Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS:    55/07 FET

374/07

 

CLAIMANT:                          Paul Breen

 

RESPONDENT:                  Bombardier

 

 

DECISION

 

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

 

 

Constitution of Tribunal:

 

Chairman:                            Mr B Greene

 

Members:                             Mrs D Adams

                                                Ms E McFarline

 

 

Appearances:

 

The claimant appeared in person until Gerry Crawford, Solicitor came on record on 12 May 2010.  Mr P Moore, on behalf of Gerry Crawford Solicitor, appeared for the claimant from 21 September 2010.

 

The respondent was represented by, Mr Ralph Murphy of EEF until 27 September 2010 when he withdrew as the respondent’s representative, on 28 September 2010 by Mr P Block of EEF and from 22 November 2010 by Mr Martin Wolfe, of counsel, instructed by EEF.

 

 

SOURCES OF EVIDENCE

 

1.                 The Fair Employment Tribunal heard evidence from the claimant and his witnesses Paul Gregge, Louis McGettigan, Paul McBride and Dr Loughrey, Consultant Psychiatrist and on behalf of the respondent from Detective Constable Lemon, Detective Constable Wills, Michael Bingham, Wendy Bailie, Gary Small, Ken Balfour and Rory Galway.  The Tribunal also received 19 bundles of documents amounting to some 715 pages and two written submissions of 61 pages.

 

 

THE CLAIM AND THE DEFENCE

 

2.                 The claimant claimed he suffered discrimination on the ground of his religion and was constructively dismissed.  The respondent denies the claimant’s claims in their entirety. 

THE ISSUES

 

3.         (1)     Whether, on the ground of religious belief, the respondent treated the claimant less favourably than it treats or would treat others in circumstances which are the same or not materially different. 

 

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

 

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

 

(b)     which puts the claimant at that disadvantage;

 

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

 

(3)          Whether the acts of religious discrimination suffered by the claimant were carried out in the course of his employment.

 

(4)          Whether the claimant has brought his claim for religious discrimination within the statutory time-frame.

 

(5)         If not, should time be extended to enable him to continue with his claim.

 

(6)         If the claimant did suffer an actionable act of discrimination what is the appropriate remedy.

 

(7)         Did the respondent unlawfully constructively dismiss the claimant.

 

(8)         If the claimant suffered an unlawful dismissal what is the appropriate remedy.

 

Mr Moore, in his closing submissions, indicated to the Tribunal that the claimant was making a claim of direct discrimination on the ground of religion.

 

 

FINDINGS OF FACT

 

4.         (1)     The claimant, a Catholic, was employed by the respondent as an aircraft fitter from 29 June 2000 until 20 December 2006 when he resigned.  It is accepted that the claimant was a very capable fitter.  The claimant also worked in his family car sales business.

 

                     The claimant had a previous period of employment with the respondent in 1999.  At that time some of his fellow workers had refused to speak to or make contact with him and fellow Catholic employee, Paul McBride because of their Catholic religion.

 

            (2)     The respondent is an international aircraft company with a number of sites in Northern Ireland.

 

            (3)     Johnny Blair was a lead hand.  Gary Small, a Catholic, was manager of Johnny Blair and the claimant.  The claimant believed that Gary Small was a friend of Johnny Blair and himself.  The claimant and others also believed that Johnny Blair was not a competent worker though Gary Small denied this.

 

            (4)     Gary Small on occasions had overturned Johnny Blair’s decisions on repairing errors or hold-ups on the build and overridden his authority by asking the claimant to do the work to avoid additional unnecessary work.  The claimant believed that Johnny Blair bore him animosity for this.

 

                     Gary Small bought a car from the claimant and the claimant believed that this made the situation with Johnny Blair worse.  The Tribunal accepts that Gary Small also sold cars for the claimant.  The Tribunal rejects Gary Small’s denial of this as unworthy of belief.

 

            (5)     On 19 March 2005 the claimant sold a car to Johnny Blair, in what the claimant considered was a very good deal for Johnny Blair.  In the course of negotiations, which involved a part exchange, cash and the retention by Johnny Blair of his car’s alloys, the claimant met with Johnny Blair in the respondent’s car-park during the night shift.  At this meeting Johnny Blair produced an AK47 from under a blanket in the back seat of his car and asked the claimant to buy it for £600 which the claimant refused.

 

                     The next morning the claimant states that he reported the incident to Gary Small in case the security cameras had recorded the incident.  Gary Small said he would speak to Johnny Blair, the claimant contends.  Mr Small denies this incident completely.  The Tribunal is not persuaded that the claimant reported the incident to Gary Small.

 

                     The claimant further alleges that he mentioned the incident to Ronnie Anderson who referred to other alleged incidents when Johnny Blair had firearms on the premises.  Other employees of the respondent repeated allegations they had heard about Johnny Blair bringing weapons on to the respondent’s premises to the Tribunal and to the Harbour Police in the course of the investigation of these events.

 

                     In the course of an interview with the Harbour Police on 20 December 2007 Gary Smith had stated that Ronnie Anderson had told him about the AK47 incident in late 2006 and that he had reported that incident to the respondent’s security

 

            (6)     In September 2005 the claimant began to receive calls on his mobile phone and home phone.  In the calls he was accused of being involved in republican paramilitary activity and money laundering.  The claimant believed that these phone-calls had something to do with his relationship with Johnny Blair.  The claimant related this to Johnny Blair and asked him what he had done with the rifle to which Johnny Blair replied that he had sorted it out and for the claimant not to worry.

 

            (7)     On 23 November 2005 the claimant found in his locker at work an envelope containing a live bullet, a sympathy card with a threat which stated, “We no who you lawnder money for, your names on this one Taig beware”.

 

            (8)     The claimant reported the incident immediately to the lead hand Ronnie Anderson who reported it to Gary Smyth, the night shift manager.  The claimant was then interviewed by the respondent’s security officer, William Wilson, who removed the evidence and let the claimant go home.

 

During that night after this incident the claimant made Ronnie Anderson, Gary Smyth, Gary Small and the security officer aware of previous threats to him.

 

(9)     Ken Balfour, Director of Security, referred the matter to the Harbour Police because of the seriousness of the incident and because the respondent had neither the skills nor the authority to investigate the incident on a wider scale.

 

(10)  Mr Rory Galway, the respondent’s HR Manager and Michael Bingham HR Business Partner interviewed the claimant on 24 November 2005 about the incident.

 

During the interview the claimant mentioned being taunted about only using the company for a tax code and he named Robert McDevitt as his suspect behind the accusations.

 

The claimant did not mention the name of Johnny Blair at this meeting as he feared for the consequences.

 

                     The claimant returned to work the next night.

 

(11)  Detective Constable Gary Brolly, from the Harbour Police, then interviewed the claimant about the incident and obtained a statement from him on 29 November 2005.

 

(12)  After the incident the claimant started to receive death threats and allegations of links to a paramilitary organisation on his mobile phone.  The threats contained the statement that he could be got at work.

 

(13)  In December a vehicle at premises used by the claimant’s family car sales business was damaged.  The claimant believed that this was connected to the threats at work.

 

(14)  In a further incident, just after Christmas 2005, an engine in an Audi car for sale in the claimant’s family car business was sabotaged when grit was placed in the oil delivery aperture.  This was reported to the PSNI, Harbour Police and the respondent’s security.

 

Two nights later Johnny Blair asked the claimant if he knew of anyone who had the same engine type for sale.

 

(15)  Whilst in Ballygowan on 11 January 2006 the claimant was accosted outside a barber’s shop by two men, unknown to him, who stated to him that he was being investigated and if found to be involved with republicans that he would be shot.  He was again warned that he could be got at work and reference was made to the earlier incident of damage to a car at the family business premises.

 

Immediately after the incident the claimant drove home past the local police station.  The claimant reported the incident to the PSNI at Comber and the Harbour Police.

 

(16)  On 17 January 2006 the claimant met with Michael Bingham and Ken Balfour, Director of Security, and informed them about the Ballygowan incident and the damage to the Audi car.  He also referred to a phone-call from Johnny Blair about paying too much to the claimant for the purchase of a car.  He was unsure if Johnny Blair was behind the threats.

 

Mr Bingham asked the claimant if there was anything further he could do for him and the claimant replied in the negative.

 

         In late January 2006 another car belonging to the claimant’s family car business had windows smashed and this was reported to the authorities.

 

(17)  On 6 February 2006 the claimant met with Michael Bingham to request a transfer in work.  At the meeting the claimant informed Mr Bingham of the threats and property damage.  He stated his belief that the threats were coming from within the area where the claimant worked and he asked for a transfer.  Mr Bingham informed the claimant that the transfer would take three to four weeks to effect.  Later that day Mr Bingham proposed a transfer to the Lear 45 contract on 27 February 2006.  The claimant said he was happy with the proposal.

 

(18)  On going to work the same night the lead hand, Johnny Blair, stated to the claimant that he knew of the transfer request and that he would block it which the claimant construed as a threat and found it disconcerting that he knew of his transfer request.  The claimant went home immediately and attended his doctor the next day.

 

(19)  The claimant’s G.P. provided him with a sick line on 7 February 2006 arising from depression and stress as a result of the harassment and intimidation received by the claimant.  The claimant was off work from 8 February 2006 and did not return to work.

 

(20)  On 8 February 2006 Wendy Bailie, Human Resources Business Partner, contacted the claimant by phone.  In the course of the conversation she expressed the view that she could not see what else the company could do for the claimant.  She went on to ask him what he thought the company could do, to which he replied that he did not know.

 

(21)  From February 2006 the claimant continued to receive threatening
phone-calls.

 

(22)  On 1 March 2006 Mr Bingham received a phone-call from Johnny Blair to express his concern that the claimant might try to blame him or another
ex-service employee for putting the bullet in the claimant’s locker.  Mr Blair also stated that the claimant was not speaking to him for some unknown reason.  Mr Bingham assured Mr Blair that he had not received any complaints from any employee concerning him or his behaviour.

 

(23)  In correspondence with, the claimant’s then solicitor, Ms Olivia Meehan of Fisher & Fisher Solicitors on 7 April 2006, Mr Galway stated that the respondent remained committed to ensuring the claimant’s return to work.  He further stated that the respondent was willing to discuss with him any concerns he may have and to work with him and other relevant parties to identify whether or not those responsible for any of the incidents might be employees of the respondent.

 

(24)  The claimant met with Rory Galway on 10 May 2006.  A discussion ensued about the claimant returning to work during which the claimant asked for redundancy.  Mr Galway suggested a transfer to Newtownards which the claimant regarded as a worse option.  He also declined interest in a transfer to the Dunmurry site as he believed the stigma would follow him no matter where he worked.

 

The claimant further intimated his belief that Johnny Blair was behind the incidents and asked Mr Galway could a security check be made on Johnny Blair.  The claimant indicated his willingness to return to work if the issues could be addressed.  Mr Galway agreed to have Johnny Blair checked out.

 

Mr Balfour reported to Rory Galway that Johnny Blair had not come to his notice in an adverse way from a security viewpoint.

 

(25)  On 4 July 2006 Mr Galway wrote to the claimant to inform him that Johnny Blair could not be linked to any incidents involving the claimant.

 

(26)  On 16 July 2006, at the rear of Autospares in Comber, the claimant was accosted by two men who warned him that if anyone at work were reprimanded because of their actions towards him that he would be punished. The claimant reported this incident to the PSNI, Harbour Police and the respondent.

 

(27)  On 20 July 2006, in a conversation with Rory Galway, the claimant informed him of the incidents and the police belief that they were connected to the earlier threats.  He refused an offer of a transfer to the respondent’s Newtownards site by Rory Galway as he considered it notoriously sectarian.  At his meeting with Mr Galway the claimant was disappointed because Mr Galway informed him that no firm in Northern Ireland could guarantee his safety.

 

(28)  In a conversation with Wendy Bailie on 22 August 2006, following a letter from Rory Galway of 21 August 2006 requesting an update on the situation, the claimant was advised that the respondent could not guarantee his safety and that the respondent had done all that it could.  The claimant responded to a suggestion of transfer from Wendy Bailie that a transfer to another site would not help the situation.

 

(29)  On 6 September 2006 the claimant received a phone-call to state that an accident he had had in work in 2004 had been deliberately caused.

 

(30)  At a meeting with Michael Bingham and Wendy Bailie on 18 October 2006 the claimant related the phone-call incident and other threats to him, including if anyone were reprimanded on account of him.  Wendy Bailie also inquired how the claimant was surviving financially.  The claimant’s belief that Johnny Blair was behind the threats to the claimant was also discussed.  The respondent could not give the claimant any assurance about his safety.  The claimant stated that he would like to return to work when he was well enough.  Wendy Bailie asked the claimant if there was anything the respondent could help him with and he replied no.

 

            (31)   On 4 December 2006 Wendy Bailie contacted the claimant by letter and asked him to phone her.  The claimant phoned Wendy Bailie the same day.  During the conversation Ms Bailie mentioned the possibility of a redundancy package for the claimant but such would be part of a compromise agreement involving the claimant’s solicitor and the LRA.

 

(32)  The claimant attended with Dr Jenkinson, the respondent’s occupational health adviser, on 14 December 2006 and was advised that his absence from work was attributable to the security issue.

 

(33)  In a conversation with Wendy Bailie, on 19 December 2006, the claimant was advised that there would not be any further investigation into the matter and that his options were to resign, return to work, or accept a basic redundancy package with a compromise agreement.

 

(34)  The claimant having taken advice from his then solicitor, resigned by letter of 20 December 2006.  In his resignation letter he stated that he was forced to resign due to the respondent’s failure to appropriately deal with the security issues and concomitant grievances raised by him.

 

(35)  Wendy Bailie received the claimant’s resignation letter on 3 January 2007 and wrote to accept it by letter of 12 January 2007.

 

(36)  In early 2007 the claimant changed his mobile phone number.  However the threats started again after Easter 2007.  On 14 May 2007 the claimant bought a Mercedes car from C Hurst’s and drove it home.  On 21 May 2007 he was moving the Mercedes to his yard in Glenavy.  On route the car was not running well and on arriving in Glenavy village it burst into flames.

 

(37)  In July 2007, outside Tesco Express in Comber the claimant was followed by a car.  Two men got into the back of his car and one of them threatened him with a gun.  They stated that they knew of his republican connections and warned him to drop any case against Shorts.  The claimant reported the incident to the PSNI and Harbour Police.

 

(38)  The claimant continued to be the subject of threats by phone in which it was alleged that he was laundering money or had republican connections.  Through the intervention of Margaret Ritchie MLA the police made a further investigation of these incidents and CID officer Martin Wills took over the investigation.

 

         To date no-one has been brought to account for any of the incidents or threats to Paul Breen.  Neither has anyone been identified as being involved in the threats and incidents.  Although the police investigation is ongoing Detective Constable Wills believes that there were no fresh investigative opportunities available for inquiry.  The Detective Constable had arrived at that conclusion on or before 25 July 2008.

(39)  In 2007 the claimant’s health deteriorated by reason of the threats and for a time he lived with his brother in Donegal.

 

(40)  On 30 May and 16 August 2007 Paul Gregge, a work colleague of the claimant and a Catholic received threatening text messages.  The threats referred to Catholics and Mr Gregge believed to the claimant.  The Harbour Police and PSNI were informed.  The respondent was not able to give Mr Gregge the assurance he sought about his security.

 

(41)  Mr Gregge believed Johnny Blair hated the claimant because he was a better fitter and he was friendly with Gary Small.

 

(42)  Louis McGettigan, a Catholic and work colleague of the claimant, received text messages on 30 May, 16 August and 22 November 2007 threatening the claimant and himself for reporting the text messages.  He also reported it to the respondent and the Harbour Police.

 

(43)  From 1 June 2007 Paul McBride a Catholic friend and work colleague of the claimant, began receiving threatening text messages about the claimant and himself.  He reported this to the respondent and the Harbour Police.  Arising from these events Mr McBride was off work for a period of time with stress and was later transferred to the respondent’s Dunmurry site.

 

(44)  The claimant did not report to the Harbour Police about the AK47 incident until 27 November 2007 in a discussion with Detective Constable Lemon.  He refused to make a statement about the incident or give evidence in a criminal court about the incident.

 

(45)  The claimant secured other employment with British Aerospace from 16 February 2008, as a subcontractor, earning per week £750 gross.  His employer was P & B Aviation Ltd, a company set up by him and his wife.

 

(46)  Prior to February 2008 the claimant did not make any effort to secure alternative employment as he was ill by reason of stress which he attributes to the respondent.

 

(47) Arising from these events the claimant withdrew from life.  He did not do the things he normally would have done.  He avoided the day-to-day running of the family business.  He was hiding from what was being put to him.  He went into depression requiring anti-depressant medication.  He was embarrassed about these events and considered that he had been named and shamed.

 

(48) On 11 May 2010 the claimant was followed as he was driving.  The car following him flashed its lights and the claimant stopped believing it was the police.  A man approached the claimant’s car smashed the window and pistol whipped the claimant and threatened him.  He reported to the A & E department of BCH and was detained for several hours.  Arising from that incident the hearing was adjourned on 12 May 2010.

 

(49)  The respondent did not investigate the claimant’s complaints as is required by its Harassment and Intimidation Policy.  Nor did it establish an investigation panel as is required by the policy.  The policy is in mandatory terms and does not allow for departure from it or a non-application of it.  The respondent did not advise the claimant about the approach it was following and why.

(50)  The respondent reported the incidents to the Harbour Police and handed over responsibility for investigating these matters to the Harbour Police whom it regarded to be better qualified to investigate, what were criminal offences, in terms of their resources, expertise and legal powers.

 

(51)  The police investigations into these events over a number of years have not thus far yielded any results.

 

(52) The respondent did not at any stage review its decision or inquire from the police if it could initiate its own investigation.  Nor did it act on the basis that its remit as an employer is wider than a criminal investigation.

 

(53)  The Harbour Police received every assistance they sought from the respondent.  Detective Constable Lemon did not favour the respondent investigating the events whilst a criminal investigation was ongoing as there was the risk that the respondent’s investigation could compromise the police investigation.

 

         Ken Balfour felt that once the investigation had been passed over to the Harbour Police it was inappropriate for the respondent to carry out its own investigation.

 

         Detective Constable Wills expressed concerns about an investigation by the respondent potentially causing problems to a police investigation but did not think it was not possible for the respondent to carry out its own investigation.

 

(54)  Johnny Blair resigned from the respondent in circumstances where he had been accused of gross misconduct by stealing tools from the respondent.

 

THE LAW

 

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

 

            (2)     A person discriminates on the ground of religion against another if he treats the other less favourably than he treats or would treat other persons (Article 3(2) Fair Employment and Treatment (Northern Ireland) Order 1998).

 

            (3)     An employer may successfully resist a finding of discrimination against it by reason of an unlawful discriminatory act of a fellow employee of the complainant if it can prove that it took such steps as were reasonably practicable to prevent the employee from doing the act complained of or from doing in the course of his employment acts of the same description (Article 36(4) Fair Employment and Treatment (Northern Ireland) Order 1998).

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

                   “The court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainants simply to prove facts for which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination.”

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

                   “74      The focus of the Tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination that is the end of the matter.  It is not improper for a Tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”

 

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

 

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

 

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

 

(12)   To establish a constructive dismissal that is unfair the claimant must prove that;

 

                     (a)     there was a breach of the contract of employment, and

 

                     (b)     the breach went to the core of the contract, and

 

                           (c)     the employee resigned as a result of the breach, and

 

                    (d)    he resigned fairly soon after the breach occurred,  and

 

                     (e)     in all the circumstance the respondent acted unreasonably.

 

(13)  The breach of contract can be the breach of an express term of the contract or a breach of the implied term of trust and confidence or both.

 

            (14)   A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct over a period of time.

 

            (15)   Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct cumulatively must amount to the breach of the implied term.

 

            (16)   A Tribunal shall not consider a complaint of religious discrimination unless it is brought within three months of the discriminatory act (Article 46(1) Fair Employment and Treatment (Northern Ireland) Order 1998).

 

            (17)   A Tribunal may consider a complaint that is out of time if in all the circumstances of the claim it considers it just and equitable to do so (Article 46(5) Fair Employment and Treatment (Northern Ireland) Order 1998).

 

            (18)   The words, “in the course of employment”, should be interpreted in the sense in which they are employed in everyday speech and not restrictively by reference to the principles in the law of Tort.  This gives to tribunals a wide discretion to reach a decision that is seen as in accordance with justice and equity (Harvey on Employment Law L [503]).

 

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

 

6.         (1)     The Tribunal is satisfied that the claimant was subjected to a terrifying and intimidating ordeal on 23 November 2005 when a bullet, sympathy card and threatening message were put in his locker at work.

 

            (2)     The Tribunal is further satisfied that he was subjected to threatening and intimidatory phone-calls and texts before the November 2005 incident and subsequently.

 

            (3)     It is clear that three of the claimant’s work colleagues, all Catholic, received abuse and intimidatory texts directed at themselves, the claimant and their association with the claimant.

 

            (4)     The incidents affecting the claimant have been treated both by the police and the respondent as a single investigation involving threats, harassment and intimidation of the claimant.

 

            (5)     It is clear that these events had a connection to the claimant’s Catholic beliefs.

 

            (6)     The Tribunal accepts that there was a work connection with the events and incidents affecting the claimant i.e. that persons who either work at the respondent company or who know persons who work at the respondent company were involved in the incidents affecting the claimant.

 

            (7)     The respondent did ask the claimant on a number of occasions if there was anything else it could do and the claimant was unable to suggest anything else to do.

 

            (8)     While properly dealing with these events in terms of procedures, policies and actions to be followed is a matter ultimately within the responsibilities of the respondent it is clear that once it handed the matter over to the police it did not actively pursue any investigation.

 

            (9)     Consideration was not given by the respondent as to whether after a period of time it should initiate its own wider investigation or it should seek the views of the police or that it could investigate any aspects of these events e.g. regulating or supervising access to lockers.

 

Constructive Dismissal

 

(1)     The respondent failed to implement its policy on intimidation and harassment which is in mandatory terms.

 

(2)     The policy does not permit its non-application where there are complaints of intimidation and harassment.  Nor is there a provision which permits derogation from the policy.

 

(3)     The failure to apply its policy amounts to a breach of contract.

 

(4)     Normally such a breach would go to the core of the contract and constitute a breach of contract that would satisfy the breach of contract requirement in a constructive dismissal claim.  In the circumstances of this claim the Tribunal is not persuaded that the breach amounts to a repudiatory breach.  In so concluding the Tribunal was influenced by the following matters;-

 

(a)     The non-application by the respondent of its policy on intimidation and harassment arose from its belief, as to the seriousness of these incidents; that the police was the appropriate agency to investigate these matters due to their skills, resources and legal powers; and that it was following the best course in handing the investigation over to the police.

 

(b)     Whilst the requirements of the policy on intimidation and harassment were not met the respondent did meet with the claimant frequently and asked repeatedly what it could do to help him and help to identify the perpetrators of these events.

 

(5)     If there is not a repudiatory breach of contract then an essential requirement for constructive dismissal has not been established and accordingly a claim for constructive dismissal must fail.  It is therefore unnecessary to consider the other ingredients of a constructive dismissal claim.

 

Discrimination

 

(1)    The claimant claims discrimination on the ground of his religious belief.  His contention is that he was treated less favourably because the respondent did not implement its policy on intimidation and harassment by investigating these events in accordance with its policy.

 

(2)    The Tribunal is not persuaded that the decision not to implement its policy on intimidation and harassment amounts to less favourable treatment.  Arguably the respondent did better than its policy would have provided by involving the police with all their resources, skills, expertise and legal powers.

 

(3)    But even if the Tribunal were to conclude that the failure to implement its policy on intimidation and harassment by the respondent amounted to less favourable treatment because;-

(a)         the employer’s investigatory remit is much wider that a police criminal investigation, and

 

(b)         the claimant’s terms and conditions of employment entitled him to have the policy implemented, and

 

(c)         the proof requirements in an employer’s investigation are easier to meet than a criminal prosecution, and

 

(d)         that by initiating the wider investigation of the employer useful information may have been uncovered,

 

there is not any evidence before the Tribunal that the non-application of the respondent’s intimidation and harassment policy was on the ground of the claimant’s religion.  There was not any evidence before the Tribunal to suggest that had the claimant been a Protestant that the respondent would not have followed the same procedure.

 

(4)    The claimant has not satisfied the requirements to shift the burden of proof, i.e. that the claimant had established a prima facie case of discrimination.

 

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

 

(6)    In the light of the findings above it is unnecessary to consider the time point raised by the respondent.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:       1, 2, 4, 5, 8, 9, 10 and 15 March; 10, 11 and 12 May;
21, 22, 23, 24, 27 and 28 September; 22, 23, 24 and 25 November; 9 and 22 December 2010; 1 and 11 February 2011, Belfast.

 

 

Date decision recorded in register and issued to parties: