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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilson v Resource (NI) Ltd Robert Simpson Resource (NI) Limited Resource (NI) Limited Robert Simpson Resource (NI) Limited Robert Simpson Resource (NI) Limited Robert Simpson Resource (NI) Limited Robert Simpson Stephen Hancock Robert Simpson Stephen Hancock [2012] NIIT 00204_10IT (25 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/00204_10IT.html
Cite as: [2012] NIIT 00204_10IT, [2012] NIIT 204_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 7367/09
204/10
476/10
557/10
1244/10
1698/10
274/11
CLAIMANT: William Alwyn Wilson
RESPONDENTS: 1. Resource (NI) Limited
2. Robert Simpson
3. Stephen Hancock
DECISION
The unanimous decision of the tribunal is that the claimant’s claims under the Disability Discrimination Act 1995 (as amended) and the Sex Discrimination (Northern Ireland) Order 1976 (as amended), together with his claim of unfair dismissal are dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs T Kelly
Mr J Smyth
Appearances:
The claimant was represented by Mr J Thompson.
The respondents were represented by Mr P Bloch of EEF Northern Ireland.
The Claim
1. The claimant claimed that he had been victimised by the first and second named respondents contrary to Section 55(1) of the Disability Discrimination Act 1995 as amended (“DDA”) and that he had been subjected to unlawful discrimination and/or harassment on the ground of sex. The claimant also claimed that he had been unfairly dismissed by the first respondent (“Resource”). The respondents rejected the allegations made against them in their entirety.
The Issues
2. The main legal and factual issues in each claim had been agreed in the course of the various Case Management Discussions. However, in the course of the hearing, certain aspects of the claims became irrelevant or were withdrawn. The remaining agreed legal issues were as follows:-
(1) Was the claimant victimised contrary to Section 55(1) of the DDA?
(2) Was the claimant subjected to unlawful discrimination on the ground of sex and/or harassment contrary to the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”)?
(3) Was the claimant unfairly dismissed?
Sources of Evidence
3. The tribunal heard evidence from the claimant and, on behalf of the respondents, from Una Franey, Human Resources Business Partner with Resource since October 2007, Emer Harding, Resources Human Resources Director for Ireland, Joe Jordan, Contract Manager of the Northern Ireland Court Service Security Contract, and Gerry O’Kane, Regional Director for the Policing and Justice Sector. The tribunal was also presented with extensive bundles of documentation amounting to 1,593 pages.
4. In relation to the unfair dismissal claim, the tribunal, in the course of the hearing, referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – Judgement delivered on 13 October 2009. The tribunal read out Sections of paragraphs 15 and 26 of the judgement of Morgan LCJ as follows:-
(Referring to Article 130 of the Order).
“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and … to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgement as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal …
The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence”.
The tribunal therefore sought to avoid straying into the “forbidden territory” of making its own determination of the evidence.
Findings of Fact
5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant commenced employment with Resource on 26 October 2001 as a Court Official. The tribunal is satisfied, on the evidence, including the documentation shown to it, that the claimant was aware of Resource’s assignment instructions as documents signed by him indicated. The claimant, together with other employees were aware that all information provided for the performance of their duties was confidential and may not be discussed with any person not connected with site security. Furthermore, the claimant was aware that failure to comply with the instruction would be regarded as gross misconduct in accordance with Resource’s disciplinary procedures.
(ii) Excluding case reference numbers 1698/10 and 274/11 dealing with the sexual harassment complaint against Stephen Hancock, and subsequent verbal warning given to the claimant, and his ultimate dismissal on 22 October 2010, the claimant presented 24 letters of grievance to Resource during the period 28 September 2009 to 18 March 2010. Initially Eibhelin McCaffrey, Senior Human Resources Business Partner with Resource was dealing with the grievances. In April 2010, efforts were made to resolve the grievances under the auspices of the Labour Relations Agency, but without success. Eibhelin McCaffrey indicated to the claimant in correspondence dated 20 May 2010 that she would be leaving Resource in the middle of June 2010. Una Franey then heard and investigated all of the grievances relating to the period from 28 September 2009 until 18 March 2010. During this time the claimant had retained a representative, Eamon McCann. Before Eibhelin McCaffrey left Resource she conducted a review of all of the grievance documentation and drafted a number of questions. Both Eibhelin McCaffrey and Una Franey reviewed the documentation together and agreed questions to be asked at the grievance meeting to be held on 3 June 2010 which the claimant attended accompanied by his representative, Eamon McCann. The meeting was adjourned and reconvened on 17 June 2010 at which time Una Franey explained to the claimant that that she will be on honeymoon from 21 June to 15 July 2010. This was later confirmed by her in a letter to the claimant dated 18 June 2010 and was followed by an exchange of correspondence between the claimant and herself regarding the progress of her investigation.
(iii) The tribunal has no doubt that the investigation of such a large number of grievances was a substantial exercise and that, in the overall circumstances, there was no undue or unreasonable delay. The tribunal is satisfied that the investigation into the claimant’s grievances was fair and reasonable. It considered the correspondence to the claimant from Una Franey dated 18 October 2010 regarding the outcomes of the various grievances insofar as relevant to the claims before the tribunal. The grievance outcome letter is 26 pages long and none of the claimant’s grievances was upheld. The tribunal also considered the claimant’s subsequent appeal against the grievance findings together with the respondents’ evidence in relation to same, and is satisfied that the appeal was handled appropriately by Emer Harding. The grounds for the claimant’s appeal were as follows:-
“1. I believe that the investigation was flawed by the fact that it took some nine months to even have a grievance hearing, I believe this to be unacceptable with regard to employees rights in a company that employs 3,500 people in Northern Ireland. There should be human resources management in place to have matters dealt with in a more expeditious timeframe;” and
“2. Because of this lapse I believe that a lot of the “evidence” presented by resource consists of personal attacks made on me by some of my ex-colleagues. I would ask that the appeal would focus more on the facts presented by me.” (from letter of appeal dated 23 November 2010)
The claimant’s grievance appeal was not upheld by Emer Harding.
(iv) The claimant had alleged unlawful sex discrimination/harassment in relation to an alleged incident on Friday 2 October 2009 when he was requested to move boxes by the second named respondent, Robert Simpson. The tribunal accepts that the claimant informed Robert Simpson that he did not carry boxes because of his medical condition. Robert Simpson had claimed that he was aware of the claimant’s diabetes but was not aware of any other medical condition. The claimant relied on the fact that two other Court Officials, Anne Homes and Melissa McDade, were free at the relevant time and could have been asked to move boxes. He claimed that he was upset and humiliated by the whole incident and, as it was carried out in front of colleagues he believed that Robert Simpson’s treatment of him amounted to harassment and victimisation. This claim was reduced to harassment only in the course of the tribunal hearing. The tribunal notes the finding of Una Franey that both male and female staff however were requested by Robert Simpson to move boxes. Moreover, the tribunal has no reason to doubt the finding of Una Franey in her grievance outcome letter that:-
“I find that by asking you to move boxes Robert Simpson did not treat you differently or less favourably as compared to other court officials, whether on the grounds of disability, sex or otherwise. At that stage Robert Simpson did not know, and could not reasonably have known, about your other medical condition. In relation to the manner in which the request was made, I have found no evidence to substantiate your allegation that it was upsetting and humiliating, in particular, Robert Simpson invited you to come round to speak with him but you refused.
I do not uphold your allegation that females only lifted boxes after you complained; I investigated the matter with all female resource staff in the Courthouse who confirmed they lift boxes”.
(v) It was not disputed that the claimant lodged proceedings with the Office of the Industrial Tribunals and the Fair Employment Tribunal against Resource, Robert Simpson, and Glenn Nesbitt dated 5 July 2009 alleging a breach of the DDA. It was common case that bringing these proceedings amounted to a protected act under the DDA.
(vi) The tribunal carefully considered the evidence in relation to the claimant’s allegations of victimisation under the DDA relating to matters on 4 November 2009 (when the claimant caught his tie in a shredder), 8 February 2010 (in relation to sickness absence), 8 March 2010 (in relation to wearing a pullover in Court) 8 February 2010, concerning alleged statements made by Joe Powell and Melissa McDade regarding the claimant, and in relation to an allegation by the claimant that a complaint was made against him by Melissa McDade because “the company representative would not allow me time off to attend a meeting with the Industrial Tribunal chairman in Belfast”.
(vii) On 10 March 2010 the third named respondent, Stephen Hancock, lodged a grievance with Resource alleging that on that date, the claimant made a sexually derogatory comment to him that he was looking at pictures in relation to him of 14 year old girls in a newspaper. The tribunal does not consider it necessary to make any further findings in relation to the alleged incident. Stephen Hancock was invited to a grievance meeting chaired by Joe Jordan, Contract Manager on 24 March 2010. Joe Jordan heard, investigated and upheld the grievance. The claimant, who was suspended on 29 March 2010 attended a disciplinary hearing on 4 June 2010 before Gerry O’Kane, Regional Director for the Policing and Justice Sector. He issued the claimant with a verbal warning and the claimant returned to work on Monday 7 June 2010. The claimant had been represented at the disciplinary hearing by Alan Perry of GMB. The claimant appealed against the verbal warning by letter dated 14 June 2010. An appeal hearing was conducted by Emer Harding on 22 July 2010. Again the claimant was represented by Alan Perry of GMB. The seven page appeal outcome letter signed by Emer Harding, and dated 4 October 2010, contains the following summary in its conclusion:-
“I understand that you feel aggrieved that Stephen Hancock took serious offence to your remark to the extent that he raised a grievance. However, given his circumstances and the partial custody he has of a young daughter, I believe his grievance has not been exaggerated. I think at the time of your remark, he was of the view that you meant no harm, but it did offend him and he wished to ensure that such a comment would not be repeated.
I believe the outcome of a verbal warning was sufficient sanction to the derogatory comment made and based on the evidence heretofore, I do not believe that it should be overturned”.
(viii) The relevance of the verbal warning to the claimant’s case was that he claimed that it was connected to his ultimate dismissal on 22 October 2010, being the effective date of termination of his employment with Resource.
(ix) In or around late August 2010 Resource received complaints from a number of its employees that they had received correspondence to their home addresses from the claimant’s representative Eamon McCann. This correspondence had been sent by recorded delivery and contained Eamon McCann’s return address. The correspondence raised certain questions for the employees to answer. The employees concerned then raised their concerns with Resource in relation to how their personal details had been obtained and highlighted a potential breach of confidentiality and personal security issues.
(x) Geoff Gleave, Service Delivery Manager with Resource, suspended the claimant during a meeting held on 2 September 2010. On the same date Joe Jordan forwarded a suspension letter to the claimant which reads as follows:-
“Dear Alwyn
Re: Confirmation of Suspension
I am writing to confirm that you have been suspended from work with immediate effect in accordance with the Company Disciplinary Procedures. Your suspension has been necessary to investigate allegations regarding complaints we have received from the client and other members of staff, regarding:
· That you have distributed personal information to a third party without authorisation from resource which is deemed as gross misconduct as per page 14 of your employee handbook. ‘Unauthorised access to or disclosure of confidential personal information.’
· That you have been bullying and harassing members of staff which the company can deem gross misconduct as per page 13 of your employee handbook. ‘The use of aggressive behaviour or excessive bad language.’
During your period of suspension you will remain on full pay, and you must remain available to attend work if required. You should not, however, visit the site during this period unless by prior agreement with myself. This action has been taken as a precautionary measure and should not be considered as a disciplinary sanction.
We will write to you in due course to arrange a meeting to discuss these allegations.
Yours sincerely
Joe Jordan
NICS Contracts Manager”
(xi) Subsequently, on 10 September 2010, the claimant was invited to an investigation meeting by Geoff Gleave. In his correspondence he states the following:-
“The purpose of the meeting is to discuss the concerns which have been raised regarding your performance and responsibilities in your role. In particular we will discuss the following allegation;
· That you have distributed personal information to a third party without authorisation from resource which is deemed as gross misconduct as per page 14 of your employee handbook. ‘Unauthorised access to or disclosure of confidential personal information.’
· That you have been bullying and harassing members of staff which the company can deem gross misconduct as per page 13 of your employee handbook. ‘The use of aggressive behaviour or excessive bad language.’
The outcome of the meeting should provide resource UK with a better understanding and where possible, seek to find a resolution to the situation.”
(xii) At a subsequent investigation meeting, at which the claimant was represented by Alan Perry of GMB, it is noted (at the beginning of the minutes of the meeting) that “(GG gave AW and AP copies of the investigation notes to read over before the meeting begun)”. The claimant disputed that he had received these notes before the meeting started. However the tribunal is satisfied that he was given an opportunity to read over the notes before the investigation meeting and, in any event, could have requested an adjournment for some time if he was experiencing a difficulty in the matter. The tribunal is satisfied, on the evidence before it, that a fair and reasonable investigation was conducted.
(xiii) The claimant was then invited to a disciplinary hearing on Friday 24 September 2010. The correspondence to him dated 21 September 2010 reads as follows:-
“Dear Alwyn
Re: Invite to Disciplinary Hearing
You are required to attend a disciplinary hearing which is to be held on Friday 24th September 2010 at 11.00 am at Resource Head Office, Edgewater Road with myself and a representative of resource UK, who will be present to take notes.
The purpose of the meeting is to discuss the concerns which have been raised regarding your performance and responsibilities in your role. In particular we wish to discuss the allegations:
· That you have distributed personal information to a third party without authorisation from resource which is deemed as gross misconduct as per page 14 of your employee handbook. ‘Unauthorisee access to or disclosure of confidential personal information.’
· That you have been bullying and harassing members of staff which the company can deem gross misconduct as per page 13 of your employee handbook. ’The use of aggressive behaviour or excessive bad language.’
The outcome of the meeting should provide resource UK with a better understanding and where possible, seek to find a resolution to the situation.
I have also enclosed a copy of the investigation notes, should you have any queries regarding these notes, please raise them during the meeting.
The Company views the above matters as potentially amounting to Gross Misconduct and may result in disciplinary action being taken against you which may include your dismissal.
You have the right to be accompanied by a fellow employee of your choice or trade union official, and should you wish to exercise this right then it is your responsibility to make the arrangements.
It is important that you attend this meeting but if you do not do so without good reason, I have to inform you that a failure to attend will be treated as a further breach of a reasonable management instruction and this failure may be added to the matters of concern already under consideration.
Please contact me on 07890 273671 no later than 12 noon on Thursday 23rd September 2010 to confirm your attendance. Should you be unable to contact me directly, please leave an answer phone message to inform me of your attendance.
Should you fail to contact me by the required time as outlined above, then we will assume that you will not be in attendance at the meeting.
It is in your best interest to attend this meeting to enable us to investigate these issues fully and for you to be given every opportunity to present your case.
Yours sincerely
Joe Jordan
NI Courts Contract Manager”
(xiv) The tribunal considered the Employee Handbook insofar as relevant and noted that under the heading of “gross misconduct” the following entries occur:-
“Unauthorised access to or disclosure of confidential personal information.
Unauthorised access to or disclosure of confidential information concerning Resource and its clients”.
Furthermore the assignment instructions under the heading of “CODE OF CONDUCT” states under the heading of “CONFIDENTIAL INFORMATION” that:-
“Information about Resource Property Support Services Business, its employees, its suppliers and its customers is strictly confidential. It must never be disclosed to a third party”.
(xv) The claimant was given a fair and full opportunity to present his case before the disciplinary hearing and was subsequently dismissed for gross misconduct. Correspondence of 22 October 2010 from Joe Jordan states as follows:-
“Dear Alwyn
Re: Termination of Employment
I am writing to confirm the outcome of the disciplinary meeting held on 24th September 2010.
It is alleged that you breached the Company rule in respect of “Unauthorised access to or disclosure of confidential personal information”. You have accepted that on or around 12th August 2010 without authorization, you accessed a Company folder held within the security room in Londonderry Courthouse. From this folder you obtained information of a confidential nature, namely the home addresses of employees Ivan Buchanan, John Davis, Ann Holmes, William Houston and Melissa McDaid. You did not disclose, but used this information for your own purposes, and in sending letters to these people specified a third party as the return address.
In view of the seriousness of the matter, it has been decided that your employment with the Company should be terminated for gross misconduct without notice.
In relation to the second allegation, [this allegation is not upheld.]
Finally during the disciplinary process you stated that Ivan Buchannan and John Davis had given their home addresses to you; both deny this. I have found that you were dishonest in making this statement.
Your dismissal will take effect immediately and you are not entitled to notice or pay in lieu of notice.
You have the right to appeal against this decision. This should be made in writing to Gerry O’Kane, Regional Director, C/o Miss Caroline Townend, HR Administrator, Innovation House, Templepoint Business Park, Bullerthorpe Lane, Colton, Leeds, LS15 9JL within 5 working days from the receipt of this letter, clearly stating your reasons for the appeal.
Yours sincerely,
Joe Jordan
Northern Ireland Court Services Contract Manager”
(xvi) The claimant subsequently appealed the decision to dismiss him on 25 October 2010. He specifies the grounds of his appeal as follows:-
“Dear Sir,
Re: Termination of Employment
On 23rd October, 2010 I received a letter from Joe Jordan, NICS Contract Manager advising that my employment was being terminated with immediate effect. The reason given was that I allegedly breached the company rule in respect of “Unauthorised access to or disclosure of confidential personal information.” I believe this decision to be too harsh and I wish to appeal because of the harshness and on the following grounds;
The letter states that “you have accepted that on or around 12th August, 2010 without authorisation, you accessed a company folder held within the security room in Londonderry Courthouse”. This statement is incorrect and I refute ever saying this or anything like it also I do not think that this matter has been investigated fully and I believe that the company have formed a view of me that is based on what has been occurring over the past year.
Yours faithfully
William Alwyn Wilson”
(xxii) The dismissal appeal hearing was held on 8 December 2010 before Gerry O’Kane. Again the claimant was represented by Alan Perry of GMB, and was given a full opportunity to present his case. The tribunal find it appropriate to reproduce the appeal hearing outcome letter signed by Gerry O’Kane dated 21 December 2010 which reads as follows:-
“Dear Alwyn
Further to your recent appeal hearing on the 8th December 2010, I am writing to confirm the outcome of my findings.
My intention is to provide feedback with regards to the items you raised as grounds for appeal in relation to the termination of your appointment. As agreed at the meeting there were four items raised as follows:-
1. You believed that the decision to terminate your employment was too harsh.
2. You believed that an incorrect statement was made in the termination letter in relation to your acceptance of accessing unauthorised information.
3. You didn’t think that the matter had been fully investigated by Resource.
4. You believed that the company had formed a view of you based on other matters involving you over the past year.
The purpose of the appeal is to review the documented evidence and consider if due process was followed and that Mr Joe Jordan acted reasonably in the decision to terminate your employment for gross misconduct.
I have taken into consideration and reviewed the specific areas which you raised during the appeal hearing on the 8th December 2010 and respond to each of the above points as follows:-
1. You stated that when you were initially suspended it was for two reasons, the first being an allegation that you had distributed personal information to a third party without authorisation and the second reason being that there was an allegation of bullying and harassment by you towards other members of staff. You believed that a lot of what you had been suspended for had since gone and that all that was left to answer was the allegation of unauthorised access to information, therefore this should reduce the severity of the disciplinary action taken against you even though it was still deemed as gross misconduct.
I believe that all the allegations in relation to your initial suspension were investigated and that even though not all the allegations were upheld, I would like to point out that actions of gross misconduct are not weighted and you should not assume that because of the number of allegations decrease that the action taken in such circumstances of gross misconduct will decrease accordingly.
2. You have stated that the termination letter stated that “you have accepted that on or around 12th August 2010 without authorisation, you accessed a company folder held within the security room in Londonderry Courthouse”. You stated that this is incorrect and that you refute ever saying this or anything like it.
I explained to you that this statement was not made in the letter as a direct quote from you but that it was merely pointing out that you have accepted the fact that the information had been accessed by your at some point. This is evident by a number of statements made during the entire process, even during the appeal hearing. You agreed with me that this was a misinterpretation of what was stated in the termination letter and that we were not quoting you as making such a statement.
3. You believed that the matter had not been fully investigated. I asked you why you thought this and you said that firstly you didn’t understand Mr Simpson’s statement about post codes or the significance of them. You stated that you didn’t put post codes on any of the letters you sent.
Mr Simpson statement says that there are two address lists. One in his office and one in the security hut. The list in his office has postcodes for everyone on the list but the address list in the security hut only has a few of the postcodes included. When I checked this, one of the few post codes listed against the addressee’s that you wrote to was for John Davis’ address which was actually also written on the envelope send by you. Mr. Simpson was basically saying he believed that the addresses must have been taken from the list in the security hut and not the one in his office.
Secondly you questioned the statement made by Mr. Simpson that all staff signed the assignment instructions but that the signing sheet which you received with the investigation notes only showed twelve names and that you believed that there at were at least twenty staff employed at Bishop Street Court House. You also stated that you didn’t know what you were signing for.
During our meeting I was able to provide you with a list of further signed names which for some reason you had not also received. I also clarified that the signatures were to confirm that all those named had read and understood all aspects of the assignment instructions. Your signature was included in this list which you verified.
Finally you stated that in Geoff Gleave’s investigation findings that it was his opinion that you had already supplied the information to the third party. You questioned how he could have come to have such an opinion.
Geoff believes that you probably passed it on willingly to Mr. McCann as he was after all your representative and you most likely thought that he should be privy all the relative information as you saw it. I also believe that this is a reasonable assumption.
4. You believe the company had formed a view of you based on others matters involving your over the past year. You also stated that the company never upheld any of your complaints.
I asked you what you meant by this and you said that you believed that you were treated differently. I asked you in what way and you said that you were the only staff member that wasn’t ex security forces, except for one other staff member. You also stated that other staff members were related to managers in Resource and that they had a different relationship with Mr. Simpson. This was based on a conversation you overheard between one of the other staff members and Mr. Simpson. You complained to Norman Adams about the language used in this overheard conversation and the matter was dealt with in my opinion, as you never heard such conversations take place after that. I also stated that the company was dealing with your other complaints separately and that I was unable to comment.
On balance, I believe that Mr Jordan did follow our own processes and fulfil all his obligations and whilst I do understand your disappointment at the decision to terminate your employment, I do consider that the process followed by Mr Jordan was fair in all of the circumstances and that the termination of your employment was justified given the seriousness of your actions.
You have now exercised your right of appeal under the Company’s procedure and this decision is now final.
Yours sincerely
Gerry O’Kane
Regional Director”
(xviii)The tribunal is satisfied that the events leading to the claimant’s dismissal, and the dismissal itself, was not related to the verbal warning administered to him early in 2010.
The tribunal also considered, insofar as relevant, medical evidence placed before it together with the claimant’s alleged loss. It also accepts that there may have been a delay in the claimant receiving the appeal outcome letter until early in the New Year, owing to the severe whether conditions and their impact upon postal deliveries.
The Law
6. Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”) provides as follows:-
“(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against (a man) if – (a) on the ground of his sex, he treats him less favourably than he treats or would treat a woman.”
BURDEN OF PROOF REGULATIONS
7. (1) Article 63 A of the Order states:-
“(2) 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 respondent –
(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.
(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others –v- Wong, Chamberlains Solicitors and Another –v- Emokpae; and Brunel University –v- Webster (2006) IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.
(ii) The tribunal also considered the following authorities, McDonagh and Others –v- Hamilton Thom Trading As The Royal Hotel, Dungannon (2007) NICA, Madarassy -v- Nomur International Plc (2007) IRLR 246 (“Madarassy”), Laing –v- Manchester City Council (2006) IRLR 748 and Mohmed –v- West Coast trains Ltd (2006) UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-
“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from 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 had committed an unlawful act of discrimination.
“Could conclude” in S63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would 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 inadequate 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 complaint were of like with like as required by S5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment”.
(iii) The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41, which read as follows:-
“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:
(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.
(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.
(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:
‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’
If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)
(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:
‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’
Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.
(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.
(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):
‘36. The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:
(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.
37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’
The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:
‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all”.
(2) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-
“This approach makes clear that the complainant’s allegations 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 adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.
Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-
“The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention. Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention. However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent. The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures. That is a strong factor tending to point away from a sexually discriminatory intent. Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”.
(3) Section 55 of the DDA provides as follows:-
“(1) For the purposes of Part II or Part III, a person (“A”) discriminates against another person (“B”) if -
(a) He treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and
(b) he does so for a reason mentioned in sub-section (2)”.
In the case of Veitch v Redsky Group Limited (2011) Eq LR 181 NICA, the Northern Ireland Court of Appeal held that whether or not a person is disabled within the statutory definition, they are entitled to the statutory protection from victimisation if they are treated less favourably by reason of doing a protected act.
(4) The law in relation to unfair dismissal is set out in Rogan as follows:-
“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.
“130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(1) A reason falls within this paragraph if it—
…. (b) relates to the conduct of the employee,
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.
[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –
‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-
(1) the starting point should always be the words of section 57(3) themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’
[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -
‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”
(2) At paragraph 26 of Rogan, Morgan LCJ states as follows:-
“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for tribunal. In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.
Again at paragraph 27 of his judgment, Morgan LCJ states:-
“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.
In paragraph 28 he continues:-
“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.
Girvan LJ in paragraph 7 of his judgement states as follows:-
“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”
Submissions
8. The tribunal considered the oral submissions from both parties’ representatives, including the claimant’s representatives reference to paragraphs in the Labour Relations Agency Code (2005).
Conclusions
9. The tribunal, having carefully considered the evidence together with the submissions from the parties’ representatives, and having applied the principles of law to the findings of fact, concludes as follows:-
(1) In relation to the Sex Discrimination claim, the tribunal is not satisfied that the claimant has proved facts from which conclusions could be drawn that he was treated less favourably on the ground of sex.
(2) The tribunal has considered the claims of victimisation and the protected act referred to by the claimant in his evidence. However it is not satisfied that a causal nexus has been established by the claimant between the fact of having done the protected act and any of the episodes relied upon by him to claim victimisation under the DDA. In this respect the tribunal had regard to the cases of Aziz v Trinity Street Taxis Limited (1998) ICR 534, Chief Constable of West Yorkshire Police v Khan (2001) IRLR 830, and the House of Lords decision in Saint Helens Metropolitan Borough Council v Derbyshire and Others (2007) IRLR 540.
(3) In relation to the claimant’s claim of unfair dismissal the tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted, as follows:
(1) Was the dismissal of the claimant by the respondent fair in all the circumstances? In determining this primary issue the Tribunal should consider the following:
(a) Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?
(b) Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?
(i) Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct
of the claimant?
(ii) At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?
(c) Was the dismissal a fair sanction in the circumstances?
(d) Was the claimant afforded an effective right of appeal in the circumstances?
(2) The tribunal answers all questions in the affirmative.
(3) The tribunal therefore dismisses the claimant’s claims in their entirety.
Chairman:
Date and place of hearing: 20, 21, 26, 27 and 28 March 2012, Strabane.
Date decision recorded in register and issued to parties: