Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2009/46_07FET.html
Cite as: [2009] NIFET 46_7FET, [2009] NIFET 46_07FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 46/07 FET

137/07 FET

150/08 FET

CLAIMANT: Eugene McNally

RESPONDENTS: Northern Ireland Fire & Rescue Service & Others

DECISION

The unanimous decision of the Tribunal is as follows:-

1. The claimant’s claims in Case 1 are not well-founded. Accordingly, all of those claims are dismissed.

2. The claimant’s claims in Case 2 are not well-founded. Accordingly, all of those claims are dismissed.

3. The claimant’s claim (of victimisation discrimination) in Case 3 is well-founded.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mr A Kerr

Mrs C Lewis

Appearances:

The claimant appeared in person during most of the hearing, but was represented by his daughter, Ms L Magee, for part of the hearing.

The respondents were represented by Mr M McEvoy, Barrister-at-Law, instructed by the Director of Legal Services, Belfast City Council.

REASONS

1. The claimant is an employee of the Northern Ireland Fire & Rescue Service (“the Service”) and has been for many years.

2. The claimant comes from a Roman Catholic (“Catholic”) community background.

3. In these proceedings, the claimant makes claims of unlawful discrimination against the Service, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”).

4. As amended, the 1998 Order has to be construed in light of the requirements of the EU Framework Directive of 2000, which the amended Order is intended to implement.

5. As the Court of Appeal has reminded us, in Ryder v Northern Ireland Policing Board [2007] NIJB 252, political and religious discrimination can take a variety of forms. (See Ryder, at paragraphs 11, 22 and 23 of the judgment).

6. However, at the outset of the main hearing of this case, the claimant made it clear that, in this case:-

1. The claims of religious discrimination were solely based either on the proposition that the alleged perpetrators had discriminated against the claimant because he was perceived to be a Catholic or on the proposition that the alleged perpetrators had discriminated against him because he was not a Protestant.

2. The claims of political discrimination were solely based either on the proposition that the alleged perpetrators had discriminated against the claimant because he was perceived to have Irish nationalist or Irish Republican political opinions or on the proposition that the alleged perpetrators had discriminated against him because he did not come from a unionist background.

7. In these proceedings, the claimant does not assert that any of the alleged perpetrators has carried out any alleged act of discrimination because of bias at a subconscious or unconscious level. Instead, in each instance, according to the claimant, every alleged act of discrimination occurred because of bias at a conscious level.

8. These three cases are being heard together. In this Decision, we refer to Case Reference No: 46/07 FET as “Case 1”, to Case Reference No: 137/07 FET as “Case 2”, and to Case Reference No: 150/08 FET as “Case 3”.

9. Case 1 sets out various instances of alleged detrimental treatment, carried out by the Service itself, or by colleagues of the claimant. In each instance, the claimant asserts that the relevant treatment constituted religious and/or political discrimination.

10. In Case 2, the claimant alleges that he has been subjected to other detrimental treatment, consisting of the alleged failure on the part of the Service to adequately investigate his internal grievances in relation to the subject-matter of Case 1. Again, the claimant asserts that this treatment constituted religious and/or political discrimination.

11. Case 3 consists of a claim of victimisation discrimination, and is concerned with a particular aspect of the way in which the claimant’s grievances were addressed. Case 3 is a complaint of detrimental treatment, arising out of what was said during the course of a particular internal grievance hearing.

Some key legislative provisions

12. Article 19 of the 1998 Order makes it unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, by dismissing him “… or by subjecting him to any other detriment”.

13. In the context of Article 19, “discrimination” includes political discrimination, religious discrimination and victimisation discrimination.

14. Article 3(2) of the 1998 Order provides that, for the purposes of the 1998 Order, a person discriminates against an employee, on the ground of religious belief or political opinion, if, on either of those grounds, he treats that employee less favourably than he treats or would treat other persons.

15. Article 3 also contains the definition of victimisation discrimination. According to Article 3(4), an alleged perpetrator discriminates by way of victimisation against an alleged victim (in any circumstances relevant for the purposes of the 1998 Order) if he treats the alleged victim less favourably than he treats or would treat other persons in those circumstances, and does so for a relevant prohibited reason.

16. In this context, a relevant prohibited reason includes the bringing of proceedings under the 1998 Order, and the assertion of rights by reference to the provisions of that Order.

The claims and the defences

17. If the colleague of an employee carries out an act of unlawful discrimination (within the meaning of the 1998 Order), the Order provides that, as a general rule, the employer is legally liable in respect of that act of discrimination. That general rule is subject to an exception (the defence of “reasonable practicability”). However, on behalf of the Service, Mr McEvoy has realistically accepted that, in the circumstances of this case, no such defence could be proven by the Service.

18. The claimant’s complaints of political discrimination and/or religious discrimination, as set out in Case 1, were lengthy. However, by the time this matter came on for hearing, the number of “live” allegations of religious and political discrimination had been reduced.

19. As a result of a discussion which took place during the main hearing on 2 February 2009, a restatement of all of the claimant’s allegations of unlawful discrimination was agreed upon. The restated allegations of religious and political discrimination were as follows:-

1. The claimant alleged that Mr Raymond Hobson had fabricated allegations (“the McGeary’s allegations”) that, at a fire at McGeary’s in the year 2000, the claimant had been guilty of misconduct.

2. The Service holds correspondence, which was allegedly written, during the year 2000, by various Officers of the Service, in relation to the McGeary’s allegation. The claimant asserted that the relevant allegations were inaccurate and that the correspondence was fabricated.

3. The claimant alleged that he was not made aware of the McGeary’s allegations until July 2006.

4. The claimant alleged that the Service’s response to the McGeary’s allegations, in 2000, was inappropriate and unfair.

5. The claimant told us that the Service had failed to conduct a full and proper investigation in relation to the grievance which the claimant had initiated in 2006.

6. ADO Greer was one of the decision-makers in the course of the claimant’s grievance process. He refused to hear the claimant’s grievance until the claimant had returned to work.

20. During the course of the main hearing, the claimant accepted that ADO Greer’s refusal (his refusal to hear the claimant’s grievance until the claimant had returned to work) was not discriminatory. Accordingly, we do not have to arrive at any determination in respect of allegation (6). For the Service, it is contended that allegations (1) - (5) are not factually well-founded. In any event, according to the Service, any relevant unfair treatment was not affected to any extent by relevant religious or political bias.

21. The Service says that the religious discrimination/political discrimination allegations numbered (1) - (4) were not brought within either the primary or the secondary statutory time limits.

22. The claimant’s response to the time-limit argument is as follows. First, he says that he could not have pursued allegations (1) - (4) at any time prior to July 2006. That, according to the claimant, was the first time when he became aware of the McGeary’s allegations correspondence. Secondly, he says that, in any event, it would be just and equitable for the primary time-limit to be extended, in view of the circumstances of those allegations.

23. We have already referred above to the restatement of all of the claimant’s allegations which was agreed upon as a result of a discussion which took place, on 2 February 2009, during the course of the main hearing. During that discussion, the terms of the Case 3 subject-matter were agreed in the following terms:-

“(In Case 3). Did Mr Lammey ... make unfair remarks and/or assert that the claimant had made inaccurate statements (in the context of the grievance)? If so, were those remarks made because the claimant had lodged Case 1 and/or Case 2?.”

In their Submissions (see below), the parties have set out that particular allegation in the precise terms which were agreed on 2 February 2009. However, that allegation was subsequently the subject of a minor modification, which was agreed by the parties, at the invitation of the Tribunal, on 17 February 2009. As so modified, the allegation was in the following terms:-

“(In Case 3). Did Mr Lammey make unfair remarks and/or assert that the claimant had made inaccurate statements (in the context of the grievance)? If so, were those remarks made because the claimant had made the allegations which form the subject-matters of Case 1 and/or Case 2?.”

24. The respondents did not accept that Mr Lammey had done anything inappropriate during the course of the relevant grievance hearing. In any event, according to the respondents, the tone, content and nature of the Lammey interventions had nothing to do with any ground which, in the context of the victimisation discrimination provisions, is a relevant prohibited ground.

25. The respondents accepted that, by making the allegations which form the subject-matter of Cases 1 and 2, the claimant had carried out a “protected act” (in the sense in which that concept is used in the context of the victimisation discrimination legislation).

26. The claimant attempted to lodge a fresh internal grievance in relation to the remarks, which were the subject of the victimisation discrimination claim. However, the Service refused to entertain that grievance. Were they wrong to refuse to do so? That is a remedies issue, as distinct from a liability issue. (See Article 18 of the Employment (Northern Ireland) Order 2003.) Therefore, we do not need to resolve that question at this stage of the case.

The sources of evidence and the arguments

27. On the claimant’s side of the case, we received oral testimony from the following:-

1. The claimant himself;

2. Mr David White;

3. Mr Stephen Gordon; and

4. Mr Raymond Judge.

In addition, oral testimony was also available from Mr Brendan Doody and Mr Francis Leckey. Their witness statements had been provided to the Tribunal. Those witness statements showed what the evidence-in-chief of both of those two individuals would have been. During the course of the hearing, the parties agreed that it was not necessary for the Tribunal to hear the evidence of Mr Doody or of Mr Leckey.

28. On the respondents’ side of the case, we heard evidence from the following:-

1. Mr Raymond Hobson;

2. Mr Desmond Moynes;

3. Mr Louis Jones, Deputy Chief Fire Officer of the Service.

4. Mr Brian Greer (the Assistant Group Commander in the Service for Newry District);

5. Mr Donald McKay (a Group Commander in the Service);

6. Ms Gillian McAfee (an Area Business Manager within the Service);

7. Mr Colin Lammey (the Chief Fire Officer of the Service); and

8. Mr Walter Johnston (now retired, but previously Assistant Area Commander within the Service).

29. The respondents had intended to call Mr Alan Fulford as a witness. However, during the course of the main hearing, the parties agreed that it was unnecessary for Mr Fulford to be called.

30. We saw:-

1. two bundles of documents which had been prepared by the respondents;

2. a bundle of documents which have been produced by the claimant; and

3. various miscellaneous documents which were provided to us by the parties during the course of the hearing.

We told the parties that we would only have regard to any document within any bundle if our attention had been specifically drawn to that particular document.

31. We drew the attention of the parties to the decision of the Fair Employment Tribunal in Moore v Food Safety Promotion Board [Case Reference No: 29/04 FET] and the decision of the Tribunal in Bowers v Unite and Another [Case Reference No: 152/05 FET]. We invited the parties to consider the statements of legal principles which were set out in the decisions in those cases and to comment upon those statements, if they thought it appropriate to do so.

32. As Mr McEvoy realistically recognised, it was necessary to leave remedies to a later stage of the main hearing, against the following background and for the following reasons. During the course of the main hearing, the claimant made it clear that he considered that his psychological health had been affected by the alleged acts of discrimination. He had produced no medical evidence in support of that proposition. At our invitation, he sought legal advice during the main hearing. As a result of that legal advice, he decided to pursue, as part of these proceedings, a claim for personal injuries (in the form of psychiatric illness) which, he says, have been sustained because of the alleged acts of discrimination.

33. Accordingly, it was agreed between the parties that, at this stage of the main hearing, we should deal with liability issues only. Therefore, this Decision does not deal with any remedies.

34. Both the claimant and Mr McEvoy provided us with clear and concise written submissions (“Submissions”) on the liability issues, for which we are grateful. There was a subsequent oral hearing, on 20 March 2009, at which the parties were free to comment on each other’s Submissions, and at which the Tribunal took the opportunity to seek clarification in respect of some aspects of the arguments.

35. Specific reference has been made to some of the arguments below. The Submissions provide a permanent record of the arguments which were made in those documents.

36. In the circumstances, it is unnecessary, in this Decision, to provide comprehensive details of all of the arguments.

37. We have ignored certain statements which were set out in the claimant’s Submission, relating to the way in which the claimant’s absences, at the time of the Tribunal’s liability hearing, were treated. (No evidence had been presented in respect of that matter. The Submissions in this case were received at a time when all the evidence in the case had already been given. Submissions should consist only of argument, and of comment in relation to evidence already given).

The findings of fact

38. We have made the following findings of fact which are relevant to the liability issues which we have determined:-

1. The claimant comes from a Catholic community background. We know very little about his actual political views. He says that the alleged political discrimination which is the subject of these proceedings is discrimination on account of his perceived political opinions. He says that the perpetrators perceived him to be an Irish nationalist and/or a Republican.

2. Mr Raymond Hobson, Mr Louis Jones, Mr Brian Greer, Mr Donal McKay, Mr Walter Johnston and Mr Colin Lammey all come from a Protestant community background. None of them comes from an Irish nationalist or Irish Republican background.

3. Mr Desmond Moynes is a Catholic. The claimant accepts that all of the relevant acts and omissions of Mr Moynes were unaffected by any relevant prohibited ground.

4. Divisional Officer Kennedy is referred to below. Mr Kennedy was a Catholic. Sadly, Mr Kennedy died some years ago. The claimant accepts that all of the relevant acts and omissions on the part of Mr Kennedy were unaffected by religious or political bias.

5. The claimant and Mr Raymond Hobson were both present at the same time at a fire at McGeary’s Mushrooms, Moy Road, Armagh, (“McGeary’s”) on 12 April 2000. Later that evening, Mr Hobson left the scene of the fire; the claimant continued to be present at the scene. Later still during that evening, Mr Moynes was present at the scene, at the same time as the claimant. (Mr Moynes had been present at the fire earlier in the day, before the claimant’s arrival, but he had left it for some hours).

6. During the course of his presence at McGeary’s, there were interactions between the claimant and Mr Hobson, and between the claimant and Mr Moynes.

7. An account of the interaction between the claimant and Mr Hobson is provided in a minute dated 14 April 2000, which Mr Hobson sent to Mr Walter Johnston (who was then a Divisional Officer, with special responsibility for personnel issues in the Southern Command of the Service). Mr Hobson’s Minute was as follows:-

“I would like to report an incident that happened on 12^th April 2000 at 2000 hours, incident no 1263900 – McGeary’s Mushrooms, Moy Road, Armagh. I was Officer-in-Charge of the incident and Station Officer Moynes had left the fireground to get something to eat. He left me instructions on what was required. [A fire crew from Lurgan] arrived on the fireground and I tried to explain to the Officer-in-Charge of [that fire crew] what was required. He complained that he should not have been there and was not very happy about the whole situation. I was very disappointed with his attitude and he returned to his appliance totally ignoring anything that I had asked him to do. The whole crew remained in the appliance. I waited for about 20 minutes to see if there would be any response; but there was none forthcoming. I rang Station Officer Moynes and informed him of the situation as we were leaving the fireground. He informed me that he would return to the incident in about 30 minutes. I then informed the Officer-in-Charge of [the Lurgan fire crew] of my intentions and also told him that Station Officer Moynes would be back in 30 minutes. He then remarked that he would not be there when Station Officer Moynes returned.

I left the fireground and met Station Officer Moynes on the road back to [my] Station. I informed him of the remarks made by this Officer.

I find this incident very disappointing as we had spent two spells at this incident – a total period of 15 hours, whereas [the claimant’s fire crew] had just arrived, for the first time, at the incident.

I feel that this was not a good example shown by a Whole Time Officer, especially in the presence of Retained Personnel. He showed total disrespect for the Officer-in-Charge of the incident and insubordination.”

8. The claimant is the person referred to in the Hobson minute as the Officer-in-Charge of the Lurgan fire crew. We were satisfied that this Minute was written and sent by Mr Hobson on or about 14 April 2000.

9. At the time, and ever since, the claimant has been a full-time Officer of the Service. At the time and subsequently, Mr Hobson was a retained (part-time) Officer of the Service.

10. In April 2000, Mr Moynes was Station Officer in the Service. Accordingly, at that time, he out-ranked both Mr Hobson and the claimant. According to Service records, he wrote a Minute to Divisional Officer Johnston on 17 April 2000, in which he set out his version of events in respect of the interactions between himself and with the claimant which had occurred on 12 April 2000. That Minute includes the following account of events:-

“On the afternoon of [12^th April 2000] I instructed the OIC of CO42 ... to provide the crews from Magherafelt and Cookstown with hoses from his appliance. This was to make both of these appliances operational for the return journey to their home Stations. At approximately 1730 hours I instructed the Whole Time Officer to return to [Lurgan] Station and to immediately change over with the night shift and to inform them to return to the Fireground at [McGeary’s], where new hose would be available to replenish the CO42 appliance.

At about this time I instructed Sub-Officer Hobson that he was now in charge of the incident as I was leaving the Fireground for a rest period and an evening meal. At approximately 1945 hours Sub-Officer Hobson telephoned me at home and informed me that the OIC of CO 42 appliance, Leading Fire Fighter McNally, was not being co-operative and did not wish to carry out the instructions that I had left with Sub-Officer Hobson. I informed the Sub-Officer that I would shortly return to the incident.

When I was still on route to the incident, I met with Sub-Officer Hobson, who informed me that he had passed my instructions onto the Whole Time Officer who stated that he was not concerned and that [he] would probably not be on the Fireground when I arrived.

When I arrived at the incident I met with the crew from C12 Station and handed over hot refreshments. I then proceeded to CO4 appliance in order to provide this crew with the same beverage. On approaching the appliance, the OIC [Mr McNally] initially did not either open the window or door to allow me to speak to him, and had to be prompted to do so. I handed over tea to the crew and was then quite abruptly addressed by the OIC, who demanded to know why he was sent to the incident as he felt it was a waste of time and that one man could quite easily deal with the situation. At this point, I pointed out to the OIC the consequences of the Brigade not being in attendance, but as it was quite clear that he was not prepared to willingly take part in any Fireground operations, I instructed him to return to his Station when the crew had finished their hot drinks.

Approximately 15 minutes later, I tried on three occasions to contact CO4 appliance by radio on Channel 10, and received no response. I checked with the crew of C12 [Armagh] Station and they confirmed that they could hear my transmissions. Sometime later a crew member from CO4 [Lurgan] appliance approached by staff car and asked what if I was trying to contact their appliance? I instructed him to inform his OIC to return his appliance to CO4 [Lurgan] Station. It then became quite apparent to me that the OIC was deliberately ignoring my transmissions.

At approximately 0830 hours the following morning, I was informed by Brigade Controls that C042 appliance did not have it’s full complement of hose. I can confirm that at no time did the OIC of CO4 appliance advise me that he had not replenished his hose supply on the Fireground. Had he done so, I would have arranged for additional hose to be provided for his appliance.

I feel this Officer has not acted in accordance with his rank and responsibilities on the Fireground and that this matter should be brought to his attention.”

11. We are satisfied that this Minute was written on 17 April 2000.

12. According to a Minute dated 18 April 2000, Mr Johnston, in his capacity as an Assistant Area Commander of Southern Command wrote to Mr McKay in the following terms:-

“Please attached Minutes received from [Mr Moynes] and [Mr Hobson] regarding [the claimant], which are self-explanatory.

I strongly believe that Leading Fire Fighter McNally has a serious attitude problem and in the first instance he should be spoken to by his Officer-in-charge (Divisional Officer Kennedy) and if there is a [recurrence] he should be disciplined.”

13. We are satisfied that the relevant memo was sent by Mr Johnston on or soon after 18 April 2000.

14. In the course of his oral testimony, Mr Johnston told us that his belief that the claimant had a serious attitude problem was based entirely on the contents of the Hobson and Moynes Minutes. We accept the accuracy of that testimony.

15. Accordingly to a minute which purports to have been written on 15 May 2000, the then Area Commander, Mr Louis Jones, in response to Mr Johnston’s Minute, sent the following Minute to Mr Kennedy:-

“I attach herewith Minutes from Station Officer Moynes and Sub-Officer Hobson in respect of the actions of the above individual which are self-explanatory.

It would appear that the relatively simple instructions given by Station Officer Moynes were not carried out and that the attitude of Leading Firefighter McNally leaves a lot to be desired. In addition, it is not for a Junior Officer to question the instructions he has been given. Junior Officers are expected to lead by example and clearly this has not been the case on this occasion.

I view this matter with great concern and I would therefore ask you to address the matter at station level in the first place, by speaking to Leading Firefighter McNally and leaving him in no doubt as to both my and the Brigade’s expectations of him in the future.

Please confirm that this has been carried out.”

16. According to a Minute purported to have been written by Mr Kennedy on 1 June 2000, Mr Kennedy responded to the Jones Minute in the following terms:-

“As instructed by you, I interviewed Sub Officer McNally on 23^rd May 2000. The interview commenced at 1815 hours and lasted until 1915 hours. I made the Sub Officer aware of the contents of the reports from Station Officer Moynes and Sub Officer Hobson. He said that he was most upset about these reports and that whereas he would agree some of the comments mentioned were definitely said by him, they are being quoted [out of] context and were made in a light manner.

I informed him that he was duty-bound to carry out all orders issued by a superior Officer on the Fireground without question or sarcastic comments and that any deviations would not be tolerated. I went on to advise the Sub Officer that his attitude would have to improve and show more respect for Senior Officers.

I left the Sub Officer knowing that he had to improve and that his progress would be monitored.”

17. We are satisfied that the 1 June memo was drafted, signed and sent by Mr Kennedy on or about 1 June 2000.

18. On 18 July 2006, the claimant was a temporary Station Commander posted in Portadown HQ. While there, he came upon a copy of an earlier draft (dated 3 May 2000) of the Minute which Mr Jones subsequently sent on 15 May 2000.

19. In reality, Mr Kennedy had never interviewed the claimant, and had never informed him of the content of the April/May 2000 correspondence which has already been referred to above.

20. When the claimant became aware of the content of the 3 May 2000 Minute, he asked to see his file. After various delays, he saw it on 7 September 2006. Copies of the McGeary’s correspondence were on the file when he saw it.

21. When he discovered the allegations and details of the supposed disciplinary and interview, it totally devastated him and reduced him to tears.

22. In the following weeks he became increasingly depressed and could see no way of continuing in his job. He decided to resign and tendered his written resignation to the then Area Commander, Mr Gough, on 21 September 2006. Mr Gough refused to accept the claimant’s resignation.

23. According to the first religious/political discrimination allegation, Mr Hobson told lies, in his minute of April 2000, in relation to the claimant’s conduct at the McGeary’s fire. We have concluded that this allegation is factually incorrect, for reasons, and because of considerations, which are set out below.

24. The claimant acquits Mr Moynes, in relation to the latter’s minute of April 2000, of any sectarian or political bias. Yet, in his minute, Mr Moynes complains of the claimant’s uncooperative and disrespectful attitude. The Moynes allegations are cast in quite similar terms to the Hobson allegations. The Moynes allegations tends to corroborate the Hobson allegations, although the Moynes allegations relates to different events from the events described in the Hobson allegations. Two people, on the same night, in the same context, found the claimant to be uncooperative and rather disrespectful. The claimant says that he was neither uncooperative nor disrespectful, either to Mr Hobson or Mr Moynes, on the night in question.

25. We are satisfied that the claimant has an assertive “no-nonsense” personality. As he accepted in his evidence, he did not see any need for the Lurgan fire tender to be present at the scene of the McGeary’s fire (which was in the latter stages, having burned already for several days).

26. The claimant asserts that his version of events is corroborated by the witness statements of Mr White, Mr Gordon and Mr Judge. However, the corroborative effect of those witness statements is slight, because of the following considerations. Their witness statements were drafted by the claimant himself. They were drafted in identical terms. They were signed approximately seven years after the event. All three men simply stated that they have ‘no recollection’ of the relevant incident.

27. The fact that they stated in their witness statements that they had no recollection of the incident is a factor which is not strongly supportive of the claimant’s position. However, there is nothing surprising about those particular individual having ‘no recollection’ in 2007 about the interaction between the claimant and Mr Hobson, because nothing much happened between them.

28. It is true that Mr Hobson refers to “insubordination” in the last line of his Minute of April 2000. However, earlier in the Minute, when he describing the behaviour actually complained of, he does not state that the claimant has blatantly and directly refused to obey an order. Instead, the claimant “complained” “was not very happy” and stayed in the appliance totally ”ignoring“ anything that Mr Hobson had “asked” the claimant to do. So, according to the Hobson Minute, the claimant ignores, as opposed to refusing; and the things he ignores are things he was asked (as distinct as being ordered) to do.

29. Mr Hobson was the Officer-in-Charge of the incident. He also happened to be a retained (part-time) fireman, while the claimant was a whole time Officer. Mr Hobson was sensitive to that difference of circumstances between them, as is indicated in the last paragraph of the Hobson Minute. The general thrust is of annoyance about perceived “disrespect” for a relatively senior Retained Officer.

30. According to the Hobson Minute, the claimant complained to him that the Lurgan fire crew should not have been directed to attend the fireground. According to the Moynes Minute, later on that evening, when the claimant was speaking to Mr Moynes, he “ ... demanded to know why he was sent to the incident as he felt it was a waste of time and one man could quite easily deal with the situation”.

31. In some important respects, there is a consistency between the pattern of the behaviour described in the Hobson Minute and that which was described in the April 2000 Moynes Minute.

32. There were some significant differences between the version of events set out in the oral testimony of Mr Hobson on the one hand and that provided in the oral testimony of Mr Moynes on the other hand. However, they were giving evidence some nine years after the event. In that situation, there is nothing unusual about variances in people’s recollections.

33. In his Submission, the claimant correctly pointed out that Mr Moynes demonstrated his quick temper when he was under cross-examination by the claimant. However, we have also observed the claimant and Mr Hobson, while each was giving evidence. In our view, both men are assertive individuals who are unlikely to be very flexible in response to a differing point of view.

34. We are satisfied, that in the working relationship between Mr Moynes and Mr Hobson, Mr Moynes was the dominant personality. Furthermore, he was superior in rank to Mr Hobson.

35. It is clear from the correspondence between Area Commander Jones and Divisional Officer Kennedy (in May and June 2000 respectively), that the more senior officers within the Service were at that time treating the case as one of a “bad” attitude (as distinct from one of insubordination). So they clearly interpreted the Hobson/Moynes issues as being issues relating to sullenness and lack of co-operation.

36. The main thrust of the second allegation of religious/political discrimination is as follows. According to the claimant, the year 2000 McGeary’s correspondence was forged and/or was not written and sent until much later.

37. In his Submission, the claimant has narrowed this allegation to cover only an allegation that the Kennedy memo was forged.

38. So the claimant now accepts that Mr Hobson wrote the “April 2000” minute in April 2000; that Mr Moynes wrote the “April 2000” minute in April 2000; and that Mr Johnston wrote the “18 April 2000” minute on 18 April 2000.

39. However, the claimant invites us to believe that Mr Jones has lied to us when he told us that he sent the memo of “15 May 2000” to Divisional Officer Kennedy on that date. Also, according to the claimant, the memo which purports to be from Divisional Officer Kennedy, dated “1 June 2000” was not sent at that time, or at all. We reject those factual contentions. We are satisfied that the 15 May memo was signed and sent by Mr Jones to Mr Kennedy during the month of May 2000. We are also satisfied that the “1 June” memo was sent by Mr Kennedy to Mr Jones on or about that date.

40. Mr Jones testified on oath that he had sent the memo of “15 May” to Mr Kennedy at that time. We are satisfied, having noted his manner and demeanour of giving evidence, that his evidence in that respect was truthful evidence.

41. At paragraph 9 of the Submission, the claimant asserts that the signature on the “Kennedy” memo of 1 June 2000 has been forged. He has asked us to compare this allegedly forged signature with the “10 legitimate signatures contained in [Mr Kennedy’s] vehicle log book”. We are not qualified to identify the difference between a genuine signature and a forgery.

42. We accept that, by the time the claimant’s personal file was produced at this hearing, there had been substantial alterations made to it, as compared with the file as it stood in September 2006 (when the claimant first obtained access to the file). However, we accept that re-organisation of the file was done with a view to making the file more accessible for litigation purposes, and that there is no sinister aspect to those changes.

43. At paragraph 11 of the Submission, the claimant refers to “ ... the manifest ‘doctoring’ of this paperwork to remove the handwritten annotations of Mr Jones in the margins indicating his instructions to have this paperwork placed on the claimant’s file”. We reject that suggestion. Mr Jones no doubt annotated the version of the Johnston memo of 18 April 2000 which he received, whereas the copy of that memo which Mr Johnston retained will not have had the Jones annotation endorsed upon it.

44. At paragraph 12 of the Submission, the claimant says that Mr Kennedy was chosen as the fictitious recipient of the memo that never was because Mr Jones knew that Mr Kennedy was going to retire before the year of 2000. We reject that suggestion. Mr Kennedy was the appropriate recipient of any such memo, because he was the claimant’s immediate line manager at that particular time.

45. At paragraph 13 of the Submission, the claimant seeks to persuade us that there was delay and obstruction on the part of the Service in complying with the claimant’s summer 2006 request for access to his personal file. He says this delay and obstruction is evidence in favour of the proposition that the “Jones/Kennedy” correspondence was a fabrication.

46. We accept there was delay in dealing with the claimant’s request. We also accept that the claimant’s access request caused some apprehension among some Officers of the Service. However, that was because applications for access to personal files are relatively rare and, because the claimant had previously been involved in acrimonious disputes with the Management of the Fire Service.

47. According to the Jones/Kennedy correspondence of May and June 2000, the claimant was interviewed by Mr Kennedy on 23 May 2000, at Lurgan Fire Station, for exactly one hour; and, in the course of that interview, he was informed of the complaints which had been made against him, and was informed about his future conduct. It seems unlikely that a meeting on such a topic would last so long. It seems unlikely that such a meeting would have a duration of precisely 60 minutes.

48. The claimant has said that he was not interviewed by Mr Kennedy about the McGeary’s allegations, on 23 May 2000, or any other date. Furthermore, he told us that he was unaware that any such allegations had been made until they came to his attention (during the summer of 2006) in the manner already mentioned above.

49. We are satisfied that the claimant’s evidence in those respects is truthful evidence. We are satisfied that he was never interviewed by Mr Kennedy about the McGeary’s allegations. We are also satisfied that he did not know about those allegations until the summer of 2006.

50. Sadly, Mr Kennedy has, since the date of the alleged interview, died.

51. We are satisfied that Mr Moynes told the truth when he told us, during the course of his testimony, that, some weeks after the incident, Mr Kennedy came to Mr Moynes’ office and told him that he had spoken with the claimant at Lurgan Station about the McGeary’s allegations on the previous evening.

52. On the alleged fabrication of the Jones/Kennedy correspondence, we were faced with four scenarios. First, the whole correspondence (beginning with Hobson and ending with Jones/Kennedy) may have been concocted. We reject that possibility, because we believe the evidence of the respondent’s witnesses on this matter, and because such a scenario is implausible. Why should so many people take such risks for the purpose of achieving a disadvantage to the claimant which was likely to be quite limited? The second scenario is that the claimant was indeed spoken to by Mr Kennedy in a manner consistent with the content of Mr Kennedy’s Minute of 1 June 2000. We also reject that option. We are satisfied that the claimant did not know of the McGeary’s allegations until the summer of 2006. At that stage, he clearly was very upset and he did indeed attempt to resign from his post. We are satisfied that his evidence in these matters is truthful evidence. The third scenario is that Mr Kennedy did not ever speak to the claimant, notwithstanding the terms of his minute of 1 June 2000 and that, instead, anticipating that the task would have amounted to too much trouble (given his pending retirement) Mr Kennedy submitted the minute of 1 June 2000 simply to ensure compliance with the direction of Mr Jones, in the belief that nothing would come of it. That scenario has its difficulties also. Mr Kennedy could not have ensured that the memo would not have surfaced at some stage in the future (as indeed it has). However, this third scenario is a scenario which is compatible with the evidence of Mr Jones and also with the evidence of the claimant. The claimant is an individual who tends to take things to heart. Mr Kennedy knew him well. He knew that, trouble, upheaval and upset would be inevitable by-products of any conversation between himself and the claimant about this matter. He knew that he (Mr Kennedy) would shortly be retiring. He knew that a memo to Mr Jones would keep Mr Jones happy, would keep the claimant happy (because the claimant would know nothing about there being a problem), and would avoid unseemly wrangles. This scenario is the most plausible of the four options which seem to be available in relation to this controversy.

53. The fourth scenario is that Mr Kennedy did indeed carry out the relevant discussion with the claimant, but the claimant has genuinely blocked this matter from his mind, because of health problems. We reject that scenario as the least plausible of the four option. As a result of observing the claimant over the duration of this lengthy hearing, we are satisfied that his state of health is far from perfect. However, we have seen nothing in the behaviours of the claimant which would indicate that, in the year 2000, he was not capable of recognising whether he was being criticised on account of his conduct at McGeary’s.

54. We are sorry that the resolution of these proceedings has necessitated a determination on our part in relation to the acts and omissions of the late Mr Kennedy. In this connection, we wish to add the following. First, on both sides of the case, witnesses made clear their respect for Mr Kennedy and for the valuable work which he had done for the Service. Obviously, the misleading nature of the Kennedy memo cannot be defended. However, from a human point of view, it was understandable that Mr Kennedy thought that the pragmatic course of action was to pacify the bosses, while leaving the claimant in blissful ignorance. (Like Mr Kennedy, we think that no good would have come from confronting the claimant, at a June 2000 meeting, with the Hobson/Moynes allegations, although the Service was perfectly entitled to do so.)

55. The third allegation of religious/political discrimination is that there was a failure to promptly notify the claimant of the McGeary’s allegations, and that this failure occurred on the ground of religious belief/political opinion.

56. As already indicated above, the claimant was not informed in 2000 of the McGeary’s allegations. However, the person who was solely responsible for the failure to inform him was Mr Kennedy. The claimant has, realistically and properly, accepted that, in relation to any relevant acts or omissions, Mr Kennedy was entirely unaffected by any relevant religious or political bias.

57. Allegation 4 is that the Service’s year 2000 response to the McGeary’s allegations was inappropriate and unfair.

58. We consider Allegation 4 to be factually well-founded in some respects, but not to be factually well-founded in some other respects.

59. First, it was unfair to treat the Moynes and Hobson allegations as being proven, without first asking the claimant for his version of events. The Johnston Minute of April 2000 assumes that Mr Moynes and Mr Hobson must be correct in their view of events. So does the Jones Minute of May 2009.

60. However, nothing very bad was going to happen to the claimant. He was going to be spoken to sternly by his line manager. He was going to be told that his behaviour had caused annoyance among the Senior Management of the Service. He was going to be told that he needed to ‘wise up’.

61. The claimant says that in reality he was being accused of insubordination. (He points out that insubordination at a fireground is a very serious matter within the Service, for quite understandable reasons.) Some support for that point of view is to be found in the evidence of Mr Jones in these proceedings because, at paragraph 8 of his witness statement, Mr Jones refers to the claimant’s behaviour as ‘insubordinate’ behaviour. It now suits the claimant to classify the subject-matter of Mr Hobson’s complaint as ‘insubordination’, because he makes the point that insubordination is a very serious matter and should therefore (if the Service was being open and consistent) have been the subject of formal disciplinary proceedings. It now, in some ways, suits the Service to exaggerate the seriousness of this conduct complained of in the Hobson and Moynes memos, so that the Service can present itself as having been very lenient in the way in which it approached the alleged misbehaviour of the claimant.

62. However, the reality is that the specific conduct (by way of acts and omissions) which was described in the Hobson and Moynes memos related to the claimant’s attitude and cooperativeness (as distinct from relating to his deliberate and blatant refusal of a direct order).

63. That point is supported by the tone and focus of the Kennedy Minute of 1 June 2000, which talks about the need to carry out orders “ ... without question or sarcastic comments ... “.

64. In our view, there was nothing unfair about Mr Hobson or Mr Moynes, or both of them, writing to Mr Johnston to complain about the attitude and approach of the claimant at the McGeary’s fire; we are satisfied that both of them genuinely believed in the appropriateness of the complaints which they made. And there was nothing unfair about Mr Johnston recommending that the complaints should be discussed with the claimant on an informal basis. There was nothing wrong with the instruction of Mr Jones, to Mr Kennedy, to discuss the complaints with the claimant on an informal basis.

65. However, in his May 2000 memo, Mr Johnston assumes that the claimant is guilty of inappropriate conduct, before the claimant has been given an opportunity to explain his side of the story and, in his memo of May 2000, Mr Jones makes exactly the same assumptions (that the claimant has been guilty of inappropriate conduct) without first having arranged for the claimant’s side of the story to be considered. That was unfair conduct on the part Mr Johnston, and on the part of Mr Jones.

66. Of course, if the meeting with Divisional Officer Kennedy had really taken place, the claimant would have had an opportunity, at that meeting, to inform Mr Kennedy of the true position in relation to the McGeary’s allegations. However, he would have been doing so in circumstances in which Mr Johnston and Mr Jones, in their respective memos, had already condemned his conduct.

67. So why did they do it?

68. The May memo from Mr Jones to Mr Kennedy has already been quoted above. The final paragraph of the Jones memo of 15 May 2000 asks Mr Kennedy simply to “ ... confirm that [the contemplated interview with the claimant] has been carried out”. The claimant draws our attention to the fact that there was an earlier draft of that memo and that, in that draft, Mr Jones was going to require Mr Kennedy to “ ... forward to me a report of the interview as soon as possible”. According to the claimant, this shows that Mr Jones, along with other co-conspirators, had initially planned to discipline the claimant. We reject that suggestion. Even in the earlier draft, it is contemplated that, as a result of the interview the claimant will be left “ ... in no doubt as to both my and the Brigade’s expectations of him in the future”. So, even the earlier draft was not contemplating that the matter will be taken further (by way of disciplinary proceedings).

69. In the year 2000, the Fire Services (Discipline) Regulations (Northern Ireland) 1985 (‘the 1985 Regulations’) were in operation. The 1985 Regulations had been made under Article 9 of the Fire Services (Northern Ireland) Order 1984. In our view, there seems to be a respectable argument, at the very least, that the 1985 Regulations set out an exhaustive framework in respect of disciplinary action against fire-fighters. However, the Department of the Environment (Northern Ireland) issued guidance in December 1985 in relation to the 1985 Regulations. According to that guidance, the application of the Regulations did not preclude the taking of “informal disciplinary action”. According to paragraph 6 of the Guidance:-

“Where appropriate, informal oral cautions should be used for the purpose of advising offending members that repetition or continuance of such misconduct will result in action being taken under the Disciplinary Regulations.”

70. We are satisfied that, in requiring Mr Kennedy to have the relevant ‘interview’ with the claimant, Mr Jones was implementing paragraph 6 of the Guidance.

71. Against that background, we are satisfied that the decision to treat the Hobson/Moynes complaint as a matter for “informal” action was unaffected by any relevant religious or political bias.

72. Why did Mr Johnston and Mr Jones approach this issue as though the claimant was already guilty of the behaviour which formed the subject-matter of the Hobson and Moynes allegations? Was it because of sectarian or political bias? We are satisfied that it was untainted by either of those biases. We so satisfied for the following reasons, and against the following background. First, both Mr Johnston and Mr Jones told us that their behaviour in relation to the McGeary’s allegations in the year 2000 was unaffected by political bias or religious bias. Having carefully considered the manner and demeanour of each of them (in their roles as witnesses), and having considered their evidence in the context of the evidence in the case as a whole, we believed that testimony.

73. Secondly, having seen and heard much evidence emanating from the senior management of the Service, we are satisfied that, at all material times, the prevailing management culture within the Service was relatively rigid (as distinct from flexible) and was relatively autocratic. We think that these cultural patterns are the explanation for the failures, on the part of Mr Johnston and Mr Jones, to notice that the matters complained of in respect of the claimant could not properly be regarded as proven against him unless and until he had had an opportunity to address those allegations.

74. During this hearing, one of the factual issues under discussion was whether or not the claimant had been accused, wrongly, of responsibility for the fact that, when the relevant fire appliance (the appliance for which the claimant was responsible) was returning the short distance from Moy Road, Armagh to Lurgan, it did not have its full complement of hose. However, the Hobson memo of 14 April makes no mention of that matter. Although the Moynes memo does refer to it, the focus is on explaining why Mr Moynes is in no way blameworthy in respect of the relevant appliance’s lack of hose. (Incidentally we are satisfied that the reference in the second paragraph of the memo of 17 April to ‘the Wholetime Officer’ is a reference to another individual, not a reference to the claimant, who was on the night shift on that date.)

75. We accepted that an ‘informal caution’ pursuant to the 1985 Guidance would be of very limited value unless it was noted in writing and, unless the note was put on the relevant perpetrator’s file. Therefore, it was normal and appropriate for a note of any informal action to be put on the relevant personnel file.

76. Allegation 5 is that the Service failed to conduct a full and proper investigation in relation to the claimant’s 2006 grievance.

77. We are satisfied that the claimant is correct when he tells us that the Service failed to conduct a proper investigation in relation to his grievance. At every stage of that grievance process, the Service failed to address many of the factual issues raised by the claimant; failed to carry out an adequate investigation (even within the bounds of proportionality and practicality, which the Service would always be entitled to take into account); failed to resolve factual conflicts (between the case being made, during the course of the grievance, by the claimant on the one hand, and the case being made by the alleged perpetrators on the other hand), and failed to provide clear reasons for rejecting the complaints of religious discrimination. Instead, at every stage of the process, the Service avoided engaging with the religious and political discrimination aspects of the claimant’s grievance, which were at the heart of his grievance.

78. In making those criticisms of the Service, we do not lose sight of the fact that the claimant had raised many incidents of mistreatment; that many of the allegations which he raised related to a relatively distant past; and that the style in which the claimant raised his grievance was a style which was combative and challenging.

79. Nevertheless, the Service had committed itself, through its internal policies, to the proposition that internal grievances will be properly addressed. This grievance was not adequately addressed.

80. What were the reasons for those shortcomings? Was religious or political bias a factor?

81. We are satisfied that such biases had no effect on the acts and omissions of the Service which lead to the relevant grievance process shortcomings.

82. Instead, we are satisfied that the Service failed to adequately deal with the claimant’s religious/political discrimination grievance for only two reasons, which are as follows.

83. First, from the moment the claimant went into writing with allegations of religious and political discrimination, all concerned within the Service were, rightly, convinced that the matter would end up in the Fair Employment Tribunal. Therefore, all actions and omissions taken in the course of the grievance process, by Service decision-makers, were taken with one eye on the future or impending Fair Employment Tribunal proceedings. In other words, in connection with the grievance, the relevant adjudicating officers acted defensively, as distinct from being concerned to find out the truth. Secondly, as a result of comments which were made by the various senior witnesses of the Service, both in documentation which has been presented in evidence to the Tribunal, and in oral testimony at the liability hearing, it is clear to us that the Service likes to operate on the assumption that any sectarian tensions within the wider society cannot in any way manifest themselves within the Service’s workplaces. (This assumption seems to be based upon the rather unrealistic proposition that, because the work of the Service is so vital to the wider society, nobody will bring the wider society’s communal tensions into the Service workplaces.)

84. The victimisation allegation is as follows. According to the claimant, when his internal grievance was heard by a sub-committee of the Board of the Service, Mr Lammey made unfair remarks and/or asserted that the claimant had made inaccurate statements (in the context of the grievance), and he did these things because the claimant has made the allegations of religious and/or political discrimination which are the subject-matters of Case 1 and/or Case 2. We consider that allegation to be factually well-founded.

85. During the hearing of the claimant’s grievance by the sub-committee of the Board, Mr Lammey read out a written statement, in which he sought to refute the allegations made by the claimant. However, the statement includes additional commentary:-

“Mr McNally went to considerable lengths at the previous Hearing, to describe in great detail a number of incidents going back over 25 years. He has been attempting to link these statements to prove, in his own words, that there has been an orchestrated campaign of sectarian harassment and discrimination against him since he joined Northern Ireland Fire & Rescue Service in 1982.

As you would, expect as the Chief Officer of the day, I totally reject Mr McNally’s allegations against Northern Ireland Fire Brigade and now Northern Ireland Fire & Rescue Service. Some of the statements made by Mr McNally at the previous Hearing were blatantly untrue and verging on slanderous against some of the Officers involved.

As you found out towards the end of the previous Hearing, this case has been taken by Mr McNally onwards to a Fair Employment Tribunal. NIFRS Officers and myself have been at pains to treat this matter as the culmination of an internal grievance but, as you are now aware, no matter what decision you come to today, this case now remains at a Fair Employment Tribunal and is in the hands of NIFRS Solicitors. Although I understand that in recent days the LRA have been involved to try to broker a compromise to the case.”

86. Later in that statement, Mr Lammey made the following comments:-

“In or around 1994, Mr McNally told Members about a social function outside of work which resulted in him being convicted of common assault. Despite Mr McNally’s long-winded explanation for his behaviour during this incident, the simple facts remain stark. He was convicted of common assault in a court of law and it is my opinion that he was lucky not to have been dismissed from the Fire Service; as it was, he was issued with a Final Written Warning.

Fire-fighters being convicted of assault are not an every day occurrence in our organisation and I can understand the thinking of Officers in those days, in that they were obviously keeping a close eye on Mr McNally.”

87. The statement went on:-

“We now turn to the incident at Saracens in Lurgan. Records show that Divisional Officer Peter Craig, now Assistant Chief Fire Officer Craig, appointed Divisional Officer Eoin Doyle, now Area Commander Doyle, to investigate allegations that Mr McNally had made deliberate and false overtime claims. This was fully investigated under the Fire Service Discipline Regulations at the time. Mr McNally makes the allegation that Peter Craig deliberately planned the entire episode and made it up in an attempt to harass or discriminate against him. When I look at the calibre of Officers involved in this investigation -Assistant Chief Officer Craig, Divisional Officer Walter Johnston and most importantly Area Commander Doyle - I find Mr McNally’s allegations absolutely preposterous. In particular the 3 Officers are of the highest calibre, never mind the fact that Eoin Doyle is himself a Roman Catholic. Why would he want to discriminate against Mr McNally?”

88. The statement then deals with another of the claimant’s allegations, this time surrounding the issue of assessment centre results. The statement comments as follows:-

“I don’t propose to reopen this issue again, save to say that this is another blatant attempt to open up an incident that is now closed and make further allegations against NIFRS Officers, namely – Assistant Divisional Officer Paul Smith, Station Officer John Wilson, Station Officer Maurice Rafferty (also a Roman Catholic Officer) and Mrs Hilary Mawhinney in the Human Resources Department. Members, these are all Officers of the highest integrity who we all know very well; that is why, as Mr McNally’s story continues, it becomes more and more incredulous and unbelievable.”

89. The statement continued:-

“To conclude Members, Mr McNally embarked upon this Grievance after he saw a note on the computer system in Portadown. He has sought to link a series of incidents, some of them obviously only in his own mind going back over 25 years. He has sought to link all of these incidents in some way to make serious allegations against Northern Ireland Fire & Rescue Service. More importantly Members, he has sought to [impugn] and make out to be liars a series of very Senior Officers within Northern Ireland Fire Brigade and Northern Ireland Fire & Rescue Service : Uniformed Officers, Non-Uniformed Officers, Protestant Officers and Roman Catholic Officers. He seeks to use all of his wild allegations to attempt to prove that there has been a 25 year campaign against him because of his religion.

What we have to remember Members –is this an individual who is fond of lifting his fists when he doesn’t get his way, has been found guilty in a court of law of assault and obviously has come to the attention of Officers over the years.

I find his allegations preposterous and I would suggest that the only thing that you can do is not to uphold his Grievance. Obviously, he will have another day to air all of this when we get to the Fair Employment Tribunal.”

90. The first objectionable aspect of this statement is that Mr Lammey is implicitly inviting the committee not to engage with the discrimination allegations because, as he points out, the matter will ultimately be adjudicated upon by the Fair Employment Tribunal. However, it is not open to an employer to sub-contract the resolution of internal grievance to this Tribunal. Under the Service’s internal policies and under the legislative system introduced by the Employment (Northern Ireland) Order 2003, there is an obligation to make good faith and proportionate efforts to internally adjudicate upon allegations of religious and political discrimination.

91. Mr Lammey struck us as an individual who is conscientious and serious-minded. No doubt, at any given time, there will be many competing priorities and burdens upon the chief officer of a major public authority such as this Service. However, on this occasion, in our view, Mr Lammey erred.

92. This claimant made many allegations against many people within the Service. At this liability hearing, we were asked to adjudicate only in respect of some of them. We found none of them to be well-founded.

93. No doubt, if a Senior Officer of the Service believes relevant allegations to be erroneous, there is a natural tendency to be irritated. However, it is precisely because of that natural tendency that the law, through the victimisation discrimination provisions of the 1998 Order, protects complainants, even misguided complainants, against retaliation.

94. Mr Lammey was entitled to draw attention to the implausibility of aspects of the claimant’s allegations, and to do so clearly and robustly.

95. However, we consider that, in various respects, the Lammey statement reeks of anger and retaliation. First, the strong implication from various parts of the statement is that Mr Lammey is angry because the claimant has made allegations of religious discrimination against decent and honest people:-

(a) According to the statement, the allegations are ‘blatantly untrue’ and ‘verging on slanderous’.

(b) The claimant has sought to “ ... make out to be liars a series of very Senior Officers ... ”.

(c) He has made “ ... wild allegations” ... .”

(96) Secondly, the statement gratuitously refers to, and dwells upon, an act of indiscipline which the claimant carried out 14 years before the date of the statement. In our view, this was a gratuitous reference, designed to humiliate the claimant.

(97) Mr Lammey clearly regarded the allegations as an affront to the entire Service. In the statement, he refers to the first of the claimant’s religious/political discrimination allegations in the following terms:-

“Mr McNally started his catalogue of allegations against us all when, as a Retained Fire-fighter in Banbridge, he alleged that ... .” [our emphasis]

(98) In our view, for those reasons, and against that background, the statement constitutes unreasonable treatment of the claimant. It seems to us to go far beyond the taking of ‘honest and reasonable’ steps in connection with proceedings or allegations. (See paragraph 39 above.) In order to convince the Board Sub-committee that the claimant’s allegations were not well-founded, it was unnecessary for Mr Lammey to castigate the claimant for making the allegations; or for him to refer, in humiliating terms, to the claimant’s disciplinary offence of so many years beforehand.

(99) In the interest of readability, and with a view to avoiding needless duplication, we have set out some additional findings of fact elsewhere in this decision.

The law

39. We now set out what we consider to be the applicable legal principles:-

1. Shamoon v Chief Constable of the RUC [2003] ICR 337 shows that “a detriment” within the meaning of Article 19 of the 1998 Order exists if, by reason of the act, or acts, complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. (See Shamoon, at paragraphs 34, 91 and 104).

(2) We accept that, in applying those criteria, it is appropriate to consider the issue from the point of view of the claimant. (See Shamoon, at paragraph 105). However, an unjustified sense of grievance cannot amount to a detriment. (See Shamoon at paragraph 35.) It is for this reason that steps honestly and reasonably taken by an employer in the defence of employment tribunal proceedings will not amount to reasonable detrimental treatment. (See Derbyshire v St Helen’s Metropolitan Borough Council [2007] 3 All ER 81, at paragraph 68.)

(3) In British Medical Association v Chaudhary [2007] IRLR 800, at paragraph 177, Mummery LJ said that:-

“It is true that the House of Lords [in Derbyshire] did not support Lord Nicholls’ formulation of the test as to whether the employer had acted honestly and reasonably. However, it reaffirmed the essential statement of law that a person does not discriminate if he takes the impugned decision in order to protect himself in litigation.”

We respectfully agree that there is nothing in Derbyshire which indicates that an employer will unlawfully discriminate merely by taking reasonable steps to protect himself in litigation. However, in our view, this is because such steps do not constitute detrimental treatment, or because such steps are not retaliatory.

Religious discrimination, political discrimination and victimisation discrimination

(4) In the context of each of the three types of discrimination complained of in this case (religious discrimination, political discrimination and victimisation discrimination), two elements of the definition of discrimination have to be satisfied. First, there must have been less favourable treatment of the claimant (in comparison with the treatment accorded to an appropriate statutory comparator). Secondly, although a prohibited ground (the ground of religion, the ground of political opinion, or by reason of the claimant having carried out a protected act, as the case may be) does not need to be the main ground for that treatment, the relevant prohibited ground must be a substantial and effective cause; it must be an important, or significant, factor. (See Igen Ltd v Wong Ltd [2005] IRLR 258, at paragraphs 35 and 37 of the judgement).

(5) In the context of the religious discrimination claim and the political discrimination claim, the provisions of Article 3(3) of the 1998 Order have to be borne in mind. Article 3(3) provides as follows:-

“A comparison of the cases of persons of different religious belief or political opinion [in the context of an employee’s religious discrimination or political discrimination claim] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

(6) The implication of Article 3(3) is that an actual statutory comparator will not be a valid statutory comparator, in the context of a religious discrimination claim, or in the context of a political discrimination claim, unless there are no important relevant differences between the circumstances of the claimant (at the time of the discrimination) on the one hand, and the circumstances of the actual comparator, on the other hand.

(7) Article 3(3) does not apply to victimisation discrimination. However, Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 provides guidance as to the identity of the appropriate statutory comparator in the context of a victimisation claim. In Khan, the claimant was a police officer who had made an industrial tribunal claim of racial discrimination. That claim had been brought against the Chief Constable. While those proceedings were pending, the claimant applied for a job with another police force. The Chief Constable refused to provide him with a reference. The claimant brought proceedings for unlawful victimisation discrimination in respect of that refusal.

(8) The respondents in Khan argued that the correct comparison was with the treatment accorded to other persons who had issued proceedings against the Chief Constable under other statutes, and argued against a comparison with the treatment accorded to those who had issued no proceedings at all. That view was rejected by the House of Lords. So Khan is clear authority for the proposition that the comparison to be made is simply between the treatment accorded to the claimant (who had done the protected act) and the treatment that had been, or would have been, accorded to other employees (who had not done a protected act); and that no other features need to be factored into the comparison.

(9) Under all three relevant types of discrimination, a claimant is free to identify a hypothetical (as distinct from an actual) statutory comparator.

(10) Shamoon shows that, in cases (like the present case) in which a hypothetical comparator is cited, it is appropriate for a tribunal to construct a picture of how a hypothetical comparator would have been treated in comparable surrounding circumstances. One permissible way of judging such a question is to see how unidentical but not wholly dissimilar cases had been treated in relation to other cases. (See Shamoon, at paragraph 81 of the decision).

(11) The judgments in the House of Lords in Shamoon highlight the fact that, when a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment. As Lord Nicholls commented, at paragraph 11 of Shamoon:-

“This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That would call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”

(12) The decision of the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 reminds us that the “less favourable treatment” element of each of the relevant definitions (the definitions of religious discrimination, political discrimination and victimisation discrimination) cannot be satisfied merely by showing that the perpetrator has engaged in unreasonable behaviour. This is because (as Lord Morison had explained when Zafar was being decided at Court of Session stage):-

“It cannot be inferred, let along presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.”

(13) However, the unreasonableness of the treatment complained of is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was accorded on a proscribed ground, or for a proscribed reason. (See Bahl  v Law Society [2004] IRLR 799, especially at paragraph 101 of the judgment. See also paragraph 51 of the judgment in Igen, where the Court of Appeal accepted that a tribunal could decide that there was a prima facie case of unlawful discrimination, mainly on the basis of the factual findings that there was unexplained unreasonable conduct on the part of the employer.)

(14) An alleged perpetrator discriminates by way of religious discrimination or political discrimination, against a claimant, if he/she treats the claimant less favourably (than an appropriate statutory comparator) “on the ground of” religious belief or political opinion. However, an alleged perpetrator discriminates by way of victimisation discrimination against a claimant if he treats the claimant less favourably than he treats or would treat an appropriate statutory comparator and (“… does so for a reason mentioned in [Article 3(5) of the 1998 Order] …).”

(15) In our view, there is no distinction of practical importance, in the circumstances of the present case, between “on the ground of” and “for a reason”. In construing the victimisation discrimination provisions of the Sex Discrimination Act 1975, the House of Lords held that the phrase “by reason that” in the context of the definition of victimisation discrimination in the 1975 Act, means, in effect, “because”. (See paragraph 76 of the House of Lords decision in Derbyshire). In our view, the victimisation discrimination provisions of the Sex Discrimination Act 1975 are analogous to the victimisation discrimination provisions of the 1998 Order.

(16) As Lord Nicholls pointed out in Khan, at paragraph 29 of the decision:-

“Contrary to views sometimes stated, the third ingredient (by reason that) does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the Court selects one or more of them which the law regards as causative of the happening. … The phrase “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test causation is a legal conclusion. The reason why a person acted as he did is a question of fact”.

17. The effect of Article 3(6) of the 1998 Order is that a claimant is not protected, under the victimisation discrimination provisions of that Order, even if he does what would otherwise be a protected act if the relevant treatment was accorded to him “ ... by reason of any allegation made by him if the allegation was false and not made in good faith”. It has not been suggested by or on behalf of the respondents in this case that the Article 3(6) defence applies in the circumstances of this case. Furthermore, as already noted above, the 1998 Order now has to be construed in light of the requirements of the EU Employment Framework Directive of 2000. Article 11 of that Directive addresses victimisation issues and simply states the following:-

“Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

Burden of proof

17. Paragraph 1 of Article 10 of the 2000 Directive provides as follows:-

“Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

17. On behalf of the respondents, it is has not been suggested that the requirements of Article 10.1 are not applicable to victimisation discrimination.

17. Article 38A of the 1998 Order was enacted for the purpose of implementing the requirements of Article 10.1 of the 2000 Directive. Article 38A is in the following terms:-

“38A Where, on the hearing of a complaint under Article 38A, 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

2. is by virtue of Article 35A or 36 [of the 1998 Order] to be treated as having committed such an act of discrimination or harassment against the complainant,

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.”

17. In the context of the Order, “discrimination” includes religious discrimination, political discrimination and victimisation discrimination. (See Article 3(1) of the 1998 Order.)

17. The applicable legal principles in relation to the burden of proof have been analysed in Moore (see paragraph 31 above), at paragraphs 100 – 109. We adopt and apply that analysis in the circumstances of this case.

17. As was pointed out by the Northern Ireland Court of Appeal in Arthur v Northern Ireland Housing Executive [2007] NICA 25, at paragraph 31, the burden of proof provisions envisage a two-stage process, the first stage involving a requirement for the claimant to prove facts from which a tribunal could reasonably conclude, in the absence of an adequate explanation, that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the claimant. (At that first stage, it is to be assumed that there is no adequate explanation.) If the claimant satisfies all those first stage requirements (if he proves the relevant facts), the burden of proof shifts to the respondent to prove that there has been no breach of the principle of equal treatment.

17. However, as the Court explained in Arthur, a tribunal will not err in law by going directly to the second stage of the burden of proof process (and thus acting upon the assumption, in favour of the employee, that the burden of proof has indeed shifted to the employer).

Conclusions

40. Our conclusions are as follows:-

1. Allegation 1 is that Mr Raymond Hobson discriminated against the claimant, on the ground of religious belief and/or political opinion, by “fabricating” an allegation that, at the McGeary fire, the claimant had been guilty of misconduct.

2. We consider that Mr Hobson told the truth as he saw it, when he informed his superiors of his view of the claimant’s conduct at the McGeary’s fire. We are satisfied that Mr Hobson provided truthful evidence when he told us that, in complaining about the matter, he was in no way affected by religious or political bias.

3. For the sake of completeness, we should make it clear that we consider that the claimant did not bring this allegation within the relevant statutory primary time limit, but we consider that this allegation falls within the secondary time limit. (In other words, we have concluded that it is just and equitable to consider the allegation, notwithstanding the failure to bring it within the primary statutory time limit). In deciding in favour of the claimant on the “just and equitable” issue, we have had regard, in particular, to the following matters. First, the claimant could not reasonably have been expected to bring a Tribunal claim in respect of the allegation until he had seen the McGeary’s correspondence, and he did not see that correspondence until 2006. Secondly, there is a broader public interest in making sure that allegations of religious/political discrimination are addressed.

4. Allegation 2 is that correspondence in relation to the McGeary’s allegation, which appears on the face of it to have been written in mid-2000, was subsequently fabricated and in any event records untrue allegations.

5. The second aspect of Allegation 2 has been dealt with in adjudicating upon Allegation 1.

6. We are satisfied that the various memoranda, which constitute the McGeary’s correspondence, were written in mid-2000 by the people who purportedly signed them. Therefore, that aspect of Allegation 2 is factually incorrect.

7. Allegation 3 is that the claimant was not made aware of the McGeary’s allegations until 2006. That allegation is factually well founded. However, the next question is whether or not this detrimental treatment was accorded to the claimant either on the ground of religious belief or on the ground of political opinion, or on both grounds. We are satisfied that the relevant prohibited grounds had nothing to do with the omission to inform the claimant, in a timely fashion, of the allegations. That omission was the sole decision of Mr Kennedy. (See paragraph 38 of this Decision.) The claimant has realistically accepted that no relevant actions or omissions of Mr Kennedy were in any way affected by religious or political bias.

8. Allegation 4 is that the Service’s initial response (in 2000) to the McGeary’s allegations was inappropriate and unfair. We are satisfied that, in view of the Hobson and Moynes allegations, it was entirely appropriate that Mr Jones should instruct Mr Kennedy to have a discussion with the claimant about the matter. It would have been entirely appropriate for Mr Jones to have instructed Mr Kennedy to caution the claimant about the issues raised in the Hobson/Moynes allegations if, after having that discussion, Mr Kennedy had become convinced that there was merit in the Hobson/Moynes allegations. However, it was very unfair of Mr Johnston and Mr Jones to approach the relevant allegations on the basis that they must be true (at a time when the claimant had not been asked for his version of events). Nevertheless, those shortcomings are not affected by religious or political bias. We are satisfied, on the balance of probabilities, to that effect, because we believed the denials of religious and political discrimination which Mr Johnston and Mr Jones made during the course of their testimony in these proceedings.

9. Having carefully considered all the evidence in this case, we are satisfied that, in relation to the relevant shortcomings, Mr Jones and Mr Johnston were not influenced by religious or political bias. We are satisfied that those shortcomings were the result of an autocratic and relative inflexible management style which was prevalent in the Service at the relevant time. We are satisfied that a Protestant or a unionist, if seen, at that time, as a person who was assertive or un-cooperative, would have been treated in exactly the same manner as the claimant was treated.

10. Allegation 5 is that the Service failed to conduct a full and proper investigation in relation to the grievance which the claimant initiated in 2006.

11. Allegation 5 is factually well-founded. The Service’s internal dispute resolution processes took far too long. The Service never properly engaged with the claimant’s allegations of religious and political discrimination. In many respects, and on many occasions, the Service failed, during the course of the internal dispute resolution processes, to address the evidence being presented by the claimant, and failed to make clear factual determinations.

12. However, each of the relevant decision-makers has told us on oath that he was unaffected by religious or political bias, in the context of the relevant acts and omissions. Having considered all the evidence in the case, we are satisfied on the balance of probabilities that those denials are correct.

13. We are convinced that the failure to complete the grievance procedure in a timely fashion occurred because of ordinary bureaucratic inertia and maladministration (untainted by sectarian or political bias).

14. In our view it is clear that the real reason for the other relevant failures was the unease and discomfort of the Service in addressing allegations of religious or political bias, especially against a backdrop of likely or pending Tribunal proceedings.

15. For those reasons, and against that background, we must dismiss all of the complaints of religious discrimination and all of the complaints of unlawful political discrimination.

16. The complaint of victimisation discrimination is well-founded, for the following reasons, and against the following background.

17. The claimant was sharply criticised and was humiliated in front of a sub-committee of the Board of the Service (the highest authority within the Service). That treatment was gratuitous, in that it served no useful purpose. It was detrimental treatment, in the sense that an employee, who suffered such treatment, could reasonably conclude that he had thereby been disadvantaged in the circumstances in which he would thereafter have to work. (See paragraph 39 above).

18. We are satisfied that Mr Lammey’s annoyance at the fact that the claimant had raised the allegations of religious and political bias was an important reason for that detrimental treatment.

19. We are satisfied that, if the claimant had not raised allegations of religious or political bias, but instead had raised less controversial grievances, he would not have been subjected to the relevant mistreatment.

20. In arriving at all of the conclusions which we have set out above, we have been mindful of the effect of the burden of proof provisions.

21. In the context of the religious and political discrimination allegations, in each instance, we were satisfied, on the balance of probabilities, that the relevant actions of the alleged perpetrators were in no way affected by any religious or political bias.

22. In the context of the victimisation discrimination claim, we were satisfied, on the balance of probabilities, having considered all the evidence (including evidence given by way of explanation), that the making of the claimant’s allegations (in Case 1 and 2) was an important reason for the relevant treatment.

Next steps

41. A Case Management Discussion (“CMD”) will be held at 4.15 pm on 2 July 2009, for the purpose of making appropriate procedural arrangements (including provision for discovery and for the provision of any requested additional information) in preparation for a remedies hearing. It is expected that, at that CMD, a date will be fixed for the remedies hearing.

Chairman:

Date and place of hearing: 2 - 6 February 2009;

9 - 17 February 2009;

20 March 2009

Belfast

Date decision recorded in register and issued to parties: