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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Foster v Royal Mail & Anor [2002] NIIT 2832_00 (10 December 2002)
URL: http://www.bailii.org/nie/cases/NIIT/2002/2832_00.html
Cite as: [2002] NIIT 2832_, [2002] NIIT 2832_00
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- The applicant was employed as a higher grade postman sorting mail at the depot at the International Airport at Aldergrove. He complained he had been subjected to harassment and discrimination on the grounds of his race.
- Following a transfer of Mr & Mrs Lockhart to Aldergrove the applicant complained that Mrs Lockhart had niggled and sniggered at him. She would make it difficult for him by walking in front of his and generally tried to wind him up to get him upset. At this stage he had no complaint against Mr Lockhart, however he was of the opinion that Mr Lockhart knew about the difficulties he was having with his wife.
- The applicant said that Mrs Lockhart continued to niggle him and she made him feel uncomfortable. This culminated in an incident on the night of 4/5 August. A different system of work was in operation as Mr Cunningham the supervisor had decided to change the method of sorting and this meant that the applicant was working beside Mrs Lockhart. He said that when he came to the last tray Mrs Lockhart tried to wrestle the tray from his hands. Mrs Lockharts' recollection was that it was the applicant who had tried to pull the tray from her hands. The tray contained letters that she was sorting and he had said to her at that time "what is your fucking problem" and she just tutted and turned away.
- Mr Hoey wrote to the applicant on 28 September 2000 asking for a detailed account of the alleged incident on 5 August 2000. The applicant did not respond directly to this request. However the tribunal were referred to an undated and unsigned letter directed to Mr Hoey which appears to have been received by the respondents on 18 October 2000. The applicant subsequently agreed in cross-examination that the letter had been drafted by his solicitors on the basis of what he had told them. In that letter he referred to the threats of Mr Lockhart and it was alleged that Mr Lockhart had shouted "you all think you can come over here and do what you want". He understood this to be racial abuse. He also alleged that Mr Lockhart had called him a Paki which he 'heard clearly'.
- The tribunal were referred to notes of an interview meeting with the applicant which initially was recorded as being held on 5 September 2000. The applicant in his evidence recalled a meeting on 5 September 2000 at Mallusk. Mr Hoey in his evidence also made references to this meeting and said it was the first occasion he became aware of the complaint of racial abuse. On enquiries from the tribunal, who had considered other documents which indicated that this meeting had in fact taken place on 18 October as to the correct date, it subsequently transpired that the meeting had taken place on 18 October. This then placed Mr Hoey's knowledge of the allegation of abuse not 5 September but 18 October 2000.
- It had been Mr Hoey's evidence that his knowledge of the racial allegation arose at a meeting now agreed as 18 October 2000. He had written to the applicant on 28 September 2000 seeking full details of the complaint but the applicant had never responded to this request. However the tribunal had before it a 13 page letter written on the applicant's behalf by his wife and sent to Mr Hamill, his trade union representative, about one week after the incident. No reason was given by the applicant as to why a copy of this letter was not sent to Mr Hoey as it clearly would have satisfied his request for full details.
- The investigation was delayed because the applicant was unwilling to attend for interview. However the investigation was carried out with interviews of Mr Evans, Mr Cunningham, Mr and Mrs Lockhart and eventually the applicant. Neither Mr Evans nor Mr Cunningham attended to give evidence but the tribunal had before it signed copies of the interview notes with both employees. As Mr Lockhart did not dispute that there had been threatening language used the most pertinent issue was whether the witnesses had heard Mr Lockhart calling the applicant a Paki.
- Mr Hoey's evidence was that on the night of 4/5 August the applicant complained that Mr Lockhart had threatened to kill him. His notes of the incident placed before the tribunal were not contemporaneous. However, he did record on the night comments made to him by the applicant and Mr Lockhart. At no time during the making of the initial complaint had the applicant said that Mr Lockhart had called him a Paki. Mr Hoey only became aware of the allegation at the first meeting with the applicant on 18 October 2000. It was at that meeting that Mr Hoey sought confirmation from the applicant that his full complaint was contained in his letter of 28 September. The applicant said he had more to add and was asked by Mr Hoey to let him have a fully detailed complaint, that document was never supplied. It was at that meeting that the applicant was given a copy of the harassment policy and was asked to identify the heading under which his complaint was being made and it was at that stage he mentioned racial abuse and the fact that the word Paki had been used. Mr Hoey expressed to him that such an allegation had not been made on the night of the incident. The applicant indicated that he had said to Mr Hoey as he left the office that he had to put up with this all his life and that is what he meant. Mr Hoey on the other hand said that he did not consider that this comment related to racial discrimination but related to the fact that he had been threatened. Formal interviews were conducted with the various employees on 29 March 2001. It is unfortunate that Mr Barrett, to whom the applicant said that he had made the comment that he had been subjected to racial abuse was not available to give evidence. It would appear that Mr Barrett had been involved in a car accident shortly after the incident and had left the employment of the respondents by the time the investigation was being carried out.
- Mr Hoey's decision following the investigation was that having considered all the evidence the complaint of racial discrimination was not upheld. He was satisfied that the applicant had not complained of racial discrimination at his first interview at the time of the incident. All other witnesses had been emphatic that they had never heard any remark such as Paki. He considered that the applicant had been given every opportunity to forward full details of his complaint and despite reminders from himself and Ms Blaney he had failed to do so. The applicant had failed to attend interviews especially arranged to suit his requirements. He also failed to attend the EHS appointments, management interviews and to return to work when arrangements had been made to facilitate him. His conclusion was that there was no evidence of racial harassment, however, he was satisfied that there was clear evidence that Mr Lockhart's conduct required disciplinary action and this did in fact take place.
- Submissions by Counsel - Ms Kelly
CASE REF: 02832/00
APPLICANT: Jonathan Foster
RESPONDENTS: 1. Royal Mail
2. Terry Lockhart
The unanimous decision of the tribunal is that the applicant had not been discriminated against on racial grounds and his application is dismissed.
Appearances:
The applicant was represented by Ms T Kelly, Barrister-at-Law, instructed by O'Rourke, McDonald & Tweed, Solicitors.
The first respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.
The second respondent was represented by Mr David Dunlop, Barrister-at-Law, instructed by Reid, Black & Co, Solicitors.
Prior to the incident that gave rise to the complaint the applicant had complained in March 2000 to Martin McGuckin, Manager about the behaviour of Mr & Mrs Lockhart. They had been sorting mail beside him and were giggling and messing about. He thought they were laughing at him and considered a chair had been pushed in his direction. As Health and Safety representative he considered it appropriate to complain about that horseplay. This incident was investigated by Mr McGuckin, who as soon as it was made, moved Mr Lockhart to other work. Mr McGuckin interviewed the Lockharts separately and was satisfied that the laughing had no relevance to the applicant and related to personal recollections by the Lockharts which they found amusing. He was also satisfied as to their explanation regarding the chair having been accidentally knocked over. The applicant indicated his satisfaction with the manner with which Mr McGuckin dealt with his complaint and was satisfied that that was the end of the matter. Mr McGuckin gave evidence before the tribunal that at the conclusion of his investigation he considered there had been no case to answer. However, the Lockharts were annoyed that the applicant had complained about them and Mrs Lockhart called him a tout and Mr Lockhart shouted at him for getting him told off by the manager.
After break-time when they continued to sort he heard Mr Lockhart ask his wife had there been anymore slobbering. The applicant asked the Lockharts were they talking about him. It is clear that a heated argument developed and concluded with Mr Lockhart threatening to kill the applicant if he did not stop annoying his wife or spitting on his car.
The applicant said that Mr Lockhart concluded by muttering "Paki" and said 'you all think you can come over here and do what you want'. He considered that this was a racial slur.
The applicant reported the incident to Mr Paul Barrett, supervisor, and told him that a serious remark about his colour had been made and he wished to speak to Mr Hoey, Manager. He spoke to Mr Hoey but did not tell him the full story because he was too upset. However, as he left Mr Hoey's office he said "I have had to put up with this all my life but I did not need to put up with it in the workplace".
Mr Hoey's recollection, which was recorded in notes made by him, was that after the complaint by the applicant about Mr Lockhart's threatening behaviour, he asked him to take a break as he would want to speak to him again. The applicant said the incident had been witnessed by Mr Cunningham and Mr Evans. Mr Hoey then spoke to Mr Cunningham and Mr Evans and subsequently got short statements from them. He then spoke to Mr Lockhart who confirmed that he had threatened the applicant and said that he would be prepared to carry it out. Mr Hoey said that in that case he would have to suspend Mr Lockhart and it was only at this point that Mr Lockhart calmed down and agreed that there would be no further trouble.
Mrs Lockhart was also interviewed at this stage and she complained of the applicant's campaign against her and how furious it had made her husband.
Mr Foster was then recalled to Mr Hoey's office and he was told that Mr Lockhart had given an assurance there would be no more trouble. The applicant asked for a few minutes break as he had got so worked up. Mr Hoey recalled that as the applicant went out the door of his office he said "he had been discriminated against all his life and would not put up with this". The applicant left work early saying that he was feeling ill and did not return to work for the respondents since that date.
Mr Hoey was recalled to explain the discrepancies as to dates. He could not give an explanation for the record of the meeting being dated 5 September 2000 other than it was an error on his part. He was referred to a letter dated 29 September 2000 sent to Head of Personnel by Messrs O'Rourke, McDonald & Tweed Solicitors acting for the applicant which clearly referred to Mr Lockhart verbally abusing, making threats of physical violence and also racially abusing the applicant. Mr Hoey said that he had not seen that letter until he was referred to it at the tribunal hearing.
Ms Blaney, Personnel Department, was recalled to give an explanation as to why the letter had never been passed to Mr Hoey who at that time was the investigating officer. Her explanation was that there had been a change in personnel at that time and she had responded to the solicitor on 3 October 2000 stating that the matter was currently being dealt with through the respondents' internal business procedures.
The tribunal were of the opinion that the investigating officer should have been made aware of the contents of this letter to enable him to properly investigate the complaint. Notwithstanding that observation the tribunal did not have a complaint from the applicant that the respondents had failed to follow their proper procedures.
In that detailed letter there are the references to verbally abusive language and when referring to that language it states 'I am nearly sure the muttered words were Paki or something very similar'. It also contained the words "I have lived with racial abuse all my life and especially in school I had to suffer both physical abuse and verbal torment and I do not wish to have to relive it now in the Royal Mail". The applicant said he had no response from Mr Hamill in spite of trying to contact him on several occasions.
Mr Evans said he had not heard the words being said. The argument lasted about 5 minutes and he said he did not know how it ended as he had gone to work in another part of the office although he felt it had possibly ended at that particular point.
Mr Cunningham was asked whether he had heard Mr Lockhart call the applicant a Paki and Mr Cunningham's response was 'definitely not'.
Both Mr & Mrs Lockhart at their interviews denied that the word Paki had been used.
The applicant's case is in relation to Article 3(1)(a) Race Relations (Northern Ireland) Order 1997:-
"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 person less favourably than he treats or would treat other persons;"
The applicant had been subjected to racial harassment by comments made by Mr Lockhart i.e. 'Paki' and 'you think you can come over here' etc and further she submitted that the threat to kill was racially motivated and on its own could amount to racial discrimination. She drew the tribunal's attention to the fact that the statements of Mr Evans and Mr Cunningham did suggest they may not have heard all of what was said.
She asked the tribunal to accept that the applicant was a more credible witness than Mr Lockhart.
The tribunal should note that because of Mr Hoey's failure to check, regarding the applicant's reference to the fact that he had been discriminated against all his life, whether it related to racial issues meant that the matter was not investigated as early as it should have been.
She addressed the tribunal on the matter of damages and referred to the following cases:-
Sheriff –v- Klyne Tugs Lowestoft [1999] IRLR 481
Tchoula –v- ICTS (UK) Limited [2000] ICR 119
She asked the tribunal to take into consideration the evidence of Sister Elder as to the severe depression suffered by the applicant and the poor prognosis.
Submissions by the Respondents
At the conclusion of the applicant's evidence both Mr D Dunlop and Mr J Dunlop made submissions to the tribunal that there had been no case to answer. These applications were refused by the tribunal who determined that it wished to hear evidence from the respondents. Both counsel wished to adopt the submissions made by each of them at that particular time and made further submissions at the conclusion of the hearing.
Mr J Dunlop for the first respondent.
On the applicant's evidence the case related to one single incident involving two alleged comments. He said the applicant's evidence was inherently inconsistent as his oral replies differed from documentary evidence and to the replies for Notice for Particulars. He drew the tribunal's attention to the evidence regarding the use of the word Paki.
In reply to the Notice for Particulars, the applicant, through his solicitors, stated 'muttered the word Paki'.
In his oral submission he said he 'clearly heard' the word spoken.
In the letter received by the respondents on 18 October which was agreed was sent by the applicant but had been drafted by his solicitors it states 'he then called me a Paki which I clearly heard'.
However, in the letter written by his wife on his behalf to Mr Hamill of the CWU just one week after the incident he states 'I am nearly sure the muttered words were Paki or something very similar'.
All these versions lead to the conclusion that the applicant is inconsistent in the giving of his evidence.
Mr J Dunlop drew the tribunal's attention to the applicant's doctor's medical notes which record that on the visit to the doctor following the incident, he complained that he had been threatened by a colleague at work, it made no reference to racial abuse.
Mr Dunlop also reminded the tribunal that the first respondent had a statutory defence available to it as contained in Article 32(5) Racial Relations (Northern Ireland) Order 1997. He submitted that there was sufficient evidence for the tribunal to accept that the first respondent had taken all reasonably practicable steps to prevent employees from racially discriminating against other employees.
He asked the tribunal to accept the evidence of Mr Evans and Mr Cunningham who had been identified by the applicant as credible witnesses and that both men had heard all the words that had been spoken and neither of them had heard the word Paki being used.
The burden of proof in race discrimination cases rest on the applicant to establish that he had been less favourably treated on the grounds of his race and the applicant had failed to do so and he asked the tribunal to dismiss the application.
Mr D Dunlop for the second respondent
He also referred to the discrepancies in the applicant's evidence. The applicant was the only person who had a recollection that the words had been spoken. However, he had failed to tell Mr Hoey that on 5 August, he failed to tell his GP on the following Monday when he visited him, and the two witnesses that he referred to Mr Hoey as having heard all what had happened did not hear these words being spoken.
He asked the tribunal to accept that no racial motivated language was used. The reason for the incident was a result of frustration by Mr Lockhart over the ongoing harassment of his wife by the applicant. He reminded the tribunal that the applicant himself had been disciplined over harassment by him and others of Mr Hanson McGuckin.
Findings by the tribunal
(1) The tribunal expressed dissatisfaction with two matters in relation to the investigation. Firstly, the failure of Mr Hoey to seek further clarification from the applicant as to what he meant when he said 'he had to put up with this sort of thing all his life' as he left the office. Mr Hoey's evidence was that at no time did he consider the applicant was talking about racial discrimination, he believed it was a reference to arguing and fighting. The tribunal are of the opinion that if clarification had been sought at that time the racial issue would have come to light much earlier, if that was what it referred to. Secondly, as already indicated in this decision the failure of Personnel to refer the solicitor's letter of 28 September 2000 to Mr Hoey, the investigating officer, is incomprehensible. In his evidence he said he had not seen the letter until the hearing.
(2) The tribunal considered the evidence regarding the use of the word Paki. The tribunal had before it the statements of Mr Evans and Mr Cunningham that they had not heard these words being spoken. Mr Evans was able to recall some of the heated statements that were made but did not hear the word Paki being spoken. We were asked by Ms Kelly to accept that perhaps Mr Evans was not present for the whole conversation, in that he had said he did not know how it ended as he had gone to work in another part of the building, although he also commented that he felt that it had possibly ended at that point. The statement further recorded that he could recall Mr Foster going to see Mr Hoey and that may have been the end. There was no evidence before the tribunal to show that Mr Evan's had not heard the whole argument. Mr Evans' note made shortly after the incident referred to specific language used by both men but he did not record any racial language.
Mr Cunningham's statement recorded shortly after the incident also clearly lays the blame on Mr Lockhart for the argument but no racial slur is recorded. In the formal interview notes he replies to a question as to whether the word Paki had been used 'definitely not'. Mr & Mrs Lockhart also denied that the word had been used.
The tribunal were unable to accept that at the conclusion of a heated argument which lasted for approximately five minutes during which Mr Lockhart shouted at the applicant, threatening abuse, clearly heard by the other employees that he suddenly concluded this by muttering or whispering Paki. The tribunal were of the opinion that the applicant's evidence regarding the use of the word 'Paki' was inconsistent. On two occasions he stated that the word was muttered yet when he had sought legal advice he had clearly heard it. The record of what was said, closest to the alleged use, was the applicant's letter to his trade union official where it stated 'I am nearly sure the muttered words were Paki or something very similar'. Clearly the applicant had doubts as to what was said. The weight of evidence before the tribunal was that racial language had not been used and the tribunal cannot accept the applicant's evidence on this matter.
(3) The tribunal then considered Ms Kelly's submission that the threat to kill by Mr Lockhart was racially motivated.
The tribunal accepts that the threats were real to the extent that Mr Lockhart was threatening violence to the applicant. Mr Lockhart accepted that he had used the words to 'kill' in the context of damage to his car but said that the word was used literally and he did not mean to kill but clearly intended bodily harm. The tribunal then considered what motivated the dislike between the applicant and Mr Lockhart. It was clear there was animosity between the Lockharts and the applicant. The applicant made a complaint regarding them laughing and giggling and a chair being pushed in his direction. This complaint had been investigated by Mr McGuckin who had accepted the Lockharts' explanation. However the Lockharts were furious with the applicant for reporting them and expressed their feelings to the applicant.
In June 2000 Mrs Lockhart made a formal complaint against the applicant claiming harassment of her by him. This ill will culminated on the night of 5 August and arose from complaints by Mrs Lockhart to her husband over the incident of the applicant pulling the sorting tray from her grasp and the allegation that the applicant had spat on the Lockharts' car.
There was no evidence before the tribunal to suggest that any previous behaviour had been attributable to racial harassment. The tribunal had been made aware that there was a lot of banter between staff and the applicant had been disciplined over his behaviour of Mr Hanson McGuckin. At no time had there been any suggestion that any of the behaviour of the employees had been related to racial discrimination and the applicant had not complained at the time of the chair incident that there was any racial involvement.
The tribunal were of the unanimous opinion that there was no evidence to suggest the threats made by Mr Lockhart were racially motivated. The incident arose following complaints by Mrs Lockhart to her husband about the continued harassment of her by the applicant and the allegation that the applicant had spat on their car and this led to Mr Lockhart losing his temper and threatening the applicant with physical violence.
The tribunal therefore concluded that the applicant had failed to demonstrate that he had been discriminated against on racial grounds and his application is therefore dismissed.
____________________________________
Date and place of hearing: 9-10 December 2002 and 9-10 January 2003, Belfast
Date decision recorded in register and issued to parties: