FAIR EMPLOYMENT TRIBUNAL
CASE REF: 93/16 FET
CLAIMANT: Colin Robert Houston
RESPONDENTS: 1. Swissport GB Ltd
2. Colin Morrow
The unanimous decision of the Tribunal is that all the claims are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms G Ferguson
Mr R Hanna
The claimant was represented by Mr G Grainger, Barrister-at-Law instructed by Equality Commission for Northern Ireland.
The respondents were represented by Mr L Rogers, Solicitor, of Weightmans LLP, Solicitors.
1. The first-named respondent provides baggage handling and cargo handling services at various airports, including Belfast International Airport ('Aldergrove').
2. The claimant was employed, at all relevant times, as a ramp agent by the first-named respondent from 16 November 2015. The second-named respondent was the ramp manager. He was not the claimant's immediate line manager. He had overall control of up to 140 ramp agents and about 40 supervisors providing baggage handling services and cargo handling services.
3. The claimant had been employed on a part-time and temporary contract. It had originally been expected to end on 31 May 2016 but had been extended to 25 September 2016.
4. The claimant is a Christian pastor and does not approve of same sex relationships or same sex marriages. He is a heterosexual.
5. The claimant alleges that, in the course of his employment, he had been subjected to various acts of unlawful harassment and discrimination, eg that a rainbow coloured bumper sticker stating 'I am so gay, I can't even drive straight' had been affixed to his car.
6. The claimant's temporary contract of employment was renewed once and was not further renewed. It terminated on 23 September 2016. The claimant alleges that this termination had been an act of unlawful discrimination, and an act of unlawful victimisation because he had complained of acts of unlawful harassment.
7. The claimant alleges that his complaints of unlawful discrimination/harassment were not taken seriously and that they were not properly investigated.
8. The claimant alleges that he has been unlawfully discriminated against by the respondents on the basis of his religious belief, his political opinion and his sexual orientation.
9. The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council  NICA -3 April 2009. The court held:-
"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong  3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd  IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. 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 be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon  NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.
23 In the post- Igen decision in Madarassy v Nomura International PLC  IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-
'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'
That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.
24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland  NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."
10. In S Deman v Commission for Equality and Human Rights & Others  EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-
"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."
11. In Laing v Manchester City Council  IRLR 748, the EAT stated at Paragraphs 71 - 76:-
"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.
(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.
(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.
(76) Whilst, as we have emphasised, it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage."
12. In McKeith v Ardoyne Association, the Court of Appeal in its decision (29 November 2016) stated:-
" The Shifting Burden of Proof.
 While Ms McKeith did not advance a claim for disability related discrimination in relation to the period before the dismissal decision, her background treatment in the preceding months did inform the approach of the Tribunal in relation to the dismissal decision. The background included the requirement that Ms McKeith remain absent from work for periods to look after her disabled daughter. Had it arisen for decision, the Tribunal would have concluded that the previous treatment of Ms McKeith amounted to disability related discrimination (paragraph 132).
 On taking into account that background and the evidence in relation to the dismissal of Ms McKeith, the Tribunal stated that 'the shifting burden of proof is going to be crucial' (paragraph 136).
 The Burden of Proof Directive (EEC) 97/80 was extended to the United Kingdom in 1998 and Article 4(1) provided -
"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them established, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."
 Section 17A(1B) of the 1995 Act provides -
`Where, on the hearing of a complaint under sub-section (1), the complainant proves facts from which the Tribunal could, apart from this sub-section, conclude in the absence of inadequate explanation that the respondent has acted in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act.'"
 The approach to the shifting burden of proof was considered by the Court of Appeal in England and Wales in Wong v Igen Ltd (2005) EWCA Civ 142. It was stated that the statutory amendments required a two-stage process. The first stage required the complainant to prove facts from which the Tribunal could, apart from the section, conclude, in the absence of an adequate explanation, that the employer had committed, or was to be treated as having committed, the unlawful act of discrimination against the employee. The second stage, which only came into effect on proof of those facts, required the employer to prove that he did not commit or was not to be treated as having committed the unlawful act, if the complaint is not to be upheld.
 The issue was revisited by the Court of Appeal in England and Wales In Madarassy v Nomura International plc  EWCA Civ 33 which set out the position as follows (italics added) -
"56. The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent `could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal `could conclude' that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
57. `Could conclude' [in the Act] must mean that `a reasonable Tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the complaint to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by [the Act]; and available evidence of the reasons for the differential treatment.
58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the Tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim."
 The Tribunal was satisfied that Ms McKeith had established a prima facie case that she had been directly discriminated against because she had been the primary carer of her disabled daughter (paragraph 147). The Tribunal then found that the Ardoyne Association had not put forward any convincing or coherent explanation for its decision to make Ms McKeith redundant (paragraph 148). It was accepted on the hearing of the appeal that, if this was a case where the burden of proof shifted to the employer, there had not been a sufficient explanation. Accordingly, the challenge was concerned with whether the evidence before the Tribunal was such that a prima facie case of associative direct discrimination had been made out.
 In this regard the Tribunal set out a number of facts which concerned Ms McKeith having been sent home on previous occasions because of her disabled daughter, Ms Burns' belief that she should be at home with her disabled daughter, the reluctant piecemeal and incomplete nature of discovery, the other two persons who were made redundant at the same time were first re-engaged as volunteers and then rehired, the evasive and unconvincing evidence of the Manager and the non-compliance with statutory dismissal procedures. The Tribunal stated ". if this is not a case where the burden of proof should shift, no such case exists" (paragraph 147).
 We are satisfied that, as outlined by the Tribunal, there was such evidence of a difference in status, a difference in treatment and a reason for differential treatment that, in the absence of an adequate explanation, a Tribunal could conclude that the employer committed an unlawful act of associative disability discrimination. The burden on the Ardoyne Association was not discharged. It followed that the Tribunal would find disability discrimination.
 We are not satisfied on any of the appellant's grounds of appeal. The appeal is dismissed."
13. Article 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ('the 1998 Order') provides:-
" 19 (1) It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland —
(b) where that person is seeking employment —
(iii) by dismissing him or by subjecting him to any other detriment."
Article 3(1) of the 1998 Order provides:-
" 3 (1) In this Order 'discrimination' means —
(a) discrimination on the ground of religious belief or political opinion; or
(b) discrimination by way of victimisation and 'discriminate' shall be construed accordingly."
14. Article 3(4) of the 1998 Order provides:-
"(4) A person ('A') discriminates by way of victimisation against another person ('B') in any circumstances relevant for the purposes of this Order if -
(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and
(b) he does so for a reason mentioned in Paragraph (5).
(5) The reasons are that:-
(a) B has -
(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order.
15. Article 3A of the 1998 Order provides:-
"(1) A person ('A') subjects another person ('B') to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) above, where on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it could reasonably be considered as having that effect."
16. Article 38A of the 1998 Order provides in relation to the shifting burden of proof:-
"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 -
The Tribunal shall uphold the complaint unless the respondent proves that he did not commit that act."
17. In McKay v Northern Ireland Public Service Alliance  NI 103 the Court of Appeal stated that references to ' political opinion' in the then 1976 Act were not restricted to opinions held in connection with religious belief or community background. "Political opinion" was not confined therefore to Unionist/Nationalist politics. It had to be given its ordinary meaning and would therefore include differences of opinion on the left/right political spectrum and indeed would cover any opinion on the governance of a state or in relation to public policy.
18. In Gill v NICEM  IRLR 74, the Court of Appeal further considered the meaning of ' political opinion' in this context. The claimant argued that his preferred approach to anti-racism was a ' political opinion'. The Court held that such an approach did not constitute a political opinion. It stated:-
"The type of political opinion envisaged by the fair employment legislation is that which relates to the conduct of the Government of the State, which may be that of Northern Ireland but which is not confined to that political entity, or which relates to matters of public policy. 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.
In the present case, the difference between the 'anti-racist' and 'culturally sensitive' approaches was one of methods, the one being more aggressive and confrontational than the other, but both being means of advancing the interests of people from ethnic minorities. This was not the type of political opinion intended by Parliament in enacting the fair employment legislation."
In Ryder v Northern Ireland Policing Board  NICA 43, the Court of Appeal stated:-
"(15) Mr McGleenan agreed that the essential ratio of this part of the judgment was encapsulated in the sentence - the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy. I agree. I do not consider that the Court of Appeal in Gill sought to lay down a universally applicable rule that a view as to the methods by which a particular course should be advanced could never qualify as a political opinion for the purposes of the legislation."
19. As indicated above, the Fair Employment Act (Northern Ireland) 1976 did not provide a definition of ' political opinion'. It might seem improbable that Parliament, when passing the 1976 Act and when considering a legislative response to the Van Straubenzee Report on religious discrimination, ever intended to include left/right political discrimination, much less policy differences relating to same sex marriages within its ambit. One interpretation is that in the particular context of Northern Ireland and in the particular context of a response to the Van Straubenzee Report, the intention had been to restrict the definition of political opinion to those circumstances where it was shorthand for community affiliation in the sectarian makeup of Northern Ireland. However, the use of the unqualified words ' political opinion', in the absence of any definition such as ' any political opinion relating to the constitutional position of Northern Ireland within the United Kingdom', and conflicting references in parliamentary materials, led to the decision of the Court of Appeal in McKay.
20. The 1976 Act was not amended following the decision in McKay to clarify the definition of ' political opinion'. Furthermore, the 1998 Order which replaced the 1976 Act did not attempt to clarify the definition, although ' religious belief' was in fact defined at a later stage in 2003. Whether that can properly be regarded as a positive affirmation by the Assembly of the McKay decision, or whether the Assembly had simply failed to appreciate the difficulties raised by McKay, is a moot point. The Tribunal heard no evidence on this issue.
21. The Tribunal, of course, accepts that it is bound by the words of the statute and by the decisions of the Court of Appeal. However, the term ' political opinion' in the 1998 Order is not as clear, unambiguous or trouble free as it might have at first appeared - see, eg Fleck and Mackel v NIPSA-employmenttribunalsni.gov.uk. The position at present, absent any legislative or judicial clarification, is that ' political opinion' means any political opinion which relates to the conduct of the government of the state or to public policy but excluding some, but not all, opinions in relation to methods. The distinction to be drawn between political opinions and opinions in relation to methods, and also the distinction to be drawn between those opinions in relation to methods which are also political opinions and those opinions in relation to methods which are not political opinions is problematic.
22. The relevant legislation is set out in the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 ('the 2003 Regulations'). The relevant provisions are as follows:-
"Discrimination on grounds of sexual orientation
3(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -
(a) on grounds of sexual orientation, A treats B less favourably than he treats or he would treat other persons; or
(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, are not materially different, in the other."
23. Discrimination in the field of employment is specifically covered in Regulation 6(2) which provides as follows:-
"It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person -
(d) by dismissing him, or subjecting him to any other detriment.
(3) It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment a person whom he employs or who has applied to him for employment ...".
24. Regulation 4 of the 2003 Regulations provide:-
"(4) For the purposes of these Regulations a person ('A') discriminates against another person ('B') if he treats them less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that B has -
(d) alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these Regulations."
Harassment on grounds of sexual orientation is covered in Regulation 5 which provides as follows:-
"5(1) For the purposes of this Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect."
25. Regulation 35 of the 2003 Regulations provides:-
"(2) Where on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Regulation, conclude in the absence of an adequate explanation that the respondent -
(a) has committed against the complainant an act to which Regulation 34 applies; and
(b) is by virtue of Regulation 24 (liability of employer and principals) ... to be treated or having committed against the complainant such an act,
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."
26. This case has been case-managed and detailed directions were given in relation to the interlocutory process and in relation to the exchange of witness statements.
27. The claim had originally been brought against four respondents. The claims against the two additional respondents, ie Ms Jean Foster and Mr Ian Walker, were withdrawn and dismissed. The claim had originally included a breach of contract claim. That claim was also withdrawn and dismissed.
28. At a Case Management Discussion on 21 February 2017, the parties clarified that:-
"(1) The claimant's claim is for direct discrimination, harassment and victimisation on grounds of sexual orientation and/or on the ground of religious belief/political opinion.
(2) The protected act for the victimisation claims is the raising of his complaint which occurred on 20 August 2016 when he spoke to Mr Morrow.
(3) The claim under FETO relates to principles established in the Ashers Bakery case and relates to whether the claimant held views on sexual orientation related to his religious belief/political opinion; whether at work a certain view was taken of the claimant and his religious/political views; and whether adverse treatment was connected to that and it was therefore within the scope of the relevant legislation. The claimant's case is that soon after he started work he was watching the news on television with others and the claimant was seen walking out of court with Pastor James McConnell. It is the claimant's case that following this a certain view was taken at work of him and his religious political views in relation to sexual orientation. The claimant's sexual orientation is heterosexual and his claim is that he was treated adversely because he was heterosexual combined with his perceived views and sexual orientation because of his religious/political opinion."
The parties agreed that the legal issues raised in this case were:-
"(1) Whether the treatment complained of by the claimant amounted to direct discrimination against the claimant on the ground of religious belief/political opinion having regard to the provisions of Articles 3 and 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended, and/or European Law?
(2) Whether the treatment complained of by the claimant amounted to direct discrimination against the claimant on the ground of sexual orientation having regard to the provisions of Regulations 3 and 6 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, as amended, and/or European Law?
(3) Whether the treatment complained of by the claimant amounted to harassment of the claimant by subjecting him to unwanted conduct, on the ground of religious belief/political opinion, which had the purpose or effect of violating his dignity or creating an environment that was intimidating, hostile, degrading, humiliating or offensive for him, or which subjected him to a detriment, having regard to the provisions of Article 3A, 19(1)(b)(iii) and 19(1A) of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended and/or European Law?
(4) Whether the treatment complained of by the claimant amounted to harassment of the claimant by subjecting him to unwanted conduct, on the ground of sexual orientation, which had the purpose of effect of violating his dignity or creating an environment that was intimidating, hostile, degrading, humiliating or offensive for him, or which subjected him to a detriment, having regard to the provisions of Regulations 5, 6(2)(d) of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, as amended, and/or European Law?
(5) Whether the termination of the claimant's employment was unlawful in the circumstances and amounted to victimisation of the claimant, by reason that he had done a protected act, having regard to the provisions of Articles 3(1)(b) and 3(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended and/or European Law?
(6) Whether the termination of the claimant's employment was unlawful in the circumstances and amounted to victimisation of the claimant, by reason that he had done a protected act, having regard to the provisions of Regulation 4 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, as amended, and/or European Law?"
29. The claimant had been directed to provide his witness statement to the respondents by 18 April 2017. The respondents had been directed to provide their witness statements to the claimant by 9 May 2017. The claimant submitted a further 17 page witness statement on 21 June 2017 as a supplementary witness statement. He had not obtained the prior approval of the Tribunal to do so.
30. A Case Management Discussion was heard at the commencement of the hearing to determine whether or not that supplementary witness statement should be admitted in evidence. The parties were directed, following discussion, that it should be admitted in evidence but that the respondents' witnesses would each be allowed the opportunity to introduce additional oral evidence-in-chief to deal with matters arising from the supplementary witness statement submitted by the claimant.
31. The Tribunal heard evidence from the claimant. He called no other witnesses on his behalf.
32. The Tribunal heard evidence from four witnesses for the respondents. They were:-
(a) Mr Colin Morrow, the ramp manager at the relevant times.
(b) Mr Ian Walker, the assistant ramp manager at the relevant times.
(c) Ms Jean Foster, the station manager with overall responsibility for the day-to-day running of the respondents' operations at Aldergrove at the relevant times.
(d) Ms Susan Melligan, the HR manager for the first-named respondent at the relevant times.
33. The hearing lasted from 26 - 28 June 2017. Following the completion of the evidence the parties made oral submissions which were supplemented by written submissions. The hearing proceeded in in reference to liability only.
34. An issue arose in relation to the content of a training course which had been provided by the first named respondent to its staff and which had been numbered UK19. The incorrect slides had been provided in the bundle: those slides had related to an earlier version of the training course. The training course was only available online. The parties were allowed to comment further on the training course after having accessed the course online after the completion of the hearing.
35. The Tribunal met on July 2017 to consider the evidence, the arguments and to reach their decision in this matter. This document is that decision.
36. The witnesses who gave evidence on behalf of the respondents gave clear and consistent testimony and impressed the Tribunal as honest and truthful witnesses. They were prepared to accept in certain instances that they had made mistakes and that they might have been better advised to have acted differently, eg to have put all allegations formally to the claimant at disciplinary interviews in relation to the complaint by Mr McKee and the complaint by Mr Lynn. They were prepared to accept facts which might have supported, at least in part, the claimant's case. For example, Mr Walker volunteered that he had heard other colleagues describe the claimant as ' pastor', although he had not attributed any particular significance to that and thought it might have been a nickname used between colleagues. In short, the respondents' witnesses impressed the Tribunal as thoughtful and credible witnesses. They presented a coherent picture of a temporary employee who had been creating a succession of problems at work because of his aggression towards colleagues and supervisors and because of his attitude to his duties. His contract had not been renewed when it fell due, in the normal course of events, for the consideration of renewal; particularly after an incident concerning Mr Lynn. Their evidence hung together and was convincing.
37. In contrast, the claimant did not strike the Tribunal as a credible witness. He gave evidence on his own behalf without calling a single supporting witness. He seemed to be of the view that if he said something that automatically made it the truth and that it was incomprehensible that anything he said might be challenged. For example, ' he knew for a fact' that Mr Morrow, the second-named respondent, and others in the management structure of the first-named respondent had always known of his religious beliefs and his political opinions. Even though he accepted that he had never discussed such matters with the second-named respondent or with any other manager, he ' knew for a fact' that they had known of his beliefs and opinions. He had reached this unshakable conclusion because he believed that they would have overheard conversations which might have taken place between other employees concerning the claimant. This, at best, was an assumption on the part of the claimant. He assumed that there had been discussions of his religious and political views and that the second-named respondent and other managers would have overheard those discussions. The second-named respondent, in particular, ' knew everything that went on in the airport'. This had no evidential basis. However the claimant did not appear to be able to understand the difference between an unsupported assumption and hard evidence.
38. The claimant frequently demonstrated his inability to acknowledge the possibility that, at any stage, even in relation to minor facts, he might have been mistaken. He was also very ready to accuse the second-named respondent, other managers and colleagues employed by the first-named respondent of lying in evidence or of fabricating documents. Examples of this behaviour were:-
(1) The claimant alleged that Ms Foster had lied about not doing a live TV interview and in fact not having doing any form of TV interview at any stage.
(2) He alleged that the second-named respondent had lied about renewing the claimant's contract on 23 May 2016 and that he had fabricated the letter of that date to the claimant advising him of that renewal.
(3) He alleged that Mr Doherty, another employee, had lied when he had stated that he had felt threatened by the claimant being ' right up in my space'.
(4) He alleged that a ramp controller, Mr Rankin, had lied when Mr Rankin had alleged that the claimant had been aggressive towards him in early July 2016.
(5) He alleged that Mr McKee, another employee, had lied when he had complained about the claimant acting aggressively towards him in early July 2016.
(6) He alleged that an e-mail of 24 July 2016 from Mr Rankin had been ' completely fabricated'.
(7) He alleged that an allegation of aggression made by two other employees, Mr Bell and Mr Lynas against him on 25 July 2016 had been ' concocted'.
(8) He alleged, without any supporting documentation or corrobative evidence of any nature, that he had been told that he had been on a ' rolling contract' and that his contract of employment had not been subject to renewal or due for renewal at any stage. That allegation is directly contradicted by the clear terms of the contract which he had signed.
(9) He alleged that the minutes of an interview dated 29 July 2016 had been ' fabricated' to show the second-named respondent had conducted the interview. He maintained that allegation even it was suggested to him that it would have been of no benefit to either respondent for any such fabrication to have occurred.
(10) He alleged that the content of the letter dated 29 July 2016 summarising his comments in relation to the need to report defective equipment had been ' fabricated'. He maintained this allegation despite accepting that he had not written back querying the content of that letter and that he had not lodged any complaint or grievance in relation to that letter.
(11) He alleged that the second-named respondent, and presumably others, had falsified the application for leave which had been completed by the second-named respondent on 3 February 2016 and approved by Ms Foster on 5 February 2016.
(12) He alleged that a worksheet showing that the claimant had been off duty on 24 August 2016 was ' obviously fabricated'.
(13) The alleged that the second-named respondent had lied when he stated that he had met the claimant on 23 August 2016 rather than on 24 August 2016.
(14) He alleged that the statement by the second-named respondent in an e-mail of 26 August 2016 that he had spoken to the claimant on 26 August 2016 was ' another fabrication'.
(15) He alleged that a complaint that he had told a supervisor, who was openly homosexual, that he knew a ' cure for gayness' was ' totally untrue' and ' a fabrication'. That complaint had been made by the supervisor who had been interviewed by the second-named respondent and the interview had been witnessed by Mr Rankin. The claimant did not seek to call, on a Witness Attendance Order, either Mr Rankin or the supervisor to support his allegation that the complaint had been a complete fabrication.
39. The claimant's case was that the second-named respondent, Ms Foster, Mr Doherty, Mr Bushe, Mr Rankin, Mr McKee, Mr Bell, Mr Lynas, together with unnamed individuals who had prepared various documents, had all lied; in effect, only the claimant had told the truth.
40. Apart from the number and variety of alleged fabrications and lies, and the number of people alleged by the claimant to have been involved in such fabrications or lies, many of these matters, if they had indeed been fabrications or lies, could have been easily challenged or disproved by calling relevant witnesses. The claimant did not do so.
Relevant findings of fact
41. The claimant commenced employment with the first-named respondent on 16 November 2015 as a temporary part-time ramp agent. The claimant signed a detailed set of terms and conditions of service shortly thereafter. The temporary nature of this employment was clear and the terms and conditions stated specifically at Paragraph 4.1 that the contract was ' expected to end 31 st May 2016'.
42. On 23 May 2016 the second-named respondent, as ramp manager, wrote to the claimant advising him that:-
"Your part-time temporary contract of employment has been extended to 25 th September 2016 and will be reviewed again before the end of this date."
43. The claimant stated in evidence that he had been told during initial training that his contract of employment had been a ' rolling' contract of employment. He further stated, in cross-examination, that the letter of 23 May 2016 has been falsified and that he had never received any such letter. When asked who would have falsified this letter he stated:-
"I wouldn't know."
44. The nature of the contractual relationship had been quite clear. It had been temporary and specifically time-limited. That was the contract that the claimant had signed. It had not been in any sense a ' rolling contract'. The Tribunal considers it highly improbable that the fundamental nature of the employment contract would have been altered, during training, to a rolling contract. The claimant had not responded to his termination letter with an assertion that he had been on a ' rolling contract'. He did not make that assertion in his written grievance on 26 September 2016 or in his original Tribunal application. This assertion has been made late in the day and without any corroborative evidence. None of the claimant's colleagues or the trainer who allegedly made this remark have been called by the claimant to support this assertion, which can only reasonably be regarded as an attempt by the claimant to lend legitimacy to his claim. In any event, the term ' rolling contract' denotes a contract which is intended to continue indefinitely subject to a fixed notice period. A one month rolling contract, for example, would continue indefinitely subject to a one month's notice. The claimant's assertion makes no sense since he refers to no fixed period of notice. It may be that the claimant had been told during training that some contracts were extended and some became permanent; but nothing more than that.
45. The contract would therefore have required a notice of renewal or a notice of termination once the original temporary period was near to its end. The letter dated 23 May 2016 was in standard terms and was the type of letter that would have been expected at that point. The claimant made a serious allegation that this letter had been falsified and then presented under oath when he had absolutely no evidence on which to make such an allegation. He refused to contemplate the possibility that such a routine letter had in fact issued and that he had either ignored it or had misunderstood it, or had forgotten about it. It is simply not credible that the second-named respondent had falsified and backdated correspondence in the manner alleged by the claimant or that anyone else in the employment of the first-named respondent had done so. The Tribunal accepts the clear and convincing evidence of Mr Morrow that the letter of 23 May 2016 had been issued and that it had been issued as part of a normal consideration of contracts approaching their termination date. It had been a standard and routine letter. Its importance to this case is that the claimant's reaction to it shows his capacity to make extravagant and serious allegations, where he believes they advance his case, without any apparent concern as to their implications.
46. The staff employed by the first-named respondent at Aldergrove varies from time to time in response to business needs. However, at the relevant times, it was approximately as follows:-
(1) One ramp manager (second-named respondent).
(2) Two assistant ramp managers (including Mr Ian Walker).
(3) Six ramp controllers.
(4) Three ramp co-ordinators.
(5) Twenty-nine team leaders.
(6) Seventeen ramp teams working a three-shift system which comprised approximately 78 permanent ramp agents and 70 temporary ramp agents such as the claimant.
The claimant had therefore been one of approximately 188 staff managed by the second-named respondent. He had been one of the most junior staff in that group. The second-named respondent had not been involved in the claimant's recruitment. He had, at best, intermittent and brief contact with the claimant in the course of his duties.
47. The claimant believes that he is well-known and that he has a significant public profile as a Christian pastor with particular interests in relation to same sex marriages and abortion. The claimant referred to various newspaper articles and photographs and also to his decision to stand as a candidate for North Belfast (Oldpark) in the Local Government elections in 2014 for the Ulster Unionist Party.
48. None of the Tribunal had ever heard of the claimant before this hearing commenced. Many of the newspaper articles or photographs which the claimant produced into evidence related to periods either before or after the relevant period in the present case, ie before or after the claimant's employment by the first-named respondent. In many, he was unidentified and simply part of a group photograph. His unsuccessful participation in a Local Government election for a specific part of North Belfast had been over one year before he commenced employment with the first-named respondent. The second-named respondent and the witnesses for the first-named respondent had never lived in North Belfast and had known nothing of the claimant's candidacy.
49. That said, the claimant had been known, to some of his colleagues at least, as ' Pastor' and had the word ' Pastor' included on his airside driving licence for the purposes of his employment. It is therefore clear that some of his colleagues would have known of his position as a Pastor and therefore that they probably would known or could have guessed his views in relation to same sex relationships or same sex marriage. However, it seems clear to this Tribunal that the claimant is not as well-known as he believes he is and that he has simply assumed, without any particular evidence, that his religious beliefs, political beliefs and indeed his sexuality were known to specific individuals, including to the second-named respondent. There is no evidence that any of these matters had been known to the second-named respondent before some point in August 2016 when the claimant first complained of graffiti in the toilets. He would have had very limited contact with the claimant during his employment. The claimant had never discussed such matters with the second-named respondent before August 2016; the claimant simply assumed that the second named respondent would have known of such matters by overhearing other people's conversations. After hearing the claimant and the second-named respondent give evidence, the Tribunal concludes that the second-named respondent had no knowledge of the claimant's religious beliefs, political opinions, or sexual orientation before the claimant first raised these matters with him in August 2016.
26 January 2016
50. The claimant alleges that on 26 January 2016, the first-named respondent gathered all its staff who were on duty that day, amounting to approximately 40 members of staff, into the restroom to make an announcement concerning flights which were to be introduced by Ryanair. Ms Foster and the second-named respondent state that this could not have happened. It would not have been the practice of the first-named respondent to bring all its staff, who were then on duty, into a restroom, which was very limited in size in any event, to make such an announcement. The Tribunal considers, on the balance of probabilities, that the respondents must be correct. It seems highly unlikely that the first-named respondent would have ceased all baggage handling and cargo handling operations and would have ordered or even permitted staff to have abandoned their posts simply to facilitate such an announcement in the course of the working day. It is much more likely that the announcement had been made to the number of staff who happened to be present in the rest-room at that time.
51. It seems clear that a meeting took place and that whatever number of staff were then available in the restroom took part. At that meeting, a general announcement had been made about the Ryanair proposals. The claimant states that at that time, Ms Jean Foster, the station manager, had been giving a live TV interview which was then relayed on a TV screen in the restroom in the course of this meeting. Ms Foster was clear in her evidence that she has never given a live TV interview or indeed any TV interview. Her evidence and indeed the evidence of the second-named respondent was also that in the course of any such meeting televisions would have turned off or down in any event so as to avoid any disruption.
On the balance of probabilities, the evidence given by the respondents again seems to be correct. The claimant has called no witness to support his version of events. If a live TV interview or any sort of TV interview had been played featuring Ms Foster at that point in time, it would have been relatively easy for the claimant to have proved that fact. He has not done so. Against that, Ms Foster was clear that no such TV interview took place and that therefore no such interview had been played to the staff at or during this meeting. It is highly unlikely that Ms Foster would have forgotten participating in a ' live' TV interview, and even more unlikely that she would have lied on oath about it.
52. The claimant then states that immediately after this ' live TV interview' was watched by the staff, the next TV clip on the news programme showed the claimant leaving Belfast Magistrates Court in the company of Pastor McConnell following her acquittal. He states that a few members of staff started nudging each other and smirking and smiling at him. He states that one member said ' Look at your man' while referring to the claimant.
53. On the balance of probabilities, the Tribunal rejects the claimant's version of the alleged incident. It seems highly unlikely that, as alleged, the television had still been playing while Ms Foster was making the announcement to the staff. Furthermore, the claimant's version of events already lacks credibility, in that he has alleged that all the members of staff were brought into the restroom specifically for this purpose and that a live TV interview had taken place with Ms Foster. The claimant's own version of events in his witness statement would have required Ms Foster to have taken part in a ' live' TV interview elsewhere in the airport, to have completed that interview and to have then made her way to the restroom to take part in this announcement, arriving there still while the next news clip was still running. The claimant states specifically in his witness statement that, as part of the incident concerning the second news clip, ' Ms Jean Foster looked up at the television and then continued with what she was announcing'. She would have had to completed the live TV interview, said her goodbyes, and then to have moved extremely quickly to get to the restroom in time.
54. Furthermore the claimant's version of events is based on the showing of the second TV clip of him leaving court with Pastor McConnell. That version of events would require a news bulletin to have shown that clip some three weeks after it had originally been taken and when it would have been very old news indeed.
55. In short, the claimant's version of events in relation to the meeting on 26 January 2016 lacks all credibility. Even though he claims that colleagues ' smirked' at him, it is notable that the claimant made no complaint or lodged no grievance about the matter after the meeting. The claimant had not called a single witness, even on a witness attendance order, to support his version of events in what he claims had been a packed meeting with 40 potential witnesses. That is particularly odd since the claimant's evidence was that some of his colleagues had been sympathetic to him and had sought his pastoral support and guidance. He stated in particular that a named colleague had asked him to pray for his son. The significance of that evidence was perhaps reduced by the unrebutted evidence of the respondents that the only employee with that surname had no children. The claimant had also produced no corroborative evidence of any sort of the 'live' TV interview allegedly given by Ms Foster.
4 June 2016
56. An incident occurred on 4 June 2016. It seems clear that the claimant had been working with a Mr Doherty and that they had been using a vehicle which had been attached to an aircraft with a tow bar. The claimant had attempted to remove the steering pin from the vehicle before the tow bar had been disconnected from the aircraft. That raised serious health & safety issues and could have resulted in a serious injury. It also seems clear that Mr Doherty had remonstrated with the claimant and that the claimant had responded in kind. A team leader, Mr Bushe, had witnessed the aftermath of the incident and had spoken to the claimant. The claimant told him to get back in his vehicle and that he was not the claimant's team leader. Mr Bushe had then reported the incident.
57. Mr Walker interviewed Mr Bushe, Mr Doherty and the claimant. After these interviews he issued a caution to both the claimant and Mr Doherty stating:-
"After an incident today between yourself and another staff member I must remind you that Swissport does not look upon these incidents lightly. On this occasion it was dealt with at the time and mutually agreed by all parties that the incident is now closed but I must remind you that any further incidences will be investigated and dealt with under the company's disciplinary process. This caution will remain on your file for 12 months."
58. After considering the interview records and after listening to the evidence of Mr Walker and the claimant, the Tribunal concludes that the claimant accepts that he had been initially at fault in this incident in attempting to remove the steering pin. This could have had serious health and safety implications and Mr Doherty had shouted at the claimant. The Tribunal also concludes that the claimant had responded to Mr Doherty with a degree of aggression and indeed to Mr Bushe with the same attitude. This was an attitude the Tribunal observed in the course of the hearing. The claimant responded to many lines of questioning with a combative attitude and with a degree of sarcasm.
59. When interviewed by Mr Walker, the claimant had sought to argue that when he had told Mr Bushe that he had not been his team leader and to mind his own business, it had only been a ' wind up'. He gave as an example of another 'wind up' that another employee had put on a Christian TV channel and another team leader had called other employees 'thieving bastards'. He stated ' to me that's joking so there are times when there is joking and then you don't know when the joking stops'.
This was a situation where the claimant had been involved in a serious confrontation with a colleague. Telling a supervisor to mind his own business when he tried to intervene could hardly have been called a joke.
60. It was argued on behalf of the claimant that the reference to the turning on of a Christian TV channel had been significant and that it should have resulted in a separate investigation. To the Tribunal, such a suggestion seems unrealistic. The claimant had made no complaint about this alleged incident. He had accepted that this had been ' joking'. He did not say he had been offended when he had had the opportunity to say precisely that he had been offended. He had used this as an example of ' joking' to explain or excuse him telling a supervisor to mind his own business.
7 July 2016
61. A further incident occurred on 7 July 2016. A team leader, Cavan McKee, complained to Mr Rankin that the claimant had been aggressive to him in the course of his work. Mr Rankin interviewed Mr McKee. The notes of that interview indicate that Mr McKee had asked the claimant to perform a function in relation to a cargo plane and that the claimant became aggressive and had initially refused to undertake the task. The claimant had told Mr McKee that he had not been his team leader. Mr McKee stated that the claimant's team leader had finished duty and that Mr McKee had taken over to deal with this particular aircraft. The claimant had eventually agreed to carry out the function but had continued to argue with Mr McKee, telling Mr McKee that it was not the claimant's job and that Mr McKee was not to tell the claimant what to do.
62. The claimant was not interviewed about this incident because Mr McKee indicated that he did not to take it any further. It is regrettable that the opportunity was not taken to get the claimant's version of events. However the matter was recorded on the claimant's file. In the course of his evidence to the Tribunal the claimant did not dispute that a disagreement had occurred but alleged that the relevant aircraft had been one of the largest aircraft used for cargo and an aircraft on which he had not been trained. The evidence from the first-named respondent, which the Tribunal accepts, is that this in fact had been one of the smaller cargo aircraft and that the claimant had been capable of and had indeed performed the function. It seems on balance to the Tribunal to be an incident in which the claimant had responded to an ordinary instruction with aggression. The claimant alleged in cross-examination that the suggestion of ' aggression' had been concocted. That seems highly unlikely. The Tribunal had been given no reason why Mr McKee, in early July 2016, would have ' concocted' an allegation about aggression; an allegation which he did not wish to pursue 'further and an allegation which seems consistent with similar allegations from other colleagues and consistent with the claimant's behaviour during the Tribunal hearing.
The Tribunal accepts that this had been the second occasion where the claimant had shown a significant degree of aggression to supervisors.
24 July 2016
63. A further incident had occurred on 24 July 2016. Mr Rankin, who was a ramp controller, had asked the claimant to attend training while he was on duty on a Saturday morning. The claimant had refused to do so. Mr Rankin stated that the claimant had said that he had been there for a year and that the respondents had not bothered training him before now and that he ' didn't care'. The claimant complained about the standards of health & safety and threatened to report the first-named respondent to the Health & Safety Executive. He complained about a lack of water in the bay and the standard of the equipment. He stated the equipment was rubbish and that it was broken. When asked whether he reported defective equipment he stated it was not his job. He also stated that he did not carry out his ' pre-trip inspections' because it was not his job. It was not simply a case of the claimant calmly suggesting that he would be available to complete the necessary training at an alternative time or after his lunch break.
Mr Rankin stated:-
"His attitude towards the place and the guys he works with is a disgrace. A lot of team leaders have complained about him and his attitude and the way he speaks to them."
64. The second-named respondent stated that it was important in terms of the working arrangements at Aldergrove that defective equipment was reported by the ramp agent or whoever else had cause to use it. If such reports were not made, defective equipment could remain in use and serious risks could emerge. The Tribunal accepts this evidence. It seems perfect common sense and the type of standard procedure that would be in place in such organisations.
65. This seems to have been the third occasion on which the claimant had shown a degree of aggression to supervisors.
25 July 2016
66. A further incident was reported on the next day 25 July 2016. Another team leader, Mr Bell, complained that the claimant had acted aggressively towards him in the restroom on or about 4 June 2016. The second-named respondent interviewed Mr Bell and a Mr Lynas who had witnessed the incident. Mr Bell stated that he had been in the restroom with Mr Lynas. The claimant had also been present. Mr Bell had put on a music channel on the TV which the claimant did not seem to like and that the claimant had then pulled Mr Bell back while Mr Bell had a coffee in his hand. Mr Bell stated that the claimant had been aggressive. When asked why he had not reported the incident earlier, he stated:-
"There has been a few problems and he is aggressive with quite a few of the guys and he makes me and the others feel uneasy."
Mr Lynas stated that the claimant had become aggressive when Mr Bell had put a music channel on the TV. The claimant had ' pulled back' Mr Bell and he had pushed Mr Lynas out of the way. Both Mr Bell and Mr Lynas said there was nothing in particular about the music channel. Mr Lynas stated ' it was just a music channel'.
67. On 27 July 2016 the claimant was interviewed about the incident on 24 July 2016 by Mr McNeilly.
When he was asked about Mr Rankin's complaint, he accepted that Mr Rankin had asked him to perform the training on Saturday. He stated that he was about to go on a break and that he did not see the point in headset training. He stated he just finished a ' heavy three hour check in'.
68. When asked about his responsibility to report defects, he referred to a particular incident where a conveyor belt had been brought round to an aircraft and where the handbrake was not working. He confirmed that he had not ' red-carded' or reported the incident. He was asked if he had ever red-carded anything and he stated that he thought he had red-carded a belt at the very start of his service.
69. On 29 July 2016 the claimant was interviewed by the second-named respondent about the incident with Mr Bell and Mr Lynas. He stated that Mr Bell had turned on a music channel which was ' not appropriate' because it was a Christian channel. He stated that they were not making fun of the channel. He stated in evidence to the Tribunal that they were ' mocking God'. He accepted that he had pushed Mr Lynas and had pulled Mr Bell's arm to get passed. He was told that Mr Bell and Mr Lynas did not want to take the matter any further but that the second-named respondent was obliged to investigate. He was advised by the second-named respondent that he hoped this incident could be put behind him, but that minutes would be filed for administration. The claimant accepted this and did not raise any form of grievance or complaint about what he alleged had been a Christian music channel. He did not ask for this allegation to be investigated.
70. On 29 July 2016 the second-named respondent wrote a letter to the claimant advising him that the request for training on 24 July 2017 had been a reasonable request and that he should report defective equipment. He was told that the letter would remain on his personnel record.
The claimant did not appeal against this letter or lodge any form of complaint or grievance about either the incident with Mr Rankin or about the incident with Mr Bell and Mr Lynas.
While it may be that the claimant had been annoyed at any proposed interruption to his lunch break, on 25 July 2016, these appear to be two more incidents in which the claimant had showed a level of aggression and confrontation with his colleagues.
10 August 2016
71. The claimant alleges that on or about 10 August 2016 he visited the staff toilets in Aldergrove. Those are toilets which are owned and operated by the airport authority and are open to staff from various employers, including but not limited to the first-named respondent. The claimant alleged that he found the graffiti offensive and sexually explicit. He stated:-
"Some of the graffiti on the wall was quite sickening and offensive to me as a Christian."
72. There was no evidence that the graffiti had been targeted at the claimant. There was no evidence that it had been uniquely offensive to the claimant as a Christian, or to somebody with a particular political view, or to a heterosexual. The graffiti had been obviously offensive but it had been offensive, in view of the Tribunal, to any normal person, whether Christian, atheist, agnostic, Jewish or Muslim. It was equally offensive to any such person irrespective of their views on same sex relationships or same sex marriages or indeed their views on any other matter.
The fact that some of the graffiti named managers employed by the first-named respondent is not in itself conclusive evidence that the person creating all or part of the graffiti had been employed by the first-named respondent. Employees of the first-named respondent work closely with employees of other companies and with employees of the airport. It seems to the Tribunal to be the sort of environment where animosities could exist and could grow between employees of different companies. In any event, it is clear to the Tribunal that the first-named respondent did what it could in relation to graffiti in the employees' toilets at Aldergrove. It had informed the airport police; the airport police had conducted whatever investigations were appropriate and a camera had coincidentally covered the access to the toilets. It had been clearly impossible for the first-named respondent or indeed for the airport to have placed cameras within the toilets. There is little more that could have been done by the respondents. The first-named respondent did not own, did not operate and had not been responsible for the toilets. .
73. It seems odd to this Tribunal that the claimant has chosen to elevate this unpleasant practice of toilet graffiti to a practice uniquely and particularly directed against his Christian beliefs and particularly and uniquely directed in some way against his political opinions and sexual orientation. The claimant had not been named in any of the graffiti and none of it had been directed at his religious belief or at his political opinion. In contrast, the second-named respondent had actually been named in the graffiti.
74. The claimant alleged that he spoke to the second-named respondent about the toilet graffiti on 10 August 2016. The second-named respondent accepted that such a discussion had taken place but stated that it couldn't have been on 10 August 2016 because he had been on annual leave. The precise date of the conversation is completely irrelevant. It does not advance or impede anyone's argument if it had taken place a week earlier or a week later. The claimant however again displayed a total inability to accept that he might have been wrong about anything; even about an inconsequential date. He accused the second-named respondent of lying and of fabricating his leave application which had been countersigned by Ms Foster. He was reluctant to accept that he had no evidence other than his own unsupported evidence to fix the date of 10 August 2016. He seemed reluctant to accept that it would have been unlikely for the second-named respondent and, necessarily, for Ms Foster to have fabricated documentation and evidence, particularly where there would appear to have been no obvious advantage in so doing. He rigidly believed that his own statements carried a level of absolute certainty and that they could not be challenged.
75. There is no evidence in relation to toilet graffiti on which a reasonable Tribunal could properly infer that any form of unlawful discrimination had occurred as alleged by the claimant.
76. On 17 August 2016 the claimant alleged that he had found three Christian crosses drawn in black on a worksheet against his name. There was prolonged discussion during the Tribunal hearing about the origins and nature of this ' worksheet'. In his witness statement he stated:-
"I walked into work to 'sign in' and sign the safety memos which every employee must do on a daily basis."
The reference to the need to ' sign in' for work was in quotation marks, unlike the reference to signing safety memos. That is consistent with a reference to the use of the clock card system.
The respondents produced all the relevant safety memos around that date and they did not contain any markings against the claimant's name.
In cross-examination the claimant stated that the clock card system had broken down and that he had to complete a manual signing in sheet on that day. He alleged it was this manual signing in sheet which had been marked with the crosses. That is not what he said in his witness statement. If it had been an unusual or temporary form of document the Tribunal would have expected the claimant to have said so in that witness statement. He produced a blurred photograph of the alleged document which does not show any signing in and out time which would have been normal in any such document. The claimant called no corroborative evidence to support his claim that the clock card system had broken down. The second-named respondent gave clear evidence that the first use of a manual signing in sheet had been on 4 March 2017, long after the claimant had left. That document was in a different format to that shown in the claimant's photograph.
77. The claimant did not call this alleged document a manual signing in sheet in his grievance on 26 September 2016 or in his claim form. In both, he referred to it as a ' worksheet'. If, as he now alleges, it had been a document which had a particular function, a manual signing in sheet, he would have said so. In his witness statement he described the alleged document in terms consistent with it having been a safety memo. He did not call it a manual signing in sheet; he did not say the clock card system had been broken.
On the balance of probabilities, the Tribunal concludes that the claimant's version of events is inaccurate. The new allegation of the alleged document being a manual signing in sheet looks like an attempt to explain why no markings have been found on the safety memoranda which had been produced by the respondents. It does not appear that, as part of the interlocutory process, the respondents had been asked to produce any manual signing in documentation.
78. The claimant stated in cross-examination that he had been upset that other workers, including those who had signed the document after him, would have seen the three symbols. It therefore seems odd, and in fact inexplicable, that the claimant stated that he left the alleged document where it was for the next person to see. He could have gone immediately to a supervisor with the alleged document and he could have made a complaint. He did not. He could have tried to take a clear picture: he did not. He could have asked for a photocopy: he did not. He could have asked a colleague to witness the symbols on the document; he did not.
79. Even though he stated that he took a photograph of the ' worksheet', and even though he stated that he took offence at what he regarded as an attack on his religion and political beliefs, he did not raise this matter as a complaint on 17, 18, 19, 20 or 21 August 2016. He claimed in cross-examination that he told Mr McDowell about it on 22 August 2016. He did not say so in his witness statement. It would appear the claimant first raised this alleged incident on 23 August 2016 with Mr Morrow, some five days after the alleged incident. This is a claimant who had reacted immediately to seeing toilet graffiti which had not even directly concerned him. The Tribunal does not believe that the claimant had, for some reason, chosen to ignore an alleged insult for five days.
80. The Tribunal has examined the photocopies of the mobile phone camera and has taken the opportunity of inspecting the mobile phone itself to see the photograph in its original state. The Tribunal is unable to state that the photograph shows three crosses at all. It could equally be three asterisks or three indeterminate marks. The photograph is badly smudged and unclear. Furthermore, the Tribunal does not see any particular significance in three crosses rather than one cross. The claimant, when asked what significance he attached to three crosses, referred to three crosses being at Golgotha. The Tribunal is unaware of three crosses rather than one cross being used as a Christian symbol or being used generally as a symbol which refers to a Christian. It seems odd to the Tribunal that, if these alleged marks are indeed crosses, that someone chose to put three crosses down against the claimant's name as a reference to his Christian faith rather than a single cross or any other form of annotation.
81. The Tribunal therefore is concludes that there is no credible evidence even on a prima facie level, that the alleged document existed at all or that the markings on this worksheet had anything at all to do with the claimant's Christian beliefs or anything at all to do with his political opinions or his sexuality. There is nothing here on which a Tribunal could reasonably infer unlawful discrimination as alleged by the claimant.
20 August 2016
82. On 20 August 2016 the claimant stated that he had found a bumper sticker attached to his car which read ' I'm so gay I can't even drive straight'.
83. The claimant stated that when he had left his house to commence his shift on 19 August 2016, it had been dark. However an outside light had illuminated the rear of his car and he had opened the back of his car, as was his practice, to place his jacket and bag containing his ear protectors in the back. He was quite clear in cross-examination that when he did so he would have seen any bumper sticker if it had already been affixed to his car outside his house or if it had been affixed to his bumper at any earlier stage. He stated he then drove to the employee car park at Aldergrove.
84. This employee car park is open to employees of all employers at Aldergrove and not just to employees of the first-named respondent. The claimant is not alleging that he was known only to employees of the first-named respondent.
85. The claimant was clear in cross-examination that when he left his car at the car park to commence his shift and when he removed his bag and jacket from the back of his car, the bumper stick had not been there. It is not clear how he has achieved this alleged level of certainty given that he said it had been dark (even with the light) and he said that he had placed his bag and jacket in the back of the car, rather than in the boot. He would not have been standing at the rear bumper.
86. The claimant stated that after he finished his shift on 20 August 2016 he got into his car in the employee car park and drove to the petrol station in Templepatrick. When filling his car he alleged that he first noticed the bumper sticker and removed it.
87. This is not an issue which was tested in cross-examination but it seems odd to this Tribunal, if it had been the claimant's practice to place his coat and work bag in the back of his car when going to work, and therefore obviously when leaving work he would have done the same thing, that he had not noticed the bumper sticker when he opened the back to put his coat and bag in the back before driving away from the employee car park. If he did not notice the bumper sticker at that point, and clearly he did not, he may equally not have noticed it earlier when leaving his house or when he parked his car in the employee car park before starting work, or on several occasions before that. It is also not clear to the Tribunal how placing a coat and bag in the back of the car (the claimant did not say, in cross-examination, the boot of the car) would have meant that a bumper sticker on the rear bumper would have been seen in any event.
88. The claimant's representative replied to a request for additional information on 28 April 2017. She said in that reply that the claimant had put his work bag in the boot of the car not the back of the car. That is inconsistent with the claimant's evidence to the Tribunal. This tends to suggest that this particular evidence was an invention to bolster the claim and to explain obvious weaknesses in that claim.
89. The claimant therefore has produced no evidence, even prima facie evidence, that the bumper sticker had been placed on his car while his car had been present in the general employees' car park at Aldergrove. Even if there had been such evidence that it had been placed on the car at that point, there is no evidence whatsoever that it had been placed on his car by an employee of the first-named respondent. It was not suggested by the claimant that there had been CCTV of the car park itself which could have been checked. The only CCTV referred to in evidence would appear to have been that recording cars entering and leaving the car park.
90. There is no evidence on which a reasonable Tribunal could properly infer that the bumper sticker had been placed on the claimant's car at Aldergrove or that it had been placed on his car by an employee of the first-named respondent.
91. The claimant telephoned Mr McDowell, a ramp controller from Templepatrick, to report the incident from the garage in Templepatrick. He states that he asked Mr McDowell to report the incident to the second-named respondent and that he wanted to speak to him on his return to work on 22 August 2016. On his return to work he stated that Mr McDowell had said "everyone knows about it" and that the second-named respondent was not there. A message had been left for his attention.
92. The second-named respondent's evidence was different. He stated that Mr McDowell had left no message for him to contact the claimant. The claimant had told Mr McDowell that he would contact the second-named respondent.
93. The second-named respondent's evidence seems more consistent with what happened next. The second-named respondent did not know how many times the claimant had tried to meet him but was clear that the meeting had occurred at the end of the first day, 23 August 2016. The claimant stated that he had attempted over the course of two days to meet the second-named respondent - on some eight or nine occasions. It does not seem at all likely that the claimant would have made such repeated efforts over one day or over two days if he had not made the arrangement to contact the second-named respondent himself. Furthermore, the memorandum to staff issued on 24 August 2016. Since the meeting had been held at the end of a shift, it is unlikely that the memorandum had been drafted and issued on the same day as a conversation which had occurred at the end of that working day. The Tribunal therefore concludes the meeting took place on 23 August 2016 and that the claimant had indicated that he would contact the second-named respondent about the alleged incident.
94. The second-named respondent met the claimant on 23 August 2016 outside the second-named respondent's office. They discussed the matter of the bumper sticker and the alleged ' crosses' on the worksheet. The claimant alleges they also discussed an incident involving a female deodorant. The second-named respondent says they did not. The Tribunal finds the evidence of the second-named respondent more credible than that of the claimant. It can also see no reason why the second-named respondent would have lied about whether it had been two or three complaints. The Tribunal therefore concludes that the ' deodorant incident' had not been mentioned in this meeting.
95. It is clear that the two discussed the issuing of a memorandum to staff and that it was issued the next day on 24 August 2016 and placed on the noticeboard. It read:-
"It has been brought to my attention that certain symbols or remarks against agents' names have been drawn on worksheets etc. May I remind you that any discriminatory remarks, suggestions, or anything attached to work or personal belongings will be dealt with through the Swissport disciplinary process."
96. The claimant along with all other staff signed the memorandum. The claimant did not object to the terms of the memorandum when he signed it on 26 August 2016.
It is notable that the claimant alleged in his claim form that it had not been placed on the noticeboard until 27 August 2016. In his witness statement, he alleged that he noticed the memorandum on 28 August 2016. Both those dates put forward by the claimant are inconsistent with the claimant signing the memorandum on 26 August 2016.
97. The claimant alleged he had been waiting for a further meeting which had been promised by the second-named respondent in the meeting on 23 August 2016. The second-named respondent denied that any such meeting had been promised or that it had been required. Both parties had regarded the matter as closed. The claimant did not contact the second-named respondent for a month after he had countersigned the memorandum on 26 August 2016. It is inconceivable that the claimant would have waited patiently for this length of time if a meeting had been promised. On his own evidence, the claimant alleged that he had attempted to see the second-named respondent on eight or nine occasions when he believed the second-named respondent had promised him a meeting on 23 August 2016. Given that level of persistence, it is highly unlikely he would then have waited patiently and without comment for a month for another promised meeting.
The Tribunal therefore concludes that no further meeting had been promised on 23 August 2016 and that both parties regarded the matter as closed.
98. The claimant further alleges that on 22 August 2016 he noticed a ladies deodorant on the top of his locker in the restroom/locker room area. He stated that this was a MUM Fresh Pink deodorant and that he regarded it as an act of harassment relating to his religious beliefs, his political opinions, same sex relationships and same sex marriage and on his heterosexuality. This is a locker room which is used by the male ramp agents but also by approximately seven female ramp agents. Other than the placing of the deodorant on the top of the claimant's locker, one of a stack of two lockers, there is no evidence to suggest that the placing of the deodorant had been in any way directed at the claimant. It could equally have been the case that the deodorant had been found elsewhere or found on the floor and had been placed for safety sake at the top of the next available locker. It is also not entirely clear why the claimant regarded this particular type of deodorant as an act of harassment. He argued that the colour pink was associated with homosexuality and that the harassment was obvious. It is not obvious to the Tribunal. In a mixed locker room, the claimant's reaction to a women's deodorant seems particularly paranoid and exaggerated.
15 September 2016
99. On 15 September 2016, a team leader, Mr Lynn, who was openly gay, told the second-named respondent that the claimant had told him that there was ' a cure for gayness'. Mr Lynn was formally interviewed by the second-named respondent and the interview was witnessed by Mr Rankin. Mr Lynn just ' wanted to keep my head down' and did not want to make a formal complaint.
100. The claimant alleged that none of this had happened. The Tribunal concludes, on the balance of probabilities, that it had happened. The evidence of the second-named respondent was convincing. It is highly unlikely that such a complaint would have been invented or fabricated. If the claimant had genuinely thought that this had been the case, he could have sought a Witness Attendance Order for Mr Lynn or for Mr Rankin. He did not.
23 September 2016
101. On 23 September 2016 the claimant was notified that his contract of employment was not being extended. On or about the same date another employee was similarly notified.
102. The second-named respondent stated that he had taken into account the conduct of the claimant in relation to the incidents set out above where his conduct had been queried. The contract of the other employee had not been renewed because of concerns about attendance.
26 September 2016
103. On 26 September 2016, one full month after countersigning the memorandum of 24 August 2016 and with no intervening action on his part, the claimant sent a complaint to the respondents alleging unlawful discrimination.
104. Ms Melligan invited him to a meeting at the Maldron Hotel to discuss his complaint. The claimant declined. He said ' it would be inappropriate for me to meet with you at this time because it is in the hands of the Equality Commission'. Ms Melligan asked again. There was no reply.
105. The claimant in cross-examination said the meeting would have been ' inappropriate' because it was in a hotel. It would have been okay in the airport workplace. That is not what he said at the time in his reply to Ms Melligan.
106. The claimant clearly holds religious beliefs and, in particular, beliefs in relation to same sex relationships. His beliefs in relation to same sex marriages would also, applying the current judicial definition of ' political opinion' in the 1998 Order, qualify as a political opinion for the purposes of that Order.
107. The provisions in relation to the shifting burden of proof do not mean that the unsupported and improbable evidence of a less than credible witness is sufficient on its own to shift the burden of proof onto the respondents. As indicated in Madarassy and as confirmed in McKeith, there must be sufficient evidence before the Tribunal to ground, disregarding any possible explanation, a reasonable inference of unlawful discrimination.
108. The Tribunal does not regard the evidence of the claimant as either coherent or credible.
109. The claimant has made several allegations of alleged discrimination, harassment and victimisation. The first of these allegations is that the toilets contained graffiti which offended against him as a Christian. The employee toilets at the airport were owned and operated by the Airport Authority. They were not owned or operated by the first-named respondent. While the employees of the first-named respondent had access to those toilets, the first-named respondent was not responsible for their maintenance or upkeep. Security in the airport was a matter for the airport police and airport security staff. The toilets were equally accessible to employees of other companies such as ICTS, OCS, BIA and HAE and to the staff of contractors and sub-contractors. The second-named respondent and management of the first-named respondent regularly informed the airport police of graffiti in the toilets when it appeared. It was not the responsibility of the first-named respondent to clean or to paint the toilets or specifically walls of the toilets. Ms Foster made it plain that periodically, employees of the first-named respondent had been reminded of the implications of the graffiti problem. There is little more, in practical terms, that the first-named respondent or second-named respondent could have done in these circumstances. Cameras could not have been placed within the toilets. The toilets could have been closed. Unless the first-named respondent was to insist on all its employees being accompanied when they visited the toilets, the respondents had reached the end of the road in relation to this particular matter; they had done all they could reasonably have done.
110. Furthermore, there is absolutely no evidence that the claimant, unlike the second-named respondent, had ever been named in any of the graffiti which appeared in the toilet block. It is equally clear that none of the graffiti had been aimed specifically at anyone with Christian beliefs or at anyone with particular views about same sex marriage or same sex relationships. It comprised the usual crude and unpleasant rubbish frequently seen in toilets, both in workplaces and outside workplaces.
111. Given that toilets were regularly inspected by management of the first-named respondent and by the second-named respondent, given that the toilets were not the property or responsibility of the first-named respondent and given that the matter had been properly reported to the airport police who were responsible for such matters within the highly secure environment of the airport, it is impossible to see what more the first or second-named respondents could have done in these circumstances in relation to this problem. It is even more difficult to see why this matter was raised by the claimant or continued to be raised by and on behalf of the claimant as a component part of this claim. None of this graffiti had related to him or to his beliefs and none of it amounts to any sort of prima facie case of unlawful discrimination of any sort by either respondent.
112. The claimant alleged that on 17 August 2016 he walked into work to ' sign in' and sign the ' safety memo' which every employee must do on a daily basis. In the course of cross-examination, that allegation appeared to have changed into an allegation that, on a temporary basis, sign-in sheets were provided manually when the clock card machinery was not functioning properly. That is not what was said in the claimant's witness statement.
In any event, the claimant alleges that on the relevant ' worksheet' three ' Christian crosses' were drawn in black ink beside his name. He stated he had felt nervous and upset and that he had been particularly distressed that people would have seen these symbols beside his name. Despite that, he left the ' worksheet' in place; he signed his name and he went on with his work. He did not take the sheet and report it to the nearest supervisor. He did not lodge any form of complaint on that day, 17 August 2016, or immediately thereafter. Instead, he states that he took a very blurred photograph on his mobile phone. The Tribunal has had the opportunity of examining that phone and the photograph does not, in the opinion of the Tribunal, show three crosses. It shows three marks which could be three asterisks or three xs or basically three ' anything'. It does not show the date of the document or the whole of the document. The fact that the claimant's phone indicates that the photograph was taken on 17 August 2016 is not determinative. It could have been a photograph of an old document.
113. The claimant states that he did not report this incident because he ' had hoped and prayed that the persons involved would find common sense and this behaviour would stop'. The Tribunal has had the opportunity of viewing the claimant in the course of cross-examination. As indicated above, the claimant repeatedly displayed an aggressive and combative manner in giving evidence and in responding to questions both from the respondents and the Tribunal. The Tribunal has difficulty in believing that the claimant reacted with such forbearance to what he states he had regarded as an insult against his religious and political beliefs. He would have raised the matter there and then with the nearest supervisor and he would not have ignored it.
114. In short, the Tribunal simply does not believe the claimant's version of events as clarified in cross-examination. If a short-term measure of manually signing into work had been in place, the claimant would have made that plain in his witness statement. He did not do so. If three crosses had been written next to his name he would have immediately complained and he would have retained or copied the relevant page or taken a clear photograph. He did none of these things. A genuine manual signing in sheet would have shown the time of arriving and leaving. No mention of further distress on signing the sheet on leaving that day has been made by the claimant. He must have forgotten to do so. The fact that the respondents, when it was eventually reported, took the matter at face value and accepted the claimant's interpretation of the blurred mobile camera picture is not determinative. It is still for the claimant to establish a prima facie case of unlawful discrimination. He has failed to do so.
The Tribunal concludes that there is insufficient prima facie evidence that this occurred at all. The unsupported evidence of a less than credible witness is not enough to move the burden of proof to the respondents.
115. The claimant then complains that the bumper sticker was affixed to his car and that he discovered it on Saturday morning, 20 August 2016, after finishing a night shift. The claimant alleges that the bumper stick was fixed to his car while it was parked in the employees' car park at Aldergrove. The first obvious difficulty that the claimant's case faces is that this car park was open to all workers at the airport and not just to employees of the first-named respondent. There is no evidence; and there could be no evidence, of anyone interfering with the claimant's car while parked in the general employees' car park at Aldergrove. It would appear to be the case, insofar as the evidence to the Tribunal indicated, that the CCTV cameras captured cars only when they entered and exited the car park. The claimant asserts that he is well-known and that he has a public profile. Yet, in this instance, he maintains that the bumper sticker must have been placed on his car in this car park and that it must have been placed on his car by a fellow employee of the first-named respondent. There is no evidence to support any such proposition. Drawing a legitimate inference is one thing; making significant assumptions without evidence is quite another.
116. There are further difficulties with this part of the claimant's complaint. In cross-examination, he asserted that when he left his house to go on night duty at 4.00 am, it had been dark. However he was quite clear and maintained in cross-examination that a light was on at his house when he went to the back of his car to place his coat, his ear defenders and his bag in the back of the car before proceeding to work. He was adamant that if the bumper sticker had been present on the rear bumper of his car at that point he would have seen the bumper sticker. Although it was not pursued, in cross-examination, unfortunately, it would appear to the Tribunal to be equally the case that if, when he finished his night shift and went to the general employee car park in daylight to drive home, he would also have placed his coat, bag and ear defenders in the back of his car before driving off. If such an action would, as the claimant maintained, automatically have meant that he would have seen any bumper sticker when leaving his house the night before, it would also have meant that he would seen the bumper sticker when approaching his car in the car park and in placing his personal items in the back of that car. He did not do so. In fact he did not see the bumper sticker until he had driven to the Templepatrick Service Station and had parked to refill his car.
117. That suggests to the Tribunal that, given it is very unlikely that the bumper sticker had been affixed to his car at the garage in Templepatrick, the bumper sticker had been on his car for some time and that there is simply no evidence as to when or how it had been affixed. Given that the claimant's evidence was clear that he engaged in various lobbying and political activities and various religious activities attracting a public profile, this bumper sticker could have been affixed to his car at any time shortly before 20 August 2016 and in several locations.
118. There is, in short, no evidence whatsoever that the bumper sticker had been placed on his car in the airport employee car park. Even if there had been, there is absolutely no evidence that it had been placed by any employee of the first-named respondent. The Tribunal was repeatedly advised, on behalf of the claimant, that it was open to the Tribunal to draw inferences of unlawful discrimination. That is correct, but it is neither open to the Tribunal nor proper for the Tribunal to rely on unsubstantiated allegations and to affix blame where none can be properly affixed. There is nothing approaching a prima facie case of unlawful discrimination of any sort in relation to this bumper sticker against either the first-named respondent or the second-named respondent.
119. The claimant also alleged that a pink female deodorant had been placed on top of his block of lockers in the restroom/locker room area. It is clear from the unrebutted evidence of Mr Morrow, Mr Walker and Ms Foster that this was an L-shaped open-plan room. There were doors between the two parts of the ' L'. Those doors were permanently opened and in fact could not be closed because of the position of lockers. It was also clear from the unrebutted evidence of the respondents' witnesses that there were seven female ramp agents who had lockers in that area. The fact that a female deodorant is found in a mixed locker room seems unremarkable. The reaction of the claimant to this female deodorant seems paranoid and unreasonable. Again, there is nothing approaching a prima facie case of unlawful discrimination of any sort in relation to this deodorant. The claimant alleges that he heard sniggering when he noticed the deodorant on top of his block of lockers. The claimant alleges that in this relatively small room he could not see who was sniggering. The Tribunal considers this singularly unlikely. Given his observed reaction to any form of criticism, the Tribunal would have expected the claimant to have raised this matter directly with any one who had sniggered and to have at least been able to identify those people. He was not able to do so. Furthermore, the claimant did not allege in his written grievance of 26 September 2016 that anyone had sniggered at him. That particular allegation appears to first appear, at least in written form, in the Tribunal application.
120. Again there is nothing approaching a prima facie case of unlawful discrimination of any sort in relation to this deodorant.
121. The claimant also alleged that he had been unfairly given baggage room duties in the aftermath of his complaint to the second-named respondent. No evidence of any sort was produced in relation to that beyond the claimant's unsupported and unspecific assertions. There was no documentation, no shift rotas, no diary details, and no supporting evidence from any other witness. In short, it is for the claimant to produce prima facie evidence of an allegation of discrimination. It is not for the claimant simply to make an allegation which is unsupported by any evidence and say ' well, that's that'.
122. The claimant complains that his complaints of discrimination were not treated seriously and were not properly investigated. The claimant returned to work on 22 August 2016. The second-named respondent was not at work on that day. He spoke to the claimant late on 23 August 2016. The Tribunal accepts that the second-named respondent had significant managerial responsibilities. He spoke to the claimant as soon he could speak to the claimant. He took the issue seriously. He drafted a memorandum containing a clear warning of disciplinary action if the alleged behaviour were repeated. Staff were required to sign that memorandum within three working shifts.
123. The Tribunal also accepts that the claimant and the second-named respondent had discussed the issuing of a memorandum. The memorandum had been issued promptly. The claimant did sign that memorandum. He did not object to that memorandum. He did not ask for a further meeting with the second-named respondent. The claimant now maintains that he had been promised a second meeting and had simply been waiting for it to take place. That seems to the Tribunal to be singularly unlikely. The claimant had also already shown a remarkable degree of persistence in attempting to meet Mr Morrow on what he alleged had been some nine occasions over the space of two days. If any second meeting had been promised and had not been forthcoming, the claimant would have been similarly persistent. In fact he did nothing and said nothing. The only conclusion that the Tribunal can properly reach is that no second meeting had been promised and that the claimant had been content with the issuing of the memorandum. Given the circumstances, it is difficult to see what could usefully have been done further by the first or second-named respondent in relation to the claimant's allegations. There would have been little point in instigating a formal investigation. The claimant did not ask for a formal investigation or did not insist on any such formal investigation. He was content with the memorandum and he had left it at that.
124. The claimant alleged in the course of the Tribunal that there had been a breach of confidentiality; colleagues knew that the memorandum had referred to him. He stated:-
"This drew huge and embarrassing attention to me."
125. The claimant does not strike the Tribunal as someone who would be particularly embarrassed by attention. In any event, even if his identity could have been guessed by some colleagues from the contents of the memorandum, it is unclear how this could be a legitimate source of complaint. The second-named respondent could not have anonymised the matter any further while dealing properly with the allegations summarised in the memorandum. Having made such serious allegations, the claimant cannot properly complain that his employer had made it plain to his colleagues that such behaviour would not be tolerated.
126. If the claimant had not been dismissed, he would have left matters as they stood and he would have remained content with the memorandum. It was only when he had been dismissed, that, one month later, the matter re-emerged in a formal letter of grievance which was sent to various parties in the first-named respondent organisation.
127. Even though the claimant was invited twice by Ms Melligan to a meeting to discuss the terms of his written grievance, the claimant refused. In the course of his cross-examination he alleged that this was because it would been improper to meet Ms Melligan as it was ' in a hotel'. It is not clear entirely what the claimant was suggesting would have improper in meeting Ms Melligan ' in a hotel'. This was the Maldron Hotel which is located in the public car park at the airport about 150 yards from the airport building. It is generally regarded as part of the airport complex. There can, on any rational basis, be nothing ' improper' in a business type meeting in such a hotel. Furthermore, that was not the reason given by the claimant at the time. He simply stated that the meeting was inappropriate because it had been in the hands of the Equality Commission.
In short, it seems the claimant was not genuinely interested in pursuing his grievance. It was more a reaction to the termination of his employment.
128. There is insufficient credible evidence before the Tribunal in relation to the alleged acts of harassment or discrimination which, whether viewed singly or cumulatively, could provide a basis for a reasonable inference to be drawn. The claimant's allegations of harassment fail at the first step.
129. The respondents can be criticised, in that the claimant was not given a full opportunity to respond to complaints which had been made against him, eg the complaints by Mr McKee and Mr Lynn. In any of these incidents, particularly the complaint of Mr Lynn, concerns by the complainants about pursuing the matter formally or pursuing the matter further, should have been disregarded by the respondents and a formal disciplinary investigation should have been put in place. The matters raised were that serious, particularly in relation to the complaint of Mr Lynn.
130. The respondents can also be criticised for failing to make it plain in its termination letter that the real reason for the non-renewal of his contract had been his conduct. The first-named respondent had clearly been hoping to avoid unpleasantness and simply to rely on a standard non-renewal of a contract. They took the easy way out.
That said, none of these criticisms can amount to a prima facie case of discrimination. Given the catalogue of complaints against the claimant in a relatively short period of time and, in particular, given the substance of the complaint of Mr Lynn, the temptation to simply not renew the claimant's contract of employment must have been overwhelming.
131. While it would have been better, and not necessarily for the claimant, to have had a full disciplinary investigation into all the allegations and, in particular, into the complaint by Mr Lynn, the first-named respondent was not obliged to take this course. The claimant had been a temporary fixed term employee whose contract was due to expire shortly by effluxion of time alone. The first-named respondent was not obliged to renew that contract of employment or to extend it for a further period. The claimant had less than 52 weeks' continuous service and the first-named respondent was not obliged to use the statutory three-step dismissal procedure. The claimant did not have any right to claim unfair dismissal simpliciter.
132. The Tribunal unanimously concludes that there is no prima facie case that the claimant had been dismissed for a discriminatory reason. The decision not to extend or renew the claimant's contract of employment was a decision that any reasonable employer would have taken in these circumstances. The complaint of Mr Lynn in particular and indeed the complaints of several other employees raised a serious risk for the first-named respondent should the claimant's employment had continued. If the claimant had made another remark similar to that which Mr Lynn had alleged had been made to him, the first-named respondent would have been in significant difficulty. The fact that Mr Lynn had not wished the matter to go any further would not have assisted the employer much in such circumstances. The reality is that in such circumstances an employer had two choices. Firstly, he could have overridden Mr Lynn's wishes and gone straight to a full disciplinary investigation. Secondly, he could have taken the easy way out and simply not have renewed the claimant's contract of employment. He took the second option for obvious reasons. That much is clear from the minute of 16 September 2016 from the second-named respondent to HR:-
"Please see attached minutes of meeting with Kurtis Lynn. Colin Huston has made comments about Kurtis's sexuality. He does not want to go official but is uneasy in his presence. Can you please enter this in his file and I think looking through his records, it would be best if we ended Mr Huston's contract of employment at the next opportunity."
133. That is the reality of life for short-term employees. Until you have established 52 weeks' continuous service, your service can be terminated with little ceremony, particularly if your conduct has caused difficulty or if it has the potential to cause difficulty. That is the way the law is designed and that is the way it which it operates in practice.
134. Furthermore, there is no evidence that the claimant's complaints of harassment had been regarded by the first or second-named respondents as anything other than closed, and satisfactorily closed, once the memorandum had been issued and once it had been signed by the claimant without dispute. The claimant was not pursuing the matter any further. He had raised nothing else for a full month. There is no reason whatsoever why the first or second-named respondents would have seen any advantage or benefit in terminating the claimant's employment at that point, other than as a reaction to the claimant's conduct and, in particular, a reaction to his conduct in relation to Mr Lynn.
135. Even if the claimant had established a prima facie case of unlawful harassment in relation to the alleged incidents before his dismissal, the Tribunal would have determined that the first-named respondent had established the statutory employer's defence.
136. That test requires that the employer should have taken all reasonably practicable steps to avoid the harassment occurring the first place.
It does not require an unreasonable or artificial standard from employers. It does not require employers to provide courses in employment law to a university standard to its staff. A short video which makes it plain to employers that harassment is unacceptable will often be sufficient if coupled with a clear practice of dealing with harassment.
137. It is not a legal requirement that copies of a detailed policy should be distributed in written form and that they should be signed for by employees. Online training is now the norm. It is routine in the private and public sector. The possibility that someone else may complete an online course is real; so is the possibility that an attendee at an old-fashioned or traditional course might ' zone out'; so is the possibility that an employee may not read a written document.
138. The four introductory slides, and the four videos contained within the course, appear to be sufficient. The reference to the Equality Act rather than to local legislation, is, in this context of this course, unimportant.
139. All the claims are dismissed.
Date and place of hearing: 26 - 28 June 2017, Belfast
Date decision recorded in register and issued to parties: