Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2011/63_10FET.html
Cite as: [2011] NIFET 63_10FET, [2011] NIFET 00063_10FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 169/09 FET

6666/09

253/09 FET

7553/09

63/10 FET

1457/10

CLAIMANT: Dr Shyam Chakraborty

RESPONDENTS: 1. University of Ulster

2. Prof Martin McGinnity

3. Professor Liam Maguire

4. Dean Richard Millar

5. Professor Brian Scotney

6. Professor Gerry McAllister

DECISION

The unanimous decision of the Tribunal is that the claims of unfair dismissal, unauthorised deductions from wages, breach of contract and unlawful discrimination are dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr B McGuire

Mr P McKenna

Appearances:

The claimant appeared in person and was not represented. He had previously been represented by two successive firms of solicitors.

The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by Mr O McCullough of the University of Ulster Legal Service.

Background

1. The claimant is of Indian origin and is a Hindu. In 2007, he was appointed as a Reader (one step below the level of Professor) in the Intelligent Systems Research Centre (‘ISRC’) in the School of Computing and Intelligent Systems in the UUJ at the Magee Campus.

2. The first-named respondent stated that it quickly became dissatisfied with the claimant’s work performance. The claimant lodged multiple grievances alleging discrimination on the grounds of race and religious belief (‘unlawful discrimination’). The relationship between the claimant and the respondent deteriorated and the claimant was eventually suspended on full pay. A Good Cause Tribunal was set up to consider terminating his academic appointment. While suspended from duty, the claimant went to India without informing the respondents or seeking permission to do so. This required the respondents to notify the United Kingdom Borders Agency (‘UKBA’). The claimant’s work permit was revoked by the UKBA and the claimant’s salary was stopped. At the time of the Tribunal hearing the Good Cause Tribunal had not concluded its procedure.

3. The claimant alleged that the first-named respondent was institutionally racist and biased in terms of religious belief and that he, individually, had suffered unlawful discrimination by the various respondents in, inter alia:-

(i) Obstructing him from working normally.

(ii) Unnecessary meetings and e-mails.

(iii) Unreasonable workloads.

(iv) Excessive criticism.

(v) Exclusion.

(vi) Refusal to provide agreed resources.

(vii) Failing to deal with grievances properly.

(viii) Failing to uphold grievances.

(ix) Instituting the Good Cause Tribunal procedure.

(x) Completing an unfair probation report.

(xi) Suspending the claimant from employment.

4. The claimant also alleged that he had been unfairly dismissed and that he had suffered an unauthorised deduction from wages and/or a breach of contract (the stopping of his salary after his work permit had been revoked).

5. The respondents denied each of the claimant’s allegations of unlawful discrimination. As for the unfair dismissal and unauthorised deduction of wages/breach of contract claim, the respondents’ position was that the claimant had, by his own actions, caused the cancellation of his work permit and unless that position were to be reversed by the UKBA, it would be unlawful to employ the claimant or to pay him a salary.

Institutional racism

6. The claimant, together with his two witnesses, Professor Fahramand and Mr Leath, gave evidence on oath that the University of Ulster was institutionally racist and institutionally biased on the grounds of religion. They supported that assertion by alleging that the following people had suffered as a result:-

(i) The claimant – an Indian Hindu.

(ii) Mr Leath – a white American Christian.

(iii) Professor Paul McKevitt – a white Irish Christian.

(iv) Professor Fahramand – an Iranian of the Zoroastrian faith.

(v) Doctor Saddique – an Indian Muslim.

(vi) Doctor Prasad – an Indian Hindu.

(vii) Doctor Jorge Santos – an Venezuelan of undefined religious belief. (This allegation of discrimination came as a surprise to Doctor Santos, who was one of the respondents’ witnesses and had not noticed or complained of any discrimination.)

(viii) A Chinese academic of undefined religious belief.

(ix) Doctor Behera – an Indian Hindu.

(x) Bangladeshi academics of undefined religious beliefs.

(xi) A Polish academic, again of undefined religious belief.

7. The role of the Tribunal is to determine the claims put forward by the claimant which are properly within its jurisdiction. It is not a part of the Tribunal’s role to conduct a free ranging enquiry into allegations of institutional racism or bias within the first-named respondent, save to the extent that the claimant alleges that such institutional racism or bias provides evidential support for his individual claims of unlawful discrimination.

8. The Tribunal notes that if institutional racism or bias existed, as alleged, it operated on a remarkably egalitarian basis. It applied to Christian and non-Christian employees; to Muslim, Hindu and Zoroastrian employees; to white and non-white employees; to Irish, Asian, American, Chinese and Eastern European employees. The Tribunal also notes that the only three people to make these allegations to the Tribunal were the claimant, Professor Fahramand and Mr Leath. Apart from those three individuals, the only alleged victim of such discrimination, who appeared before the Tribunal, was Doctor Jorge Santos who had been called as a witness by the respondents. He denied that he had suffered any discrimination and was content with his treatment by the respondents. His probation had, unlike the claimant’s probation, been confirmed and he remained in the employment of the University.

9. Doctor Behera’s probation had similarly been confirmed and Doctor Behera had even been allowed by the University to vary his employment contract to maintain contact with an Indian third level institution for a significant part of the academic year. Professor Fahramand had been promoted from lecturer to reader to professor by the first-named respondent. His complaint, in evidence to the Tribunal, was that he could and should have been promoted more quickly; although he was completely unable to indicate who had been promoted more quickly than he had been in analogous circumstances. Furthermore, Professor Fahramand had not lodged any formal complaints or grievances at any stage during his employment with the University and had not brought any complaint to this Tribunal.

10. At one point, in the hearing, the Tribunal was struggling to understand the nature of the institutional racism and bias which had been alleged by the claimant and by his two witnesses. Professor Fahramand was giving evidence at that point and the Tribunal asked Professor Fahramand to indicate the precise nature of the alleged bias. Professor Fahramand was asked whether it was a bias towards people from Northern Ireland and not just a generalised bias towards white Christians. His reply was significant:-

“To be honest, I don’t know the background of these people.”

11. When it was put to Professor Fahramand, in cross-examination, that his allegation of institutional bias across the University was outrageous and that he had no evidence to support it, his reply was equally significant:-

“I have no evidence to oppose it.”

An allegation of institutional racism or bias against a large publicly funded institution is a serious matter. It is not an accusation that should be made lightly.

It is not appropriate for such an allegation to be made by any witness without evidence, or simply on the basis that there is ‘no evidence to oppose it’.

12. Mr Leath had worked in the University for 26 years and was a union representative for UCU, representing academic staff for several years. He had personally lodged two sets of Tribunal proceedings against the University, alleging racism. Both were withdrawn. A number of internal grievances were also lodged by him on the same grounds and were not successful. When pressed to explain the scope of the alleged institutional racism or bias, which he asserted applied throughout the University, he said that it affected those from outside Northern Ireland with international experience. He felt it was a simple fear of foreigners. He singled out Professor McGinnity. When it was put to him in cross-examination that Professor McGinnity had extensive international contacts, including an appointment as an expert reviewer for the European Union, Mr Leath accepted that this indeed was the case. When he was asked if that sounded like someone who had a fear of foreigners, he replied:-

“It is neither here nor there.”

13. He referred to the detailed list of Professor McGinnity’s international contacts which had just been put to him and stated that this would not:-

“necessarily suggest he is not Xenophobic.”

Towards the end of his evidence, Mr Leath volunteered the additional information that:-

“Not everyone who is a foreigner experiences problems.”

In the view of the Tribunal, he was unable to explain satisfactory what, in his view, triggered institutional bias towards some foreigners and not other foreigners. At the end of his evidence, he seemed to resile from the picture of relatively rampant bias, which he had hitherto been painting, and volunteered the following:-

“The overwhelming majority of staff at UUJ are not racist.”

14. Mr Leath was referred to the list of senior academics and administrators who the claimant alleged had unlawfully discriminated against him. That list had expanded significantly beyond the five individual respondents originally named by the claimant. Mr Leath was then asked whether the claimant had not been extremely unfortunate to meet discrimination at every turn in an institution populated by people who, according to his evidence, were overwhelmingly not racist; Mr Leath enthusiastically agreed. He stated:-

“Doctor Chakraborty has indeed been very unfortunate.”

15. Neither the claimant, nor Professor Fahramand or Mr Leath were able to satisfactory explain what they meant by the term ‘institutional racism’ or, given that the evidence also concerns alleged discrimination on the grounds of religious belief, what they meant by ‘institutional bias’. They were not able to point to any policies or procedures within the University of Ulster which were racist or biased in any overt sense. The University of Ulster has over 18 nationalities within its workforce. The fact that the proportion of foreign nationals was higher in the lower academic grades then in the higher academic grades is not, on its own, sufficient to establish a pattern of racism or bias. The long list of alleged victims of institutional racism or bias, put forward by the claimant and his witnesses, with the exception of the claimant and his two witnesses, had not complained of such bias before this Tribunal. According to the claimant and his two witnesses, the various victims of institutional racism or bias were afraid to complain. The Tribunal has concluded that this is unlikely to have been the case. If institutional racism or bias were as all-prevailing as the claimant and his two witnesses suggest, and given the fact that the academic workforce within the respondents’ organisation is necessarily intelligent, educated, and in many cases were represented by a trade union, several cases would inevitably have emerged by now and several individuals would have been willing to give evidence on behalf of the claimant. It strikes the Tribunal as particularly absurd for Mr Leath, as long-standing UCU representative, to maintain the position that his members were afraid to assert their rights to complain about discrimination on the grounds of race and religious belief. Furthermore, the eclectic nature of the alleged institutional racism/bias, applying apparently to a random selection of employees of any race, any religious belief, any skin colour, any nationality and any continent is simply not credible. The Tribunal therefore concludes, on the balance of probabilities, that there was no institutional racism or bias in the University of Ulster, as alleged, and therefore the assertions of the claimant, Professor Fahramand and Mr Leath, in this respect, are rejected.

Conduct of the hearing

16. The Tribunal spent one day reading the witness statements and the supporting documentation. The witnesses then went straight to cross-examination and re-examination. The claimant gave evidence on his own behalf. Professor Fahramand and Mr Leath gave supporting evidence. The respondents called Doctor Jorge Santos, Professor Liam Maguire, Professor Thomas McGinnity, Mr Ronald Magee and Mr Paul Davidson.

17. The claimant’s behaviour throughout the hearing calls for particular comment. He appeared to be either unable to understand simple and frequently repeated directions (although he claimed to have understood those directions and was perfectly fluent in English), or to be deliberately obstructive and time-wasting. For example:-

(i) Although he had been directed in explicit terms at a Case Management Discussion shortly before the substantive hearing that a psychiatric report, which had not been provided to the respondents in accordance with an Order for Discovery and Inspection, was therefore excluded from evidence, the claimant deliberately included that report in his bundle to the Tribunal which was delivered on the Friday preceding the hearing and the claimant attempted to rely on that report.

(ii) Although the witness statement procedure had been carefully and clearly explained to the claimant, both orally and in writing, during the Case Management Discussion procedure, the claimant attempted to introduce a second statement from Professor Fahramand by including it in his bundle and by attempting to rely on it in his re-examination of Professor Fahramand.

(iii) Despite repeatedly being directed that the Tribunal was not conducting a public inquiry into the activities of the University of Ulster and its academic standing, the claimant sought in cross-examination to belittle and challenge the academic achievements of each academic called by the respondents.

(iv) Despite repeatedly being directed that the only allegations that the Tribunal was interested in hearing were those allegations that the claimant had included in his pleadings and were therefore properly before the Tribunal, the claimant repeatedly tried to introduce new allegations. For example, he sought to allege that Professor McGinnity had forced or had otherwise induced the claimant’s four team members to refuse to work with the claimant and to put that refusal in writing. He then sought to introduce a new allegation that the Academic and Academic-related Staff Progress Committee had collectively discriminated against the claimant on grounds of race and religious belief by concluding that the probation targets set for the claimant were satisfactory and in expressing concern at the claimant’s lack of progress towards achieving those targets.

(v) The claimant repeatedly persisted in irrelevant lines of cross-examination despite equally repeated directions from the Tribunal. For example, he continually attempted to cross-examine Mr Davidson on the procedure under which the claimant’s original work permit was granted. The claimant knew, and in any event it was made plain to the claimant, that there was no dispute about the method by which his original work permit had been granted and that there was no claim before the Tribunal in that respect.

(vi) The claimant repeatedly introduced and then downgraded accusations of racism or religious bias to apparently tentative suggestions that this ‘may have been the case’ and when challenged on his point, then stating that ‘the case will unfold and evidences will be produced’.

Jurisdiction

18. The Tribunal has been asked by the respondents to conclude that the claimant had not lodged a statutory grievance in relation to his complaint of religious belief discrimination and that therefore the Tribunal had no jurisdiction, given the provisions of the Employment (Northern Ireland) Order 2003, to determine any such claim. The claimant has asserted that such a grievance was lodged on 26 May 2009 but the Tribunal has not been referred by either party to a copy of that document.

The Tribunal has decided to proceed on the basis that a statutory grievance was lodged in accordance with the 2003 Order in relation to religious belief discrimination. If that is incorrect, it will, given the findings of fact made by the Tribunal, make no difference to the decision. In accordance with the overriding objective, it would not be appropriate to incur further expense and delay at this stage to settle this point.

19. The Tribunal will therefore turn to the specific allegations of unlawful discrimination which have been made by the claimant and the allegation of breach of contract, unauthorised deduction from wages and unfair dismissal.

Recruitment of the claimant

20. The relevant post had originally been advertised by the respondents in April 2007 at the level of Professor. That recruitment exercise was unsuccessful. The respondents therefore broadened the recruitment exercise to include an appointment at either Reader or Professor level and the post was re-advertised.

The claimant was first interviewed on 5 July 2007 by a telephone conference call. The panel were Professor O’Reilly; Mrs Carruthers; Professor McGinnity; Professor Maguire; and Professor Scotney.

The panel therefore included three individuals (a majority of the panel) who the claimant now accuses of unlawful discrimination against him.

21. The claimant was successful at the first interview and was then required to give an oral presentation before the same panel in Derry later that month. After the oral presentation, the claimant went to lunch with Professors McGinnity and Maguire. During or after that lunch, he was informed that he had been successful and was then formally offered the post at Reader level.

22. The claimant’s evidence to the Tribunal was that he had been happy and was still happy that he had been offered and had accepted the post at Reader level. His evidence was that he had no complaint about the fact that the post had not been offered to him at Professor level. He complained, however, that the respondents had only recruited him to ‘harvest his research’ to obtain a higher payment in the 2008 Research Assessment Exercise (‘RAE’) and he suggested that the respondents had always intended to get rid of him thereafter.

23. The RAE is an exercise which takes place every few years. The research credentials of each higher educational institution are assessed in the exercise and the results affect the level of Government grants which are then made to each institution. The claimant alleged that his previous research record meant that the respondents gained significant financial advantage through his recruitment. He thought that this might have amounted to £37,000.00. He had no direct evidence on this and it is unclear how he arrived at this figure. The respondents accepted that, in common with all the other research active academic staff, the claimant’s academic record would have contributed to whatever grant level followed the 2008 RAE. The respondents were unable to put a separate figure on the financial benefit it had accrued from the inclusion of the claimant’s record in the 2008 RAE.

24. The respondents had, separately, received substantial funding for a research project into wireless technologies. The conditions attached to that funding included potential time pressures. For example, and the decision will turn to this shortly in more detail, the respondents had to spend £350,000.00 before the end of March 2008 in equipping a laboratory specifically for use in that research project. If that money were not spent within that timeframe, the funding would have been lost. The funding supported the claimant’s recruitment and the claimant was to be responsible for the research project. It was therefore clear that the respondents were under pressure to appoint a post holder who was capable of properly completing the project within the necessary timeframe.

25. It is therefore highly improbable that Professor McGinnity, Professor Maguire, Professor Scotney or indeed the other two members of the interview panel would have appointed the claimant to such an important post simply to secure a short-term and relatively small RAE benefit while at the same time jeopardising the substantially greater funding in the research project and again, at the same time, running the risk of damaging the University’s international reputation in such research.

26. It simply does not make sense for the claimant to assert, as he does, that the appointment was motivated by a desire to ‘harvest his research results’. The only possible basis for such an assertion is that the claimant is attempting to rationalise his stated position that the three people who were quite happy in July 2007 to appoint both him and Doctor Behera as Readers, then decided within a few weeks to unlawfully discriminate against him (but not apparently, against Doctor Behera) and to get rid of him on grounds of race and religion because of a pre-existing and established institutional racism or bias,

27. The Tribunal is therefore satisfied that the claimant’s allegation that his appointment was motivated by the 2008 RAE exercise and that it had been pre-planned to remove him afterwards is baseless and unsupported by any evidence.

Workload/Targets/Performance Assessment

28. The claimant complained that he had been treated unfairly in relation to workload. His position was that the only explanation of this alleged unfairness had to be unlawful discrimination on the ground of his race and his religious beliefs.

29. The claimant did not provide evidence of any similar academic employee receiving a lighter workload.

30. The claimant complained that Professor McGinnity and Professor Maguire had no significant experience of living abroad and that therefore insufficient allowance had been made by the respondents to allow him to settle in a foreign country with his family. The claimant stated in evidence that it would require ‘two or three or four months’ before he could be expected to produce work. That period would be needed to ‘establish’ himself in a new country. He was unable to explain what he would be doing during that period. When asked specifically if it had been wrong for the respondents to have expected productive work during the first two to three months, the claimant avoided giving a direct answer and simply said that ‘research is a long drawn out process’.

31. The respondents pointed out in evidence that, during the first month of the claimant’s employment in Derry, the claimant’s family had not yet joined him and that during the entire first academic year, the claimant had not been accorded any teaching duties. That evidence was not disputed by the claimant. Teaching duties, consisting of two teaching modules, were a normal part of any Reader position. The respondents expected a senior employee at a high salary ‘to hit the ground running’ and to start working effectively immediately. The Tribunal also notes from the claimant’s CV that he had already worked and lived outside India for extensive periods with his family and does not see any particular reason why the claimant who had, for example, worked in Finland would have required several months to settle in Derry before being able to work effectively.

32. The claimant’s complaints in respect of workload centred on the targets set for him in relation to his initial period of employment and his probationary period.

33. The claimant first alleged that requiring him to work a probationary period was unlawful discrimination in itself. The evidence of Professor Maguire and Professor McGinnity and the documentary evidence supplied by the respondents supported the proposition that academic posts at Professor level were not subject to a probationary period but that all other academic posts were subject to a three year probationary period. That evidence was clear, convincing and entirely uncontradicted by any evidence from the claimant. The claimant was unable to point to any academic, below Professor level, who had not been required to serve a probationary period. If such an academic had existed, Mr Leath, as a long-term UCU representative, would have been able to give evidence to that effect, and he did not do so.

34. As with every other part of his claim, the claimant appeared to believe that it was sufficient simply for him to make an accusation of unlawful discrimination and that such an accusation alone, and unsupported by any evidence, would be and should be sufficient for the Tribunal to conclude the issue in his favour.

In discharging its statutory function, the Tribunal must focus on whether or not unlawful discrimination has actually occurred. There must be some evidence upon which a reasonable inference of unlawful discrimination can be drawn before reaching even the preliminary stage of shifting the burden of proof onto the respondents. Accusations of unlawful discrimination, or as the claimant often argued ‘possibilities’ of unlawful discrimination, do not even get off first base if they are not supported by any evidence.

35. The Tribunal is satisfied that the complaint in relation to the imposition of a probationary period is completely baseless and misconceived.

36. The job description provided to the claimant for the Wireless Technology Reader post made it plain that the post holder would have to lead the Wireless Technology Research team, exercising ‘strategic leadership’ to build an ‘internationally recognised’ team to secure substantial research income. The job description issued to the claimant did not specifically mention teaching duties. However, the evidence from the respondents was that Readers do undertake teaching duties (usually two modules) and that, in the academic world, this is a recognised and necessary part of any Reader post. This evidence was not rebutted by evidence from the claimant of any Reader or similar academic who was not expected to teach. The Tribunal does not consider it a startling proposition that an academic in a Higher Education Institution should be required to undertake some teaching duties. The first-named respondent, after all, is not a private sector research laboratory; it is a university, with students who need to be taught.

37. The claimant complained that Professor McGinnity had suggested, before the claimant took up his appointment, that the claimant might want to consider the type of equipment that he would order for the wireless technology research laboratory. The claimant complained that this was beyond the respondents’ powers and another example of unlawful discrimination. This claim is simply ridiculous. The Tribunal cannot comprehend how the claimant could rationally regard such a request as unlawfully discriminatory or even as unfair or inappropriate. Most people who are appointed to a senior position would expect to do some preliminary planning and preparatory work.

38. The initial requests or targets which were put to the claimant when he took up his appointment in October 2007 were twofold:-

(i) to list the equipment to be purchased for the wireless technology research laboratory;

(ii) to modify pre-existing paperwork for the appointment of a Research Associate to be allocated to the wireless technology research team.

The claimant did not in evidence suggest that he had completed these matters in the initial months of his employment, when he had no teaching duties and when he had little else to occupy his time.

39. Professor Maguire wrote to the claimant on 14 December 2007, some two and a half months after the claimant’s employment started on 1 October 2007. Professor Maguire stated that he had found the claimant’s initial output and performance disappointing. He pointed out that during this period, the claimant had had no teaching duties, no research grants to administer, no PHD students to supervise and no other administrative duties. The claimant did not produce any evidence to contradict those assertions and the Tribunal therefore accepts the evidence of Professor Maguire and Professor McGinnity that the claimant was entirely free during the first two and a half months of his employment to concentrate on and to complete those two tasks.

40. In relation to the first task; ie ordering the equipment for the wireless technology research laboratory, Professor Maguire, in the letter of 14 December 2007, and in evidence to the Tribunal, stated that not one single item of equipment had been ordered or identified by 14 December 2007. He also made it clear to the claimant that it had already been explained to him, even before he took up his appointment, that if the equipment was not ordered and delivered and paid for before 31 March 2008, the grant funding could be lost.

41. The claimant’s evidence on that point was that he had talked to various people, suppliers and other Universities about what he should eventually order. When asked whether the letter of 14 December 2007 was an act of unlawful discrimination the claimant’s response was ‘absolutely true sir’.

42. The Tribunal concludes that it was simply unacceptable for a senior academic, faced with clear instructions, with a clear timeframe, to simply ‘talk’ to various people and to achieve nothing concrete. The respondents were entitled in December 2007 to be seriously concerned at the situation and were entitled to express that serious concern. There is absolutely no evidential basis for the claimant’s allegation that this amounted to unlawful discrimination or even that it was unfair.

43. The letter of 14 December 2007 also pointed out that, despite repeated reminders, the paperwork for the recruitment of the Research Associate had not been modified by the claimant. The claimant did not produce any evidence to suggest that he had in fact completed the paperwork and seemed to accept that he had not completed it. Again, the respondent was entitled to be seriously concerned about this failure and was entitled to express that serious concern. There is again no evidential basis for the claimant’s allegation that this amounted to unlawful discrimination or even unfairness.

44. Professor McGinnity and Professor Maguire met with the claimant to discuss the letter of 14 December 2007. That meeting was cut short because the claimant complained of feeling unwell. A further letter issued to the claimant on 20 December 2007 of his lack of progress and mentioning three specific areas:-

(i) the purchase of the equipment for the wireless technology research laboratory;

(ii) the completion of the necessary paperwork for the recruitment of the Research Associate; and

(iii) the claimant’s leadership of the wireless technology research team.

45. The letter pointed out that the meeting on 14 December 2007 had ended before the discussion could turn to the question of formal probationary targets for his first year of the probation period.

When cross-examined about 14 December 2007 meeting which led to 20 December 2007 letter, the claimant maintained that he had told Professor Maguire and Professor McGinnity that he had spoken to various people about the laboratory equipment. He could provide no explanation to the Tribunal for his failure to process the paperwork relating to the recruitment of the Research Associate. Before the Tribunal, the claimant attempted to deflect questioning on this point into a discussion about whether the Research Associate was to be assigned to him personally or to the wireless technology research team (which he was supposed to be leading). He stated that ‘the issue is being manipulated’. The meaning and relevance of that statement remained obscure. In relation to the leadership of the research team, the evidence of the claimant was ‘I was a good leader and people respect me’.

46. The claimant did not challenge the contents of the letter of 20 December 2007 at the time.

47. The claimant’s probation Year One targets were sent to him on 16 July 2007. The claimant alleged that they were unreasonable and therefore discriminatory. He was unable to say why this was the case, or how they differed in any material sense from the targets set for others and in particular Doctor Behera.

48. On 8 February 2008, the four members of the wireless technology research team, Doctor Tom Lunney, Doctor Kevin Curran, Derek Woods and Doctor Jorge Santos signed a joint minute to Professor Maguire resigning from the research team. That letter read:-

“We would like to elaborate on the e-mail that we sent on 5^th of February 2008 indicating our resignation from the WSNT. After due discussion between us we came to the conclusion that the Group Leader, Doctor Shyam Chakraborty was unable or unwilling to provide research leadership or research direction for the group. Even more disappointing was the fact that he was alienating all the other group members by his attitude and behaviour over the three months that the group was in existence. At the first meeting in October 2007 he was formally requested to indicate to the other group members potentially promising areas of research for the group. He failed over the next three months to respond to the request in any meaningful way. In fact over that period of time he failed to organise any follow-up group meetings or to develop a focus for the group’s research activity. Finally his uncompromising manner as demonstrated in a number of e-mails to group members (and others) forced us to the conclusion that working relationships between him and the other group members had irretrievably broken down. Consequently we had no option but to terminate our association with the research group headed up by him and to pursue our research without him.”

49. The claimant’s reaction to this minute when it was put to him in cross-examination, was typically confusing. He suggested, in turn, that the four individuals signed the document out of fear; that the four individuals had been instructed to sign the document; that the four individuals may have been instructed to sign the document; that the four individuals may have been given a hint or a suggestion to sign the document.

When it was put to the claimant that this allegation had not appeared in either his pleadings or in his witness statement, the claimant’s response was:-

“I do not have to put detailed allegations in my witness statement.”

50. The claimant had been given clear oral and written directions during the Case Management Discussion process. Those directions made it absolutely plain that his witness statement was to be a complete statement of his evidence. The Tribunal concludes that the claimant, as an intelligent and educated man, understood those directions; that he knew his witness statement had to include all his evidence; that he was putting forward fresh allegations in the course of cross-examination.

51. As far as the content of the minute from the four research team members was concerned, the claimant’s response to the Tribunal was that:-

“This is no evidence of my failure (as a team leader).”

The claimant alleged that the team members were ‘sub-optional’ and stated that the team was ‘at the same time fragile due to the heavy white, Christian, British or Irish presence’. The team, led by the claimant, was 20% Asian, 20% South American, and 60% White European. That does not seem to the Tribunal to call for any particular comment and the claimant’s statement that the heavy white, Christian, British or Irish presence made the team ‘fragile’ is simply bizarre.

52. There was a further meeting between the claimant, Mr Ronnie Magee, Human Resources, Professor Magee and Professor McGinnity. This meeting took place on 11 March 2008. The claimant was accompanied by a trade union representative.

At that meeting two immediate targets or objectives were set for the claimant. The first was to reconstitute the research team and the second was to draw up and submit a high quality research proposal. The claimant’s reaction under cross-examination was that these targets were not ‘agreed’ and that it was an act of unlawful discrimination to hold that meeting and to set those targets.

53. The claimant went on sick leave from 30 April 2008 for three months and no progress was made towards meeting those objectives.

54. The claimant stated in evidence that he had not been recruited as a manager and that the first objective was a ‘management task’. The Tribunal does not accept this evidence. It is absolutely clear that an important element in the job description was the management of the research team and therefore it was entirely reasonable for the respondents to expect the claimant to do what he was being paid to do. He produced no evidence to suggest that the treatment, ie the meeting on 11 March and the setting of objectives, was either unfair or unlawfully discriminatory. In respect of the unlawful discrimination allegation, the claimant stated:-

“If unfair treatment happens to me – it is not my task to show that it is due to race or religion.”

55. The claimant returned to work on 27 July.

56. On 14 January 2009, the Pro-Vice Chancellor, Professor Black, wrote to Professor Maguire. The Academic and Academic Related Staff Progress Standing Committee, which Professor Black chaired, had confirmed that the probation targets set for Year 1 for the claimant had been reasonable. Professor Black also expressed extreme concern at the claimant’s continuing lack of progress. The letter stated:-

“I am writing to advise that in accordance with the probation procedure for academic staff, the Academic Related Staff Progress Standing Committee at its meeting on 6^th of January 2009 received the first interim probation report in respect of Doctor Shyam Chakraborty. Having reviewed the contents of the report including the additional comments made by the probationer, the Committee was extremely concerned at the lack of progress made towards achieving the objectives set and the unsatisfactory nature of Doctor Chakraborty’s performance overall.

The Committee noted that Doctor Chakraborty’s primary role was that of a research and in this context and taking into consideration the level at which the appointment had been made, agree that the objectives set for the initial reporting period had been fair and reasonable. The Committee further noted that efforts had been made to address the lack of progress during the first interim reporting period through the intervention of the Director of Human Resources and as a result of which, Doctor Chakraborty had been requested to focus on two of the original objectives set. It was noted however that, despite this intervention at a senior level, Doctor Chakraborty failed to achieve either of these objectives.”

57. The Committee consisted of Professor Black, Professor McAlister, Professor Gillespie, Professor O’Dochartaigh, Professor Jedrzejewska, Mrs Farley and Professor Dass. The claimant asserted in cross-examination that the members of that Committee, with the possible exception of Mrs Farley, were all ‘white Christians’ and he expanded his allegation of unlawful discrimination to include them. The claimant produced no evidence of differential treatment or unlawful discrimination. He suggested on cross-examination, that unlawful discrimination was no more than ‘a possibility’.

58. In response to Professor Black’s letter, Professor Maguire instituted weekly meetings with the claimant. He also required weekly reports to be submitted from the claimant. His intention was to monitor the claimant’s progress and to supervise the claimant. The claimant stated in evidence that this was excessive micro-management and therefore unlawfully discriminatory. In his written submissions he described them as ‘medieval inquisition type weekly reports meetings crafted to stress and force the claimant to resign’.

The claimant also complained of what he described as ‘pervert surveillance’.

59. It is clear that these weekly meetings became heated on several occasions. For example, the claimant accepted that during the weekly meetings he had insisted on writing everything that was said down in long-hand and that he had insisted that each meeting stopped while he did so. He described this practice, in the context of weekly meetings between himself and his line manager, as ‘very rational’.

60. The Tribunal after carefully considering the evidence of the claimant and the respondents is satisfied that the purpose of these meetings was to assist the claimant to fulfil the requirements of his post and that, in the circumstances of the case, such meetings were entirely reasonable and not, in any sense, unlawfully discriminatory or even unfair.

Good Cause Tribunal

61. Professor McGinnity formed the view that the claimant’s progress continued to be unsatisfactory and that he was demoralising other staff within the University. The process of terminating his academic appointment through the University Charter by the establishment of a Good Cause Tribunal was initiated. That process is still ongoing at the time of writing the decision. It appears to be common case that the claimant is challenging several procedural aspects of that process.

62. The claimant had not been working effectively; he was resisting and refusing to co-operate with management attempts to get him to work effectively. Instituting a Good Cause Tribunal appears to the Tribunal to have been a rational decision on the part of the respondents. There is no evidence whatsoever to suggest that that decision was in any way motivated by the claimant’s race or religious belief.

63. The claimant was suspended on 26 August 2008 on full pay. At that point, the claimant had already taken five weeks’ annual leave in or about June 2009. Academic staff at the University did not have fixed annual leave periods. The custom and practice was that each took six weeks’ annual leave.

64. On 28 August 2009, the claimant asked for leave to return to India to take care of his mother. The request was further clarified by a trade union representative to be a request for leave ‘to the end of September 2009 with a possible extension beyond that date’.

65. On the same day, Paul Davidson of the HR Department, having consulted with Professor McGinnity advised the claimant that:-

“I have consulted with your Head of School. I understand that you had a period of annual leave for five weeks from 10^th of June 2009 and a further week during August. You therefore would not have an entitlement to take the month of September as annual leave also. Your Head of School is however sympathetic to your situation and would consider a request for ‘family responsibility’ leave (maximum five days’ paid leave) and a period of unpaid leave. Please let me know if you wish to request a period of ‘family responsibility’ leave and a period of unpaid leave.”

No further leave request was made in response to Mr Davidson’s e-mail

66. On 27 October 2009, some two weeks later, the claimant requested further leave:-

“I am requesting for compassionate leave for the period 25^th to 30^th October to take care of family, since my kids having flu and my wife is getting prone to stress and sickness herself. I will be in Finland for that period.”

67. On the same day the respondents granted five days’ compassionate leave:-

“That’s fine. Your request for five days’ compassionate leave from 25^th to 30^th October 2009 is granted. I hope your children make a speedy recovery.”

68. On 2 November 2009, the claimant notified the respondents that he was unwell and was delaying his return from Finland. He eventually returned to Derry on 7 November 2009 and notified the respondents immediately on his return.

69. On 18 November 2009, the claimant e-mailed the respondents to say he was going on sick leave and that he would forward a medical report. The medical report from his Derry GP, dated 18 November 2009, was received from an address in India, ie the address of the claimant’s former place of employment.

70. The claimant’s evidence to the Tribunal was that he believed that he was free to go to India since he was on suspension and there were no business reasons why he should remain in Derry:-

“When I am suspended it can be treated as a holiday.”

71. The Tribunal concludes that that position is clearly inconsistent with the claimant’s earlier two requests to go to India and to Finland. It is clear that the claimant knew that his contractual employment relationship with the respondents was still in place and that there was, at the very least, a continuing obligation to make himself available for work or for further enquiries and therefore a requirement to seek leave to leave the country. This is even more obvious when his immigration status is considered.

72. The claimant accepted that he knew that he was going to India before he indicated his intention on 18 November 2009 to take sick leave. Nevertheless he did not disclose that fact to the respondents, either to the HR Department or to his line management. The fact that he was in India only came to light because the postmark on the envelope, which contained the Northern Ireland GP’s report, was noted in the first-named respondent’s HR Department.

73. The claimant had been permitted to work in the United Kingdom in accordance with the terms of a Home Office Work Permit. From November 2008, employers who employ non-EEA nationals have to hold and to comply with the terms of a licence issued by the UK Borders Agency (‘UKBA’) and also to comply with Regulations issued by the UKBA. Regulation 445d requires that any absence of a non-EEA national for more than 10 days without permission must be notified by the employer to the Agency.

74. The respondents had been subject to two UKBA inspections and was therefore anxious to comply with the terms of its licence and with the terms of the Regulations. On 9 December 2009, Mr Paul Davidson of the University’s HR Department wrote to his UKBA contact:-

“I wish to report that one of our Work Permit holders has gone absent without permission for a period greater than 10 days. I know that for Certificate of Sponsorship holders such situations are reported via the SMS but obviously this SMS doesn’t facilitate reporting for WP holders. I appreciate that you may not be the correct person to report this to but could you re-direct this e-mail to the appropriate Department in UKBA.”

75. The e-mail continued:-

“Doctor Chakraborty is currently suspended from normal duties arising from disciplinary issues. Doctor Chakraborty indicated that he wished to treat his suspension as a holiday and return to India for part of the suspension. We denied this request. During the initial period of suspension, Doctor Chakraborty maintained regular contact with the University via e-mail and attended a number of meetings in regard to ongoing proceedings. On 3^rd December we received a letter from Doctor Chakraborty containing a medical certificate. The postal markings on the envelope indicated that it was posted from IIT HAUZ KHAS, which is a college in Delhi, India, on 27^th of November 2009. On 7^th and 8^th of December 2009, we e-mailed Doctor Chakraborty to ask for an explanation and to establish if he had returned to India without permission. Doctor Chakraborty did not respond until today when he e-mailed us to advise that he had returned to India to recuperate from an illness. We have advised Doctor Chakraborty that he did not have our permission to absent himself and he clearly knew that he did not have our permission as we denied his previous request.”

76. The UKBA replied on 10 December:-

“Thank you for getting in touch. As you mentioned the Sponsorship Unit does not deal with Work Permit absenteeism. You need to send a notification of premature end of employment (NPEE form) to the address on the Work Permit.”

The NPEE was completed on 10 December 2009 and the UKBA withdrew the Work Permit.

77. In the relevant part of the NPEE which asked the employer to indicate the reasons why the person’s employment ended, Mr Davidson recorded:-

“Please see e-mail attached from Mr Hugh McCollum who is our Account Manager at UKBA in Belfast. We notified Mr McCollum that Doctor Chakraborty had gone absent without permission some date prior to 27^th of November 2009 (see e-mails to Mr McCollum attached which explain the full circumstances). We understand that Doctor Chakraborty is in India and intends to return to the UK and hopes to continue to work for the University. Mr McCollum has advised that because Doctor Chakraborty has been absent without authorisation since 27^th of November we are required to complete an NPEE and Doctor Chakraborty will be required to re-apply for leave to enter the UK.”

78. The Tribunal concludes that the first-named respondent disclosed all relevant details to the UKBA and that it had been clearly instructed by the UKBA to complete the NPEE form. It did so by referring to the earlier e-mails which fully explained the situation and did not in any way seek to misrepresent the situation. The Tribunal cannot see any basis for an allegation of either unlawful discrimination or unfairness in this respect. The first-named respondent, and its employees, were obliged to follow instructions received from the UKBA. The NPEE form did not state that the claimant had been dismissed or that he had resigned. The factual situation that he had absented himself without permission was clearly set out.

The relevant law

Unlawful discrimination

79. The legislation in relation to both discrimination on the grounds of race and discrimination on the ground of religious belief provides for a shifting burden of proof. If the claimant proves facts on which, excluding any explanation from the respondent, a Tribunal could reasonably infer that there has been unlawful discrimination, the burden of proof will shift to the respondent.

The correct approach for Tribunals to adopt has been discussed in a series of cases, most recently:-

Nelson v Newry & Mourne District Council [2009] NICA 3 April 2009

At Paragraph 24 of that decision, the court stated:-

“This approach makes clear that the complainant’s allegation of unlawful discrimination can not 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 relating to the shifting burden of proof]. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

Breach of contract/unauthorised deduction from wages

80. The Tribunal has jurisdiction under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 to determine a breach of contract claim brought by an employee who has left his employment. Where an employee remains in employment, the Tribunal has jurisdiction under the Employment Rights (Northern Ireland) Order 1996 to determine a claim that an employer has made unauthorised deductions from salary.

Unfair dismissal

81. Article 130 of the 1996 Order provides that, in determining whether a dismissal is unfair, it is for the employer to show the reason for the dismissal. Thereafter, the determination of whether the dismissal was fair or unfair will depend on whether, in all the circumstances of the case, the employer acted reasonably or unreasonably in treating that reason as a sufficient reason to dismiss the employee.

Decision

82. The claimant’s current employment status is unclear. The first-named respondent properly reported the unauthorised absence of the claimant to the UKBA. That Agency revoked the claimant’s permission to work in the United Kingdom. The respondents did not seek to misrepresent the position on the NPEE form and the Good Cause Tribunal is continuing.

The Tribunal therefore concludes that the claimant was not dismissed at any stage by the first-named respondent and that there are no grounds on which the claimant could properly claim constructive dismissal.

83. The unfair dismissal claim is therefore dismissed.

84. The claimant, through his own actions, led the UKBA to revoke his work permit. Any employment contract places obligations on both parties. One of those obligations is that the employee must turn up for work. At a simplistic level, the rule is no work, no pay. The claims of unauthorised deductions and breach of contract are therefore dismissed.

85. The Tribunal is satisfied that the claimant was appointed to a senior post; that he was given sufficient time and resources to perform the duties of that post; that he failed to do so despite intensive efforts to support him by his line management; that his various grievances and complaints of unlawful discrimination were baseless and properly dismissed by the respondents.

86. The manner in which the claimant approached this litigation was extraordinary. He appeared to believe, and in fact stated openly, that if he felt he had been treated unfairly it was not for him to produce any evidence that he had been unlawfully discriminated against on any of the prohibited grounds. Much of his evidence was no more than a litany of events which in his view raised the possibility of unlawful discrimination.

87. The Tribunal has listened carefully to the evidence and has considered the written submissions forwarded by both the claimant and the respondents.

There is no evidence on which a Tribunal could reasonably infer that unlawful discrimination has occurred in this case. To the contrary, the Tribunal has concluded that the respondents acted properly throughout and have demonstrated considerable patience and forbearance in the manner in which the claimant has been treated.

88. All claims of unlawful discrimination are therefore dismissed.

Vice President:

Date and place of hearing: 14 – 16 June 2011, Belfast

Date decision recorded in register and issued to parties: