr Dearden that he intended “to deal with other issues which have been raised against Billy in relation to his management of the Northern Ireland office. I regard his grievance as a separate issue.”
24. On 4 January 2007, the claimant addressed Mr McCarthy’s e-mail of 23 December 2006. In a format which characterised much of the ensuing correspondence between the claimant and Mr McCarthy, he asked a number of questions seeking information and clarification. In particular he asked for confirmation that the grievance procedure would be exhausted before the disciplinary procedure was activated. He concluded by again stating that he had made no allegations against Mr Mulholland and that he had nothing to add to previous correspondence on this issue. Mr McCarthy never replied to that correspondence.
25. On 15 January 2007 the claimant received a telephone call from Mr McCarthy advising the claimant that he was suspended from work. The claimant was travelling at the time to attend a conference in Blackpool. The claimant then received a letter dated 15 January 2007 confirming the suspension. The letter also set out Mr McCarthy’s concerns that the claimant’s management of the Northern Ireland office was not acceptable and referred to the several requests that Mr McCarthy had made regarding the allegations against Mr Mulholland. Mr McCarthy asked the claimant to be available for a meeting on 2 February 2007 at the Liverpool office with the claimant’s representative, Graham Benton (a Senior Organiser in Sheffield). On 16 January 2007, Mr McCarthy sent the claimant an e-mail confirming, as per the telephone conversation on the previous day, that he should not enter GMB offices or contact anyone. If the claimant required documents “arrangements should be made once Eamon Coy returns to the office”.
26. On 17 January 2007, Graham Benton sent a memo to Mr McCarthy saying he was unable to attend the suggested meeting of 2 February 2007. He went on to say:-
“In any event I have to say that as Billy registered a grievance before you invited him to an investigatory meeting and indeed suspended him, good industrial retaliation (sic) practice would suggest that be heard before any disciplinary hearing.”
27. Also on 17 January 2007 Michael Dearden sent an e-mail to Paul McCarthy regarding the claimant’s grievance. He said:-
“Wouldn’t it be better to clear his grievance first one way or the other prior to embarking on disciplinary action? Same principle as the Duncan Edwards case when I first joined.”
28. On 23 January 2007 the claimant submitted an application to the Industrial Tribunal and Fair Employment Tribunal against the respondents claiming sex discrimination, religious discrimination and political discrimination.
29. On 31 January 2007, Mr McCarthy e-mailed Mr Benton. In the e-mail he suggested that if Mr Benton wanted the grievance dealt with first, he should take that up with National Office. Mr Benton then e-mailed Mr Dearden and said the grievance should be dealt with first. He advised Mr Dearden that the claimant had submitted a claim to the Industrial Tribunal and Fair Employment Tribunal. Mr Dearden then e-mailed Mr McCarthy on 1 February 2007 saying he too thought the grievance should be heard first.
30. On 4 February 2007, the claimant wrote to Mr McCarthy. He asked a series of questions and requested information regarding the grievance and the disciplinary processes. Mr McCarthy did not respond to this correspondence.
31. On 28 February 2007, Mr McCarthy sent an e-mail to Mr Dearden. He stated that the claimant:-
“Was well aware of any charges laid before him prior to his putting in a grievance. I had also offered a meeting prior to the first date of his grievance on 19 December to discuss much with him and his representative.”
32. The Tribunal finds as a fact that no such charges were put to the claimant before he lodged his grievance.
33. On 29 March 2007, Mr McCarthy wrote to the claimant advising him that he had completed a disciplinary investigation, had identified four disciplinary charges against the claimant and set a disciplinary hearing for 3 May 2007. Mr McCarthy’s four charges related to:-
(a) the claimant’s mismanagement of Northern Ireland staff;
(b) allegations made by the claimant against Michael Mulholland;
(c) entering the Belfast Office without authority after he was suspended
on 15 January 2007; and
(d) allowing an officer of another trade union to enter the office with him.
The first two of these issues were inter-linked with the claimant’s grievance lodged on 19 December 2007. The claimant’s grievance was not dealt with first nor did Mr McCarthy address the grievance issue.
34. The claimant responded on 5 April 2007 seeking further information in relation to the procedure being followed and the charges being made. He asked what investigations had been carried out. Mr McCarthy did not reply to this correspondence. On 11 April 2007 the claimant made a further grievance in relation to the ongoing failure to deal with the previous grievance. This grievance again was never dealt with.
35. The proposed disciplinary hearing was postponed by Mr McCarthy. In June 2007 the claimant made a further grievance to the first named respondent about expenses claims. Again this grievance was never dealt with.
36. On 30 October 2007, Paul McCarthy wrote to the claimant. He advised the claimant that he intended to hold an investigatory meeting on 11 October 2007. Mr McCarthy was conducting the investigation which, he informed the claimant, could lead to charges of gross misconduct. Mr McCarthy advised the claimant that due to a change in union rules, if there were disciplinary charges they would be heard and dealt with by another Regional Secretary.
37. In the intervening period from first lodging his grievance on 19 December 2006 to October 2007, the claimant was in constant correspondence with Mr McCarthy in particular. Much of this correspondence would be characterised as lengthy and at times discursive. He tended to set out a particular issue or complaint and then a series of questions requiring answers. In the midst of this he often set out his understanding of events. Mr McCarthy did not reply to the vast majority of this correspondence and accepted that many of the requests for information made by the claimant were reasonable. The only explanation Mr McCarthy could give for not dealing with the correspondence was the pressures of his other work. Mr McCarthy also accepted that he had arranged what he had described as a disciplinary meeting for the claimant in May 2007. When asked why he then was writing regarding an investigatory meeting in October, he told the Tribunal that he must have forgotten that he had gone from disciplinary hearing to investigatory hearing. Mr McCarthy however accepted in his cross-examination that he had carried out no investigations during the spring of 2007 leading up to his laying of disciplinary charges against the claimant nor had he made any further investigations before convening the investigatory meeting in October 2007.
38. The claimant wrote to Mr McCarthy on 8 October 2007. He referred to his previous correspondence which Mr McCarthy had not answered. He repeated many of the requests for information and again asked why his grievances were not being dealt with. He also referred to Mr McCarthy’s earlier disciplinary charges and his (Mr McCarthy’s) assertion that the investigation into these matters was complete. Mr McCarthy responded on 9 October 2007. He stated that the purpose of the meeting on 11 October was to allow him to conclude his investigation. He also stated that this process would not “be delayed by the issue of your grievances”.
39. Mr McCarthy postponed the meeting proposed for 11 October 2007. It was rescheduled for 5 November 2007. The claimant wrote again on 15 October setting out his request and his concerns. The claimant wrote a further letter on 29 October 2007. The claimant then wrote to the General Secretary of the first named respondent, Mr Paul Kenny, on 30 October 2007 asking that his grievance be dealt with. He never received any reply to that correspondence.
40. On 1 November 2007, Mr McCarthy responded in part to some of the claimant’s earlier correspondence. He referred to the meeting proposed for 5 November 2007 and informed the claimant that if the claimant did not notify Mr McCarthy of the name of the claimant’s representative by 12 noon on 2 November 2007, Mr McCarthy would cancel the meeting. He would then review the evidence and conclude his investigation in the claimant’s absence. The claimant phoned to confirm his attendance at the meeting and said he would confirm his representative as soon as possible pointing to the difficulties of the short timescale. Mr McCarthy wrote on 2 November 2007 to say that the claimant should not attend on 5 November as he had failed to come back to Mr McCarthy as required. Mr McCarthy intended to review the case papers in the claimant’s absence. He concluded his letter by saying “Be advised also that you should not attend the investigatory hearing on Monday since I have now rearranged my diary and will not be available”.
41. On 16 November 2007 Mr McCarthy wrote to the claimant saying he had concluded his investigations. He considered that the claimant should face a disciplinary hearing. He identified the charges as:-
(1) Totally mismanaging the office staff and resources in Northern Ireland.
(2) Failure to act impartially towards John Dawson and
Michael Mulholland.
(3) Refusal to follow the GMB at Work Policy and Charlie Leonard’s
instructions to mount a recruitment campaign in Southern Cross.
(4) Conspiracy with the T&GWU to damage GMB.
(5) Indifference to attending meetings and the claimant’s behaviour
throughout the months in trying to bring the matter to a conclusion.
(6) Failure to follow instructions whilst suspended, in particular the
claimant’s attendance at the first respondent’s Belfast office.
42. On 22 November 2007, Nick Mendelsohn, the HR Officer for the first named respondent, wrote to the claimant advising of a disciplinary hearing to be chaired by Ed Blissett, the Regional Secretary of London. Mr Mendelsohn would also attend. On 8 December 2007, the claimant received a letter from Mr Blissett advising him of a disciplinary hearing on 17 December 2007. On 11 December 2007, Nick Mendelsohn e-mailed Mr McCarthy to say that the grievance and the disciplinary matters could run in parallel. Mr Mendelsohn suggested postponing the disciplinary hearing. A new date could be set and a date for a grievance hearing made. Mr McCarthy did not respond to this. In the event the disciplinary hearing for 17 December 2007 was postponed as the necessary documents for the hearing were not available in time. The date for the hearing was subsequently confirmed as 31 January 2008.
43. At the hearing on 31 January 2008, the claimant attended with his representative, Mr O’Reilly from the T&G Unite Union. He asked for the hearing to be postponed giving his grounds that he wished his grievance to be dealt with first, that he wanted witnesses to be called and wanted answers to the questions posed in his correspondence regarding procedures. Mr Blissett determined to proceed with the hearing at which stage the claimant and Mr O’Reilly left the hearing. The claimant subsequently provided written submissions and witness statements on 6 February 2008 which were considered by Mr Blissett. They were also provided to Mr McCarthy to provide his comments. Mr McCarthy provided a further witness statement from Mr Leonard subsequent to the hearing. In presenting the charges to Mr Blissett, Mr McCarthy also relied on a statement from Mr Coy dated 16 May 2007.
44. On 19 February 2008, Mr Blissett wrote to the claimant setting out his findings. He upheld the charges of mismanagement of the Northern Ireland office. He upheld the charge that the claimant refused to follow the GMB at Work Policy and the instructions to mount a recruitment campaign at Southern Cross. He upheld the charge that the claimant showed indifference to attending meetings during his suspension and failed to follow an instruction not to attend the Belfast office. Mr Blissett confirmed the outcome of the hearing was that the claimant was dismissed.
45. The claimant appealed the decision on 27 February 2008. The appeal hearing was set for 24 June 2008. That hearing was cancelled by the first named respondent and the claimant’s appeal has never been heard. The Tribunal received no explanation for the failure of the respondents to either conduct the appeal against the claimant’s dismissal or any of the grievances made by the claimant.
46. Mr McCarthy took no steps at all to investigate the claimant’s initial grievance of 19 December 2006. He also accepted that many of the requests for information made by the claimant in his correspondence were reasonable.
47. Reference has been made to the entering of the Belfast office. The claimant, accompanied by Mr Maurice Cunningham of the T&G Union entered the first named respondent’s Belfast office on 28 February 2007. The claimant had phoned the office in advance and spoken to the secretary, Deirdre McCabe. He advised her of his intention to come to the office to collect personal belongings. Mr McCarthy’s earlier instruction to the claimant was he was not to enter the office without arranging this with either Mr Coy or Mr McCarthy. Mr Coy was not in the office at the time the claimant phoned but had returned before the claimant attended the office and was told of the telephone call. He did not phone the claimant and took no steps to prevent the claimant from coming to the office. Mr McCarthy maintained that the claimant should not have been on the premises. However, he did not investigate the incident or interview Mr Coy. He carried out no investigation. The Tribunal finds as a fact that Ms McCabe did inform Mr Coy of the claimant’s intention to attend the office and Mr Coy knew of that fact in advance of the claimant’s actual attendance. Although the claimant raised these matters in his correspondence, Mr McCarthy did not address that correspondence. He took no investigatory steps whatsoever.
48. Mr McCarthy accepted that much of the evidence against the claimant on the charges which were upheld by Mr Blissett were based on statements made by Mr Dawson and Mr Coy, in particular the statement of Mr Coy dated 16 May 2007. This was a three page document which Mr McCarthy told the tribunal was an unsolicited document provided by Mr Coy. Mr McCarthy in his evidence also accepted that this statement was inaccurate in material respects and contained a number of serious allegations which Mr McCarthy did not investigate or authenticate in any way. He made no effort to interview any other members of the Belfast staff and knew that aspects of the report were incorrect from his own knowledge. Mr McCarthy knew that the statement from Mr Dawson was partly inaccurate. However, both these documents were presented by Mr McCarthy to Mr Blissett at the disciplinary hearing without any advice to Mr Blissett of the inaccuracies they contained nor was Mr Blissett informed in particular of the relationship between Mr Dawson and the claimant.
49. Mr McCarthy further accepted that allegations five and six which were upheld by Mr Blissett were based entirely on the two unsubstantiated sets of allegations by Mr Coy and Mr Dawson. He accepts that the further queries of the claimant in this process in October and November 2007 were reasonable queries which he did not answer.
50. Throughout the process the claimant also asked that any hearings be conducted in Belfast. Mr McCarthy refused to allow such a hearing and said that it was policy and procedure that they be heard in Liverpool. However, previously investigatory and disciplinary hearings had been conducted in Belfast in relation to matters involving Mr Dawson.
THE LAW
Religious Belief or Political Opinion Discrimination
51. Article 3(2) of the Fair Employment & Treatment (Northern Ireland) Order 1998 (FETO) provides that:
“A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if:-
(a) on either of those grounds he treat another less favourably than he treats or would treat other person.”
52. Article 19(1) of FETO provides:-
“It us unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-
(a) where that person is employed by him –
(b) by dismissing him or by subjecting him to any other detriment.”
Victimisation
53. By Article 6 of the Sex Discrimination (Northern Ireland) Order 1976, a person discriminates against another person if he treats the person victimised less favourably in those circumstances than he treats or would treat other persons and does so for reasons mentioned in that Article. The reasons include that the person victimised has –
(a) brought proceedings against the discriminator or any other person under the Order;
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Order;
(c) otherwise done anything under or by reference to this Order in relation to the discriminator or any other person;
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act, or by reason that the discriminator knows the person victimised intends to do any of these things, or suspects the person victimised has done, or intends to do, any of them.
The victimisation provisions under FETO are set in similar terms.
Burden of Proof
54. Article 38A of FETO provides:-
“Where on the hearing of a complaint under Article 38, 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 an act of unlawful discrimination or unlawful harassment against the complainant; or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant;
the tribunal shall uphold the complaint 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.”
Article 63A of the Sex Discrimination Order is set in similar terms.
55. Guidance on how to apply the burden of proof was given by the Court of Appeal in the case of Igen Limited –v- Wong [2005] EWCA Civ142. The Court of Appeal in Igen set out their guidance in 13 paragraphs. The Court referred to a two stage test. The claimant must firstly show facts from which the Tribunal could, in the absence of an adequate explanation, conclude that the respondent has committed an unlawful act of discrimination. Once the Tribunal has so concluded, the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination. The guidance in Igen has been endorsed in a number of cases including the Northern Ireland Court of Appeal in the case of Arthur –v- Northern Ireland Housing Executive and SHL UK Limited [2007] NICA 25.
Following Igen the Court of Appeal again considered the burden of proof in Madarassy –v- Nomura International Plc [2007] IRLR 246. In that case Lord Justice Mummery said:-
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.
“Could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it”.
In the case of Laing –v- Manchester City Council [2006] IRLR 748, Mr Justice Elias said:-
“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect “there is a neat question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”
56. In the recent Northern Ireland Court of Appeal decision of Nelson –v- Newry & Mourne District Council [2009] NICA24, Lord Justice Girvan referred to the Court of Appeal’s decision in Madarassy and went on to say:-
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination.
In Curley –v- Chief Constable [2009] NICA8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
Unfair Dismissal
57. Under the terms of the Employment Rights (Northern Ireland) Order 1996 (ERO) an employee has a right not to be unfairly dismissed by his or her employer. In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal. Potentially fair reasons include, under Article 130(2)(b) the misconduct of the employee.
58. Article 130(4) provides as follows:-
“Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
59. In deciding whether dismissal is fair it is not for the Tribunal to substitute its own view for that of the employer. Instead the Tribunal should consider whether the dismissal falls within a range of reasonable responses open to a reasonable employer. The Tribunal will take into account not only whether the employer had grounds for dismissing the employee, but also whether he adopted a fair procedure in dismissing him.
60. By Article 130A of ERO, a dismissal will be automatically unfair if one of the statutory disciplinary procedures set out in Schedule 1 of the Employment (Northern Ireland) Order 2003 applies in relation to the dismissal, where the procedure has not been completed and the non completion of the procedure is wholly or mainly attributable to the failure by the employer to comply with its requirements.
TRIBUNAL’S CONCLUSIONS
61. There are a substantial number of issues that have been placed before the Tribunal for determination. In our conclusions we intend to follow as closely as possible the issues as identified at the outset of this decision. The first six issues relate to the period from June 2005 to October 2006. They relate to the relationship between Mr Leonard as acting Regional Secretary and the claimant and also the issues involving the claimant’s interaction with Mr Dawson. The Tribunal did not hear from Mr Leonard. He was unable to attend the Tribunal due to illness. Nor did the Tribunal hear from Mr Dawson. The Tribunal took into account the guidance provided on the Burden of Proof Regulations and has concluded on the basis of the facts as found, that the burden of proof should not transfer to the respondents. It is not satisfied on the balance of probabilities that Mr Leonard sought to undermine the claimant’s position by organising meetings in Northern Ireland and challenging unnecessarily areas of work. Nor is it satisfied that the grievance submitted by Mr Dawson against the claimant in August 2006 could amount to an act of discrimination against the claimant on the ground of political opinion. In relation to issue 4, the Tribunal determines that on the balance of probabilities it is unable to infer discrimination from the comment of Mr Dawson in his letter to the first named respondent withdrawing his grievance against the claimant where the claimant is described as dangerous. In relation to issue number 6, the Tribunal finds that there was no credible evidence before the Tribunal on which they could transfer the burden of proof to the respondent in relation to the allegation that the acting Regional Secretary discriminated against the claimant because the claimant had taken action to protect women employees. The Tribunal found no evidence of any action taken by Mr Leonard against the claimant in relation to this issue.
62. Issues 7 to 13
These issues relate to the claimant’s grievance on 19 December 2006 and 11 April 2007 and the ensuing events. The central theme to these issues is that the respondent failed to deal with the claimant’s grievance whilst pursuing disciplinary proceedings against him. The Tribunal has found as a fact that the first named respondent and second named respondent clearly failed to deal with the claimant’s grievances. Indeed Mr McCarthy has accepted that no attempt was made to deal with the claimant’s grievances. The claimant’s grievance of 19 December 2006 contained allegations by the claimant that he believed he was the subject of discrimination on the grounds of gender, religious belief and political opinion. In determining whether the claimant has been subjected to an act of discrimination on the ground of political opinion, the Tribunal must determine whether the claimant has been less favourably treated on the grounds of his political opinion. In relation to victimisation, the Tribunal must determine whether the claimant has been treated less favourably on one of the statutory grounds including that the claimant has alleged that the respondent has contravened the provisions of either FETO or the Sex Discrimination Order. The Tribunal determines that such an allegation is contained within the claimant’s first grievance of 19 December 2006. The Tribunal has further determined that it is appropriate to transfer the burden of proof in relation to discrimination on the ground of political opinion and victimisation on the grounds of sex discrimination for the following reasons:-
(a) Mr McCarthy’s comments that “we will deal with the problem, political or otherwise” in his report to the Regional Committee in October 2006.
(b) The claimant’s allegations are clearly set out in the grievance of 19 December 2006. Many of these name Mr McCarthy as the person against whom the grievance is made.
(c) No disciplinary steps had been taken by the respondents prior to the sending of the grievance. In particular no charges of a disciplinary nature had been made against the claimant.
(d) Immediately upon receipt of the grievance Mr McCarthy initiated a disciplinary process against the claimant.
(e) Although the grievance was made primarily against Mr McCarthy, he decided to conduct investigations and convene a disciplinary hearing against the claimant. Although he at no stage carried out any investigation he initiated disciplinary charges against the claimant and convened a disciplinary hearing in May 2007.
(f) Mr McCarthy received advice from other members of the first named respondent that the claimant’s grievance should be dealt with before the disciplinary process but Mr McCarthy ignored that advice.
(g) Mr McCarthy’s failure to respond to the claimant’s correspondence and deal with issues which Mr McCarthy accepted in his evidence as being reasonable requests for information.
(h) Mr McCarthy decided to suspend the claimant in January 2007. However, the Tribunal heard no credible explanation as to why the suspension was deemed necessary.
(i) Mr McCarthy’s response to the claimant’s entering of the Belfast offices of the first named respondent was to prefer disciplinary charges. However, it is clear from the documentation and the evidence heard by the Tribunal that the claimant did contact the first named respondent’s office asking that a message be passed to Mr Coy and this was done. Despite this Mr McCarthy pursued further disciplinary charges and also refused to allow the claimant the right to representation of his choice.
(j) When Mr McCarthy issued disciplinary charges on 29 March 2007 there had been no investigatory hearing.
(k) Mr McCarthy insisted that all hearings take place in Liverpool despite the claimant’s request that they should be heard in Belfast. However, hearings of grievance and disciplinary matters involving other members of the Northern Ireland staff were dealt with in Belfast.
(l) Mr McCarthy then postponed the disciplinary hearing in May and instituted a fresh investigatory process in October 2007. He was unable to provide an explanation for why he took this step but also confirmed that no further investigations had been carried out. He also continued his policy of not responding to the claimant’s correspondence.
(m) He refused to allow the claimant to attend an investigatory meeting on 5 November on the apparent basis that the claimant had not confirmed the identity of his representative. He however completed an investigatory process and preferred disciplinary charges.
(n) Mr McCarthy accepted that of the six charges put before Mr Blissett for determination, two depended entirely on the unsubstantiated allegations of Mr Coy and Mr Dawson and two others relied heavily on those allegations. However, Mr McCarthy also accepted that the statements of Mr Dawson and Mr Coy were inaccurate in many respects and that he was aware of that fact before he presented them to Mr Blissett. However, he did not draw these reservations to Mr Blissett’s attention.
(o) After the dismissal of the claimant he lodged an appeal. That appeal has never been dealt with by the respondent.
(p) The claimant’s various grievances have never been dealt with by the respondent.
63. Having determined that the burden of proof in relation to these issues should shift to the respondents, the Tribunal must look at any explanation that the respondents can offer. It is the Tribunal’s conclusion that there is no satisfactory explanation from the respondents. In particular, Mr McCarthy’s explanation of his actions was very limited. He could point only to a general pressure of work to explain why he carried out no investigation whatsoever into the allegations that he himself was making against the claimant and why he did not respond to what he accepted were the reasonable requests for information from the claimant during this process. There were substantial delays in the process which, in the Tribunal’s opinion, fell largely at the door of Mr McCarthy. Furthermore, his reason for not dealing with the grievance of the claimant, being that the disciplinary process should take priority, flies in the face of the advice offered to Mr McCarthy from two members of the first named respondent’s Human Resources Department and Mr Benton, a senior member of staff. The Tribunal therefore determines that the claimant was discriminated against on the ground of political opinion and was subjected to act of victimisation contrary to the Sex Discrimination (Northern Ireland) Order 1976.
64. Third set of Issues
The Tribunal concludes that the disciplinary proceedings against the claimant were fundamentally flawed. They were based, in large part, on the allegations made by Mr Coy and Mr Dawson. These have been accepted by the respondents at Tribunal as inaccurate and unsubstantiated. There was lengthy delay in the process and the respondents refused to deal with the reasonable queries of the claimant in his correspondence. Mr McCarthy had investigated and preferred charges based on inaccurate and unsubstantiated evidence and had taken no proper steps to investigate the allegations that he himself had framed. During the course of this investigation he had suspended the claimant and had effectively replaced him on a permanent basis by Mr Coy without using any selection procedure. The respondents gave no explanation for why the claimant’s appeal against the dismissal was not dealt with. In those circumstances the Tribunal determines that there has been a failure to complete the dismissal procedure and the non-completion of the procedure is wholly or mainly attributable to the failure by the employer to comply with the requirements of the Employment Rights Order 1996. In those circumstances the dismissal is automatically unfair. In any event, the Tribunal also determines that the process by which the claimant was dismissed was fundamentally flawed by the participation and actions of Mr McCarthy. The Tribunal therefore concludes that the claimant was unfairly dismissed. The Tribunal further determines that the respondent broke the claimant’s contract of employment in failing to pay his contractual notice. The Tribunal is not satisfied on the balance of probabilities that the respondent made an unauthorised deduction from the claimant’s wages of £400 and therefore dismisses that aspect of the claimant’s claim.
COMPENSATION
65. The Tribunal has declined to make any decision on the appropriate compensation due to the claimant as it considers that the parties should have an opportunity to address the Tribunal and lead any appropriate evidence on the issue. These include whether or not, if the Tribunal accept the agreed figures in the schedule of loss, there should be grossing up for taxation purposes, and what uplift to any compensatory award should be made for failing to comply with the statutory procedures. The Tribunal also wishes to be addressed, with appropriate evidence, as to the nature of the pension provision made, and any factors to be taken into account in assessing any withdrawal factor.
Chairman:
Date and place of hearing: 9-26 March 2009 and 12 May 2009, Belfast
Date decision recorded in register and issued to parties: