Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS:   165/09 FET

47/10 FET

 

 

 

CLAIMANT:                          David Halliday

 

 

RESPONDENTS:               1.         Royal Mail Group Ltd

                                                2.         Paul Corrigan

                                                3.         Rory Culbert

 

 

DECISION

 

The unanimous decision of the Tribunal is that the claimant was subjected to sectarian harassment in the form of graffiti, by an unidentified employee or employees of the       first-named respondent, that the first-named respondent is vicariously liable for those unlawful acts and that the first-named respondent has not established the ‘employer’s defence’ as set out in Article 36(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998.  The claimant is awarded £7,500.00 in respect of injury to feelings plus interest of £1,250.00, making the total £8,750.00.  The remainder of the claim against the first-named respondent and the claims against the second and third-named respondents are dismissed. 

 

Constitution of Tribunal:

Vice President:                   Mr Noel Kelly

Members:                             Mr George Hunter

                                                Mr James Devlin

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondents were represented by Mr David Sharpe, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

 

Relevant findings of fact

 

1.         The claimant had been an employee of the first-named respondent (‘RMG') for 32 years and at the relevant time was a Delivery Operations Manager (‘DOM’) in the Donegall Quay building, responsible for deliveries in part of Belfast. 

 

2.         The claimant’s line manager was Mr Barry Cullen.  He was the Delivery Sector Manager for all of Belfast and also for Newtownabbey. 

 

            Six Assistant Delivery Operations Managers (‘ADOs’) reported directly to the claimant.  These were:-

 

                        Mr Rory Culbert;

 

                        Mr Michael Bellew;

 

                        Mr George McKeown;

 

                        Mr Malachy Mulholland;

 

                        Ms Clar McGuinness; and

 

                        Mr Eric Early.

 

3.         Another more junior employee, Mr Jim Kennedy, worked as a DOM Support.  His normal immediate line manager was Mr Rory Culbert but at the relevant times, Mr Culbert was engaged elsewhere within RMG on project work and, at the relevant times, Mr Kennedy’s temporary line manager was Mr Michael Mulholland. 

 

4.         RMG has a security team who are employed mainly to deal with cases of fraud and other criminal offences within the postal system.  On the evidence before the Tribunal, they also have a role in assessing whether any particular incident poses a security risk to an employee. 

 

5.         In January 2009, the security team completed an internal investigation which has no direct connection with the current claim.  Following that investigation, the claimant was advised that the security team had found no direct evidence of fraud on the part of Mr Kennedy, but that there appeared to be issues about Mr Kennedy’s performance in monitoring overtime records.  Those issues were issues which fell to be dealt with by line management in the normal way rather than by the security team. 

 

6.         On 28 January 2009, the claimant spoke to Mr Kennedy and informed him that, as a result of what he had been told, by the security team, he had lost trust in Mr Kennedy’s ability to perform his duties.  He immediately moved Mr Kennedy to postman duties pending an enquiry into his performance. 

 

7.         On 4 February 2009, the claimant attended a meeting with the other DOMs and Mr Cullen in a room in the Donegall Quay building.  A notice on the wall of that room had been defaced to describe the claimant as a ‘c**t’. 

 

8.         On 5 February 2009, the claimant wrote to his line manager, Barry Cullen, in the following terms:-

 

“I have been informed by a reliable source who wishes to remain anonymous that Jim Kennedy has been contacted by elements within our business (possibly CWU officials?) with advice regarding his present involvement in conduct cases about fraudulent behaviour.  He has allegedly been advised to make up allegations about myself and my reasonings [sic] for transferring him from his duty.  Whilst I am not unduly concerned about these falsehoods I will of course use this info. [sic] in any future defence and I would naturally expect the investigations manager to utilise same in his findings.”

 

9.         Mr Kennedy had gone on sick leave shortly after his interview with the claimant on 28 January 2009.  On 5 February 2009, Mr Mulholland and Mr Culbert visited Mr Kennedy at his home, in connection with his sick absence.  Mr Culbert’s unchallenged evidence was that this was a normal visit under the sick absence procedures; it had been directed by the claimant himself.  Mr Kennedy had been unwilling to attend the Donegall Quay building because he was so upset at what he regarded as poor treatment from the claimant.  The meeting was therefore held at Mr Kennedy’s home rather than in RMG premises and, on that basis, Mr Mulholland accompanied Mr Culbert as a witness. 

 

10.       On 18 February 2009, the claimant called Mr Mulholland and Mr Culbert into his office.  He was concerned about progressing the investigation of the performance issues relating to Mr Kennedy.  He wanted the initial stage of the conduct procedure, a fact-finding exercise, to be completed by one of them as Mr Kennedy’s immediate line manager and for that report to be placed on his desk for further action.  It was not in dispute before the Tribunal that the fact-finding exercise was therefore to be predetermined, ie that the result of the fact-finding exercise was to be that issues relating to Mr Kennedy would be referred to the claimant for further action at his managerial level.  Mr Culbert reacted strongly to this suggestion and told the claimant that while he would have had no difficulty in conducting a                    fact-finding exercise, he was not going to predetermine the result of that exercise.  If the result of the fact-finding exercise indicated that no further action was warranted, that is the decision he would make. 

 

11.       This was a tense meeting with the claimant on one side of the argument and Mr Mulholland and Mr Culbert on the other.  The claimant clearly harboured suspicions that there was a degree of support for Mr Kennedy within the workforce (see his e-mail of 5 February 2009) and reacted strongly to any suggestion that formal disciplinary action may not, on the evidence, be merited.  He stopped the meeting for a cooling-off period and the meeting resumed some time later, probably 35 minutes later.  Both Mr Culbert and Mr Mulholland regarded this cooling-off period as a possible precursor to disciplinary action against them.  RMG’s practice, when a reasonable instruction has been refused, is to allow a 10 minute cooling-off period.  Following that cooling-off period, if the instruction is still refused, disciplinary action is taken.  The stalemate continued at the resumed meeting and nothing was resolved at that point.

 

12.       On the following day, 19 February 2009, the claimant called Mr Mulholland into his office and apologised for the heated meeting.  Mr Mulholland accepted the claimant’s apology although he clearly remained annoyed at the whole incident.  The claimant attempted to repeat the process with Mr Culbert, but with no success.  The previously good working relationship between the claimant and Mr Culbert had been irretrievably damaged at this point by the events on the previous day. 

 

13.       Mr Culbert lodged a formal complaint on 25 February 2009 alleging that he had been bullied and harassed by the claimant in the course of the two meetings on 18 and 19 February 2009. 

 

14.       At about this time, and the precise date appears to be uncertain, the claimant was the subject of a discussion between two off duty postmen who were socialising in a West Belfast GAA Club.  They expressed the view that the claimant did not like Catholics.  That conversation was overheard and reported back to the claimant’s wife who also worked for the respondent in the Donegall Quay building. 

 

15.       The tribunal decision should record here that there was absolutely no evidence that the claimant harboured any antipathy towards Catholics.  He had had a clear disciplinary record over 30 years working for the respondent in a mixed workforce.  The complaint made by Mr Culbert, who was the claimant’s direct subordinate, made no such allegation and Mr Culbert made it clear in evidence that before the incidents on 18 and 19 February 2009, he had had a good working relationship with the claimant; that the claimant had assisted him with training and mentoring and that the claimant and his wife had bought a present to mark the christening of Mr Culbert’s child.  The Tribunal is therefore satisfied that the allegation of religious bias against the claimant was without foundation.  Nevertheless, the allegation was clearly worrying and upsetting for both the claimant and his wife. 

 

16.       An investigation of sorts appears to have been conducted by the security team employed by RMG.  It interviewed the claimant’s wife and it also interviewed the person who had overheard the conversation in the GAA Club.  The security team concluded that the remarks were not said in a ‘threatening way’ and, on the evidence before the tribunal appeared to have left the matter at that point. 

 

17.       A third incident then occurred on 3 March 2009.  In the toilets on Level 3 in the Donegall Quay building, the following graffiti appeared:-

 

“HA HA HALLIDAY [THE CLAIMANT], NICE ONE RORY [RORY CULBERT]WHO HAD LODGED A COMPLAINT] R DAY HAS COME.”

 

18.       The graffiti was removed.  The issue was referred by Mr Cullen to the security team but the Tribunal heard no evidence of any concrete steps having been taken to investigate the matter by either identifying those staff who would have had access to the toilets at the relevant time or by seeking to interview any of those staff.  Equally, it does not appear that the issue was raised with any of those staff, either by way of a team briefing or by way of a specific notice on any of the notice boards in the area or by way of a general e-mail or memo issued to all relevant staff.  No request was made for assistance in identifying the culprit and no attempt was made to remind staff that such behaviour was unacceptable or to warn of disciplinary sanctions if any employee was found to have engaged in harassment. 

 

19.       The security team’s assessment could be summarised in the following sentence in their undated minute following their investigation:-

 

“My assessment of the above is that although there appears to be talk and graffiti against Mr Halliday [the claimant] there certainly has not been any threats.  David and Shirley [the claimant and his wife] are obviously not happy with the state of affairs that they find themselves in.”

 

The claimant was advised of the services offered by an Occupational Health Helpdesk and that appears to have been the sum total of the action taken by RMG.

 

20.       On 1 May 2009, further graffiti appeared in a room in the Donegall Quay building.  As in the second incident, a notice was defaced to describe the claimant as a ‘c**t’.

 

21.       It was common case that RMG had experienced problems with graffiti in the aftermath of a serious industrial dispute in 2005.  The graffiti at that stage appears to have focused on those who had worked normally during the industrial action and does not appear to have been sectarian in nature.  Notices were placed, in 2005 or immediately thereafter, on each floor in the Donegall Quay building.  Those notices were countersigned by the relevant manager and the relevant CWU representative for each such floor.  Notices read:-

 

“Management and CWU would urge that staff refrain from writing on the walls in cubicles in any of the toilets on Level ___.

 

Everyone working for Royal Mail has a right to come to work and be free of any form of bullying or harassment.

 

We now urge that this is stopped immediately.

 

Royal Mail run a zero-tolerance approach to this behaviour and anyone found writing on the walls would dealt with under the conduct code.”

 

22.       The wording of those notices specifically requests ‘that this is stopped immediately’ and therefore focuses the warning on one point in time and on one issue.  It does not specifically refer to sectarian harassment and appears to be rooted specifically in the aftermath of the 2005 industrial dispute.  There was no evidence before the Tribunal that it had been updated or modified in any way since that point in time. 

 

23.       RMG has a bullying and harassment procedure which recognises that graffiti can amount to harassment.  That procedure deals with the type of situation where there is an individual complainant and a known and identified respondent.  It does not seem to be helpful in the type of situation faced by the claimant in the present case, ie where an employee is the subject of anonymous graffiti with a sectarian overtone. 

 

24.       RMG’s witnesses stated that they had a zero-tolerance approach to sectarian harassment.  That assertion will be discussed later in this decision. 

 

25.       Mr Culbert’s complaint against the claimant was initially investigated by Mr Paul Corrigan, an RMG Senior Manager based elsewhere in the Belfast area.  Mr Culbert had alleged that he had been unfairly treated and threatened by the claimant in that he had been told to complete a fact-finding exercise into Mr Kennedy and to pass it to the claimant for further action, ie to conclude the     fact-finding exercise with a predetermined recommendation that formal disciplinary action was warranted at the claimant’s managerial level. 

 

26.       Mr Culbert had completed a statement immediately after the meeting on 18 February 2009 and that statement had been signed by him and also by Mr Mulholland.  The bullying and harassment investigation procedures laid down by RMG required that Mr Corrigan should first interview Mr Culbert as the complainant, and then the claimant as the respondent to that complaint.  Witnesses would only be interviewed afterwards.  Mr Corrigan in fact interviewed Mr Culbert first, Mr Mulholland second and the claimant third.  Mr Corrigan stated that he proceeded in this way because Mr Culbert and Mr Mulholland had jointly signed the statement relating to the meeting on 18 February 2009.  Mr Culbert was, however, the only complainant.  Mr Mulholland was simply a witness.  Furthermore, the statement, which had been jointly signed, related only to 18 February 2009 and could not have and did not relate to the meeting between Mr Culbert and the claimant on 19 February 2009, at which Mr Mulholland had not been present.

 

27.       Mr Corrigan asked the claimant and Mr Culbert, separately, who they wanted him to interview in relation to the complaint and the response to that complaint.  The claimant suggested Mr John Thompson, another DOM, who was the claimant’s friend and who had witnessed one and possibly two of the incidents of graffiti.  Mr Culbert suggested three other ADOMs; Clar McGuinness, Michael Bellew and George McKeown.  These ADOMs were all Catholics.  Mr Corrigan was not asked to interview the remaining ADOM, ie Eric Early, who was a Protestant.

 

28.       The ADOMs nominated by Mr Culbert for interview did not witness the meetings on either 18 February 2009 or 19 February 2009, which were the subject of the complaint.  There is, therefore, no obvious reason why they should have been interviewed by Mr Corrigan.  He felt, however, that he needed more information on the claimant’s managerial style to enable him to assess the allegations.  The ADOMs were nominated by Mr Culbert because Mr Culbert felt they would be helpful, in some way, into his complaint in relation to 18 February 2009 and 19 February 2009.  They did not allege that the claimant was anti-Catholic.  They did, however, state that he was ‘a professional bully and his tactics are to take things right to the line but not overstep the line’ [Michael Bellew], ‘a bully who likes to intimidate people’ [George McKeown] and ‘that his management style was aggressive and intimidating’ [Clar McGuinness]. 

 

29.       These allegations were not put to the claimant for comment although Mr Corrigan clearly used them to make a judgment on the managerial style of the claimant.  While Mr Corrigan, in the course of his evidence to the Tribunal, sought to minimise the importance of this evidence and to insist that he had concentrated on the incidents on 18 February 2009 and 19 February 2009, it is inevitable that these extraneous allegations had some influence on his decision-making process.  The statements of the three ADOMs should have been put to the claimant for comment.  If they had been put to the claimant, the Tribunal concludes, after carefully listening to the claimant’s evidence, that the claimant would have asked for other witnesses to be called, including Mr Early, to put his own version of his management style before Mr Corrigan.  He was denied that opportunity and there was therefore a significant unfairness in the investigation process.

 

30.       The allegations made by Mr Culbert were broken down by Mr Corrigan into six separate allegations.  Mr Corrigan upheld four allegations and did not uphold two allegations.  However, he considered the matter sufficiently serious to refer it onwards for disciplinary action.  The claimant was charged with:-

 

“(1)      Attempting to intimidate and bully Mr Culbert into carrying out a      fact-finding interview with an outcome determined by you, through telling him to place the case on your desk (thus having the case passed to you to deal with) and using a five minute cooling off period to put undue pressure on him.

 

 (2)      Making a threatening allegation that Rory had been ‘got at’ in reference to meetings in West Belfast.

 

 (3)      Deliberately ‘blanking’ and ‘snubbing’ Mr Culbert by placing the keys for BT13 in front of another ADOM when Mr Culbert would normally be the manager that the keys would be given to.”

,

31.       The initial disciplinary stage was conducted by Mr Ian Haxton, a RMG Senior Manager based in Edinburgh.  He found Mr Mulholland to be a key witness.  Mr Mulholland liked and was very supportive of the claimant.  Nevertheless Mr Mulholland’s evidence was that the claimant had been adamant in the meeting on 18 February 2009 that the case against Mr Kennedy should be referred upwards to him after the completion of the fact-finding exercise and the claimant had taken the view that both Mr Culbert and Mr Mulholland were failing to follow an instruction.  Mr Haxton concluded that the claimant had bullied Mr Culbert and had placed him under undue pressure.

 

32.       Mr Haxton did not uphold the second part of the first charge.  He concluded that he did not have sufficient evidence to find that the claimant had deliberately used a cooling off period as a threat that Mr Culbert and Mr Mulholland would face a conduct charge if his instructions were not followed. 

 

33.       Mr Haxton also upheld the second and third charges and imposed a penalty of a serious warning, to remain on the claimant’s file for two years, and a disciplinary transfer at the claimant’s existing grade. 

 

34.       The claimant appealed that finding and the penalty.  The appeal was heard by Mr Neilson, another Senior RMG Manager based in Edinburgh.  In a carefully considered 47 page report, Mr Neilson upheld all three charges and the penalty. 

 

Contentions of the parties

 

The claimant

 

35.       The claimant alleged that RMG had failed to deal properly with the incidents of harassment on 4 February 2009, 3 March 2009 and 1 May 2009, together with the incident in the GAA Club which had occurred probably at the end of February 2009.  He argued that the proper procedure had not been followed by RMG.  It had been settled practice within RMG for a proper investigation to have taken place in relation to any incident of harassment and for the relevant staff to be reminded of the               zero-tolerance approach adopted by RMG at a team briefing.  This had not happened in the present case.  The claimant also alleged that Mr Culbert, the       third-named respondent, had been motivated by anti-Protestant bias in nominating the three Catholic ADOMs to be interviewed by Mr Corrigan and that Mr Corrigan, the second-named respondent, had been influenced by anti-Protestant bias in the manner in which he conducted his investigation and in the conclusions which he had reached.  The claimant also argued that Mr Haxton and Mr Neilson, in turn, had adopted and had been influenced by Mr Corrigan’s improper findings.  Their findings had therefore been ‘the fruit of the poison tree’.

 

The respondents

 

36.       The first-named respondent alleged that it had a zero-tolerance policy to graffiti and to sectarian harassment generally.  The respondents had acted properly in relation to the GAA Club incident and to the incidents of graffiti.  The complaint, the investigation, the disciplinary and appeal processes had all been conducted properly and were free from anti-Protestant bias or influence.  The claimant had acted improperly in trying to bully Mr Culbert into conducting a predetermined fact-finding exercise into Mr Kennedy’s conduct and had been appropriately disciplined. 

 

The issues

 

37.       The issues for this Tribunal to determine are:-

 

“Whether the first, second or third-named respondents unlawfully discriminated against the claimant, as alleged, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.”

 

Relevant law

 

38.       Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the Order’) provides:-

 

                        “3(1)    In this Order ‘discrimination’ means –

 

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

 

(b)       discrimination by way of victimisation; and

 

                                    ‘discriminate’ shall be construed accordingly.

 

(2)     A person discriminates against another person on the ground of religious belief or political opinion in any of the circumstances relevant for the purposes of a provision of this Order, other than a provision to which Paragraph (2A) applies, if –

 

(a)       on either of those grounds he treats that other less favourably than he treats or would treat other persons.”

 

39.       Article 3A of the Order provides that:-

 

“(1)      The person (‘A’) subjects another person (‘B’) to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, (‘A’) engages in unwanted conduct which has the purpose or effect of –

 

                        (a)       violating (‘B’s’) dignity; or

 

(b)       creating an intimidating, hostile, degrading, humiliating or offensive environment for (‘B’).

 

Conduct shall be regarded as having the effect specified in             sub-paragraphs (a) and (b) of Paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of (‘B’), it should reasonably be considered as having that effect.”

 

40.       Article 19 of the Order provides:-

 

“(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.”

 

41.       Article 36 of the Order provides that:-

 

“(1)      Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

 

 (4)      In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description.” 

 

42.       Article 38A of the Order provides:-

 

“Where on the hearing of the complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

 

(a)       has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

 

(b)       is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant,

 

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

 

43.       The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof, in relation to religious discrimination or any other anti-discrimination provisions, has been discussed several times in case law.  The Court of Appeal has recently re-visited the issue in the case of Nelson  v  Newry & Mourne District Council [2009] NICA -3 April 2009.  The court held:-

 

“22      This provision and its English analogue have been considered in a number of authorities.  The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been.  The Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage   decision-making process.  The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

 23       In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

 

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

 

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’. 

 

24       This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

Decision

 

44.       The claimant was not shown the statement which had been taken by the security team from the employee who had overhead the conversation which had taken place in the GAA Club concerning the claimant.  Mr Potter invited the Tribunal to draw an adverse inference of unlawful discrimination from that particular fact.  The Tribunal does not believe that it would be appropriate to do so.  It seems to the Tribunal that the statement would, in all probability, have been taken by the security team under an expectation of confidence and that in those circumstances it was inevitable that RMG would have been reluctant to give it any wider circulation.  In those circumstances a reasonable inference of unlawful discrimination could not properly be drawn and as the case law referred to above demonstrates, the tribunal’s focus must be on unlawful discrimination.

 

45.       RMG alleged that it had in place and that it had operated a zero-tolerance approach towards harassment generally and towards graffiti in particular.  The evidence given to this Tribunal was that RMG’s approach towards graffiti had its roots in the 2005 industrial dispute and in the understandable desire on the part of both management and the CWU to draw a line under the bitterness and bad feeling created by that dispute.  The notices which the tribunal was told were put in place then and were still displayed on each floor in Donegall Quay emerged in that context, and on the evidence before this Tribunal, have not been updated.  The wording of those notices is consistent with those notices being a response to a pre-existing and specific pattern of graffiti rather than a proactive reminder to staff of the need to avoid bullying or harassment by graffiti  There appears to be no set policy within RMG, again on the evidence before this Tribunal, to cover the situation where anonymous graffiti of a sectarian nature emerges naming an employee.  The claimant alleged that there had been a settled practice to deal with such cases and that that settled practice had not been followed in her case.  He could produce no clear evidence of the existence of such a practice.  Mr Cullen, in his evidence, was quite clear that there was no such settled practice and that a ‘value judgment’ had to be taken in each case. 

 

46.       Mr Cullen’s evidence was, in the opinion of this Tribunal, significant.  It appeared that Mr Cullen did not regard either the graffiti in relation to the claimant or the conversation in the GAA Club as a particularly serious matter.  He appeared to have focused, almost exclusively, on whether or not there had been an actual physical threat to the claimant.  He said in evidence that the graffiti had not been particularly serious, compared to some that he had seen in other cases which had contained actual paramilitary threats.  There seemed, therefore, almost to be an assumption, on his part, and on the part of RMG, that nothing need be done in the case of sectarian harassment unless there was an actual physical threat.  That is not a defensible position.  The definition of harassment in the Order and indeed in other anti-discrimination legislation, is not restricted to circumstances where there is an actual physical threat. 

 

47.       Mr Cullen also maintained, under cross-examination, for a period of perhaps five minutes, that the phrase ‘R day has come’ has no significance in Northern Ireland or on a sectarian basis, before eventually conceding the point.  It is clear to this Tribunal that it refers to ‘Tiocfaidh ar lá’ or ‘our day will come’ and that it has clear sectarian significance.  It is a phrase which could, and in this case did, create a hostile, intimidatory and offensive atmosphere for a Protestant worker.

 

48.       No proper investigation appears to have been undertaken or even attempted, into the incidents of graffiti in this case.  Relevant staff were not identified, were not interviewed, were not reminded of the zero-tolerance policy, and were not asked for their assistance in identifying the culprits.  The notices had not been updated and there appears to have been nothing by way of a proactive approach on the part of RMG in relation to sectarian harassment within the workplace before, during or after the relevant incidents.  On the evidence before the Tribunal, the only substantive reaction to the relevant incidents taken by RMG was to check whether there had been a physical threat against the claimant.  Mr Cullen’s evidence was particularly concerning where he stated that “if he had banged the drum” it might have made the situation worse and that it might have provoked further graffiti.  It might ‘have added fuel to the fire’.  It is not a defensible position on the part of an employer, particularly a large employer, to keep its head down and to hope that harassment will cease of its own volition.  Anything less than a vigorous and proactive approach will inevitably leave a harassed employee feeling isolated and unsupported.

 

49.       It is the Tribunal’s view that the context for all of this was set particularly by the conversation within the GAA Club and by the graffiti which appeared on 3 March 2009.  It was clear that a view had been taken by one or more employees within RMG that the claimant did not like Catholics and that there was an element of sectarian triumphalism in recording in graffiti on 2 March that a complaint had now been made against the claimant by a Catholic employee.  An employee, of whatever grade, who is subjected to sectarian harassment, is entitled to see his employee take a proactive stance.  It seems to be common case that very little was done by RMG in this case.  It is the Tribunal’s view that RMG’s actions before the relevant incidents, fell far short of the standard necessary to satisfy the employer’s defence contained within Article 36(4) of the Order.  At the very least, RMG should have updated, on a regular basis, the notices which had been placed in its building in the aftermath to the 2005 industrial dispute; it should have focused those notices not just on the aftermath of that industrial dispute but on the broader need to avoid sectarian and other forms of unlawful harassment; it should have created a practice and an expectation that sectarian harassment would be treated seriously and that management would not simply ‘keep its head down and hope it would go away’ in those circumstances.  There should have been an expectation that investigations, even if they might not necessarily have achieved a result in every case, would have been undertaken with some rigour into any incident of sectarian graffiti appearing within a RMG building. 

 

50.       While the conversation in the GAA Club would not have occurred in the course of employment, it is clear that the graffiti could only have been written by an RMG employee, in the course of their employment and when the three incidents were considered together, that it was sectarian in character.  On that basis, the first-named respondent is vicariously liable for that unlawful act.  For the reasons set out above, the employer’s defence has not been made out.  The first-named respondent is therefore liable in that respect. 

 

51.       The claimant was disciplined following the incidents on 18 and 19 February 2009.  The Tribunal does not regard this disciplinary process as inappropriate or tainted by unlawful discrimination.  It is therefore important for the Tribunal, when assessing the injury to feelings suffered by the claimant as a result of the unlawful sectarian harassment, to be careful, insofar as it is possible to do so, to exclude any injury to feelings suffered by the claimant as a result of the disciplinary process.

 

            As the Court of Appeal made clear in Vento  v  Chief Constable of West Yorkshire Police [2003] IRLR 102, assessing the subjective feelings of a claimant is always going to be a difficult exercise. 

 

            After carefully observing the claimant give evidence, the Tribunal is satisfied that he felt let down by his employer’s failure to take appropriate action in relation to the graffiti, particularly the graffiti which contained ‘R day will come’.  He was upset and worried.  He felt isolated and unsupported.  As against that, the claimant is clearly a reasonably robust character.

 

            The Tribunal’s conclusion is that the appropriate level of injury to feelings compensation is towards the lower end of the middle Vento band (upgraded for inflation) and that the appropriate figure in this case is £7,500.00.

 

            Interest at 8% per annum is payable from the date of the commencement of the injury to feelings.  In this case the Tribunal concludes the injury to feelings commenced on 3 March 2009.  There are no grounds for concluding that serious injustice would be caused by calculating interest on this basis – Article 7 of the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995.  Interest is therefore payable at £1,250.00.

 

52.       Rory Culbert

 

            Mr Culbert had had a previously good working relationship with the claimant.  He had been asked by Mr Corrigan to nominate witnesses for interview by Mr Corrigan.  Since the complaint concerned incidents in 18 and 19 February 2009 which were not witnessed by anyone else (apart from Mr Mulholland in respect of 18 February 2009) it is clear that Mr Corrigan would have been better advised not to have sought to expand his investigation in that way.  However, having been asked by Mr Corrigan, Mr Culbert cannot be reasonably be criticised for putting forward the names of those he felt would be supportive of his complaint and for not putting forward Mr Early’s name.  He regarded Mr Early as the claimant’s close friend and his ‘lieutenant’.  Mr Culbert was a junior manager complaining about a more senior manager.  His head was, at that stage, above the parapet and in those circumstances, Mr Culbert was not required, as Mr Potter suggested he was required, to be ‘neutral’.  Furthermore, Mr Culbert is married to a Protestant and, as he put it in evidence, if he suffered from anti-Protestant bias he would not remain married for long.  On the evidence before the Tribunal, there is no basis on which the Tribunal could reasonably infer that Mr Culbert’s actions in relation to the complaint were motivated in any way by the claimant’s religious beliefs.  The claim against Mr Culbert is therefore dismissed.

 

53.       Paul Corrigan

 

            Mr Corrigan interviewed Mr Mulholland out of the normal order in which interviews should have taken place.  It is clear that the internal RMG procedure had not been strictly followed.  Mr Potter also complained that Mr Corrigan had asked leading questions in his interviews with the ADOMs.  That is indeed correct, but it appears to this Tribunal that generally these leading questions followed answers which Mr Corrigan had already received to open questions which he had put to the interviewees.  It is equally clear that Mr Corrigan asked both the claimant and Mr Culbert to nominate witnesses for further interview.  To that extent both parties were treated equally.  He did not put the evidence, which he had obtained Ms McGuinness, Mr Bellew and Mr McKeown, to the claimant for comment when he clearly should have done so.  Having obtained the information that he did obtain from those three ADOMs, he should have expanded his enquiries, to the extent that those enquiries were in any event relevant, to include Mr Early and perhaps others.  However, all of this has to be considered in the context which it appears.  The claimant did not dispute that he had insisted, whether Mr Culbert or Mr Mulholland had agreed to do the fact-finding exercise into Mr Kennedy, that that exercise should be progressed to formal disciplinary action at his level.  That predetermined the outcome of the fact-finding exercise.  The tribunal is satisfied that this had not been standard practice within RMG.  The e-mails referred to by the claimant as evidence of that practice were ambiguous as best.  The evidence of Mr Cullen, Mr Cosgrove and Mr Culbert was that no such practice existed. 

 

54.       This appears, in the opinion of the Tribunal, to one of those situations anticipated by Elias J in Laing  v  Manchester City Council [2006] IRLR 748 in which he stated:-

 

“The focus of the Tribunal’s analysis must at all times be the question of 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 [of proof] 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.”

 

Those findings in relation to race discrimination are, of course, equally applicable to religious discrimination.

 

55.       Mr Corrigan did not need to go wider than the incidents which had occurred on 18 and 19 February 2009.  Having done so, it would appear that his motivation was to make some form of assessment as to the claimant’s management style and for that assessment to influence his decision-making.  In relation to the order in which he interviewed witnesses, the simple explanation appears to be that he interviewed Mr Mulholland second because Mr Mulholland and the complainant had jointly signed a statement in respect of the incident on 18 February 2009 and therefore, in respect of the incident on that date, he felt it appropriate to interview them both before interviewing the respondent to the complaint.  His failure to put the comments of the ADOMs to the claimant for comment and his failure to expand the investigation wider once he had opened that particular door, are poor exercises in judgment on his part.  However, the Tribunal has listened carefully to his evidence, as indeed to the evidence of all the witnesses in this case and, in the absence of any evidence which touches on any hint of sectarianism on his part, is satisfied that, even if the burden of proof has shifted, his actions were a genuine, if procedurally inappropriate, way of reaching a proper conclusion to a complaint and were not in any way motivated by anti-Protestant bias.  The complaint against Mr Corrigan is therefore dismissed. 

 

56.       This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1995.

 

 

 

 

 

 

 

Vice President:

 

 

Date and place of hearing:          7 – 9 March 2011, Belfast

 

 

Date decision recorded in register and issued to parties: