Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2013] NIFET 41_13FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 41/13 FET

706/13

CLAIMANT: Kristen Walker

RESPONDENTS: 1. North Retail Ltd

2. Julian Jordan

DECISION

The unanimous decision of the Tribunal is that:-

(i) the claim of harassment and discriminatory treatment (other than victimisation) contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 is dismissed;

(ii) the claim of victimisation contrary to the 1998 Order is upheld;

(iii) the claim of constructive unfair dismissal contrary to the Employment Rights (Northern Ireland) Order 1996 is upheld; and

(iv) compensation of £500.00 is awarded in respect of the unlawful victimisation and compensation of £798.05 is awarded in respect of the constructive unfair dismissal.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms D Adams

Ms T Kelly

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Background

1. The claimant was employed at all relevant times as a part-time sales assistant in the French Connection shop in Shipquay Street, Londonderry. She was engaged on a zero hours contract but normally worked between 16 and 20 hours per week according to her rota. This rota varied and was set weekly. It was set by the claimant’s manageress, Ms Carol McGuinness.

2. A vacant post of supervisor or deputy manageress was filled in September 2012 by Ms Rachel McCourt who had previously been a part-time sales assistant.

3. The shop, together with another French Connection shop in Cornmarket, Belfast, was owned by North Retail Ltd. It was a franchised operation. Mr Julian Jordan was a director of that company, the franchisee, and was the effective owner of both shops.

4. The claimant was, at the relevant time, the only Protestant employee in the shop in Shipquay Street and all the other employees were Roman Catholics. The claimant alleged that she had been:-

(i) continually harassed on the ground of her religion in a manner which was escalated by Ms McGuinness from shortly after the date of Ms McGuinness’ appointment as manager in or around September 2011;

(ii) subjected to differential treatment by Ms McGuinness on the ground of her religion;

(iii) continually harassed by Ms Rachel McCourt on the ground of her religion;

(iv) not appointed to the vacant supervisor post and not considered for that supervisor post on the ground of her religion. Ms McCourt was appointed to that post;

(v) victimised by Mr Jordan as a result of her having lodged a grievance which included an allegation of religious discrimination (‘the protected act’) by, inter alia, ignoring that grievance and by failing to pay the claimant sick pay in the final period of her employment; and

(vi) constructively unfairly dismissed as a result of the pattern of alleged discriminatory behaviour culminating in the alleged victimisation.

5. In 2011 and 2012 business in the shop in Shipquay Street was declining and the business was finally closed at the end of April 2013. All staff were made redundant at that point. The claimant had worked her last shift on 9 February 2013 and went on sick leave from 13 February 2013. The claimant then resigned on 4 April 2013 shortly before the shop closed.

Relevant law

6. The Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’) prohibits discrimination on the grounds of religious belief. It provides that a person discriminates on the grounds of religious belief if:-

“On either of those grounds (religious belief) he treats that other less favourably than he treats or would treat other persons.”

7. The 1998 Order also provides that a person unlawfully victimises another person if he treats that person less favourably than he treats or would treat other persons by reason of a protected act such as the making of a complaint of religious discrimination.

8. The 1998 Order provides that a person subjects another person to harassment on the grounds of religious belief if that person engages in unwanted conduct which has the purpose or effect of violating that person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. It is subject to the specific qualification that:-

“Conduct shall be regarded as having (that) effect – only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.”

In McGibbon v Murphy t/a Carols Restaurant [63/90 FET] the FET concluded that it was:-

“Not saying that comments which by design or otherwise embarrass or intimidate employees because of their religious beliefs or political opinions are not unlawful. They are and may justify employees leaving and claiming both unfair dismissal and unlawful discrimination. Employers should not wait until such statements are made before taking action to prevent them being made.”

The original Fair Employment Commission Code of Practice provides that part of the duty of an employer is to:-

“Promote a good and harmonious working environment and atmosphere in which no worker feels under threat or intimidated because of his or her religious belief or political opinion, eg prohibit the display of flags, emblems, posters, graffiti or the circulation of materials or the deliberate articulation of slogans or songs which are likely to give offence or cause apprehension among particular groups of employees.”

In the Equality Commission Guide entitled ‘Promoting a good and harmonious working environment’, the Equality Commission guidance states:-

“A good and harmonious working environment is one where all workers are treated with dignity and respect, and where no worker is subjected to harassment by conduct that is related to religious belief or political opinion. Again the same principles will apply with regard to the promotion of a good and harmonious working environment on the grounds of race, gender, disability, sexual orientation and age. Common sense dictates that what will define a good and harmonious working environment may change over time and place. In addition the context of each situation warrants consideration, for example, what may be perceived as light-hearted banter or horseplay in one context may be considered more sinister in another. In relation to considering the nature of ‘banter’ the Tribunal has acknowledged that while banter can and does occur, there should be no place in the workplace for conduct that has the potential to disrupt a harmonious working environment – or to intimidate or embarrass any workers because of his or her religious beliefs or political opinions.

This of course does not mean that working environments must always be devoid of anything that happens to be more closely associated with one or other of the two main communities in Northern Ireland. While the Commission recognises that some employers will still chose to promote their workplace environment as a ‘neutral’ space, it is important to recognise that the two concepts ‘harmonious’ and ‘neutral’ are not inextricably linked. In other words a harmonious working environment does not necessarily need to be a neutral one.

The very restricted nature of a neutral environment might give rise to other problems for employers, as one example, if an employer has a policy that is so rigid that it prohibits workers from wearing marks of religious observance of a sort that believers commonly wear (such as crosses, kippot, turbans or Muslim veils) than that may indirectly discriminate against persons of that particular religion or who are members of a particular racial groups. The risk of this will be particularly high where employees are genuinely obliged by the tenets of their religions to wear such emblems and so may find themselves in a dilemma as their religious duties conflict directly with their conditions of employment. For employers, it is likely to be easier to justify a policy, and thus avoid acts of unlawful direct discrimination, where the policy is not unconditionally strict and seeks only to prohibit the display of emblems which have the potential to disrupt the harmonious working environment. The wearing of an emblem, particularly a religious one, is not likely to cause such disruption, than it may be difficult to justify a restriction unless there are other substantive grounds (eg health & safety reasons which may justify restrictions in certain circumstances).

Consequently employers may find it preferable to facilitate diverse expressions of identity in a sensitive way which does not disrupt a good and harmonious working environment.”

9. The guidance goes on to say:-

“Tribunal decisions have identified some practices that are or may be unacceptable, with each case being dealt with on its own facts. They have, for example, made clear that while the Tribunal should have no time for those who seek out each and every sectarian manifestation about which to complain, at the same time employees should not have to tolerate constant reminders or suggestions that particular religious beliefs or political opinions have a special place in their workplace, whether by design or through custom and practice. In all these debates there has to be an honest acknowledgement that the circumstances can never be ignored.”

10. In claims of unlawful discrimination, it is for the claimant to provide evidence, or for evidence to be provided, on which a Tribunal could reasonably infer that such unlawful discrimination had taken place. If that is done the burden of proof shifts to the respondent to show that unlawful discrimination had not occurred.

Constructive unfair dismissal

11. If an employer engages in a repudiatory breach of contract which entitles an employee to regard himself or herself as having been dismissed, that employee can claim constructive unfair dismissal contrary to the 1996 Order.

12. In Elaine Wright v North Ayrshire Council [UKEATS/0017/13/B1] the EAT determined that it was wrong to restrict constructive unfair dismissal findings to circumstances where a contractual breach by an employer was the effective [Tribunal’s emphasis] cause of an employee’s resignation. It stated that:-

“It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration. The definitive article ‘the’ is capable of being misleading. The search is not for one cause which predominates over others, or which would on its own be sufficient but to ask – whether the repudiatory breach ‘played a part in the dismissal’.”

Credibility

13. As indicated above, this claim centres on four areas of dispute:-

(i) Whether or not the claimant was harassed on the ground of her religion by Ms McGuinness and by Ms Rachel McCourt?

(ii) Whether or not the claimant had been treated differently on the ground of her religion by Ms McGuinness in relation to various incidents including the promotion of Ms Rachel McCourt to supervisor in September 2012? No such allegation was made against Mr Jordan.

(iii) Whether or not Mr Jordan unlawfully victimised the claimant following her grievance in September 2013 by failing to deal with that grievance properly, or at all, and by failing to pay her sick pay?

(iv) Whether the claimant was constructively and unfairly dismissed?

14. The Tribunal is faced with conflicting and uncorroborated accounts in respect of each of these areas. There are instances where corroboration should have been available. The lack of such corroboration is in itself surprising and the lack of such corroboration is a matter to which the decision will return shortly.

15. The Tribunal has no magic formula to determine who is telling the truth or to determine whether an individual is exaggerating or padding their evidence. Witnesses are not hooked up a lie detector machine to determine veracity. When faced, as the Tribunal is faced in this case, with starkly different and conflicting accounts of the same incidents, the Tribunal must consider the evidence and must weigh it carefully, taking into account the burden of proof, the demeanour of the witnesses and any inconsistencies or improbabilities contained within the evidence. In the final analysis, it must decide who to believe on the balance of probabilities.

16. The unanimous decision of the Tribunal is that it finds the evidence of the claimant lacking in credibility for the reasons set out below. Similarly it finds that the evidence of Mr Jordan in relation to the allegations of unlawful victimisation lacks credibility for the reasons set out below. The Tribunal found the evidence of Ms McGuinness both credible and convincing.

17. The Tribunal first has to address the conflict in evidence between the claimant on the one hand and Ms McGuinness on the other, in relation to alleged sectarian harassment. The Tribunal prefers the evidence of Ms McGuinness over the evidence of the claimant for the following reasons. None of these reasons are individually determinative of the issue in themselves. They must be considered in the round:-

(a) The Tribunal noted that the claimant sought to rely on GP reports which recorded that she had reported that she had suffered from stress with various symptoms such as loss of appetite and sleep. No such report was made during the period of employment. That in itself is surprising given the claimant’s clear allegations of continuous and escalating sectarian harassment of the worse sort over a period stretching from September 2011 to February 2013. It is odd that relevant medical contact only started after employment ended.

(b) The Tribunal also carefully noted the claimant’s demeanour when being cross-examined about her evidence-in-chief which had been given by witness statement. She was calm, unruffled and completely unperturbed by a searching and persistent cross-examination. She was evasive and constantly avoided giving direct answers when she perceived a threat to her stated position. She did not show any signs of suffering from stress. That could be contrasted with Ms McGuinness who appeared genuinely upset and distressed when cross-examined.

(c) When pressed on why she had not recorded particular incidents or on why she had not lodged a complaint or a Tribunal claim in respect of different incidents, the claimant repeated on several occasions words to the effect that:-

“I was only 21. I did not know what to do or how to do it.”

That is scarcely credible. The claimant was 21 years of age not 12 years of age, and had been working for some years. If, as alleged, she had been subject to sectarian harassment of the most serious sort for a lengthy period, or had even been subjected to such harassment on only one occasion, and did not know what to do about it, she must have been one of the few people in Northern Ireland with such a profound lack of knowledge. At all relevant times she had discussed these matters with her boyfriend and family. She had availed of advice from the Citizens Advice Bureau and others. It is not believable that the claimant did not know what to do in response to alleged harassment or indeed that the claimant thought as she now states that it would all go away.

(d) The claimant stated that she had only started compiling a record of events in a notebook on 17 January 2012 ‘when I realised how serious it was’. Given the claimant’s allegations of extremely serious and gross sectarian harassment in September 2011, November 2011 and December 2011, that statement is simply not credible. In relation to the December incident, the claimant alleged that Ms McGuinness had loudly and aggressively shouted at her about sectarian theology. The claimant’s statement that she did not realise at that point how serious it was is unbelievable.

(e) The claimant’s evidence in relation to the December 2011 incident is in any event not credible in itself. The claimant alleges that Ms McGuinness loudly shouted at her at a staff Christmas party in a public venue about sectarian theology and that this issue had become, for a large proportion of the evening, the only topic of conversation among staff. The Tribunal notes the sheer improbability of a manager behaving in this way in a public venue, the improbability of conversation at a Christmas party centring on the theology surrounding Mary, and of the fact that the allegation appears nowhere in the notebook which was started shortly thereafter. No corroborative evidence has been called, even with a Witness Attendance Order, even though the claimant alleges that such corroboration would exist. The members of staff present at the event, who would now no longer be working for the respondent. They would have no obvious reason not to give evidence. They could have confirmed the claimant’s allegations if they were true. It was up to the claimant to establish a prima facie case before the burden of proof could shift to the respondents.

The claimant also went to Ms McGuinness’ house after that particular function. If events had occurred as the claimant has alleged and if the claimant had been intimidated and humiliated as she has alleged, such an action on her part seems highly improbable.

(f) The claimant alleged that she only started the notebook in case things ‘got worse’. It was only ‘rough notes’ and she could not properly explain why certain alleged incidents were recorded in the notebook and why other alleged incidents were not so recorded. It is difficult, on the claimant’s version of events, to see how matters could have got worse, in particular after the initial allegations relating to December 2011. These, in any event, were not rough notes. They were well written and were detailed as far as they went. The omissions from these notes were, on the claimant’s version of events, inexplicable.

(g) The claimant accepted that she had stopped talking normally to Ms McGuinness in October 2012 but refused to accept that her performance thereafter as a shop assistant would have cause any concern.

(h) The claimant alleged that the promotion of Ms Rachel McCourt to supervisor was an act of religious discrimination against Protestants even though all the other part-time sales assistants who were Roman Catholics were also similarly excluded from consideration and overlooked.

(i) No complaint was made to the Tribunal or formally as an internal grievance at the time in September 2012 about the promotion of Ms Rachel McCourt. It was not raised as an act of alleged religious discrimination until February 2013, even though the claimant had earlier sought professional advice.

(j) The claimant alleged that Mr Jordan had been intimidating and aggressive when she sought to query her non-promotion, allegedly in October 2012. No claim was made at that time to the Tribunal in relation to that intimidation. No satisfactory explanation has been provided for her failure to do so or to lodge an internal formal grievance.

(k) The claimant alleged that she was ‘scared’ of Ms McGuinness’ possible reaction and of Mr Jordan. She did not appear, in evidence, to be the least scared of either individual and certainly her actions in querying her non-promotion directly with Mr Jordan and in telling him ‘that it was not acceptable’ is not consistent with her repeated assertion that she was ‘scared’ at that time.

(l) The claimant recorded in her notebook and gave evidence that Ms Rachel McCourt had referred to the Waterside as the ‘watery sheughs’ and that this was derogatory in an anti-Protestant way. The undisputed evidence appears to be that the Waterside, either as a distinct electoral district, or given its wider local definition, is roughly 50/50 in community terms. A reference to a mixed area is not, in the view of the Tribunal, reasonably capable of being construed as anti-Protestant, or indeed anti-Catholic. It is also to be noted that it was not alleged in the claimant’s notebook to be an act of religious discrimination.

(m) The claimant alleged that Ms Rachel McCourt had thought or had alleged, obviously incorrectly, that there were no Roman Catholic Churches in the Waterside. It is clear that Ms Rachel McCourt was from Derry and worked in Derry. The allegations, as reported by the claimant, seem hardly credible.

(n) The claimant’s evidence of consistent and escalating religious harassment is undermined by the sparse and selective nature of the notebook entries, allegedly compiled contemporaneously, on the advice of her family. That notebook was clearly not a selective aide-memoire in respect of a small number of incidents that she was for some reason in danger of forgetting. It was a record for use, on the claimant’s evidence, as matters progressed either to a formal complaint or elsewhere.

(o) The internal grievance does not deal with the earlier and very serious allegations of religious harassment. The claimant alleges that she was too scared to include these issues. This makes no sense at all. The claimant had raised a specific complaint of religious discrimination in the grievance and had also made pointed and detailed criticisms of both Ms McGuinness and Mr Jordan. How could details of these serious incidents possibly have made her position any worse?

(p) Ms McGuinness has a Protestant grandmother, other Protestant relations and her parents had fostered both Roman Catholic and Protestant children. Protestant children had, during certain periods, resided with Ms McGuinness during her childhood. It is therefore improbable that she would have, as alleged, discriminated against, or have harassed a Protestant. It is also improbable that Ms McGuinness’ father, even if he had been in the position of vetting her friends, as alleged, would have told Ms McGuinness that she would be killed if she brought home a Protestant. His own mother was a Protestant. This makes no sense at all. There is no reason why he would have said this or why Ms McGuinness would have reported that he had said this.

(q) The claimant’s allegation in relation to a cut in hours immediately following her last shift on 9 February 2013 is not supported by any corroboration, either documentary or evidential. Her initial position was that other staff had received their consistent hours. That does not appear to be supported by the monthly record of hours prepared for pay purposes.

(r) The claimant normally worked between 16 and 20 (or possibly 22) hours per week but that varied from week to week. The claimant worked for only slightly over one week in February 2013 and had in that period accrued 34 hours. This was in excess of her stated normal hours. No evidence other than the claimant’s unsupported assertion has been advanced for any differential cut in hours in relation to the subsequent week, where other staff appear to have had cuts in their monthly figure from January to February. No complaint was made to Ms McGuinness or to Mr Jordan at the time. The Tribunal notes that in her evidence to the Tribunal the claimant clearly stated ‘I am challenging that he only reduced mine’. She also alleged in her statement that every other member of staff had been given their consistent hours. It is highly unlikely that these allegations were correct, given the monthly records of hours produced to this Tribunal.

The claimant places emphasis on the fact that the weekly records of hours have not been produced by the respondents. However, Ms McGuinness’ clear evidence, which has not been rebutted, is that those documents would not have been retained or transferred to the Belfast shop and that, on the closure of the Derry shop in April 2013, any remaining documentation would have been thrown out. That seems to be credible and there appears to have been no reason for the weekly rotas to have been retained once details were passed to Mr Jordan for monthly pay purposes.

(s) The claimant alleged that she had contacted a Mr Coombe who was Head of Finance in the French Connection franchisor in London. She further alleged that he had telephoned her to tell her that he had contacted Mr Julian Jordan by e-mail and that he had instructed Mr Jordan to contact the claimant to discuss her grievance.

This evidence seems particularly improbable. It is, in the first place, highly unlikely that a franchisor in London would agree to become involved in an internal dispute between a franchisee and its employee. Why would a presumably busy individual agree to involve himself in someone else’s dispute?

Furthermore, even if he had become involved, the obvious step for him to have taken would have been to forward the claimant’s grievance to Mr Jordan by e-mail (as the claimant alleges he did) but then to copy that by e-mail to the claimant. That could have been done instantly with little effort. It would however have required a copy e-mail to the claimant which would have had to be produced to the Tribunal. The claimant’s allegation was that he instead telephoned her to explain what he had done. That seems highly unlikely, particularly since the claimant apparently had failed to provide Mr Coombe with her telephone number. The claimant’s counsel’s attention was drawn specifically to this point and no rational explanation has been produced to the Tribunal. It seems highly unlikely that Mr Coombe chose to become involved as alleged or that he contacted her by telephone as alleged. He would have to have gone to some considerable trouble to identify a telephone number. He had her name and an address where she may not have been the subscriber for the landline. She would then, even if he had found the number, have to have been present to take the telephone call.

18. The Tribunal is similarly concerned about the credibility of Mr Jordan’s evidence. In the first instance he stated that the internal grievance in February 2013 and the subsequent reminders culminating in the letter of resignation were not received by him in the Cornmarket shop. He stated that they had been diverted after being signed for by a member of staff and had been stuck underneath the locked door of Mr A Jordan’s office on the second floor.

19. The Tribunal finds that this is highly improbable. Any letter meant for Mr Julian Jordan, to have had any possibility of being treated in this way, would have had to be addressed simply to Mr Jordan (no initial) of 26 – 28 Cornmarket, etc. Any reference to ‘J Jordan’, ‘French Connection’ or to ‘North Retail Ltd’ would have meant that any such letter would have automatically have been left for Mr J Jordan to read. Furthermore, even in the unlikely event of all those letters being addressed in that way simply to Mr Jordan without a business name, such ambivalent letters would not, in the view of the Tribunal, have been left unattended for a period of several weeks in a locked office. It is patently clear that any such letter would have been put to one side to have its proper recipient ascertained. It would not have been abandoned in a locked office when it would have been unclear that it was meant for Mr A Jordan.

20. The Tribunal has already noted the claimant’s failure to produce obvious and easy corroboration of serious allegations of sectarian harassment. Equally, the Tribunal must query the respondents’ failure to call evidence from Mr A Jordan to either suggest, as was diffidently suggested during the hearing, that Mr A Jordan might [Tribunal’s emphasis] been absent on holiday during the relevant period or to have provided any convincing explanation of the failure to properly direct the letters at an earlier stage. It is further also noted that the relevant envelopes were not retained to provide evidence of the addressee.

21. The Tribunal therefore finds that this evidence is not credible and finds that the letters were received by Mr Julian Jordan shortly after posting by the claimant.

22. The Tribunal has also considered the explanations put forward for the failure to pay statutory sick pay to the claimant. The explanation that cheques were left at the counter at the shop, which was in the throes of closing down and that they were left simply in the belief that the claimant’s father, without prior arrangement and without notification, would have collected them, is not credible. The respondents wrote directly to the employees’ home addresses in relation to the closure of the business and there is no reason why that practice could not have been adopted in this situation. The Tribunal therefore concludes, on the balance of probabilities, that the cheques were not left as indicated for collection by the claimant and that a deliberate decision had been taken by Mr Julian Jordan not to pay statutory sick pay.

23. The Tribunal cannot attach any particular significance to the mistake in the final payment of statutory sick pay. That mistake may well have an innocent explanation. The important issue is that statutory sick pay was not paid when due and no efforts were made to pay it when due.

24. Given its findings in relation to the credibility of Mr Jordan, the Tribunal is therefore driven to the conclusion, on the balance of probabilities, that this failure to deal with the grievances and the failure to pay statutory sick pay were deliberate acts which were prompted by the grievances which included a specific allegation of religious discrimination (‘the protected act’).

25. In contrast to the evidence of the claimant, and the evidence of Mr Jordan, the evidence of Ms McGuinness was clear, credible and appeared to be genuine.

Findings of fact – Alleged harassment

26. The claimant, during the course of the Tribunal hearing, and not before, made it plain her that claim of unlawful harassment concerned only the alleged actions of Ms McGuinness and Ms Rachel McCourt. She again made it plain, somewhat belatedly, that her claim against Mr Julian Jordan concerned only actions from September 2012 onwards. Those concerned principally the treatment of the grievance and the failure to pay sick pay but also involved the decision to appoint Ms Rachel McCourt to the post of supervisor where it was alleged that the choice had been essentially that of Ms McGuinness and that Mr Jordan had been overborne by Ms McGuinness’ wishes. The claimant did not allege that Mr Jordan had been motivated by her religion in relation to the appointment. However since this ‘act’ predated the alleged protected act, the internal grievance, it could not have amounted to victimisation.

27. In considering the allegations against Ms McGuinness and indeed against Ms Rachel McCourt, it is important to recognise that it is not the law that religion or politics cannot be mentioned in the workplace. The concept of harassment centres on the violation of a person’s dignity or the creation of an intimidating, offensive, hostile, degrading or aggressive atmosphere. The Equality Commission itself, in the guidance referred to above, makes it plain that there is no requirement on an employer or, on its behalf, a manager, to create a workplace and to ensure the maintenance of a workplace which is artificially neutral and where certain topics are automatically excluded from conversation. It may be that certain individuals, particularly those who have had complaints levied against them in the context of Tribunal proceedings, will adopt a practice of avoiding any subject of conversation which directly or indirectly involves one of the relevant areas of unlawful discrimination, such as religious belief, political opinion, disability, gender, race, sexual orientation, age, trade union activity, etc. That is, however, a counsel of absolute perfection. While this practice may be particularly acute where one has been scarred by an appearance before a Tribunal, it is in no way a requirement of the law. If it were to be so, and if an employer or a manager were obliged to ensure that all workplace conversations excluded all matters which directly or indirectly involved religion, politics, disability, age, etc workplace conversations would be highly artificial and bordering on the inane. Normal harmonious conversations between consenting adults in the workplace can and often do include discussions of and references to matters of religion or to politics or to other sensitive topics.

28. It is important also that the Tribunal in determining this matter must also recognise that it is not sufficient for an individual claimant to simply assert and he or she has been offended by a particular behaviour. First of all, the Tribunal must determine whether or not that assertion is truthful, ie whether the evidence of offence is genuine. Secondly, the Tribunal must also determine whether the alleged behaviour satisfies the statutory definition, quoted above, of harassment. The Tribunal is obliged to determine whether there has been a reasonable perception of harassment. In doing so, it is required to, in particular, take into account any genuine perception of the claimant. It is, however, not required to blindly accept any such perception as reasonable and the personal perception of the claimant even if genuine, is not in any sense determinative of the matter. The ultimate question for the Tribunal to determine is the reasonable perception, or otherwise, of harassment.

Allegations against Ms McGuinness and Ms Rachel McCourt

29. The first allegation was that in September 2011, Ms McGuinness had quizzed the claimant about the place of Mary in Protestant theology and that this had offended her.

Ms McGuinness denied that the alleged remarks were made. The Tribunal has carefully observed both the claimant and Ms McGuinness giving evidence and for the reasons set out earlier in relation to credibility, prefers the evidence of Ms McGuinness and dismisses the allegation.

30. The next allegation was that in November 2011, Ms McGuinness had asked other staff for the name of a local Catholic monastery and had pointedly excluded the claimant. Ms McGuinness denies the conversation took place. Again this is a straightforward conflict in evidence and the Tribunal prefers the evidence of Ms McGuinness. There was no corroboration of the claimant’s allegations..If the allegations were true, corroboration could have been obtained. As with the first allegation it is not reported in her notebook or in her grievance of 19 February 2013. It is highly unlikely that the allegation is correct. The allegation is dismissed.

31. The claimant’s next allegation was an entirely unparticularised allegation of frequent and continuing remarks from Ms McGuinness in relation to the claimant’s religion up to the end of her employment. The allegation was again denied. They are not recorded in the notebook and no convincing explanation has been put forward for that failure. Again there is no corroboration and no evidence of a contemporaneous complaint or grievance. The Tribunal again refers to its findings in relation to credibility and this allegation is dismissed.

32. The next allegation concerned the staff Christmas party in December 2011. For the reasons set out earlier, the Tribunal finds the allegation unbelievable and it is dismissed.

33. The next specific allegation related to a conversation in January 2012. The claimant alleged that Ms McGuinness had discussed the claimant’s mixed relationship and had made several hurtful and offensive comments. Those included ‘my parents would kill me if I brought home a Protestant’.

Ms McGuinness accepted openly that she had chatted to the claimant about her wedding plans and where she would get married. She denied the offensive remarks. As indicated above, the Tribunal has concluded that the claimant’s evidence lacks credibility. It prefers the clear evidence of Ms McGuinness and concludes that nothing more than a normal and harmonious conversation had taken place. The offensive remarks were not made and there were no reasonable grounds for the claimant to have taken offence as alleged. The allegation is dismissed.

34. The next allegations were against Ms Rachel McCourt. The first such allegation was that Ms Rachel McCourt referred to the Waterside as the ‘Watery Sheughs’ and that this was an anti-Protestant remark. Apart from the claimant’s unsupported assertion there is no evidence this remark was ever made. Ms McGuinness denied ever having heard it. In any event, a reference to a clearly mixed area could not reasonably be perceived as anti-Protestant or anti-Catholic. Furthermore, parts of the allegation against Ms Rachel McCourt lack any credibility. A person living and working in Derry would have known that there were Roman Catholics churches in the Waterside and would not have alleged that there were not.

Furthermore, Ms McGuinness denied receiving a complaint from the claimant. Given our previous findings in relation to credibility we dismiss the allegation.

35. The next allegation against Ms Rachel McCourt was that she had made offensive remarks about the flags protests in December 2012 and from then onwards. Given our findings on credibility the Tribunal concludes, on the balance of probabilities, that such offensive remarks were not made. They did not feature in her grievance and were only mentioned once in her notebook referring to an alleged incident on 1 February 2013. It is there noted, apparently, as an isolated incident and there is no reference to a preceding history of such remarks from December 2012. The allegation is dismissed.

36. The next allegation against Ms McGuinness was that she would make ‘barbed comments’ to her every time a parade went past. Ms McGuinness freely accepted that she had commented on the bands, asking which was which etc but that such conversations were normal and harmonious. She stated that the shop would have been quiet on those occasions with limited traffic. The claimant appeared reluctant to accept that any parade would have had a detrimental impact on business.

The Tribunal notes no record of these ‘barbed comments’ on frequent occasions appeared in the notebook or in the grievance. Given its findings on credibility, the Tribunal prefers the evidence of Ms McGuinness and dismisses the allegation.

37. The next allegation concerned the promotion of Ms Rachel McCourt to the supervisor’s post in September 2012 without a wider competition. In an ideal world, every appointment or promotion would be open to competition. This promotion was not. However that impacted equally on the other part-time sales assistants who were all Catholics. It was also a joint decision between Ms McGuinness and Mr Jordan. No allegation of religious discrimination in this regard was made against Mr Jordan. It is nonsense to suggest that Mr Jordan was in any way forced or pressured by Ms McGuinness, his employee, to appoint Ms Rachel McCourt. The appointment of a supervisor in a potentially failing business would have been an important issue. The Tribunal carefully observed the witnesses and could detect no indication that Mr Jordan would have blindly or disinterestedly followed the lead of Ms McGuinness. The Tribunal dismisses the allegation.

38. The remaining allegations against Ms McGuinness all appear to this Tribunal to concern ordinary management issues which were dealt with properly by Ms McGuinness but which the claimant has chosen to portray, with no evidence, as differential treatment.

The first such issue concerned an incident in which the claimant did not comply with general instructions to tidy the shop before closing. Ms McGuinness was entitled to be annoyed about this and spoke to both the claimant and the other member of staff involved. She also spoke to other members of staff. The Tribunal sees nothing remarkable in this.

The second such issue concerned an incident where Ms Rachel McCourt misapplied the returns policy on a shift where she had been working with the claimant. There again is nothing remarkable in Ms McGuinness speaking to the claimant before speaking to Ms Rachel McCourt.

The third issue concerned a dispute between three members of staff including the claimant. The matter appears to have been resolved by Ms McGuinness and there is absolutely no evidence of differential or discriminatory treatment.

39. The next allegation concerned a meeting between the claimant and Ms McGuinness in which Ms McGuinness had queried both her performance and a telephone call the previous day from the claimant’s father. Given the claimant’s acceptance that she had resented the promotion of Ms Rachel McCourt and that she had stopped talking normally to Ms McGuinness, it seems again entirely unremarkable that such a conversation would have taken place. The Tribunal accepts Ms McGuinness’ evidence that it concluded with an informal warning that if the claimant’s performance did not improve, disciplinary action could follow. That had nothing to do with religion.

40. The final allegation in relation to Ms McGuinness was that the claimant had been reduced to six hours in the week following 9 February 2013 and that other staff had been given their consistent hours. That is plainly incorrect for the reasons set out earlier. The Tribunal accepts the clear evidence of Ms McGuinness that she had no recollection of the precise number of hours given to the claimant, that hours had been generally reduced and that business was poor. In fact, the business closed shortly thereafter.

Findings of fact – Allegations of victimisation against Mr Jordan

41. The claimant stated that she had sent the grievance letter to the Belfast French Connection store for Mr Jordan. That was sent on 19 February 2013 and was followed by three subsequent reminders and indeed by a resignation letter sent to the same address. She stated that she received no response to any of those letters.

42. Mr Jordan accepted that he had not responded to any of those documents. He accepted that those documents had clearly been posted and received at the Cornmarket address. However, he stated that while the French Connection operated in the ground floor and first floor, under his control, the second floor comprised an office that was generally locked. This was the office of his father, Mr A Jordan. He stated that Mr A Jordan used this office as a postal address and that it was not until he had received the claim form that the documents were then located and retrieved from that office.

43. Mr J Jordan’s evidence was that the postman delivered to the ground floor to the till area and that post was then either left for him or was taken to the second floor and pushed underneath the locked door to be looked at eventually by Mr A Jordan.

44. Mr Jordan stated, in cross-examination, that this postal address was checked every week or every month by his father. Even if it were to be assumed that it was only checked monthly, it seems incredible that a grievance posted on 19 February 2013 was not located until after receipt of the claim form, some two months later. It seems equally incredible that five letters in total should have been pushed under the door of Mr A Jordan without further enquiry. Any letter received in the ground floor of the building which was addressed to either Mr J Jordan, French Connection or North Retail Ltd would and should have been retained on the ground floor for immediate examination by Mr J Jordan. It is only in the unlikely event of a letter being addressed to Mr Jordan (no initial) at 26 to 28 Cornmarket, Belfast, BT1, that it is even possible that such a letter would have been pushed under Mr A Jordan’s locked door without further comment. Even if that were to be the unlikely result in respect of the five letters and even if it were to be accepted that for some reason, as yet unproven, Mr A Jordan had not checked his post during that lengthy period, it seems unlikely that five envelopes with at best ambivalent addresses, ie to a Mr Jordan with no identified initial and with no identified business name, would simply have been shoved under Mr A Jordan’s door without further comment. There would have been the real possibility that those letters had in fact been intended for Mr J Jordan (as they were in this case) and that they could have comprised something of significance. It seems highly unlikely that the till operator or other member of staff would have taken it upon themselves to decide that any such letter, addressed in such an ambivalent manner, if indeed they were, could safely have been shoved under a locked door and forgotten. It seems even more unlikely that this would have happened on several occasions without comment and without further enquiry.

45. The Tribunal therefore considers, on the balance of probabilities, that Mr Jordan’s evidence in this matter is not credible.

46. Given this finding in relation to Mr Jordan’s credibility in this matter, the Tribunal is driven to the decision, on the balance of probabilities, that his failure to pay statutory sick pay was a deliberate act on his part. The Tribunal does not accept that a cheque of £477.00 and a covering letter was eventually left for collection by the claimant or by her father. Mr Jordan would have known that she was on sick leave at the time and would have had no reason to assume that Mr Walker would have called in on her behalf, without any request from Mr Jordan, to collect same. Furthermore, it seems highly unlikely that a cheque for whatever amount was left behind the counter of a shop which was in the throes of finally closing down within a matter of days and where all paperwork was dumped.

47. The Tribunal concludes that it is more likely than not that the grievance and the reminders and indeed the resignation letter were received and read by Mr Jordan, either immediately or shortly after receipt on the ground floor of the building in Cornmarket and that he had decided simply not to deal with the matter as the claimant had been regarded by him as a troublesome employee in a business that was now closing and in respect of which he had no further interest. Equally, it seems more likely than not that his failure to act properly in relation to the payment of statutory sick pay was also due to a conscious decision on his part to fail to follow through on his contractual obligations in relation to the claimant. There is a final point in relation to the incorrect payment of statutory sick pay which required a further top-up. That is a matter which may or may not have been a genuine mistake, but in any event is of no significance on its own.

48. The Tribunal concludes that Mr Jordan’s reaction to the grievance, the reminders, the resignation letter and his actions in relation to sick pay can only be regarded as a reaction to receipt of the grievance letter which included a specific religious discrimination claim and was therefore comprised a protected act for the purpose of the 1998 Order.

49. The Tribunal has considered that part of the Order which excludes from the definition of victimisation, reactions to actions which were a false allegation. Clearly the Tribunal, after hearing the evidence in this matter and observing the claimant and, in particular, Ms McGuinness under cross-examination, has concluded that the allegations were misconceived. However, Mr Jordan could not have known that that was the case without reacting properly in relation to the grievance and without investigating the complaints. In the view of the Tribunal, therefore, this was a matter of victimisation, albeit a technical matter of victimisation since it is the Tribunal’s conclusion that Mr Jordan reacted instinctively to what he regarded, although without proper investigation, as unmeritorious allegations.

50. As indicated above, the Tribunal has rejected the allegations of unlawful discrimination or harassment on the grounds of religion, save that of victimisation by Mr Jordan. The Tribunal concludes that those acts of victimisation, ie the failure to deal properly with the grievances and a failure to pay statutory sick pay, were repudiatory breaches which technically entitled the claimant to resign and to regard herself as constructively unfairly dismissed. They were part of the claimant’s decision to resign. As the EAT has recently stated in the Wright case (above) it is not necessary that they were the effective or the major cause of resignation.

Remedy

51. The Tribunal has significant concerns about the appropriate level of compensation in this case. It has concluded that the allegations of harassment on the grounds of religion and unlawful discrimination on the grounds of religion (save that of victimisation) were misconceived. The law does not provide for the unjust enrichment of those who lodge such claims and pursue them to Tribunal stage, where there happened to be a reaction by the employer to misconceived claims which itself falls within the definition of victimisation. The claimant acted wrongly in making those allegations and in pursuing them. However, Mr Jordan also acted wrongly in failing to honour his contractual obligations to the claimant. The actions of Mr Jordan and of North Retail Limited as employer are to be deprecated and cannot be ignored. Equally, there cannot be unjust enrichment of the claimant, where the claimant has pursued misconceived claims. The Tribunal therefore, after some anxious consideration, concludes that the appropriate compensation in relation to victimisation is £500.00 which is sufficient to mark its disapproval of the employer’s actions, while at the same time not unduly and unjustly enriching the claimant.

Unfair dismissal

52. The claimant resigned on 4 April 2013. Her evidence was that she resigned as a result of an ongoing campaign of harassment and discrimination which culminated in the refusal of the respondents to address her grievance or to pay her sick pay. As indicated above, the Tribunal has concluded that there had been no such ongoing campaign of harassment and discrimination. The claim is therefore rejected to that extent.

53. However, the Tribunal has concluded that there had been victimisation in relation to the failure to deal with the grievance and with the failure to pay statutory sick pay when due. Those amounted to substantial breaches of contract. It seems to this Tribunal that it would have been highly unlikely that the claimant had been unaware at the start of April 2013 that the shop was in the process of closing down. That fact would have had some influence on her decision to resign. Nevertheless, it is, on the balance of probabilities, likely that part of the reason to resign had been the failure to deal with the grievance and the failure to pay statutory sick pay. As the EAT has made plain in the ‘Wright’ decision (see above), it is not necessary that these contractual breaches should be the sole or the effective cause of the decision to resign. The claimant was therefore constructively dismissed and, in the circumstances, unfairly dismissed.

54. As with the victimisation claim, the Tribunal has had difficulty in assessing the appropriate level of compensation. The Employment Rights (Northern Ireland) Order 1996 provides for the reduction of the basic and compensatory award where the conduct of the claimant before the resignation was such that it would be just and equitable to reduce the award.

Basic award

55. Adopting the figures in the claimant’s schedule of loss, which was not in dispute, the claimant is entitled to £185.70, calculated as follows:-

1.5 x £123.80 = £185.70

This is the sum to which the claimant would have been entitled in any event at the end of April 2013 as a statutory redundancy payment. The Tribunal therefore does not consider it appropriate to reduce it on the ground of contributory fault.

Compensatory award

56. The claimant was on sick leave from 13 February 2013 up to her resignation on 4 April 2013. The statutory sick pay properly due in respect of this period has now been paid. There had been no loss in respect of this period.

57. The business closed on 27 April 2013 and the claimant would have lost her job in any event on that date. In respect of the period from 4 April 2013 to 27 April 2013 there appears to be no evidence that the claimant would have been fit for work. The GP records suggest the opposite. The records show that a doctor’s statement was issued for 13 March 2013 to 13 April 2013 for ‘work-related stress’ and that a duplicate statement issued on 2 May 2013. There does not appear to have been any loss of wages. There was no evidence that the inability to work was linked to the failure to deal with the grievance or to pay statutory sick pay.

58. There was a loss of statutory rights of £280.00 and a loss of contractual notice pay of one month, ie:-

£123.80 x 52 ÷ 12 = £536.46

59. Given the respondents’ failure to deal with the claimant’s grievance, the sums are uplifted by 50% under the Employment Rights (Northern Ireland) Order 2003, totalling £1,224.69.

60. The Tribunal must next consider whether there has been contributory fault on the part of the claimant and if so, must consider whether an appropriate reduction should be made to the compensatory award. The claimant’s claim in respect of constructive dismissal was that she was driven to resign by a campaign of discrimination and harassment. The failure to deal with the grievance and the failure to pay statutory sick pay promptly were simply the final straw. The claim of unlawful harassment and of unlawful discrimination (save victimisation) have been rejected. The grievance raised matters of alleged discrimination and of alleged bullying which were misconceived. If it had been properly considered by the respondents it would have been dismissed. On the balance of probabilities the Tribunal has also concluded that the claimant would have known that the business was in difficult position and that it was due to close at the end of April 2013.

61. The Tribunal’s conclusion is that the claimant has contributed to her own constructive dismissal with a misconceived grievance and that therefore the appropriate reduction of the compensatory award is 50% reducing it to £612.35.

62. The total amount due is £500.00 (victimisation), £185.70 (basic award) and £612.35 (compensatory award).

63. Since no part of the compensatory award relates to loss of earning a Recoupment Notice is not appropriate.

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

Vice President:

Date and place of hearing: 4 – 6 November 2013, Belfast

Date decision recorded in register and issued to parties: