Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 1078/03

CLAIMANT: Tony Meenan

RESPONDENT: Fountain Street Community Development Association

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and that he was not victimised contrary to Art 55 of the Disability Discrimination Act 1995 and accordingly his claims are dismissed.

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mrs J Flanagan instructed by John Fahy & Co Solicitors.

1. The issues for the tribunal were:-

Was the claimant constructively dismissed by the Respondent and was he

victimised contrary to Article 55 of the Disability Discrimination Act 1995?

2. The Tribunal considered the originating application, the notice of appearance, the oral evidence of the claimant and the witnesses for the Respondent and the agreed bundle of documentation prepared by the Respondent.

Findings of Fact

3. The Claimant, Tony Meenan was employed by the Respondent, the Fountain Street Community Development Association, as Project Co-ordinator of the Strabane Community Drugs and Alcohol Project, a subsidiary of the respondent association from in or about October 1999. The Claimant was line managed by Gina Devine, the chairperson of the committee of the Respondent Association. He prepared regular reports on the work of the project for the management committee, which is comprised of voluntary members from the community. There is an executive committee made up of the officers of the management committee.
4. Vacancies arose for a temporary full–time position of Youth Drugs Team Leader, a temporary full-time position initially for six months until the end of March 2003, although funding was in place until at least the end of March 2004 and a Community Outreach Worker post which was a part-time position for three years.
5. The Claimant had responsibility for recruitment of staff to the project and had drawn up and placed the advertisement for the posts. He devised the questions to be asked at interview. He would normally have been involved in the short listing and interview of candidates. He withdrew from the short listing exercise and interviews for the post of Youth Drugs Team Leader due to a conflict of interest which had arisen when his partner, Ms Johansson applied for the post. She was subsequently short listed for interview.
6. On the 23^rd October 2002, interviews were held for the position of Youth Drugs Team Leader and for the other post. The interview panel was chaired by Mr Thomas Brogan, who at the time was education Co-ordinator, with the other members of the interviewing panel being Ms Teresa Devine, as a representative of the committee and Mary Cunningham, an independent member from the Training and Employment Agency.
7. The Claimant was informed after the interviews that Ms Johansson had not been successful. Another candidate, Mr Robert McCrea had applied and was interviewed for both posts. The claimant was informed that Mr McCrea had scored more highly in the interview than Ms Johansson and that the interview panel members felt that Ms Johansson was very "unapproachable" and therefore unsuitable for the post of Youth Drugs Team Leader. She was not made a reserve candidate. Mr McCrea was also successful at interview for the other position. The claimant read the notes made by the interview panel for feedback purposes and considered that there were anomalies calling into question the propriety of the interviews. The Claimant noted that the score cards which were returned to him all expressed the view that Ms Johansson was unapproachable. The claimant told the tribunal that he suspected that this was because Ms Johansson has facial scarring and that he considers that this may be a disability within the meaning of the Disability Discrimination Act 1995.
8. The following day the Claimant approached Mr Brogan for clarification as to the reason why Ms Johansson had been unsuccessful and why she was considered to be unapproachable. Mr Brogan told the Claimant that this was the decision of the panel and "that was the reason for it." The Claimant was unhappy with this response. The Claimant was instructed by Mr Brogan to contact Mr McCrea to offer him both posts. The Claimant telephoned Mr McCrea on the 24^th October 2002 and sent a letter to him on that date asking him to specify what job he was taking. Mr McCrea accepted the position of Youth Drugs Team Leader.
9. On 25^th October 2002, he was asked by Ms Johansson to provide her with feedback in relation to the interviews and the reasons why she had been unsuccessful. The Claimant informed her that Mr McCrea had scored more highly and the interview panel found her unapproachable. Ms Johansson complained verbally to the Claimant about approachability being used as a criterion for selection and sought clarification as to what this meant.
10. The claimant then sought advice from the Equality Commission for Northern Ireland and told the tribunal that he was advised that in the circumstances described the appointment should not proceed.
11. On the 7^th November 2002, the claimant asked Gina Devine if he could have a word with her. She was in a hurry because she had children waiting in the car. He told her that it would only take a minute and he informed her of his concerns about approachability being used as selection criterion and that he had sought advice from the Equality Commission for Northern Ireland. He suggested that there had been a breach of the provisions of the DDA and advised Ms Devine that he was trying to talk to Ms Johansson in order to avoid her making a formal complaint of disability discrimination. The claimant informed Ms Devine that he had not received a satisfactory clarification from the interview panel. She told the claimant that she did not think that the panel would have acted in a discriminatory manner but she informed the claimant that as she had little experience of these matters, she would seek advice and get back to him.
12. After reflecting on what the claimant had said Ms Devine felt it necessary to speak again with him to seek clarification in relation to a number of issues. She met with him again on the 15^th November 2002. She asked the claimant whether he was approaching the issue from a "personal or an employer point of view." The Claimant took exception to this. She asked the claimant to write to the interview panel about the matter and to put his concerns in writing to her. She informed him she would take no action until she received the claimant's concerns in writing. The claimant was unhappy that Ms Devine had asked him to write to the interview panel and to put his concerns in writing to her.
13. On the 27^th November 2002, the claimant hand delivered a letter dated the 25th November 2002 to Ms Devine, outlining his concerns, together with a report dated the 27^th November 2002 from the Claimant as Project Co-ordinator to the management committee. The report referred specifically to the non-appointment to Ms Johansson, both in the main body of the report under heading "Recruitment" and in detail in Appendix 1 of the report under Action Point on Recruitment. Ms Devine felt undermined in her position as chairman and the claimant's line manager by the report. She felt that the claimant had not given her an opportunity of addressing the matter.
14. Ms Devine sought advice from a colleague and decided to withhold the report from the meeting of the full committee on the 27th November 2002. She did however disclose it to the Executive Committee which met prior to the meeting of the full management committee. Ms Devine telephoned the claimant on the 27^th November 2002 to explain her decision to him. She also told him she would be seeking professional advice.
15. Ms Devine wrote to the claimant on the 5^th December 2002 advising him that on the basis of legal advice received that the issue relating to his concerns about the process of filling the post of Youth Drugs Team Leader would only be addressed if and when a formal complaint was received from Ms Johansson.
16. The claimant replied to Ms Devine by letter dated the 10^th November (sic) 2002 alleging that he had on three previous occasions pointed out that until an internal review of procedures was completed, he would have grave reservations about recruiting staff for two vacant positions and that he viewed this as deliberate and wilful neglect of the management committee function. He requested a meeting between himself and the respondent association's solicitor or alternatively an explanation as to why this would not be possible. He questioned the necessity of a formal complaint being made by Ms Johansson when he had already previously raised the issue. He requested clarification as to why his report had been held from the committee of the Respondent Association.
17. A formal complaint was made by Ms Johansson to the Respondent Association on

the 17^th December 2002 and she subsequently lodged a complaint of unlawful discrimination on grounds of disability and race with the Office of Industrial Tribunals and the Fair Employment Tribunal.

18. On the 2^nd January 2003, Ms Devine wrote to the claimant responding to the points raised in his letter of the 10^th December 2002 informing him that the Management Committee could not discuss details of Ms Johansson's complaint due to the conflict of interest and asking him to have no further contact with Ms Johansson in relation to her complaint while acting in his capacity as Project Manager. The respondent association disputed the claimant's contention that he had on at least three occasions sought an internal review of recruitment procedures and invited the claimant to meet with Management Committee in his role as Project Manager to review and possibility amend the policy and expressed hope that claimant would be able to contribute this process. The claimant's request to meet with the management committee's legal representative was refused on the basis of conflict of interest. The letter also addressed the issues raised by the claimant in relation to the request for formal complaint from Ms Johansson and the reasons why the report was presented to the general management committee on the 27^th November.
19. The claimant sent a letter dated the 6^th January 2003 tendering his resignation with effect from 31st January 2003. He worked his notice period. He wrote subsequently on the 17^th January 2003 stating the reasons for his resignation and responding to Miss Devine's letter of the 2^nd January 2002.

Decision

20. The Tribunal considered whether the claimant had been dismissed by the respondent as described by Article 127(c) of the Employment Rights (Northern Ireland) Order 1996. This provides that there is a dismissal where the employee terminates the contract under which he is employed (with or without notice) in circumstances where he is entitled to terminate it without notice by reason of the employer's conduct. In other words, was the claimant constructively dismissed? The principles of law relating to constructive dismissal are set out in the leading case of Western Excavating –v- Sharp (1978) IRLR 27. An employee is entitled to treat the contract of employment as terminated where the employer has breached an express or implied term of the contract to such an extent that there is evidence that the employer has committed a fundamental breach of contract. The tribunal considered the facts of the case and whether these indicated that there had been a fundamental breach by the respondent of the claimant's terms and conditions of contract.
21. The tribunal did not consider that Ms Devine had acted incorrectly or unreasonably on 15^th November 2002 in asking the Claimant to clarify his concerns by putting them in writing. The tribunal accepts that she was unclear about the nature of his concerns and the basis upon which the concerns were being raised by the claimant. The tribunal concluded that Ms Devine realised that there was a potential conflict of interest given the claimant's personal relationship with Ms Johansson. It was not unreasonable of her to raise this issue with the claimant and the tribunal does not accept that this undermined the claimant's role as project manager nor did it imply that the claimant's professionalism was put into question.
22. The tribunal accepts that it was inappropriate for Ms Devine to suggest to the claimant that he should approach the interview panel again, given the conflict of interest but does not consider that on its own, this amounted to a breach of contract. It was not unreasonable for the respondent to advise the claimant that it was only prepared to deal with issues concerning the non appointment of Ms Johansson until a complaint was raised directly by the candidate herself. The tribunal considered the correspondence of the claimant to the respondent and the contents of his report to the management committee and noted that the claimant's concerns about recruitment were expressed solely in the context of the individual circumstances of Ms Johansson's case. The tribunal considers that it would have been improper for the respondent to act in the absence of a complaint from the individual concerned and for this reason consider that Ms Devine acted correctly in withholding the claimant's report from the full management committee.
23. The tribunal found that the claimant did not indicate that he had concerns relating to wider recruitment issues before his letter of 11^th December 2002. The tribunal noted that although it was made clear that the individual case would not be discussed with him, the respondent did issue an invitation to meet with the claimant to review recruitment policies and procedures, which is inconsistent with the claimant's assertion that his role was undermined and unsupported by the management committee.
24. Arrangements should have been made to ensure that the claimant did not have to provide feedback to his partner. However the tribunal took into account the claimant's evidence that he was experienced in recruitment matters and had received equal opportunities training. Also the claimant did not specify this as a complaint against the respondent. Having correctly stood down from the short listing and interviews for the post due to conflict of interest, it was the tribunal's view that the claimant should have removed himself from the post interview stage of the recruitment process for this particular post. The tribunal accepts that the claimant was genuinely aggrieved by his perception that the respondent was calling into question his motivation for raising a disability discrimination issue but found his approach to be inconsistent. The tribunal accepts evidence of the respondent's witnesses that the claimant had been at the very least, disappointed by the non appointment of his partner. The tribunal took into account that, apart from the non appointment issue, the claimant made no complaint about the respondent in relation to any other area of his work. The respondent's witnesses acknowledged the claimant's contribution to the work of the project and spoke about his abilities respectfully.
25. The tribunal found that the claimant did not prove on a balance of probabilities that there had been a fundamental breach of any term of the claimant's contract including the implied term relating to the relationship of trust and confidence. Therefore there was no constructive dismissal.
26. The tribunal considered the provisions of Article 55 of the Disability Discrimination Act 1995 which provides that "for the purposes of Part II or Part III a person(A) discriminates against another person (B) if

a. he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's and

b. he does so for a reason mentioned in subsection 2

(2) The reasons are that

c. B has

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act."

27. The tribunal found that the claimant had not been constructively dismissed. The tribunal then considered whether there was any other evidence of less favourable treatment of the claimant by the respondent. In his closing submissions to the tribunal the claimant referred to an instance in which he alleged, that in December 2002, the respondent withdrew an invitation to him to sit on an interview panel. The tribunal also noted this allegation in his letter to the respondent dated 17^th January 2003. However the tribunal does not accept this as evidence of either breach of contract or less favourable treatment as it noted details in the same letter of the claimant refusing the request of the respondent to oversee the recruitment of three other vacancies. The claimant also made a general allegation that he had been the subject of gossip after his resignation. The tribunal was unable to give weight to this due to lack of detail and the fact that it was not put to the respondent's witnesses in cross examination.
28. The tribunal was not satisfied on a balance of probabilities that the claimant had discharged the burden of proof on him in the first instance to prove that he has or would have been treated less favourably than a person who had not made an allegation that the respondent had contravened the Disability Discrimination Act 1995 and who had a conflict of interest. Therefore the tribunal decides that the claimant has not been victimised contrary to Article 55 of the 1995 Order.
29. The Tribunal therefore dismisses the Claimant's claims in their entirety.

Chairman:

Date and place of hearing: 6 May 2005 and 10 June 2005, Strabane.

Date decision recorded in register and issued to parties: