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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Logan v Belfast City Council [2010] NIFET 00026_09FET (14 March 2011)
URL: http://www.bailii.org/nie/cases/NIFET/2011/00026_09FET.html
Cite as: [2010] NIFET 00026_09FET, [2010] NIFET 26_9FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REF: 26/09 FET
27/09 FET
37/09 FET
CLAIMANTS: 1. Patrick Logan
2. Kevin O’Doherty
3. Sean O’Neill
RESPONDENTS: 1. Belfast City Council
2. Jim Ferguson
3. Sam Skimin
DECISION
The unanimous decision of the Tribunal is that all of the claims (of religious discrimination), of each claimant, are not well-founded and accordingly they are dismissed.
Constitution of Tribunal:
Chairman: Mr Paul Buggy
Members: Mrs Caitriona Stewart
Mr Ahmed Ebrahim
Appearances:
The claimants were represented by Mr P Moore of P M Associates.
The respondents were represented by Mr P Ferrity, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.
REASONS
1. All of the claimants are employees of the Council. At all times which are material for the purposes of the present proceedings, all of the claimants were employed in the Cleansing Department, based at Springfield Avenue Cleansing Depot, West Belfast. At all material times, Mr O’Doherty and Mr O’Neill were employed as Cleansing Operatives. At all material times, Mr Logan was employed as a lorry driver. At all times which are material for the purposes of the present proceedings, each claimant was carrying out duties within the Springfield Avenue Depot’s “Entry Squad”. There were four members of that Squad. The Squad was made up of the three claimants in the present proceedings and Mr Gerard McCurdy.
2. In this Decision, we refer to any person who is a Roman Catholic, or from a Roman Catholic community background, as a “Catholic” and we refer to any person who belongs to a Protestant Christian denomination, or who is from a Protestant community background, as a “Protestant”.
3. Each claimant is a Catholic.
4. At all material times, Mr Jim Ferguson, who is a respondent to these proceedings, has been the Operations Manager for Street Cleansing of the Council. In that capacity, he reported directly to Mr Sam Skimin, who is also a respondent to these proceedings. Mr Ferguson is a Protestant.
5. At all material times, Mr Skimin has been the Head of Cleansing Services of the Council, reporting directly to its Director of Health and Environmental Services. Mr Skimin is a Protestant.
Some key legislative provisions
6. Article 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”) makes it unlawful for an employer to “discriminate”, within the meaning of the Order, against any employee, by subjecting that employee to detrimental treatment (in the sense in which such treatment is referred to in Article 19).
7. Religious discrimination constitutes “discrimination” for the purposes of the Order. In this case, the claimants alleged that they were discriminated against because of anti-Catholic bias. Each of the claimants asserts that each instance of discrimination constituted anti-Catholic bias which was deliberate, and conscious (as distinct from bias occurring at a sub-conscious or unconscious level).
8. The effect of Article 3(3) of the 1998 Order is that an employer will discriminate against an employee on the ground of religious belief, in any circumstances relevant for the purposes of any provision of the 1998 Order, if, on the ground of religious belief, the employer treats that employee less favourably than he treats or would treat other persons. Article 3(3) of the 1998 Order provides that, in carrying out the process of comparison which is contemplated by that Article:-
“A comparison of the cases of persons of different religious belief … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.
9. The effect of Article 35 of the 1998 Order is that, if an employee of the Council is subjected to religious discrimination by another worker within the Council, that other worker will himself be legally liable for that act of discrimination.
10. The effect of Article 36 of the 1998 Order is that, if an employee of the Council is subjected to religious discrimination by another worker within the Council, the Council itself will be legally liable for the colleague’s discrimination, just as if the Council had itself carried out that act, subject to the defence of “reasonable practicability”. (That defence is irrelevant in the present circumstances, because the Council does not rely upon that defence in these proceedings).
11. The various Allegations, as set out below, constitute a refinement of the allegations which had originally been contained in the claim forms of the three claimants in these proceedings. Some of those Allegations are not expressly or implicitly contained in those claim forms. However, the Council appropriately and realistically agreed that it was proper for the Tribunal to grant leave, to the extent necessary, to the claimants to amend their claim forms (so as to incorporate all of the Allegations); and we did so. The acts complained of, the claims being made, and the defences offered (by the respondents) in these proceedings, are as follows.
The claims and the defences
Allegation 1
12. In early 2008, the Council began to intensively monitor the work and activities of the three claimants in these proceedings, and those of other operatives within the Springfield Avenue Depot. Each claimant says that the more intense monitoring was inappropriate and unfair.
13. All of the claimants assert that Mr Ferguson was responsible for that inappropriate monitoring.
14. All of the claimants complained that this alleged mistreatment constituted unlawful religious discrimination, because it was affected by anti-Catholic bias.
Allegation 2
15. Each of the three claimants was subjected to disciplinary proceedings arising out of their membership of the Squad. In each instance, the outcome of those disciplinary proceedings was that each claimant was found to have finished work early without permission, and to have neglected his duty.
16. In each instance, one of the disciplinary sanctions was that the relevant claimant was permanently removed from the Entry Squad. Each claimant asserts that the permanence of their removal constituted discriminatory treatment. In each instance, each claimant asserts that Mr Skimin was responsible for that mistreatment.
17. Each claimant makes a claim of religious discrimination in respect of that alleged mistreatment.
Allegation 3
18. Each claimant asserts that the disciplinary process to which he was subjected was overly protracted, and that this was the fault of Mr Skimin.
19. Each claimant complains that this alleged mistreatment constituted religious discrimination.
Allegations 4, 5, 6 and 7
20. It was suggested that Mr Joe McGuigan, a prominent trade unionist within NIPSA had committed a breach of discipline, by suggesting that, as a result of the allegedly over-intensive monitoring, and as a result of associated disciplinary proceedings, Mr Ferguson was at risk from paramilitaries. In the course of the investigation of that disciplinary matter, an investigatory interview was carried out by the Council with Mr Ferguson. In the course of that interview, Mr Ferguson made assertions in relation to the activities of the workforce at the Springfield Avenue Depot. According to all of the claimants, those observations included the following:-
(1) a false allegation of financial gain (this is Allegation 4);
(2) a false allegation of dishonesty (Allegation 5);
(3) a false allegation of financial gain on behalf of a paramilitary organisation (Allegation 6); and
(4) a false allegation of membership of a paramilitary organisation (Allegation 7).
21. Each claimant asserts that each of those allegations (the allegations which Mr Ferguson is accused of making, as set out in the last paragraph above) constituted religious discrimination.
Allegation 8
22. In the context of the intensive monitoring, and in the context of the associated disciplinary proceedings, each of the claimants participated in collective grievance processes. According to each claimant, the Council failed to carry out an appropriate investigation into those grievances, and failed to apply the relevant statutory processes. They say that Mr Skimin was to blame for those failures.
23. Each claimant asserts that those failures constituted religious discrimination.
Allegation 9
24. Mr O’Doherty asserts that Mr Ferguson subjected him to a detrimental act of religious discrimination when Mr Ferguson initiated an internal grievance which
focused
upon the behaviour of Mr O’Doherty.
The defences
25. In relation to each Allegation, on behalf of the Council and on behalf of whichever individual respondent who is relevant in the context of each particular allegation, Mr Ferrity, presented the following defences:-
(1) It was asserted that the relevant treatment did not constitute mistreatment or detrimental treatment.
(2) It was asserted that anti-Catholic bias was not a reason for the relevant treatment.
General
26. We have already referred above to Mr Gerard McCurdy, who was the fourth member of the Entry Squad. In Cases 24/09 FET and 81/09 FET, Mr McCurdy brought proceedings for religious discrimination against the Council and against Mr Ferguson and Mr Skimin. In Case 3188/09, he brought proceedings for unfair (constructive) dismissal against the Council. The members of this Tribunal were also the members of the Tribunal which adjudicated in respect of Mr McCurdy’s claims. Nevertheless, all of the claimants in the present proceedings, and all of the respondents, agreed that it was appropriate that we should sit as members of this Tribunal in the present proceedings.
27. Alongside these Fair Employment Tribunal proceedings, two of the relevant claimants (Mr Logan and Mr O’Doherty) also brought proceedings in the industrial tribunals. Mr Logan’s case is case reference 231/09; in that case, Mr Logan asserted that the act complained of in Allegation 2 (as set out above) constitutes “trade union detriment” within the meaning of Article 73 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). In case 232/09, Mr O’Doherty complained that each of the acts complained of, in each of the nine Allegations set out above, constitutes trade union detriment contrary to Article 73 of the 1996 Order. For the purpose of adjudicating in respect of those two other cases, we sat as an industrial tribunal.
28. It was agreed between the parties that we should conduct a single hearing, which would constitute a main hearing in respect of the Fair Employment Tribunal claims, while simultaneously conducting a main hearing in respect of the Logan and O’Doherty industrial tribunal proceedings.
29. It was agreed by all of those parties that all of the cases of all of these three claimants should be heard together and that, accordingly:-
(1) evidence in either of the Logan cases should constitute evidence in all of the other associated cases;
(2) evidence in either of the O’Doherty cases should constitute evidence in all of the other associated cases; and
(3) evidence in the O’Neill case should constitute evidence in all of the other associated cases.
The sources of evidence
30. We received oral testimony from the following witnesses, who gave evidence on behalf of each of the claimants:-
(1) each of the claimants and
(2) Mr Joe McGuigan.
31. We also received oral testimony from the following, who gave evidence on behalf of the respondents:-
(1) Mr Ferguson and
(2) Mr Skimin.
32. We saw the following documents:-
(1) an agreed bundle; and
(2) some miscellaneous documents, which were provided to us during the course of the hearing.
33. We told the parties that we would have regard, for evidential purposes, to any document within the bundle, only if our attention was specifically drawn (by one or more of the parties) to that document.
The facts
34. For an account of the general factual context of this case, please see our Decision in McCurdy v Belfast City Council and Others (Case References 24/09FET, 81/09FET and 3188/09, Decision issued on 27 July 2010).
The law
35. The parties were agreed that the statements of legal principle, as set out in the McCurdy case, can be treated as being correct, for the purposes of the present proceedings. Accordingly, we have applied those principles, to the extent that they are relevant, in the present cases. We do not need to repeat those statements of principle within this Decision.
36. If a perpetrator treats a Catholic less favourably than he treats, or would treat, someone who is not a Catholic, that treatment can constitute an act of religious discrimination even if religious bias was not the main reason for the treatment, provided that religious bias was a significant reason for according the relevant treatment.
Conclusions: Allegation 1
37. It will be recalled that Allegation 1 alleges discriminatory mistreatment in relation to the more intensive monitoring, which was carried out in respect of operatives within the Springfield Avenue Depot, from early 2008 onwards. It will be recalled that the claimants alleged that Mr Ferguson was responsible for that inappropriate monitoring.
38. We have concluded that the alleged treatment did not constitute an act of religious discrimination, against the following background, and for the following reasons.
39. We are not here dealing with an allegation that Mr Ferguson has, at some unconscious or subconscious level, been affected by anti-Catholic bias. Instead, the allegation is that Mr Ferguson knew exactly what he was doing, and was consciously affected by anti-Catholic bias. Was he? (He was the person best placed to answer that question, if we could believe his evidence). He denied that he had any such bias, when he gave evidence in these proceedings. Having observed his demeanour and manner of giving evidence, we did believe that evidence. Furthermore, we noted that, when the decision, to more intensively monitor the work and activities of staff at the Springfield Avenue Depot, was taken, that decision was made against a background of a significant number of allegations, in relation to a substantial number of staff, at that Depot, relating to the question of whether or not those staff were at work at all times when they claimed to be at work. We are satisfied that the number of relevant allegations was unprecedented, and that the number of such allegations was much greater in respect of the Springfield Avenue Depot than it had ever been in relation to any other part of the Cleansing workforce.
40. In this context, we repeat what we stated at paragraph 79 of the McCurdy Decision:
“At paragraph 18 of the Submission [in the McCurdy case], Mr Moore points out that a pattern of “focused” (intensive) supervision was being followed in the West but “ … was not being followed in any other area (notably North and East Belfast which are predominately Protestant Unionist) …”. However, the Council has asserted that focused supervision was implemented in the West because Management had been given reason to believe that inappropriate practices were being followed by workers there. We have no evidence that Management had been given reason to believe the same in respect of a substantial number of workers elsewhere in Belfast. Furthermore, we note that some work-squads in North Belfast are predominately Catholic, and there is no suggestion that Mr Ferguson or Mr Skimin also organised any over-intensive monitoring of the relevant squads in those areas”.
Our conclusions on Allegation 2
41. This is the allegation relating to the permanent removal of the three claimants from the Entry Squad. (That was one of the disciplinary sanctions which was imposed as a result of the disciplinary findings that each of these three claimants was found to have finished work early without permission, and to have neglected his duty).
42. We have decided that the permanence of their removal did not constitute mistreatment. We are also satisfied that this act, in each instance, was not affected by anti-Catholic bias. We have reached those conclusions against the following background and for the following reasons.
43. First, the disciplinary offences of which the three claimants were found guilty were serious offences. Indeed, they were of such seriousness that dismissal, as a sanction for that misconduct, would not have been a sanction which was outside the range of reasonable responses for an employer. Accordingly, the permanent removal of the claimants from the Entry Squad cannot be regarded as being a disproportionate sanction. Secondly, we are satisfied that permanent removal is a sanction which is allowed for by the Council’s written disciplinary procedure (and we reject the argument, on behalf of the claimants, that the Disciplinary Procedure required that any removal had to be time-bounded).
44. Mr Skimin is accused of having decided upon the permanent removal of the claimants because of anti-Catholic bias. He is the person best placed to know whether or not that accusation is well-founded. He told us on oath that it was not well-founded. We believed him.
45. The general thrust of the disciplinary allegations (which were found to be proven against all four members of the Entry Squad) was that they had colluded together in order to finish work early, even though their shift had not yet finished, and that they had regularly done so. Against that background, we consider that many reasonable employers would have considered it appropriate to take action to make sure that those whom the employer had found to be guilty of those offences would not be working together again in the same small team.
Our conclusions in relation to Allegation 3
46. Allegation 3 is to the following effect. Each claimant asserts that he was discriminated against because the disciplinary process to which he was subjected was unduly protracted, and that this was the fault of Mr Skimin.
47. We agree that the resolution of the relevant disciplinary proceedings took far too long.
48. We are not convinced that the prolongation of the proceedings was the entire work of one man, Mr Skimin. Instead, it seems likely that the prolongation of the proceedings was the fault of more than one individual; Human Resources must have responsibility in that connection.
49. We think that the most likely explanation, and the sole explanation, for the prolongation of the disciplinary proceedings, is that many disciplinary cases were being processed at the relevant time, and that the human resources administration of those various cases was not as efficient is it could have been, and should have been.
Our conclusions in respect of Allegations 4, 5, 6 and 7
50. It will be recalled that these are allegations that, during the course of an investigatory interview (regarding disciplinary action which was, at that time, being contemplated against Mr Joe McGuigan), Mr Ferguson made discriminatory observations, in relation to the activities of the workforce at the Springfield Avenue Depot, which were inaccurate, hurtful and inappropriate. According to all of the claimants in these three cases, those observations included the following:
(1) a false allegation of financial gain (this is Allegation 4);
(2) a false allegation of dishonesty (Allegation 5);
(3) a false allegation of financial gain on behalf of a paramilitary organisation (Allegation 6); and
(4) a false allegation of membership of a paramilitary organisation (Allegation 7).
51. We have been shown a copy of the record of that interview. The copy which we have received is incomplete; some of its contents have been obliterated. In that part of the record which we have seen, there is no reference to the subject-matter of Allegation 6 or Allegation 7. Obviously, we can only take account of such evidence as is made available to us.
52. We have no doubt about the following matters. First, Mr Ferguson has never been in a position to prove the truth, or otherwise, of some of the relevant observations. Secondly, we have no doubt that some members of the workforce in the Springfield Avenue Depot found the observations to be hurtful. Thirdly, we note that Mr Ferguson was being invited, by Management, to express his own views, on matters connected with the Allegations 4-7, at a time when he had reason to believe that his personal safety might have been adversely affected by reactions to his role in the industrial relations unrest which was then ongoing within the Springfield Avenue Depot.
53. We think that it is a pity that Mr Ferguson was ever invited to talk about his own personal feelings, views or apprehensions. But he was invited to do so. He was making the relevant observations at a time when he had good reason to believe that he might be under personal threat. Having seen and heard Mr Ferguson provide oral testimony in these proceedings about those matters, we are satisfied that, at the time he made the observations referred to in Allegations 4-7, he did believe in the truth of those observations.
54. As we have found, Mr Ferguson responded to an invitation which was made by others (to express views about his feelings, and apprehensions), and if, as we have concluded, he believed in the truth of the allegations which he was making, at the time denied making them, it seems to be very unlikely that the making of those allegations would be affected by conscious anti-Catholic bias.
55. Mr Ferguson told us on oath that he was not then affected by any such bias. He is in the best position to know whether or not he was affected by such bias. We believed that part of his evidence.
Our conclusions in respect of Allegation 8
56. This allegation is that the Council failed to carry out an appropriate investigation into collective grievances which had been launched on behalf of various workers, including these three claimants.
57. There were two relevant collective grievance processes. We are satisfied that the Council made a reasonable request for clarification of the basis for the first such grievance, and that no response to that request was ever forthcoming. Accordingly, the Council and Mr Skimin cannot properly be held to be at fault in respect of the failure to effectively process the first grievance.
58. The second relevant collective grievance had to be aborted because the workers, on advice from their representatives, declined to further participate in the relevant process.
59. Accordingly, Allegation 8 fails because it is not factually well-founded.
Our conclusions in respect of Allegation 9
60. It will be recalled that the context of Allegation 9 is that Mr Ferguson initiated an internal grievance about the behaviour of Mr O’Doherty, asserting that Mr O’Doherty had made false allegations of religious discrimination against Mr Ferguson (those allegations being similar to, or the same as, the allegations of religious discrimination which are made against Mr Ferguson in the present proceedings).
61. In these proceedings, Mr O’Doherty asserts that, by initiating that grievance, Mr Ferguson carried out an act of religious discrimination.
62. In his oral testimony in these proceedings, Mr Ferguson told us that he was advised by a GMB trade union representative to put in that grievance. In the context of this religious discrimination claim, the main issue for us is whether or not Mr Ferguson was affected, at a conscious level, by anti-Catholic bias, in putting in his grievance against Mr O’Doherty. Having listened carefully to the testimony of Mr Ferguson, we are satisfied about two matters. First, we are satisfied that, at the relevant time, Mr Ferguson was worried and frustrated because, as he saw it, allegations of religious discrimination were being made dishonestly against him by Mr O’Doherty. (Incidentally, we ourselves have arrived at no conclusion whatsoever on the question of whether or not Mr O’Doherty’s allegations were made honestly or dishonestly). Secondly, we are satisfied that Mr Ferguson would have done exactly the same (would have commenced an internal grievance against the person who he saw as the “perpetrator”) if he thought that an individual was making false allegations of, say, sex discrimination against him. For the latter reason, and because we believe Mr Ferguson’s assertions that he was not affected by anti-Catholic bias, we conclude that the claim of religious discrimination, in respect of Allegation 9, has to be rejected.
63. However, we think it is generally not appropriate conduct for a senior officer of a public authority to launch a grievance against a person, because that person has made an allegation of religious discrimination against that senior officer, unless he (the relevant senior officer) has at the time got clear evidence that the allegations against himself have been made both falsely and in bad faith.
Chairman:
Date and place of hearing: 5-7 January 2011, Belfast.
Date decision record ed in register and issued to parties: