FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 12/16 FET
CLAIMANT: Brian Wright
RESPONDENT: Schivo NI Ltd (In Liquidation)
REASONS (FOR LIABILITY DECISION)
Constitution of Tribunal:
Employment Judge: Employment Judge Buggy
Members: Mr C McIlwaine
Mrs F Cummins
The claimant was represented by Mr M Potter, Barrister-at-Law.
The respondent was not represented.
1. Our liability decision in this case was issued on 25 October 2017. The following are our reasons for that liability decision.
2. This claimant is one of six claimants ("the relevant claimants") to which all of the following circumstances apply:
(1) He was employed by the respondent company, Schivo NI Ltd ("Schivo").
(2) He was dismissed by Schivo, with effect from November 2015.
(3) He brought proceedings in the Fair Employment Tribunal which were the subject of a liability Decision which was issued on 25 October 2017.
3. The names and case reference numbers of the relevant claimants (including this claimant) are as follows:
(1) Shaun Lynch 9/16 FET and 267/16
(2) Jason Browne 10/16 FET and 268/16
(3) Stephen Pulis 11/16 FET and 269/16
(4) Brian Wright 12/16 FET and 270/16
(5) Alastair Robinson 13/16 FET and 271/16
(6) Darren Cowey 14/16 FET and 272/16
4. Each relevant claimant was an employee who worked at a plant at Maydown, Derry/Londonderry for several years. Throughout each relevant claimant's period of employment there, his employer was Maydown Precision Engineering Ltd ("MPE") until 21 July 2015. In July 2015, the contracts of employment of all of the MPE employees at Maydown were the subject of a relevant transfer, within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE"), whereby Schivo was the transferee of each worker's contracts of employment. In November 2016, Schivo dismissed all of the relevant claimants, ostensibly on the ground of redundancy. On 5 January 2017, Schivo went into administration. At the same time, Schivo's trading was "suspended". In March 2017, Schivo permanently ceased to trade. In August 2017, Schivo went into creditors voluntary liquidation.
5. At the time of dismissals:
(1) The claimants, Mr Wright, Mr Robinson, and Mr Cowey were working as "operatives".
(2) The claimants, Mr Lynch, and Mr Pulis were working as "engineers".
(3) The claimant, Mr Browne, was working as a "lead hand operative".
6. In the present context, the word "Act" has been defined in a particular way. For the purposes of this document, an "Act":
(1) includes an act or omission;
(2) refers to any act or omission in respect of which compensation is claimed; but
(3) does not refer to any act or omission which is of merely contextual or evidential significance.
7. All the relevant cases were heard together. At the beginning of the main hearing, Mr Potter made it clear that each relevant claimant was now making claims only in respect one Act : the dismissal.
8. In relation to the dismissal, this claimant's causes of action were as follows :
(1) He made a claim of "ordinary" unfair dismissal pursuant to Article 130 of the Employment Rights (Northern Ireland) Order 1996 ("ERO").
(2) He made a claim of automatically unfair dismissal, of a type which is contemplated at Article 136 of ERO.
(3) He made a claim of automatically unfair dismissal pursuant to Article 137 of ERO.
(4) He made a claim of discriminatory dismissal, pursuant to Article 19(1)(b)(iii) of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("FETO"), the type of discrimination alleged being discrimination "on the ground of political opinion".
(5) He made a claim of discriminatory dismissal, pursuant to Regulation 7(2)(d) of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ("the 2006 Regulations"), the type of discrimination alleged being indirect age discrimination.
9. The outcomes of those claims, as set out in the liability Decision, were as follows:
(1) We decided that the ordinary unfair dismissal claim was well-founded.
(2) We decided that the Article 136 claim of automatically unfair dismissal was well-founded.
(3) We decided that the Article 137 claim of automatically unfair dismissal was not well-founded. Accordingly, that claim was dismissed.
(4) We decided that the FETO claim of discriminatory dismissal was not well-founded. Accordingly, that claim was dismissed.
(5) We decided that the claim of indirect age-discriminatory dismissal was well-founded.
10. At the time of the main hearing of the relevant cases, Schivo was in administration. The administrators informed the Office of the Industrial Tribunals that Schivo was contesting this claimant's claim, but, that, for costs reasons, Schivo would not be represented at, or otherwise participating in, the main hearing. In view of the fact of the administration, we decided that, even though the Schivo did not put forward any witnesses to testify on its behalf, it would not be appropriate, on account of that omission, for us to draw inferences of the type which are referred to Lynch v Ministry of Defence  NI 216.
11. All the relevant cases were heard together, during the course of a composite main hearing. Accordingly, evidence in each relevant case was treated as being evidence in all of the other relevant cases. In most instances, and in relation to most topics, the sworn testimony of the claimants had earlier been reduced to writing, in the form of written witness statements. However, during the course of the main hearing, in some instances, and to some extent, that witness statement testimony was supplemented by oral testimony.
12. In relation to the relevant cases, we received bundles of documents. In addition, we also saw some miscellaneous documents. We informed Mr Potter that, for evidential purposes, we would not have regard to the contents of any document in a bundle unless our intention had been drawn to that particular document.
13. The reasons for our liability determinations in this case are as follows.
The ordinary unfair dismissal claim
14. We decided the ordinary unfair dismissal claim in favour of this claimant for the reasons which are set out at paragraphs 15 - 18 below.
15. Paragraph (1) of Article 130 of ERO provides as follows:-
"(1) In determining for the purposes of [the unfair dismissal legislation] whether the dismissal of an employee is fair or unfair it is for the employer to show -
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is [a potentially fair reason].
16. Redundancy is of course a potentially fair dismissal reason : see paragraph (2) of Article 130.
17. During the course of the process which culminated in this claimant's dismissal by Schivo, and at the time of the actual dismissal, he was contemporaneously told, by those involved in deciding to dismiss him, that the reason for his dismissal was redundancy. That reason has also been specified in the response to these proceedings. That response was completed by a reputable firm of solicitors, no doubt on the basis of instructions from Schivo.
18. We are sure that, for the purposes of paragraph (1) of Article 130 an employer does not "show" that the reason for any particular dismissal (such as the dismissal of this claimant) was redundancy merely by making the assertions which have been described at paragraph 17 above.
The Article 136 unfair dismissal claim
19. In the following paragraphs, we have set our reasons for deciding that the Article 136 automatically unfair dismissal claim is well-founded.
20. Those provisions of Article 136 which are relevant in the circumstances of this case can be summarised as follows : An employee who is dismissed is to be regarded, for the purpose of the unfair dismissal legislation, as being unfairly dismissed if the reason (or, if more than one, the principal reason) for his dismissal is that that employee:
(1) was a member of an independent trade union,
(2) had taken part in the activities of an independent trade union at an appropriate time, or
(3) had made use, or proposed to make use, of trade union services at an appropriate time.
21. What are the rules regarding the burdens of proof in respect of an Article 136 automatically unfair dismissal claim, which apply to an ex-employee who had enough service to make an ordinary unfair dismissal claim? In our view, those rules are the same as the rules which would apply if the same ex-employee was making an automatically unfair dismissal claim pursuant to Article 134A of the ERO.
22. Article 134A provides that a dismissal of any particular employee is automatically unfair if the reason (or, if more than one, the principal reason) for that dismissal is that that employee made a protected disclosure.
23. Section 103A of the Employment Rights Act 1996 ("ERA") is the precise GB equivalent of Article 134A of ERO. What are the rules regarding burden of proof, which apply in respect of a Section 103A automatically unfair dismissal claim which is made by a person who had enough service to make an ordinary unfair dismissal claim? Those rules are set out in the EAT judgment in Kuzel v Roche Products Ltd  ICR 945 and in the English Court of Appeal judgment in that case, which is reported at  IRLR 530.
24. In the Court of Appeal, the only reasoned judgment was delivered by Mummery LJ. That judgment was endorsed, without reservation or amplification, by the two other Court of Appeal judges in that case.
25. At paragraph 66 of his judgment in that case, Mummery LJ expressly endorsed what he called "the EAT's careful analysis of burden of proof in this type of case": That analysis had been set out at paragraph 47 of the EAT judgment, in the following terms:
"47. ... [We] would formulate the approach to be applied on the findings made by the Tribunal in this case as follows:
(1) Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent, some other substantial reason, was not the true reason? Has she raised some doubt as to that reason by advancing the s103A reason?
(2) If so, has the employer proved his reason for dismissal?
(3) If not, has the employer disproved the s103A reason advanced by the Claimant?
(4) If not, dismissal is for the s103A reason.
In answering those questions it follows:
(a) that failure by the Respondent to prove the potentially fair reason relied on does not automatically result in a finding of unfair dismissal under s103A;
(b) however, rejection of the employer's reason, coupled with the Claimant having raised a prima facie case that the reason is a s103A reason entitles the Tribunal to infer that the s103A reason is the true reason for dismissal, but
(c) it remains open to the Respondent to satisfy the Tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason as found by the Tribunal is not that advanced by the Respondent;
(d) it is not at any stage for the employee (with qualifying service) to prove the s103A reason."
26. We are sure that the EAT and Court of Appeal Kuzel analyses apply (if the relevant claimant has enough service to make an "ordinary" claim of unfair dismissal) in the context of all types of claims of automatically unfair dismissal.
27. On appeal in Kuzel, further commentary, in relation to the appropriate approach to evidential issues in cases in which an automatically unfair dismissal claim is made by somebody who had enough service to make an ordinary unfair dismissal claim, was set out at paragraphs 50 - 61 of Mummery LJ's judgment. Those aspects of that commentary which are particularly relevant in the present case can be summarised as follows.
(1) It is not profitable to discuss burden of proof issues in generalities. It must be related to particular issues; in this context, any such discussion has to be related to the different aspects of an unfair dismissal claim. On some issues, the unfair dismissal legislation is completely silent on the burden of proof. In the absence of specific statutory provision, the general rules apply. The general rules are that a person bringing a claim must prove it but a person asserting a fact must produce some evidence for it. (See paragraph 49 of the judgment.)
(2) The unfair dismissal provisions of the ERA, including the protected disclosure provisions, pre-suppose that, in order to establish unfair dismissal, it is necessary for the employment tribunal to identify only one principal reason for the dismissal. (See paragraph 52 of the judgment.)
(3) The reason or principal reason for a dismissal is a question of fact for the employment tribunal. As such, it is a matter of either direct evidence or of inference from primary facts established by evidence. (See paragraph 53 of the judgment.)
(4) The reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee; significantly, those facts are within the employer's knowledge. (See paragraph 54 of the judgment.)
(5) Section 98 of the Employment Rights Order 1996 (the GB equivalent of Article 130 of the ERO) contains special provisions about who has to show the reason or principal reason for the dismissal. There is specific provision requiring the employer to show the reason or principal reason for dismissal. The employer knows better than anyone else in the world why he dismissed the complainant. Thus, it was clearly for Roche to show that it had a reason for the dismissal of Dr Kuzel; that the reason was, as it asserted, a potentially fair one; and to show that it was not some other reason. When Dr Kuzel contested the reasons put forward by Roche, there was no burden on her to disprove them, let alone to positively prove a different reason. (See paragraph 56 of the judgment.)
(6) When an employee asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting that positive case. This does not mean however that, in order to succeed in a particular automatically unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for the relevant automatically unfair reason. Instead, it is sufficient for that employee:
"(a) ... to challenge the evidence produced by the employer to show the reason advanced [by the employer] for the dismissal"; [our emphasis]; and
(b) "to produce some evidence of a different reason".
(See paragraph 57 of the judgment.)
(7) Having heard the evidence of both sides relating to the reason for dismissal, it would then be for the employment tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of:
(a) direct evidence; or
(b) by reasonable inferences from primary facts established by the evidence or not contested in the evidence.
(See paragraph 58 of the judgment.)
(8) The employment tribunal must then decide what was the reason or principal reason for the dismissal of the claimant, on the basis that it was for the employer to show what the reason was. If the employer does not show, to the satisfaction of the employment tribunal, that the reason was what the employer asserted it was, it is open to the employment tribunal to find that the reason was what the employee asserted it was. (See paragraph 59 of the judgment.)
28. In this paragraph, we set out findings of fact which are relevant to the conclusions which we have arrived at in respect of the Article 136 claim:
(1) No more than about 50% of the Maydown plant workers were in the union. However, this claimant, and every other Maydown employee who was subjected to compulsory dismissal in November 2015, was a member of the union.
(2) In uncontroverted sworn testimony, which (in our view) was not inherently implausible, various claimants asserted that persons in influential positions within Schivo had recently shown dislike or antagonism towards Unite, in the context of Unite attempting to play an activist role within the Maydown plant. (Because that evidence has not been the subject of any cross-examination, and because there is no sworn testimony to the contrary, we accept that that evidence is factually correct.)
29. We can now apply Kuzel principles to this case, on the basis of the findings of fact which have been highlighted at paragraph 28 above:
(1) This claimant has shown that there is a real issue as to whether the dismissal reason put forward by Schivo (redundancy) was not the true reason. (He has raised some doubt as to that reason by advancing the Article 136 reason.)
(2) Schivo, which has not really engaged in relation to the main hearing of this case, has not proven its reason for the dismissal.
(3) Accordingly, in this case, the question as to whether Schivo has disproved the Article 136 reason is a question which does not arise.
(4) Accordingly, we conclude that the dismissal was for the Article 136 reason.
30. We have rejected the employer's reason (redundancy) and this claimant has raised a prima facie case that the reason is an Article 136 reason.
31. Therefore, we are entitled to infer, and we do infer, that the Article 136 reason is the true reason for dismissal.
32. As was indicated at sub-paragraph (5) of paragraph 27 above, in a case such as the present case, it was clearly for Schivo to show:
(1) that it had a reason for the dismissal of this claimant;
(2) that the reason was, as it asserted, a potentially fair one; and
(3) that the claimant was not dismissed for some other reason.
Schivo, no doubt for understandable economic reasons, has not engaged with this litigation, to any substantial extent. The claimant has produced some evidence supporting his case that dismissal was for an Article 136 reason. (See sub-paragraph (6) of paragraph 27 above.)
33. Paragraph 58 of the Court of Appeal judgment in Kuzel envisages that the employment tribunal will hear the evidence of both sides relating to the reason for dismissal and, having done so, will then consider the evidence as a whole and will in those circumstances:
(1) make findings of primary facts on the basis of direct evidence; or
(2) by reasonable inferences from primary facts established by the evidence or not contested in the evidence.
However, in this case, we have been deprived of the opportunity to receive evidence from both sides of the argument.
34. As was pointed out at paragraph 59 of the Court of Appeal judgment in Kuzel, in circumstances in which an employer does not show, to the satisfaction of the employment tribunal, that the reason was what the employer asserted it was, it is open to the employment tribunal to find that the reason was what the employee asserted it was. That is what we have done in this case.
The Article 137 unfair dismissal claim
35. In the following paragraphs, we have set out our reasons for deciding that the Article 137 claim of automatically unfair dismissal is not well-founded.
36. The framework of Article 137 is set out at paragraph (1) of that Article.
37. In the circumstances of this case, the effect of Paragraph (1) can be summarised as follows : An employee is to be treated as being unfairly dismissed if, and only if, all of three preconditions are met:
(1) The first precondition is that the main reason for the dismissal was that the relevant employee was redundant.
(2) It is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by that employee, and those employees have not been dismissed by the employer.
(3) It is shown that the main reason that the employee was selected for dismissal was one of those specified in Article 136(1).
38. In our opinion, the first of those preconditions is not met in the circumstances of this case:
(1) As already indicated above, the employer has not shown the reason, or principal reason for dismissal.
(2) The claimant asserts that he was not redundant.
39. A finding that the claimant was unfairly selected for redundancy does not sit comfortably with our earlier conclusion that the claimant's trade union membership or activities was the main reason for dismissal.
40. In any event, in circumstances in which a claimant's Article 136 claim has been successful, there is no financial or other advantage to a claimant in also obtaining a judgment in his favour in respect of an Article 137 claim.
The FETO claim
41. At paragraphs 42 - 58 below, we set out our reasons for deciding that the claimant's Fair Employment and Treatment (Northern Ireland) Order 1998 ("FETO") claim of discriminatory dismissal is not well-founded.
42. Article 19(1)(b) of FETO makes it unlawful for an employer to discriminatorily dismiss one of its employees.
43. In that context, "discrimination" includes discrimination on the ground of "political opinion" : See Article 3(1)(a) of FETO.
44. It is clear that an employer can discriminate against an employee on the ground of political opinion even if the discrimination is not at a conscious level.
45. It is also clear that a dismissal will be an unlawful discriminatory dismissal, for the purposes of FETO, even if the discrimination is not the principal reason for the dismissal: It suffices if the relevant prohibited ground was a significant reason for the dismissal.
46. The scope of the term "political opinion", in the context of Article 3(1)(a) of FETO has to be ascertained in light of the decisions of the Northern Ireland Court of Appeal in McKay v Northern Ireland Public Service Alliance  NI 103 and in Gill v Northern Ireland Council for Ethnic Minorities  NIJB 299.
47. In McKay, the Court of Appeal decided that, for the purposes of the fair employment legislation, there could be political discrimination, even if the relevant opinion had no connection with religious belief and even if the relevant opinion was not one in respect of matters which related solely to Northern Ireland. The court concluded that the 1976 Fair Employment Act did not confine the term "political opinion" to nationalist/unionist politics; instead, according to the court, the phrase was one which should be given its ordinary meaning.
48. In 2001, in the Gill case, the complainant was an unsuccessful applicant for a post with NICEM. He asserted that he had been unsuccessful because of his association with, and advancement of, an "anti-racist" approach to the solution of racial problems of ethnic minorities in Northern Ireland. According to the complainant, this was a more robust, or confrontational, approach than the "culturally sensitive" approach which (according to the complainant) was favoured by NICEM. The complainant asserted that discrimination against him on the ground of his "anti-racist" approach constituted discrimination on the ground of political opinion within the meaning of FETO. Having considered the judgment in McKay, the Fair Employment Tribunal had accepted that proposition. However, the Court of Appeal disagreed. According to the Court, the complainant's "anti-racist" approach was not a political opinion within the meaning of the legislation. The court stated that the type of political opinion envisaged by the legislation was an opinion which relates to one of the opposing ways of conducting the government of the state, which could be Northern Ireland, but was not confined to that political entity. In the course of his judgment in that case, which was the judgment of the court, Carswell LCJ suggested that the object of the legislation:
" ... is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology which may predispose the discriminator against him. For this reason we consider that [the relevant political opinion] must be one relating to the conduct of the government of the state or matters of public policy".
49. What was the opinion ("the relevant opinion") which was allegedly the ground for the dismissal in this case?
50. According to the claimant's claim form in these proceedings the relevant opinion was as follows:
"I believe as a political opinion that workers have the right to collectively organise in the workplace to promote their collective rights and interests. I believe as a political opinion that workers' representative should be able to robustly pursue relevant and appropriate activities to promote workers' rights and interests. I believe that the law and public policy should facilitate and not prevent such activities. ... ."
51. We think that the inclusion (within the quoted extracts from this claimant's claim form) of the words "as a political opinion", is a distraction. In our view, it is the subject-matter of a particular opinion which determines whether or not it is a political opinion within the meaning of FETO: It does not become a "political" opinion simply because you describe it as such, or simply because you regard it as such.
52. Accordingly, we have deleted the words "as a political opinion" from the quoted extract. When that is done, we can more easily see all that the relevant views consist of. They consist of the following:
(1) a belief that workers have the right to collectively organise in the workplace to promote their collective rights and interests;
(2) a belief that workers' representatives should be able to robustly pursue relevant and appropriate activities to promote workers' rights and interests; and
(3) a belief that the law and public policy should facilitate and not prevent such activities.
53. Having borne in mind the fact that the respondent has not actively participated in the defence of these proceedings, we have assumed, in favour of this claimant, that the views which are described in the last preceding paragraph do constitute a political opinion within the meaning of FETO.
54. Against the same background, we have also assumed that all relevant decision-makers (everyone in Schivo who had a role in deciding whether this claimant would be dismissed) knew he held those views, or perceived him to hold such views.
55. Nevertheless, this claim of politically discriminatory dismissal fails.
56. We are sure that the fact that this claimant held the relevant views, or that he was perceived to hold the relevant views, was not a significant reason for any relevant decision, on the part of any relevant decision-maker, on the question of whether or not this claimant should be dismissed.
57. Why are we so sure on that issue? Because the relevant views are so innocuous and banal that it is implausible that any relevant decision-maker would have any interest in whether the claimant held such views, or would take the holding, or perceived holding, of those views, by the claimant, into account, in deciding whether or not this claimant should be dismissed.
58. We have noted the provisions of the burden of proof which are contained in Article 38A of FETO. Those provisions are irrelevant in the circumstances of this case, because we are affirmatively satisfied, on the balance of probabilities (and indeed to a much higher standard than the balance of probabilities), that the fact that the claimant held the relevant views, or was perceived to hold the relevant views, was not one of the reasons for his dismissal.
The age discrimination claim
59. In the following paragraphs, we set out our reasons for deciding that the claimant's indirect age discrimination claim is well-founded.
60. In Northern Ireland, in the field of employment, the age discrimination legislation consists of the Employment Equality (Age) Regulations (Northern Ireland) 2006 ("the 2006 Regulations"), as amended.
61. Paragraph (2) of regulation 7 of the 2006 regulations makes it unlawful for an employer to discriminatorily dismiss one of its employees.
62. In that context, "discrimination" includes indirect age discrimination.
63. Paragraph (1) of regulation 3 of the 2006 Regulations contains the definition of indirect age discrimination. As is made clear in that paragraph, for the purposes of the 2006 regulations, a person ("A") indirectly discriminates against another person ("B") if all of the following conditions are met:
(1) A applies to B a provision, criterion or practice ("PCP") which it applies, or would apply, equally to persons not of the same age group as B;
(2) application of that PCP put, or would put, persons of the same age group as B at a particular disadvantage compared with other persons;
(3) it does put B at that disadvantage; and
(4) A cannot show that the PCP period is a proportionate means of achieving a legitimate aim.
64. Paragraph (3) of regulation 3 provides that, in that regulation, "age group" means a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.
65. This claimant was employed by Schivo as an operative. He was a permanent employee of Schivo, This claimant, and a number of other operatives, were made "redundant" in November 2015. All operatives who were then made "redundant" were chosen for redundancy from a selection pool which consisted only of permanent operatives. That pool did not include temporary operatives. In the Maydown plant, the age profile of temporary operatives was substantially lower than the age profile of permanent operatives. In the Autumn 2015, this claimant was significantly older than the median age of the temporary operatives who were employed in the Maydown plant at that time.
66. In choosing the redundancy pool for potentially "redundant" operatives, Schivo was applying, to this claimant, a PCP which it applied or would apply equally to persons not of the same age group as the claimant. (See sub-paragraph (1) of paragraph 63 above).
67. The application of that PCP did put, or would put, persons of the same age group as this claimant at a particular disadvantage when compared with other persons. (See sub-paragraph (2) of paragraph 63 above).
68. The application in that PCP did put this claimant at that disadvantage. (See sub-paragraph (3) of paragraph 63 above).
69. It has not been shown that the application of the relevant PCP was a proportionate means of achieving a legitimate aim.
70. Against the background set out at paragraphs 59 - 69 above, and for the reasons set out in those paragraphs, this claimant's indirect age discrimination claim is successful.
71. It may well be that if Schivo had participated in the main hearing of this case, it would have been able to show that the application of the relevant PCP was a proportionate means of achieving a legitimate aim. However, for entirely understandable reasons, Schivo was not represented at the main hearing of these proceedings, and it did not engage to any significant extent in connection with the main hearing.
Date and place of hearing: 5 - 6 June 2017, Belfast
Date decision recorded in register and issued to parties: