Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 9482/03

CLAIMANT: Andrew John McDowell

RESPONDENTS: 1. Sam Williams

2. Anne Breen

DECISION

The unanimous decision of the tribunal is that the claimant was not victimised by the respondents. The application is dismissed.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mr J Boyd

Mr M Grant

Appearances:

The claimant appeared in person.

The respondents were represented by Mr M. Wolfe, Barrister-at-Law, instructed by Departmental Solicitor's Department.

ISSUE

The issue for the tribunal was whether the claimant had been victimised by the respondents contrary to Section 55 of the Disability Discrimination Act 1995. This had been identified at the Case Management Conference held on 1 December 2004.

Contentions of the Parties

1. The claimant alleged that he had been victimised by the respondents in that he had not been provided with a copy of an internal Memorandum and the Terms and Conditions of his employment by the first named respondent until the requests had been referred to the Departmental Solicitor's Office. The claimant had then made a formal complaint of victimisation with his employer which was dealt with by the second named respondent. The claimant alleged that he had been further victimised because the second named respondent dismissed his complaint without a formal investigation.
2. For the respondents, Mr Wolfe argued that the claimant had been provided with the information requested within a reasonable time. The claimant had been informed of the reason for the reference to the Departmental Solicitor's Office but had not accepted that this was sufficient. It was submitted that the claimant had not suffered any detriment by the delay occasioned by the reference. With regard to the second named respondent, it was submitted that the complaint had been dealt with properly in accordance with the relevant policy and that the decision was correct.

FINDINGS OF FACT

3. (i) The tribunal was provided with an agreed bundle of documents. Witness

statements of the claimant and both respondents were included. The claimant and both respondents read their respective statements and were cross examined on the content.

(ii) The claimant was employed by the Roads Service which is an Agency within the Department for Regional Development. A fellow employee made a complaint about the claimant in or about early 2003. As a result a formal investigation was instigated by the Department.

(iii) The claimant was concerned with the way the investigation was being conducted and lodged proceedings in the tribunal alleging that he had been discriminated against on grounds of his disability. This was the 'protected act' relevant to these proceedings. These were subsequently withdrawn.

(iv) The original complaint against the claimant had also given rise to a police investigation during which the claimant was held in custody for a short time. He was also suspended from his employment for a period. During this time the claimant made several applications under Data Protection legislation and was engaged in lengthy correspondence with various officers in Roads Service and Department for Regional Development. He also made complaints about other members of staff.

(v) The level of correspondence from the claimant was such that officials within Roads Service sought legal advice from the Departmental Solicitor's Office. A meeting was held on 23 July 2003 with an official from the Departmental Solicitor's Office who advised that all correspondence from the claimant was to be forwarded to the Departmental Solicitor's Office for reply.

(vi) The tribunal accepted that the first named respondent, Mr Williams, and other members of staff, felt anxious replying to correspondence from the claimant without that guidance since they had difficulty assessing whether the correspondence was arising out of the ongoing litigation or not.

(vii) By letter dated 6 June 2003, the claimant had already been asked to direct all further correspondence to Departmental Solicitor's Office.

(viii) On 20 August 2003, the claimant requested a copy of an internal Memorandum and information relating to his annual report. This was followed on 28 August by a letter requesting a copy of his terms and conditions of employment. He was informed that both requests had been forwarded to Departmental Solicitor's Office.

(ix) By letter dated 15 September 2003, the Memorandum was provided along with the information relating to the annual report. On 17 September 2003, the claimant was informed that because of its bulk, it was impractical to supply staff with a full copy of their terms and conditions of employment but that he would be provided with the relevant sections as needed. This was standard procedure in the Civil Service.

(x) The claimant did not believe that it was necessary to refer this correspondence to Departmental Solicitor's Office and made a formal complaint of victimisation against the first named respondent to whom the requests had been made.

(xi) The complaint was considered initially by a Departmental Equal Opportunities Officer who recommended that no formal investigation be carried out. The decision not to formally investigate the complaint was then made by the second named respondent who so informed the claimant. The tribunal accepted her evidence that the decision was made on the basis that there was no evidence to support the complaint as the first named respondent had carried out his job appropriately and in accordance with Departmental Solicitor's Office advice.

(xii) The tribunal find that the complaint was dealt with in compliance with the requirements of the Departmental Equal Opportunities Complaints Procedures. The claimant went through the procedures during his cross-examination of the second named respondent. No deficiencies were noted by him to the tribunal.

STATUTORY PROVISION

4. In his Originating Application, the claimant stated that he believed that he had "… been subjected to ongoing acts of victimisation by Mr Williams and Mrs Breen. I contrd (sic) that I should not be subject to acts of discrimination as I an only exercising my rights under the Disability Discrimination Act 1995".

Section 55(1) of that Act provides that "… a person ("A") discriminates against another person ("B") if -

(a) he treats B less favourably than he treats or would other persons who

circumstances are the same as B's; and

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

The subsection sets out the protected acts which include the bringing of proceedings under the Act.

THE TRIBUNAL'S CONCLUSIONS

5. During the hearing, the tribunal read some of the letters written by the claimant to the respondents. It was quite clear from the tenor of the letters and the way in which he addressed the respondents during the hearing that the claimant had a very deep feeling of grievance. He accepted that he had written a large volume of letters to various members of Department for Regional Development and Road Service staff but insisted several times that it was all 'necessary' correspondence. However, he admitted some had been written to 'niggle' at times.

The tribunal find that given the volume and extent of the correspondence exchanged between the claimant, his managers and other staff, it was both proper and necessary, in all the circumstances, to refer correspondence from the claimant to their legal advisors for reply.

6. The claimant is disabled in that he has been suffering from clinical depression since about late 2002. No medical evidence was provided but the tribunal find that the claimant's condition was not helped by the annoyance, in his eyes for no good reason, of having the responses to his requests delayed by forwarding them to Departmental Solicitor's Office. However, we find that the respondents reason for doing so is clear, specific and reasonable and not because the claimant had previously lodged proceedings under the Disability Discrimination Act.
7. At the end of the oral evidence, Mr Wolfe made a submission to the tribunal in which he referred to the decision of the House of Lords in Chief Constable of West Yorkshire Police -v- Khan [2001] UKHL 48. This case included an allegation of victimisation albeit under the Race Relations legislation. The case provides advice as to the test to be applied in such cases. This will require the tribunal to be satisfied that the claimant had been treated less favourably 'by reason that' he has done the protected act.
8. In this case, the tribunal were satisfied that the reason why the first named respondent had referred the claimant's requests to the Departmental Solicitor's Office was because he was following the advice he had been given by his legal advisor. With regard to the second named respondent, the tribunal find that she made her decision in accordance with Departmental procedures. There was no evidence that either respondent had acted in the way they did 'by reason of' the protected act.
9. It was also apparent to the tribunal that the claimant's interpretation of the basis of his case had been mistaken in certain very significant respects, not least of which was his view as to the nature of tribunal proceedings. The final paragraph of his witness statement is as follows:-

"Throughout the period in question I repeatedly requested confirmation as to why my requests were being sent to the Department Solicitor's Office. I was instructed that this was due to ongoing litigation. I pointed out to the Department that Industrial Tribunals are not litigation rather they are an alternative dispute resolution method in order to avoid litigation".

10. As stated earlier, the claimant demonstrated to the tribunal the strength of his grievance with the Department for Regional Development and its officers. The claimant informed the tribunal that he had studied the relevant literature and had taken legal advice but he was still quite mistaken in relation to important elements of the case he sought to prove.

Chairman:

Date and place of hearing: 19 September 2005, Belfast.

Date decision recorded in register and issued to parties: