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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kelso v The Council and Trustees of Wh... [2010] NIIT 7567_09IT (09 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7567_09IT.html
Cite as: [2010] NIIT 7567_09IT, [2010] NIIT 7567_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7567/09
CLAIMANT: Trevor Kelso
RESPONDENT: The Council and Trustees of Whitehead Golf Club and its Members
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of discrimination on the ground of sexual orientation and harassment are dismissed. His claim for wrongful dismissal is upheld and the tribunal awards him compensation of £2,470.00.
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Mrs T Kelly
Mr B Irwin
Appearances:
The claimant was represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by the Equality Commission.
The respondent was represented by Mr Martin Wolfe, Barrister-at-Law, instructed by Worthington, Solicitors.
Sources of evidence
1. The tribunal heard evidence from the claimant and on behalf of the respondent from John Thompson, Karina McIlree, Isobel Day, Terry McIlroy, Richard Lambe, Eamon McAllister, Malcolm Overton, Stephnie Harvey, Trevor Greenwood, Zoe Brown and Robin Patrick. The tribunal also received four bundles of documents amounting to 555 pages.
The claim and defence
2. The claimant claimed breach of contract, harassment and discrimination on the basis of his sexual orientation. The claimant alleges that his dismissal constituted an act of discrimination. The respondent denies the claimant’s claim in its entirety and asserts that the claimant was dismissed for gross misconduct.
The Issues
3. The issues to be determined by the tribunal were agreed at a Case Management Discussion on 15 April 2010. The issues are as follows:-
Factual issues
(1) Was the claimant’s employment subject to a six month probationary period? If so how was this communicated to the claimant?
(2) Did the claimant regularly work in excess of his contracted 39 hours?
(3) Did the claimant regularly use his own equipment to undertake work duties?
(4) During the course of his employment by the respondent between the 14 May 2009 and 15 September 2009 was the claimant subject to harassment by members of the club and some staff members by reason of his sexual orientation?
(5) Did the lady captain, Isobel Day, ask the claimant on a number of occasions the name of his partner?
(6) Did a club member “Eddie” make verbally abusive homophobic comments to the claimant?
(7) On 14 August was the claimant given conflicting instructions regarding the bar closing time by the bar convenor and the club captain and did the club captain act aggressively with the claimant and when the claimant sought an apology did he say “I will not be apologising to the likes of you”? What was meant by “the likes of you”?
(8) Did the claimant falsify time recording sheets on Sunday 6 and Sunday 13 September 2009?
(9) Did the claimant call the club captain, John Thompson, a ‘wanker’?
(10) What investigation was undertaken into the alleged disciplinary offences?
(11) Were the disciplinary charges put to the claimant before he was informed of his dismissal?
(12) Was the claimant dismissed without any disciplinary hearing?
(13) Did the claimant challenge the lawfulness of his dismissal and was he told by the club captain that he “was only through the door here” and that the club could do what it liked?
(14) Did the club captain swear at the claimant?
(15) On the evening before the dismissal (14 September) did the lady captain (Isobel Day) and a Council Member, Terry McIlroy, go into the bar after the Council meeting and in front of staff and club members say “the queer bastard has been sacked”?
(16) Did the respondent take reasonably practicable steps to ensure that the claimant would not be subjected to harassment?
(17) Did the respondent take any adequate appropriate action in response to the claimant’s complaints and make any proposals to ensure a work environment free from harassment?
(18) Was Jamie Walker charged with disciplinary offences relating to theft of stock and being drunk on duty?
(19) What disciplinary procedure was followed in respect of Jamie Walker?
(20) What disciplinary sanction was imposed?
(21) Was the claimant less favourably treated than Jamie Walker and if so for what reason?
Legal issues
(1) Was the claimant subject to harassment in relation to the claimant’s sexual orientation by the members of the respondent club contrary to Regulation 6(2) and (3)?
(2) Is the respondent liable for the acts of the committee and members contrary to Council Directive 200/78/EC?
(3) Was the claimant less favourably treated than Jamie Walker in the treatment of the alleged respective disciplinary offences and in position of the respective sanctions?
(4) Was the claimant unfairly dismissed contrary to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003?
(5) Was the claimant subjected to wrongful dismissal in breach of the terms of his contract of employment?
(6) Did the respondent fail to reply to the statutory questionnaire within the time permitted by Regulation 39(2)(b) of the Employment Equality Sexual Orientation Regulations Northern Ireland 2003 and Article 74(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976 and if so is it appropriate for the tribunal to draw inferences of discrimination?
(7) Did the respondent fail to comply with the statutory dismissal procedures and if so is the claimant entitled to an uplift in compensation?
At the outset of the hearing the claimant indicated that it was not proceeding with legal issue 7.
Findings of fact
4. In setting out our findings of fact the tribunal has addressed the 21 factual issues for determination at the Case Management Discussion on 15 April 2010.
(1) The claimant was born on 23 October 1958 and is a gay man.
(2) The respondent is the governing bodies of Whitehead Golf Club and represents all the club’s members.
(3) Following a recruitment competition the claimant was offered the position as senior bar steward on 29 April 2009.
(4) The claimant accepted and commenced work on 12 May 2009.
(5) The tribunal does not accept that the claimant was required to work a probation period. There was a complete conflict between the parties and the only other objective evidence is the contract of employment and letter of offer which do not mention working a probation period.
(6) The claimant’s contract was for 39 hours per week. There was a provision for overtime. His weekly salary was £369.74 gross and £285.00 net.
(7) In his work the claimant’s line manager was Malcolm Overton, the bar convener. Some flexibility was permitted in his contract regarding hours, ie of 10 minutes. He did some work at home, eg staff rotas on his computer, and washing of cloths for the bar although the duties could have been done in the respondent club. While most of his duties were within the club he had to lodge money in the bank account once or twice per week.
(8) The claimant did not mention his sexuality in the club. Some club members knew he was gay from the outset, some did not know and some discovered he was gay during his employment.
(9) Around the time of the claimant’s appointment the respondent was aware of a considerable problem with stock loss, though its cause or causes were not known.
(10) Within weeks of his appointment the claimant had a conversation with the Ladies Captain, Isobel Day. During the conversation he informed her that his partner’s name was Robert. The claimant believes that from when that knowledge became more widely known the attitude of the club, through its officers, and members changed towards him.
(11) The claimant believes that after his sexuality became more widely known that a number of members of the club and Council members made comments of a lurid, sexual and homophobic nature. The respondent denies this vehemently.
(12) The tribunal is not persuaded in general terms of this assertion. The claimant in the course of his evidence was shown to be inaccurate at best or untruthful at worst in his evidence, eg on details concerning ownership of property and his previous work history.
(13) The tribunal accepts two comments of a homophobic nature were made. A customer, Eddie Fitzgibbon made such comments. Sheila Arthur, the catering convener, made comments to the effect that, “pink suits you – its your colour”. That these comments were made was not denied. The claimant did not make a complaint about these comments to anyone.
(14) On 14 August 2009 a function was on that evening. Malcolm Overton, the bar convener, had given the claimant permission to close the bar early if no one was left drinking when a late licence had been obtained. Though this may be at odds with what the respondent says in its response the tribunal found Mr Overton an impressive witness. Arising from queries raised at a Council meeting before this date the Council had decided that the bar must remain open where a late licence has been obtained until the permitted closing time. The tribunal accepts the claimant was unaware of this. The Captain however told him in a forceful manner. The tribunal is not persuaded that the Captain was aggressive or that an apology was sought. Again there is a straight conflict on the evidence. The tribunal found John Thompson more reliable than the claimant in his evidence.
(15) Historically the club permitted staff members to borrow bottles of alcohol from the bar on the condition that it would be replaced. That tradition was stopped in 2009 at the time the club was addressing the stock loss.
(16) Jamie Wallace had been barman for a number years. His father was a past captain and Jamie was well liked.
(17) In May 2009 the claimant undertook a stock take. As a result of that it emerged that Jamie Walker had taken a bottle of Barcardi on 7 May 2009 and had not replaced it by 22 May 2009. Jamie Walker received a written warning for this on 22 May 2009 – to last for six months.
(18) On 17 May 2009 Jamie Walker removed another bottle of Barcardi. This matter came before the Council. There was a debate, with some members regarding it as theft and others believing Jamie Walker intended to replace the bottle. The Executive Council had suspended Jamie Walker on 13 June 2009 by reason of this second incident. The Council regarded the second incident as gross misconduct and gave him a final written warning. The respondent did not follow the disciplinary procedure correctly with Jamie Walker.
(19) Jamie Walker had turned up for work on 13 June 2009 in an intoxicated state, potentially a gross misconduct offence. He did not face any disciplinary action for this incident because the Executive Council had already taken the decision to suspend him from that day.
(20) At the Council meeting on 16 June 2009 which decided to administer a final written warning to Jamie Walker the Council agreed to encourage him to find help for his drink problem. During the course of the meeting an eloquent plea had been made to help Jamie Walker, from the Treasurer who had family experience of death and serious illness caused through drink. This had influenced the Council.
(21) At a number of Council meetings questions had arisen; about the number of hours overtime claimed by the claimant; that he was not seen around the club at times; and about the number of part-time bar stewards employed despite the club having two full-time stewards.
(22) Malcolm Overton sought direction from Council on 27 August 2010 about how the claimant would do bank lodgements or stock take if he was expected to be in the bar during his 39 hours. He did not receive any directions or advice.
(23) It was alleged that the respondent’s chef had closed the restaurant early on Wednesday 2 September 2009. The claimant informed the catering convenor of this and she in turn spoke to the chef on Thursday 3 September 2009.
(24) Thereafter the chef sought out the claimant but could not find him on the premises. This was all reported to the Captain, John Thompson, who asked Mr Lambe to check the cameras to see if the chef had left early on 2 September 2009 and if the claimant was on the premises on Thursday 3 September 2009 between 11.00 am and 2.00 pm when he was scheduled to be in work.
(25) Mr Lambe checked the cameras. It was ascertained the chef was in work on 2 September 2009 and the claimant did not appear on the cameras at all during 3 September 2009. The claimant says he was in the store room and had come in earlier.
(26) The respondent asserted that if the claimant was on the premises between 9.00 am and 6.00 pm he would have appeared on one of the cameras. This was not challenged nor was an explanation offered as to how the claimant could have come in to and left the premises without appearing on one of the cameras.
(27) The investigation by the camera showed that the claimant left the premises at 1541 hours on Sunday 6 September 2009. He was scheduled to be on duty until 1800 hours. The claimant accepts he left early but claimed in his time sheet to have been there to 1800 hours. He explained that as essentially taking time off in lieu of additional duties done by him during the week.
(28) It is not contradicted that the claimant did extra duties during the week. For some he claimed overtime for which he was paid and for two hours 19 minutes he took time off in lieu.
His contract does not provide for time off in lieu nor is there a practice of so doing within the club. Nor did he ask nor was he given permission to do so.
(29) These matters, with the stills from the cameras of the claimant leaving the premises, were presented at the Council’s meeting on 14 September 2009. The claimant was discussed and some seven criticisms were made of the claimant, including his time sheets. Following the discussion the respondent decided to dismiss the claimant.
(30)
The Council failed completely to
follow its disciplinary code in arriving at this decision. The Council minutes
do not record a finding of gross misconduct against the claimant through there is
a reference to him being on his probation period.
(31) The tribunal is not persuaded that Isobel Day and Terry McIlroy, following the Council meeting, in the bar made a comment “the queer bastard has been sacked”.
Both individuals deny such a claim, but more importantly the claimant does not assert that of his own knowledge. His evidence is that Zoë Brown, a bar person with the respondent at the time, reported to the claimant that another bar person, Richard Sheriff, had related this alleged conversation.
Zoë Brown gave evidence to the tribunal and denied having been told that by Richard Sheriff or telling it to the claimant.
(32) The claimant accepts that he did not report any alleged harassment.
(33) On 15 September 2009 the Captain, John Thompson, and the Vice-Captain, Eamonn McAllister, met the claimant to inform him that he had been dismissed following a decision of the Council. The Captain told the claimant that he was dismissed because of discrepancies in his time sheets and attendance record. He also mentioned that he was still on his probationary period. Though there was an exchange between the claimant and the Captain and Vice-Captain it was to no avail as the Captain and Vice-Captain believed there were required to implement the decision of the Council and had no authority to change it.
(34) By letter of 19 September 2009 the claimant appealed the decision to dismiss him. He challenged the dismissal because:-
(a) it was procedurally flawed;
(b) the penalty was unfair as Jamie Walker had not been dismissed for his gross misconduct;
(c) that the dismissal was based on the claimant’s sexual orientation;
(d) that his contract of employment for 39 hours per week permitted flexibility, and
(e) that he denied breaching confidentiality or describing the Captain as a “*******”.
He further claimed that he had suffered wrongful dismissal, sexual discrimination and constructive dismissal.
(35) An appeal hearing took place before three members of the Council, Robin Patrick, Jim McAlister and Trevor Greenwood. The three were selected because they had not been to the Council meeting which decided to dismiss the claimant.
(36) Before the appeal hearing the Chairman of the panel, Robin Patrick, discussed the dismissal, the reasons for it and the evidence with a number of Council members who were at the Council meeting when the decision to dismiss was taken. He also discussed this with the panel members acquainting them with what he had learnt.
(37) The appeal hearing took place on 29 October 2009. The appeal panel agreed with the Council’s decision and recommended to the Council on 16 November 2009 that the decision to dismiss the claimant should be upheld. The Council accepted the recommendation and the claimant was informed of the outcome by letter of 17 November 2009.
(38) The decision of the appeal panel recorded that the decision to dismiss was for the inconsistencies in the claimant’s time sheet which was formerly recorded for the first time as gross misconduct.
The claimant was permitted to make his submissions. He raised a matter that Mr Overton had permitted him flexibility in doing his hours. The panel undertook to investigate that matter with Mr Overton which it did but did not report the outcome to the claimant.
(39) The appeal hearing was flawed also from the point of view of what is good practice in disciplinary hearings. They had private discussions with the original decision-makers and the occurrence of such discussions was neither told to the claimant nor their contents revealed. Similarly the outcome of the further investigations were not told to the claimant to enable him to comment.
The appeal panel could not make a finding only a recommendation. Therefore the original decision-making body, the Council, also decided the appeal.
5. The law
(1) It is unlawful for an employer to discriminate against another on the grounds of sexual orientation (Regulation 6(2) Employment Equality (Sexual Orientation) Regulations (Northern Ireland) Order 2003).
(2) It is unlawful for an employer to harass another on the grounds of sexual orientation (Regulation 6(3) Employment Equality (Sexual Orientation) Regulations (Northern Ireland) Order 2003).
(3) Discrimination on the grounds of sexual orientation is to treat someone less favourably than another on the ground of sexual orientation (Regulation 3 Employment Equality (Sexual Orientation) Regulations (Northern Ireland) Order 2003).
(4) Harassment is to subject another to unwanted conduct which has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other on the ground of sexual orientation (Regulation 5 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) Order 2003).
(5) It is for the claimant who complains of discrimination on the grounds of sexual orientation to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act to which regulation 34 applies or which by virtue of Regulation 24 or 25 of Employment Equality (Sexual Orientation) Regulations (Northern Ireland) Order 2003 is to be treated as having committed such an act against the claimant (Regulation 35 of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) Order 2003).
(6) The Northern Ireland Court of Appeal in McDonagh & Others v Samuel John Hamilton Thom t/a The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812.
In the McDonagh case the Northern Ireland Court of Appeal recommended the tribunals adhere closely to the guidance in Igen.
The guidance set out in the Annex to the Igen case is:-
“(1) Pursuant to section 63 of the SDA it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part (II) or which by virtue of section 41 or section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to as ‘such facts’.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word ‘could’ in section 63A (2). At this stage the tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s74 (2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s74 (2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section s56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”
(7) In the McDonagh case Kerr LCJ, as he then was, stated that the first question to be addressed is has the claimant proved, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. He went on to say:-
“In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind. First, that it is unusual to find evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”
(8) The application of the burden of proof was also considered in Madarassy v Nomura International PLC [2007] EWCA CIV 33. In that case Mummery LJ, who gave the decision of the English Court of Appeal, stated in paragraph 52:-
“She [Madarassy] only has to prove facts from which the tribunal ‘could’ conclude that there has been unlawful discrimination by Nomura, in other words she has set up a ‘prima facie’ case.”
At paragraph 56 he stated:-
“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainants simply to prove facts for which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. 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 has committed an unlawful act of discrimination.”
The learned Lord Justice elaborated on “could conclude” at paragraphs 57 and 58:-
“’could conclude’ in section 63 A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This will include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage …., the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the claimant were of like with like as required by
section 5(3) of the 1975 Act; and the available evidence of the reasons for the differential treatment.
The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”
Further clarification was given by Mummery LJ at paragraph 71:-
“Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the claimant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it is not on the grounds of her sex or pregnancy.”
(9) In the decision of the Court of Appeal in Kevin Curley v the Chief Constable of the Police Service of Northern Ireland and Superintendent Middleless [2009] NICA 8 Coghlin LJ commented further on shifting the burden of proof in discrimination claims and stated as follows:-
“However, this court would wish to emphasis the need for a tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim is founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”
(10) The Northern Ireland Court of Appeal in Nelson v Newry & Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing v Manchester City [2006 IRLR 748 when he stated:-
“74 The focus of the tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination that is the end of the matter. It is not improper for a tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race.”
(11) To succeed in a claim for discrimination on the ground of sexual orientation a claimant must show that the respondent treated him less favourably than he treated or would treat other persons on the ground of sexual orientation.
In comparing the cases of persons of different religious belief the relevant circumstances in the one must be the same or not materially different from the other.
(12) In Shamoon v Chief Constable of the RUC (HL) [2003] ICR 337 the House of Lords gave helpful guidance to tribunals’ faced with the task of assessing whether a claimant has established the evidentiary ingredients to prove discrimination. Lord Nicholls stated at page 342 paragraph 12:-
“The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases were it is convenient to decide the less favourable issue first.”
(13) In Nagarajan v London Regional Transport [1999] ICR 877, 884 Lord Nicholls said:-
“…Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”
(14) The less favourable treatment element may be established by reliance on an actual comparator or a hypothetical comparator.
(15) The decided cases indicate that it is usual, in assessing whether discrimination has been proved on prescribed grounds, for tribunals to rely on inferences and deductions from facts found because it is unusual for direct evidence of discrimination to be available.
(16) In the Curley case Coghlin LJ referred to the Sergeant A case and to a statement made by Carswell LCJ at page 273:-
“[3] Discrepancies in evidence, weaknesses in procedures, poor record keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer may all constitute material from which an inference of religious discrimination may legitimately be drawn. But tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination especially where other evidence shows that such a conclusion is improbable on the facts.”
(17) The tribunal cannot consider a complaint to which the statutory grievance procedure applies and which has not been the subject of a grievance (Article 19 The Employment (Northern Ireland) Order 2003).
6. Application of the law and the findings of fact to the issue
Discrimination
(1) The tribunal accepts that Jamie Walker is a comparator for the purposes of this claim.
(2) The claimant has established a difference in status. Jamie Walker is heterosexual and the claimant is homosexual.
(3) It is clear from the above findings of fact that the claimant was treated less favourably than Jamie Walker. The less favourable treatment included:-
(a) on the disciplinary issue of arriving for work in a state of intoxication, which is gross misconduct under the respondent’s disciplinary code, Jamie Walker did not face any charge;
(b) on this disciplinary issue of removing the first bottle of Barcadi, which is gross misconduct under the code he was charged with major misconduct;
(c) despite a finding of gross misconduct in relation to the second removal of Barcardi, against Jamie Walker, added to a disciplinary record, he was not dismissed but given a final written warning;
(d) the claimant was dismissed for his first offence;
(e) the attitude of the respondent in seeking mitigation for Jamie Walker before deciding on the penalty whereas none was advanced for the claimant; and
(f) the expressed desire of the respondent to help Jamie Walker whereas the approach to the claimant did not manifest the same sense of care.
(4) Whilst the evidence has not established the claimant’s complaint of a campaign against him on the grounds of his sexuality the tribunal has found that Eddie Fitzgibbon and Sheila Arthur made comments that establish prima facie evidence of the less favourable treatment being done on the grounds of his sexual orientation.
(5) Accordingly the burden shifts to the respondent to establish that its actions are not tainted by unlawful discriminatory consideration.
(6) The respondent advances two reasons for its treatment of the claimant and Jamie Walker:-
(a) that the claimant was dismissed because he claimed payment of salary for Thursday 3 September from 11.00 am to 2.00 pm and 3.42 pm to 6.00 pm on Sunday 6 September during which periods of time he was not at work; and
(b) that Jamie Walker’s more lenient treatment arose from his long service and the fact that he had an alcohol problem and the respondent wished to help him.
(7) The claimant’s explanation for the inconsistencies between his time sheets and the time worked are not credible for a number of reasons which include:-
(a) the claimant did not provide any evidence of how he could be on the premises on Thursday 3 September from 11.00 am to 2.00 pm and not be recorded in any of the cameras between 9.00 am and 6.00 pm;
(b) in relation to the Sunday 6 September there was no evidence to support his contention that the flexibility of 10 minutes allowed to him by Mr Overton extended to over two hours;
(c) the respondent does not operate a system of time off in lieu. There was therefore no basis for the claimant for doing that without permission and there was no permission; and
(d) it was not explained why the claimant when he was claiming for extra hours worked chose to deal with some of those hours by an overtime claim and others by taking time off in lieu.
(8) The two findings which give rise to the prima facie evidence of discrimination on the grounds of sexual orientation do not assist the claimant, for the following reasons:-
(a) Eddie Fitzgibbon was a customer of the club. There was no evidence before the tribunal that he was a member of the club, much less a Council member. Therefore any comments made by him are not the responsibility of the respondent.
Neither does the respondent have responsibility for not taking action once they had been said as the claimant did not report these comments to management.
(b) The comments of Sheila Arthur about pink suiting the claimant are capable of going towards evidence of discrimination on the grounds of sexual orientation. However this particular complaint was not the subject of a grievance and therefore cannot be considered as a complaint by the tribunal.
(9) Accordingly the tribunal finds that the explanation advanced by the respondent is free from any taint of discrimination.
(10) Therefore the tribunal dismisses the claimant’s claim for discrimination on the ground of his sexual orientation.
(11) The only instance of conduct that could constitute harassment as found by the tribunal is the comment of Sheila Arthur.
The tribunal is not persuaded that that had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading or humiliating or offensive environment. In so concluding the tribunal took into account the following matter:-
(a) It was a single comment that permits a benign interpretation as well as a malign one.
(b) Ms Arthur did not give evidence so we do not know her reason for making such a comment.
(c) The claimant did not complain of it at the time, nor subsequently.
(d) It was not included in his letter of grievance which is quite comprehensive.
(e) It is not mentioned in his claim form which is also quite comprehensive.
Accordingly the tribunal is not persuaded the claimant suffered harassment.
(12) It is clear that the respondent did not follow its disciplinary policy which is part of the claimant’s contract of employment. The respondent did not seriously challenge that.
The tribunal finds that the claimant’s contract of employment was breached and therefore he suffered a wrongful dismissal. Had the proper procedure been followed the tribunal believes the claimant would have been dismissed.
(13) The tribunal did not have the benefit of argument or authorities on the issue of remedy for wrongful dismissal.
Doing the best it can the tribunal considers that the correct approach is to ascertain what was the loss to the claimant of the respondent not having followed the disciplinary code. The tribunal considers that had the respondent followed it correctly it could have accomplished that in two months. The loss to the claimant is two months’ salary.
Accordingly, we award the claimant two months salary which we measure at £2,470.00.
(14) This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 – 25 June 2010;
16 -18 August 2010;
6 – 9 September 2010; and
15 – 16 September 2010, Belfast
Date decision recorded in register and issued to parties: