Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/2656_11IT.html
Cite as: [2012] NIIT 2656_11IT, [2012] NIIT 02656_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2656/11

CLAIMANT: William Whoriskey

RESPONDENT: Northern Ireland Housing Executive

DECISION

The unanimous decision of the tribunal is that the claimant's claim that he suffered detriment following a protected disclosure is dismissed. The claim of disability discrimination is also dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr P McKenna

Mr H Stevenson

Appearances:

The claimant was represented by Miss S Bradley BL instructed by Worthingtons Solicitors.

The respondent was represented by Mr C Hamill BL instructed by NIHE Legal Department.

The Claim

1. The claimant’s claim was that he was subjected to a series of detrimental acts following two protected disclosures; the first made before August 2007 and the second made on 28 November 2008.

2. The claimant further claimed disability discrimination in that the respondent had failed to make reasonable adjustments.

The Issues

3. The issues before the tribunal were as follows:

(1) Was the disclosure in August 2007 to Eddie Doherty that BD was operating his own business on the respondent’s time a protected disclosure within the meaning of the legislation?

(2) Was the disclosure on 28 November 2008 that BD and Eddie Doherty were operating their own businesses on the respondent’s time, a protected disclosure within the meaning of the legislation?

(3) Was the claimant subjected to a series of detriments due to having made one or both of the alleged protected disclosures?

(4) Was the respondent in breach of its obligations under the Disability Discrimination Act 1996, as amended (“the DDA”) in that it was under a duty to make reasonable adjustments and failed to do so. It was agreed between the parties that the relevant period for this claim was from 23 February 2011 to 21 October 2011 being the date of lodgement of the claim form. The first date relates to the absence record and the date the respondent knew, or ought to have known, of the impairment relied upon. The medical condition relied upon by the claimant was atrial fibrillation. The respondent conceded for the purposes of these proceedings that the impairment relied upon constituted a disability for the purposes of DDA during the relevant period?

(5) Were the detrimental acts relied upon discrete acts rendering the claimant’s claims out of time or were they part of a 'continuum' of adverse treatment resulting in no time-limit issues. If one or more of the claims were out of time should time be extended on just and equitable grounds in the DDA claim or on reasonably practicable grounds in the protected disclosure claim.

4. It was agreed by the respondent that there was a term in the relevant contracts to the effect that employees should not carry on their own business on the respondent’s time as this would constitute a contravention of an implied term of the contract and of the Housing Executive Code.

5. For the DDA claim the provision criterion or practice (PCP) relied upon by the claimant was the failure of the respondent to transfer him back to his substantive post of District Maintenance Manager in the Limavady Office. The claimant’s case was that refusing to move him in this way, increased his stress which increased his hypertension and thus had an adverse effect on his atrial fibrillation. The claimant’s case is that this constituted a substantial disadvantage due to his disability and that the reasonable adjustment which would have mitigated this disadvantage was to move him back to his old post in Limavady.

6. At the outset of the hearing the respondent raised an issue in relation to whether or not the hearing should proceed as there were High Court proceedings ongoing arising from the same facts. The claimant’s representative confirmed that the claimant had a 'stress at work' personal injury claim pending in the High Court where the writ had been issued and the claim arose from the same facts which were before the tribunal. Both sides were invited to make detailed submissions on whether or not the tribunal claim should be stayed pending the outcome of the High Court proceedings. Miss Bradley took instructions and indicated to the tribunal that the claimant intended to proceed with the tribunal claim as he intended to withdraw the High Court proceedings. On this assurance, and with no objection from Mr Hamill, the tribunal was satisfied to proceed with the hearing without further information or submissions.

Sources of evidence

7. Witness statements had been prepared for the hearing but, by consent, were abandoned in favour of oral evidence for two reasons: firstly the presentation of the witness statements was inadequate in several respects and there was the danger of them creating confusion in the case and, secondly, the issues in the case narrowed substantially on the first morning of hearing rendering parts of the statements no longer relevant to the hearing.

8. The tribunal heard oral evidence from the claimant and from Mrs D Coster and Mrs J McCloskey on his behalf. The tribunal also heard oral evidence from Mr E Doherty, Mrs E McMurray, Mr J Simpson, Mr J McPeake, Mr M Jennings and Mrs Miles-Davey on behalf of the respondent. A witness statement prepared for Mrs M Young was tendered in evidence without Mrs Young being called to give oral evidence. This was by agreement of both parties.

9. Written and oral evidence was given on the claimant's behalf by his GP Dr McClune and by a consultant psychiatrist Dr Mangan. An agreed report from the claimant's consultant cardiologist Dr McNeill was also before us.

10. The tribunal also had regard to the documentary evidence to which it was referred during the hearing.

The Law

11. DDA: the duty to make reasonable adjustments. The employer’s duty to make reasonable adjustments is outlined in the DDA at Section 4A and states, insofar as is relevant to these proceedings, as follows:

“4A – (1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, …

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

12. In the case of Rowan v The Environment Agency 2008 IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached. The steps relevant to this case, are as follows:-

(1) identify the provision, criterion or practice (PCP) applied that has put the claimant at a disadvantage compared to those who are not disabled;

(2) identify the non-disabled comparator (where appropriate);

(3) identify the nature and extent of the substantial disadvantage suffered by the claimant.

13. If the duty arises the tribunal then goes on to determine whether the proposed adjustment is reasonable to prevent the PCP placing the claimant at that substantial disadvantage.

14. Section 18B of the DDA sets out the factors that the tribunal must consider when deciding whether it is reasonable for an employer to make any particular adjustment once the duty to make a reasonable adjustment has been triggered.

15. At Section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments. This non-exhaustive list includes assigning the employee to a different place of work.

16. It is good practice for the employer to ask the employee about any possible adjustments. There is no separate duty to consult or carry out a risk assessment (Tarbuck 2006 EAT). However, failure to carry out an assessment or to consult, does not mean that the employer can rely on ignorance to excuse a failure to make a reasonable adjustment (Hay v Surrey County Council 2007 CA).

17. The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings. The claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen and, that it has been breached. If the claimant proves such facts the burden shifts to the employer to prove either that no such duty arises or that it has not been breached.

18. Protected disclosure ('whistleblowing'). An employee is protected from detrimental treatment suffered as the result of the employee making a protected disclosure, under Articles 67A to 67L of the Employment Rights (Northern Ireland) Order (as amended). Disclosures qualifying for protection are referred to in Article 67B the relevant parts of which state as follows:

“67B. – (1) In this part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –

… (b) That a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject …”

19. It was agreed by the parties in opening the case that the disclosure made by the claimant in the pub before August 2007 was that BD owned properties in Limavady and that he was carrying on private business on Housing Executive time and premises. The point at issue was whether that disclosure was a protected one.

20. The relevant part of Article 67C states as follows:

“67C – (1) A qualifying disclosure is made in accordance with the Article if the worker makes the disclosure in good faith –

(a) to his employer, …”

21. The Court of Appeal in the case of Babula v Waltham Forest College 2007 IRLR 346 sets out the three elements to be considered by a tribunal in deciding whether or not the claimant could avail of the protection from detriment conferred by the Order as follows:

(1) Did the employee believe that the information he was disclosing met the criteria set out in one or more of the sub-sections of the legislation? In this case it was agreed that the section engaged was 67B(1)(b) outlined above.

(2) Was the employee’s belief reasonable? This is an objective test. In the Korashi v Abertawe Bro Morgannwg University Local Health Board 2012 IRLR 4 case the test is articulated as follows:

“Whether the worker reasonably believes that the information disclosed and any allegation contained in it, are substantially true”.

This case sets out the test in relation to causation as follows:

“Section [67B] will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.”

(3) Was the disclosure made in good faith? The burden of proving that a disclosure was not made in good faith is on the employer. We are aware that the absence of good faith is a serious allegation and is an unusual and surprising feature in an employment relationship. The standard of proof is the balance of probabilities.

22. Good faith is not simply to be equated with honesty. It requires consideration of the motive of the person making the disclosure. A disclosure might therefore be in bad faith, by reason of an “ulterior motive”, even though a worker reasonably believes that the information disclosed and the allegations contained in it are true and that it tends to show a relevant failure.

23. Where there are mixed motives good faith may only be negative if the ulterior motive is the dominant or predominant one. An ulterior motive is a motive for the disclosure that is other than in the public interest. Examples of ulterior motives which have been held to negative good faith are: personal antagonism, pursuing a personal campaign, and seeking to obtain a personal employment advantage.

24. One issue is whether or not the claimant disclosed information in the sense of conveying facts (which attracts the protection of the legislation) and this is different from making an allegation or stating a position.

Facts and Conclusions

25. The tribunal considered all the evidence given in examination-in-chief and cross-examination together with all the documentation to which it was referred to find relevant facts. The tribunal considered the submissions and the law and applied the law to the facts found in order to reach the following conclusions. This decision does not record all the competing evidence heard by the tribunal. All the evidence was weighed up and assessed and the tribunal’s assessment of that evidence underpins the primary, relevant findings of fact which are recorded below.

26. The tribunal found the claimant and his witnesses' evidence unsatisfactory in several key respects, examples of which are given below. As a consequence, where there was a conflict in the evidence the tribunal favoured the respondent's witnesses' accounts.

27. We found Mrs McCloskey to be an unreliable witness as it was clear she had a very strong animus against Mr Doherty which preceded the events with which we are concerned. Mrs McCloskey agreed that she had previously raised a detailed grievance against Mr Doherty making allegations which were clearly very important to her, but objectively looked very trivial, whilst at the same time she omitted some of the allegations which she recounted to the tribunal. Even so, the relevant investigating teams did not discount the evidence brought forward by Mrs McCloskey which she had gathered of her volition. We are satisfied that that evidence was considered before the relevant decisions were reached. The mere fact that the outcome of the investigations did not suit the claimant (and indeed Mrs McCloskey) does not mean that the evidence was disregarded. (see below).

Disclosure in August 2007

28. The claimant was at that time a District Maintenance Officer based in the Limavady office. It was common case that there was a conversation in a public house between the claimant and Eddie Doherty a few weeks before Mr Doherty took up the post of Manager at the Limavady Office. Before that post was taken up by Mr Doherty, he had been based in the Londonderry Office but had known the claimant for a long period and indeed it was common case that they were friends. They also had occasion to be in each other's company when travelling up and down to Belfast for respondent business.

29. It was common case that there was a discussion between the claimant and Eddie Doherty in the pub on that occasion when the claimant made reference to the following: that there was a “drinking culture” in the Limavady Office; that WC was not doing his job properly; and that BD was operating a business on the respondent’s time. The claimant’s case was that, in the course of this conversation, Mr Doherty assured him that he would do something about the BD situation in particular and the claimant relies upon this element of the conversation as constituting a protected disclosure which later led to detriment. Mr Doherty’s account was that this was no more than gossip and that he did not assure the claimant that he would do something about the BD situation when he started the job.

30. We do not accept the claimant’s account that Mr Doherty assured him that he would do something about the matter he had raised regarding BD primarily for the reason that the first time the claimant made this allegation was in evidence to us. The claimant's concerns about BD were not repeated by the claimant until he (the claimant) was the subject of a disciplinary process a year later in August 2008.

31. In August 2007, following the receipt of the dossier on WC, Mr Doherty undertook an investigation into the alleged irregularities in the work of WC. The claimant was WC’s manager and the investigation quickly turned into an examination not only of WC but of the claimant’s management of him. WC was disciplined and moved. However, serious concerns also emerged about the claimant’s management of WC and about the proper processing of work which was under the claimant’s area of responsibility. Such were the concerns that Mr Doherty contemplated taking disciplinary proceedings against the claimant. However, he decided against such action and, instead, had a conversation with the claimant in January 2008 outlining the deficiencies which had emerged and, essentially, warning the claimant about his management. In our view, this encounter between the two men in January 2008 was the event which led to the souring of the previously close relationship between them.

32. The claimant alleged that he was subjected to a detriment by Mr Doherty related to the previous disclosure when Mr Doherty took three weeks over the Christmas period to communicate the decision to the claimant that he was not actually going to be disciplined. We do not accept that any delay in communicating that decision to the claimant amounted to a detriment related to his conversation in the pub with Mr Doherty some five to six months previously.

Attendance of clients at office

33. In early 2008 a couple who were clients of Mr Doherty’s private business as a building surveyor, attended the office and asked to see him. We heard evidence from Mrs McCloskey, Mrs Coster, the claimant and Mr Doherty on this point. There were several key discrepancies between the accounts given by the claimant and his witnesses. In contrast Mr Doherty’s account remained consistent in its key essentials throughout the documentation and in evidence to us. The claimant said that his challenge of Mr Doherty in early 2008 was a 'landmark' moment and from that moment Mr Doherty took against him. It was not alleged that there was a protected disclosure involved in this incident.

34. The claimant’s case on this point was that he confronted Mr Doherty by telling him that, in having a client attend the office, he was compromising himself and the claimant as the staff were talking about it. The claimant’s case was that Mr Doherty’s reaction was that if anybody said anything about this he would: “fucking destroy them”. Despite such an allegedly strong reaction from Mr Doherty the claimant did not mention this threat to Mrs McCloskey or to his close friend Mrs Coster and mentioned it for the first time during the disciplinary proceedings against him following the incident an 20 August 2008.

35. Mr Doherty agreed that there had been a conversation between him and the claimant about the attendance of the clients and that he, Mr Doherty, had said that if anyone wanted to speak to him about it he would speak to them. The reason Mr Doherty was not concerned about it was that he had permission to operate his business; he had specific permission to deal with these clients; the clients had called in without invitation and he then explained to them that he could not deal with them on the respondent’s time.

36. We do not accept the claimant’s evidence that Mr Doherty issued the threat alleged primarily for the reason that the claimant never mentioned it to anyone until he himself was being disciplined. We are also not satisfied with the conflicting accounts given by the claimant and his two witnesses about the incident and we therefore prefer Mr Doherty's account.

Incident on 20 August 2008

37. The claimant and Mr Doherty had an encounter in the claimant's office on 20 August 2008 which led to the subsequent disciplinary proceedings. We heard an account of this encounter from the claimant, his witness Mrs Coster and from Mr Doherty. We have assessed carefully the written and oral evidence relating to this incident and, whilst there are discrepancies in the accounts given by each one of the witnesses, we prefer the evidence of Mr Doherty for the following principal reasons:

(1) The claimant’s and Mrs Coster’s accounts diverge in several key respects. We found Mrs Coster in particular to be a particularly unreliable witness as her evidence changed as it unfolded and we do not accept that she overheard the key part of the conversation which took place.

(2) Both the claimant and Mrs Coster claim that the conversation was at normal tone and was unremarkable and we do not accept that Mrs Coster heard every detail of such a low-key conversation through a closed door which had a one-inch gap as she alleged.

(3) The claimant’s account of the conversation and Mr Doherty’s accord in several key respects and the divergence between them relates primarily to the tone and the level of anger displayed by the claimant. Even allowing for any exaggeration by Mr Doherty of the level of anger displayed by the claimant, the account given by both men indicates that there was a confrontational, fraught encounter between them where the claimant was aggressive to his manager.

(4) Soon after the incident on the same day Mr Doherty composed an email to personnel outlining the key circumstances and confirming his request that disciplinary proceedings be initiated against the claimant for his behaviour.

38. The two men were discussing staffing issues in the light of the reorganisation and amalgamation of the Limavady Office with another regional office. Essentially the net effect of the proposed changes was that the claimant’s good friend Mrs Coster would lose her acting-up post and would revert to her substantive post. It was clear from the evidence that the claimant was at great pains throughout the relevant period to protect Mrs Coster and her acting-up position. He and Mrs Coster were very good friends and their families were very close to the extent that the claimant was a godfather to one of her children and their children were also very friendly.

39. The claimant reacted badly once it dawned on him that Mrs Coster would lose her acting-up post. The claimant accused Mr Doherty of: 'misinforming' a senior manager; failing to support the claimant in the negotiations about staff levels; and stated that if Mr Doherty wanted to discuss the issue any further the claimant would not discuss it with him on his own but wanted a third party there to witness it. Unprompted, the claimant also made reference to the WC situation which had finished eight months before. The claimant clearly still felt very aggrieved about the outcome of the WC investigation which he had prompted but which resulted in criticism of him as a manager. The claimant then walked out of the room and, on his own version of events, left Mr Doherty “ashamed” and “embarrassed” and “with his head hanging”. Indeed, in cross-examination the claimant conceded that it was possible that the way that that meeting went was the reason that Mr Doherty later pressed for disciplinary charges to be taken against the claimant in relation to his behaviour that day.

40. For the reasons outlined above we prefer Mr Doherty’s account of events and accept that the claimant raised his voice and was very confrontational with Mr Doherty by challenging him in an unreasonable way. It was clear to us that the issues surrounding the WC incident still rankled with the claimant and he clearly resented the fact that the investigation that he had initiated with his erstwhile friend ended up looking critically at him as a manager even though it did not result in any disciplinary sanction against him.

41. We do not accept the claimant’s case that Mr Doherty pressed for the disciplinary proceedings to be initiated because of the disclosure in the pub in August 2007, and because of the conversation they had had regarding the client attending the office in early 2008. It is our finding that the sole reason for Mr Doherty prompting the initiation of the disciplinary proceedings was because of the confrontational encounter on 20 August 2008, and because of his belief that the claimant continued to dispute the proposed staffing changes. We find that there was therefore no connection between the disclosure in 2007 and the initiation of the disciplinary process one year later. In addition, if Mr Doherty really had wanted to target the claimant following the disclosure, he could have disciplined him over the WC matter when he had the chance.

Disciplinary process

42. The two disciplinary charges against the claimant in the letter of 1 October 2008 were as follows:

“1. That you failed to comply with a reasonable instruction.

2. That you indulged in abusive and insulting behaviour towards your District Manager”. [This refers to the meeting of 20 August 2008]

43. As we have found no connection between the conversation in August 2007 in the pub and any alleged detrimental treatment, we do not accept that the placing of the claimant on suspension on 22 August 2008 amounted to a detriment relating to any protected disclosure nor do we find that any alleged “ransacking” of his office at the end of August/beginning of September 2008 amounted to a detriment relating to a protected disclosure in this case. The claimant made several criticisms of the disciplinary process which are not relevant to our deliberations because we do not accept that the process followed a protected disclosure as there was an unconnected reason for the initiation of the process. Whatever flaws there may have been in the process are, therefore, not connected to any protected disclosure and do not form part of the claim before us on our factual findings set out above.

“Ransacking” issue

44. We wish to record our findings on the ransacking allegation because in our view it illustrates the claimant’s perception of certain things and his firm belief that people were 'out to get him' on an ongoing basis.

45. The allegation was that the claimant’s office was ransacked shortly after he was suspended in that journals and magazines were put in bags and personal items were put in boxes and bags and some went missing. The height of allegation therefore was that the office was disarranged and that a camera and a diary from 2006 went missing. We heard evidence of a large reorganisation of the office due to the move of staff following the reorganisation of several regional offices. It appears that the opportunity was taken to have a clear-out of older documents in accordance with the “retention policy” of the respondent whereby documentation should be periodically cleared out. The process in the claimant’s office was carried out by a junior member of staff and we do not accept the claimant’s case that Mr Doherty directed that junior member of staff to 'ransack' his office to get at him. The claimant was not the only member of staff to have his office disarranged in this way and a similar process took place in another office in a different region where Mrs Miles-Davey was the District Manager.

Disclosure on 28 November 2008

46. The second disclosure was made by the claimant during the hearing on 28 November 2008 in response to the question as to why Mr Doherty would make the accusations against him. The claimant replied that he believed that the reason was that he had told Mr Doherty that BD was running a business and that both BD and Mr Doherty were running their own businesses on the respondent's time. The visit of Mr Doherty's clients to the office in early 2008 was the basis for that allegation.

47. In addition the claimant made an allegation about Mr Doherty’s mileage claims stating that, on occasion, he had claimed for mileage to Belfast when he had actually taken the bus. He based this allegation on conversations he had had with Mr Doherty one to one-and-a-half years before, when Mr Doherty said that he had taken the bus and the claimant then assumed that he had submitted fraudulent mileage claims as a result. This was not relied upon as a protected disclosure nor do we find it to amount to one as it conveyed an allegation rather than information. Ultimately an investigation uncovered nothing untoward in Mr Doherty's mileage claims. It illustrated to us, however the claimant's capacity to jump to conclusions long after the event.

48. Much was made in the hearing before us of the issue of Mr Doherty’s diary. It was clear from the document that it was not a contemporaneous diary and Mr Doherty denied ever having labelled it as such. It was labelled by the disciplinary investigation team as a diary as it recorded some contemporaneous encounters with the claimant and recorded others in retrospect. The height of the claimant’s point on this was that this was evidence that Mr Doherty was “out to get him” by building a case against him. We do not accept this point. We can fully understand why Mr Doherty felt it important to start to record issues he had with the claimant given his experience in the WC investigation when the claimant had kept a detailed dossier on WC, whom he was managing, with a view to complaining about him and having him disciplined.

49. The claimant raised before us the gathering of evidence by Mr Doherty of his own volition relating to phone records for the claimant and Mrs Coster. We do not accept that this supports the claimant’s case that he was victimised because of his disclosure. At its height, this evidence shows us that Mr Doherty was over-zealous in gathering evidence to support his case that the claimant and Mrs Coster were in collusion to deny the events which had taken place on 20 August 2008. Essentially the claimant’s case, as backed up by Mrs Coster, was that Mr Doherty 'trumped up' disciplinary charges which had absolutely no basis, in order to 'get at' the claimant following the disclosure seven months earlier. In those circumstances we can understand Mr Doherty seeking evidence to support the case being made by him that he was verbally abused during that meeting by the claimant and that the claimant and Mrs Coster were colluding to deny this.

50. We find that the disclosure about BD and Mr Doherty was not a protected disclosure as we find that the disclosure was made without the requisite good faith.

51. Our primary reasons for finding on a balance of probabilities that the disclosure was not made in good faith are as follows:

(1) The claimant had reason to be resentful of Mr Doherty for reasons unconnected to any disclosures made by him. The disclosure was made in reaction to legitimate disciplinary proceedings which were initiated against the claimant. The claimant was motivated by a personal animus against Mr Doherty which had it roots in the souring of the relationship following the WC incident. The claimant therefore had an ulterior motive and this was the predominant reason for the disclosure made during the disciplinary process about Mr Doherty and BD.

(2) The timing of the disclosure is significant. It was made long after the claimant became aware of the alleged relevant failures despite the opportunities to raise the matter earlier if he had wished.

(3) The disclosure made by the claimant in the course of the disciplinary process was not made for public interest motives. He made the disclosure in an attempt to defend himself in the disciplinary proceedings which were unconnected to the disclosure.

(4) The disclosure about Mr Doherty's mileage (over a year before) was made in the disciplinary process after the claimant obtained advice from his trade union that he should think of things to say about Mr Doherty to show the type of person he was and whether he was “whiter than white”. In this context, it is our finding that the motivation of the claimant for raising the issue of BD and Mr Doherty was to seek to deflect attention from the disciplinary charges against him by challenging Mr Doherty's veracity.

52. As we have found that the disclosure made did not amount to a protected disclosure, the detriments alleged to flow from that day do not attract liability on the case before us.

53. The claimant alleged that the intimidatory nature of the questioning of his witness Mrs Coster during the disciplinary hearing, firstly, amounted to a detriment as it made the process intimidating for him and secondly, that it was pre-determined that none of his evidence would be given credence. Given that we have found that the disclosure was not a protected disclosure, any alleged detriment cannot result in liability or damages in any claim before us. We also do not accept that it was pre-determined that none of the claimant's evidence would be given credence.

54. The disciplinary process resulted in the claimant being given a final written warning as it was assessed that he had been guilty of gross misconduct. On 16 February 2009, this finding was set aside by the independent joint appeals board (JAB) which found that there was insufficient evidence to support the charges found. The claimant's case was that the JAB exonerated him and that this lent weight to his argument that the pursuing of the disciplinary charges was connected to the disclosure in 2007. We do not accept the claimant's case on this. The JAB set aside the decision but recorded criticism of the claimant as follows:

“...it appears from the information presented to us that he was being difficult and obstructive. He did not behave as a Senior Manager should behave during a period of change”

Harassment Grievance April 2009

55. The claimant lodged a claim of harassment on 27 April 2009 alleging harassment by Mr Doherty, BD and JS who had been involved in the disciplinary investigation and hearing. Following an investigation into that grievance by Mrs Miles-Davey and a colleague, the complaint of harassment was not upheld. The claimant’s complaint to the tribunal was that the process was purposely delayed by management and any request for information was refused, obstructed or delayed in order to derail the process.

56. We do not accept the claimant’s point on this nor do we accept that any detriment which may have occurred in relation to delay was related to the disclosure made in November 2008. Any delay was partly due to the claimant’s side being slow in particularising the complaint and due to the fact that numerous staff had to be interviewed. There was no allegation that Mrs Miles-Davy or her colleague were motivated by an improper motive other than the claimant’s general suspicion that because the decision had not gone his way it meant that it was a continuation of detrimental treatment against him connected to disclosures made by him.

57. The claimant appealed the harassment grievance outcome which resulted in a report by Dr McPeake on 23 March 2011 which did not uphold the appeal. We do not accept the claimant’s case that the outcome of that appeal amounted to a detriment related to the disclosure on 28 November 2011. The claimant did not impugn Dr McPeake’s motives or integrity other than to say that there was a general policy that managers above Grade 7 would not be disciplined. This was contradicted by the other evidence which we accept especially as the claimant raised this point for the first time in the hearing before us (see below).

Counter- fraud investigation

58. The claimant’s complaint regarding the counter-fraud investigation into Mr Doherty and BD was that it was delayed by months and only started following prompting from the claimant’s trade union representative. The claimant characterised the delay in that investigation as evidence that the organisation as a whole did not take seriously his whistleblowing allegation and that they had a policy of protecting managers at Grade 7 and above.

59. We do not accept the claimant’s case that there was such a policy firstly, because the allegation was only raised during the hearing before us and had never been raised before in either the internal procedure the appeal to JAB nor in preparation for the tribunal claim and, secondly, we heard evidence (which we accept) of more senior managers being disciplined following allegations of impropriety against them.

60. We do not accept that the admitted delay in the initiation of the counter-fraud investigation amounted to a detriment against the claimant. Whilst such a delay could amount in some circumstances to supporting evidence to show that his specific disclosure was not being taken seriously, any claim before us depends on us finding that the disclosure was actually protected.

61. The counter-fraud investigation into Mr Doherty and BD was dealt with by an internal investigation and ultimately by an external investigation by DSD. Mr Eddie Doherty was exonerated by both investigations as he had permission to carry out the work for the specific client alleged to have called at the office and the teams accepted his explanation that the client had called in without invitation from him. There was an adverse finding in relation to BD which found that BD had “not established sufficient demarcation” between his role at work and his private business.

62. The height of the claimant’s point on this matter was that there was delay in the investigation taking place and that BD was not penalised as a result of the finding against him. We do not accept that these were capable of amounting to detrimental acts against the claimant nor did they amount to harassment of the claimant. At most, they could only amount to evidence which might support the claimant’s case that his disclosure was not taken seriously and thus support his claim that he suffered the other detriments alleged.

63. For the reasons outlined above, we have not found the disclosure to be a protected disclosure, but nevertheless we wish to record that we do not find there to have been a disregarding of his complaint as, on the evidence before us, a reasonably thorough investigation was carried out. Whether or not a penalty was given to BD does not, of itself, strengthen or weaken the claimant’s case on the evidence before us given that BD was exonerated. If this disclosure had been a protected disclosure, which ultimately had been found not to be true, the claimant could still have had a case for detriment on grounds of a protected disclosure. In other words the outcome of the investigation into the disclosure is not critical to the issue of whether the disclosure was protected or not, as the key issue in this case was whether the claimant acted in good faith at the time the disclosure was made.

Grievance 20 October 2011

64. The claimant raised a further grievance on 20 October 2011, that is, one day before the claim form was received in the Office of the Tribunals. That grievance related to a lack of work in his post in Londonderry and a refusal to move him back to his old post in Limavady. Evidence was given in relation to the progress of that grievance and the outcome which was reached by Mr Jennings and it was ultimately appealed to another JAB (headed by independent consultant Mr Simpson) which did not uphold the appeal. It was agreed by the claimant’s representative that any allegations post-dating the claim form could not amount to detriments to be relied upon in the claim before the tribunal. The height of the relevance of this evidence was that it amounted to evidence tending to support the claimant’s claim that he was subjected to detriment before the lodgement of his claim form in relation to the disclosures in 2007 and November 2008.

65. In order for the claimant’s claim of detriment to succeed there would need to have been a widespread conspiracy involving managers at several levels, in several locations of the respondent’s organisation and also involving independent members of the two Joint Appeal Boards, both of which included trade union representatives. We have assessed carefully all the detailed evidence put before us and have found no evidence of any such conspiracy nor of any attempt to 'whitewash' matters. On the evidence before us each of the investigations was carried out in a reasonably thorough way and the evidence was weighed up and conclusions were reached on the evidence. The fact that those conclusions were not the conclusions desired by the claimant does not make them unsustainable or unreasonable.

66. The claimant appeared to us to be very quick to characterise anything that he did not agree with as an attack on him no matter how unreasonable that conclusion might be. An example of this is the investigation into his mileage which took place in December 2008. The claimant offered this as evidence of the ongoing campaign against him by the organisation and Mr Doherty in particular. The investigation was prompted by an email from the Head of Personnel which was sent to the Limavady Office and other offices in the Western Area when an analysis by Personnel showed that certain individuals had very high mileage claims. In the Limavady Office there were five people whose mileage records were identified by Personnel as requiring some explanation from management. Even though the claimant was only one of the five people on that list, and he accepted that the investigation was not prompted by Mr Doherty but was in reaction to a direction from the Head of Personnel, the claimant interpreted that investigation into his mileage as an attack on him by Mr Doherty because of the protected disclosure. The claimant's unreasonable reaction to the investigation, which was maintained at hearing even when the respondent's supporting documentation was put to him, showed to us the extent of the claimant's capacity to perceive himself to be under attack in anything involving Mr Doherty.

Move of Office / Proposed return to Limavady

67. One of the alleged detriments related to the claimant's meeting with Mr Doherty on 23 March 2009 following the JAB decision to set aside the disciplinary decision. The meeting’s purpose was to discuss the way forward with a view to the claimant returning to his job at Limavady. The claimant formed the view following this meeting that Mr Doherty “had not moved forward” and was misleading him because he presented the claimant with the revised structure of the office following the reorganisation and the claimant said this was untrue, because one of the individuals in the structure was off on sick leave. We find it unreasonable for the claimant to have interpreted this in this way as it is clear that a structure can be in existence even if individuals on that structure are off on sick leave. The claimant formed the view that this was part of the campaign by Mr Doherty against him and that he could not return to the Limavady Office in those circumstances.

68. Rather than return to the Limavady Office the claimant was placed in the Londonderry Office in Spring 2009 in the post of Project Manager working under a new manager Mr McIntyre. The move to Londonderry was at the claimant’s behest and following OHS recommendation and was initially to be temporary. On 9 March 2011 the claimant asked, through his TU representative, to be returned to Limavady. The claimant was then told in April 2011 that his position in Londonderry was being made permanent. On 18 May 2011 the claimant accepted the post under protest but made no complaint about the post or the workload and stated: “This is not a reflection on John McIntyre or the staff at Property Services”.

69. We do not accept that the claimant had a problem with the job or his colleagues in Londonderry. Our principal reasons for so finding are as follows. The claimant worked there for over two years without complaint about his workload, the post or his colleagues until he raised his grievance on 20 October 2011. It was then that he raised for the first time that he was under-employed, was not trained for the post he was in and was being ostracised by his colleagues. We accept the respondent's evidence that the claimant was qualified for the job, was not under-employed and was not ostracised.

70. Rather than being concerned about his post and about remaining in Londonderry, we find that the claimant's concern was that he was not being granted his wish to return to the Limavady office which he felt would “clear his name”. The claimant’s case is that the failure to move him back to his old post in Limavady amounted to a detriment following a protected disclosure. As we have not found the disclosure to be a protected disclosure this claim fails on that ground.

DDA claim

71. The claimant also claimed that the failure to move him back to his post in Limavady was the PCP which caused him to suffer a substantial disadvantage due to his disability of atrial fibrillation because the failure to move him back to that post caused him to be stressed and this increased his hypertension which caused a deterioration of his atrial fibrillation. The claimant also alleged that the respondent was at fault by seeking only OH advice on whether this would be a reasonable adjustment instead of seeking advice from a cardiologist. Failure to consult with the claimant was also alleged.

Medical Evidence

72. The cardiologist first saw the claimant on 20 November 2006 when he was suffering from hypertension. The cardiologist next saw him on 1 October 2010 when the diagnosis of atrial fibrillation was made. The cause of the artrial fibrillation was the hypertension. The cardiologist’s opinion in the report of 3 August 2012 was that emotional stress including stress at work is one factor which, when combined with other factors, predisposes to the development of hypertension and, in the cardiologist’s view, the hypertension was at least partly due to his emotional stress.

73. The diagnosis of the hypertension predates the events with which we are concerned as does the diagnosis of atrial fibrillation.

74. The GP’s evidence was that there has been a deterioration in the claimant’s medical condition from July 2012 (which postdates the period that we are looking at) and it was the GP’s view that, since that deterioration, the move in office was warranted. The deterioration related to blackouts for which the claimant continues to be investigated and there was no evidence before us that they were related to the atrial fibrillation.

75. The psychiatrist Dr Mangan diagnosed an adjustment disorder following the suspension from work on 20 August 2008 and records a major depressive episode around Easter 2009. The psychiatrist was not told by the claimant that, at that time, he was dealing with serious issues at home which, understandably, caused extreme stress to him.

DDA conclusions

76. It is for the claimant to show the requisite substantial disadvantage due to his disability caused by the PCP, during the relevant period, before the duty to make reasonable adjustments is triggered. We are not satisfied on the medical evidence that the claimant has established that link. The medical evidence, and the evidence of the cardiologist in particular, does not make a link between the claimant remaining in the Londonderry location and post and any deterioration in the atrial fibrillation.

77. The medical evidence from the claimant’s GP was that a move of office did not need to be considered before July 2012 when the claimant's condition deteriorated due to black-outs. This post-dates the period which we are examining which is from 23 February 2011 to 21 October 2011. There was no evidence before us to show that remaining in the Londonderry Office in that post during that period was causing the claimant substantial problems relating to his disability of atrial fibrillation nor did any doctor, either for the claimant or from OHS, recommend that a move would have helped him during that period. We therefore fail to see how obtaining the view of a cardiologist at that time would have changed that position given the evidence presented to us at hearing. It is important to note that the medical condition we are concerned with is the atrial fibrillation and whether or not that was aggravated by the PCP applied by the employer, that is, the failure to move the claimant back to Limavady. We have assessed all the medical evidence including the GP notes and records and there is no evidence before us that the claimant’s medical condition deteriorated due to his posting in Londonderry before or during the period from February 2011 to 21 October 2011.

78. In view of our findings above, we conclude that the duty to make reasonable adjustments was not triggered at the relevant time and the claimant’s DDA claim therefore fails.

79. Even if the duty to make adjustments had been triggered, we are not satisfied that the claimant has established that the move back to Limavady would have ameliorated the substantial disadvantage as we accept the respondent's evidence that, in the major organisational restructuring, there was a real and imminent danger of the claimant's post being made redundant, meaning that he was liable to be redeployed elsewhere again. If the claimant’s point is that he should have been put in his old post which he was properly trained for, he was offered a District Maintenance Manager post in Ballymena which he refused for reasons which were not made known to us. Whilst it appears that the claimant's desire was to return to Limavady to “clear his name”, he also gave evidence that he would have taken on another specific post in Londonderry if it had been available. The claimant's own evidence was therefore unclear on how a return to Limavady would have addressed the alleged substantial disadvantage.

Protective Disclosure - Time Point

80. The claimant's case is that he was harassed from December 2008 onwards and that he took extensive advice from a friend and the TU and their solicitors until they ceased their involvement after the outcome of the harassment appeal in March 2011. The claimant said that he was awaiting the outcome of the internal procedures before deciding whether to claim and a reason for his failure was that the process was “exhausting”.

81. We are satisfied that the claimant had taken advice from his Trade Union and their solicitors over a long period up until March 2011 in relation to the possibility of making a claim, and there was no question of the claimant being ignorant of his rights nor of the fact that he could issue proceedings in the tribunal. There was no evidence before us that all the decisions taken by different managers from different locations were linked in any way, and there was no impugning of individual managers' integrity other than that of Mr Doherty. We therefore regard the alleged detriments as discrete acts and the claimant is out of time to present them as the claim was lodged on 21 October 2011 some 7 months after the appeal decision in March 2011.

82. We find that the claimant has failed to show that it was not reasonably practicable for him to have lodged proceedings in time and we are not satisfied that he lodged proceedings within a reasonable period after the time limit expired. We decline to extend time in the protected disclosure claim as the claimant has not discharged the requisite burden to persuade us to exercise our discretion to do so for that claim.

83. The DDA claim rests on an allegation that there was a failure to make reasonable adjustments on an ongoing basis from February 2011 until the lodgement of the claim. We find that that claim was presented in time.

Summary

84. There clearly was a very unhappy working relationship between the claimant and Mr Doherty following the souring of their previously friendly relationship over the WC matter. This led the claimant to perceive the reasonable action of Mr Doherty on 20 August 2008 as an attack on him and the claimant then perceived previous acts and subsequent acts by all and any individuals involved in investigations as part of the campaign against him instigated by Mr Doherty. In summary we found no evidence that this was the case following a detailed analysis of all the evidence presented to us.

85. The protected disclosure claims fails as it was lodged outside the requisite time limit and we are not persuaded to exercise our discretion to extend time. Despite the protected disclosure claim failing on the time point, we have recorded our findings on the facts given the complexity of this case, the length of the hearing, and the very long history of different proceedings involving so many levels of manager as it was key to the claim for us to establish if there was the alleged continuum of behaviour.

86. The disclosure in August 2007 (even if it amounted to a protective disclosure) was not connected to the alleged detrimental treatment from 2008 onwards.

87. The disclosure made in November 2008 was not a protected disclosure for lack of good faith.

88. The duty to make reasonable adjustments did not arise as the claimant has failed to show the requisite substantial disadvantage due to his disability. In addition we are not satisfied that the proposed adjustment would have addressed the alleged disadvantage in light of both the claimant's evidence and the medical evidence set out above.

89. The claimant’s claims therefore fail in their entirety and are dismissed.

Chairman:

Date and place of hearing: 24 September 2012 to 2 October 2012 at Belfast.

Date decision recorded in register and issued to parties: