Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/04771_09IT.html
Cite as: [2010] NIIT 4771_9IT, [2010] NIIT 04771_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 4771/09

CLAIMANT: Ian Rosbotham

RESPONDENT: 1. The Social Security Agency

2. Trevor Caldwell

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of unlawful victimisation has not been made out. The claim is dismissed.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mr J Hughes

Mr J Boyd

Appearances:

The claimant presented his own case.

The respondents were represented by Mr A Sands, Barrister-at-Law, instructed by The Crown Solicitor’s Office

Issue for determination

1. Was the claimant treated less favourably by either or both of the respondents by reason of his previous claim of unlawful discrimination, Case Reference No. 584/08, under the Employment Equality (Sexual Orientation) Regulations 2003?

Sources of evidence

2. The claimant gave evidence on his own behalf and called Ms Jo-Ann Crossey as his witness. He also provided a bundle of documentation to the tribunal.

Trevor Caldwell, the second respondent gave evidence and the following witnesses were called on behalf of both respondents:-

(i) Philip Hall who was a respondent in the earlier claim and who was, at the relevant time, the Deputy Principal in the Fraud Policy Unit (FPU) where the incidents in dispute occurred. Mr Hall was Mr Caldwell’s line manager.

(ii) Stephen Braiden who is also employed in the FPU as an
Executive Officer 1.

(iii) Joanne Moore who is a Staff Officer in FPU and is the claimant’s current line manager.

(iv) Marian McCabe who was an Executive Officer 2 grade in FPU. The claimant was her line manager until June 2009. She carried out the administrative work in the Unit.

(v) Emma Woods (formerly Gibson) is employed by Capita Business Services as a Human Resource Advisor to the Northern Ireland Civil Service. Mrs Woods was the Case Officer tasked with carrying out the investigation of the claimant’s Dignity at Work complaint which he had lodged at the same time as his claim form in this case.

(vi) Maria Joanne Quinn who is the Equal Opportunities Officer at the Department for Social Development. It was Ms Quinn who instructed Mrs Woods to carry out the investigation and who took the decision, following receipt of the final report, that the complaint was not upheld.

3. In addition to the claimant’s bundle, the tribunal was provided with two further bundles of documents by the respondents. Additional documents were added during the hearing. In total, some 1,200 pages were provided. After the hearing, both parties provided written submissions.

Findings of fact

4. The claimant has been an employee of the Northern Ireland Civil Service since 12 September 1977, almost 33 years. He is currently an Executive Officer (EO1) in the Fraud Policy unit (FPU), an office of the Social Security Agency, the first respondent.

5. During his employment, the claimant has had two career breaks; the first was for one year in late 1988 and the second when he was seconded to the Northern Ireland Public Service Alliance (NIPSA) from November 1992 until February 2005, almost 13 years. While on secondment, the claimant secured two promotions so that having been an Administrative Officer when he left the Agency, he returned as an Executive Officer 1.

6. In his statement to the tribunal, the claimant stated that while on secondment with NIPSA, he had performed duties and dealt with matters that were ‘way beyond’ what would have been expected of someone of his grade in the Civil Service. It brought him into contact with many organisations, statutory bodies and government departments and involved dealing with senior officials that would also have been ‘way beyond’ the expectation of others of his grade. He was appointed as a lay member of the Industrial Tribunals on 1 January 1999 and as a panel member of the Reserve Forces Appeal Tribunal in May 2003. He still holds both these appointments.

7. Prior to his return from secondment, the claimant had indicated that he did not want to return to ‘front line’ duties and he expressed an interest in a role where he could gain policy experience. Enquiries were made within the Agency to find a suitable vacancy. Philip Hall and Trevor Caldwell, the second respondent, had a vacancy within FPU and agreed to work with Personnel to develop a post which could accommodate the claimant’s expression of interest. Mr Hall, the Deputy Principal, and Mr Caldwell, Staff Officer, wrote a Job Description and invited the claimant to discuss the proposed post with them. At this time, both Mr Hall and Mr Caldwell already knew the claimant from his NIPSA post and both were aware that he was a homosexual man who had a long term partner.

8. They were also aware that the claimant’s long absence from the Agency’s core work and his lack of experience of the EO grade, would mean that he would require at least 18 months to develop his skills, knowledge and confidence and effort to build up his workload and provide relevant training over that period. The tribunal were not convinced that this plan was actually achieved and found some difficulty in reconciling the evidence given by the managers that the claimant’s post was not ‘fully loaded’ with his Box 2 in his Performance Appraisals. The tribunal also noted that no-one seemed to think that returning to such duties after such a long period as a full time Trade Union officer might have its own difficulties.

9. Towards the end of 2007, the claimant made complaints about the type of work he was being allocated by his managers. This culminated in the claimant lodging a claim on 7 April 2008 in the Industrial Tribunal, and a Dignity at Work complaint, alleging that he was being discriminated against on grounds of his sexual orientation. As well as the Social Security Agency, both Mr Philip Hall and Mr Trevor Caldwell were named respondents. The tribunal is aware that this claim was heard in or about October 2009 and that the claim was not upheld. We were also made aware that there was an element of that claim that was broadly similar to a part of this claim and this will be set out more fully below.

10. The tribunal was also informed that part of the earlier case related to the claimant having problems with work that he was being asked to undertake in that he believed it was work better suited to someone of a lower grade that him. As a result, an evaluation was carried out of at least one particular task which resulted in the task being found to be 60% EO1 and 40% EO2 grade work. This dispute was cited to this tribunal as indicative of the situation in the FPU shortly before the matters in dispute in this claim arose.

11. The claim form in this claim is dated 30 March 2009. At Paragraph 7, ‘Details of your claim’, the claimant has specified that his complaint is, “Discrimination and harassment/victimisation as a consequence of previous case” He then goes on to indicate that there was a specific incident on 7 January 2009 but that the discrimination alleged is ongoing. The claimant subsequently confirmed that his claim was one of victimisation.

12. The detail of the claim is contained in a four page narrative which begins by stating the claimant’s belief that Mr Caldwell had victimised and harassed him directly as a consequence of the previous Industrial Tribunal claim. The first element of the claim is a general complaint about the way in which the second respondent has exercised line management of the claimant with regard to alleged lack of interaction with him, and that the second respondent undermined the claimant in his line management of Marian McCabe.

13. The second paragraph of the narrative claims that the second respondent “very deliberately calculated and maliciously orchestrated very major ‘incidents’ … designed to cause me as much upset as possible”

14. The narrative details these alleged incidents as:-

(a) Team Brief Minutes of 1 August 2008

(b) Performance Agreement

The date of (b) was not given but the discussions pertaining to this event took place in early November 2008. The tribunal noted that the respondents’ representatives took issue with the inclusion of any matter prior to 7 November 2008 being before the tribunal on the basis that it was out of time. The tribunal will address this issue in more detail below.

(a) Team Brief

15. This element of the claim occurred on 1 August 2008. Mr Hall was due to go on annual leave on 4 August 2008. In May 2008, Denise Symington (EO1) who had been engaged in policy work had left the FPU. Pieces of the work in which she had been involved had not been reallocated. Mr Hall called a Team Brief Meeting. These meetings took place periodically in order to have an overview of the work of the unit, progress being made in each work area to date and to plan what needed to be addressed and by whom.

16. Minutes of such meetings were normally taken by Marian McCabe but, as she was on leave that day, Mr Caldwell asked her line manager, the claimant, to take the minutes. This was not a problem for the claimant who acknowledged in his evidence that he had extensive experience of taking minutes and indeed had previously done so in FPU as had many of his colleagues. The minutes had a standard format but the claimant’s evidence was that when he was asked on this occasion, Mr Caldwell had told him that bullet points were adequate. However, ‘immediately’ after the meeting, Mr Caldwell asked the claimant to provide a full record of all matters discussed and what had been agreed. According to the claimant, this was Mr Caldwell ‘deliberately’ misinforming and misleading the claimant by putting him at ‘considerable disadvantage in recalling matters of debate from memory’.

17. The tribunal found it difficult to understand how such an experienced minute taker was put to such alleged disadvantage by recalling detail of matters discussed and agreed immediately after a meeting at which he had recorded minutes, albeit in bullet points. But the claimant went on to complain further that when he sent out the draft to staff for their comments and proposed amendment, Mr Caldwell returned his draft with a significant number of detailed additions and a request that the final version be completed prior to Mr Hall’s return which was earlier than the claimant had proposed. In addition, the amendments suggested by Mr Caldwell related to areas of work that was being done by staff for whom Mr Caldwell had no line management responsibilities and which appeared to the claimant to be inappropriate.

18. On 4 August 2008 the claimant informed Mr Caldwell that his sister was seriously ill in hospital with cancer and about to undergo major surgery. As she was his only remaining family member, the claimant was extremely upset and worried at this time.

19. The tribunal found that whether the second respondent Mr Caldwell had initially requested full or partial minutes was immaterial. He received the draft from the claimant on 7 August 2008 by which time he knew of the claimant’s sister’s serious illness and the effect this was having on him. Mr Caldwell was deputising for Mr Hall in his absence. Joanne Moore, the other Staff Officer in the FPU, was also on leave and Stephen Braiden was deputising for her. Before he left, Mr Hall had tasked Mr Caldwell with what could be described as an audit of the FPU work in hand in preparation for the forthcoming mid-year review. It was therefore perfectly reasonable to use the Team Brief Minutes as a tool for identifying areas of the unit’s work programme that needed to be addressed. Mr Caldwell asked Stephen Braiden to assist him as they were the senior officers in the unit at that time. This was to ensure that the minutes being prepared for Mr Hall’s return were as full and comprehensive as possible. Mr Braiden identified those matters in the draft minutes in which he was involved and they constituted a majority of the work areas referred to. The amendments proposed were added to the draft in red ink and only required the claimant to change the ink colour to incorporate the additions into his draft.

20. As already noted, the Team Brief meeting was held on 1 August 2008. The claimant had lodged his previous claim in April 2008. The claim form in this case was lodged on 30 March 2009 and it states that the date of knowledge of the act complained of was 7 January 2009 but that the victimisation was ongoing.

21. The respondents have claimed that this incident should be considered as having been lodged out of time. The tribunal finds that while there was a long period between this incident and the lodgement of the original complaint, it was prepared to accept that it could be considered to have been part of an ongoing series of events. However, the tribunal also find that in relation to this particular incident there is no evidence, or indeed even a claim by the claimant, that he was treated less favourably than anyone else was or might have been treated in all the relevant circumstances. In our view, the actions of the second respondent in this incident were reasonable in the circumstances and could be viewed as performing the work that had been set for him by his senior officer in a way that caused as little extra work for the claimant in the circumstances of his anxiety over his sisters serious health condition. The tribunal also noted that the claimant acknowledged that he only considered this incident was an act of victimisation some months later.

22. The claimant’s sister’s health did not improve following her surgery and she died the following month on 12 September 2008. During that period, the claimant had to leave work at short notice on many occasions and take time off to go to the hospital to see her. The claimant was extremely upset at her death and suffered from a stress related illness that required him to attend his doctor, who prescribed medication, and to take ill health leave until 3 November 2008.

23. On that date the claimant had a Return to Work interview with the second respondent who completed the required pro forma. This noted that the claimant had 30 working days absence and that, in answer to a question about his current state of health had replied, “feeling a lot better and on the mend. Doctor has reduced the number of tranquillisers. Still not 100%”. The claimant also provided the additional information that his absence was ‘grief related’ which had brought about bouts of depression.

24. The format of such meetings requires the interviewing officer to explain the advice and support that are available in the Civil Service to staff. These include Staff Welfare and Occupational Health Service. Because of his previous experience as a Trade Union official, the claimant would have been more aware than most other staff of the availability and scope of such support that is available. Both Mr Hall and the second respondent gave evidence that they would have been grateful for the advice of the Occupational Health Service regarding any adjustments that might be helpful to someone in his circumstances but the claimant said he would be upset to be referred to OHS and that nothing would be gained from such a referral. He expressed a preference to continue to rely on his own GP.

25. The tribunal was mindful of the fact that at this stage, the claimant was still suffering from the trauma of his sister’s death which had resulted in his absence from work for a prolonged period. He was still taking prescribed tranquilisers, albeit reducing the dosage. He had lodged a Dignity at Work complaint and an Industrial Tribunal complaint alleging unlawful discrimination against his line managers, both of whom were to manage his return to their line management in these circumstances. In all probability they were each also engaged to some extent in the investigation and preparation for hearing of the ongoing complaints. This too would be distressing not only for the claimant but also the managers. The claimant had also refused the offer from the Equal Opportunities Officer of a transfer to another office away from the managers about whom he had complained. In such circumstances it was perfectly understandable that the managers would have preferred advice from OHS and difficult to understand why they would not have felt able or even encouraged to seek OHS advice for themselves in such circumstances.

(b) Performance Agreement

26. During the period of the claimant’s absence from work, Mr Hall had been discussing the work programme of the FPU for the remainder of the performance year with both his Staff Officers. They had a departmental managers meeting on 31 October 2008 where the topic for discussion and agreement was the ‘Allocation of work within Fraud Policy Unit.’ There were seven Key Work Areas identified and each area had objectives set and ownership allocated. All departmental staff had work allocated to them in the plan and the two Staff Officers were also allocated the task of presenting the plan to their staff and discussing the new work areas with their staff individually ‘in line with present PPA activities and agree initial timelines.’ The document recording this meeting would indicate that more work areas were allocated to the claimant than to other staff.

27. In their evidence, both Mr Hall and Mr Caldwell told the tribunal that, in their view, the claimant had a lighter workload than the other EO1s in the unit at this time. They attributed this partly to work of his they had done in his absence and also to the difficulty they had experienced in allocating work to him previously (as evidenced to an extent by some of the subject matter of his earlier complaints).

28. Mr Hall informed the tribunal that following the departure of Denise Symington in May, there was more policy work available within the FPU. He had hoped that some of the other staff but, particularly the claimant who had expressed an interest in such work, would have volunteered to take on this work but that had not materialised. Indeed, Mr Hall had specifically requested that the Team Building Minutes should call for expressions of interest from staff. This had been one of the amendments added by Mr Caldwell in these minutes referred to above.

29. On 4 November 2008, Mr Caldwell sent the claimant an email asking him to send details of the work done by him to date in the performance year. Earlier that day, he had met with his other EO1, Paul McKeever, in preparation for his performance review meeting.

30. The claimant met with Mr Caldwell for about 40 minutes on 5 November and discussed the work situation in the unit and the possibility of new areas of work being allocated. The claimant informed Joanne Quinn at his Dignity at Work interview that Mr Caldwell had told him that since Denise Symington’s departure, the unit was understaffed so her duties would have to be covered by other EO1s.

31. By an email sent at 12.07 pm, the claimant sent Mr Caldwell the details of his work done as requested. Mr Caldwell replied at 15.28 pm and arranged to meet with him on Monday 10 November to discuss. This was followed at 15.37 pm by an email to the claimant enclosing a draft revised Personal Performance Agreement (PPA) for discussion at Monday’s meeting.

32. While it is not noted in any of the extensive documentation provided to the tribunal and contrary to what the claimant asserted, there must have been some contact, possibly verbal, between the two men prior to 15.37 pm because the claimant sent a lengthy email to Mr Caldwell at 16.53 pm which opens by thanking him for agreeing to change the proposed meeting to Tuesday

11 November.

33. In his evidence, the claimant was adamant that the email sent by Mr Caldwell enclosing the draft PPA was sent at that time on a Friday afternoon so that by the time the claimant had read the content, Mr Caldwell would have gone home at his usual time of 4.00 pm. It was the claimant’s perception that Mr Caldwell knew that the content of the draft revised PPA would cause distress to the claimant which would last over the weekend thereby adversely affecting the claimant’s mental well being and continued recovery from ill health. The claimant described the proposed changes to his 08/09 PPA which had only been signed off on 20 June 2008 as a re-write rather than an amendment. In particular, the claimant took exception to the inclusion of some very specific and short target dates. He also asked about efforts made to fill any vacancy in the unit.

34. Over that weekend the claimant was very depressed and had to increase his medication. When he came in to work on the Monday morning, he wrote another email to Mr Caldwell telling him of the particular concerns he had about the draft document and the impact it had on him which had included a set back to his health resulting in a further need for medication. He set out that he ‘expected’ to be informed that his PPA of 20 June remained in place or that only minor amendments were required. If such assurance was not forthcoming that day, the claimant intended to ‘move the matter to higher authorities’ who were detailed, up to the DSD Permanent Secretary.

35. In addition, the claimant went on to indicate an intention to instigate a further investigation and an attempt to include this matter in the then current tribunal proceedings at a CMD which was scheduled for the following Friday. The claimant also brought up the matter of the Team Brief Minutes as an example that this was not an isolated incident. He had copied both emails to Mr Hall and his manager, Conrad McConnell, and said he was considering raising the matter with the NIPSA solicitors and the Equality Commission. He was due to respond to requests from the Dignity at Work investigators and the Departmental Solicitors office and would give this as a reason if his reply was delayed as a result of having to deal with this further matter.

36. While the tribunal accepts that the claimant suffered distress over the weekend, it found that this email was, at best, intemperate and inappropriate in tone to a line manager. Nor did the tribunal accept that the second respondent could have anticipated this level of distress to the claimant.

37. Mr Caldwell described the emails as aggressive in tone and he decided to discuss them with Mr Hall who replied to the claimant on his behalf. He explained the planning background to the work allocations and that he and Mr Caldwell had undertaken some of the claimant’s work in his absence as they did not want him to return to a backlog, They were therefore aware that some of his activities had been ‘successfully completed’. In addition some new work areas were ‘coming on stream’. The proposals for allocating the work in hand had been undertaken by Mr Hall, Mr Caldwell and Ms Moore and affected all the staff. It had been decided on the basis of the remaining work in existing work areas plus the new work. He went on, “In order to fulfil your potential we are offering you additional work in the policy arena, an area in which you have expressed a desire to be involved.” The email also explained that of the four new areas of work allocated to the claimant, he and Mr Caldwell had already carried out considerable research to get him started and had a series of briefings as well to help him. This was done, he said, with the claimant’s present circumstances in mind. Mr Hall assured the claimant that Mr Caldwell had intended to discuss these matters and the timelines at the planned meeting. He offered to attend the meeting if the claimant felt this was helpful.

38. The claimant met with Mr Caldwell as arranged the next day. The tribunal accept that it was a long and difficult meeting for both of them but the outcome was that the disputed date targets were removed. The tribunal also noted that the claimant, in his Dignity at Work interview relating to this matter said the differences were “resolved” at the Tuesday meeting.

39. This was the matter of dispute which caused most concern to the tribunal and over which most discussion took place. The claimant was very insistent that the second respondent had failed in his duty of care as line manager to the claimant. He was very aggrieved and was very distressed. In his view he had been treated less favourably than Paul McKeever whose PPA was also reviewed by Mr Caldwell.

40. The panel studied the two original and revised PPAs of both. Our difficulty was that it is impossible for anyone who is unfamiliar with what is involved in this sort of work programme to compare such forms in order to assess workloads. Instead, the tribunal had to rely on our assessment of the credibility of the witnesses and the documentary evidence before us. Having done so, the tribunal find that, on the balance of probabilities, it preferred the version of events put forward by the respondents. The claimant had alleged that Mr Caldwell had ensured that the allocation of work in the unit resulted in extra work for the claimant so that he was put under extreme pressure at a time when he was extremely vulnerable. This is not borne out by the witness evidence or the documentation which clearly show that the decisions were taken jointly by the management team.

41. While the claimant has compared himself to Paul McKeever and has claimed that he was treated less favourably than Mr McKeever who had not done a protected act, the tribunal find that Mr McKeever, and indeed all the other staff of the FPU had their PPAs amended at the review stage. There was no evidence before the tribunal that the claimant having more changes made to his PPA was by reason of his having done a protected act.

42. The claimant stated the PPA he had agreed with Mr Caldwell on 20 June 2008 was a statement of the duties that Mr Caldwell expected him to achieve in that reporting year and that at the review stage, only minor amendments should be made. The only exception would be ‘at a time of major organisational upheaval within a business area caused by severe funding problems, unprecedented workload increases or major changes in … management direction in relation to policy.’ This is not what is stated in the DSD Guidance Notes at paragraph 5.3. This says that these reviews must (their emphasis) take place at least once in each performance year, to help jobholders and reporting officers to:-

· monitor progress towards the achievement of objectives;

· reset priorities if necessary;

· alter or replace objectives which may no longer have to be achieved or which cannot be achieved; and

· identify any additional needs for training and development.

43. The tribunal did share the claimant’s concerns in relation to the specific and very short time targets contained in the draft. It is correct that the Guidance Notes advises ‘SMART’ objectives but including matters for completion in days is inappropriate in a PPA. However, the tribunal has borne in mind that this was a draft document for discussion with the claimant and in any event, any disagreement in PPAs can be appealed. In addition, the tasks which were to have been completed quickly were not onerous – one was to draft a letter.

44. The claimant took time off on this day to attend at an industrial tribunal hearing as a panel member. His business there did not finish that day until 2.00 pm. The claimant had not had lunch by that time. He tried to phone Mr Caldwell to explain that he would return to the unit after his lunch but could not get through. He eventually managed to speak to Mr Hall around 3.00 pm and was informed that there had been a power failure and the Premises Manager had advised the building should shut. This was the reason why the claimant had not been able to get through earlier by phone.

45. Mr Hall informed the claimant that everyone else had gone home but that the power had just resumed so that the claimant could, if he wished, come in to work as planned. The claimant, as most people would in the circumstances, told Mr Hall he would take the ‘halfer’ too and go for a drink. The next day the claimant applied to Mr Caldwell for a half day annual leave to cover his attendance at the tribunal.

46. Mr Hall also spoke to Mr Caldwell and told him of the conversation he had had with the claimant and that he understood the claimant’s reference to a ‘halfer’ was an intention to treat the afternoon absence as a half day annual leave in addition the morning. Mr Caldwell noted that the claimant had applied for one half day’s leave and asked him about the afternoon. The claimant explained that he had been offered the option to go home that the other staff had been given and that was why he had not gone back to work. After discussing the situation with Mr Hall, no further action was taken.

47. The tribunal find that there is no detriment to the claimant and nothing to suggest that any other member of staff would have been treated any differently in these circumstances. In any event, the person who sought to have the claimant return to work when the others had gone home was Mr Hall who is not a named respondent. The second respondent checked the facts with the claimant following information given to him by a senior officer and acted within the scope of his managerial responsibilities.

48. This was the incident noted in the claimant’s claim form as the date of the latest act of ongoing discrimination. He told the tribunal that it was only at this time that he thought about the two earlier incidents, the Team Brief and Performance Agreement, and realised that these were acts of discrimination too. This was what has caused him to lodge these proceedings. However, the tribunal has noted above that the email sent by the claimant to Mr Caldwell on 10 November states that he believed that the sending the draft PPA was an act of discrimination and was ‘not an isolated act’ and then refers to the August Team Brief incident. He had also indicated at that time that he intended to seek to amend the earlier claim to include these matters or to lodge further proceedings.

49. In addition to the above specific incidents, the claimant had also made a general complaint about his line management by Mr Caldwell in his claim form. He referred to a lack of interaction and to being undermined by Mr Caldwell in relation to the line management by the claimant of Marian McCabe. He included a reference to training in his statement to the tribunal and complained that Mr Caldwell had nominated him for training without first checking with him if the training was appropriate and if he consented to his name going forward for nomination as was common practice. The respondents’ Counsel objected to aspects of this allegation being opened again as the earlier tribunal had not upheld a similar claim. Mr Sands claimed issue estoppel with regard to the lack of interaction between the claimant and his line manager, Mr Caldwell.

50. The tribunal heard evidence from Marian McCabe in relation to the claimant’s version of events relating to his line management of her work. Ms McCabe did not believe that the claimant had been undermined by Mr Caldwell to whom she also reported. The claimant chose not to cross examine her on her evidence. With regard to the training nominations, the tribunal found no detriment to the claimant. The tribunal was informed that for a period of months, the claimant and other members of Mr Caldwell’s staff were not located in the same building. It was also noted that Mr Caldwell was not a ‘chatty’ man. In the circumstance where the claimant had made two complaints to an industrial tribunal in which serious allegations were made including a claim that his actions were having a detrimental effect on the claimant’s health, the tribunal formed the view that it was prudent for Mr Caldwell to limit interaction with the claimant. The claimant was not singled out as all the staff of the FPU was treated in the same way.

51. During the Dignity at Work interview in relation to these matters, Joanne Quinn invited the claimant to consider moving from the unit. She explained that she had a duty of care to him and asked if he was content to stay, taking into account the allegations made and the impact he said it was having on his mental health. The claimant replied that he liked working in the office but that Mr Caldwell should allow him to work without mental stress.

52. Joanne Moore, who is now the claimant’s like manager, was cross examined by the claimant. The claimant was suggesting to Ms Moore that since she became his line manager and Mr Hall had transferred to the Coleraine office there had been a better atmosphere in the unit and few problems. Ms Moore was quite surprised at this suggestion. Her experience of managing the claimant had also had its difficulties. She reminded him that she had insisted that the claimant attend the OHS so that she could be advised what adjustments should be made, if any, to accommodate the claimant’s health problems that prevented him undertaking some work. The claimant objected to the referral and indicated his intention to instigate further proceedings. (In fact, he did subsequently attend OHS, reluctantly) She told the claimant she believed that he often referred to his trade union and industrial tribunal expertise to achieve his preferred outcome in discussions. This had caused her to feel anxious, even intimidated, many times. The tribunal found that the perceptions of the claimant as to the impact of his conduct on more senior members of staff and how he was perceived by them, was quite wrong.

Applicable Law

53. The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 makes unlawful any act less favourable treatment on grounds of sexual orientation. Regulation 4 provides:

(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if he treats B less favourably that he treats or would treat other persons in the same circumstances, and does so by reason that B has –

(a) brought proceedings against A or any other person under these Regulations, (emphasis added)

54. The respondents accept that the claimant has previously brought proceedings under these Regulations against them and is protected by the above provisions. However, the claimant must still show, on the balance of probabilities, that the less favourable treatment is by reason that he has done the protected act, in order to make out a claim of victimisation.

55. The approach to be taken in such cases in order to determine whether victimisation has taken place was set out in the case of McNally v Limavady Borough Council [2005] NICA 46 by Kerr LCJ. The person who alleges they have been victimised is required to show that they have done the protected act, they must have been treated less favourably, and the treatment must have occurred because the person has done the protected act.

56. In practice this has been problematic and has been the subject of much judicial debate. In a recent case in the Employment Appeal Tribunal in England, Pothecary Witham Weld & Anr v Bullimore & Anr [2010] IRLR 572, the President of the EAT, Mr Justice Underhill, set out a useful summary of the case law on this topic. The cases referred to are cases taken under Race Relations legislation and the point being considered in Bullimore itself is related to the burden of proof but his analysis contains helpful advice for tribunals on this topic.

57. The leading authority in victimisation cases is Nagarajan v London Regional Transport [1999] IRLR 572 where an employee who had made several claims of racial discrimination was refused promotion on the basis that he did not have the required qualifications. The EAT had overturned the tribunal finding of unlawful victimisation and held that the phrase ‘by reason that’ required a conscious motivation. The House of Lords however allowed the appeal and held that even where an apparently innocent reason for the detriment was provided, the tribunal had been correct in finding that the interview panel had been consciously or unconsciously influenced by the previous claims.

58. Lord Nicholls’ judgement in that case is referred to and quoted from extensively by Underhill J and provides helpful insights to the proper approach to be taken in such cases. With regard to the phrase highlighted above, he said, The phrase ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

59. This decision was followed a few years later by the decision in Chief Constable of West Yorkshire v Khan [2001] IRLR 830 another House of Lords case. In this instance, before his claim of unlawful discrimination had been heard, Mr Khan had applied for a post with another force who requested a reference from his employer, the respondent in his claim. After taking legal advice, the employer refused to provide the reference for fear of prejudicing its own case in the tribunal. Their Lordships held that the respondent could not be said to have refused the reference ‘by reason that’ Mr Khan had brought his claim in that this was not the cause of the refusal.

60. Underhill J then went on to look at decisions in other cases but these were mainly concerned with the situation in Khan in that they related to cases where there was current litigation. In his view the approach that should normally be adopted is to decide first of all whether the claimant has suffered less favourable treatment, in other words suffered a detriment and then asking whether the protected act was, or was part of, the reason why he suffered that detriment following the guidance in Nagarajan.

61. Underhill J. after setting out the major reasoning in several cases, advised that the approach to be taken by tribunals is:-

“It is necessary to make a distinction between cases where an explicitly discriminatory criterion is applied and cases like Nagarajan itself … where the ostensible reason for the act complained of is innocent: in the latter kind of case it is necessary for the tribunal to consider the employer’s ‘mental processes’, conscious or unconscious; and if on such consideration it appears that the protected act had a ‘significant influence on the outcome’ victimisation is established.”

62. But, what is meant by a detriment. Another local case on this point is Shamoon v Chief Constable of RUC [2003] IRLR 285 (HL) which adopted the view that a detriment exists if a reasonable worker would or might take the view that the treatment was, in all the circumstances, to his detriment. Lord Hope in that case observed that an ‘unjustified sense of grievance cannot amount to detriment.’

Determination

63. The claimant made allegations of victimisation in relation to three incidents and a general complaint about his management. The tribunal applying the above legal principles and advice to each as follows:-

(a) Team Brief

The tribunal found no reason to believe that any other member of FPU staff would have been treated any differently to the claimant. He was asked to perform a task that was well within his capabilities, experience and expertise. Mr Caldwell’s request to the claimant to take the minutes was a reasonable request within the bounds of his remit as a manager, as was his amendment to ensure that his superior officer, Mr Hall’s, requirements were met.

(b) Performance Agreement

The tribunal found that Mr Caldwell had followed the Guidance Notes relating to mid-year reviews. The claimant was allocated extra work as were the rest of the staff in FPU. He was allocated more work areas than his named comparator Mr McKeever because the management team had formed the view that some of his areas of work from the previous PPA had been completed. After discussion with Mr Caldwell, the matters to which he objected were removed and the matter was resolved.

The tribunal found that Mr Caldwell’s actions were reasonable in all the circumstances and there was no evidence that anyone else was or might have been treated any differently. The claimant suffered no detriment.

(d) General management issues

The tribunal did not find evidence of any detrimental treatment in this complaint.

64. The tribunal were in no doubt that the claimant genuinely believed that he was being victimised because of his earlier tribunal case. However, the tribunal did not find evidence from which we could conclude that an act of unlawful victimisation had taken place as required under Regulation 35 of the Employment Equality (Sexual Orientation) Regulations 2003. (See also Igen Ltd v Wong {2005} 258).

65. The tribunal recognises that the decision to issue proceedings was not an easy one for the claimant and was not one that he took lightly. The tribunal acknowledges that the last few months of 2008 had perhaps a greater impact on the claimant than he appreciated and his decision to represent himself was not the wisest decision he has made as it also deprived him and the respondents of the benefit of a more considered view of the prospect of success of his claims.

Chairman:

Date and place of hearing: 7 -17 June 2010, Belfast

Date decision recorded in register and issued to parties: