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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McMaw v Lagan Homes Ltd Lagan Homes Ltd [2012] NIFET 00103_11FET (21 June 2012)
URL: http://www.bailii.org/nie/cases/NIFET/2012/103_11FET.html
Cite as: [2012] NIFET 00103_11FET, [2012] NIFET 103_11FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 103/11 FET
1961/11
CLAIMANT: Andrew Ronald McMaw
RESPONDENT: Lagan Homes Ltd
DECISION
The decision of the Tribunal is that the claimant was not unlawfully dismissed and that he was not discriminated against on the grounds of his religion.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mr R Hanna
Mr H McConnell
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Peter Hopkins of Counsel, instructed by McGrigors Belfast LLP.
SOURCES OF EVIDENCE
Witnesses
1. The Tribunal heard from the claimant and his witness Mr Jonathan James Kincaid. For the respondent, the Tribunal heard from Mr Conor Mulligan, Managing Director of Lagan Homes and Mary Jenkins, Senior Sales and Marketing, Lagan Homes Ltd.
Documents
2. The Tribunal received witness statements from each of the above witnesses. In addition, the Tribunal was supplied with a bundle of documents prepared by the respondent and agreed by the claimant.
THE CLAIM AND THE RESPONSE
3. The claimant lodged two claims. In Claim No: 1961/11, the claimant claimed that he had been unfairly dismissed by the respondent. In Claim No: 103/11 FET, the claimant claimed that he had been less favourably treated on the grounds of his religion.
4. The respondent presented a response on 3 October 2011 in answer to both claims, accepting that the claimant had been dismissed but not unfairly and denying that he had been less favourably treated on the grounds of his religion.
FINDINGS OF FACT
5. The Tribunal found the following facts agreed or proven on the balance of probabilities:-
(i) The claimant, whose date of birth is 13 March 1968, commenced his employment with the respondent on 26 June 2006. He was employed by the respondent as a Site Manager and worked in that capacity for just over five years until he was dismissed for gross misconduct on 8 July 2011.
(ii) The claimant’s salary was approximately £42,000.00 and during the years between 2006 and 2008 he received bonuses totalling £15,500.00. However, the claimant contended that he had received no bonuses since that date.
(iii) During his employment, the claimant was employed on various sites belonging to the respondent. In 2006 until 2008, the claimant was Site Manager at Ligoniel. In 2008, the claimant got the opportunity to become Site Manager at the respondent’s site at Lauder in Scotland.
At this point, the respondent appointed a Mr James McKee, Site Engineer, to manage the site at Ligoniel. In 2010, the claimant returned from Scotland to manage the site at Ligoniel at which point Mr McKee was sent to manage a site at Toomebridge. In early 2011, the claimant became Site Manager at the respondent’s site at Rosscoole.
(iv) The claimant contended that throughout the period of his employment he was Site Manager with responsibility for the sites at Ligoniel, Lauder and finally Rosscoole, simultaneously. He stated that although Mr McKee had been put in post at Ligoniel during the claimant’s absence in Scotland it had been recognised by all that the claimant had remained Site Manager for Ligoniel during this period.
The claimant accepted that he had spent 95% of his time at the site in Scotland, however, he stated that he had been in regular telephone contact with Mr McKee during that time and it was accepted by all that he retained responsibility as Site Manager for Ligoniel albeit from a distance.
(v) The respondent accepted that on his return from Scotland the claimant had retained his Site Manager responsibilities for “snagging” issues on the Lauder site and accepted also that on the claimant’s move to Rosscoole he had remained responsible for “snagging” issues at Ligoniel at the same time.
(vi) The Tribunal found that during his employment, the claimant had been Site Manager at Ligoniel (between 2006, 2008); Lauder (2008, 2010); and at Rosscoole (2011). The Tribunal also accepted that the claimant had retained Site Manager responsibilities for Ligoniel and Lauder throughout his working period.
(vii) In the claimant’s role as Site Manager, the claimant was responsible for all Health and Safety issues for the sites within his control. It was accepted that the claimant was fully trained and certified in Health and Safety, Rules and Regulations to a very high standard.
However, it was agreed that Mr Conor Mulligan, Managing Director of the respondent’s firm, had overall responsibility for all Health and Safety issues within the firm. It was accepted by the claimant that Mr Mulligan was his Line Manager.
(viii) In June 2011, the claimant was working at the Rosscoole site. Mr McKee was working at the Toomebridge site. The claimant advised Mr McKee that he would be going on holiday between 21 and 28 June, and the claimant asked Mr McKee if he could “keep an eye” on the Rosscoole site during his absence.
(ix) The claimant also advised Mr Ken Sloane, the digger driver, and Mr Martin Mullan, a site labourer, of his holiday arrangements and asked them to provide site cover regarding respective house purchasers in his absence. The claimant also made his holiday plans known to Mr James Kincaid, who was working as a Site Engineer on the Ligoniel site at the time.
(x) The claimant contended that he had also made Ms Mary Jenkins aware of his holiday plans in her capacity as Mr Mulligan’s PA. He stated that he understood her to have responsibility for the upkeep of Mr Mulligan’s diary and stated that he believed that she would therefore advise Mr Mulligan of his holiday plans.
(xi) On the other hand, Ms Jenkins stated that the claimant had not informed her of his holiday plans and that these had been inadvertently brought to her attention the Friday before they were due to take place by Mr Kincaid during a conversation she had had with him.
Ms Jenkins stated that she had contacted the claimant immediately on hearing about his holiday plans as she was anxious that the claimant’s arrangements for house viewing during his holiday period were inadequate. She decided she would have to cover any viewings that would be scheduled for that week herself.
On the morning of 21 June, Mr Mulligan visited the Rosscoole site at approximately 11.00 am. He stated that he could find no one in charge of the site although some work was being carried out. He checked site offices and found these open with computers, laptops and valuable site documents lying around apparently unattended.
(xii) Mr Mulligan walked over the site and was advised by one of the sub-contractors that the claimant was on holiday and that Mr McKee had called onto the site earlier that morning. Mr Mulligan then contacted Mr McKee at the site in Toomebridge. Mr McKee confirmed that the claimant was on holiday and that the claimant had asked him to keep an eye on the Rosscoole site in his absence.
Mr Mulligan enquired of Mr McKee what this arrangement entailed and Mr McKee confirmed that it was his intention to call onto the Rosscoole site every morning and every evening. Mr McKee acknowledged that this commitment would require him having to arrive late at and leave the Toomebridge site early, every day, which was an arrangement Mr Mulligan did not find acceptable.
(xiii) Mr Mulligan stated that Mr McKee had expressed surprise that the claimant had not advised Mr Mulligan that he had gone on holiday.
(xiv) Mr Mulligan then contacted the firm’s accountant and he confirmed that he too was unaware of the claimant’s holiday arrangements. Mr Mulligan inspected the Rosscoole site and noticed that labourers were excavating the drainage line to the main roadway, close to a live electricity sub-station.
In discussion with one of the labourers, Mr Mullan, it became clear that the excavation had not been properly planned or marked out and was taking place on the wrong part of the site. Mr Mulligan noticed that the excavation itself was overhead height on part made land and was putting the labourers in question in near fatal jeopardy. Mr Mulligan concluded that the work being carried out on the site was in severe breach of Health and Safety Regulations and posed a grave risk to life.
(xv) Mr Mulligan made arrangements for another Site Engineer, Mr Andrew Moore, to come to the site. Mr Mulligan appointed Mr Moore to remain at the site every day during the claimant’s absence on holiday.
(xvi) Mr Mulligan stated that he enquired of those he spoke to on the Rosscoole site that morning who had keys and became concerned when he discovered that even some of the sub-contractors had keys to the site. Mr Mulligan stated he became anxious that this situation might apply in relation to the Ligoniel site as well and he instructed Mr Moore to change the locks on both sites that day.
The claimant contended that this act of changing the locks on the sites was one of a number of steps the respondent took that indicated that the respondent had reached a decision from the outset to dismiss him from his employment.
(xvii) The Tribunal did not accept that Mr Mulligan’s decision to change the locks was an indication of a decision to dismiss the claimant. The Tribunal accepted that Mr Mulligan had a genuine concern about the control of and access to the sites at Rosscoole and Ligoniel and that he had been genuinely anxious about securing both sites.
(xviii) When Mr Mulligan returned to Head Office he spoke to Ms Jenkins who confirmed that she was aware that the claimant was on holiday. However she too expressed surprise that the claimant had not made Mr Mulligan aware of his holiday arrangements in advance.
(xix) Mr Mulligan telephoned the claimant who confirmed he was on his holiday in Fuerteventura and advised Mr Mulligan that he was due to return on 28 June. The claimant asked Mr Mulligan if Ms Jenkins had not told him about the claimant’s holiday plans and when Mr Mulligan said no the claimant stated that he had definitely made Ms Jenkins aware of his plans, believing she would tell Mr Mulligan in turn.
(xx) Mr Mulligan told the claimant to attend Head Office immediately on his return which was the morning of 29 June 2011. Mr Mulligan followed up this telephone call with a letter dated 24 June. This letter invited the claimant to a meeting that would take the form of an investigation into the claimant’s absence. The letter also advised the claimant of his right to be accompanied.
(xxi) The claimant attended Head Office on the morning of 29 June. He stated that he had not received the letter of 24 June. Mr Mulligan explained to the claimant that the purpose of the meeting was to investigate the claimant’s absence and asked the claimant if he wanted to be accompanied. The claimant stated that he was happy to proceed and the investigation meeting continued.
(xxii) The meeting was chaired by Conor Mulligan and was attended by Gwyneth Evans from the respondent’s HR acting as note taker. There was no issue taken by the claimant as to the contents of the meeting and both parties agreed that during the meeting Mr Mulligan challenged the claimant about having gone on holiday without Mr Mulligan’s permission and in relation to the arrangements the claimant had put in place for the cover of the Rosscoole site during his absence.
At the investigation meeting, the claimant accepted that he had not specifically told Mr Mulligan about his plans. He stated that he had told Ms Jenkins of his holiday arrangements and thought that she would advise Mr Mulligan in due course.
The claimant stated that he had also advised Jonathan Kincaid and James McKee that he was going on holiday and that as James McKee was the claimant’s Engineer, he did his marking out and would be able to provide adequate cover.
The claimant stated that he had worked a lot of holidays over the last two years including Easter time, St Patrick’s Day, May Day and two days extra in September.
The claimant also stated that for approximately one and a half years he had been working in Scotland and living in Belfast. He had had to get up every morning at 4.00 am to get to the airport to be on the site at Lauder at 8.30 am, that he got home at 9.30 pm on Fridays and worked at the Ligoniel site on Sundays.
(xxiii) The claimant also stated that while he worked on the Lauder site in Scotland, the arrangement that James would cover for the claimant at the Ligoniel site had been adequate but Mr Mulligan stated that this had not happened at a time when the Ligoniel site had had up to 30 men and machinery on site.
The claimant stated that he believed there had only been three men and two Joiners on the Rosscoole site when he had left for his holiday. Mr Mulligan stated that when he had visited the site on 21 June there were plasterers, brick layers and men working on the roof and electrics. The claimant indicated this had not been the situation when he had left the site to go on holiday.
(xxiv) In any event both parties agreed that the outcome of the meeting was that Mr Mulligan suspended the claimant on full pay until the matter would be resolved.
THE SUSPENSION
6. At the conclusion of the
meeting, Mr Mulligan wrote to the claimant, in the letter entitled “suspension”.
This letter confirmed that the claimant had been suspended with pay pending
investigation into the matter and the letter specifically added “suspension at
this stage is not a disciplinary sanction and does not involve
pre-judgment of the issues that have arisen”. Mr Mulligan enclosed a copy
of the respondent’s disciplinary rules and procedures.
7. The claimant contended that the fact that he had been suspended and that the letter of suspension advised him not to contact any of the company’s customers, suppliers or work colleagues and to refrain from entering company premises without permission and to return all company property indicated that the respondent had already decided to dismiss him before any investigation or disciplinary procedure.
8. The claimant confirmed that he had received a copy of the respondent’s disciplinary procedures and that he had read these. He confirmed that he had also read that part relating to suspension.
9. The Tribunal concluded on the basis of the content of the letter and the wording of the disciplinary rules and procedure that the suspension letter did not amount to an indication that the respondent had already reached a decision in this matter.
THE INVESTIGATION
10. Mr Mulligan continued the investigation of the matter on 4 July 2011 by speaking to James McKee. Mr Mulligan telephoned Mr McKee in the presence of Gwyneth Evans and the company’s accountant, Damian McGurk. Mr McKee told him that the claimant had rung him on 17 June 2011 and had asked him to keep an eye on the Rosscoole site during the claimant’s holiday period commencing 21 June. Mr McKee also confirmed that the claimant had not left him or, as far as Mr McKee was aware, any other employee any other specific instructions in relation to the site.
11. Mr Mulligan spoke to Ms Jenkins on the same day again in the presence of Ms Evans and Mr McGurk. Ms Jenkins told him that she had become aware of the claimant’s holiday plans arising out of a conversation she had had with Mr Kincaid on 17 June. She had then telephoned the claimant to see what arrangements he had planned for viewing by prospective purchasers and confirmed that she had not been satisfied with the claimant’s arrangements to cover this.
12. Ms Jenkins also confirmed that the claimant had not asked her to advise Mr Mulligan of his holiday plans.
13. Mr Mulligan then spoke to Mr James Kincaid the same day. Mr Kincaid stated that the claimant had told him approximately one week before that he was planning to go on holiday on 21 June. Mr Kincaid also confirmed that he was aware that the claimant had told Ms Jenkins, Mr McKee, Mr Sloan and some other employees on the site about his arrangements. He also confirmed that the claimant had asked him to keep an eye on the Rosscoole site.
14. Mr Kincaid also stated that when the claimant had gone to the Lauder site in Scotland it would have been normal for Mr McKee to have covered the Rosscoole site in the claimant’s absence.
15. At the conclusion of his investigation Mr Mulligan wrote to the claimant. This letter was hand delivered by Mr McGurk on 5 July. The letter was an invitation for the claimant to attend a disciplinary hearing on 7 July to answer the allegations of gross misconduct, namely, “unauthorised absence from work for the period of 21 to 28 June 2011, insufficient arrangements to ensure compliance with safety rules and failure to discuss such arrangements with me as your Line Manager, thereby endangering the health and safety of employees and/or other persons”.
16. The letter went on to advise the claimant that if any of the allegations were found to be true a possible outcome would be dismissal and reminded the claimant of his right to be accompanied at the meeting.
DISCIPLINARY MEETING - 7 JULY
17. The claimant attended this meeting unaccompanied and stated that he did not feel the need to be accompanied. The claimant added no further comments in his own defence beyond those comments he had made at the investigation meeting. The claimant stated that he had reiterated how hard he had worked for the company and accepted that Mr Mulligan had said this was not in dispute.
18. At the end of this meeting, the claimant was advised to return to a further meeting on 8 July. At the meeting on 8 July, the claimant was advised that he was dismissed. He was advised of his right to appeal.
19. As the meeting concluded, the claimant made a remark about a previous issue involving another employee regarding asbestos at a site in Lisburn and advised Mr Mulligan that Mr Mulligan would be hearing from him.
20. By letter dated 8 July, Mr Mulligan wrote to the claimant confirming the decision to dismiss him and advised him of his right to appeal within five days.
THE APPEAL
21. The claimant did not lodge an appeal. In his witness statement, the claimant said that he had made holiday plans for this weekend some weeks in advance and well before the five day appeal period. However, at this hearing, the claimant stated that he had pre-booked the holiday for that period only two days before 8 July.
22. In any event the claimant contended that his own holiday plans and the fact that the five day period was over a holiday weekend had not given him sufficient time to lodge an appeal.
23. The claimant confirmed that he had taken no other steps in relation to appealing the decision to dismiss him and, for example, confirmed that he had not sent even a holding letter or made any other contact with the respondent to advise them of his intention to appeal against his dismissal.
24. Mr Mulligan accepted that the respondent’s firm had in fact been closed for the July holidays after the meeting of 8 July but that they would have accepted any late notice of appeal if it had been lodged with them.
25. The Tribunal noted the divergence in the claimant’s evidence about when he had made arrangements to go on holiday that coincided with the five day appeal period and concluded that no such arrangements had been the reason the claimant had not lodged his appeal. The Tribunal also rejected the fact that the five day appeal period had not fallen over five working days was the reason that the claimant had not lodged his appeal.
26. In relation to his claim of religious discrimination the claimant referred the Tribunal specifically and only to two separate incidents that had occurred in 2007 and 2009 respectively.
27. 2007 - Mr Malachy Toal
The claimant claimed that he had been treated less favourably than another Site Manager, Malachy Toal, Site Manager in Lisburn. In November 2007, Mr Toal had demolished an agricultural shed which had contained grey cement asbestos roof sheets. The shed was about 100 metres from the nearest residence.
28. Mr Toal was aware that such action was in contravention of the rules relating to the disposal of asbestos. Mr Toal took account of the fact that there would be poor weather conditions during the weekend and decided to demolish the building rather than run the risk of sheets becoming loose or children climbing onto the structure.
29. On the following Monday, the respondent was presented with of a Prohibition Order by the Health and Safety Executive.
30. The claimant stated that Mr Toal had been more favourably treated that he had been in that Mr Toal had not been suspended during the investigation that followed and that he had not been dismissed for what the claimant regarded as a similar or equal offence.
31. Mr Mulligan stated that he had not suspended Malachy Toal pending further investigation of this act as Mr Toal was required by the Health and Safety Executive to remain on site during the investigation.
32. However, Mr Mulligan stated that he had advised Mr Toal that if the Health and Safety Executive’s investigations found that his actions had endangered anyone that Mr Mulligan would instigate formal disciplinary action against him.
33. As part of that investigation, a licensed asbestos contractor was employed to carry out tests to assess the risk and to remove the remaining sheeting. The asbestos contractor assessed the risk as low to moderate concluding that “there was little risk of exposure to asbestos fibre resulting from the asbestos removal work”. The Health and Safety Executive concluded that there would be no prosecution or further sanctions.
34. The Health and Safety Executive did recommend that Mr Toal be sent on a three day asbestos training course. This was arranged for Mr Toal and he completed it.
35. Mr Mulligan stated that he had decided not to instigate disciplinary proceedings against Mr Toal on the basis that he believed that, although Mr Toal had acted incorrectly, he had done so in good faith in the circumstances in which he found himself.
36. The claimant contended that if he, the claimant, had been the Site Manager, rather than Mr Toal, he, the claimant, would have been sacked. Mr Mulligan refuted this and said that the decision not to discipline Mr Toal had nothing to do with religion and had everything to do with the circumstances and the facts of the case which he said were very different from those in which the claimant had placed himself.
37. 2009 - Sean McCloskey
During the summer of 2009 Mr Sean McCloskey, a subcontractor and a number of his bricklayers were working at the site in Ligoniel. It came to the claimant’s attention that a Gaelic football club flag had been erected on the site. The claimant told Mr Kincaid to tell Mr Mulligan about this and to get Mr Mulligan’s direction.
38. Mr Kincaid later confirmed to the claimant that he had contacted Mr Mulligan and that Mr Mulligan had told him to identify the individual and to sack him. Mr Kincaid stated that Mr Mulligan had added that if no one revealed the name of the protagonist or owned up that the lot should be sacked.
39. Mr Kincaid sent an e mail to the claimant in which he stated, “Drew, following our incident with flag at Ligoniel Conor has give us the go ahead to sack the bricklayer in question or the whole lot if required”.
40. The claimant flew home from Lauder to deal with the matter. He stated that before he went to investigate the matter at Ligoniel, he contacted Mr Mulligan and asked him to confirm that the individual was to be sacked or, if no one owned up, the whole team was to be sacked.
41. In the event the claimant investigated the matter and Mr McCloskey himself admitted to having put the flag up. The claimant stated that he was taken aback at this but having earlier confirmed with Mr Mulligan the course of action he should take, he sacked Mr McCloskey and all the bricklayers.
42. The claimant stated that he had then returned to Scotland and immediately on his arrival he noticed that he had numerous missed calls from Mr Mulligan who had been trying to reach him. When he spoke to Mr Mulligan, the claimant stated that Mr Mulligan advised him to return to Belfast and to consider reinstating Mr McCloskey and that if he did so it would be “looked upon favourably from above”.
43. The claimant contended that Mr Mulligan’s reason for this change of heart was that Mr Mulligan had not thought Mr McCloskey himself would be the guilty party and that Mr McCloskey was a cousin of Mr Kevin Lagan’s and accordingly the “sacking” was inappropriate.
44. The claimant flew home the next day and after a very short meeting with Mr Mulligan, proceeded to Ligoniel and reinstated Mr McCloskey.
45. Mr Kincaid had been present with the claimant when the claimant contacted Mr Mulligan to confirm the action to be taken post investigation when the guilty party had been identified. At this hearing he confirmed that Mr Mulligan had stated that the claimant was to “get rid of the person/persons involved in the incident”. Mr Kincaid added that Mr McCloskey had made his life and the claimant’s life very difficult thereafter, after his reinstatement.
46. Mr Mulligan refuted the allegation that he had said anyone should be sacked. Mr Mulligan stated that the bricklayers and their leader, Mr Sean McCloskey, were sub-contractors and were not direct employees of Lagan Homes Ltd. Mr Mulligan stated that he was unable to discipline any of the men and the most he suggested was that Mr McCloskey be asked to identify the culprit and ask the culprit to move onto another site.
47. Mr Mulligan stated that Mr McCloskey had therefore not been “reinstated” but had been allowed back on to the site to finish the work. He stated that this decision come from one of the two directors. He stated that there had been no reference to Mr McCloskey’s religion in any of the discussions he had had. He stated that as far as he was concerned that the decision to reinstate was based on the legal technicalities of Mr McCloskey not being the respondent’s employee.
48. However Mr Mulligan stated that the decision to allow Mr McCloskey to return to the job may have been influenced by the family connection between Mr McCloskey and the directors.
49. The Tribunal concluded that Mr Mulligan had given a direct instruction to “get rid” of the perpetrator which would have involved the sub-contractor moving the perpetrator off-site. The Tribunal accepted that Mr Mulligan was surprised to learn that it had been Mr McCloskey himself.
50. The Tribunal also accepted that Mr McCloskey was not an employee of Lagan Homes Ltd and therefore Mr Mulligan was not in a position to deal with Mr McCloskey or any of his employees through the respondent company’s disciplinary procedure.
THE LAW
Unfair Dismissal
51. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.
52. Article 130 states at paragraph (2) a reason falls within this paragraph if it –
(a) relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant or,
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.
53. Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and;
(b) shall be determined in accordance with equity and the substantial merits of the case.
54. Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.
CASE LAW
55. The Tribunal took relevant case law into account and in particular:-
British Home Stores v Burchell [1978] IRLR 379.
Rogan v South Eastern Health and Social Care Trust [2009] NICA 57.
56. It is case law that gives a Tribunal guidance on the way in which it should carry out this determination. A Tribunal must examine whether the respondent had a reasonable belief in the reason for the dismissal and that that belief was sustained by the employers having carried out a reasonable investigation and that the ultimate sanction of dismissal is “within the band of reasonable responses” of what other reasonable employers would have done in the same circumstances.
57. If a Tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged as informed by the employers having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses a tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view for that of the employer.
58. In assessing this statutory test in light of the guidance in British Home Stores v Burchell as adopted in Rogan v South Eastern Health and Social Care Trust the Tribunal can only scrutinise the employers’ belief and the quality of the investigation conducted to see it these were “reasonable”. The Tribunal cannot conduct an investigation of its own nor can it criticise an employer for not conducting a more stringent investigation. This Tribunal considers that an employer’s investigation includes the whole of the disciplinary process up to the point of the appeal hearing and decision.
The Tribunal’s Conclusions
59. In light of the facts found and how the law applies to these the Tribunal concluded that the claimant had not been unfairly dismissed.
60. In reaching this conclusion the Tribunal took account of the fact that the respondent arrived on the site at Rosscoole and found that the claimant, employed by them to attend to it and ensure its safety and the safety of their employees, had gone on a week’s holiday without informing his line manager, Mr Mulligan.
61. The Tribunal accepted that Mr Mulligan had found the Rosscoole site as he described and that he had come on a situation that presented real and grave danger to the work men.
62. The Tribunal noted that the respondent carried out an investigation and that they formed a reasonable belief that in leaving on holiday in these circumstances the claimant had been guilty of gross misconduct.
63. The Tribunal noted that Mr Mulligan had taken account of the claimant’s hard work and commitment to the respondent during his employment but that he made a decision that this was not sufficient to ameliorate the decision to dismiss the claimant in these circumstances. The Tribunal concluded that this decision was within the band of reasonable responses.
64. Accordingly the claimant’s claim of unfair dismissal fails.
RELIGIOUS DISCRIMINATION
65. Article 3(2) of the Fair Employment & Treatment (Northern Ireland) Order 1998 provides that:-
“A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if:-
(a) on either of those grounds he treats another less favourably than he treats or would treat another person.”
66. Article 19(1) provides:-
“It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland:-
(a) where that person is employed by him –
(b) by dismissing him or by subjecting him to any other detriment.”
Burden of Proof
67. Article 38A of the Fair Employment and Treatment (Northern Ireland) Order provides:-
“Where on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-
(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant; or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant;
the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”
The Burden of Proof
68. Case Law has given Tribunals guidance for the operation of this process:-.
69. In cases like this one where an employee alleges that his employer has treated him less favourably on the grounds of his religion than he has treated another employee of a different religion it is for the employee in the first instance to prove to a Tribunal facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the employee which is unlawful under the Fair Employment and Treatment (Northern Ireland) Order 1989.
70. If the employee does not prove such facts he or she will fail.
71. In deciding whether the claimant has proved such facts it is important to note that it is unusual to find direct evidence of religious discrimination. Few employers would be prepared to admit such discrimination, even to themselves. The Tribunal may draw inferences from the evidence that is presented to it.
72. Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favorably on the ground of sex, then the burden of proof moves to the respondent.
73. 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.
74. 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.
75. 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.
76. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof.
THE COMPARISON
77. The claimant must prove facts that demonstrate that his treatment on the grounds of his religion was less favourable treatment than that meted out to another employee in similar circumstances.
78. The Tribunal concluded that the claimant had not identified an employee in circumstances similar to his own whereby this necessary comparison could be drawn. The Tribunal noted that Mr McCloskey had not been the respondent’s employee and therefore no proper comparison could be drawn between the respondent’s treatment of him and their treatment of the complainant.
79. The Tribunal also noted the significant differences between the claimant’s conduct and that of Mr Toal. Mr Toal was found by the respondent to have acted incorrectly but in good faith and in an attempt to reduce harm. An independent investigation bore this out. This conduct is not analogous to the respondent discovering that claimant had gone on holiday and had put the respondent’s employees and property at great risk.
80. Therefore it is the decision of this Tribunal that the claimant is unable to demonstrate that his treatment had been less favourable than the treatment accorded to anyone else.
81. Accordingly the claimant’s claim for unlawful religious discrimination must fail.
Chairman:
Date and place of hearing: 14 & 15 March 2012, Belfast.
Date decision recorded in register and issued to parties: