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Cite as: [2010] NIFET 16_10FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 16/10 FET

200/10

CLAIMANT: Michael Charles Farmer

RESPONDENT: J H Turkington & Sons Limited

DECISION

The unanimous decision of the Tribunal is that the claims of unfair dismissal and unlawful discrimination are dismissed in their entirety.

Constitution of Tribunal:

Vice President: Mr Noel Kelly

Members: Mrs Margaret Heaney

Mrs Joy McCormick

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Walker McDonald, Solicitors.

Issues

1. The issues for the Tribunal to determine were whether:-

(i) the respondent discriminated against the claimant contrary to Articles 3 and 3A of the Fair Employment and Treatment (Northern Ireland) Order 1998?; and

(ii) the claimant had been unfairly dismissed contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996?

2. The Tribunal is conscious that its approach to fact-finding in relation to the unfair dismissal must differ from its approach to fact-finding in relation to the claim of unlawful discrimination. The Court of Appeal in London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 stated:-

“(46) Mr Marsh spoke of his experience that Employment Tribunals often structure their reasons by setting out all their findings of fact in one place and drawing on the findings at a later stage by applying the law to the relevant facts. It is not the function of Appeal Courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an Employment Tribunal to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course, some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the Employment Tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

3. The Tribunal therefore will set out its findings of fact separately for unfair dismissal and for unlawful discrimination in this decision.

Findings of fact – unfair dismissal

4. The claimant is a graduate civil engineer. He was employed for just over four years by the respondent company before being made redundant on 12 November 2009.

5. The respondent is a construction company based in Portadown. It has been involved in several large projects, including a building at the University of Ulster, the Rathgael Youth Justice Centre and a commercial building for the security firm G4S. It grew rapidly in the recent construction boom and at one point employed approximately 350 people. Over the last two years, the workforce has been reduced to approximately 90 as a result of various redundancy exercises in relation to different groups of staff.

6. This claim concerns a particular redundancy exercise conducted between September and November 2009.

7. Three civil engineers employed by the respondent; the claimant, Gareth Rourke and William Mavitty. Each had been employed on various sites and each had reported to various contracts managers.

8. The general downturn in construction work meant that one civil engineer had to be made redundant. There was no alternative work available for a third civil engineer. The claimant did not argue that there had not been a genuine redundancy situation or that an alternative post should have been offered to him.

9. The respondent wrote to the three engineers on 21 September 2009, asking for suggestions for alternatives to redundancy. This Tribunal was not referred by either party to any suggestions which had been received by the respondent in response to this letter.

10. The respondent then wrote to the three engineers on 28 September 2009, stating that it had decided to make one engineer redundant out of the three. Each engineer was invited to a meeting on 30 September 2009 at which the selection criteria would be outlined and at which any further suggestions for alternatives to redundancy would be considered.

11. At that first redundancy consultation meeting on 30 September 2009, Mr Gary Turkington (general manager) and Mrs Sophie Irwin (HR manager) met with each of the three engineers separately. The selection criterion were explained. The claimant asked who would be conducting the marking exercise. He was told by Mr Turkington that:-

“Andy (Moore), Jim (McKeag) and me, maybe Bobby (Graham) will feed into it also.”

12. It was also explained that the pool for redundancy comprised the claimant, Mr Rourke and Mr Mavitty although, at that time, Mr Mavitty was working temporarily in the precast concrete yard in Portadown supervising the preparation of facing block for a particular building.

13. The voluntary redundancy package which was then on offer was explained to each of the three engineers. There were no volunteers for this package.

14. On 6 October 2009, the respondent wrote to each of the three engineers inviting them to individual meetings on 7 October 2009. Those letters indicated that the scoring exercise had been completed.

15. At his meeting on 7 October 2009, the claimant’s individual scores were explained to him. He had scored lower than the other two candidates and was therefore potentially redundant. The claimant queried the marking. He asked where he had fallen down. He was told:-

“Record-keeping, IMS (Internal Management System), lost one or two points, last three areas also scored lower.”

16. The marking sheets showed that the three engineers were separately scored on each of six criteria.

17. The claimant and Mr Rourke were scored against the six criteria by Mr Andy Moore the contracts manager with whom the claimant had worked for the previous two and a half years. Mr Mavitty had never worked with Mr Moore and the respondent decided that Mr Mavitty should be scored by Mr Turkington. It would have been possible for Mr Mavitty to have been marked by a contracts manager, Bobby Graham, who was most closely involved with his work. However, Mr Graham was in the process of being made redundant, in a separate exercise, did not work his notice and was not on the best of terms with the respondent company. On that basis the respondent felt that it would not be appropriate for Mr Graham to have been in a scoring role in a redundancy exercise. The claimant queried this in particular and felt that it was unfair. However, the claimant did not explain how Mr Turkington’s involvement could possibly have been unfair to him since he did not know and could not know how Mr Graham, if he had been involved, would have scored Mr Mavitty. The Tribunal is satisfied that the respondent acknowledged that it would have been better, in common sense terms, for all three engineers to have been scored by the same individual but it is also satisfied that this was not possible for practical reasons. The compromise put in place by the respondent, ie that Mr Rourke and the claimant were scored by Mr Moore and that Mr Mavitty was scored by Mr Turkington, with Mr McKeag, the group managing director, having an oversight of the marking process, was reasonable and a decision that the respondent was entitled to take. The Tribunal sees nothing unfair in this process.

18. The claimant had no difficulty with the first criterion, ie length of service, where he scored maximum points.

19. In relation to the second criterion (disciplinary record) the claimant also scored the maximum points with a clear disciplinary record. However, he argued that the score sheet for Mr Rourke showed that he had received five points in a particular box which indicated that he had received a verbal warning and that the five points should have been deducted from his total score.

20. The Tribunal, after listening to Mr Moore, Mr Matchett and Mr McKeag, concludes that Mr Rourke had not received a verbal warning in the course of his employment. The five points had simply been entered in the wrong box on the form. The original overall score was consistent with this conclusion. The Tribunal therefore concludes that there was nothing unfair in this respect and that it was simply a clerical error.

21. The claimant had no difficulty with his score under the third criterion ‘sickness/ attendance’.

22. The claimant argued that in relation to the fourth criterion ‘skills’, which had been divided into eight sub-criteria, he had been unfairly marked. He also complained that, once he had complained that he had not received the maximum score in respect of any of the eight sub-criteria, he was suddenly given one maximum score and that one of the sub-criteria scores was changed from ‘4’ to ‘5’ (the maximum) and another from ‘3’ to ‘4’. He suggested that this was indicative of an unfair approach and that it showed that the eventual result had been rigged.

23. In relation to the scoring changes, referred to by the claimant, the Tribunal heard a great deal of evidence about whether the scores had first been complied on a Excel page and then transferred to the full score sheet or vice versa. It is clear that there is a conflict of evidence on this point between the respondent’s witnesses. However, in the Tribunal’s view, this conflict is not significant. It is clear that the claimant’s total score did not alter when the two sub-criteria markings were changed and that is consistent with the respondent’s explanation that this again had simply been a clerical error. It is also clear that the markings of ‘4’ and ‘5’ were entered on the Excel sheet which showed the markings for all three engineers and that again is consistent with the respondent’s explanation that it was just a clerical error.

24. It is unacceptable that a well-established and well-resourced company conducting a redundancy exercise should have documentation relating to that exercise which contains such errors. Selecting an individual for redundancy is a serious matter and the documentation should reflect the seriousness with which any responsible employer should approach that task. The Tribunal therefore wishes to make clear its view that the respondent needs to exercise more care in ensuring that documentation relating to redundancy exercises is completed properly. Failure to do so gives rise inevitably to suspicions and conspiracy theories on the part of redundant employees which then trouble not just the respondent but this Tribunal.

25. That said, the Tribunal is satisfied that the clerical errors referred to above are not indicative of any unfairness on the part of the respondent in the choice of the claimant for redundancy.

26. In relation to the markings under the fourth criterion, ‘skills’, the Tribunal heard evidence from Mr Moore that the claimant’s record-keeping and the claimant’s operation of IMS (‘Internal Management System’) were poor. His notes were ‘hard to interpret and not full’. He was ‘not well up’ on IMS. The Tribunal concludes that this was a decision the respondent was entitled to make and not a decision with which, on the evidence before it, the Tribunal is entitled to interfere.

27. The claimant also disputed his marking under the final three criteria, ie ‘versatility/ flexibility’, ‘co-operation and self-motivation’ and ‘quality of work’. Under each of those criteria he originally received 10 marks out of the maximum 15. Mr Mavitty and Mr Rourke each, originally, had received 15 points under ‘co-operation and self-motivation’ and ‘quality of work’.

28. A third redundancy consultation meeting took place on 12 October 2009 between Mr Turkington, Mrs Irwin and the claimant. The claimant went through each of the markings, one by one and received explanations. One issue which he raised at the Tribunal, to which he attached particular significance, was that he had been told by Mrs Irwin that he had lost marks under the ‘versatility/flexibility’ criterion because he had not received a security clearance entitling him to work in certain Government buildings, including police stations. The claimant argued that this was indicative of unfairness and, separately, unlawful discrimination. Mrs Irwin gave evidence that that was her impression at the time and it is clear that that impression was shared by Mr Matchett who conducted the eventual appeal hearing. However, Mr Moore gave evidence that he had marked the claimant and Mr Rourke on this criterion without reference to the issue of security clearances and had marked them solely on their ability as engineers. Mr Moore’s evidence in this respect was clear and consistent and the Tribunal accepts that he was telling the truth. Both the claimant and Mr Rourke had scored 10 points under this criterion. In any event, as will be seen shortly, the criterion was removed completely by Mr Matchett at the appeal stage to avoid any appearance of unfairness.

29. Mr Moore gave detailed evidence to the effect that the claimant’s relationship with sub-contractors was too close and ‘too pally’. He ‘lacked the necessary distance’ to supervise sub-contractors and to hold them to account. He gave a specific example of the laying of foundations at a particular building where the shuttering which was meant to contain poured concrete, had been improperly constructed by a sub-contractor and, where, as a consequence, the poured concrete had moved the shuttering and resulted in a kink in the foundations. This evidence was supported by Mr McKeag who had visited that particular site and who regarded the work as ‘atrocious’. He pointed out that at one point the block work had to be placed right up the edge of the foundations and that this was far from ideal. The evidence from Mr Moore and Mr McKeag, with which the Tribunal cannot disagree, was that it was the responsibility of the claimant to ensure that the shuttering had been correctly put in place and that it had been up to him to make any necessary adjustments. The Tribunal is therefore not in a position to, on the evidence before it, query any of the markings in relation to ‘co-operation/self-motivation’ or ‘quality of work’.

30. 0n 16 October 2009 the claimant appealed against his markings stating that:-

“Based on the grounds, that the redundancy selection criteria pointing (scoring) on the role of engineer, was not processed fairly and thus not producing an accurate point total based on my role as an engineer with Turkington Construction.”

31. The claimant also raised an issue about not being allowed a particular representative to accompany him to his appeal hearing. It was apparent from the claimant’s evidence that this individual was not an employee of the respondent and was not an accredited official of any union recognised by the respondent. The claimant was not even sure of which union this individual was a member or whether or not the individual was simply a union member or was in fact a union official. He seemed to barely know the individual. The Tribunal sees nothing unfair in that individual not being allowed to accompany the claimant to the appeal hearing and concludes that the claimant had a full opportunity to be represented by a work colleague or a proper trade union representative, if one existed.

32. The appeal hearing was conducted by Mr R Matchett, the respondent’s finance director. The claimant raised the points outlined above and Mr Matchett stated that he needed to review the scoring sheets. After that appeal hearing, Mr Matchett wrote to the claimant on 4 November 2009 confirming the redundancy. He concluded that the changes in scores had been as a result of a clerical error in relation to the ‘versatility/flexibility’ criterion and in relation to the claimant’s point about security clearance, he noted that neither of the other two engineers, who had a security clearance had received a higher mark under this criterion. In any event he removed the criterion completely from the score sheet.

33. Mr Matchett also reduced the score under one of the final three criteria for Mr Mavitty from 15 to 10 on the basis that his length of service and his experience did not warrant the higher mark. Nevertheless the claimant still remained the lowest marked candidate and his redundancy was confirmed.

Findings of fact – discrimination

34. The claimant first complained of various instances of alleged verbal harassment.

35. In his claim form, as clarified by his replies to a Notice for Additional Information, he alleged that Andrew Moore, his contracts manager, had:-

(i) When the claimant suggested using a contractor from Coalisland, said “are you connected with them other boys?”.

(ii) Had in the context of discussing his squad of bricklayers said “oh, is he one of you’s?”.

(iii) Had said “what would a city boy from West Belfast know about plant machinery?”.

(iv) When the claimant lost his driving licence, made a remark about him being a ‘joy rider from West Belfast’.

36. Mr Moore, in evidence, denied ever saying the remarks set out in (i), (ii) or (iv). In relation to the remarks set out in (iii), he stated that there had been banter between ‘city boys’ and ‘country boys’. He was from Ballymena and he would have said “what would a city boy know about plant machinery?”. Referring to West Belfast in this context made no sense.

37. The claimant stated in evidence that he was friendly with Mr Moore. He had never complained about him in any respect before this Tribunal application. He had not mentioned these alleged incidents to anyone in management at the time when he stated they occurred. These incidents or any allegation of religious or political discrimination did not feature at all in his redundancy appeal process. Mr Moore’s evidence was clear and convincing. He had appointed the claimant in the first place to his position with the respondent company. He had facilitated the claimant’s continued employment, when the claimant lost his driving licence. The claimant was ordinarily required to drive between different sites in a company vehicle. If he had been bigoted, as suggested by the claimant, he would not have appointed him in the first place or, alternatively, he would have seized on the opportunity presented by the claimant’s loss of his driving licence to dismiss him at that point. He had done neither and had assisted the claimant as best he could throughout the claimant’s employment.

38. The Tribunal prefers Mr Moore’s version of events and concludes that the claimant’s allegations against Mr Moore are unfounded.

39. The claimant also alleged that a Mr Crumby and a Mr Wright, a forklift truck driver and a plant mechanic respectively, who were employed by the respondent had made remarks about him being in the Republican Youth as a child. This referred to a mural in the Markets area which was based on several old photographs one of which was of a group of children which included the claimant who was dressed in some form of uniform. Mr Wright gave evidence that this conversation did not take place. Furthermore, he gave evidence that the claimant had first shown him a photograph of the mural and that he (the claimant) had introduced discussion of this mural into the workplace. The claimant denied that this had happened and his version of events was that he had shown the mural to Mr Crumby while driving past it in a company vehicle and that discussion of the mural had developed from that. The claimant also alleged that in the respondent’s yard in Portadown in 2009, the claimant was called a ‘Shenner’ from West Belfast.

40. Mr Wright denied that he had ever called the claimant a ‘Shenner’ from West Belfast or that he had ever made any discriminatory remarks against him. He explained that he had on one occasion recounted an incident that he had witnessed in which drunken youths had sung a sectarian song and he quoted from that song. In doing so, he had been expressing his clear disapproval of their activities. He stated that the claimant had overheard part of that conversation and was either twisting it or had misunderstood it. Mr Wright also gave evidence that when he arrived at the claimant’s house to collect his company vehicle, on the claimant having lost his driving licence, he was invited by the claimant’s partner to have a cup of tea. He stated to the Tribunal that he had declined the offer because “he was already halfway across the road” and in any event it was not his tea break. He further stated that he would have felt uncomfortable going into a stranger’s house and that she had children to mind. He stated that the claimant had later accused him of not being willing to take tea in a Catholic’s house. He stated in a very convincing manner that he felt very offended by these allegations. He further stated that he had worked for 19 years with a Catholic and had got on very well him. He further stated that his life had been saved on one occasion by a Catholic who gave him treatment following a motorcycle accident. It was apparent to the Tribunal that Mr Wright was deeply upset by the nature of the allegations made against him and the Tribunal accepted that he was telling the truth. The Tribunal prefers his version of events and concludes that the incidents, as alleged by the claimant, did not occur.

41. The claimant alleged that Mr Nigel Copeland who had worked immediately above him for a period in the University of Ulster had made remarks about contraception, the Pope and the claimant trying to outbreed Protestants, when the claimant had told him that his partner was pregnant. He further alleged that Mr Copeland had made remarks about the claimant’s alleged hostility to the police and army. Mr Copeland denied these allegations. As with all the other allegations of harassment made by the claimant, they were not brought to management attention at the time when the incidents allegedly occurred, they did not feature in the claimant’s appeal letter or the appeal procedure, and they were simply not mentioned at all until the Tribunal proceedings were commenced. The Tribunal does not accept the claimant’s explanation for his failure to raise these matters at the time, ie that he feared for his job. It was apparent from Mr McKeag’s evidence that the respondent company took Equal Opportunities seriously and that staff had been properly briefed on their responsibilities in this respect. The Tribunal concludes, as with the other allegations of verbal harassment, that these incidents simply did not take place or did not take place as alleged by the claimant.

42. In relation to the claimant’s selection for redundancy, the Tribunal concludes that the other two candidates for redundancy were Protestant and that the claimant was Roman Catholic.

43. The issue of security clearance was not taken into account by Mr Moore when marking the claimant and Mr Rourke. Both received the same score under the relevant criterion. The possible influence of security clearance was in any event removed by Mr Matchett when he removed the relevant criterion completely from the marking frame on appeal.

Relevant law

44. Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 provides that where the employer has shown the reason, or the principal reason for the dismissal, and that is a potentially fair reason (such as redundancy), the determination of whether the dismissal is fair or unfair:-

(a) depends on whether in the circumstances – the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

45. In Williams and Others v Compair Maxam Ltd [1982] ICR 156 the EAT stated:-

“For the purposes of the present case there are only two relevant principles of law arising from the sub-section. First that it is not the function of the industrial tribunal to decide whether they would have thought it fair to act in some other way; the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants, on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy as ‘a sufficient reason for dismissing the employee’, ie the employee complaining of dismissal. Therefore if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant rather than some other employee, for dismissal.

In law, therefore, the question we have to decide is whether a reasonable tribunal could reach the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted.”

46. In British Aerospace PLC v Green and Others [1995] ICR 1006 the Court of Appeal stated:-

“The use of a marking system of the kind which was adopted in the case has become a well recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over minute analysis.”

47. The above case law was cited with approval by the Court of Appeal for Northern Ireland in the case of McCormick v Short Brothers Plc (16 April 2010) [2010] NICA 14.

48. In the case of Northgate HR Limited v Mercy [2008] IRLR 222, the Court of Appeal approved a decision of the EAT which reversed the employment tribunal decision. The court expressly approved the approach of the EAT where it had stated:-

“The problem – was that the ET expressed itself in a way in which it appeared that they were looking for a glaring inconsistency as evidence of bad faith which itself would indicate unfairness. The passage in which they say so, at the end of paragraph 15, when allied to the passage in paragraph 4 – suggests that the ET was saying that the only circumstance in which unfairness could arise, where there was a glaring inconsistency in the operation of a selection criterion, was where there was bad faith. In our judgement that goes too far in restricting the circumstances in which an ET could, consistent with its obligation not to take a fine tooth comb to the decisions of the respondents or to remark the assessments, nonetheless intervene. The lawful basis for intervention would be where glaring inconsistency, whether as a result of bad faith or simple incompetence, evidenced a decision which was outside the band of reasonableness. The position, therefore, is that we are left with the impression that the ET applied an unusually restrictive test when considering the impact of what it concluded was a glaring inconsistency upon the fairness or otherwise of the dismissal. In those circumstances we are persuaded that the ET in its decision erred in law and, accordingly, the appeal must succeed.”

49. Article 19(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”) provides that:-

(1) “It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-

(b) where that person is employed by him -

(iii) by dismissing him or by subjecting him to any other detriment.”

50. Article 3(1) of the 1998 Order provides that:-

1. In this Order ‘discrimination’ means -

(a) discrimination on the ground of religious belief or political opinion.

51. Article 38A of the 1998 Order provides:-

“Where on the hearing of a complaint under Article 38, [claim to the Fair Employment Tribunal] the complaint proves facts on 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 complaint,

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

52. The statutory changes introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/EC, including Article 38A of 1998 Order, were analysed by the GB Court of Appeal in the case of Igen v Wong (2005) EWCA 142 and guidance for Tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh and others v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated, “for the purposes of the present case the first question that the judge should have articulated was, ‘have the plaintiffs proved on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?’”.

Those guidelines were revisited and affirmed by the GB Court of Appeal in the case of Madarassy v Nomura International plc [2007] EWCA CIV 33 on the 26 January 2007. At paragraph 12 of that decision, the court stated:-

“I do not under estimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, from which the court or Tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact finding body is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better.”

53. Paragraph 52 the court stated:-

“Much of what Mr Allen said about the effect of reversing the burden of proof is correct. Mr Allen is obviously right in saying that the sub-section does not require Ms Madarassy to prove a ‘conclusive case’ of unlawful discrimination.”

“She only has to prove facts from which the Tribunal ‘could’ conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a ‘prima facie’ case.”

54. At paragraph 54, the court stated:-

“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her.”

55. At paragraph 56, the court stated:-

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from 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 the Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

56. At paragraph 57, the court continued:-

“’Could conclude’ in Section 63A (2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination such as evidence of the 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.”

57. At paragraph 58, the Court continued, “the absence of an adequate explanation for the differential treatment of the claimant is not, however relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the claimant. The consideration of the Tribunal then moves to the second stage, the burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non discriminatory explanation of the treatment of the claimant. If he does not, the Tribunal must uphold the discrimination claim.”

Decision

Unfair dismissal

58. The Tribunal concludes that the respondent conducted the redundancy process fairly. It is clear that the respondent consulted carefully with each of the three civil engineers who were in the redundancy pool. The redundancy selection criteria were, on their face, fair and rational. The claimant clearly disagreed with the marking that he received in several respects. He was, in his submission, in effect inviting the Tribunal to conclude that he was a better civil engineer, when judged against certain of the criteria, than one or both of his comparators. The Court of Appeal in the case of British Aerospace v Green made it clear that it is no part of the function of a Tribunal to scrutinise the working of a redundancy selection marking system ‘officiously’. They stated that:-

“It must not be subjected to an over-minute analysis.”

While it is not the case that a Tribunal can only intervene if there is a glaring inconsistency on the face of the record, the Tribunal has to be aware of its limitations in this respect and, on the facts of the present case, is satisfied that the respondent approached the redundancy selection procedure properly and fairly. The Tribunal is also satisfied that the selection of the claimant for redundancy was a decision which a reasonable employer was entitled to make in all the circumstances of this case. The claim for unfair dismissal, on the ground of unfair selection for redundancy is therefore dismissed.

Unlawful discrimination

59. The Tribunal is satisfied that the various allegations of verbal harassment are unfounded. The findings of fact underlying that conclusion are adequately set out above. Those findings of fact do not provide a basis on which a reasonable Tribunal could draw an inference of unlawful discrimination.

60. In relation to the allegation of religious or political bias in the selection process, this appears to be based on little more than the fact that the other two individuals in the redundancy pool were Protestant and the claimant was Catholic. As the Court of Appeal in Madarassy made clear, a difference in status, without more, is not sufficient for an inference of unlawful discrimination to be properly drawn and for the burden of proof to pass from the claimant to the respondent. The clerical errors, on the part of the respondent, do not add much to the equation. Neither does a vague and unsubstantiated allegation from the claimant that another former employee felt that his redundancy selection in a different exercise had been motivated by the fact that he was a Catholic. Mr McKeag stated in his evidence, the Tribunal accepts, that the respondent company has never been subjected to a Tribunal claim of unlawful discrimination in relation to the over 200 redundancies carried out recently and that the only two internal complaints of religious discrimination were from the claimant complaining that he had been discriminated against on the grounds of his religious belief and from one Protestant employee (in a separate selection process) complaining on the same ground.

61. The claim of unlawful discrimination on religious belief and/or political opinion is dismissed.

Vice President:

Date and place of hearing: 8 – 10 November 2010, Belfast

Date decision recorded in register and issued to parties: