Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1777/10

 

 

 

CLAIMANT:                          Michael Gutulan

 

 

RESPONDENT:                  F G Wilson (Engineering) Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claims of unfair dismissal, unlawful discrimination and breach of contract are dismissed.

 

Constitution of Tribunal:

Vice President:                   Mr Noel Kelly

Members:                             Mrs Eileen Kennedy

                                                Mrs Theresa Kelly

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr P Bloch, of Engineering Employers Federation.

 

Issues

 

1.         The legal and factual issues were agreed at a Case Management Discussion on 11 November 2010.  They were:-

 

                        Legal Issues :

 

(1)       Was the claimant discriminated against on the grounds of his race as alleged or all?

 

                        (2)       Was the claimant victimised as alleged or at all?

 

                        (3)       Did the claimant suffer breach of contract as alleged or at all?

 

(4)       Was the claimant discriminated against on the grounds of his sexual orientation as alleged or at all?

 

(5)       Was the respondent in breach of the dispute resolution regulations as alleged or at all?

 

(6)       Was the claimant dismissed, constructively, or at all?

 

Factual Issues :

 

(1)       Was the claimant employed by the respondent from in and around January 2007 or from 22 July 2007 having been previously employed under contract for service with Time Lewis Recruitment?

 

(2)       Were the claimant’s allegations of harassment, bullying and racial abuse fully investigated by the respondent and found to have no substance?

 

(3)       Did the respondent correctly find the claimant not to have been subjected to taunts regarding his sexual orientation?

 

(4)       Did the claimant submit a frivolous and vexatious grievance which had already been aired by the claimant in and around 19 April 2010?

 

(5)       Was the claimant at all times treated properly by the respondent’s Occupational Health Department?

 

Background

 

2.         The claimant is an electrician.  He has British nationality but his national origin is Romanian.  He was employed as an agency worker with the respondent from January 2007 to 22 July 2007.  He started work as a direct employee of the respondent on 23 July 2007 and resigned with effect from 19 July 2010. 

 

3.         The respondent is a manufacturing company producing industrial generators. 

 

4.         The claimant is fluent in English and did not require the services of an interpreter.  However, when appearing before the tribunal the claimant was reluctant to give details in relation to his claim and was vague and imprecise in his evidence.  Despite repeated requests from the Vice President, the claimant largely confined himself to generalities rather than clear and specific evidence.  Much of what he said appeared to be assumptions on his part rather than evidence of incidents or actions which he had observed.  It may be that the claimant did not do himself justice in the manner in which he gave his evidence.  However, there is a limit to what a tribunal can properly do to encourage a party to develop his evidence and his case.  For that reason, and unusually, the claimant’s evidence is set out in some detail in this decision.  If that approach were not adopted, it would be difficult to understand the basis on which the tribunal has reached its decision in this case. 

 

Claimant’s evidence

 

5.         The claimant described what was ‘the first racist event’.  He said that a supervisor had just returned after six months absence and that ‘someone took advantage of him returning to show these things – photographs of unfinished work presented as bad work’.  The claimant said that he and two Czech workers were asked to stay behind.  They were shown the photographs and were then shown how to wire the relevant circuits properly.  In giving evidence the claimant was very exercised that his work had been corrected.  He stated ‘to take photos of unfinished work – can’t find a term for it’.  He stated that he had a degree and was experienced.  When asked by the Vice President to be specific about the incident and about the basis on which he was alleging it had been racist, the claimant said ‘3 foreigners were pulled for it – others were not pulled at all – the dayshift were dismantling our work because someone there wants to show who is boss’.  He did not identify who had not been ‘pulled’ for the ‘unfinished’ or ‘dismantled’ work.  He did not say that the supervisor was either rude or abusive.  He said that the supervisor had been taken advantage of by others.

 

6.         The claimant alleged that he had suffered racial abuse and taunts since he joined the respondent company in 2007.  As indicated above, and despite repeated requests from the tribunal, the claimant did not give evidence of any specific remarks or taunts which had a racial overtone.  For example, he stated in evidence that:-

 

“Some people like to show off, there were a few bad apples, that people had too much time on their hands and a lot of bitching went on.”

 

He focused his allegations, to the extent that they were focused at all, on a particular work colleague.  Given the nature of these allegations, that work colleague will only be identified in this decision as ‘Mr Y’.

 

7.         The claimant spent a period engaged in semi-skilled work after joining the respondent company.  He then worked in an area known as ‘Bay F’.  He was moved to a different area known as the Special Engine Section at about the beginning of 2009.  The claimant alleged, in evidence, that some of his friends in his previous location had created a ‘bad atmosphere’ for him in his new post.  When questioned by the tribunal he stated that ‘this was obviously Mr Y’ and that it was ‘very likely’ Kyle Surgeoner was also involved.  When pressed to be more specific as to what he was alleging that either of those individuals had done or said, the claimant said ‘from what I heard, it was mentioned that no one wanted to work with me’.  Again, the claimant gave no evidence of any racial comments or taunts and did not state in evidence that he had directly observed the behaviour of which he complained and he did not identify who had told him that rumours had been spread about him.  It appeared to the tribunal that he had simply made an assumption that this had occurred and had made an assumption that Mr Y and possibly Mr Surgeoner had been involved. 

 

8.         He then referred to ‘the trouble in GF2 (the Special Engine Section)’.  He did not explain what this ‘trouble’ consisted of, in either his evidence, his claim form or elsewhere in the documentation. 

 

9.         The claimant stated that he was then moved to an area known as the Flow Line after nine to ten months.  He stated that Mr Y had started a conversation with one of the fitters and that these conversations had continued.  He alleged that these conversations occurred daily and consisted of jokes about homosexuality.  The claimant stated that he had asked them both to stop and that he had never worked ‘in such a rude environment’. 

 

10.       The claimant stated that he had complained to his charge hand, Kenneth Hunter, and had gone to see the supervisor, Mr Barry Heasley.  The claimant signed a grievance statement on 2 January 2010 alleging that Mr Y had been bullying and harassing him for two years.  He stated that he was ‘constantly making criticisms of my work’.  He alleged that Mr Y was turning other people against him and that Mr Y had on one occasion said that he (Mr Y) was high on drugs.  In his evidence he also described Mr Y as a homosexual and a ‘weirdo’.  In the grievance statement he referred specifically to an incident in which he said Mr Y had incited a fitter to ask the claimant if he was wearing the right type of protective gloves (Kevlar gloves) for a particular job.  He did not allege in the grievance or indeed before the tribunal that any racially abusive language was used but he regarded this incident, in which his use of personal protective equipment was queried, as an act of racial abuse. 

 

11.       In his evidence before the tribunal, the claimant alleged that Mr Y had told him and others to slow down when the charge hand was present and to speed up when the charge hand was not present.  He said that ‘something was going on between Kenneth Hunter and Mr Y’.  He stated that Mr Y was ‘so anxious’.  He stated that in one particular weekend, Mr Y had shouted at him every 10 minutes for mistakes that he alleged the claimant was making in work and that Mr Y was, at times,    hung-over from drink or drugs.  He again stated that Mr Y was a homosexual and that he, the claimant, did not know ‘how these people think’. 

 

12.       The grievance statement raised on 2 January 2010 finished with the words ‘I have nothing against Mr Y.  I just want to get on with him’.  The grievance was not upheld.  The claimant stated in evidence that it was ‘suspicious’ that Mr Hunter (the charge hand) and a fitter took sick leave at about that time.  The claimant also stated in evidence that he had ‘heard’ that Mr Y had friends high up in the respondent’s organisation. 

 

13.       This decision will later deal in more detail with the investigation of the grievance which led to the decision not to uphold the grievance, but in terms of the claimant’s evidence, that evidence moved immediately to the meeting on 9 March 2010 where the claimant had been told by Ms Aimee McRandall that his grievance had not been upheld.  During that meeting, the claimant was recorded as stating that ‘he only has his job left as everything else has been destroyed and said the only thing left for him is suicide or to leave the country.  He feels he has lived in terror for the past three years and asked for help from the police, counsellors, etc who have all been against him’.  He was also recorded as having stated that ‘his wife had put bleach into him.  He had to go to A&E and could not get a job because of them’.  The claimant went onto say that ‘they allowed him to get a job eventually and commented that he was blackmailed by his solicitor.  He explained he has been alienated by his family and friends and has nothing left only his job.  He thinks it would be convenient for him to be sacked’. 

 

14.       The claimant, in his evidence, did not dispute the record of this meeting.  He simply stated that words he had used had been misinterpreted. 

 

15.       The claimant went on to state that he was called to another meeting the following day.  A Mr T Louden, who was in charge of Health & Safety in the respondent company, was present together with Ms McRandall and a Mr Gareth Donaghy.  The claimant, in evidence, described the meeting as ‘the strangest thing’ – ‘the worst abuse I ever had in my life’.  In his statutory questionnaire he had described it as a ‘four hour Gestapo-style interrogation’ and he insisted to the tribunal that this description was accurate and justified.  At this point in his evidence, the claimant returned to what was a constant theme throughout his evidence, ie references to an incident with a different employer which apparently resulted in another tribunal case where ‘this’ had happened to him before and that the previous employer had been involved with his wife and that it was all ‘tricks and cheats’.  When directed to concentrate his evidence on his complaints about the current respondent, the claimant stated that Mr Louden had shouted at him repeatedly during the meeting – ‘it was like something out of a horror film’.  Despite encouragement from the tribunal, the claimant did not state what he was alleging Mr Louden had said other than it was said that ‘you think everyone is against you’.  The claimant was asked specifically by the Vice President what had been said by Mr Louden and his response was ‘God knows – cannot remember’.  When he was then asked ‘you cannot remember what he said?’, the claimant paused for perhaps a minute and said ‘all these words about suicide – I said I was not going to do it, just because some drug addict was harassing me’ – ‘it was obvious the purpose of it – he wanted to bring the nurse – I couldn’t stop him’.

 

16.       The claimant stated in evidence that a Occupational Health Nurse then joined the meeting.  He stated she had been very worried about him and had held his hand and asked him what was wrong.  She arranged an emergency appointment with the claimant’s own GP later that same afternoon at 4.00 pm.  The claimant stated in evidence to the tribunal that he had been kept prisoner under the guard of two nurses for the remainder of the afternoon.  He stated that a nurse had observed him when he went outside for a smoking break.  He stated, however, that he drove himself to his own GP’s surgery for the 4.00 pm appointment in his own car.  He stated that a Occupational Health Nurse followed him in her own car. 

 

17.       He stated that his own GP had signed him off on the sick as a result of stress.  The claimant seemed to complain that this had, in some way, been arranged by the respondent.  He stated that he had ‘no idea’ what the respondent or the Occupational Health Nurse had told his GP.  He alleged that the fact that his own GP had signed him off on the sick was a plot on the part of the respondent to cost him money and to get rid of him.  He stated that after eight weeks on sick leave he would had gone on to half pay.  The claimant stated in evidence that he had explained the ‘game that Aimee (McRandall) was playing and that she (the GP) understood’.  The claimant also complained that the respondent provided a course of six weeks counselling and that after one week, the Counsellor said he could not help him.  He stated ‘I have been imposed to do counselling and see a Psychiatrist.  I was the victim and I was the one punished’.

 

18.       The claimant stated in evidence that he had lost three days’ pay as a result of his GP signing him off on the sick.  The respondent’s contractual sick pay arrangements were such that no contractual sick pay was paid for the first three days of any absence. 

 

19.       The claimant returned from sick leave after six weeks absence.  He then stated in evidence that people had ‘fabricated’ mistakes in his work.  He furnished a further grievance on 19 April 2010 which replicated the original grievance.  The claimant had a meeting with a manager in the respondent company, Mr Gerry Ward, who determined this second grievance was simply a repetition of the first and was therefore frivolous and vexatious. 

 

20.       The claimant stated in evidence that he had been told by his then solicitor to resign and that he did so on his advice.  He saw his solicitor on 9 July 2010 but was unable to deliver the resignation letter dated 9 July 2010 to the respondent until after the 12^th of July break. 

 

21.       When asked by the Vice President to explain further why he had resigned, the claimant gave a further and different answer.  He stated that the atmosphere at work was impossible.  When he was asked specifically whether this had to do with his racial origins, he said ‘it is the way we were treated – three foreigners were pulled about mistakes in their work’.  When asked for specific incidents, the claimant said ‘the initial thing that I mentioned – all that happened in HR – all racist – it will go on for ever’.

 

22.       The claimant asked again whether he had covered everything in his evidence.  The reply was that it was ‘very difficult’.  He was advised by the Vice President that he had to be specific in his evidence.  The claimant then raised an issue about a Case Management Discussion and alleged that the fact that he had been given documents on discovery shortly after that Case Management Discussion rather than before the Case Management Discussion was an act of unlawful discrimination on the ground of race.  He also complained that the initial listing of the tribunal hearing had been moved to facilitate Mr Bloch.  He alleged ‘this is discrimination by Mr Bloch’. 

 

23.       The claimant was asked again to give evidence relating to any other incident in relation to his claim against the respondent.  He stated ‘I have to limit myself at some point or I would be here for a whole year’.  The claimant was asked again to give evidence in relation to his complaint.  His response was ‘that should be enough – I have to stop somewhere’.

 

24.       After being asked questions by the Vice President about his financial loss, the claimant was again asked was there anything else he wanted to say in relation to his claim.  The claimant referred to discrimination in relation to the discovery of documents and then said he had ‘nothing else’. 

 

Evidence of the respondent

 

25.       The respondent called two witnesses, ie Ms Aimee McRandall and Mr Gerry Ward. 

 

26.       Ms McRandall worked in the Human Resources Department in the respondent’s organisation.  She was tasked to look into the claimant’s first grievance.  She referred to the signed grievance dated 2 January 2010 and confirmed that no where on the two pages of that grievance was there any mention of race. 

 

27.       Ms McRandall confirmed that she wrote to the claimant on 9 January 2010 to arrange a meeting with the claimant and Mr Gareth Donaghy, the Bay F Group Manager, to hear his grievance.  She identified the handwritten notes of that grievance meeting which took place on 10 February 2010 and confirmed that that was an accurate record and that nothing had been left out.  She stated that the claimant had been given sufficient time to explain his complaint.  The handwritten notes of the meeting comprised nine A4 pages. 

 

28.       During this meeting, the claimant’s complaint was that Mr Y had constantly commented on his work and that, when the charge hand was absent, he would become agitated and rush the team to get the work done.  He stated that he had been told that Mr Y was a homosexual ‘via gossip, which has proven to be true’.  The claimant stated that Mr Y had queried his work, in particular, over the course of one weekend (unspecified date) and that he believed that Mr Y had started to use others against him.  The claimant had stated that he was unsure ‘if Mr Y is annoying employees as well as him’.  He stated that he was worried about Mr Y’s ‘aggressiveness and interference with his work’.  The claimant had been asked for specific examples.  He stated that he had moved to GF2 and that he did not know why Mr Y ‘is saying things about him’.  He stated that he had then moved to Flow Line after making mistakes in GF2 and that one of the fitters had become aggressive towards the claimant in his jokes which were all about homosexuality.  He stated that he had asked the fitter to stop talking to him in that way.  He stated that he thought Mr Y was tampering with his work.  He stated that two other individuals were critical of his work but that he (the claimant) knew his work was correct.  The claimant referred again to what he described as ‘continuous harassment’ by Mr Y and stated that he thought Mr Y may have a drug problem but admitted that this was only a suspicion.  He stated that Mr Y had said to him at one point ‘we are high on drugs’.  He did mention one particular incident which he said that Mr Y had noticed that the claimant was wearing rubber gloves while cutting material with a knife.  He saw Mr Y make a signal to a fitter to say something to the claimant about his gloves.  The claimant pulled his rubber gloves down quickly to show that he was wearing a Kevlar glove below a rubber non-slip glove and stated that the fitter was being ‘led by Mr Y to damage him’. 

 

29.       Mr Donaghy had asked the claimant if there had been any racial comments made towards him.  The recorded response is confusing.  According to the notes and the clear evidence of Ms McRandall, the claimant stated that he was a Romanian and that there had been bad image of Romania portrayed in the media over the years.  He did not answer the question directly and did not say whether there had been or had not been racial comments and he certainly did not specify any such comments.  Mr Donaghy had again asked the claimant who had made racial comments towards him.  The claimant replied that another worker had asked him once when he was going home but he said he took this as a joke.  He knew it was not a joke but treated it as a joke.  He then went onto refer back to what he had described before the tribunal as the initial incident where he and two Czech workers had been spoken to about mistakes in their work.  After describing this incident he then said that there had been many events and incidents but said it would take too long to go through them all. 

 

30.       Ms McRandall then interviewed a series of potential witnesses and gave hearsay evidence about what those witnesses had said to her.  Ms McRandall and Mr Donaghy interviewed Mr Y on 23 February 2010.  Mr Y had stated that he was surprised that the grievance had been raised against him and denied any allegations of bullying and harassment.  He stated that the incident concerning the Kevlar gloves had occurred and that he had commented on the gloves being worn by the claimant but he had done this openly in the presence of everyone.  He stated that the claimant had brought letters from a DUP Councillor into work and that the claimant had talked a lot about the problems that he had had with his ex-wife.  He denied that he or anyone else had been aggressive towards the claimant and that he had never heard racist comments being made towards the claimant.  He stated that the claimant came to work with outrageous stories and was always playing the victim. 

 

31.       The next person interviewed by Ms McRandall was Brian Welsh, a Manager in the respondent’s organisation.  Mr Welsh stated that he could remember an occasion on which the claimant had complained that the charge hand had been giving him awkward work.  He had investigated the matter and found no reason to believe that the claimant was being treated differently.  The claimant had believed that Mr Y had been given easier jobs.  He had simply separated the claimant and Mr Y as they were arguing all the time.  He stated that the claimant was always talking about his ex-wife leaving him for a man that he had worked with and that the claimant believes that this man tried to stop him getting a job in Northern Ireland and was continuing to make his life difficult.  Mr Welsh said the claimant was always talking about his personal life in work. 

 

32.       The next person to be interviewed by Ms McRandall and Mr Donaghy was Mr Gary Hastings.  He was another electrician who had worked with the claimant.  His statement was that the claimant ‘tells stories and talks crap about the problems he has with his wife’.  He stated that the claimant ‘talks about being poisoned with bleach and says the solicitors in Northern Ireland are bandits.  He thinks they are working for his ex-wife and her boyfriend’.  He stated that he had never witnessed any aggression from other employees towards the claimant. 

 

33.       Ms McRandall and Mr Donaghy then interviewed Mr John Magill.  She stated that Mr Magill had stated that the only banter that he had heard was that the claimant had said that he was American as a joke and that Mr Magill had then joked that Americans should go home, but he stated that he had never mentioned anything about the claimant being Romanian.  He stated that the claimant had taken all this in good humour.  He said that he and the claimant had always been friendly but that the claimant had stopped speaking to him some three weeks ago.  He said he thought the claimant was ‘nuts’ as ‘he believes all nurses, doctors and solicitors in Northern Ireland have been turned against him by his ex-wife’. 

 

34.       The next person interviewed by Ms McRandall and Mr Donaghy was a Mr Ciaran McNamee, a supervisor who had had responsibility for the claimant and for Mr Y.  Mr McNamee had referred to his 2008/2009 diaries and these confirmed that there had been a falling out between the claimant and Mr Y.  Mr McNamee explained that in his view the two employees had been annoying one another.  The claimant had brought a letter to work to prove to Mr Y that the claimant’s wife had tried to poison the claimant with bleach.  Mr McNamee had asked both employees to stay away from one another.  Mr McNamee confirmed that he had had to speak to the claimant about his work standards in July 2009 and stated that the claimant rarely accepts his faults and blames someone else.  He stated that the claimant had only told him that he had been harassed when he was referring to the issue between him and Mr Y on 19 August 2008.  He stated the claimant always ‘talks about how everyone is against him and will mention his ex-wife’.  Ms McRandall confirmed that Mr McNamee had not remembered anything being said or alleged of a racial or sexual nature. 

 

35.       The next person to be interviewed by Ms McRandall and Mr Donaghy was Mr Gavin Laverty.  Mr Laverty had been the supervisor who had spoken to the claimant and two Czech workers about their workmanship in June or July 2007, ie the incident described by the claimant as ‘the first racist event’.  Mr Laverty stated that he did not know the three employees very well and could not remember the exact details.  He knew that there were photographs of the incorrect wiring and that these had been shown to the three individuals together with photographs of the correct way the wiring should have been completed.  He said it was more of a training exercise than anything else.  Ms McRandall stated that Mr Donaghy had commented, during this meeting, that he could remember the incident as well as he was the bay manager at the relevant time.  Mr Donaghy had said that all three employees had been inexperienced and were asked about the mistakes that had been made.  Mr Laverty had given them a presentation in the tearoom and had told them how the wiring should be correctly completed.  Mr Laverty had told Ms McRandall that the other two employees took on board what he was saying but that the claimant had argued with him.  The claimant said that he was used to doing things in a different way.  Mr Laverty had said that he had spoken to those three employees, because those were the three employees who had made the mistakes. 

 

36.       The next person interviewed by Ms McRandall and Mr Donaghy was Mr Aaron Glass.  He confirmed the incident concerning the Kevlar gloves.  He could not remember if Mr Y or the fitter had mentioned the gloves but he stated that the claimant had been annoyed and had pulled down the top rubber non-slip gloves to show the Kevlar glove underneath.  He had not heard the issue being mentioned again, except by the claimant who ‘went on about it saying again that he had the correct gloves on’.

 

37.       The next person interviewed by Ms McRandall and Mr Donaghy was Mr Barry Heasley, the Supervisor.  Mr Heasley, who was the relevant supervisor, stated that the claimant had not approached him about harassment.  He said that he thought the claimant’s stories are quite farfetched.  He stated that the claimant and Mr Y had been friendly for a time and that the claimant had even attended a family barbeque at the invitation of Mr Y.  Mr Heasley’s view was that the claimant was linking the allegation of harassment to the mistakes that the claimant makes in his work and that the claimant does not like being ‘pulled’ for making mistakes.

 

38.       The claimant was then invited by Ms McRandall and Mr Donaghy to a meeting on 9 March 2010 to deliver the outcome of their investigation into his grievance.  Ms McRandall told the claimant that they had found nothing to substantiate his allegations against Mr Y and that they would not be taking the matter any further as there was no evidence.  Ms McRandall stated that the claimant became upset at this outcome and she stated the following was an accurate account of what he had said:-

 

“MG explained he only has his job left because everything else has been destroyed and said the only thing left for him is suicide or to leave the country.  He feels he has lived in terror for the last three years and asked for help from the police, counsellors, etc who have all been against him.”

 

            The claimant had then gone on to refer to his difficulties with his previous employer and alleged that his previous employer had asked him to leave the country and had offered him a job in Romania.  He said that his wife had ‘put bleach into him’ and then told Ms McRandall and Mr Donaghy that he was ‘blackmailed by his solicitor’.  He went onto say that ‘he has been alienated by his family and friends and had nothing left only his job’. 

 

39.       Ms McRandall stated that the claimant was very anxious and agitated during the meeting and in her view he had been serious when he talked about committing suicide.  Ms McRandall had spoken to two other more senior managers within the respondent’s organisation about the claimant’s comments in relation to suicide and one of those managers, a Ms Carol Withers, contacted PPC, a counselling organisation, for advice. 

 

40.       The claimant was asked to return to the meeting room later that afternoon.  Ms McRandall stated that Mr Donaghy then explained to the claimant that they had been concerned about his comments that there was nothing else left for him but suicide.  Mr Donaghy offered to fast track a contact with a counselling organisation.  Ms McRandall stated that the claimant had replied saying ‘suicide was an option for him or Purdysburn’.  Mr Donaghy again advised the claimant to discuss his comments about suicide with somebody.  The conversation had continued in relation to the possibility of the claimant seeking counselling provided by the respondent organisation and the claimant again referred to suicide or going somewhere else to live in the context of his ex-wife having ‘destroyed his family’.

 

41.       The conversation continued and at one point, according to Ms McRandall the claimant had commented that his wife was working in a brothel and could therefore see the telephone numbers he was using.  Mrs Withers arranged for a contact with the counselling service. 

 

42.       Ms McRandall stated that she had been so concerned about the way in which the claimant had discussed suicide and his agitation during the meeting on 9 March 2010 that a further meeting had been arranged on the next day with her, Mrs Withers, the claimant and a Mr Tony Louden who was the senior manager responsible for health & safety.  This was the meeting at which the claimant alleged that he had been subject to four hours Gestapo-style torture.  Ms McRandall’s evidence was that Mr Louden had not shouted during this meeting and she referred to a detailed written note of the meeting which she confirmed was accurate.  She stated that Mr Louden had approached the matter sympathetically and had tried to persuade the claimant to use the services of the professional counsellors.  The claimant had again discussed, in detail, his problems with his ex-wife and his former employer and had stated that he (the claimant) believed that his former employer and his ex-wife were keeping him ‘single and alone’.  He stated that ‘his wife told him she had a list of names and numbers of anyone he was friendly with as her lover had access to this type of information’.  The claimant discussed this issue in some detail and at some length at the meeting.  He had stated that he had been threatened and had informed the PSNI.  He had stated his wife had tried to poison him with bleach but that the police did not even investigate.  The claimant told the tribunal that he had tried to explain to Mr Louden ‘what these people do – very nasty people’.  He told the tribunal that ‘they’ harassed him over the telephone and by e-mails and that they tried to make him crazy or commit suicide.

 

43.       Ms McRandall stated in evidence that the claimant had said that Mr Y and another employee ‘were not a big deal’ and the main issue is that he ‘is living in terror’.  Ms McRandall stated that Mr Louden had remained sympathetic throughout the meeting and that he had advised the claimant to avail of professional counselling and also to make contact with his GP.  Mr Louden had said that Occupational Health Nurse would accompany him to the GP if the claimant agreed.  Mrs Withers had told the claimant that they could not ignore the comments that he had made during the meeting of the previous day.  The claimant had stated that ‘they’ wanted him to lose his job, go to Purdysburn or commit suicide.  The claimant had left the meeting, accompanied by the Occupational Health Nurse and had then attended the GP later that day. 

 

44.       The claimant’s cross-examination of Ms McRandall was brief.  He asked whether she remembered him saying ‘can we put our cards on the table?’.  Ms McRandall stated she did not remember that particular statement and that she was taking notes throughout the meeting.  The claimant then stated ‘if you can’t remember what can I say? – I can’t do anything – this has happened before’.  When he was asked whether he had any other questions, the claimant asked what had happened to the fitter and the charge hand who gone off on sick leave.  Ms McRandall stated that they were on long-term sick and that she had not interviewed them and she had not known when they would be available to be interviewed.  The claimant then confirmed he had no further questions for this witness in cross-examination and there was no re-examination. 

 

45.       The second witness called by the respondent was Mr Gerry Ward who was a senior manager within the organisation, effectively the Area HR Manager. 

 

46.       His evidence was that he had not been involved in this matter until he had been asked to deal with the second grievance submitted by the claimant on 19 April 2010.  He stated that he had then contacted Ms McRandall, had spoken to her and had examined the documents and the file in relation to the earlier grievance.  He stated that he believed the second grievance was simply a repetition of the first grievance and that it had contained nothing new. 

 

47.       Mr Ward met the claimant on 5 May 2010 and advised him that all of the allegations had already been fully investigated and had not been substantiated.  He regarded this second grievance as frivolous and did not intend to take it further. 

 

48.       At that meeting the claimant said that he did not like the way he had been treated, in that he had been referred to a Psychiatrist.  He confirmed to Mr Ward that he had been referred to the Psychiatrist by his own GP. 

 

49.       Mr Ward advised the claimant to concentrate on his work and to put all these matters behind him.

 

50.       Mr Ward stated that the claimant had been accompanied by Mr Barry Heasley during this meeting.  After the meeting he spoke to Mr Heasley and Mr Heasley had said that the claimant believes that if the claimant is criticised in any way in relation to his work it was either racist or due to his former employer.  Mr Heasley stated to Mr Ward that the claimant believed that his phone was ‘tapped’ and his e-mails were being interfered with and that people were out to get him.

 

51.       Again the cross-examination of this witness by the claimant was brief.  The claimant stated that it was strange that Mr Heasley had said this after the meeting, that he had expected a different approach from Mr Ward, ie a real help, and asked Mr Ward was that the way to deal with the grievance.  Mr Ward stated that he had reviewed the notes, had spoken to Ms McRandall, and had reviewed her notes.  He stated that he believed that Ms McRandall and Mr Donaghy had thoroughly investigated the claimant’s grievance and had already dealt with it.  The claimant confirmed that he had no more questions for that witness.  The Vice President confirmed with Mr Bloch that that was the last witness for the employer and asked the claimant again if he was sure he had no further questions.  The claimant’s response was ‘I did not have much or an encounter with Mr Ward’.  There was no re-examination.

 

Relevant law

 

52.       The Race Relations (Northern Ireland) Order 1997 provides that:-

 

                        Article 3(1) –

 

A person discriminates against another in any circumstances 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 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).

 

                        Article 4(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 allegations so states) contravened this Order; or

 

(v)        ‘A’ knows that ‘B’ intends to do any of these things or suspects that ‘B’ has done, or intends to do, any of those things.

 

                        Article 4A(1) –

 

A person (‘A’) subjects another person (‘B‘) to harassment in any circumstances relevant to 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 of effect of –

 

            (a)       violating ‘B’s’ dignity, or

 

(b)       creating an intimidating, hostile, degrading, humiliating or offensive environment for ‘B’.

 

Conduct shall be regarded as having the effects specified at                    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.

 

Article 32 – (1) –

 

Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval. 

 

Article 32 – (3) –

 

In proceedings brought under this Order in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from –

 

            (a)       doing that act, or

 

            (b)       doing, in the course of his employment, acts of that description.

 

53.       The 1997 Order provides at Article 52A:-

 

“(1)      This Article applies where a complaint is presented under Article 52 and a complaint is that the respondent –

 

(a)       has committed an act of discrimination on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B) (a), (e) or (f), or Part IV in its application to those provisions, or

 

(b)       has committed an act of harassment.

 

Where on the hearing of the 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 such an act of discrimination or harassment against the complainant,

 

(b)       is by virtue of Article 32 or 33 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.”

 

54.       The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 states:-

 

“2(2)    In these Regulations ‘sexual orientation’ means the sexual orientation towards –

 

                        (a)       persons of the same sex;

 

                        (b)       persons of the opposite sex;

 

                        (c)        persons of the same sex and of the opposite sex.

 

3(1)     For the purposes of these Regulations a person (‘A’) discriminates against other person (‘B’) if –

 

(a)       on the grounds of sexual orientation, ‘A’ treats ‘B’ less favourably than he treats or would treat other persons –

 

5(1)     For the purposes of these Regulations a person (‘A’) subjects another person (‘B’) to harassment where, on the ground of sexual orientation, ‘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 for ‘B’.

 

(2)      Conduct shall be regarded as having the effects specified in Paragraphs 1(a) or (b) only if, having regard to all the circumstance, including, in particular, the perception of ‘B’, it should reasonably be considered as having that effect.”

 

23 – (1)           Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

 

       (5)            In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employer of his it shall be a defence of that person to prove that he took such steps as were reasonably practicable to prevent the employee from –

 

                                    (a)       doing that act; or

 

(b)       doing, in the course of his employment, acts of that description.”

 

55.       Regulation 35 provides for a shifting burden of proof in similar terms to those in Article 52A of the 1997 Order.

 

56.       In English  v  Thomas Sanderson Blinds Ltd [2009] IRLR 206, the Court of Appeal held that sexual innuendo implying that a heterosexual employee was a homosexual could fall within the scope of the Regulations.

 

57.       To succeed in a claim of constructive unfair dismissal, the claimant must establish:-

 

(i)         that the respondent had committed a serious breach of contract entitling him to regard the contract having been repudiated.  In Brown  v  Merchant Ferries Ltd [1988] IRLR 682, the Northern Ireland Court of Appeal said that, although the correct approach to constructive dismissal was to ask whether the employer was in breach of contract and not whether the employer had acted unreasonably, if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been breach of contract;

 

(ii)        that he left his employment with the respondent because of that breach of contract and not for any other reason; and

 

(iii)       that he did not delay resigning and thereby offering any breach of contract or repudiatory conduct that might have occurred.

 

Decision

 

Unlawful discrimination

 

58.       The legislation in relation to both discrimination on the ground of race and discrimination on the ground of sexual orientation provides for a shifting burden of proof.  The statutory provisions are set out above.  If the claimant proves facts on which, excluding any explanation from the respondent, a tribunal could reasonably infer that there has been unlawful deduction, the burden of proof would shift to the respondent.

 

59.       The correct approach for tribunals to adopt has been discussed in a series of cases, most recently : Nelson  v  Newry & Mourne District Council [2009] NICA 3 April 2009.  At Paragraph 24 of that decision, the Court stated:-

 

“This approach makes clear that the complainants allegation of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context  of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of care to keep in mind the fact that the claim put forward in an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying [the provisions relating to the shifting burden of proof].  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

60.       The evidence given by Ms McRandall and Mr Ward was clear, credible and supported by the documentation.  The tribunal accepts that the evidence of Ms McRandall is an accurate and truthful recollection of the grievance meetings with the claimant and other witnesses and of the meetings on 9 March 2010 and 10 March 2010.  Mr Ward’s evidence in relation to the claimant’s second grievance is also accepted by the tribunal.

 

61.       As indicated above, the claimant did not, despite encouragement from the tribunal, provide sufficient evidence of the matters of which he complained.  He did not provide evidence of racial taunts or abuse.  Ms McRandall’s evidence was that the claimant had failed to properly respond to a direct question from Mr Donaghy on 10 February 2010 on which he had been asked if there had been any racial comments made towards him.  The tribunal accepts that evidence.  The incident which the claimant described as the ‘first racist event’ does not appear to this tribunal to have had any racist overtones.  The three workers whose work had been corrected were relatively recently employed.  They had not been, on the evidence of the claimant, verbally or otherwise abused.  They had been shown photographs of what was supposed to be incorrect wiring and shown the correct way to complete the wiring.  It seems to have been an entirely unremarkable incident.  The fact that the three workers were either of Czech or Romanian origin, without more, is not sufficient to enable an inference of unlawful discrimination to be drawn.  The respondent’s HR Department appears to have conducted a thorough investigation into the claimant’s grievance and no supporting evidence was found.  The claimant gave evidence that during one point in his employment, two colleagues told jokes about homosexuality.  He stated that he had never worked in such ‘a rude environment’.  This issue does not feature in the medical report dated 4 May 2010 which refers only to ‘systematic racial discrimination’.  The claimant’s grievance of 19 April 2010 refers only to ‘racist abuse’ and not sexual orientation harassment.  In his grievance of 2 January 2010 he did not refer to sexual orientation harassment.  In the grievance hearing on 10 February 2010, the claimant stated that ‘did not like CK jokes as they were all about homosexuality and asked him to stop talking in such a way’.  There appears to have been no suggestion that the ‘jokes’ had been directed towards him or against his actual or alleged sexual orientation.  There was no suggestion that they had continued once he had asked that they be stopped.

 

62.       The claimant’s evidence was that he had been subjected to hours of Gestapo-style torture, that the respondent’s HR Department had plotted to drive him out of employment, and that in some way the claimant’s own GP had been encouraged to refer him to a psychiatrist and to put him on sick leave.  This, viewed against the claimant’s evidence to the tribunal, and against what he had said in the presence of Ms McRandall, is inherently implausible.  The tribunal therefore concludes that, on the evidence before it, and disregarding any possible explanation from the respondent, it cannot reasonably infer that the claimant had suffered unlawful discrimination of any kind as he has alleged.  The claims of unlawful discrimination are therefore dismissed.

 

Constructive unfair dismissal

 

63.       The claimant has produced no evidence on which a tribunal could properly include that the respondent had acted in such an unreasonable manner that that conduct amounted to a breach of contract entitling the claimant to resign in response.  The meetings on 9 and 10 March were conducted in a reasonable manner and the actions of the respondent during those meetings and thereafter appear to have been motivated solely by an understandable concern for the welfare of the claimant.  Furthermore, the claimant did not resign his position until July 2010 and if there had been any repudiatory conduct on the part of the respondent, as alleged by the claimant, the resignation was delayed too long and any such repudiatory conduct would have been affirmed.

 

64.       The claim of constructive unfair dismissal is therefore dismissed.

 

 

 

 

 

 

 

Vice President:

 

 

Date and place of hearing:          28 March 2011, Belfast

 

 

Date decision recorded in register and issued to parties: