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Fair Employment Tribunal Northern Ireland Decisions

You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Sheridan v Euro-Car Parks Limited [2010] NIFET 113_09FET (28 May 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/113_09FET.html
Cite as: [2010] NIFET 113_09FET, [2010] NIFET 113_9FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 113/09 FET

CLAIMANT: Patrick Joseph Sheridan

RESPONDENTS: 1. Euro-Car Parks Limited

2. Chris Hall

DECISION

The unanimous decision of the Tribunal is that it finds the claimant did not suffer discrimination on the ground of religion and his claim is dismissed.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mr Kerr

Mr Ebrahim

Appearances:

The claimant appeared in person.

The respondents were represented by Mr Martin Wolfe, of counsel, instructed by Worthingtons Solicitors.

SOURCES OF EVIDENCE

1. The Fair Employment Tribunal heard evidence from the claimant and his witness Nigel Young and on behalf of the respondents from the second respondent and Les Knight. The Tribunal also received a bundle of agreed documents amounting to 160 pages, handwritten notes of a meeting and a number of legal authorities from the respondents.

THE CLAIM AND THE DEFENCE

2. The claimant claimed, on the ground of religion, direct and indirect discrimination, victimisation and harassment. The respondents deny the claimant’s claims in their entirety.

THE ISSUES

3. The legal and main factual issues for determination in the case have been identified and agreed as follows;-

Legal Issues

(i) Whether, on the ground of religious belief, the respondents treated the claimant less favourably than they treat or would treat others in circumstances which are the same or not materially different.

(ii) Whether the respondents applied to the claimant, a provision, criterion or practice which they applied or would apply equally to persons not of the same religious belief as the claimant but:-

(a) which puts or would put persons of the same religious belief as the claimant at a particular disadvantage when compared with other persons;

(b) which puts the claimant at that disadvantage;

(c) which they cannot show to be a proportionate means of achieving a legitimate aim.

(iii) Whether the respondents treated the claimant less favourably than they treated or would treat others and they did so for one of the following reasons;

(a) the claimant brought proceedings against the respondents or any other person under the Fair Employment and Treatment (Northern Ireland) Order 1998, or

(b) the claimant has given evidence or information in connection with such proceedings brought by any person or any investigation under this Order, or

(c) the claimant has alleged that the respondents or any other person has (whether or not the allegation so states) contravened this Order, or

(d) the claimant has otherwise done anything under or by reference to this Order in relation to the respondents or any other person,

or the respondents know that the claimant intends to do any of these things or suspects that the claimant has done, or intends to do any of those things.

(iv) Whether, on the ground of religious belief, the respondents engaged in unwanted conduct which has the purpose or effect of;

(a) violating the claimant’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant, and

having regard to all the circumstances, including in particular the perception of the claimant, it should reasonably be considered as having that effect.

Factual Issues

(i) What were the reasons for changing the claimant’s working pattern from Monday to Friday – 8 am to 1 pm to the following:-

Saturday 10 am to 5 pm;

Sunday 1 pm to 4 pm;

Plus three days Monday to Friday randomly rotated between;

8 am to 1 pm;

10 am to 3 pm;

12 noon to 5 pm;

(ii) Were the respondents aware from the commencement of the claimant’s employment, that he would not work on a Sunday as alleged?

(iii) Was the claimant advised that he might need to work an odd Sunday at Christmas but that would be all as alleged and if so by whom?

(iv) Whether the claimant was advised that if he didn’t work the new working pattern he would be sacked as alleged?

(v) Whether the claimant was subject to bullying, lies and discrimination because of his religious belief as alleged. If so, does the same amount to unlawful direct discrimination as outlined at Legal Issue number (i) above and/or unlawful harassment on ground of religious belief as outlined at Legal Issue number (iv) above?

(vi) Whether the claimant was subject to bullying, lies and discrimination because he helped a workmate to claim against the respondents as alleged. If so, does the same amount to unlawful discrimination by way of victimisation as outlined at Legal Issue number (iii) above?

(vii) Whether the requirement to work on a Sunday in accordance with the new working pattern amounts to direct or indirect unlawful discrimination on the ground of religious belief?

FINDINGS OF FACT

4.	(i)	The claimant, a Catholic, began employment with the first respondent on 28 April 2006 and his employment is continuing. He is employed as a patrol officer.

	(ii)	The second respondent was the national operations manager of the first respondent which supervised two car parks in Omagh, at the show grounds site and at the Dunnes Store site.

	(iii)	The claimant was employed to do 25 hours per week from Monday to Friday 8 am to 1 pm at the show grounds site.

	(iv)	The claimant indicated at the outset of his employment that he was not available to do Sunday work except coming up to Christmas and the first respondent recorded that.

	(v)	From 2006 to 2008 the claimant worked eight Sundays in December over three years.

	(vi)	The claimant’s contract provides that he might be required; to do additional hours when necessary to carry out his duties; to change the location of the work, providing the new location was within a reasonable travelling distance of his home; and that the days and times of work may be varied at the absolute discretion of the first respondent.

	(vii)	On 14 August 2008 a meeting was held in connection with a grievance raised by Mr Nigel Young, a colleague of the claimant, who worked at the Dunnes Store site. The claimant attended as his witness.

	(viii)	The grievance arose following an allegation of religious discrimination by Nigel Young, a Protestant, against the manager of Dunnes Stores, Omagh.

	(ix)	At the end of the grievance meeting the claimant was told he was being moved to the Dunnes Stores site pending resolution of Nigel Young’s grievance and Nigel Young was being transferred to the showgrounds site. In so concluding the Tribunal had regard to the following matters:-

(a) The claimant gave evidence to that effect.

(b) Nigel Young supports the claimant’s account of being required to move to the Dunnes Stores site.

(c) The second respondent denied it and said a request was made to the claimant to move.

(d) In Mr Hewitt’s letter of 3 September 2008, which set out the outcome of Nigel Young’s grievance, he accepts that a decision was made at the meeting on 14 August 2008 by the first respondent to transfer the claimant to the Dunnes site.

(e) Similarly in the outcome to the grievance appeal, set out in the letter of 26 September 2008, Mr Les Knight accepted that a decision had been made at the meeting on 14 August 2008 by the first respondent to transfer the claimant to the Dunnes Stores site.

(x)

At the meeting on 14 August 2008 the Tribunal accepts that following an exchange between the second respondent and the claimant the second respondent called the claimant a bigot. In so concluding, the Tribunal had regard to the following matters:-

(a) The claimant so alleges.

(b) Nigel Young supports the claimant’s account.

(c) The second respondent denies it.

(d) Mr Hewitt’s finding that this was not said because it was not on the audio record of the meeting was, he admitted, an error. That erroneous finding in Mr Hewitt’s letter of 3 September 2008 remained unexplained as the second respondent had not spoken to Mr Hewitt about the matter. The tape had been switched off, it appeared, so it is not clear what was the basis for Mr Hewitt’s finding.

	(xi)	On 18 August 2008 the claimant wrote a letter of complaint because he was required to move to the Dunnes Stores site. His complaints were that the required transfer was; because he was a Catholic, which he regarded as religious discrimination; the result of bullying, ie there was no discussion of the transfer; and because the second respondent called him a bigot.

	(xii)	On 21 August 2008 the second respondent had a meeting with the claimant in the car park as a result of which the claimant was suspended on full pay because he refused to move to the Dunnes Stores site. However, that suspension was rescinded the same day.

	(xiii)	The first respondent’s decision to transfer the claimant to the Dunnes Stores site was withdrawn on 22 August 2008.

	(xiv)	The claimant’s grievance was heard on 28 August 2008 by Jeff Hewitt. The grievance was not upheld.

	(xv)	On 10 September 2008 the claimant appealed.

	(xvi)	On 23 September 2008 the claimant’s grievance appeal was heard by Mr Les Knight. The grievance was not upheld and the claimant was informed by letter of 26 September 2008.

	(xvii)	The showground site in Omagh was managed by a firm called DTZ.

	(xviii)	On 11 December 2008, DTZ contacted the first respondent to have the shift pattern rotated so that the presence of the patrol officer would be less predictable and that Sundays would be covered from 1 pm until 4 pm.

	(xix)	In an e-mail of 30 December 2008, from Sandra Cadman, the first respondent’s human resources manager, to Katrina Speariett, the area operations manager, Ms Cadman expressed the opinion that the change to the claimant’s contract was a fundamental change to his working pattern, were he to be required to work on Sunday. She thought that it could be considered as a redundancy and to impose new working hours on the claimant was a gamble. She also felt that it could lead to the claimant walking out and claiming constructive dismissal due to a breach of contract.

	(xx)	By letter dated 6 January 2009, Katrina Speariett notified the claimant of the proposed changes to his hours including working on Sunday from 1 pm to 4 pm.

	(xxi)	By letter of 22 January 2009 the claimant sought a meeting to discuss the changes to his contract which he characterised as a breach of contract.

	(xxii)	The first respondent treated the claimant’s letter of 22 January 2009 as a grievance and arranged a grievance hearing for 5 February 2009. The second respondent chaired the grievance meeting and was responsible for making the decision.

	(xxiii)	At the grievance meeting the claimant contended that the change of his hours, requiring him to work on a Sunday, amounted to a breach of contract. He further indicated that he did not work on a Sunday on religious grounds. The second respondent stated that it was a breach of his contract.

	(xxiv)	The second respondent wrote to the claimant by letter of 12 February 2009 rejecting his grievance. He stated, in his findings, that the claimant’s contract had not been breached. He relied on the term in the claimant’s contract which gave the first respondent absolute discretion to vary the times and days when the claimant worked. He further rejected the claimant’s argument that he did not work on Sunday and stated that he had done so in 2008.

	(xxv)	On 18 February 2009 the claimant appealed. In his letter of appeal he referred to Sunday as a day of worship and also stated that he is a Christian.

	(xxvi)	On 25 February 2009 the second respondent sought confirmation from DTZ that it wanted to change the hours when the site was covered by a patrol officer. By e-mail of 25 February 2009, DTZ confirmed that it wanted the hours changed and suggested that were this was not a successful change then the contract with the first respondent might be at risk.

	(xxvii)	On 9 March 2009, Les Knight heard the claimant’s appeal. The claimant explained that on a Sunday he not only attended church but also did voluntary work by visiting a number of people in the afternoon. Mr Knight explored with him if he wished to reduce his hours but the claimant considered that not financially viable. He also asked the claimant if he would be willing to make up his hours at the Dunnes Stores site if something could be worked out but the claimant was not attracted to this suggestion. Mr Knight also asked if the rate of pay were better would that make the Sunday work more attractive to which the claimant answered no.

	(xxviii)	On 11 March 2009, Mr Knight wrote to the claimant rejecting his appeal. He stated that there was not any breach of the claimant’s contract as the terms of the contract gave the first respondent the right to vary the times and days when the claimant worked. He also rejected that the first respondent was singling the claimant out on religious grounds. He indicated that the change of hours arose because of the client’s requirement and not by any action based on the claimant’s religious belief.

	(xxix)	On 12 March 2009, following a covert inspection of the claimant at work, Mr Andrew Skinner recommended disciplinary action be taken against the claimant for failure to discharge his duties properly.

	(xxx)	The claimant challenged the assertion that Sunday work would generate more income or present less unauthorised use of the car park. He also asserted that the first respondent was trying to get rid of him.

	(xxxi)	The first respondent has employed and continues to employ agency workers to cover the Sunday work at a higher cost to it.

THE LAW

5.	(i)	It is unlawful to discriminate against another on the ground of religion (Article 3(7) Fair Employment and Treatment (Northern Ireland) Order 1998).

	(ii)	A person discriminates against another by way of victimisation on the ground of religion if he treats the other less favourably because the other has done a protected act (Article 3(4) Fair Employment and Treatment (Northern Ireland) Order 1998).

	(iii)	A person discriminates on the ground of religion against another if he treats the other less favourably than he treats or would treat other persons or applies to the other a requirement or condition which he applies or would apply equally to persons not of the same religious belief but:-

(a) which is such that the proportion of persons of the same religious belief as the other who can comply with it is considerably smaller than the proportion of persons not of that religious belief who can comply with it, and

(b) which he cannot show to be justifiable irrespective of the religious belief of the person to whom it is applied, and

(c) which is to the detriment of that other because he cannot comply with it (Article 3(2) Fair Employment and Treatment (Northern Ireland) Order 1998).

(iv)

A person discriminates on the ground of religious belief against another if he treats the other less favourably than he treats or would treat other persons or he applies to the other a provision, criterion or practice which he applies or would apply equally to persons not of the same religious belief but:-

(a) which puts or would put persons of the same religious belief as that other at a particular disadvantage when compared with other persons,

(b) which puts that other person at that disadvantage, and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim (Article 3(2A) Fair Employment and Treatment (Northern Ireland) Order 1998).

(v)

It is for the claimant who complains of discrimination on the ground of religion to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part (III) or which by virtue of Article 35 or 36 of the Fair Employment and Treatment (Northern Ireland) Order 1998) is to be treated as having committed such an act of discrimination against the claimant (Article 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998).

(vi)

The Northern Ireland Court of Appeal McDonagh & Others v Samuel John Hamilton Thom t/a The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, Tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812.

In the McDonagh case the Northern Ireland Court of Appeal recommended the Tribunals adhere closely to the guidance in Igen.

The guidance set out in the Annex to the Igen case is:-

(1) Pursuant to section 63 of the SDA it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part (II) or which by virtue of section 41 or section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to as ‘such facts’.

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

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5) It is important to note the word ‘could’ in section 63A(2). At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s74 (2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s74 (2) of the SDA.

(8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”

(vii)

In the McDonagh case, Kerr LCJ, as he then was, stated that the first question to be addressed is has the claimant proved, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. He went on to say:-

“In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind. First, that it is unusual to find evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”

(viii)

The application of the burden of proof was also considered in Madarassy v Nomura International PLC [2007] EWCA Civ 33. In that case Mummery LJ, stated in paragraph 56:-

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainants simply to prove facts for which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. 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 has committed an unlawful act of discrimination.”

The learned Lord Justice elaborated on ‘could conclude’ at paragraphs 57 and 58:-

“‘Could conclude’ in section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This will include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, … the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the claimant were of like with like as required by section 5(3) of the 1975 Act; and the available evidence of the reasons for the differential treatment.

The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”

Further clarification was given by Mummery LJ at paragraph 71:-

“Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the claimant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it is not on the grounds of her sex or pregnancy.”

In the recent decision of the Court of Appeal in Kevin Curley v The Chief Constable of the Police Service of Northern Ireland and Superintendent Middleless [2009] NICA 8, Coghlin LJ commented further on shifting the burden of proof in discrimination claims and stated as follows:-

“However, this court would wish to emphasis the need for a Tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim is founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”

The Court of Appeal in Nelson v Newry & Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing v Manchester City [2006 IRLR 748 when he stated:-

“74 The focus of the Tribunal 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 that is the end of the matter. It is not improper for a Tribunal to say in effect “there is a nice 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.”

(xi)

The less favourable treatment element may be established by reliance on an actual comparator or a hypothetical comparator.

(xii)

In the Curley case Coghlin LJ referred to the Sergeant A case and to a statement made by Carswell LCJ at page 273:-

“[3] Discrepancies in evidence, weaknesses in procedures, poor record keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination especially where other evidence shows that such a conclusion is improbable on the facts.”

(xiii)

Victimisation is to treat a person less favourably because he has:-

(a) brought proceedings against another person under the The Fair Employment and Treatment Order or

(b) given evidence or information in connection with such proceedings brought by any person or any investigation under the Fair Employment and Treatment Order, or

(c) alleged that another person has contravened the Fair Employment and Treatment Order; or

(d) has done anything under or by reference to the Fair Employment and Treatment Order in relation to another person; or

(e) knows or suspects that another intends to do any of the above or suspects that another person has done or intends to do any of these things.

(xiv)

Unlawful harassment on the ground of religious belief is to subject a person to unwanted conduct which has the purpose or effect of:-

(a) violating the person’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. (Article 3A of the Fair Employment and Treatment (Northern Ireland) Order 1998).

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

6. Direct discrimination

(i) The claimant relies on two events in support of his claim for discrimination on the ground of his religious belief:-

(a) that he was treated less favourably because he was a witness for Nigel Young at his grievance. Specifically, at the grievance meeting, the first respondent decided to move him from the showgrounds site to the Dunnes Stores site and the second respondent called him a bigot;

(b) that the first respondent decided to vary his hours requiring him to work on a Sunday.

(ii) The Tribunal is not persuaded that the decision to transfer the claimant to the Dunnes Store site amounts to less favourable treatment. In so concluding the Tribunal had regard to the following matters:-

(a) The claimant’s contract has a mobility clause enabling him to be moved to another site within a reasonable distance of his home. There is no suggestion that the Dunnes Store site was not within a reasonable distance of the claimant’s home.

(b) The first respondent had two sites in Omagh covered by two employees, the claimant and Nigel Young.

(c) Pending the outcome of Nigel Young’s grievance it is not an unreasonable step to swap the working locations of the claimant and Nigel Young.

(d) The details of Nigel Young’s complaint against the manager of Dunnes Store of victimisation on religious grounds, are not known to the Tribunal.

(e) If the implication of the claimant’s criticism is that the manager of Dunnes Store had a problem with a Protestant working as a patrol officer at the site then the claimant, as a Catholic, would have been safe there and acceptable to the manager.

(f) The Tribunal understands the claimant’s dislike of what he believes was a transfer to the Dunnes Store site because of a difficulty involving a colleague which had something to do with religion.

(g) It is not clear who the claimant’s comparator would have been. If it were Nigel Young, a Protestant, he was being transferred to the show grounds site.

If the comparator is a hypothetical comparator is it not clear that a hypothetical non-Catholic patrol officer would not have been transferred to the Dunnes Store site while Nigel Young’s grievance was being processed.

(h) Even accepting the claimant’s belief that he was being transferred to the Dunnes Store site because he was Catholic, the burden does not shift to the respondents as the transfer does not amount to less favourable treatment of the claimant.

(i) The decision to move the claimant was rescinded and he was not required to move sites.

(iii) The single incident, in the course of an exchange, in which the claimant was called a bigot is not in itself sufficient to constitute an act of discrimination. However, it is a piece of evidence the Tribunal can take into account when assessing whether the claimant has established discrimination on the ground of religion.

(iv) In relation to the Sunday work issue, it is clear:-

(a) that from the outset the claimant indicated he did not work on Sunday except for the Sundays coming up to Christmas;

(b) that the first respondent accepted that;

(c) that Sandra Cadman, the Human Relations Manager, believed that to require the claimant to work on Sunday was a fundamental change of his working practice;

(d) that the claimant is not opposed to working on a Sunday as matter of religious principle;

(e) that the claimant is a Catholic;

(f) that Sunday is a day of religious importance to him for attendance at Mass and doing works of Christian charity for others;

(g) that the change to the work pattern proposed would not interfere with his attendance at Mass but could reduce the time available to carry out his activities of Christian charity;

(h) that the first respondent had raised other options with the claimant, eg reducing his hours to avoid doing three hours on Sunday; working up his three hours but at the Dunnes Stores site; getting a higher rate of pay for Sunday work.

(v) The claimant’s views on Sunday as a special day for him as a Christian could be capable of constituting a religious belief (see Eweida v British Airways PLC [2009] IRLR 78 at Paragraph 26).

(vi) To require the claimant to work on a Sunday is capable of amounting to less favourable treatment.

(vii) The respondent asserts the hypothetical comparator is someone who is required to work on a Sunday and who does not wish to work on a Sunday but not on religious grounds.

Mr Justice Elias stated in the case of London Borough of Islington v Ladele [2009] IRLR 154 at Paragraph 34:-

“ … However, in practice, a Tribunal is unlikely to be able to identify the statutory or hypothetical comparator without first answering the question why the claimant was treated as he or she was.”

(viii) It is beyond doubt that the reason for the respondents’ attempt to require the claimant to work on Sunday was because of the demands of DTZ on behalf of the owner. The correspondence, which was unchallenged, makes that clear. DTZ required the first respondent to have a physical presence on the site on Sundays and to generate income. The generating of income on Sunday by reason of the claimant’s three hour duty when money is only levied after four hours on site is very dubious. However the owner is entitled, if it wishes, to have a presence on site on a Sunday.

The first respondent sought clarity of DTZ’s wishes when the claimant objected.

The reason for requiring the claimant to work on Sunday has nothing to do with the claimant’s religion.

(ix) Even if the claimant had satisfied the requirements to shift the burden of proof, ie that the claimant had established a prima facie case of discrimination then the onus would pass to the respondents to provide an explanation that the treatment of the claimant was in no sense whatsoever on the ground of the claimant’s religious belief.

The Tribunal is satisfied that the attempt by the first respondent to have the claimant work on a Sunday was because of the requirements of DTZ to have a physical presence in the showgrounds site on a Sunday. The Tribunal is further satisfied that this is in no sense on the grounds of the claimant’s religious belief.

(x) Accordingly, the claimant’s claim for direct discrimination on the ground of his religious belief is dismissed.

Indirect discrimination

(xi) The claimant has failed to establish any indirect discrimination. In so concluding the Tribunal had regard to the following matters:-

(a) The Tribunal assumes the provision, criterion or practice applied to the claimant is the requirement to work on a Sunday.

(b) The claimant’s religious belief, for the purposes of this claim, relates to doing his Christian acts of charity on a Sunday. His ability to attend Mass is not interfered with at all.

(c) The claimant is not opposed in principle to work on Sunday because he has done so on eight occasions.

(d) His Christian principles stimulate him to do acts of Christian charity. He has chosen to do these on a Sunday but the activities could be done on other days. None of the activities requires to be done on a Sunday.

(e) There was not any evidence before the Tribunal that persons who believed in doing Christian activities would be put at a particular disadvantage by having to work on a Sunday.

(f) The working of three hours on Sunday does not prevent the claimant from doing his Christian activities.

(g) Given that the Sunday work was a requirement of the first respondent’s client and failure to provide workers on Sunday could lead to an end of the contract the requirement to work on Sunday is a proportionate means of achieving the legitimate aim of retaining the contract.

(h) The alternative definition of indirect discrimination in Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 has not been satisfied. No evidence was provided as to the number of persons who can or cannot comply with the requirement to work on Sunday. The other requirements are not satisfied as the requirement is justifiable and it is not to the detriment of the claimant.

(xii) Accordingly the claimant’s claim for indirect discrimination is dismissed.

Victimisation

(xiii) Similarly the Tribunal is not persuaded that the respondents have victimised the claimant by doing a protected act. In so concluding the Tribunal had regard to the following matters:-

(a) The only thing that could constitute the protected act is the claimant’s attendance at Nigel Young’s grievance.

(b) The less favourable treatment alleged for the doing of the protected act is:-

(aa) trying to get rid of the claimant; or

(bb) changing his hours to require him to work Sundays.

(c) The Tribunal is not persuaded that the respondents were trying to get rid of the claimant for the following reasons:-

(aa) If the first respondent had wished to get rid of the claimant they could have initiated disciplinary proceedings for his failure to move to the Dunnes Store site by reason of the mobility clause in his contract which they did not do.

(bb) Likewise when Mr Skinner advised disciplinary action for the claimant’s alleged failure to discharge his duties properly the first respondent declined to act on his advice.

(cc) There is absolutely no evidence that the attempt to get the claimant to work on Sundays arises from any reason other than the DTZ’s requirement to have a presence on the showgrounds site on a Sunday.

(d) As stated above, the requirement to provide Sunday patrols of the showgrounds site arose from a requirement of the first respondent’s client. There is no evidence at all to suggest that the first respondent played any part in bringing about that demand. Indeed their delay in implementing the requirement and attempt to clarify if DTZ still wanted this done suggests their preference would have been not to have had to do Sunday work.

(xiv) Accordingly the claimant’s claim for victimisation is dismissed.

Harassment

(xv) In light of the findings above the Tribunal is not satisfied that the respondents have unlawfully harassed the claimant on the ground of his religious belief. The only potential criticism of the respondents’ behaviour was in calling the claimant a bigot. That of itself is insufficient to satisfy the legal requirements of harassment.

(xvi) Accordingly the claimant’s claim for harassment on the ground of his religious belief is dismissed.

Chairman:

Date and place of hearing: 18 – 21 January 2010, Belfast

Date decision recorded in register and issued to parties:

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