Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 926/08

CLAIMANT: Terence Lesslar

RESPONDENTS: 1. Sycadex Ltd

2. Allen Erskine

3. Tim Whiteside

DECISION

The unanimous decision of the tribunal is that the claimant's claims for race discrimination, harassment on grounds of race, and unfair dismissal against the first respondent and second respondent are well founded. The claim for victimisation is dismissed. The tribunal dismisses the claims against the third respondent. The tribunal awards the sum of £36,319.13 to the claimant.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Mr Wilkinson

Mr Patterson

Appearances:

The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission.

The respondents were represented by Mr Erskine and Mr Whiteside of the first named respondent.

The Issues

1. The legal issues were the issues agreed at the Case Management Discussion of 10 November 2008.

(1) Was the claimant subjected to ongoing less favourable treatment and harassment on grounds of race by Allen Erskine?

(2) Did the actions of the second named respondent from in and about 4 September 2007 to 10 April 2008 constitute a continuing act of less favourable treatment and harassment?

(3) Did the first named respondent take reasonably practicable steps to prevent the claimant being subjected to less favourable treatment and harassment?

(4) Was the claimant unfairly selected for redundancy contrary to the Employment Rights (Northern Ireland) Order 1996?

(5) Was the claimant treated less favourably in the selection for redundancy on grounds of race contrary to the Race Relations (NI) Order 1997?

(6) Was the claimant victimised by reason of his having made a complaint and raised a grievance that he had been subjected to less favourable treatment on grounds of race by Allen Erskine?

(7) Did the conduct of the second named respondent:

(a) at the meeting with the claimant on 14 September 2007 and the subsequent issue of a formal warning; and

(b) in the selection of the claimant for redundancy

aggravate the injury to feelings suffered by the claimant so as to entitle him to aggravated damages?

(8) Is the claimant's claim for harassment on the grounds of race out of time?

The Evidence

2. The tribunal heard evidence from the claimant, from Mr Erskine and Mr Whiteside. It also received a bundle of documents. The tribunal has only had regard to those documents to which it was referred by the parties during the course of the hearing.
3. A schedule of loss was prepared by the claimant and this was agreed by the respondents.

The facts found

4. The claimant commenced employment with the first named respondent on 8 January 2007. On 23 February 2007, he was promoted to the role of SGN Partner Manager and Market Analyst.
5. The second named respondent, Mr Erskine, was appointed Managing Director of the company on or about 10 June 2007 and became an employee of the company in September 2007. The third named respondent, Mr Whiteside, was the Operations Director of the first named respondent from October 2006 until April 2008 when he resigned from the Board of Directors. He then reverted to the role of Operations Manager. Part of his role was to authorise the leave for employees of the first named respondent.
6. The claimant approached Tim Whiteside on 13 August 2007 to seek approval for leave. He told Mr Whiteside that he wanted to take leave from 15-17 August 2007. He also said that he wanted to take further leave to the end of August but needed to finish some work required for an important trade conference at Harrogate which would take place in the middle of September.
7. Mr Whiteside approved the claimant's request for leave from 15-17 August. Mr Whiteside told the claimant to return to him with the exact dates the claimant wished to take further leave on.
8. The claimant decided to work on 15 August (for which he had been authorised leave) and finished his outstanding work. He checked with his colleague, Seana Skeffington, but there was nothing further needing immediate attention. He then filled out a leave sheet for the rest of August, i.e. from 16-30 August.
9. By this stage Mr Whiteside had gone on leave so the claimant took his form to Mr Steve Ewart, the Technical Director. Mr Ewart did not approve the leave, nor was he asked to by the claimant. The leave form was left for Mr Whiteside. Mr Ewart informed the claimant that if the leave was okay with Mr Whiteside it was okay with him. The claimant then took the leave.
10. Mr Erskine, the Managing Director, had been on holiday at this time. On his return he asked Mr Whiteside where the claimant was. He also asked Mr Whiteside if the claimant had authority for the two weeks holiday he had taken. Mr Whiteside told Mr Erskine that he had not.
11. On the claimant's return to work Mr Whiteside called him to a meeting with Mr Erskine on 4 September 2007. He was handed a letter by Mr Erskine advising him he had taken leave without permission. It stated:-

"This letter is to advise you that Sycadex considers this unauthorised leave as potentially gross misconduct and as such it is possible that this may result in a termination of your employment through the disciplinary procedure."

The letter went on to say:-

"The process of disciplinary action is clearly outlined in the employee handbook. This letter is to advise you of the nature of the offences above that is considered potentially gross misconduct and to notify you that you are required to attend a disciplinary hearing to be held on 7 September 2007 in the company's boardroom. ….

The purpose of this meeting is to establish the facts surrounding the alleged gross misconduct and allow me to make an informed decision regarding the outcome and any subsequent action which may include dismissal."

The claimant was given the option of staying at home until the meeting of 7 September 2007 or remaining at work. He chose to stay at home.

12. On 6 September 2007 the claimant wrote to Mr Erskine. He set out his version of events. He maintained that he had not been told that he was not allowed to take leave. He understood that he had permission to take the leave and only needed to inform Mr Whiteside of the exact dates. He accepted that he did not speak to Mr Whiteside by the end of 13 August (being the date of their conversation). He concludes his letter by saying:-

"I am very disappointed that the company has immediately decided to instigate this process while my concern was all along for the company."

13. The claimant also made it clear that he was not aware of the employee handbook.
14. An e-mail had been sent to the staff on 2 July 2007 advising that an employee handbook was available which would shortly be posted to the Z drive on the company's computer. In his evidence Mr Whiteside said that he verbally informed everyone on that date that the handbook was now on the Z drive. The claimant said he had no such conversation with Mr Whiteside and was unaware of this information. He said he had never seen the employee handbook.
15. The tribunal, on the balance of probabilities, concludes that the claimant was not aware of the handbook being placed on the Z drive or its contents. We reached this conclusion for two reasons.

(a) Mr Whiteside made no mention of the conversation with all staff members in his witness statement or indeed at any stage up to his cross-examination at the tribunal.

(b) Mr Erskine in his evidence to the tribunal confirmed that the e-mail of 2 July 2007 had never been followed up.

Disciplinary Hearing – 7 September 2007

16. The hearing was conducted by Mr Erskine. He heard evidence from the claimant and from Mr Whiteside. At the hearing reference was made to Mr Tom Tsang. He had been present in the room when the claimant and Mr Whiteside had had their conversation regarding leave on 13 August 2007. Mr Erskine did not speak to Mr Tsang. Mr Erskine felt that Mr Tsang may have heard some of what was going on but he was not interviewed as he was not part of the conversation.
17. Mr Erskine told the tribunal that he had read the disciplinary procedures contained in the employee handbook before he commenced the disciplinary process.
18. After the meeting on 7 September 2007, Mr Erskine wrote to the claimant on 10 September advising him that he was dismissed for gross misconduct. The letter contained the following comment:-

"The central factor in this matter is whether or not you were expressly advised that, had you requested two weeks, this would definitely not be approved. Tim Whiteside is a Director of this business and in all the circumstances I accept his version of events."

The letter goes on to refer to "secondary factors" including ignoring the process for booking leave clearly outlined in the employee handbook and what was described as "rather relaxed approach to one's work". The claimant was advised of his right to appeal. The letter concluded with the following paragraph:-

"I do regret that this matter has had to be dealt with in this way but I am afraid that myself and Tim's confidence in you and your commitment to this business has been irreparably damaged."

19. On 12 September 2007 Mr Erskine asked Mr Whiteside to access the claimant's computer. A number of conflicting reasons have been put forward by the respondent for seeking such access. We will return to this later in our decision. In any event, access was obtained and undelete software was used to retrieve information, including a database sought by Mr Erskine, but also three personal e-mails of the claimant – one to his wife and two covering CV applications for jobs.
20. On 13 September 2007 the claimant appealed his dismissal. In his appeal letter he characterised the issue of his leave as one of misunderstanding or miscommunication rather than premeditated misconduct. He pointed to the flexibility regarding leave afforded to others and asked why he was being treated differently. He said he felt he had been left out of the planning for the forthcoming Harrogate trade conference and asked why he was being treated differently to others regarding the conference. He maintained he was following set norms and practices in the business and that no allowance was made for cultural differences in understanding in the communication. He pointed out that he came from Malaysia and English as a language is spoken and understood differently there.
21. An appeal meeting was held on 14 September 2007 chaired by Mike Mills, the Chairman of the company. He was advised in the course of this hearing that Mr Tom Tsang had been in the room with Mr Whiteside and the claimant. He asked Tom Tsang to join the meeting. The respondents' minute of the meeting records:-

"Tom Tsang told the meeting that it was just him and Tim Whiteside in the office when Terence Lesslar came in and requested leave. He said that Tim Whiteside asked for how long and Terence Lesslar told him just a few days at the moment but he would be requesting extended leave. He said that Tim Whiteside paused and then said there was work to be done. Tom Tsang then said that Terence Lesslar said "I will finish the work and if I can't I will come back and finish the task". Mick Mills asked Tom Tsang if he recalled Tim Whiteside telling Terence Lesslar that he could not have leave. Tom Tsang said no he did not recall that."

22. Mr Mills concluded that it was one person's recollection against another. He referred to the claimant's appeal letter where the claimant pointed out that he was from Malaysia and so English was his second language. This, with Mr Tsang's account, left Mr Mills feeling "very very uncomfortable about the circumstances surrounding the dismissal". Mr Mills decided to uphold the appeal and reinstate the claimant. He went on to say that "his wish was that all concerned would put this behind them and that there should be no ill feeling". He left, instructing "the parties involved to talk and work out how the situation could be resolved".
23. Mr Erskine did not at the time (and at the tribunal hearing still did not) accept that the Chairman's decision was correct. He left the meeting in an angry and unhappy mood. He went to retrieve the e-mails that he had extracted from the claimant's computer earlier.
24. A further meeting immediately followed the appeal meeting. The claimant described the purpose of the next meeting as a reconciliation meeting. Mr Erskine described it as a "clear the air" meeting. It was attended by Mr Erskine, Mr Whiteside and the claimant. There was no minute taken. The only note of the meeting is a record typed by the claimant that evening on his computer. That note records that at the meeting –

(a) Mr Erskine congratulated the claimant.

(b) Mr Whiteside attempted to reconcile things and the claimant agreed saying now he knew the company policy he would conform to it.

(c) Mr Erskine asked the claimant why he wanted to stay at Sycadex. He produced e-mails that the claimant had been applying for jobs and said he used the company phone for his own use.

(d) Mr Erskine queried the claimant's use of time and in particular the time taken to develop a database of 50 listings.

(e) Mr Erskine said the claimant "played the innocent, trusting Malaysian card well" and accompanied these comments with a mock hand clapping gesture.

Immediately after this meeting, Mr Erskine sent a further letter by e-mail to the claimant giving him a written warning in relation to the taking of leave (the subject of the appeal meeting where the claimant was reinstated) and in relation to the use of company phones, computers and time for personal matters. It was accepted at hearing by Mr Erskine that this was entirely in breach of the company's disciplinary procedures.

25. In their evidence Mr Erskine and Mr Whiteside largely accepted the claimant's version of the meeting but with the particular exception of the comments regarding playing the Malaysian card well and the mock hand clapping gestures. At the tribunal the claimant also alleged Mr Erskine waved the e-mails aggressively at him. Mr Erskine said he did not, and Mr Whiteside said that Mr Erskine had shuffled and stamped the papers to tidy them up.
26. There is a clear conflict of evidence in this important area, as is common throughout this case. In general, where there was a conflict of evidence, on the balance of probabilities, the tribunal preferred the evidence of the claimant.
27. The evidence of Mr Erskine and Mr Whiteside was riddled with inconsistencies and at times was evasive. Some examples include the following:-

(a) When Mr Erskine was asked to confirm how many staff members went to the Harrogate conference he first said that five of a total staff of thirteen attended. After further cross-examination he had to amend this to six out of a total staff of nine.

(b) He provided a completely different redundancy notification letter on discovery to the one that was actually sent to the claimant and could not explain how this had happened.

(c) He accepted in his evidence numerous inconsistencies between his witness statement and the evidence he gave to the tribunal, such as the difference between the record in his witness statement, of a conversation he had with Seana Skeffington and the contemporaneous note he made of that conversation. He accepted that he had "assumed" the reaction that he had attributed to her. Similarly, in his dismissal letter to the claimant he wrongly stated that the confidence of Mr Whiteside in the claimant was irreparably damaged. Mr Whiteside made no such comment and indeed refuted it in his evidence.

(d) Mr Erskine told the tribunal in his evidence that at the meeting on 14 September 2007 he congratulated the claimant on his successful appeal. However, in his response to the claimant's grievance made to Mr Mills, Mr Erskine said that he made no reference to the outcome of the appeal hearing in the subsequent meeting.

28. Mr Erskine in his witness statement said that Mr Ewart had signed the claimant's leave form. In evidence he accepted that Mr Ewart had not signed the form.
29. Mr Erskine was evasive when dealing with the issue of the existence of the staff handbook. In his dismissal letter of 10 September 2007, Mr Erskine accuses the claimant of a blatant ignoring of a well established process for booking leave clearly outlined in the employee handbook "the existence of which I can categorically confirm that you had been advised of". Mr Erskine subsequently in his evidence accepted that the claimant had never received a copy of the handbook nor had any training in the employee handbook been provided. He then attempted to characterise his comment in the dismissal letter as merely referring to the existence of a handbook rather than its content. The tribunal take the view, having read the dismissal letter, that the clear import was that the claimant was aware of the content of the employee handbook and had ignored the company process set out therein.
30. Mr Whiteside similarly in his evidence was at times inconsistent. For example, in relation to the initial conversation with Mr Lesslar on 13 August, Mr Whiteside told the tribunal that he had no difficulty with the claimant taking some days holiday one week and some the following week. His objection was to a two week block. He confirmed however that the claimant had not asked for a two week block. When asked why he objected to the proposed holidays he answered that he did not object as he was not asked. If he had been asked for ten days he did not know what he would do. He presumed he would consult with the others and check on work that needed to be done. In his witness statement however, Mr Whiteside said "As we discussed this further, Mr Lesslar commented that "it is not as if I am looking to take a few weeks off". I responded by saying that that was OK as it would have been a definite no."
31. The claimant on the other hand, gave cogent, credible and consistent evidence to the tribunal throughout the hearing. On the whole, where there was a conflict of evidence, on the balance of probabilities, the tribunal preferred the evidence of the claimant.
32. In particular, the tribunal accepts the claimant's account of the meeting which followed the appeal meeting with Mr Mills for the following reasons:-

(a) It is clear from the minutes of the appeal meeting that Mr Mills intended the following meeting to be a reconciliatory meeting.

(b) Mr Erskine was angry and unhappy at the conclusion of the appeal meeting.

(c) He did not accept the decision of the Chairman.

(d) He entirely dismissed the evidence of Mr Tsang.

(e) He was angry and unhappy following the appeal meeting. His frame of mind going in to the meeting was evidenced by his immediate retrieval of the personal e-mails he had taken from the claimant's computer.

(f) His action at the meeting was the initiation of new disciplinary penalties.

(g) His issuing of a further disciplinary sanction in the form of a written warning relating to both the claimant's leave and the claimant's use of telephones, computer and time for personal matters.

(h) The comments by Mr Erskine are consistent with the matters raised in the claimant's letter of appeal.

(i) The claimant's note is the only contemporaneous note of the proceedings completed by the claimant shortly after the meeting concluded.

(j) It is consistent with the claimant's grievance letter of 10 October 2007.

33. On 10 October 2007 the claimant sent a grievance letter to Mr Mills, the Chairman of the first named respondent. In his letter the claimant raised a grievance in relation to three things.

(a) racial discrimination in the remarks made by Mr Erskine at the reconciliation meeting on 14 September 2007;

(b) the victimisation and harassment in relation to the issuing of a letter of formal warning; and

(c) the denial of a personal password and the installation of undelete software on his computer.

34. When Mr Whiteside gained access to the claimant's computer on 12 September 2007 he did so by using a new password. Each member of staff had their own personal password for their computer access. When he gained access to the claimant's computer, Mr Whiteside put undelete software on to the computer to retrieve deleted material. This software was not removed after the access to the claimant's computer on 12 September 2007.
35. On 22 October 2007 Mr Mills replied to the claimant's grievance by e-mail. He concluded:-

(a) The grievance in regard to racist comments was not upheld. Mr Erskine denied it and Mr Whiteside had no recollection of any such remarks or hand clapping.

(b) Mr Erskine was incorrect to issue a warning letter. It should be struck from the record.

(c) In the absence of a general policy in the company the undelete software should not be employed.

(d) Mr Mills requested the company to provide the claimant with a personal password.

36. Mr Mills concluded by saying:-

"I know that from now on, you will be highly sensitive to the potential of racial slurs and harassment. That is natural and I would therefore ask Allen to put active programmes in place to remove any doubts that anyone might have that Sycadex has a zero tolerance to any discrimination towards anyone on any basis."

37. The claimant was not issued with a personal password until 30 October 2007, following a further e-mail request by him to Mr Erskine.
38. The undelete software was not removed until 7 November 2007.
39. The written warning, given by Mr Erskine on 14 September 2007, was not removed from the claimant's record until 8 November 2007.
40. The installation of the undelete software elicited some contradictory evidence at the hearing. In the grievance process Mr Erskine, in a letter to Mr Mills dated 12 October 2007, said that he had asked Mr Whiteside to install the software as it "had been brought to my attention by several members of staff that Terence was making use of company resources and time in pursuing personal matters".
41. However, in the respondents' replies to the claimant's Notices for Additional Information, the reason given for the installation of the undelete software was as part of the company's standard process of sanitising computers when someone leaves the business or is dismissed.
42. In his evidence Mr Erskine then said that he needed access to work being carried out by the claimant on Mr Erskine's behalf. In particular he sought two databases the claimant was working on. Mr Whiteside could not find the information on the claimant's computer and had to access the databases by installing the undelete software. Bearing in mind the subsequent use made of the information that Mr Erskine retrieved from the claimant's computer, the tribunal has concluded, on the balance of probabilities, that the true reason for the installation of the undelete software was to seek to find material which was potentially detrimental to the claimant.
43. On 6 November 2007 the claimant sought to appeal the outcome of his grievance in:-

(a) the finding of Mr Mills regarding the alleged racist remarks and hand clapping gestures at the meeting;

(b) a list of computers which had undelete software installed;

(c) the timeframe for the warning letter and disciplinary letter to be struck from the claimant's record; and

(d) the timeframe to have his recovered personal files permanently deleted and for Mr Erskine to put an active programme in place to show that Sycadex had a zero tolerance of discrimination.

44. On the same day Mr Mills responded by e-mail and told the claimant no appeal was available. He asked the claimant for permission to give Mr Erskine a copy of the letter to follow up on various issues, which permission was given.
45. Mr Erskine then responded on 7 November 2007. Amongst other matters he referred to the preparation of company values. He concluded by saying "Your role in helping us to open up new markets and in looking after the interests of partners is critical to this future."
46. On 15 November 2007 Mr Mills e-mailed the claimant to inform him that the claimant could in fact appeal his grievance. On 21 November 2007 the claimant e-mailed Mr Mills to say he would consider his position. The claimant wanted to see the positive actions referred to by Mr Erskine take effect.
47. In January 2008 there was a staff meeting at which the company values were discussed. The claimant believed this to be positive and progress could be made. On 4 February 2008 he sent an e-mail to Mr Mills saying that he was not proceeding with the appeal because of this apparent progress.

Redundancy

48. On 21 March 2008 the claimant received a letter notifying him of a possible redundancy. A redundancy meeting took place on 3 April 2008. At this meeting Mr Erskine confirmed that the claimant's role was the only one under review. Mr Erskine also accepted that the company was recruiting for two sales executives and one research and development post.
49. The claimant in his evidence said he asked about the sales post and referred to a previous staff member in a similar situation who had been given a sales post and retraining for the post. Mr Erskine in his evidence said the claimant did not ask to be considered for the role and Mr Erskine did not feel his qualifications and experience made him a suitable candidate. The tribunal conclude from the evidence heard, the contemporaneous notes made of this meeting and the evasive manner in which Mr Erskine gave much of his evidence, that the claimant's version of events is correct. The claimant did ask to be considered for the sales post.
50. Mr Erskine at the meeting did suggest a telesales role and described it as a junior role. The claimant asked if he could do both his own job and that role. Mr Erskine said that he would consider the options.
51. On 10 April 2008 the claimant was sent a letter confirming that he had been made redundant. The letter informed him that there were no vacancies in the company and therefore no offer of alternative employment.
52. On 14 April 2008 the claimant appealed his redundancy. In his letter he stated:-

"In conclusion, I believe that what has happened is a continuation of the victimisation which has never been resolved and I have concern there is, as stated previously in my grievance letter a motive of racial discrimination."

53. The claimant left the company on 14 April 2008.
54. The claimant had an appeal meeting with Mr Mills on 23 April 2008. On 25 April 2008 Mr Mills wrote to the claimant to advise that the appeal was not upheld. He did not consider there was any racial motivation as the claimant had confirmed to him that nothing of a racial nature was said or done during the redundancy process.
55. There was no redundancy policy in existence in the company nor any guidance available for employees.
56. Mr Erskine prepared a job description for the claimant's role and passed it to John McMurtry, who was the Sales & Marketing Manager. He sought Mr McMurtry's comments on the claimant's role. The claimant did not see this job description nor have any chance to comment on it.
57. There was no notification given to any other employee of potential redundancies at this time.
58. The criteria for redundancy were designed by Mr Erskine and the selection for redundancy made by him alone. The claimant was never advised of, nor had a chance to comment on, the selection criteria or the basis of Mr Erskine's scoring.
59. One of the criteria for redundancy was the criticality of each employee's role. Mr Erskine assessed that criticality subjectively. Of the nine employees considered six were awarded ten out of ten for criticality, two received eight out of ten and the claimant received four out of ten.
60. Mr Erskine also accepted that not all the elements of the claimant's role were made redundant.
61. Mr Mills in conducting the claimant's appeal did not speak to Mr Erskine regarding the redundancy situation. He did not see the redundancy criteria applied nor did he see the scoring against the criteria.
62. The claimant raised a further grievance of race discrimination on 10 May 2008. He then attended a grievance meeting with Professor Peter Weinrich, a member of the Board of Directors, on 26 June 2008. On 1 July 2008 Professor Weinrich wrote to the claimant to advise him that his grievance had not been upheld. In his letter, Professor Weinrich said:-

"On your main grievance, there is no evidence that racial discrimination constituted any part of the decision over your redundancy, the decision being made on the grounds of Sycadex' financial straits, your lack of productivity, and your use of company facilities (time, internet access and phone) for personal activities, in particular resourcing and directing the building of a house, and applying for alternative work."

63. Professor Weinrich did not see any of the redundancy documents in considering the grievance of 10 May 2007.
64. The claimant had consistently been reassured that the events of the autumn of 2007 played no part in the redundancy process of early 2008. In the redundancy meeting Mr Erskine expressly advised the claimant that there was no connection between the events in the autumn of 2007 and the current process of redundancy.
65. The tribunal did not hear any evidence from either Mr Mills or Professor Weinrich or have witness statements for either. Mr Erskine in his evidence advised the tribunal that Professor Weinrich would not be well enough to participate but there was no evidence or suggestion that he was in fact going to provide evidence apart from his illness.
66. No other member of the first named respondent's staff has ever been sanctioned or interviewed in relation to unauthorised leave, the use of the internet or personal use of the telephone.

The Law

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

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

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

Article 6(2) of the same Order provides:-

"6(2) 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 him; or

(b) in the way he affords him access to opportunities for promotion, transfer or 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 detriment."

68. Victimisation and harassment are dealt with in the Order under Articles 4 and 4A and they are as follows:-

"4(1) 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 other

persons in those circumstances; and

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

(2) The reasons are that –

(a) B has –

(i) brought proceedings against A or any other person

under this Order; or

(ii) given evidence or information in connection with such

proceedings brought by any person; or

(iii) 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

(b) A knows that B intends to do any of those things or suspects

that B has done, or intends to do, any of those things.

(3) Paragraph (1) does not apply to treatment of a person by reason of

any allegation made by him if the allegation was false and not made in

good faith.

4A(1) A person ("A") subjects another person ("B") to harassment in any

circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, A engages in unwanted conduct which has the purpose or effect of –

(a) violating B's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or

offensive environment for B.

(2) conduct shall be regarded as having the effect specified in sub

paragraphs (a) and (b) of paragraph (1) only if, having regard to all the

circumstances, including, in particular, the perception of B, it should

reasonably be considered as having that effect."

69. 33.  - (1) A person who knowingly aids another person to do an act made unlawful by this Order shall be treated for the purposes of this Order as himself doing the same kind of unlawful act.
    
        (2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under Article 32 (or would be so liable but for Article 32(5)) shall be taken to have aided the employer or principal to do the act.
    
        (3) For the purposes of this Article, a person does not knowingly aid another to do an unlawful act if –

(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Order, the act which he aids would not be unlawful; and

(b) it is reasonable for him to rely on the statement.

    (4) A person who knowingly or recklessly makes a statement such as is mentioned in paragraph (3)(a) which in a material respect is false or misleading shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

70. BURDEN OF PROOF

It is for the claimant to make out their case for discrimination based on race. Article 54A of the RRO provides:-

"(2) Where, on the hearing of a complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

(b) is by a virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

Guidance on how to apply the burden of proof is provided by the Court of Appeal in the case of Igen Ltd -v- Wong [2005] EWCA Civ 142. The Court of Appeal in Igen pointed to a two stage test. The claimant must firstly show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination. Once the tribunal has so concluded the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination.

In the English Court of Appeal decision Madarassy –v- Nomura International Plc [2007] IRLR246 Lord Justice Mummery said:-

"The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

"Could conclude" in Section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it."

71. Under the terms of the Employment Rights Order Northern Ireland 1996 (ERO) an employee has a right not to be unfairly dismissed by his or her employer. In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal. Potentially fair reasons include, under Article 130(2)(c), that the employee was redundant.

Article 130(4) provides as follows:-

"Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and

administrative resources of the employer's undertaking) the employer

acted reasonably or unreasonably in treating it as a sufficient reason

for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial

merits of the case."

The Employment Appeal Tribunal in Williams –v- Compair Maxam Ltd [1982] ICR156 listed the principles which reasonable employers adopt when dismissing for redundancy. The tribunal stressed that these are not principles of law but standards of behaviour.

(a) The employer should seek to give as much warning as possible of impending redundancies.

(b) Consult with the union and seek to agree the criteria to be applied in selecting employees to be made redundant. When a selection has been made the employer will consider whether the selection has been made in accordance with the criteria.

(c) The employer should seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency of the job, experience, or length of service.

(d) The employer will seek to ensure the selection is made fairly in accordance with the criteria and will consider any representations made as to such selection.

(e) The employer will seek to see whether instead of dismissing an employee he could offer him or her alternative employment.

72. A claim for discrimination on grounds of race must be presented within three months of the act complained of. However, there can be situations where claimants will say that they have been subjected to ongoing or continuing discrimination over a substantial period. In these situations the earlier manifestation of the continuing act will be in time, providing that the last manifestation is in time.
73. In Hendricks –v- Commissioner of Police for the Metropolis [2003] IRLR 96, the Court of Appeal gave guidance for determining whether there is an act extending over a period, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. The Court of Appeal held that the focus in determining whether there was an act extending over a period should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs.

The Tribunal's Conclusions

74. For the claimant to succeed in his claim for race discrimination, he must show that he has been subjected to less favourable treatment on grounds of race. To assist the claimant the Burden of Proof Regulations state in summary that if the claimant proves facts from which the tribunal could conclude that the respondent has committed an act of discrimination, in the absence of an explanation from the respondent, then the claimant satisfies the first stage of the process and the burden passes to the respondent. In this case the tribunal is satisfied that the burden of proof should pass to the respondent. In reaching this conclusion the tribunal has taken into account the following matters.

(a) The tribunal has found as a fact in this case that Mr Erskine did make the comments attributed to him by the claimant at the meeting on 14 September 2007. Mr Erskine said that the claimant had played the Malaysian card well and accompanied this comment with a mock hand clapping gesture.

(b) Even before this comment was made, the claimant had been subjected to an unfair investigatory and disciplinary process which was instigated, investigated and adjudicated upon by Mr Erskine. There were inconsistencies in Mr Whiteside's evidence as to precisely what conversation he had with the claimant on 13 August 2007. These were not properly investigated by Mr Erskine who had accepted Mr Whiteside's word as a Director of the company.

(c) Mr Erskine failed to interview or seek evidence from Mr Tsang, despite being made aware by both Mr Whiteside and Mr Lesslar of Mr Tsang's role as a potential witness.

(d) In his dismissal letter, Mr Erskine made representations on behalf of himself and Mr Whiteside that the claimant's conduct had caused irreparable damage to their relationship. Mr Whiteside confirmed that not only had he not made such a comment to Mr Erskine, he disassociated himself with those comments.

(e) On 12 September 2007, Mr Erskine obtained access not just to the claimant's computer, but installed undelete software and then retrieved from the claimant's computer personal e-mails and information. Undelete software had not been used for this purpose before in the company.

(f) No other member of staff had ever been interviewed or investigated, much less disciplined in relation to unauthorised leave. The tribunal had evidence that there was a fairly relaxed approach to leave taken in the company and frequently company processes for leave were not complied with.

(g) At the appeal hearing Mr Erskine did not seek to question Mr Tsang.

(h) At the meeting following the appeal hearing, despite the Chairman's reinstatement of the claimant, Mr Erskine seeks to sanction the claimant again for the same offence by issuing a written warning. He also, without any warning or advance notice to the claimant, sanctions him for other alleged disciplinary matters. Although Mr Erskine left the appeal meeting with the express purpose of obtaining the documents he had retrieved from the claimant's computer, he took no steps to have someone present to record what was in effect another disciplinary meeting.

(i) Mr Erskine also told the tribunal that he had looked at the company's procedures before starting the disciplinary process. However, the process was not followed and in particular Mr Erskine accepted that there was a complete breach of the process in the meeting following the appeal meeting. This leads the tribunal to conclude either that Mr Erskine did not in fact read and adopt the company process; or he did, but decided not to follow those processes.

(j) After the claimant had initiated his grievance there was a considerable delay in removing the formal written warning from the claimant's record, removing the undelete software from his computer, and providing a personal password.

(k) In relation to the redundancy process, the claimant was not advised of the criteria that were applied for redundancy nor of the scoring. He was not shown the job description which was used as the basis for the assessment of his role and although he asked to be considered for a sales post, he was not considered for that sales post and no credible justification was given. His appeal against the redundancy decision was conducted without any investigation or interview by Mr Mills or Mr Erskine or any other individual. Mr Mills did not make reference to either the redundancy criteria used nor the scoring of those criteria. Professor Weinrich in his conclusion on the grievance stated that in making the decision on redundancy the company took into account the events of the autumn of 2007 despite assertions from Mr Erskine that these matters had no role to play.

(l) The claimant had never previously been criticised or had any disciplinary record for poor work performance.

75. The burden of proof therefore transfers to the respondents who must show that there was no taint of discrimination whatsoever in their treatment of the claimant. It is the conclusion of the tribunal that the respondents have failed to demonstrate any other credible reason for the treatment of the claimant. The tribunal has taken into account the evasive and equivocal evidence heard from the respondents' witnesses, the fact that the tribunal did not hear from Mr Mills, Mr McMurtry or Professor Weinrich (although the tribunal accepts Professor Weinrich's availability may have been limited, no request was made for an adjournment and no suggestion was made that there was any intention to call Professor Weinrich apart from his medical condition).
76. The explanation from the respondents as to the use of undelete software was inconsistent.
77. The tribunal is satisfied that the claimant has been subjected to less favourable treatment on the grounds of his race and is entitled to succeed in his claim for race discrimination.
78. The tribunal is satisfied that the discrimination was a continuing act, commencing at the latest at the disciplinary hearing of 7 September 2007 and culminating in the claimant's dismissal.
79. There was a consistent and continuing state of affairs commencing with the first punitive dismissal of the claimant, through the overtly racist remarks of Mr Erskine at the meeting on 14 September, the inappropriate further disciplinary penalties imposed on the claimant, the tardiness in correcting the situation after the claimant's grievance to Mr Mills, and the initiation in the early part of 2008 of a redundancy process which was itself flawed. The tribunal has concluded that it was reasonable for the claimant not to pursue his appeal against the outcome of the grievance in November 2007 against the backdrop of the potential at least for matters to improve and for the respondents to demonstrate that they were genuine in their efforts to create a zero tolerance.

The liability of the respondents

80. The tribunal finds that the principle discriminator in this case is Mr Erskine. He has played a pivotal role in all of the less favourable treatment of the claimant.
81. An employer is liable for acts of discrimination carried out by employees provided they are carried out in the course of employment. The employer can escape liability if it can show that it took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of employment acts of that description.
82. In this case the tribunal concludes that the acts of discrimination were carried out in the course of employment as that phrase is understood in every day speech. Furthermore the employer did not take steps which were reasonably practicable to prevent such acts.
83. Whilst Mr Mills conducted a grievance investigation in October 2007, the only active steps that were taken at that stage by the company to improve the situation was to assert that the company had a zero tolerance of discrimination. It then left the task of taking active steps to promote such a policy in the hands of the principle discriminator. There appears to be no follow up by the company as to what steps were actually taken. The tribunal accepted that a new set of values was proposed in January 2008, but also has accepted the claimant's evidence that nothing further transpired on foot of those supposed values. No relevant policies relating to equal opportunities were put forward by the company, no training in equal opportunities was provided, no monitoring exercise was put in place, and indeed complaints of discrimination were not investigated properly in the tribunal's view particularly the claimant's allegations of racial discrimination in relation to the redundancy process. Mr Mills took no steps to establish precisely what had happened in the redundancy process. He appears to have been satisfied with a general assertion that nothing overtly racist happened during the redundancy process. However, he was aware of the background and the previous allegations made by the claimant and did not investigate in any detail the redundancy criteria or the scoring that was adopted nor the fact that the exercise was a largely subjective one carried out by Mr Erskine alone.
84. The tribunal therefore finds that the first named respondent is liable.
85. In addition to employer's liability, anyone who aids a discriminatory act is himself liable for that act. Aiding includes helping, cooperating or collaborating, whether the help is substantial or not, provided that it is not so insignificant as to be negligible (Anyanwu -v- Southbank Students Union [2001] IRLR305).
86. The tribunal's conclusion is that Mr Erskine was responsible for a sustained campaign of discrimination against the claimant. The tribunal concludes that Mr Erskine is also liable for the acts of race discrimination.
87. The tribunal however concludes that Mr Whiteside is not so liable. Whilst he has cooperated to some extent with Mr Erskine, in particular in covering up the comments made by Mr Erskine at the meeting on 14 September 2007, the claimant had also accepted that Mr Whiteside's efforts in large were to reconcile and to bring an end to matters. There is no evidence that Mr Whiteside's role continues beyond September 2007. For those reasons no finding of liability against Mr Whiteside is made.

Harassment

88. The definition of harassment covers unwanted conduct which intentionally violates the dignity of another. It also covers intentional conduct which creates an environment which is intimidating, hostile, degrading, humiliating or offensive for the other person. In addition it will cover unwanted conduct which is either of these effects provided it can reasonably be considered as having the effect in question. In this case the tribunal finds that the comments of Mr Erskine at the meeting on 14 September constitute harassment as defined. Mr Whiteside gave evidence that the claimant in the months that followed was withdrawn. Mr Whiteside had also accepted that the comments in the original dismissal letter of 10 September 2007 to the effect that there was irreparable damage to the confidence of Mr Erskine and himself in the claimant was conducive to an oppressive and hostile environment for the claimant.

Victimisation

89. The victimisation provisions require that the less favourable treatment complained of by the claimant must be by reason that the claimant has done a protected act. In this case the protected act is the claimant's grievance of 10 October 2007. The protected act need not be the sole cause of the less favourable treatment but must have been an important cause and have significant influence. The tribunal on the facts as found, is not satisfied that the grievance was the principal cause for the less favourable treatment suffered by the claimant. The true reason is not that a grievance was made, but stems from the general less favourable treatment already suffered by the claimant. The tribunal dismisses the claimant's claim of victimisation.
90. Finally, the tribunal is satisfied that whilst the company was in financial difficulties, the redundancy process followed in relation to the claimant was unfair. He was not advised of the criteria being applied against him nor of the scoring that was put in place, he was not allowed to have alternative employment although this was available and no proper consideration of alternative employment was made, and finally his appeal into the decision to make him redundant was conducted in the absence of any consideration of the criteria or the scoring. Professor Weinrich in his response to the claimant's grievance indicated that the reasons for his redundancy included the disciplinary matters from September 2007. These however formed no part of the criteria allegedly used by the respondent.

Compensation

91. A schedule of loss was agreed by the parties. The tribunal is satisfied that the claimant took considerable steps to mitigate his loss.
92. The total loss to the claimant in terms of income and pension entitlement from 14 April 2008 to the date of hearing is £12,161.31.
93. The claimant has sought future loss for twelve months. The tribunal considers this to be a reasonable period in light of the current economic circumstances and the extensive efforts made by the claimant to obtain other employment which have proved unsuccessful. On the basis of the agreed figures the sum for future loss is £12,157.82.

Injury to Feelings

94. The tribunal have considered carefully the guidance provided to them in the case of Vento. In assessing the level of damages the tribunal has taken into account the fact that the claimant was effectively dismissed twice over a seven month period, he had the spectre of the loss of his job and of race discrimination throughout that period, and there were aggravating features, in particular the comments made by Mr Erskine in his original dismissal letter of 10 September 2007 and the comments made at the meeting on 14 September 2007. In light of these considerations the tribunal considers that compensation should fall in the upper part of the middle band of the Vento range and considers that the appropriate figure for damages is £12,000. The tribunal makes no additional award for aggravated damages.
95. The awards for compensation are made against the first named respondent and the second named respondent.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 30 March 2009 to 3 April 2009 and

6-7 April 2009, Belfast

Date decision recorded in register and issued to parties: