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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Madavo v Department of Agriculture and ... [2008] NIIT 173_06IT (23 June 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/173_06IT.html
Cite as: [2008] NIIT 173_06IT, [2008] NIIT 173_6IT
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- The claimant gave evidence on his own behalf. Evidence was given on behalf of the respondent by Ronnie McCandless, James Breen, Elaine Acheson, Robert Huey, Brendan McCartan, Colin Hart, Elaine Graham, Thomas Craig, and David Trelford. The witness statement of Michael Geddis was admitted into evidence without the appearance of Mr Geddis, as he was not available to give evidence on health grounds. Insofar as Mr Geddis's statement did not corroborate other evidence given by the other witnesses of the respondent, the tribunal assigned it a very low weight in valuing this evidence.
- In addition the tribunal had before it a booklet of agreed documents.
- Doctor Madavo claimed that he had been discriminated against on the grounds of his race, and had been harassed on the grounds of his race and victimised by reason of him bringing an earlier case for racial discrimination. The respondent denied these claims and contended that the claimant was fairly treated by line management who acted to manage a situation arising following a dispute in the workplace.
- The Race Relations (Northern Ireland) Order 1997 as amended by the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 and the provisions of Council Directive (2000/43/EC).
- The relevant provisions of the principal order are as follows:-
- The tribunal also had before it the case of McDonagh v Samuel John Hamilton Thom T/A the Royal Hotel [2007] NICA3.
- The claimant, Doctor Madavo, is employed by the respondent as an official veterinary surgeon based at WD Meats abattoir in Coleraine.
- He is an extremely well-qualified and highly-motivated person carrying out a responsible job within the respondent department.
- He is a person of Zimbabwean origin and his first language is Shona.
- The respondent divides its activities into the "Meat side" and "the Field side".
- In and around September 2005, a split management structure existed in respect of Ms Elaine Acheson, an administrative officer working with Doctor Madavo at WD Meats. Although she worked in a supportive role to Doctor Madavo, he was not her line manager. Ms Acheson was under the line management of Mr James Breen, the Field divisional veterinary officer based a short distance away in the divisional veterinary office in Coleraine. In essence, a Field administrative officer was supporting an official veterinary surgeon on the Meat side of the respondent's activities.
- Ms Acheson's countersigning officer was Mr Ronnie McCandless who was also based at the divisional veterinary office in Coleraine which is a short distance away from the premises of WD Meats. Mr Ronnie McCandless reported to Mr Breen.
- Although Ms Acheson was under the Field side command structure, that side's management supervision of her could be described as "remote". Members of Ms Acheson's line management did not visit WD Meats very often. Doctor Madavo remembered one visit from Mr McCandless in or around February-March 2006.
- The lairage is a part of the abattoir in which cattle are processed. Doctor Madavo and Ms Acheson both worked in the lairage at WD Meats, although Doctor Madavo also had an office in the main building of that compound.
- When Ms Acheson arrived in WD Meats, the respondent's position was that no established job description existed for her to work to. She was given basic training by the animal health and welfare inspectors (hereinafter referred to as "AHWIs"). When she was not in WD Meats, an AHWI covered her job. Doctor Madavo later found a document on the office computer which appeared to define the purpose of administrative support staff at WD Meats and their proposed duties. However the respondent's witnesses claimed to know nothing of this.
- Over time, Ms Acheson's job evolved and she took on more administrative tasks, at the request of persons acting in the official veterinary surgeon role. However, the AHWIs did not cover these tasks when filling in for her while she was on leave.
- On 21 September 2005 Doctor Madavo asked Ms Acheson to take on what he considered to be a relatively simple and minor task which was totalling numbers of animals on the pen cards in WD Meats. His intention was that this task was to act as a check for audit purposes on his own figures, as it had been commended as best practice by an earlier audit.
- Ms Acheson made it apparent that she was not happy about taking on the task. Doctor Madavo suggested she discuss the matter with her line management and she did so.
- Doctor Madavo also contacted Mr McCandless on the same day, saying that the totalling of the numbers on the pen cards was an administrative task and should be carried out by Ms Acheson. Mr McCandless said that this responsibility had not previously been carried out by her and that he did not have authority to decide procedures in a Meat plant. He transferred the call to Mr Breen, the Divisional Veterinary Officer.
- Mr Tom Coulter, who was on long-term sick leave at the time of the events which are the subject of Doctor Madavo's complaint, was, in his capacity as divisional veterinary officer on the Meat side, Doctor Madavo's line manager. Mr Breen indicated to Doctor Madavo that while it sounded like an administrative task, he did not have the right to tell Ms Acheson to do it.
- In his evidence to the tribunal, Mr Breen referred to a long-standing procedure whereby, if anything new cropped up, he would sit down and discuss it with Mr Tom Coulter who was his opposite number in Meat. He also said he had resource implications in mind – how much time would it take; what grade should it be done by; and who would pick it up in Ms Acheson's absence. There was no evidence to suggest that these considerations were put to Doctor Madavo and Mr Breen admitted that he did not ask for any information to be gathered to answer these questions either from Doctor Madavo or through Mr McCandless. Neither did he refer to the 1999 Staff Instruction in his dealings with Doctor Madavo. This instruction provided protocol on how to deal with communications between the Meat side and Field side of the Department and to set up a methodology for changes in procedure and new tasks. Instead, Mr Breen suggested that Doctor Madavo speak to Mr Robert Huey who was Mr Tom Coulter's line manager and a Senior Divisional Veterinary Officer. However, Mr Breen agreed with Doctor Madavo that it was an administrative task and it could be done by Ms Acheson but he said that he did not have the authority to authorise it as he did not have authority to change procedures in Meat plants. Mr Breen assumed that Doctor Madavo knew of this instruction. However, Doctor Madavo did not have a copy of this instruction and requested it from Mr Huey, subsequently receiving it by fax. Mr Huey told Dr Madavo at a meeting on 1 November 2005 that he did not know of its existence until directed to by Mr Breen.
- Mr Breen said in evidence that he did not know who was covering Mr Coulter's absence. Yet Ms Elaine Graham, who had previously been Mr Coulter's assistant, had been acting up into his role since the previous May and working in the same building. On the balance of probabilities, we believe it is more likely than not that Mr Breen did know on 21 September 2005, that Ms Graham was acting in Mr Tom Coulter's absence as Divisional Veterinary Officer.
- On 22 September 2005 Ms Acheson sent an email to Mr McCandless confirming her reservations about the new task.
- One of her key reservations was that if the total of the cards did not tally with Doctor Madavo's total, then was she responsible for errors? She also complained that she had taken on other tasks for Doctor Madavo which had then become her responsibility. She considered that she would end up taking on tasks within the remit of Doctor Madavo if he were allowed to tell her to take on this task.
- Doctor Madavo contacted Ms Graham on 22 September 2005 and explained the situation to her. She then spoke to Mr Huey, who tasked her to speak to Mr Breen. Mr Breen told her it was a matter for Mr Huey to address and that the duties of administrative officers in Meat plants should be looked at in general, so that a job description or a list of tasks could be drawn up to encompass their role. This meeting took place on 26 September 2005, but Mr Breen said he had no memory of it taking place. Ms Graham also spoke to Mr McCandless on 27 September 2005 to ascertain the views of Ms Acheson. Mr McCandless reiterated his view that a decision would have to come from further up the chain of command on this issue.
- On the balance of probabilities we consider it more likely than not that Doctor Madavo had an initial contact about the problem with Mr Huey on or about 22 September 2005, as he refers in his email of 30 September 2005 that he has "tried unsuccessfully to contact you for further discussion of the above matter".
- In the interim, Elaine Acheson carried out the totalling of the pen cards.
- Mr Huey went on leave from 30 September 2005 -17 October 2005.
- On 6 October 2005, there was again a problem with pen cards in WD Meats. The printer malfunctioned, and the pen cards came out mixed with some irrelevant material. As the dispute over the pen cards had not been resolved by management, Doctor Madavo did not consider he could ask Ms Acheson to sort out the cards from the irrelevant material. He attempted to telephone his line manager Elaine Graham but was not able to speak to her. Mr Huey was at this time on holidays. So he telephoned Brendan McCartan, a Senior Principal Veterinary Officer, but one who was outside his chain of command, requesting his help. When he rang Doctor Madavo back, Mr McCartan discussed the nature of the duties and spoke to Ms Acheson instructing her to carry out the task requested by Doctor Madavo. On the advice of Mr McCandless she did so under protest. Mr McCartan confirmed to Mr McCandless that he had instructed her to carry out the task. The importance of this situation was that if the pen cards were not identified and used, WD Meats could not put cattle through the kill line and the plant was being brought to a standstill. On 7 October 2005, Mr McCartan told Doctor Madavo that there was a communication problem and that it should have been a relatively simple task to persuade Ms Acheson to carry out the job of totalling the pen cards. Both were unhappy with the conversation with Mr McCartan and Doctor Madavo was annoyed that Mr McCartan had told him that there was a communication problem between him and Ms Acheson. He felt this was prejudiced and unjust and asked Ms Acheson if there was a problem with the way he communicated with her. She said no, there was not. Elaine Graham suggested drawing up a list of Ms Acheson tasks to agree them with Field management. Elaine Acheson volunteered to draw up the list and Ms Graham agreed saying that no one else would be in a better position to do it than Ms Acheson and Doctor Madavo. The list was received by email on 7 October 2005.
- On 10 October 2005, Ms Acheson told Mr Alan Coulson, the senior animal health and welfare inspector, that she was not coming in to work that day at WD Meats. She also telephoned her immediate line manager, Mr Acheson to confirm this.
- Mr Colin Hart, who was also a Senior Principal Veterinary Officer and part of Ms Acheson's line of management, happened to overhear Mr Coulson informing Mr Breen of Ms Acheson being absent on work stress. She said that she would not return until her situation in WD Meats was resolved. He instructed Mr Breen and Mr Acheson to telephone Ms Acheson at home and offer her the option of coming back to work, after some time off, at the Divisional Veterinary Office until matters could be resolved.
- Ms Acheson returned to work on 13 October 2005 at the divisional veterinary office in Coleraine. She continued her work drafting a list of her tasks.
- Mr Colin Hart's intention was to create a fairly prescriptive job profile, but allowing flexibility for the addition of new work, as he accepted that Official Veterinary Surgeons' support needs would change and evolve over time. His intention was that this list be applied service wide. This was partly in a response to the proposed change of administrative officer duties that was scheduled to come into force in 2006.
- Doctor Madavo was particularly concerned that there should be some flexibility in the task list to avoid a recurrence of what happened when the printer malfunctioned. Ms Graham shared that concern initially. The job description was initially circulated on 21 October 2005 and finally circulated in late November 2005. Doctor Madavo was adamant that such a list would not solve his particular problem. Both Doctor Madavo and Giovanni Borla (Mr Huey's assistant) considered that the list was too inflexible. Doctor Madavo and Mr Borla were the only two official veterinary surgeons to comment on the list.
- Doctor Madavo's concerns about the inflexibility of the list were not accepted by management, although Ms Graham shared them to some extent. The two lines of management did not consider that this over prescriptive list would cause any problems and decided that any extra administrative duties should be agreed with the Divisional Veterinary Office.
- Mr Hart offered a meeting with Doctor Madavo and Ms Acheson to discuss the list. Mr Hart felt that he could have emphasised the need for flexibility at a meeting with both parties. However, Doctor Madavo did not agree to meet with Mr Hart and Ms Acheson lest he be taken to have endorsed the list with which he did not agree. Mr Hart did not ensure that there was flexibility built into the list and made no attempt to advise Ms Acheson of the need for flexibility. In addition, Doctor Madavo felt the meeting would be inappropriate given the difference in rank.
- Ms Graham told Doctor Madavo on 18 November 2005 that Ms Acheson was returning to work at WD Meats on 21 November 2005. Ms Graham told Doctor Madavo that Ms Acheson would complete agreed tasks but that he had to telephone her if he wanted any additional tasks done by Ms Acheson. Doctor Madavo was not satisfied and indicated that he would be working with "his hands tied". He was concerned about the rigidity of the list and felt he could not ask Ms Acheson to do tasks not on the list.
- The tribunal noted that there was a strong management imperative to have Ms Acheson returned to work at WD Meats as soon as possible to release an AHWI to take up a job elsewhere on behalf of the respondent.
- When Ms Acheson returned to work at WD Meats, she explained that while she was happy to return to work, she considered that her relationship with Doctor Madavo had changed and the atmosphere at times was very tense. Although Mr Hart had envisaged the list as a Province-wide service improvement, Doctor Madavo contended as part of his claim that the list was only applied to him. We considered this and, were supported in our view that Doctor Madavo was quite right in his contention that the list only applied to him, by the evidence of Mr Huey. Mr Huey confirmed that Doctor Madavo was the only veterinary officer working to this list. The tribunal had sympathy for Doctor Madavo's contention that he was being singled out by the imposition of the list upon him and were supported in reaching this view by the evidence of Mr Huey which was that there was not a dispute anywhere else in the veterinary service and hence no need for this prescriptive list. His attitude to the list was that it was useful as a tool to threaten parties with its imposition if they could not resolve differences.
- The tribunal has noted that in the case of Linden Foods, another Meat plant cited by the respondent in which there was a similar type of issue, the parties were given the opportunity to resolve their differences without the list being imposed. No such opportunity was given in the situation in WD Meats.
- The communications issue - Doctor Madavo had a discussion with Mr McCartan concerning communications in the workplace. This took place at a time when Doctor Madavo was at a loss to understand the attitude of management of the respondent to what seemed to him to be a very routine simple issue. He felt he should have received a definitive answer about a simple question. When Mr McCartan referred to a difficulty in communication, this crystallised for Doctor Madavo the belief that this communications issue related back to the incident in 1999 where he was also accused of poor communication. Doctor Madavo felt very hurt about this and sought a meeting with Mr Thomas Craig of Equal Opportunities Branch in the department.
- Mr Craig arranged a meeting for preliminary purposes with Mr McCartan of which Doctor Madavo became aware. Mr McCartan and Mr Craig facilitated a meeting on the same day between them and Ms Graham and Doctor Madavo. At this meeting, the communications issue was discussed and Mr McCartan apologised for any hurt caused by his comments about communication, and Doctor Madavo accepted this in the meeting. However, it also appeared that Mr McCartan made reference to the previous case brought by Doctor Madavo in 1999 in which communication was an issue (the 1999 case). That case was settled without hearing in Doctor Madavo's favour.
- On 11 October 2005, Doctor Madavo contacted Mr Craig by e-mail to say that he was reflecting on what had been said at the meeting on 10 October 2005. On 12 October 2005, Doctor Madavo e-mailed Mr Craig stating that, whilst he accepted Mr McCartan's apology, he did not consider that his underlying concerns had been addressed.
- Doctor Madavo also sent a further e-mail to Mr Craig on 13 October 2005 expressing disappointment that his concerns did not appear to be taken seriously. This matter was passed to Mr Eamonn Dickson who was the head of personnel at that time. In a memorandum dated 10 November 2005, Mr Dickson wrote to Doctor Madavo asking him to meet with Ms Adela Ginn, the new equal opportunities officer, to further explain why he was not satisfied with the service received from equal opportunities section. Ms Adela Ginn eventually met with Doctor Madavo on 25 November 2005 and recorded his perception that he was being treated differently because of his race. She noted his distress and humiliation. Ms Adela Ginn had brief contact with Mr Michael Geddis, the deputy chief veterinary officer for Northern Ireland about whether Doctor Madavo could be accompanied by a friend to the meeting which had been arranged with him. Mr Geddis confirmed that this was acceptable. We have no knowledge concerning whether Doctor Madavo's condition and his underlying concerns were relayed to Mr Geddis.
- Doctor Madavo telephoned Mr Geddis on 18 October 2005 and expressed concern about how issues arising over the previous two to three weeks at WD Meats were being handled by line management. Mr Geddis told Doctor Madavo to put this in writing, which he did by way of a note dated 19 October 2005. The tribunal has noted that on 18 October 2005 an ad hoc meeting took place between Mr Hart, Mr McCartan, Mr Huey and Mr Geddis. This ad hoc meeting was convened at the request of Mr Hart. Mr Huey had just returned from his holiday and required to be briefed on the situation and Mr McCartan was aware of the involvement of equal opportunities section but did not mention it. Mr Hart wanted to brief the meeting on developments and what had been done to date in the case. One clear outcome of the meeting was that Mr Hart was to keep Mr Geddis informed of progress and, in particular, to advise him of the outcome of management's assessment of Doctor Madavo's conduct before any further action was taken. Doctor Madavo was not aware at this stage that he was being assessed by management. The tribunal observed that the only note of this meeting was a handwritten note by Mr Hart. The meeting only came to the attention of the tribunal by way of cross examination of Mr Hart. The other clear outcome of the meeting was that Mr Hart received confirmation that the list of tasks was an appropriate way to deal with the situation.
- Mr Geddis met Doctor Madavo on 21 November 2005 in response to his request for an urgent meeting because his issues had not been dealt with to his satisfaction. The meeting which took place on 21 November 2005 was in the presence of Mr Sean McGrade, who was head of Veterinary Service Corporate Services Branch, who acted as a note-taker. As a result of that meeting, Mr Geddis was to investigate a number of concerns raised by Doctor Madavo. In expressing the view in the meeting that "…. managers have to be allowed to manage and that, whilst they do not always get it right, they should not feel that they are unable to manage a situation for fear of being accused of discrimination", we find that the department is confirming our view that this is a significant indicator of the rationale of the respondent department in dealing with Doctor Madavo and his concerns.
- Mr Geddis again met with Doctor Madavo on 9 December, in the presence of Ms Heather Gould from Personnel Management branch, who was attending in the capacity of offering moral support to Doctor Madavo, and Mr Sean McGrade who was there to take a note of the main points. An appendix to the notes of this meeting recorded a finding by Mr Geddis that "the management investigation into the circumstances and communications issues surrounding the disputed task also concluded that you had acted correctly in your initial approaches to Elaine (Acheson) and your management". This is in stark contrast to the general tenor of the notes of the meeting that Doctor Madavo was not disadvantaged by the introduction of the activity list; the operational value of the task list did not require urgent resolution; that he appeared to accept the perception of management that Doctor Madavo in his recent comments to various managers was harassing them; and that there was no indication of bullying or harassment of Doctor Madavo by his manager.
- A letter confirming the position of Mr Geddis was sent to Doctor Madavo on 9 December 2005. Doctor Madavo was absent from work from 22 November 2005 to 9 January 2006 on sick leave. Doctor Madavo's perception of the actions of management was that he was less favourably treated than Ms Acheson and one of the examples of this treatment was that he was not allowed by management to relocate to another area of the respondent's activities until the problem was resolved.
- By a memorandum dated 1 March 2006 in response to Doctor Madavo's minute to Mr Geddis of 13 January 2006, Mr Geddis confirmed that Doctor Madavo's description of events leading to the formulation of the activity list was factually correct. However, he also continued to push for a meeting between Doctor Madavo, Mr Colin Hart and Ms Elaine Acheson to move the issue forward. The essence of this meeting was that a senior manager in the department was requiring Doctor Madavo to attend a meeting. The intended purpose of the meeting would be to clarify the intended application of the local task list and reach a common understanding of the expected degree of flexibility with respect to its application (as described in paragraph 3 of the 1999 Staff Instruction on communication between Meat and Field sides). All along, Doctor Madavo's position was that the task list did not allow flexibility. The tribunal finds that the requirement of such a meeting was unnecessary, as the need for flexibility could have been written in to an amended list or Ms Acheson could have been told at a separate meeting to be flexible.
- We found above that the respondent department had an underlying concern in respect of its fear of being accused of discrimination. We found a further rationale lies in the interaction between Doctor Madavo and his managers. It would appear the department had difficulties in dealing with its perception of Doctor Madavo's meticulous reflective approach whereby issues not settled to his satisfaction but apparently resolved, would be reopened for further lengthy debate. This made it difficult to make decisions and move on.
- Doctor Madavo wrote a memorandum dated 14 December 2005 to Mr Robert Campton, the Establishment Officer of the department, seeking proposals to satisfactorily resolve the matter. However, because of Mr Campton's previous involvement in the case, Mr David Trelford, the director of personnel within the department, considered that Mr Campton should not deal with the matter at this stage. Accordingly, Mr Trelford met Doctor Madavo on 30 January 2006 to discuss the content of his minute dated 14 December 2005. Initially, Mr Trelford was approaching this meeting as an informal attempt to resolve the difficulties outlined by Doctor Madavo in his minute of 14 December 2005. However, as Doctor Madavo had previously indicated that he "may" have encountered unlawful discrimination and as Mr Trelford had not had previous involvement and had not discussed the matter with veterinary service management, he was unable to offer a "proposal for an amicable solution". Mr Trelford offered Doctor Madavo two options. One was to make a formal complaint to Equal Opportunities branch to allow for such an investigation and the other was to submit a complaint to the industrial tribunal.
- Doctor Madavo lodged an application with the Industrial Tribunal on 6 February 2006, at which point Mr Trelford initiated a formal investigation, something that he had earlier denied that he could do of his own volition – something that he in fact indicated that Doctor Madavo had to initiate by lodging a formal complaint.
- In response to panel questioning, Mr Trelford confirmed that it would have been normal practice for all parties involved in a case to have been debriefed thereafter. However, as no decision was reached, and the matter was settled, in 1999, the parties were left in the knowledge that an action had been taken and settled, but were not given any debriefing or counselling as to how they should proceed thereafter.
- It was also noted by the tribunal that at a meeting on 14 November 2005 between Jim Breen, Colin Hart, Elaine Graham and Robert Huey to sign off on the list of tasks, it was raised by Jim Breen that Ms Acheson had difficulties with Doctor Madavo speaking on the telephone in Shona in front of her. She was concerned that he was speaking about her. It was agreed that Mr Huey would bring this up with Doctor Madavo. In his evidence he confirmed that his intention was to bring it up as part of the yearly appraisal system but in actual fact he never did so. Mr Huey's stated position was that the speaking of Shona was a matter of bad manners. He also confirmed that this type of issue had arisen twice before with other members of staff who were not of Northern Irish national origin. He confirmed that on each occasion he had told them not to speak in their native languages in front of people who did not understand them.
- We found that in his dealings with his management, Doctor Madavo did frequently raise as an issue his race as a ground for management's behaviour to him. We accept that Doctor Madavo was subjected to discrimination on the grounds of his race in his dealings with WD Meats.
- In considering all the facts as found, we were unable to draw any inferences that the behaviour of the respondent department was on account of Doctor Madavo's race. The reasons why we are unable to do so are as follows:-
- For all these reasons, we consider that there is no inference that we can draw that would lead to the burden of proof shifting from the claimant to the respondent in this case on the basis that Doctor Madavo was discriminated against on the grounds of his race or harassed on the grounds of his race.
CASE REF: 173/06
CLAIMANT: Crispin Madavo
RESPONDENT: Department of Agriculture and Rural Development
The unanimous decision of the tribunal is that the claimant's claim for victimisation is upheld and the respondent is ordered to pay the sum of £8,136.14 to the claimant. The claimant's claims in respect of racial harassment and racial discrimination are hereby dismissed.
Constitution of Tribunal:
Chairman: Ms Crooke
Members: Mr Grant
Mr Devlin
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by the Equality Commission.
The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by the Office of the Departmental Solicitor.
Sources of evidence
The claim and the response
The relevant law
(i) Article 3(1) of the Race Relations (Northern Ireland) Order 1997 as amended, provides that a person discriminates against another in any circumstance 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; …."
(ii) Article 4(1) provides that a person ("A") discriminates against another person (B) "in any circumstances relevant for the purposes of any provision of this Order if:-
(a) "He treats B less favourably than he treats or would treat any person in those circumstances; and
(7) He does so for a reason mentioned in paragraph (ii)".
(iii) Article 4(2) of the Order provides: "the reasons are that –
(a) B has (i) brought proceedings against A or any other person under this Order; or (ii) any other person under this Order; or (iii) under (i) given evidence or information in connection with
such proceedings brought by any person; or (iv) otherwise done anything under this Order in relation to A or any other person; or (iv) alleged that A or any other person has (whether or not
the allegation so states, contravened this Order; or; (v) A knows
that B intends to do any of those things or suspect that B has
done, or intends to do any of those things.
(iv) Article 5 of the Order defines "racial grounds" as meaning any of the following grounds, namely colour, race, nationality or ethnic or national origins and "racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins and references to a person's racial group without any racial group into which he falls.
(v) Article 6(2) of the Order provides that it is unlawful for a person in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee –
(a) in the terms of employment which he affords them; or (b) in the way he affords him access to opportunities for promotion, transfer training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (c) by dismissing him, or subjecting him to any other detriments.
(vi) Article 6(2)(A) provides that it is unlawful for a person in relation to employment by him in an establishment in Northern Ireland to subject to harassment a person whom he employs….
(vii) Article 2 of Council Directive (2000/43/EC) provides that the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. Article 2(3)(5) provides that harassment shall be deemed discrimination.
(viii) Regulation 43 of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003 amends the Race Relations Order of 1997 to give effect to the change in the burden of proof. This inserted a new Article 52 into the Race Relations (Northern Ireland) Order 1997 which provides that if a complainant proves facts from which the Tribunal could conclude, in the absence of an adequate explanation by the employer, that an act of discrimination had occurred for which the employer would be responsible, then the complaint will be upheld unless the employer proves that he/she did not commit, or is not to be treated as having committed that act.
Findings of fact
The issue of speaking Shona
Conclusions after applying the relevant law to the facts
A. Harassment on racial grounds/discrimination on the grounds of race
(a) Doctor Madavo did not allege any discrimination or harassment by Ms Acheson who was central to the origin of the problem;
(b) this case initially concerned a genuine dispute which originated in the workplace. That dispute was not resolved and it was referred to a higher line of management and then to Doctor Madavo's line of management. As the dispute was not resolved, it had to be referred to line management. Both Doctor Madavo and Ms Acheson were reasonable in so doing. Indeed, Ms Acheson carried on doing the disputed task while this was being done;
(c) part of the difficulty in the case was that while Ms Acheson worked for Doctor Madavo, she was under the Field side of line management. This contributed to difficulties in communication;
(d) a further contribution to the difficulty was the relative non-involvement of Ms Acheson's line management with her;
(e) there was also a failure by her line management to investigate and take action that was well within their remit;
(f) there was an awareness on the part of those who dealt with Doctor Madavo of the issue of race rather than the participants in the case acting from a racially motivated standpoint.
(g) Speaking Shona was an overt indicator of race being a factor in why Doctor Madavo was dealt with as he was, but we did not regard this as discriminatory in these circumstances because the complaint originated with Ms Acheson. Doctor Madavo regarded her as not having acted against him on the grounds of his race. Other persons, who were not of Northern Irish or English ethnic origin, were asked not to speak their own languages between themselves, or on the telephone, in front of people who did not understand them.
(h) Doctor Madavo has made reference to race being a factor in his interaction with others and in his correspondence with the respondent so that they were aware of it as a potential issue. However we found that this is different from people acting from a racially motivated standpoint. We were not able to find evidence of any such action on behalf of the Department.
(i) While the reference to poor communication was the trigger which brought back the events of the 1999 case to Doctor Madavo, no blame was attached to him on the grounds of a failure to communicate. The Department's criticism of Doctor Madavo was in terms of his listening skills. The evidence of this is the fact that he had a tendency to dwell on issues in his own mind and required them to be re-opened. We do not regard this as a racially based criticism but rather a criticism of a personality trait.
B. Victimisation Claim
58. The tribunal found that the claim of victimisation was well-founded and this is for the following reasons:-
(a) The claimant had brought proceedings against the Department in 1999 on the central issue, amongst other issues, of communication.
(b) Mr Breen was named as a participant and closely involved in the discrimination alleged in the 1999 case.
(c) This case was settled in favour of Doctor Madavo, albeit without admission of liability.
(d) It was common knowledge in the office that Doctor Madavo had taken a case against Mr Breen and the Department. The details of the case were not known.
(e) Mr Breen was described by Mr McCartan as a good and fairly relaxed manager but one who had learned to be careful in his dealings with Doctor Madavo, with whom he took a more formal approach. Based on the 1999 case, there was a fear on the part of Mr Breen and his staff in dealing with Doctor Madavo, according to Mr McCartan. The tribunal has noted that this was denied by Mr Breen, although he did admit in his evidence to feeling fear of Doctor Madavo after 2006. The tribunal is aware from Mr Breen's evidence that "something started in 1999 is still continuing." We draw the inference that this means that Doctor Madavo made an allegation of harassment on the grounds of race against Mr Breen in 1999, and continued to allege racial harassment against him. We thus infer that there was a resentment on the part of Mr Breen towards Doctor Madavo.
(f) Mr McCandless was an EOI for twelve years managing three other supervisors under twenty-three staff. On receipt of a request to have Ms Acheson complete the task of totalling animals reported on the pen cards, he took the view that this was outside his authority and referred it to his line manager, Mr Breen, without any investigation. Doctor Madavo took the view that this was a relatively simple administrative task.
(g) Subsequently all managers in the respective lines of management involved in this case agreed.
(h) Mr Breen is the Field divisional veterinary officer who has been in post for nineteen years and who works with fifty staff. In speaking to Doctor Madavo, he agreed that it was an administrative task and could be done by Ms Acheson, but his position was that he did not have authority to decide tasks in a Meat plant. He referred Doctor Madavo to the Meat line of management on the grounds that it was a Meat problem. He advised Doctor Madavo to speak to Mr Huey. Mr Breen made reference in his evidence to:-
(i) a long-standing and informal mechanism between himself, the Meat DVO and a former official veterinary officer Mr Dean McElfatrick as a means of resolving issues; and
(ii) to a 1999 Staff Instruction which provided a formal structure for resolution of Meat/Field issues.
This Staff Instruction also embodied an informal mechanism. Mr Breen did not inform Doctor Madavo of this Staff Instruction or of his formal/informal approach to resolution of issues on the assumption that he knew about it but Doctor Madavo did not. Mr Huey to whom the matter was referred, was also not aware of the Staff Instruction. In general, there was no evidence that this instruction was greatly used. It appears on the operation of the instruction that it is in terms of contact between Meat and Field Divisional Veterinary Officers. Doctor Madavo was not referred to his Divisional Veterinary Officer but to his Senior Principal Veterinary Officer. In addition, Mr Breen claims not to have known the identity of the person acting up as Meat Divisional Veterinary Officer in the absence of Mr Coulter, yet Ms Graham was Mr Coulter's assistant, worked in the same building, and had been acting-up in his position since May/June of 2005. Mr Breen did speak to Ms Graham about the WD Meats issue, yet claims that he did not know her role in relation to the issue or that she was acting up. At this meeting which took place on 26 September 2005, he promoted the drawing up of the list as being the solution to the problem.
We do not find Mr Breen's evidence or his behaviour to be satisfactory. We infer that his behaviour was motivated by the desire to cast obstacles in the way of Doctor Madavo or at best, not to help him, and that this goes back to the previous case in 1999. We also consider that Mr Breen's actions in referring Doctor Madavo to Mr Huey actually elongated the process of resolution of this minor query, thereby adding to Doctor Madavo's distress and humiliation.
(i) The tribunal considers that if a hypothetical comparator, one who was the same in all respects as Doctor Madavo, but who had not brought a previous case for race discrimination, had approached Mr Breen, his behaviour would have been in accordance with his relaxed, experienced reputation in the Department. We also consider that he would have accepted that Ms Acheson was within his line of management, and that it was his responsibility to be pro-active in seeking a solution to this workplace dispute rather than allowing it to fester. We also consider that he would have been likely to do so in an informal manner in accordance with his "longstanding tried and tested procedure".
(j) The tribunal has noted that two senior managers independently made assumptions that the dispute in question had been caused by poor communication on the part of Doctor Madavo. Mr Huey and Mr McCartan later separately apologised for this. The fact that two senior managers, Mr Huey and Mr McCartan both independently alleged that Doctor Madavo communicated poorly, led to Doctor Madavo feeling that this was a view of him held institutionally in the Department, and which threatened his future promotion and employment prospects. This resonated with the 1999 issue.
(k) With changes anticipated in 2006, the production of a task list was a rational approach to providing the job description when it appeared that none existed. However the imposition of the list was wholly disproportionate to the minor issue at hand. We found a conflict in the evidence of the Department about the purpose of the list. Mr Hart saw it as a service-wide improvement, but Mr Huey saw it almost as a punitive sanction to be used where disputes could not be resolved between the participants. From this we conclude that Doctor Madavo was singled out by the imposition of this list and was differently treated to other veterinary surgeons in his position. Although it is noted that while the list was circulated widely, it was only imposed in one place (in Doctor Madavo's situation) and therefore we conclude that Doctor Madavo was singled out by the Department for unfair treatment and that he was less favourably treated than other veterinary surgeons in his position. The list was circulated but was not enforced in any Meat plant other than WD Meats. Furthermore, we consider that there was an inadequate investigation of the nature and extent of the problem before the imposition of the wholly disproportionate list solution. Furthermore, we see a difference in treatment between Ms Acheson for whose benefit the list was drawn up and Doctor Madavo. This centres on the apparent inability of management to listen to Doctor Madavo's views both in terms of the disproportionationality of the list and in relation to the problem and the inflexibility of a list not solving his difficulties. This is despite the fact that Giovanni Borla, Mr Robert Huey's assistant, also expressed the view that an inflexible list would not work and Ms Graham had some reservations about the lack of flexibility, although she eventually accepted an inflexible list. We also find a difference in treatment in the proposal which was still being pushed by Mr Geddis, the Deputy Chief Veterinary Officer in March 2006, that Doctor Madavo should meet with Mr Colin Hart and Ms Acheson to discuss the list and its application. We have already considered that such a meeting was unnecessary to explain the need for flexibility. This could have happened between Mr Colin Hart and Ms Acheson without necessity of Doctor Madavo being present. We consider that Doctor Madavo was being pressured into a meeting between Ms Acheson and her ultimate line manager and himself, with no proposal that any line manager of Doctor Madavo's should attend to back up his concerns. Additionally, Doctor Madavo is considerably senior in rank to Ms Acheson.
(l) An ad hoc meeting between Mr Michael Geddis, Mr Colin Hart, Mr Robert Huey and Mr Brendan McCartan took place on 18 October 2005. It is notable that this meeting was hastily convened; it involved four senior officers of the Department, some of whom travelled a considerable distance to meet with Mr Geddis; there was no agenda, no minutes and only Mr Hart's handwritten notes of this meeting. We have come to the conclusion that the central topic was Doctor Madavo. The meeting was requested by Mr Hart who claimed he wanted the support of the others in generating the list. He received this support but also an instruction to investigate the behaviour of Doctor Madavo. While the meeting was brief, it is plain to the tribunal that there would seem to have been a sharing of information about Doctor Madavo and the generation of a mindset that he was to blame for the problem. This was very much the central factor in Doctor Madavo's underlying concerns about the behaviour of Mr McCartan and Mr Huey in automatically assuming, and with reference to the 1999 case, that the dispute had been caused by poor communication on the part of Doctor Madavo. As a result, he felt that he would be blamed for problems almost automatically and was concerned for his future career. From the fact of such a senior group of managers in the department finding the list solution appropriate, we conclude that there was an encouragement of the disproportionate prescriptive list solution, a lack of will to seek for a simpler solution more acceptable to both parties, and ultimately a lack of willingness to listen to Doctor Madavo's concerns. By reason of his chairing that ad hoc meeting, Mr Geddis became the proponent of the solution adopted and put in the position of having to defend his solution in the meetings that followed with Doctor Madavo on 21 November 2005 and 9 December 2005.
(m) For all of the above reasons, we conclude that the victimisation occurred in this case by reason of Doctor Madavo having brought earlier proceedings, he was less favourably treated than another person was or would have been and we have compared his situation to that of a hypothetical comparator, who was a person who was the same in all respects as Doctor Madavo except that he had not brought a race discrimination claim. We find that it was by reason of the race discrimination claim that Doctor Madavo was less favourably treated by Mr Breen and later by the more senior managers, Mr Huey, Mr McCartan and to a lesser extent Mr Hart.
(n) Having so found, we assume that there is no adequate explanation and that the burden of proof passes to the respondent to prove that it did not commit or is not to be treated as having committed that act.
(o) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of race. This requires the tribunal to assess not merely whether the respondent has provided an explanation from 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 race was not a ground for the treatment in question.
(p) We do not accept the explanations given by the respondent Department for their treatment of Doctor Madavo. We recognise the imperative (financial and managerial) to have Ms Elaine Acheson return to work in WD Meats. However, that does not justify that step being accepted as an entire solution.
(q) Mr Breen alleged that he was acting in accordance with a Staff Instruction. He did not tell Doctor Madavo that he was so doing and in escalating Doctor Madavo's point of reference to Mr Huey, Mr Breen was not following the Staff Instruction. Furthermore, the Staff Instruction did give the possibility of an informal solution, and Mr Breen simply ignored that in favour of a more formal type of solution (which was hence more difficult for Doctor Madavo). One result of Mr Breen's escalation of the issue to SPVO (Senior Principal Veterinary Officer) level was that Mr Geddis wrongly accused Doctor Madavo of escalating the problem to SPVO level, when in fact this was started by Mr Breen in the very earliest days of the problem. At a more senior level (ie that of Mr Hart, Mr Huey, Mr McCartan and Mr Geddis) the imposition of the list was regarded, in the evidence of Mr Hart, as a Service-wide improvement. We are supported in finding that this was not in fact a genuine reason for the imposition of the list from the evidence of Mr Huey who stated that he saw it as a tool, as a threat to resolve problems where they existed by the threat of the imposition of the WD Meats list. We are satisfied that there was no significant problem in WD Meats which could not have been resolved by the application of common sense at an early stage. We found that Doctor Madavo was singled out and victimised by reason of his bringing earlier race discrimination proceedings. We also find that Doctor Madavo's communication which was allegedly the reason for Mr Huey and Mr McCartan to blame him for the problem, was not regarded as being at fault by Ms Acheson the other person in the problem. We find that insufficient account was taken of this by senior management in general, to the definite detriment of Doctor Madavo.
C. Compensation
(r) We have perused the evidence in the agreed booklet concerning Doctor Madavo's medical condition. The tribunal was provided with a report from Doctor Madavo's GP dated 12 October 2007 and in general his GP notes and records. Based on this and based on the evidence from Doctor Madavo as to his feelings of distress and humiliation, which evidence was supported by Elaine Graham's and Adela Ginn's acceptance that Doctor Madavo was showing signs of stress, we award the sum of £6,000 as compensation for injury to Doctor Madavo's feelings.
(s) Bearing in mind that the responsibility for the injury to feelings started with the actions of Mr Breen and his staff on 21 September 2005, we consider that it is just and equitable in all the circumstances to award interest on the amount for injury to feelings as and from 21 September 2005 at the rate of 8%.
6000 x 8% ÷ 365 x 984 days (to 31 May 2008) = £1,294.02
Economic Loss
(t) We also award the sum of £842.12 being the agreed figures for a claim of loss of four weeks' overtime from 22 November 2005 to 15 December 2005 which is made up as follows:-
Average gross overtime calculated from
attached pay-slips dated 30/08/05, 28/10/05,
29/11/05 (12 weeks gross) £4,210.64
Average weekly overtime gross
£4,210.64/12 £ 350.89
Net overtime
(Weekly overtime – tax deduction of 40%) £ 210.53
Overtime lost during sick leave (four weeks)
£210.53 x 4 £ 842.12
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 22 October 2007 – 2 November 2007;
14 – 17 January 2008; 28-29 January 2008;
31 January 2008 -1 February 2008;
31 March 2008-1 April 2008 and 21April 2008, Belfast.
Date decision recorded in register and issued to parties: