Fair Employment Tribunal Northern Ireland Decisions

THE FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 96/16FET

2251/16IT

 

 

 

CLAIMANT: Joseph Martin

 

 

RESPONDENT: Drumgold Quality Foods Limited

 

 

 

DECISION

 

The decision of the Tribunal is that the claimant's claims of unfair constructive dismissal, discrimination on the grounds of race/nationality, discrimination on the grounds of his religious belief/political opinion, holiday pay, unlawful deduction of wages and/or breach of contract are not made out and are dismissed.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Members: Mr R McKnight

Mr J Barbour

 

 

Appearances:

 

The claimant was self-represented.

 

The respondent was represented by Mr Sean Doherty, Barrister-at-Law, instructed by Millar McCall Wylie, Solicitors.

 

SOURCES OF EVIDENCE

 

1.             The Tribunal received witness statements from the claimant, Mr Stephen Wilson, Mrs Hilary Wilson, Mrs Joanne Halliday, Mr Jack Turkington, Mr Robert Berzins and Mrs Maxine Boyd. The Tribunal heard oral evidence from the claimant and all of the respondent's witnesses with the exception of Mrs Wilson and Mr Berzins whom Mr Doherty declined to call. The Tribunal received a substantial bundle of agreed documents together with a small bundle of documents which the claimant indicated that he might wish to refer to. The Tribunal also received several additional documents which were produced during the course of the hearing. In addition to this evidence the Tribunal had the benefit of a CCTV recording of some of the key incidents.

 

THE CLAIM AND THE RESPONSE

 

2.             The claimant brought a number of claims against the respondent - unfair constructive dismissal, discrimination on the grounds of his race/nationality, discrimination on the grounds of his religious belief/political opinion and unlawful deduction of wages and/or breach of contract and for holiday pay. The claim unlawful deduction of wages and/or breach of contract embraced the alleged non-payment of commission on profits and a share in the business. The claimant provided a detailed history of the events in question in his claim form. The claim form was lodged in the tribunal office on 28 October 2016 by the claimant's then solicitor, Mr Kevin Byrne of McNamee McDonnell solicitors. An amended claim form with a replacement of section 8.1 (Further Information) was subsequently lodged on behalf of the claimant on 31 March 2017.

 

3.             The respondent in its response denied that the claimant was dismissed or that he was unfairly dismissed constructively or otherwise. The respondent's position was that the claimant had resigned from his position and did not do so in reliance on any breach of contract but rather in order to avoid an impending disciplinary hearing. The respondent further denied the allegations of discrimination; denied that it owed the claimant any money and denied that he was entitled to a share of the respondent's business or that the tribunal had any jurisdiction to entertain such a claim. The respondent also provided a detailed history of the matter from its perspective. The response was lodged in the tribunal office on 21 December 2016.

 

THE ISSUES

 

4.             The main legal and factual issues were agreed at a Case Management Discussion which took place on 15 March 2017. The agreed legal issues are as follows:

 

(1)        Was the claimant dismissed from his employment by the respondent?

 

(2)        Was the claimant constructively unfairly dismissed by the respondent contrary to Article 126 of the Employment Rights (NI) Order 1996 (as amended)?

 

(3)        Has the claimant been directly discriminated against on the grounds of his race/nationality contrary to the Race Relations (NI) Order 1997?

 

(4)        Has the claimant been directly discriminated against on the grounds of his religious belief/political opinion contrary to the Fair Employment and Treatment (NI) Order 1998?

 

(5)        With regards to the claimant's claims for direct race discrimination and discrimination on the grounds of his religious belief/political opinion;

 

a.          Are any of the claimant's complaints out of time?

 

b.          Does the treatment complained of involve a continuing act or state of affairs?

 

c.          Insofar as any complaints are out of time, should time be extended by the tribunal?

 

(6)           Has the claimant suffered an unlawful deduction of wages contrary to the Employment Rights (NI) Order 1996 (as amended) or a loss as a result of a breach of contract for the purposes of the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994?

 

(7)           With regards to the claimant's claims for unlawful deduction from wages and/or breach of contract;

 

a.          Are any of the Claimant's complaints out of time?

 

b.          Do the deductions complained of involve a series of similar deductions?

 

c.          Insofar as any complaints are out of time, should time be extended by the tribunal?

 

(8)       Subject to the above what remedy is the claimant entitled to?

 

It is not necessary to set out the agreed factual issues at this juncture but these have helped guide our decision.

 

THE FACTS

 

5.             The background to these proceedings is dealt with at length in the respective witness statements. There is some common ground in terms of the various key events but much of the detail was in dispute. The broad timeline of events is not in dispute notwithstanding that the claimant fails to give precise or any dates for a number of incidents. In our decision we therefore we have relied on dates provided by the respondent. The claimant's witness statement is in parts incoherent and we have found it necessary at times to revert to his revised claim form (which was prepared when he had legal representation) in order to understand his case. The witnesses' accounts of what occurred are unsurprisingly a matter of controversy. The claimant who was representing himself was unable to make much headway in challenging the factual evidence put forward by the respondent and in turn gave very little ground when cross-examined by the respondent's counsel. Thus we are left with two competing versions of events and many unresolved conflicts in the evidence. Much of what follows is therefore comprised of competing versions of events. Thankfully we do not need to resolve every factual conflict only those which are germane to our decision. In order to do justice however we have found it necessary to rehearse more of the parties' respective cases than we might normally wish to do.

 

6.             The respondent is a limited company whose business is the wholesale supply of meat and meat products. Mr Wilson was at all material times the General Manager of the respondent business and was responsible for all staffing matters. Mrs Wilson, his wife, was the sole Director and Shareholder in the respondent business from when it was set up in 2005 until 2015 when Mr Wilson was appointed a Director. In this capacity Mrs Wilson was responsible for credit control within the business and all banking matters.

 

7.             The claimant commenced employment with the respondent on 1 November 2008 as a Salesman initially and subsequently as its Sales Manager. The claimant had previously been employed by Hughes Frozen Foods of Warrenpoint and had made deliveries to the respondent's premises. During one of these visits in August 2008 the claimant asked Mr Wilson for a job and indicated that he had many contacts that he could tap into. Despite the fact that Mr Wilson had heard that the claimant was troublesome and Mrs Wilson was reluctant to employ the claimant he was taken on by the respondent. A rather unusual aspect of the employment relationship between the claimant and the respondent was that the claimant gave the respondent both his and his wife's life savings of £24,500.00 in December 2010 and £17,000.00 in December 2011. This undoubtedly helped the respondent with cash flow issues over the respective Christmas periods. The claimant regarded these payments as an investment in the business although he also claimed (at a late stage of the hearing) to have been motivated by sympathy for Mrs Wilson notwithstanding that she was reluctant to employ him. Mr Wilson regarded the payments as a loan and both amounts were repaid in full in due course.

 

8.             In terms of remuneration the claimant was paid £500.00 per week throughout his employment which Mr Wilson regarded as fair remuneration for his hard work which compared favourably with other establishments. The claimant's role was to develop and supply a customer base and he also made deliveries by van. It is not in dispute that the claimant worked very hard, put in long hours and built up the business. The claimant broadened the product range and introduced different brands. The claimant referred to discussions with Mr and Mrs Wilson during which he had said that he had shown his worth to the business and was on a very low wage. According to the claimant Mr Wilson confided in him that but for his work and contribution the business would most likely have closed down. According to the claimant the diversification and cost-cutting that he introduced turned the corner for the business and on the foot of this discussion Mr and Mrs Wilson offered him a 10% share of the profits after tax each year and they shook hands on this. The claimant was unable to put an exact date on this discussion but stated that it took place after he took on the main managerial role. Mr Wilson agreed that a discussion of this nature took place but disputed that any agreement was reached. More importantly Mr Wilson denied offering the claimant a 10% share of the profits or a 10% bonus payment or shaking hands on deals of this nature. Although Mrs Wilson did not give oral evidence about this matter her witness statement supported Mr Wilson's evidence that a discussion took place with the claimant about a profit sharing arrangement and that no agreement was reached. The claimant did not assert that any written agreement was entered into and Mrs Wilson as the only shareholder corroborates this in her witness statement.

 

9.             It is therefore common case that there was no written agreement between the parties regarding profit sharing or a share of the business. We are further satisfied on the balance of probabilities that there was no verbal agreement of the nature alleged by the claimant. The claimant with some justification felt that he had been instrumental in securing the future of the business having both provided two interest free loans and built up the business. The claimant may well have believed that he was entitled to a share of the profits and/or a share of the business but we are satisfied that neither was ever agreed.

 

10.          No interest was paid to the claimant on the loans made by him to the respondent but the respondent did give the claimant £5,000.00 towards a new bathroom for his home. On the basis of his witness statement and oral evidence it would appear that the claimant regarded this payment as his share of the 10% profits for 2012-2013. There is no support for that interpretation on the part of Mr Wilson who regarded it as a gift in recognition of the claimant's efforts. In his witness statement the claimant alleged that he was owed £36,500.00 which represented 10% of the 2013-2014 profits and 2014-2015 profits after tax on the basis of what Mr and Mrs Wilson agreed to pay him.

 

11.          In early 2012 the claimant was appointed Sales Manager. Mr Arturas Guzaitis was also engaged as a van driver on 9 January 2012 It was agreed that the claimant would become more office based with telesales and sales calls duties in an attempt to supply a broader range of products to customers. Mr Wilson disagreed with the claimant's description of his position as 'the main managerial role'. It seems to us that Mr Wilson's description of the role as being one of a Sales Manager is more accurate and accords with what we understand that the claimant was doing and his position relative to Mr Wilson, the General Manager. Clearly two people could not be performing the same managerial role.

 

12.          The claimant also made reference in his witness statement to the increased sales being generated and logistical problems that stemmed from that. In particular he made mention of having to work long hours (7.00 am to 7.00/
8.00 pm on weekdays and at the same time on Saturdays to do between 30-40 deliveries on his own. He also referred to employees stealing products and named Justin Bradley and Robert Zugzzathy as the perpetrators. The claimant reported them to management but they were never reprimanded and remain employees of the respondent. Mr Wilson gave evidence that employees were permitted to purchase goods at a 10% discount. He also recalled the claimant reporting these employees to him for stealing. Mr Wilson viewed the CCTV footage of both incidents and interviewed both employees. Having done so he was satisfied that the incidents in question involved a legitimate purchase of goods by employees.

 

13.          The claimant believed that some employees were unhappy with his increasingly influential role and he cites an incident of verbal abuse involving Mrs Halliday on 20 December 2012 as evidence of this. According to the claimant the Christmas delivery sheet had been misplaced by someone in the office and a customer, Stewarts Butchers, had phoned and was applying pressure for an order to be delivered quickly. Mr Wilson asked the claimant to take the order to Enniskillen but Mrs Halliday said that her husband would go. The customer then phoned a second time and Mrs Wilson decided that she would go instead whereupon Mrs Halliday became very upset and angry and said that her husband was already going with the delivery. The claimant gave evidence that Mrs Halliday had to be held back from physically attacking him and told her to come outside and fight with her. Mrs Wilson then separated them. According to Mrs Halliday the claimant instigated the incident by accusing her of having the Christmas loading sheets. When Mrs Halliday disagreed and said that she hadn't got them the claimant wouldn't accept her answer and shouted that she had the sheets and he needed them. According to Mrs Halliday the claimant approached her and was getting very aggressive. He was right in her face and was foaming at the mouth. The claimant then pushed into her as if he was looking for a fight. Mrs Halliday said that she wasn't afraid of the claimant and if he wanted fighting to step outside. The claimant then backed down and went away. Later that night he apologised to Mrs Halliday for losing his head. He said that he was tired and shook Mrs Halliday's hand. She responded that she would put it behind her. Mr Wilson recalled the claimant becoming very frustrated at losing the Christmas load up sheets and accusing Mrs Halliday of misplacing them. Mr Wilson sought to reassure the claimant that the sheets would turn up and to keep his cool. Eventually the sheets were found and Mr Wilson recalled Mrs Halliday becoming quite emotional at being accused in the wrong. Mr Wilson also recalled the claimant apologising to Mrs Halliday, shaking hands with her and them agreeing to put the matter behind them. Mr Wilson denied that Mrs Halliday had to be physically restrained from attacking the claimant but did recall Mrs Halliday saying that if the claimant wanted a fight she wouldn't back down. Mrs Wilson's witness statement did not address this incident and she did not give oral evidence about it.

 

14.          The CCTV footage does not provide any great assistance in relation to this incident particularly as there was no sound recording. Clearly emotions were running high but there is no evidence of Mrs Halliday subjecting the claimant to verbal abuse. Mrs Halliday was no shrinking violet and was more than capable of holding her own. We are satisfied that on the balance of probabilities the claimant was the aggressor and this conclusion is supported by the evidence that he felt it necessary to apologise to Mrs Halliday.

 

15.          The next events that we need to consider present a very confused picture. Rather than risk attempting to summarise this aspect of the claimant's case we have set out the relevant paragraph of his witness statement in full which reads as follows:

 

"Stephen and Hilary neglected to reprimand Jack for his outbursts and this undermining of my management role became worse, when a few days later Jack threatened me that the UVF will "sort me out" when I was out in one of the vans one of these days. On one of the following days, I'm unsure what day of the week it was, Jack proceeded to state "No-one likes your kind round here", but I ignored him and walked past him, but when I returned some time later I asked him what he meant. The claimant ignored Mr Turkington and walked past him but when the claimant returned some time later he asked him what he meant? He became extremely violent and came towards me with a boning knife in a threatening manner, at which point I pushed him away and ran for the office for safety. He followed him shouting he'll "never listen to a fenian bastard" and that he'll "have me shot". When I reached the safety of the office, Hilary stood in the door way between me and Jack, who was incidentally still waving a knife in his hand calling me "a fenian bastard" and stating that no-one likes me there any way. This happened around six months ago."

 

16.          The claimant claimed that he was terrified as a result of this incident and that he felt extremely intimidated. He asked Mr and Mrs Wilson to speak to
Mr Turkington in relation to these threats but nothing was ever done.

 

17.          At this juncture it is also material to consider the timing of these events. According to the claimant's amended claim form, which is dated 28 October 2016, this incident took place around 6 months previously. The claimant uses the same phraseology in the witness statement which he made on 9 June 2017 but clearly the reference in the witness statement was a mistake. The situation is further confused by the fact that the claimant alleges that two separate incidents occurred in the boning hall within a matter of weeks of each other whereas the respondent's case was that only one incident of note occurred. The respondent's CCTV footage is perhaps the best reference point for these allegations and it records a single incident in the boning hall on 20 January 2015.

 

18.          Mr Turkington gave an account of an incident in the boning hall. According to Mr Turkington he was boning chickens when the claimant approached him at his work station and became very abusive to him about refusing to bone chickens that had gone off the previous day. Mr Turkington explained to the claimant that it was a public health risk but the claimant ignored his explanation and became extremely threatening, cursing and swearing at the claimant. Mr Berzins intervened by standing between the claimant and Mr Turkington to calm the situation. The claimant pushed Mr Berzins to the side, punched Mr Turkington just below the neck and walked out. According to Mr Turkington the claimant was furious and made for him for a second time only to be restrained by Mr Berzins. The suggestion by Mr Turkington that Mr Bradley also came over to help is not borne out by the CCTV coverage and is clearly incorrect. Although Mr Bradley was present he did not intervene. Mr Turkington was very shaken up by the incident and reported it to Mr Wilson. Mr Wilson asked him if he wanted to pursue the matter but he decided not to as he was fearful of the claimant seeking to take revenge.

 

19.          Mr Turkington denied using the phrase "fenian bastard" on any occasion and described the allegation that he said that he would have the claimant shot as a complete lie. Mr Wilson viewed the CCTV footage of this incident and considered that it supported Mr Turkington's version of events. Mr Wilson noted that rather than fleeing to the safety of the office Mr Berzins shepherded the claimant out of the boning hall. Mr Wilson interviewed the claimant and Mr Turkington. The claimant told Mr Wilson that he should sack him as he had 'struck Jack'. The claimant did not mention any threats being made to him of a sectarian nature or otherwise either during the interview or at any other time. Mr Turkington stated that he didn't want to cause trouble and as a 74 year old man coming to the end of his working career he would let the matter drop. Mr Wilson decided to give the claimant a verbal warning about his behaviour and told him to control his temper.

 

20.          According to Mr Turkington the claimant adopted a very frosty attitude towards him following the earlier incident and wouldn't speak to him. Mr Turkington denied saying any of the things that the claimant alleged and he described the allegation that he threatened the claimant that the UVF would sort him when he was out in his van as a complete lie. Mr Turkington also claimed to be deeply offended by the allegation that he said words to the effect that no-one liked the claimant's sort around here.

 

21.          Having carefully considered all of the evidence we are satisfied that Mr Turkington's evidence is a mainly accurate account of the relevant events and is supported by the CCTV evidence save for the suggestion that Mr Bradley came over to help. We do not believe that Mr Turkington used the abusive and sectarian language attributed to him by the claimant.

 

22.          The claimant also referred in his evidence to another occasion when Kyle Linton stated that "all my kind should be in the south if they love Ireland so much." The claimant felt that he was being singled out for sectarian abuse and management was refusing to help him. According to the claimant this caused divisions within the factory and management did nothing to stamp it out. Mr Wilson gave evidence that he was mystified by the claim that Mr Linton made sectarian comments which he had not heard about prior to the claim being brought and pointed out that Mr Linton came from County Armagh, lived in the South of Ireland and was married to a woman from the South of Ireland. The claimant did not provide the date on which this comment but it must have been of some vintage as the claimant did not dispute that Mr Linton had left the respondent's employment some two years previously.

 

23.          The claimant also alleged that in and around the Brexit vote a lot of employees, especially Mr Turkington were openly discussing that there were too many foreign workers in Portadown and that there were too many Blacks especially Brazilians and Portuguese in Moy Park. Mr Wilson gave evidence that the respondent employed a total of fifteen people from different backgrounds with seven different nationalities represented and denied tolerating sectarian abuse. Furthermore no discussions regarding Brexit or foreign workers ever took place in his presence and the claimant was certainly never regarded as foreign. Mr Turkington also refuted the allegations about his conduct in particular the allegation that he said that there were too many foreign workers in Portadown and that there were too many blacks especially Brazilians and Portuguese in Moy Park. Nor did Mrs Halliday hear or see any member of staff being racist or sectarian in the workplace. However, she gave evidence that around the time of Brexit the claimant brought up the subject of Brexit with her when he stated - "yous ones and your Brexit" and how he had heard on some political show that the pound and the euro were going to be equal by the end of 2016. Mrs Halliday did not engage with the claimant on this topic as she could see that he was getting very aggressive and worked up about it. Mrs Halliday also denied hearing any member of staff state that there were too many blacks or foreigners in the country. Mr Berzins did not give oral evidence but in his witness statement he rejects the claimant's allegations about comments made to the claimant or in his presence. Nor did the claimant's witness Mr Bradley offer any support for the claimant's allegations.

 

24.          The claimant also gave evidence about the hiring of Lorna Dunlop. According to the claimant Mr Wilson had been spending an increasing amount of time taking orders to Belfast and unknown to the claimant Ms Dunlop was hired behind his back to conduct sales in the Belfast area. Ms Dunlop was formally a hairdresser in Newry. The claimant said that he spoke to Mr Wilson about this on numerous occasions and told him that it was common knowledge that he was having an affair with Ms Dunlop and that he was unable to lie to Mrs Wilson when she wondered where he was going most days of the week. The claimant asked Mr Wilson to tell his wife that he had employed Ms Dunlop but he refused and so he advised that he would tell Mrs Wilson himself. The claimant suggested that his relationship with Mr Wilson changed after this. According to the claimant Mr Wilson told his wife about the affair the next morning and she left the premises after being told. A few hours later she phoned the claimant and asked him what he knew about the affair and he told her the full truth. After this Mrs Wilson left work for a few days. The claimant gave evidence that his job became unbearable at this stage because Mr Wilson resented him for not lying about the affair and working with colleagues who threatened him both physically and verbally on a sectarian basis. The claimant felt that the business that he had helped grow and prosper from the start had become hell for him.

 

25.          Mr Wilson categorically rejected the allegation that he was having an affair with Ms Dunlop. He denied that he was spending a lot of time in Belfast but rather he was engaged with customers all over the country some of whom he needed to placate because they were unhappy with the claimant's attitude to them on the phone. According to Mr Wilson, Ms Dunlop, who was his hairdresser and whom he had known for 10 years, asked him in May/June 2015 if he was interested in new business as she knew a man in Belfast with several butcher shops. Mr Wilson gave her a price list and a product list and told her to leave it in to him. As a result Premier Meats started doing business with the respondent and Mr Wilson thanked Ms Dunlop for this contact. Towards the end of 2015 Ms Dunlop suggested that she would like to try and sell products around the Belfast area on a self-employed basis if Mr Wilson was willing to let her have a go. Mr Wilson told the claimant about this and he welcomed it saying - "Surely, what harm would it be to let her try." Mr Wilson gave her a product /price list and said that she should canvas for new customers in the New Year as Christmas was a very busy time for the business. The claimant was fully aware of this development and wholeheartedly supported it. The claimant's attitude changed however as new orders started to arrive and he confronted Mr Wilson one day with an ultimatum that he would not be processing any of these orders. Mr Wilson sensed that the claimant was jealous of Ms Dunlop's involvement in sales and he reassured the claimant that as Sales Manager he had nothing to fear from this. According to Mr Wilson the arrangement with Ms Dunlop was purely on a trial basis and there was no permanent agreement. According to Mr Wilson, the claimant then began to spread false and malicious allegations about him and Ms Dunlop. Mr Wilson alleged that the claimant contacted Mrs Wilson about this and also made phone calls to his mother and sister. When Mr Wilson challenged the claimant about this his attitude changed and he became cold and unhelpful towards Mr Wilson thereafter. Mr Wilson also denied that he told his wife about the alleged affair rather he told her that it was a cruel allegation and no affair existed. Mr Wilson denied being abusive or confrontational towards the claimant about these false accusations but challenged him about the stories that others had told Mr Wilson that he was propagating. The claimant denied doing this. Mrs Wilson, in her witness statement, denied that Mr Wilson came in to work one morning and told her that he was having an affair with Ms Dunlop. Mr Wilson had however told her at their home that he had started doing some business with Ms Dunlop. Mrs Wilson wasn't happy with this although she does not say why but does admit to marital difficulties during this period. Mrs Wilson denied bringing these to the workplace and categorically denied having ever cried whilst at work or leaving the premises crying.

 

26.          The claimant also referred to an incident involving Mr Turkington whom the claimant believed did not like the claimant's new role and had difficulty in accepting his authority. It is material to note that Mr Turkington owned the property on which the respondent carried out its business and had worked for the respondent in the cutting room for a long time. According to the claimant Mr Turkington clocked in to work but then remained outside on tea break. On one such occasion on 30 September 2015 the claimant asked Mrs Halliday to check whether Mr Turkington was clocked in to which she replied - "No, he hasn't clocked in." Another employee, Mr Berzins, relayed this to Mr Turkington who stormed into the office and verbally abused the claimant. This was reported to Mr Wilson who checked the CCTV which confirmed that Mr Turkington had clocked in on his tea break and also verified that the clocking in machine was in working order. The claimant told Mr Wilson that this had come about because Mrs Halliday had lied to him and that employees were doing as they liked. Mrs Halliday's version of events was that when the claimant asked her about Mr Turkington she said that she wasn't too sure whether he had clocked in as the machine didn't register straight away. The claimant was very angry and not amused at her answer and stormed out of the office. Shortly afterwards she could hear the claimant shouting at Mr Turkington and being very aggressive towards him. She went outside and told the claimant to leave Mr Turkington alone and to go and wise up. According to Mrs Halliday the claimant continued to be in Mr Turkington's face and to be aggressive. The claimant then struck Mr Turkington which prompted Mrs Halliday to report the incident to Mr Wilson.

 

27.          Mr Turkington's evidence was that he clocked in as usual after his half hour tea break and then stepped outside the boning hall to ask
Mr Justin Bradley what orders needed attention that afternoon. After 3 or 4 minutes Mr Turkington returned to the boning hall to commence work. After being informed by Mr Berzins that the claimant had been enquiring whether he had clocked in Mr Turkington returned to the main office to explain that he had only stepped out for a couple of minutes and not 20 minutes as the claimant was alleging. During this discussion the claimant rose from his seat and followed Mr Turkington out shouting and swearing and threatening Mr Turkington in a very aggressive manner. The claimant pushed his face up against Mr Turkington's while continuing to shout and wave his arms in the air. Mr Turkington noticed froth coming from the claimant's mouth and ending up on his face. The CCTV footage also shows the claimant pushing Mr Turkington and being restrained by Mr Berzins. Mr Turkington felt frightened. Mr Turkington did not allege that he was struck but it is clear that he was pushed. Mr Turkington corroborates Mrs Halliday's evidence that she phoned Mr Wilson. Mr Wilson subsequently interviewed Mr Turkington who raised his fears about the matter during the interview. Mr Wilson concluded that all of the aggression was coming from the claimant. In his evidence to the tribunal Mr Wilson stated that the claimant raised the clocking in issue with him but that when he checked the CCTV footage he discovered that Mr Turkington had only been out for 3 or 4 minutes. Mr Wilson accepted the account of events given by Mrs Halliday and Mr Turkington. Mr Wilson spoke with the claimant afterwards and reminded him that this matter was not within his remit and to leave these things to him. Mr Wilson also warned the claimant that his behaviour was not acceptable and the claimant later apologised.

 

28.          The claimant also gave evidence about several incidents where fellow employees lost all respect for him as they knew that management would not reprimand them for abusing the claimant. According to the claimant this made his role as manager increasingly hard to fulfil. In this regard the claimant referred to an occasion when Mr Guzaitis laughed in his face, gave him the finger and walked off when the claimant was advising him of the benefits of rotating stock. The claimant informed Mr Wilson of this and he said that he would deal with it. Mr Wilson placed this incident as occurring on Friday 7 January 2016 and viewed the claimant's version of events as grossly distorted. According to Mr Wilson, Mr Guzaitis had reported to the claimant on several occasions that a customer, Charlie Meats in Monaghan, was unhappy with the short-dated products that they were receiving. Mr Guzaitis knew that this customer would reject a product with only 3 or 4 days shelf life as this had happened on previous occasions. Mr Guzaitis had informed the claimant several times about this problem but it fell on deaf ears. When the claimant discovered that Mr Guzaitis was loading products with longer shelf life for this customer he became angry and abusive and grabbed Mr Guzaitis. The claimant phoned Mr Wilson shouting and demanding that he deal with Mr Guzaitis. Mr Wilson was in Offaly with a delivery and asked to speak with Mr Guzaitis who gave him his version of events. Mr Wilson decided to send Mr Guzaitis home for the day in order to create space between them while Mr Wilson investigated the matter. There was no CCTV coverage of this incident. When Mr Guzaitis returned on Monday morning both men shook hands and got on with the business of the day. Mr Wilson warned both of them that they would not tolerate this behaviour on an ongoing basis.

 

29.          The next staging post in the claimant's narrative is Mr Wilson's decision to open up a new company selling ducks, the Fresh Duck Company, and going into partnership with Mr Sean Collin. The claimant believed that this company was set up to assist Ms Dunlop with a new income stream. According to the claimant the duck company was unfortunately not paying its bills and creditors started to contact the respondent to request payment. Mr Wilson's evidence in response was that the allegation about bills not being paid was a false accusation and that all creditors were paid exactly on time. On 9 June 2016 the claimant was loading a van and said to Mr Wilson in a rage - "I'll tell you what I think, your duck business is shite". Mr Wilson regarded this comment as entirely unprovoked and random. According to Mrs Halliday the claimant also separately complained to her that the Fresh Duck Company never offered him the chance to be a partner in their business and so he didn't like them.

 

30.          Mrs Halliday in her evidence to the tribunal relates that on 19 July 2016 she took a phone call from Tanya Mason from the Fresh Duck Company. It was clear to her that the claimant wasn't happy with her being on the phone with the Fresh Duck Company. He was very noisy opening and closing the printer drawer and while Mrs Halliday was still on phone he demanded the loading sheets for Wednesday. Mrs Halliday apologised to Ms Mason and asked her to wait for a second while she printed the loading sheets. While she was printing the sheets the claimant demanded them again in a raised voice. He appeared to be angry and was starting to lose his temper. The sheets wouldn't print properly and Mrs Halliday said that she would get them once she had finished on the phone with Ms Mason. As Mrs Halliday was going through the invoices with Ms Mason the claimant again demanded the loading sheets. The claimant's voice was raised and angry and he started shouting and cursing at Mrs Halliday. He questioned why she was going through the invoices with Ms Mason as Mr Wilson had already done so and he asked how many people have to go through the invoices. Mrs Halliday apologised to Ms Mason again as she could hear the abuse that the claimant was giving her. Mrs Halliday tried to print the sheets but they wouldn't open. At this point the claimant "lost it completely" and he was going mad at Mrs Halliday as to how he needed the sheets immediately. Mrs Halliday again apologised to Ms Mason and said that she would phone her back. Mrs Halliday was shaking with fear and picked up her mobile phone to go out of the office and call Mr Wilson. As she was walking out of the office she told the claimant that she wouldn't be taking this abuse off him. At this point she was crying and shaking with fear. The claimant then starting shouting at Mrs Halliday about "how she licked Stephen's ass" and in fact "she licked everyone's ass" and that she should go home as she wasn't even wanted here. The claimant stated that he was Drumgold and that it would be nothing without him. He then shouted about the Fresh Duck Company not giving him any money and continued in this vein. Mr Wilson came on the phone and asked to speak to the claimant. The claimant then gave Mr Wilson abuse on the phone and said that if Mr Wilson sacked him he would take half of his customers with him. The claimant shouted that he would be with Drumgold as long as Mr Wilson was with Drumgold and that there was nothing that he could do about it. Mrs Halliday was shaking and crying and shortly afterwards phoned Mr Wilson to let him know that she was going home. Mrs Halliday also gave evidence that the next day the claimant admitted to Mrs Wilson that he had lost it completely. Mr Wilson's account from the other end of the phone was in similar terms to Mrs Halliday's. Mr Wilson added that the claimant hung up on him three times during their conversation. This was disputed by the claimant who said that it was problem with the phone connection.

 

31.          On his return to the office that evening Mr Wilson sought advice about how to deal with the claimant's behaviour and was told that a disciplinary procedure would have to commence. Mr Wilson decided that this should be conducted externally and informed the claimant and Mrs Halliday of his decision a couple of days later. The claimant was therefore clearly at risk of disciplinary action but in the event the disciplinary investigation did not get off the ground as it was superseded by the claimant's decision to resign.

 

32.          Mrs Halliday submitted a grievance letter about this incident on 20 July 2016. The letter set out in detail the events described in Mrs Halliday's evidence and describes the claimant's behaviour as bullying. In addition, the letter refers to the claimant striking Mr Turkington last year (in 2015) and bullying Mr Berzins.

 

33.          The claimant never spoke to Mr Wilson after the incident and Mrs Wilson moved him to another office in order to create space between him and Mrs Halliday. The claimant continued however to retain full control of telesales, customer order sheets, checking invoice prices and so forth as normal. The tribunal was shown loading sheets and diary entries from this period bearing the claimant's handwriting together with a call divert list that showed that all calls were diverted to his mobile phone. There was no change in the claimant's duties or responsibilities. Mrs Wilson's witness statement describes the situation after the incident in similar terms.

 

34.          The claimant described his treatment as demotion and he sought to link this to Mrs Maxine Boyd (Mr Wilson's sister) joining the business. According to the claimant Mrs Boyd joined the business in August 2016 and this coincided with him moving to a smaller office. Mrs Boyd assumed the role of manager and according to the claimant she said that she was given full control. The claimant was not consulted about this. The claimant claimed that his areas of control were removed from him and that he was no longer to check the vans' rotas or customer sales and that he was totally removed from the company's management structure. The claimant viewed this as demotion.

 

35.          According to Mr Wilson the background to Mrs Boyd joining the business was that he asked her to come in to help out as the claimant was due to take two weeks holiday. She started on 25 July 2016 and assisted with phone duties and van checks. The claimant did not take his first week off as scheduled and announced that he was taking the next two weeks off instead. The claimant remained in full control of his normal duties notwithstanding Mrs Boyd's arrival.

 

36.          Mrs Boyd explained that she was able to help out because she was on a career break from her job as a chemist and she worked on an unpaid and voluntary basis at this time. She denied taking control away from the claimant or asserting that she had been given control. She was not involved in sales or dealing with customers. The claimant had telephones diverted into his office and thus retained full control of telesales and customers. Mrs Boyd drew attention to call lists which supported her evidence in this regard. Mr Wilson rejected the suggestion that the claimant had been effectively demoted at any stage and in his oral evidence drew attention to the continuity in the nature of the work undertaken by the claimant. Mrs Boyd described the claimant as being friendly and well-mannered towards her but that his attitude towards her changed later. Mrs Boyd continued to work voluntarily for some time and ultimately took up paid employment with the respondent on 17 October 2016 well after the claimant's departure.

 

37.          The claimant alleged that Mr Wilson's behaviour towards him became progressively worse and in this connection drew attention to an incident on 19 July 2016 when Mr Wilson told a delivery driver to ignore the Drumgold Quality Ltd delivery to Lisburn Hilton Butchers worth £450.00 and to do his Duck Company order worth £15.00 first. According to the claimant Mr Wilson stormed into his office when the claimant questioned the wisdom of his decision and stated that the claimant was not wanted at Drumgold and that delivery drivers listen to him not the claimant. Mr Wilson then shouted - "I'm out of here and the customers mean nothing to me". According to the claimant this caused problems with customers whom he had built up trust with and therefore when they complained to him he was helpless to deal with them. The claimant reported their complaints back to Mrs Boyd whom he claimed had usurped his role in these matters. The claimant gave evidence that after going home that night he broke down crying with the indignity, stress and abuse from the job. The claimant described this as the lowest point in his working career and said that his friendship with Mr Wilson was broken also. Mr Wilson for his part denied abusing the claimant or shouting at him during the last few weeks of his employment. Rather the position was that following the incident with Mrs Halliday on 19 July 2016 the claimant refused to speak to Mr Wilson or cooperate with him. In order to obtain information on vital matters Mr Wilson addressed the claimant in an authoritative tone of voice but to no avail and the claimant continued to ignore him. This evidence is of some importance as the claimant's case was that he subsequently resigned in response to Mr Wilson shouting at him. This is fundamentally at odds with the breakdown in communication between them that the claimant bore responsibility for.

 

38.          Mr Wilson also denied telling a driver to ignore a Drumgold delivery in favour of a duck company order. According to Mr Wilson what he did do was to divert a driver to Benedict's Hotel, Belfast, a large Drumgold customer, which was very strict about receiving its orders before 1.00 pm after hearing that the claimant was sending the van to Hilton Meats Lisburn first with a small order. Mr Wilson didn't know that this was happening until the last minute because the claimant wasn't communicating with him. Mr Wilson described the words attributed to him by the claimant as confusing, absurd and false. We also find it difficult to understand the substance of the claimant's complaint.

 

39.          In his claim form and witness statement the claimant refers to assistance that he had provided to Mr Wilson in connection with alleged difficulties with VAT in the Republic of Ireland involving a late payment which resulted in 25,000 euros being recovered by the respondent. The claimant claimed that this episode occurred about "a year ago" and that he helped by identifying an accountant in the Republic of Ireland who was able to agree the return of the monies. According to the claimant Mr Wilson told him that he would receive 1,000 euros for his help but that this did not materialise. Mr Wilson gave evidence that the VAT authorities in the Republic of Ireland were withholding payment from the respondent over a technicality and he emphatically denied that there had been a late payment. Mr Wilson agreed that the accountant identified by the claimant resolved the matter. Surprisingly, Mr Wilson made no mention in his witness statement or his oral evidence of the promise to give the claimant 1,000 euros for his help. In the absence of the claimant's evidence being contradicted we must therefore conclude that Mr Wilson did offer 1,000 euros to the claimant. However, we are satisfied that this matter does constitute a breach of the claimant's contract and hence it does not fall within the tribunal's contract jurisdiction.

 

40.          The claimant alleged that he was abused by Mr Wilson 4 to 5 times daily at this time. The claimant's evidence was that he finally broke and handed in a handwritten letter stating that he had to leave as he couldn't stick any more stress and abuse but he said that he would stay on until they found somebody else. The letter read as follows:

 

"To Hilary and Stephen Wilson 28/7/16

 

I Joseph Martin am giving my notice. I have a week holiday on
6 ^th August. You and Hilary decide how long my work notice to be. I stay until you replace me. Thank you for everything. I appreciate all your self have done for me and my family. Hope I can finish in friendship.

 

Thank you

 

Joseph Martin"

 

41.          Mr Bradley was asked about the claimant's decision to resign and his impression was that the claimant put thought into the decision.

 

42.          Having gone home and reflected on the matter further the claimant decided to write a letter revoking his resignation but he did not do this immediately. As indicated in his resignation letter the claimant did not evince any intention to finish work immediately and continued to work for the respondent.

 

43.          Mr Wilson responded to the claimant's letter of resignation on 1 August 2016. Mr Wilson accepted the claimant's resignation and stated that his last day would be Friday 5 August 2016 and that he would not be held to any further notice period. He further indicated that the claimant would paid for any leave accrued but not taken and that the claimant's final salary would be paid on 12 August 2016. He concluded the letter by thanking the claimant for his time and contribution to the business.

 

44.          As we have noted the claimant remained in post after his letter of resignation. This cannot have been a happy situation and the evidence that we have heard about events between the letter being sent and the claimant's last day at work bear this out. Mrs Boyd described how the claimant's attitude toward her changed mid-morning on Monday 1 August 2016. He no longer lifted his head to look at her, didn't speak to her, treated her with contempt and on occasions cleared his throat to get her attention rather than speak to her. Mrs Boyd was also aware that the claimant had very little communication with Mr Wilson. On 4 August 2016 Mrs Boyd heard an exchange between the claimant and Mr Wilson. According to Mrs Boyd she heard raised voices but not a sustained argument. This accords with Mr Wilson's evidence that he raised his voice to the claimant on 4 August 2016.

 

45.          The claimant in his witness statement refers to a visit to his family home by Mrs Wilson after the claimant had submitted his resignation. Although the claimant was not present, his wife, Mrs Imra Martin, was at home. Both the claimant and Mrs Wilson, in their witness statements, give similar accounts of what transpired. We can therefore proceed with some confidence on the basis of their respective accounts. During the visit Mr Wilson's letter of 1 August 2016 arrived in the post. Mrs Wilson asked for the letter so that she could show it to a solicitor and Mrs Martin handed it over without retaining a copy. In his witness statement the claimant describes this as a letter sacking him but it is clear that it was the letter from Mr Wilson accepting his resignation. It is regrettable that the claimant did not have an opportunity to see a letter which was addressed to him and Mrs Wilson should not have taken it away notwithstanding Mrs Martin's understandable compliance with her request to do so.

 

46.          On 3 August 2016 the claimant sought to revoke his resignation. His handwritten letter reads as follows:

 

"3/8/16

 

Dear Hilary and Stephen Wilson

 

Last week I was put under a lot of stress and pressure from Stephen shouting and screaming at me. I took the decision (sic) hastily without thinking. I have become very stress and afraid of Stephen lately to me. Three or four time he want me out shouting and screaming and running down the hall waving his hands and fists. I am retracting my notice. I hope to a meeting with Hilary and Stephen to get this matter solution. I have putting my energy and heart into getting the business better and bigger. Sorry for the inconvenience of the letter. Thank you for the understanding the stress and pressure lately in Drumgold. I am happy to continue working with the company. My sales have increased a lot the last few months. I hope to increased products and more business in the future for you.

 

Thank you

 

Joseph Martin"

 

47.          Mr Wilson did not reinstate the claimant and did not reply to the revocation letter. The matter proceeded on the basis that the claimant had resigned and as appears from Mrs Wilson's witness statement he was asked to return his keys and phone prior to him leaving on 5 August 2016.

 

SUBMISSIONS

 

48.          The claimant made closing oral submissions. During the course of these submissions the claimant on several occasions sought to introduce matters which had not been addressed in either his claim form, his witness statement or in his evidence to the Tribunal. In particular the claimant sought for the first time that Mrs Halliday was not disciplined or chastised as he was and that following the incident on 19 July 2016 he was moved office and she was not. On behalf of the respondent Mr Doherty made written and oral submissions to the Tribunal. As requested by the Tribunal Mr Doherty's written submissions focussed mainly on the relevant case law and legislation and dealt briefly with the evidential issues. In relation to Mrs Halliday, Mr Doherty submitted that Mrs Halliday was not a proper comparator as no-one had ever complained that she had bullied them and that in any event the claimant was not in fact disciplined or chastised having resigned before an investigation was commenced. Mr Doherty further submitted that it would have been wrong to have moved the person who lodged the grievance.

 

THE LAW

 

Constructive Dismissal

 

49.          Article 126 of  the Employment Rights (Northern Ireland) Order 1996 sets out the right not to be unfairly dismissed and Article 127 in so far as relevant  provides as follows:-

 

"127(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) - ...

 

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

 

50.          In order for an employee to establish that he/she has been constructively dismissed, an employee must show that his employer had committed a serious and repudiatory breach of contract, that the employee had left because of that breach and that he had not accepted and had not waived that breach. A relevant serious breach of contract can include not just the breach of a specific or written contractual term but a serious breach of the implied term of trust and confidence. Such a breach of the implied term would occur if an employer had acted in a manner which was calculated or was likely to destroy or seriously damage the relationship of trust and confidence.

 

51.          The authors of Harvey at D1 [403] describe four conditions that an employee must meet if he/she is to claim constructive dismissal.

 

(1)       There must be a breach of contract by the employer. This may either be an actual breach or an anticipatory breach.

 

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last of a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting repudiation in law.

 

(3)        He must leave in response to the breach and not for some other, unconnected reason.

 

(4) He must not delay too long in terminating the contract in response to the employers breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

 

52.          The leading case in relation to constructive dismissal is Western Excavating  (ECC) Ltd v Sharp  (CA)   [1978] ICR 221  in which it was held that an employee's entitlement to terminate his contract of employment by reason of his employer's conduct was to be determined in accordance with the law of contract and not by applying a test of unreasonableness to the employer's conduct. However, the courts mitigated the impact of this approach by recognising that there is an implied contractual term to the effect that the employer should not behave in a manner that would undermine the relationship of trust and confidence between employer and employee.

 

53.          As to the nature of the duty of trust and confidence, it was described by
Lord Steyn in   Mahmud v Bank of Credit and Commerce International SA   [1997] ICR 606 ,   [1997] IRLR 462   in the following terms:-

 

'The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.'

54.          The precise terms of this formulation have been the subject of comment and refinement. In   Baldwin v Brighton and Hove City Council   [2007] ICR 680 ,   [2007] IRLR 232   the Employment Appeal Tribunal had to consider the issue as to whether in order for there to be a breach the actions of the employer had to be calculated and likely to destroy the  relationship of confidence and trust, or whether only one or other of these requirements needed to be satisfied. The view taken by the  Employment Appeal Tribunal  was that the use of the word 'and' by Lord Steyn in this passage was an error of transcription of the previous authorities, and that the relevant test is satisfied if either of the requirements is met. In  BG plc v Mr P O'Brien [2001] IRLR 496, Mr Recorder Langstaff QC in giving a decision of the Employment Appeal Tribunal in a constructive dismissal case formulated a test as follows:-

"The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee."

 

55.          The courts have also considered situations where a series of incidents has occurred and the employee resigns in response to the last actions of the series which constitute the so-called "last straw". In   Lewis v Motorworld Garages Ltd [1986] ICR 157, Glidewell LJ stated at page 169 F:-

 

"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulated series of acts taken together amount to a breach of the implied term?... This is the 'last straw' situation."

 

56.          The Employment Appeal Tribunal considered the so called last straw doctrine in   Thornton Print Ltd v Morton [2008] UKEAT/0090/08/JOJ. In that case Judge Serota QC endorsed the judgment of the Court of Appeal in  Omilaju v London Borough of Waltham Forest   [2005] 1 All ER 75   and stated that:-

 

"The principle, if it be one, means no more than that the final matter that leads to the acceptance of a repudiatory breach of contract when taken together and cumulatively with earlier conduct entitles a party to accept a repudiatory breach of contract, whether that last matter is in itself a breach of contract or not."

 

57.          In Brown v Merchant Ferries Ltd [1998] IRLR 682, the Northern Ireland Court of Appeal said that although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer's conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract. For a claim of constructive dismissal to succeed it must also be unfair.

 

58. Harvey Division D1 paragraph 544 addresses the case law in relation to retractions of resignations where it states:

 

"Moreover, the employee who resigns in this way will not in general, without the agreement of the employer, be entitled to withdraw his resignation. The general principle is that once a lawful resignation has been given, it cannot unilaterally be revoked (Riordan v War Office [1959] 3 All ER 552, [1959] 1 WLR 1046; and Harris & Russell Ltd v Slingsby [1973] 3 All ER 31, [1973] IRLR 221, [1973] ICR 454)."

Direct Discrimination

 

59. Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("FETO") provides as follows:

 

"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.

 

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if-”

 

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons;"

 

60. Article 3(1) of the Race Relations (Northern Ireland) Order 1997 ("RRO") provides as follows:

 

" 3. -” (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if-”

(a)        on racial grounds he treats that other less favourably than he treats or would treat other persons; "

Harassment

61. Article 3A of FETO provides as follows:

 

" 3A. -” (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) 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 should reasonably be considered as having that effect. "

 

62.          Article 4A of the RRO provides as follows:

 

"4A. -” (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(1B) where, on grounds of race or ethnic or national origins, 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 should reasonably be considered as having that effect."

 

Burden of Proof

 

63.          The reverse burden of proof applies to both FETO and RRO. The relevant provisions are in identical terms and the FETO version which is contained in Article 52A of the RRO is set out below:

 

"52A. -” (1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent-”

(a)        has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B) (a), (e) or (f), or Part IV in its application to those provisions, or

 

(b)        has committed an act of harassment.

 

(2) Where, on the hearing of the complaint, 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 such an act of discrimination or harassment against the complainant,

 

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant, 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."

64.          The Tribunal considered the guidance provided by the Court of Appeal in Igen -v- Wong [2005] IRLR 258 on the application and the application of the Burden of Proof Regulations which apply to cases brought under the Race Relations (Northern Ireland) Order 1997 by virtue of Article 52A, above.

 

(i) Pursuant to Section 63A of the 1975 Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These facts are referred to below as "such facts".

 

(ii) If the claimant does not prove such facts he or she will fail.

 

(iii) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of (sex) discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

 

(iv) In deciding whether the claimant proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from facts found by the Tribunal.

 

(v) It is important to note the word "could" in Section 63A(20). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead to the conclusion that there was an act of unlawful discrimination. At this stage the Tribunal is looking at the primary facts before it to see where inferences of secondary fact could be drawn from them.

 

(vi) In considering what inferences or conclusions can be drawn from the primary facts. The Tribunal must assume that there is no adequate explanation for those facts.

 

(vii) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

 

(viii) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

 

(ix) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

 

(x) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

 

(xi) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

 

(xii) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

 

(xiii) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

 

65.          The proper approach to the Igen Guidelines has been the subject of some helpful comments by the Employment Appeal Tribunal in Laing v Manchester City Council [2006] IRLR 748 and by the Court of Appeal in Madarassy v Nomura International PLC Neutral Citation Number [2007] EWCA Civ 33. In Laing, Elias J stated at the first stage the burden rests on the claimant to satisfy the Tribunal, after a consideration of all the facts, that a prima facie case exists sufficient to require an explanation. The facts include evidence adduced by the respondent though this should not be confused with any explanation offered by the respondent for the claimant's treatment. This approach was approved by the Court of Appeal in Madarassy , in the following part of the judgment of the Court of Appeal, per Mummery LJ reads (at paragraphs 56, 57, 71 and 72) as follows:-

 

"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 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 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.... 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 complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required ....... and available evidence of the reasons for the differential treatment.

 

71.      Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

 

72.     Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground.  As Elias J observed in  Laing (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all".

 

Discrimination Time-Limits

 

66.          In accordance with Article 65 of the RRO and Article 46 of FETO claims of discrimination must be brought within 3 months of the act complained about. The Tribunal is empowered to extend these time limits if it is just and equitable to do so. In addition, a claim of this nature may fall within time if the act of discrimination is shown to be continuing act in that it extends over a period. In order to establish a continuing act, the claimant has to prove that (a) the incidents are linked to each other, and (b) that they are evidence of a 'continuing discriminatory state of affairs'. This will constitute 'an act extending over a period'. The leading case on this is Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686 , [2003] IRLR 96 at para 51-52 as referenced in the commentary in Harvey on Industrial Relations and Employment Law ("Harvey") at T para 118.01.

 

Unauthorised Deductions of Wages

67. The right not to suffer unauthorised deductions is contained in Article 45 of the 1996 Order which provides as follows:

 

"45.-(1) An employer shall not make a deduction from wages of a worker employed by him unless-

 

(a)    the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

 

(b)    the worker has previously signified in writing his agreement or consent to the making of the deduction.

 

 

(2) In this Article " relevant provision ", in relation to a worker's contract, means a provision of the contract comprised-

 

(a)        in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

 

(b)        in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

 

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

 

(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

 

(5) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

 

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

 

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting " wages " within the meaning of this Part is not to be subject to a deduction at the instance of the employer".

 

68. The time limit for such claims is set out in Article 55 of the same order and is as follows:

 

"(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with-”

 

(a)        in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

 

................

 

(3) Where a complaint is brought under this Article in respect of -”

 

(a)        a series of deductions or payments, or

 

(b)        a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates, the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

 

(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable."

 

Breach of Contract Claims

 

69. The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 enables a Tribunal to entertain claims for breach of contract where the contract of employment has ended. Article 3(c) provides as follows:-

 

"3(c) Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if -

 

(a)        The claim is one to which Article 57(2) of the No.2 Order [Article 5(2) of the Industrial Tribunals (NI) Order 1996] applies and in respect of which a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action;

 

(b)        The claim is not one to which Article 5 applies; and

 

(c)        the claim arises or is outstanding on the termination of the employee's employment."

 

Contracts for Transfer of Shares

 

70. Section 14 of the Companies Clauses Consolidation Act 1845 provides that transfer of shares by deed must be duly stamped.

 

"14. Subject to the regulations herein or in the special Act contained, every shareholder may sell and transfer all or any of his shares in the undertaking, or all or any part of his interest in the capital stock of the company, in case such shares shall, under the provision herein-after contained, be consolidated into capital stock; and every such transfer shall be by deed duly stamped, in which the consideration shall be truly stated; and such deed may be according to the form in the schedule (B.) to this Act annexed, or to the like effect.

 

Conclusions

 

General

 

71. A number of matters stand out. Firstly, the claimant has a propensity to give partial accounts of the various incidents that he was involved in usually omitting aspects which portrayed him in a poor light. Secondly, the claimant is vague about the dates on which incidents allegedly occurred. Thirdly, it is clear that the claimant has a tendency to flare up, misbehave, then calm down and apologise for his behaviour. Fourthly, Mr Wilson was content to benefit from the claimant's efforts and unsolicited interest free loans without feeling any compunction to agree to the claimant's requests for an improved financial arrangement in the form of a share of the profits or a share in the business. Fifthly, we were impressed by the manner in which Mrs Halliday and Mr Turkington gave their evidence. Mrs Halliday struck us as a very impressive and straightforward witness who gave as good as she got in her interaction with the claimant. Mr Turkington gave a very forthright and believable evidence. Sixthly, the tribunal had the benefit of CCTV footage which paints the claimant in a bad light.

 

Constructive Dismissal

 

72. In his submissions, to the Tribunal, Mr Doherty drew attention to case law in relation to retractions of resignations as set out in Harvey Division D1
paragraph 544 above which is to the effect that a resignation once tendered cannot be unilaterally withdrawn. Thus Mr Doherty submitted that the claimant was not entitled to revoke his resignation and Mr Wilson acted entirely within his rights in accepting the resignation letter and not entertaining the claimant's attempt to revoke it. Mr Doherty also pointed out that exceptions to this rule typically involve ambiguous language but can also involve a heat of the moment resignation as set out in Martin (Appellant) v Yeoman Aggregates Ltd (Respondents) - [1983] IRLR 49 in which it was held that an employee should be given the opportunity of recanting from words spoken in the heat of the moment. However, as Mr Doherty further submitted the present case does not involve a heat of the moment resignation as the claimant took time to pen a resignation letter and according to Mr Bradley the claimant put thought into the decision. Nor was there any ambiguity in the resignation letter. None of this prevents the claimant from mounting a constructive dismissal case but it makes it immeasurably more difficult for him to succeed.

 

73. Both in his claim form and in his evidence to the tribunal the claimant did not explicitly state what events contributed to his decision to resign and claim constructive dismissal although the letter in which he attempted to revoke his resignation does identify Mr Wilson's alleged behaviour as the immediate cause. Given, however, that the claimant relied on a course of conduct we have compiled a list of events which may be said to have contributed to his decision. There are limits as to how far a tribunal can legitimately engage in such an exercise in the absence of clear evidence or submissions. The list that we have compiled is as follows:

 

(1)        Verbal Abuse by Mrs Halliday.

 

(2)        Failure to reprimand Mr Bradley and Mr Zugzzathy for theft of products.

 

(3)        Verbal Abuse by Mr Turkington over the clocking in incident.

 

(4)        Failure to reprimand Mr Turkington for his outbursts.

 

(5)        Verbal abuse, threats and sectarian abuse by Mr Turkington.

 

(6)        Disrespectful behaviour by Mr Guzaitis.

 

(7)        Sectarian abuse by Mr Linton.

 

(8)        Comments by fellow employees and Mr Turkington in particular about Blacks, Brazilians and Portuguese around the time of the Brexit vote.

 

(9)        Staff being hired without the claimant's knowledge or without consulting him - Ms Dunlop, Mrs Boyd.

 

(10)     Demotion by being removed from the respondent's management structure and having his role usurped by Mrs Boyd.

 

(11)     Mr Wilson's resentment about the claimant's refusal to lie to Mrs Wilson about the new member of staff in the Belfast area.

 

(12) Dealing with the Duck Company's financial problems and priority being given to the Duck Company work.

 

(13) Mr Wilson shouting at the claimant in front of fellow workers.

 

74. Most of these matters are disputed by the respondent or are contradicted by the CCTV footage. It is therefore necessary to look at each of these matters in turn and form a view as to what on the balance of probabilities occurred.

 

(1)        We are satisfied that Mrs Halliday was not abusive toward the claimant. On the contrary the evidence that we have heard supports the view that the claimant abused Mrs Halliday.

 

(2)        Mr Wilson looked into the claimant's allegation that Mr Bradley and
Mr Zugzzathy had stolen products and was satisfied that that what had occurred was that, as authorised, products were purchased by them at a discounted price. Accordingly, there was no basis for the claimant's alleged concerns or for these employees to be reprimanded.

 

(3)        The clocking in incident with Mr Turkington occurred because the claimant exceeded his authority by raising this issue with Mr Turkington. Having viewed the CCTV footage we are satisfied that the accounts of the incident given by Mrs Halliday and Mr Turkington are more accurate than the claimant's account. It is also important to note that Mr Wilson viewed the CCTV coverage himself and on this basis warned the claimant about his behaviour and the claimant later apologised for his behaviour. The CCTV coverage does not show Mr Turkington threatening the claimant with a boning knife but rather unwisely it might be said engaging in an argument and gesticulating with a boning knife in his hand.

 

(4)        We are not satisfied that Mr Turkington engaged in any outbursts of the nature described by the claimant. Having reviewed the evidence carefully we are satisfied that only one incident in the boning hall. This was reported to Mr Wilson and as he, having viewed the CCTV footage, was satisfied with Mr Turkington's behaviour the matter of a reprimand does not arise.

 

(5)        We are not satisfied that Mr Turkington was guilty of verbal abuse, threats or sectarian abuse against the claimant.

 

(6)        While the claimant may have perceived Mr Guzaitis' behaviour to have been disrespectful towards him this does not give rise to any actionable complaint even if it is true.

 

(7)        We have found no evidence of sectarian abuse of the claimant by Mr Linton.

 

(8)        While it is possible that comments may have been made by the respondent's employees about Blacks, Brazilians and Portuguese around the time of the Brexit vote it is difficult to see what their impact would have been on the claimant's case of constructive dismissal.

 

(9)        It is plainly correct that the claimant was not consulted on the recruitment of Ms Dunlop or Mrs Boyd. This is not surprising however as the hiring of staff was clearly part of Mr Wilson's job and out with the claimant's duties.

 

(10)     Nor are we persuaded that there is any basis for the suggestion that the claimant was demoted. There was no change in the respondent's management structure and the claimant remained the respondent's Sales Manager throughout his employment. While the claimant may not have welcomed Mrs Boyd's arrival there is no evidence that his role was usurped by her. While he was obviously an important and valuable member of staff his job was in sales rather than management and we prefer to place reliance on the evidence of his employer, Mr Wilson, rather than the claimant's colleague Mr Bradley, who seems to have a different and incorrect view of the matter.

 

(11)     In a small business where personal relationships were clearly important it is understandable that an intermingling personal and employment issues may occur. The tribunal is not however in a position to and does not need to make any findings about the personal lives of the witnesses. Either Mr Wilson behaved badly towards the claimant or he did not. We are not satisfied that Mr Wilson did behave in the manner alleged by the claimant and accordingly the question of what may have motivated him does not arise.

 

(12)     The claimant clearly felt excluded from the Duck Company business but as an employee or sales manager level it should not have been an issue for him. Any financial problems that the Duck Company had and any priority accorded to the Duck Company work ought to have been of concern to the claimant.

 

(13)     We have found no evidence to support the claim that Mr Wilson shouted at the claimant in front of fellow workers. He claimed that this occurred 4 to 5 times daily in the run up to his resignation. Mr Doherty submitted that the claimant's account of the alleged shouting was vague and lacking in detail. It is also of significance that Mr Bradley who gave evidence for the claimant made no mention of such abuse. Mr Wilson did accept that he raised his voice to the claimant on 4 August 2016 but this was after the claimant had resigned his position. We are not satisfied that Mr Wilson shouted at the claimant.

 

75. Very few of these matters withstand close scrutiny but the fundamental problem for the claimant and which undermines his case is that the contents of his letter of resignation gave no reasons for leaving as one might expect it to do in case of constructive dismissal. It makes no reference to any problems that he had at work and surprisingly emphasised the claimant's desire to remain on friendly terms with Mr and Mrs Wilson.

 

76. The claimant's subsequent letter revoking his resignation was not accepted by the respondent. However, in contrast to the resignation letter it did point towards the cause of his resignation namely Mr Wilson's behaviour towards him and as the revocation letter was written shortly after the resignation letter we can take the reasons given in it for resigning into account. The revocation letter is not entirely coherent but it seems clear from it that the claimant is alleging that he resigned because of Mr Wilson's recent behaviour towards him which included shouting and screaming at him, running down the hall and waving his hands and fists at him. There is no reference to any previous behaviour by Mr Wilson or anyone else. Furthermore, there is no sense of a pattern of behaviour on the part of the respondent that might have undermined the duty of confidence and trust or which would constitute a breach of contract. Nor does the claimant suggest that his resignation was prompted by demotion or any failure to pay monies due to him.

 

77. As observed by Mr Doherty the claimant in his closing submissions makes the rather self-defeating case that there was no good reason for him to resign given how much he had put into building the respondent's business. This undermines the claimant's case that he was forced to resign as does the attempted retraction of his resignation. It seems to us that the claimant decided to resign in haste and then recanted.

 

78. The matters of which the claimant complains occurred over several years and do not support his claim of constructive dismissal. As Mr Doherty correctly points out it is for the claimant to prove the reason for resigning and it is not up to the respondent to advance one. Mr Doherty did however put forward two possible reasons - (i) Upset at being the subject of an investigation as a result of Mrs Halliday's grievance and (ii) the failure by the respondent to involve him in the Fresh Duck Company business which was the last matter that the claimant mentioned in his statement and thus possibly a significant matter. We accept Mr Doherty's submission that neither could constitute a breach of contract.

 

79. Nor is there any last straw in the sense of an event or occurrence which added something when taken together with earlier conduct. The claimant's evidence about an argument with Mr Wilson on the day of his resignation is vague in the extreme and is denied by Mr Wilson although he did admit to raising his voice to the claimant some days later on 4 August 2016. Having observed the claimant giving evidence we can understand how this might have been necessary. In any event if an argument occurred it took place after the claimant had resigned therefore does not assist his constructive dismissal claim as held in Gaelic Oil Co Ltd v Hamilton [1977] IRLR 27.

 

80. Finally, under this heading we accept Mr Doherty's submission that this was not a heat of the moment resignation but rather a matter that the claimant thought about before penning his letter of resignation. Mr Bradley's evidence that the claimant put thought into the matter supports this view. Thus the respondent was under no obligation to permit the claimant to retract his resignation.

 

Breach of Contract

 

81. In order to succeed in a claim in respect of an alleged share agreement the claimant would have to satisfy us that the matter fell properly within our jurisdiction and if it did that he was in a position to prove his case. The Industrial Tribunals and the Fair Employment Tribunal are creatures of statute and can only adjudicate upon such matters as are prescribed by their governing legislation. The most that can be said for this head of claim is that it potentially falls within our breach of contract jurisdiction. If it does it is clearly out of time as our jurisdiction to hear breach of contract claims is limited to those that arise or are outstanding on termination of employment. No claim of this nature could plausibly be thought to be subsisting in the present case as it clearly neither arose nor was outstanding on the termination of the claimant's employment . We are not satisfied that there was any such agreement and even if there was it would fall foul of the relevant statutory provision namely section 14 of the Companies Clauses Consolidation Act 1845 and thus requires a duly stamped deed of which there is no evidence in the present case.

 

Unlawful Deduction of Wages

 

82. We are extremely doubtful that it is legitimate to treat the alleged failure to pay the

claimant a share of the profits as an unlawful deduction from wages. We would also have expected such an agreement only to cover the sales generated by the claimant rather than the business' overall profit. It is common case that there was no written agreement. Nor is there any specific evidence as to when or where it was verbally agreed and Mr Wilson denied that there was either a verbal or written agreement. Mr Wilson considered that the claimant was well rewarded for his efforts by being paid the going rate of £500 per week. In view of the claimant's generosity in lending the business £41,500 we are not surprised by Mr Wilson's gift of £5,000 for a new bathroom but this does not assist the claimant's case that he was entitled to additional remuneration. Having considered the evidence that is available we are satisfied that there was neither an oral nor a written agreement to make any additional payment to the claimant on a profit sharing or commission basis.

 

Holiday Pay

 

83. The claimant alleged that he was owed £500.00 holiday money but accepted that he was in fact paid 4 weeks holiday pay by Mrs Wilson. It is clear that the claimant is not owed any holiday pay. Given that the claimant also accepted that that the respondent's holiday year ran from January to December and that his last day of work was 5 August 2016 his actual entitlement was 3.34 weeks. Accordingly, the claimant received payment of more than his entitlement and there is no basis whatsoever for his claim in this regard.

 

Discrimination on racial grounds

 

Whether complaint is out of time

 

84. The claimant did not provide specific dates in respect of the incidents of racial discrimination and harassment of which he complained. It would appear from the claimant's evidence that these incidents are alleged to have occurred around the time of the EU Referendum namely 23 June 2016 or as the claimant put it in reply to a Request for Additional Information - "up to and around the Brexit vote". As the claimant's claim was lodged on 28 October 2016 the claim would appear to have been made approximately 5 weeks are out of time. The tribunal can only grant an extension of time if it is just and equitable to do so and the claimant has advanced no basis for considering an extension of time. However, we are conscious that in a broad sense matters only came to a head when the claimant resigned on 28 July 2016 and it would in our view be unfair to the claimant to refuse to extend time given that he lodged his claim exactly 3 months from the date of his resignation. We therefore consider that it is just and equitable to extend time in respect of the incidents that are alleged to have occurred around the time of the EU Referendum.

 

85. The complaint about Mr Linton dates back to July 2015 at the very least and is well out of time. The claimant has advanced no basis for considering an extension of time. We do not see how it could be regarded as forming part of an act extending over a period as envisaged in the leading case of Hendricks v Metropolitan Police Commissioner. Moreover it has no link to the timeframe for bringing a complaint of this nature. As Mr Doherty points out Mr Linton left the respondent's employment approximately two years previously and no complaint was made in respect of his alleged behaviour prior to the filing of the claimant's claim form. In these circumstances it would not be just and equitable to extend time in respect of the allegations made against Mr Linton.

 

86. The claimant did not allege that Mr Wilson's abuse of him that preceded his resignation had any discriminatory content or motivation.

 

Substantive Issue

 

87. The claimant's case against the respondent is one of direct discrimination. We accept Mr Wilson's evidence that the workforce was diverse. It is clear from the identities of the respondent's witnesses and others referred to in the evidence that the respondent employed a number of Eastern Europeans. We also accept Mr Wilson's evidence that there had never been any problems in the workplace and that no complaints were made to management by the claimant or anyone else. However, we would be surprised if no comments were ever passed about the racial make-up of the country particularly at a time when the EU Referendum and its outworking was a matter of considerable public debate. It is possible that comments may have been made by employees about Blacks, Brazilians and Portuguese around the time of the Brexit vote. While this may be said to demonstrate a propensity to comment on matters of race it has no conceivable bearing on the specific claim of discrimination on racial grounds put forward by the claimant. This aspect of the claimant's claim would appear to potentially relate to the Brexit remarks and comments about people down South. Again none of these incidents were reported by the claimant or anyone else to his employer and no grievance of any kind was made. Furthermore Mrs Halliday gave evidence that on one occasion the claimant himself brought up the subject of Brexit with her when he made the comment - "yous ones and your Brexit" and went on to say how he had heard on some political show that the pound and the euro were going to be equal by the end of 2016. We do not seek to criticise the claimant for making these comments which do not in themselves signify any inappropriate behaviour on his part.

 

88. As explained by the Court of Appeal in Madarassy in its endorsement of Laing the burden rests on the claimant to satisfy the tribunal, after a consideration of all the facts, that a prima facie case exists sufficient to require an explanation. We are not satisfied that the claimant has established a prima facie case that he was discriminated against on racial grounds. This finding is sufficient in itself to dispose of the aspect of the racial discrimination element of the claim. We agree with Elias J's observation in  Laing that "it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all".

 

 

 

 

Discrimination on the grounds of religious belief or political opinion

 

Whether complaint is out of time

 

89. The incidents involving Mr Turkington can best be dated with reference to the CCTV footage and date back to 20 January 2015 and 30 September 2015. These incidents are therefore substantially out of time.

 

90. The claimant has advanced no basis for considering an extension of time. Nor do we consider that these matters are capable of constituting 'an act extending over a period' as envisaged in the leading case of Hendricks v Metropolitan Police Commissioner. Moreover it has no link to the timeframe for bringing a complaint of this nature. We are therefore not satisfied that it would be just and equitable to extend time to allow the claimant to pursue this aspect of his claim. However, having heard extensive evidence about the matter and given the serious nature of the allegations we have decided that we ought to examine their merits in any event.

 

91. As noted above the claimant did not allege that abuse of him by Mr Wilson that preceded his resignation had any discriminatory content or motivation. The claimant did belatedly seek to contend that the respondent subjected him to less favourable treatment on the grounds of religious belief or political opinion by moving him to a different office following the incident on 20 July 2016 with Mrs Halliday. Given that the claimant's claim form was lodged in the tribunal office on 28 October 2016 this complaint is only a few days out of time at most and we consider that it would be just and equitable to extend time in respect of it

 

Substantive Issue

 

92. The claimant's most serious allegations were made against Mr Turkington as set out in paragraph 15 above and relate to events in and around 20 January 2015. We consider that these allegations are devoid of credibility. The available CCTV footage of a single incident offers no support to the claimant's version of events. It shows the claimant pushing Mr Turkington and being restrained by Mr Berzins. Mr Turkington denies making the comments attributed to him and Mrs Halliday whom the claimant says was present in the hallway when the comments were allegedly made heard anything inappropriate being said. Nor did the claimant's own witness Mr Bradley hear any inappropriate comments. The claimant did not report these very serious matters to his employer or to the police. Mr Wilson did view the CCTV footage of the incident and considered that it supported Mr Turkington's version of events and noted that the claimant rather than fleeing to the safety of the office was shepherded out of the boning hall by Mr Berzins. Mr Wilson interviewed the claimant and Mr Turkington. The claimant did not mention any threats being made to him of a sectarian nature and told Mr Wilson that he should sack him as he had struck Mr Turkington. Mr Wilson decided to give the claimant a verbal warning about his behaviour and told him to control his temper . In view of this outcome it is perhaps less surprising that the claimant did not contact the police about the matter. It also emerged from the claimant's cross-examination that he was quite prepared to contact the police over a much lesser matter namely an alleged slander of him. The claimant also continued to work with Mr Turkington after the alleged incidents without any further rancour and moreover felt able to apologise to him in the aftermath of the clocking in incident on 30 September 2015. In our view the claimant has not made out his case in this respect and we are not satisfied that it occurred as alleged by him or at all.

 

93. Turning to the dispute about clocking in on 30 September 2015 there was no suggestion that this argument partook of or was motivated by any discriminatory motive. It was simply a dispute between the claimant and Mr Turkington about clocking in where each gave as good as they got.

 

94. With regard to the belated suggestion by the claimant that he was less favourably treated in comparison with Mrs Halliday we are satisfied that there is no legitimate basis for the claimant seeking to make use of Mrs Halliday as a comparator. No complaint was ever made about her behaviour and the respondent's decision to locate the claimant and Mrs Halliday in separate offices following the filing of her grievance was an entirely sensible management decision that did not impact on the claimant's duties in any meaningful way.

 

95. Again applying the approach of the courts in Madarassy and Laing we are not satisfied that the claimant has established a prima facie case that he was discriminated against on the grounds of religious belief or political opinion.

 

Harassment

 

96. We have also considered whether the claimant has made out a prima facie case of harassment either under Article 4A of the RRO or Article 3 of FETO. Having examined essentially the same evidence as discussed above through this prism we are not satisfied that the claimant has done so. We are not satisfied that the claimant has been subjected to harassment under either piece of legislation.

 

97. In conclusion we are entirely satisfied that the claimant has failed to make out his case either in terms of discrimination on the grounds of religious belief or political opinion or harassment on racial or political/religious grounds. In addition, some of the discrimination complaints made by the claimant are out of time.

 

98. The claimant's claim is therefore dismissed in its entirety.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 3-7 July 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: