Industrial Tribunals Northern Ireland Decisions

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Cite as: [2012] NIIT 441_12IT, [2012] NIIT 00441_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 441/12

CLAIMANT: Cristina Tian

RESPONDENT: O’Kane Poultry Ltd

DECISION

(i) the unanimous decision of the tribunal is that the claimant’s claims of unlawful discrimination on the grounds of her race and sex and of victimisation, be dismissed; and

(ii) the majority decision of the tribunal is that her claims in respect of automatically unfair dismissal and of unfair dismissal are also dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Ms F Graham

Ms E McFarline

Appearances:

The claimant was represented by Mr K Denvir, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by Ms K Fraser, Company Solicitor to the respondent company.

1(i) The claimant, Ms Cristina Tian, by a claim form presented to the tribunal on 5 March 2012, alleged that she had been unfairly dismissed by the respondent company. In addition to alleging ‘ordinary’ unfair dismissal, she made the allegation that there had been an automatically unfair dismissal. The claimant, who is of Romanian origin, also alleged that she had been unlawfully discriminated against on the grounds of her race and sex, and that she had been victimised for raising a grievance relating to sex discrimination and race discrimination.

(ii) A statement of the main legal and factual issues in the case, as agreed by the parties, is attached at Appendix ‘A’.

(iii) In order to determine this matter we heard evidence from the claimant, and from Constable Philip Ryan (PSNI Coleraine) and Ms Dawn McDowell, on her behalf.

We heard evidence from the following on behalf of the respondent company:-

Mr Victor McMullan (Operations Manager);

Mr Lauren Stewart (Business Unit Manager);

Mrs Norma Donaldson (Site Human Resources Manager); and

Mrs Marie Wilson (Human Resources Officer)

We also had regard to documentary evidence to which we were referred by the parties.

(iv) We find the facts set out in the following paragraphs.

2(i) The claimant was employed by the respondent company from 29 May 2002 until her dismissal, for alleged gross misconduct, on 3 February 2012. She had come to live and work in the United Kingdom in 2002, having been interviewed and recruited in Romania by members of the company’s management team. About 60 – 70% of the company’s workers are foreign nationals. Many of them, like the claimant, were of Eastern European origin.

(ii) She was a good worker, as is demonstrated by the fact that she underwent a series of promotions in management roles, ending up as a Department Manager, the post she held when dismissed.

She was well qualified academically, had a good work record with the company, and had never previously been the subject of disciplinary proceedings.

3 The gross misconduct for which she was dismissed, as set out in the proforma ‘Termination of Employment’ notice give to her on 3 February 2012, was stated as:-

“[I]nappropriate behaviour as a manager on 18/1/2012 – shouting [and] yelling [and] using threatening behaviour”.

‘Threatening behaviour’ is included in the non-exhaustive list of behaviour amounting to gross misconduct in the respondent company’s employment handbook, which also makes clear that dismissal is the potential sanction for such conduct.

4 The claimant’s difficulties arose on 18 January 2012 when an incident occurred on the factory floor between her and Mr Dinu Filip, a fellow Romanian employee, and her subordinate at work.

The work to be done that day had come to an end, or had at least diminished, and the claimant had been told to instruct workers that they could go home and take a half-day’s paid holiday or (with permission) take unpaid leave, or stay and work in another part of the factory. Mr Filip apparently took issue with this. It is not in dispute, and the independent evidence supports this, that there was a altercation and an exchange of shouting between them. It is the extent of this altercation, and the respective roles of the claimant and Mr Filip in it, and how management subsequently dealt with it, which are our principal concerns here.

5 Following the incident the claimant made a complaint about Mr Filip to Human Resources, which was recorded by them. In that complaint she made an allegation that Mr Filip had been aggressive towards her and had threatened to punch her.

6(i) The investigation was carried out by Mr Victor McMullan, who is now the respondent company’s Operations Manager. At the relevant time he was a Business Unit Manager.

(ii) Mr McMullan met with the claimant following her complaint, and he called Mr Filip to a meeting with him. Mr Filip was suspended that same day to facilitate the carrying out of the investigations; and to ensure that he had no contact with the claimant. Mr McMullan subsequently took statements from other employees who had been in the vicinity of the incident at the time. One of the employees, from whom three statements were taken, was Laura Costea. The reason for this was that her second statement was thought to contain new information, and Mr McMullan wished to satisfy himself that she had not been subjected to pressure by any of the protagonists and that her account of what happened was reliable.

(iii) On 24 January 2012 Mr McMullan completed his investigation report which he sent to Mr Stewart. In it he reviewed the evidence before him and concluded that while it suggested that it was the claimant who had been the aggressor and who threatened Mr Filip in the course of the argument that she would get her husband to punch him, there was no evidence of any threat of violence from Mr Filip towards Mrs Tian.

(iv) We are satisfied that Mr McMullan carried out a reasonable investigation in the circumstances, having regard to the material before him and that he treated the evidence of Laurea Costea with caution because of perceived discrepancies in her statements.

These statements were, however, consistent in relation to an allegation that the claimant had threatened to have her husband punch Mr Filip. While he found no evidence that the statements had been tampered with, his caution and concern were reflected by the fact that he suggested that the company needed to look at its procedures in relation to the interviewing of witnesses.

(v) His conclusion was as follows:-

“My recommendation is to progress this to the disciplinary process. We cannot afford to have operators or managers in this business who think this sort of behaviour is acceptable.”

7(i) The claimant was suspended on 26 January 2012 and by a letter dated 24 January 2012 (which appears to have been given to her following a meeting on the latter date) was asked to attend a disciplinary meeting on 27 January 2012, to be conducted by Mr Stewart, with Ms Marie Wilson of HR in attendance.

(ii) The claimant was given 24 hours notice of the disciplinary hearing. This is the minimum period of notice for such a hearing provided by the company. Whilst this was certainly not overgenerous, the claimant did not object to it or ask for a postponement to give her more time to prepare. There is no evidence before us to suggest the hearing would not have been put back had she so requested.

(iii) She was also told that she could be represented at the hearing, but this offer was declined by her.

8(i) The letter of 24 January 2012 inviting the claimant to the disciplinary hearing set out the allegation against her by stating that the findings of the disciplinary investigation against her concluded that she had:-

“acted inappropriately as a manager when [she] started yelling and shouting”.

(ii) The letter informed her that the disciplinary meeting had the potential to impose a sanction ‘up to and including dismissal’.

(iii) Copies of the relevant statements from the investigation (ie those considered by Mr McMullan) were enclosed with the letter.

(iv) Two main criticisms, which are not unrelated, are made by the claimant about the disciplinary hearing.

The first is that while she had made the initial complaint, she had now become the focus of the investigation and that she “had never thought that it would be [her] in the firing line”.

The second is that she in effect did not know the charge she had to meet. She was summoned to attend on an allegation of yelling and shouting “but ended up being dismissed for ‘threatening’ behaviour”.

These are matters to which we shall return subsequently.

9(i) Mr Lauren Stewart conducted the disciplinary meeting with the claimant on 27 January 2012. He had prepared for it in advance by reading all the notes of the disciplinary investigation previously carried out by Mr McMullan, including the allegations initially made by the claimant, and Mr McMullan’s recommendations.

(ii) In the course of this meeting with the claimant, the allegation that she had threatened Mr Filip that her husband would punch him was specifically put to her, and she admitted that she had made such a remark.

(iii) After speaking to the claimant, Mr Stewart carried out further enquiries of the witness, Laurea Costea, to whom reference has already been made. This was because he, like Mr McMullan, felt that there were differences in her statements which required clarification, although none of her statements supported the claimant’s allegation that Mr Filip had threatened to punch her.

(iv) Mr Stewart then took time to consider his decision, and he held a further meeting with the claimant on 3 February 2012 to inform her of it. He was on holiday during part of the intervening time, but he stated, and we have no reason to doubt him, that this matter was constantly on his mind.

(v) When he met with the claimant, he told her that she was to be dismissed.

His conclusion was that the claimant had threatened Mr Filip that her husband would beat him up. Additionally she had been shouting and yelling at him on the factory floor. He found no evidence supporting the claimant’s allegation that Mr Filip had threatened her, but he did find Mr Filip had been shouting.

He based his conclusion primarily on Mr Filip’s statement, the evidence of the witness, Laurea Costea, and the claimant’s admission that she had told Mr Filip her husband would beat him.

There was evidence, uncontradicted and accepted, that the claimant was upset when she made her initial complaint about Mr Filip to HR, and there was also evidence in the witness statements that in the course of their altercation, Mr Filip had made an apology to her. Mr Stewart did not specifically consider these matters.

He did, however, consider that Mr Filip had been guilty of provocative behaviour on the occasion in question, and in separate disciplinary proceedings, imposed a final warning on him for ‘inappropriate behaviour’.

(vi) As far as the actual sanction of dismissal imposed up the claimant is concerned, Mr Stewart considered sanctions other than dismissal. He took into account her length of service, and her disciplinary record (which was clear). Some suggestion is now made that Mr Stewart did not give sufficient weight to her medical condition – she was awaiting an operation for sinus problems at the time – but he had no knowledge of this as it had not accounted for any absence from work in the period leading up to the disciplinary hearing before him.

10(i) At the conclusion of the disciplinary outcome meeting, Mr Stewart also informed the claimant that she was entitled to appeal, in writing, within five working days.

(ii) At this stage – for the first time – the claimant raised an issue of an alleged history of violence on the part of Mr Filip, stating that he had produced a knife to people outside work, and that at the time of the incident at work she had been aware of this and was trying to keep herself safe. She was then effectively making a different case, namely that her actions amounted to self-defence on her part.

(iii) We find that management generally, and more specifically Mr Stewart and Ms Wilson (who accompanied him at the disciplinary outcome meeting) had no knowledge of this previous incident, or of any more general disposition to violence on Mr Filip’s part.

(iv) In response to the claimant’s fresh allegation, Mr Stewart did not re-open the disciplinary process which he had conducted. Rather, it was explained to the claimant, both by him and Ms Wilson, that he had to base his decision on the information before him, and that this was something which could be looked at on appeal. The time-limit for an appeal of five working days was again pointed out to the claimant.

(v) The written ‘Termination of Employment’ notice given to the claimant that day also advised her of her right of appeal against the decision to dismiss her, and informed her that should she decide to exercise that right, she had to do so within five working days.

11(i) As the claimant, at hearing, made the case that her dismissal was not only an unreasonable sanction, but constituted an act of both sex and race discrimination, it is convenient at this stage to set out how her comparators in these respects were dealt with.

(ii)(a) She alleged that, compared to Mr Filip, she suffered discrimination on the ground of her sex. We have discussed Mr Filip’s case at Paragraph 9(v) above.

(b) She alleges that in relation to named comparators, Julie Short, Rosie McMullan, Michael Donnell and Neil McConaghie, she was discriminated on the ground of her race when one looks at the penalties imposed on them in disciplinary matters.

The evidence in relation to Julie Short was somewhat vague, and the allegation of discriminatory treatment compared to her was not really pursued.

Rosie McMullan was a manager. She had been found guilty of harassment, and the impact of this on the other staff member concerned had been noted. She was also found to have used foul and inappropriate language. She was given a written warning. The disciplinary record in relation to Rosie McMullan noted that mitigation had been taken into account. The claimant’s contention is that, unlike Rosie McMullan, she had not been allowed to put forward matters in mitigation.

Michael Donnell received a final warning for physically aggressive behaviour towards the claimant. Mr Donnell was not a manager.

Neil McConaghie also received a final warning. It was issued for inappropriate behaviour and language towards a member of management.

12(i) The claimant went to see a solicitor on 6 February 2012.

(ii) She lodged a Notice of Appeal on 22 February 2012. It stated merely that she “would like to appeal [her] dismissal of 3 February 2012”.

It gave no reason for the delay – at that stage the appeal was two weeks out of time.

(iii) By letter of 23 February 2012 the company informed her that it was unable to consider the appeal because the appeal was two weeks out of time. It reminded her that the five day time-limit had been pointed out to her both orally, and in writing, at the time of her dismissal, and pointed out that she had neither contacted the company to seek an extension of time in which to submit an appeal, or provided any reason for her failure to do so.

(iv) The company did not, at its managers’ own initiative, ask her to provide a reason for the delay, and the claimant, for her part, did not respond to the company’s letter or try to take the matter any further.

(v) The company had accepted late appeals before – though they had never received one as late as this before. There were no guidelines for, or policy in relation to, late appeals. While this may give the impression of being a bit hit and miss, we have no reason to disbelieve Ms Donaldson’s evidence that if the claimant had provided a reasonable explanation for the lateness of her appeal, the likelihood was that an extension of time would have been granted.

13 We now turn to the relevant law, dealing firstly with automatically unfair dismissal.

(i) The procedures applicable to automatically unfair dismissal are set out in Schedule 1 of the Employment (Northern Ireland) Order 2003.

It provides a three stage dismissal procedure. If the employer fails to comply with it, the dismissal will be automatically unfair. Compliance with the statutory DDP is a necessary, but not necessarily sufficient, prerequisite for the employer who wants to show that a dismissal was fair. In other words, he may satisfy the requirements of the DDP, but the dismissal may still be unfair under the general test of fairness set out in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996.

(ii) Here the majority members of the tribunal are satisfied that the employer has complied with what, it is important to emphasise, are these minimum procedures. The claimant was provided, by letter, with a statement of the grounds for action and an invitation to a disciplinary meeting (Step 1), a meeting was held, and the claimant had reasonable notice of that meeting. She was informed of the outcome and of her right to appeal (Step 2), and the appeal did not take place because of her default (Step 3).

In particular, they are satisfied in relation to Step 1 that the claimant, by virtue of the letter inviting her to the meeting, the fact that witness statements were attached, that she was told dismissal was a potential sanction, and the fact that the specific allegation that she told Mr Filip she would get her husband to punch him was put to her at the meeting, was aware of the allegation being made against her and had the opportunity to answer it. (See : Draper v Mears Ltd [2006] IRLR 869.)

In relation to Step 2, the company’s minimum notice period of 24 hours relating to disciplinary hearings was short, but it cannot be said to be unreasonable.

We are satisfied in relation to Step 3 (appeals) that, while nowhere in the statutory provision relating to DDPs is there a express right for an employer to impose a time-limit on an employee’s right of appeal, it is permissible to set a time-limit provided it is reasonable. In practice, everyone will then know where he or she stands. Here we think that a time-limit of five working days is reasonable. That is the time-limit specified in the Code of Practice promulgated by the Labour Relations Agency (2011 Code, para 47), and in that issued by ACAS, its counterpart in mainland Britain.

Under Step 3 an employee must take all reasonable steps to attend the appeal meeting. Here the claimant did not do so. There was significant delay on her part in appealing, notwithstanding she had taken legal advice, and she provided no explanation for that delay. (See : Aptuit (Edinburgh) Ltd v Kennedy UKEAT/0057/06/MT.)

(iii) The minority member of the tribunal, while sharing the view of the majority in relation to Steps 2 and 3, is of the view that in relation to Step 1 (the statement of the grounds for proposed action and the invitation to the disciplinary meeting) the allegations against the claimant were framed inaccurately and imprecisely.

This had the result that the situation was, overall, confused, and as a consequence the claimant was prejudiced at the disciplinary hearing in that she did not really know the charge she had to meet.

(iv) For this reason, the minority member would therefore find that the claimant was automatically unfairly dismissed.

14 We now turn to ordinary unfair dismissal.

(i) The reason given by the employer for the claimant’s dismissal was inappropriate behaviour as a manager – shouting and yelling and using threatening behaviour. This was a reason relating to her conduct and is therefore a potentially fair reason for dismissal by virtue of Article 130(2) of the 1996 Order. In this case threatening another was given as an example of gross misconduct in the section of the company’s employee handbook which related to disciplinary matters.

(ii) In determining whether a dismissal for alleged gross misconduct is unfair the tribunal has to decide whether the respondent had a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct in question (here threatening another) at the relevant time. This can be broken down into three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds on which to sustain that belief. Third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

(British Home Stores Ltd v Burchell [1978] IRLR 379 EAT)

(iii) In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23 CA, it was held that the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss an employee for a conduct reason.

(iv) At all stages of the process, tribunals are informed not to substitute their own views for that of the employer, and in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 they are reminded, at Paragraph 26, that:-

“ … The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.”

(v) For completeness, Rogan also points out, at Paragraph 21, that a tribunal must also consider whether the misconduct in question was a sufficient reason for dismissing the employee.

15(i) Here it is contended, on behalf of the claimant, that the disciplinary investigation and hearing and the procedures followed in relation to them were flawed for various reasons and do not pass the test of reasonableness.

(ii) The disciplinary process followed is said to be unfair in the following ways. We set these out separately, though as is clear from our narrative, there is an elision between some of them:-

(a) from the outset management failed to recognise that they were dealing with a potential case of harassment of the claimant;

(b) the claimant made the initial complaint, but the table was turned on her and she, the accuser, became the accused in circumstances where she had no inkling, let alone expectation, that this might happen;

(c) the allegations against her were framed imprecisely and inaccurately, so that she went into the disciplinary hearing before Mr Stewart not knowing the case she had to meet;

(d) the disciplinary process was flawed, because Mr McMullan and Mr Stewart did not take account of relevant matters favourable to the claimant, in particular, that she was upset when she initially made the complaint, and the fact that Mr Filip had made an apology to her (implying that he was the aggressor or in some way to blame);

(e) Mr Stewart had a closed mind, in that he rigidly adhered to Mr McMullan’s view of the matter, and did not make any further enquiries into matters of potential assistance to the claimant to which reference is made at (d), or which might have led to uncovering information in relation to an adult caution given to Mr Filip for common assault, or the knife incident;

(f) the respondent company took a overly rigid attitude to its appeal process, by not extending the time for appeal, not enquiring into the reason for the claimant’s delay, and in refusing to extend time where it had been stated by its manager at the dismissal outcome meeting that the issue of the knife, raised this for the first time, was a matter to be dealt with on appeal; and

(g) that the penalty of dismissal was unreasonable and disproportionate; not only in itself, but in comparison to penalties imposed in similar cases.

16(i) In relation to the claim of unfair dismissal, a majority of the tribunal reject the allegations set out at Paragraph 15(ii) above, though this is not to say they do not have reservations about the way the respondent company dealt with some of these matters.

(ii) We deal with Points (a) – (g) at 15(ii), following the sub-paragraphs’ lettering:-

(a) we do not accept that management failed to recognise that the claimant was potentially making a claim of harassment. She did not complain of ‘harassment’ or ‘bullying’ or ‘discrimination’ as such, though we would attach little significance to that in itself, being a matter of form rather than substance. We find, on a reading of the factual information set out in the complaint recorded from her, there was no material which could reasonably have been construed as a complaint of harassment;

(b) it is accepted the claimant made a complaint, and ended up facing a disciplinary charge. Again, to our mind, nothing turns on this. We do not think that this can be an uncommon situation. Where one has allegations and counter-allegations made by the respective protagonists in an incident, there will always be an element of chance as to which one gets in first with a complaint;

(c) we accept that the disciplinary charge could have been framed with more precision and accuracy and it is worrying that in a company of the respondent’s size, with its own HR Department, that these deficiencies occurred. However, for the reasons set out in Paragraph 13(ii) in relation to Step 1 of the statutory DDP, we are satisfied that the claimant did in fact know the specific allegation against her, and was not prejudiced in her defence to it;

(d) Mr Stewart does not appear to have specifically considered evidence that the claimant was upset or that Mr Filip had made an apology. However we are nonetheless satisfied that there was ample evidence before him on which he could have reached the conclusion he did. It is highly significant that in his determination he found that the claimant had been provoked and the evidence of her upset and Mr Filip’s apology are as consistent with this as they are with her later claim that she was acting in self-defence in a situation where she had been threatened;

(e) we do not accept that Mr Stewart had a closed mind. He was entitled to have regard to Mr McMullan’s report. He acted on the information before him. He made a finding that Mr Filip had behaved provocatively (which Mr McMullan did not make) and took that into account. The claimant put no information before him at that stage relating to the alleged knife incident involving Mr Filip. That was something particularly within her knowledge which surely cried out to be mentioned by her much earlier then she did in fact mention it. She had opportunities to do so not only when she made her grievance (we could understand her not making it then because of her upset immediately following the incident), but subsequently at the investigation meeting, the time of her suspension, or in the course of the disciplinary hearing (as opposed to at its conclusion). There is also no evidence of the knife incident, other than the claimant’s bald assertion that it took place. Indeed the matter of the knife incident seems to us to raise more general issues about the claimant’s credibility.

At the tribunal hearing the claimant did adduce evidence that Mr Filip had received a police caution for common assault. However, this was in relation to an incident which took place when he was not working for the respondent company, and of which its managers had no knowledge or could not reasonably have been expected to have knowledge. This evidence therefore does not advance the claimant’s case;

(f) while each member of the tribunal has reservations about the company refusing to extend the time for appeal and would not necessarily have made the same decision (indeed one of the majority would have granted her an extension of time), we cannot say that the company’s decision was unreasonable. The claimant had been informed of her right of appeal, she knew the time-limit for making it, and that time-limit was reasonable. She had taken legal advice at an early stage, she delayed considerably in making the appeal and she made no case for an extension either in her laconic appeal letter, or subsequently when told that time would not be extended. It was her appeal, it was for her to lodge it in time, and if there was some reason why she would not do that, it was for her to make her case for an extension. While some employers, on receipt of a late appeal might have been more proactive and solicited the reason for delay on her part, equally others might have adopted the company’s position;

(g) the majority of the tribunal consider that the penalty of dismissal imposed on the claimant, while harsh and one which they would not have imposed in the particular circumstances of this case, was nonetheless a sanction which a reasonable employer could have imposed having regard to the misconduct proved against the claimant. There was a threat of physical violence (albeit that provocation was accepted) and that threat was directed against a subordinate employed by someone holding a supervisory and managerial position. Any employer would take a serious view of such conduct.

The majority therefore do not consider it was inconsistent with other disciplinary penalties imposed by the company in similar situations.

(iii) The minority member of the tribunal generally shares the view of the majority in relation to Points (a), (b) and (f) above.

Her view in relation to (c) – the disciplinary charge – has already been set out at Paragraph 13(iii) above in the context of automatically unfair dismissal. The prejudice which she believed the claimant suffered in this respect obviously then had the potential to impact on matters (d) and (e) above.

As far as the penalty of dismissal is concerned, she considers that it was, in the circumstances, so harsh as to take it outside the band of reasonableness. In particular, she considers that it was not consistent with other penalties imposed, that it did not take full account of the claimant’s previous good record, or of Mr Filip’s apology, and that it also did not take account of the physical and mental state the claimant was in when she made her complaint.

17(i) A majority of the tribunal therefore find that the claimant was fairly dismissed by the respondent company for gross misconduct.

They are satisfied that the employer has satisfied the test laid down in British Home Stores v Burchell [1978] IRLR 378 EAT.

(ii) A minority considers that the dismissal was unfair, for the reasons set out at Paragraph 16(iii) above.

(iii) We do not consider that Article 130A(2) of the 1996 Order (Polkey reversal) has any application here.

(iv) Had the majority found that the claimant had been unfairly dismissed, they and the minority all agree that she contributed to her own dismissal by virtue of her conduct on the occasion in question, and accordingly any compensation awarded to her would have been substantially reduced . There is a clear evidential basis for such a finding and we reject the claimant’s counsel’s submission to the contrary.

18 We now deal with the claimant’s claim of discrimination on the grounds of her sex and race, and of victimisation:-

(i) Article 3 and 8 of the Sex Discrimination (Northern Ireland) Order 1976 as amended, make it unlawful to discriminate against a woman in the context of employment by treating her less favourably than one would treat a man in the same circumstances.

Article 63A sets out the now familiar provisions found in anti-discrimination legislation providing that where a claimant proves facts from which a tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination, the tribunal must uphold the complaint unless the respondent proves that he did not commit that act.

Victimisation is covered by Article 6 of the 1976 Order. This form of discrimination applies where the claimant has performed a protected act, in this case the making of a grievance. The claimant must identify an appropriate comparator, and the doing of the protected act must be the cause of the less favourable treatment. The appropriate comparison is between the claimant and someone who has not done a protected act. See : Chief Constable of West Yorkshire Police v Khan [2007] ICR 2065 HL.

(ii) Discrimination on the ground of race is governed by the Race Relations (Northern Ireland) Order 1997, as amended. It contains similar provisions to those in the 1976 Order. Articles 3 and 6 deal with direct discrimination, Article 52A deals with the burden of proof, and Article 4 deals with discrimination by way of victimisation.

(iii) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong Chamberlain 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 an Annex to the judgment in the Igen case, op.cit 269,270.

We therefore do not set it out again, but we have taken it fully into account.

(iv) In short, the claimant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground. The tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that (in this case) race or sex was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will expect cogent evidence to discharge that burden of proof.

(v) Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer.

(See : Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International PLc [2007] IRLR 27; and Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25)

(vi) These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24.

In the former Coghlin LJ, at Paragraph 16 of the judgment, emphasised the need for tribunals hearing case of this nature to keep firmly in mind the fact that such claims are founded upon an allegation of discrimination. This was re-emphasised by Girvan LJ, at Paragraph 24 of the judgment in the latter case.

19(i) As far as the claimant’s allegations of sex discrimination and race discrimination are concerned, these focus principally on the alleged disparity between the sanction of dismissal imposed on her and the final written warnings imposed on her named comparators, as set out at Paragraph 11(ii) above.

(ii) However, one of the reasons management regarded the claimant’s conduct as serious was because she exercised a supervisory role at work. This was not the case with Mr Filip, Mr Donnell and Mr McConaghie. Additionally, Mr Filip, who was involved in the incident with her, was also disciplined arising out of it. He was found to have acted inappropriately and provocatively, but the element of making an actual threat of physical violence was not present.

In relation to Rosie McMullan, she was a manager. The claimant contends Ms McMullan was allowed to put forward matters of mitigation, something denied to her. However, Mr Stewart did specifically consider matters of mitigation including her length of service and clear disciplinary record. He then made a finding that Mr Filip had been provocative. None of these matters persuaded him to impose a sanction other than dismissal.

He was aware of the McConaghie and McMullan cases, but took the view their conduct was not as serious as that of the claimant.

(iii) We are satisfied that Mr Stewart honestly believed that the penalty he imposed was the appropriate one in her circumstances. There will inevitably be some inconsistencies in disciplinary penalties (we do not necessarily accept that there were here) but that of its own does not provide evidence of discrimination on a proscribed ground.

(iv) Insofar as race discrimination is concerned, figures produced show that in any event proportionately more local than foreign workers suffered the sanction of dismissal for disciplinary offences.

(v) More generally, in relation to race discrimination, the claimant made allegations that foreign workers were treated less favourably in that unlike local workers, they were made to work compulsory overtime and long hours. These allegations were not pursued with any great vigour in the course of the hearing and such evidence as we heard in relation to them suggests that they do not reflect the position in the workplace, where overtime is not compulsory and local workers also work long hours. As we have noted, the majority of the workplace are foreign nationals.

(vi) Evidence was given in relation to a text message between the claimant and Mr Stewart, which it is contended shows a disparaging attitude on his part to foreign workers. That evidence is ambiguous and inconclusive, and is unsupported in any other way.

(vii) There is no evidence that the claimant was victimised for making a grievance. The reason she was suspended, and subsequently dismissed, was her gross misconduct.

20 The claimant’s claims of sex discrimination, race discrimination, and victimisation are also dismissed.

Chairman:

Date and place of hearing: 22 – 26 October 2012, Belfast

Date decision recorded in register and issued to parties:

ANNEX ‘A’

Case no. 441/121T

IN THE OFFICE OF INDUSTRIAL AND FAIR EMPLOYMENT

TRIBUNALS FOR NORTHERN IRELAND

Between

CHRISTINA TIAN

Claimant

and

O’KANE POULTRY LIMITED

Respondent

STATEMENT OF ISSUES

A. ISSUES OF FACT

1. Was there a failure by the respondent to follow the statutory dismissal procedure?

2. Was there a failure by the Claimant to follow i) the statutory dismissal procedure?
And/or ii) Contractual dismissal procedure in relation to an appeal?

3. Did the respondent conduct a reasonable investigation?
in particular, did they investigate adequately whether the other employee in the incident of 18th January 2012 was capable of a violent reaction?

4. Did the Claimant tell the Respondent that she accepted she threatened Mr Filip, raised her voice and shouted at him in the course of the incident?

5. Did the Claimant raise a grievance on the grounds of sex discrimination or discrimination on the grounds of her race or national origins?

6. If so, were the following steps a form of detriment applied to the claimant-

(a) her suspension and implementation of a disciplinary process?
(b) the application of dismissal as a sanction?

7. If the foregoing were forms of detriment, was the claimant subjected to less favourable treatment in those respects than

(a) any other employee raising her voice to another employee.
(b) Rose McMullan.

8. Was the reason for such treatment

-her gender?
-her race or national origins?

9. Did the Claimant at any stage refer the Respondent to Rose McMullan or any other employee in comparing her situation with theirs, in the course of her disciplinary process?

10. Did the Claimant at any stage in the course of her disciplinary process make the case that “gross misconduct” was not the “true” reason for her dismissal?

11 .Did the Claimant at any stage prior to her dismissal allege discrimination on the grounds of Sex or Race arising from the incident on 18th January 2012?

12. What losses did the claimant sustain in consequence of her dismissal?

13. Did the claimant act reasonably to mitigate her loss?

14. Did the claimant sustain injury to feelings as a result of unlawful discrimination?

15. Did the Claimant’s conduct contribute to her own dismissal?

16. Is holiday pay due and owing?

17. Did the respondents carry out as much investigation into the matter as was reasonable in all the circumstances of the case?

18. Did the employer entertain a reasonable suspicion amounting to a belief in the guilt of the claimant of the misconduct alleged?

19. Was misconduct the real reason for dismissal or was it to “save costs” as alleged by the claimant?

20 Did the employer act reasonably in considering mitigating circumstances?

B. ISSUES OF LAW

1. Was there an automatically unfair dismissal?

2. Did the decision to dismiss fall within the range of reasonable responses open to a reasonable employer?

3. Did the respondents follow a fair procedure in dismissing the claimant? and if the procedure was unfair, would the claimant have been dismissed in any event?

4. Having regard to the true reason for dismissal, was that reason such as to justify the dismissal of an employee holding the position which the claimant held? Employment Rights (Northern Ireland) Order 1996 art. 130(4)(a).

5. Was the dismissal fair in the circumstances, having regard to the size and administrative resources of the respondents; did the respondents act reasonably in treating the misconduct as a sufficient reason for the dismissal? Ibid art. 130(4)(a).

6 Did the respondents act in accordance with equity and the substantial merits of the case? Ibid art. 130(4)(b).

7. Was the Claimant treated less favourably by the Respondent than any other employee raising her voice to another employee or Rose McMullan on the grounds of her Race by dismissing her, contrary to the Article 3 and 6 of the Race Relations (NI) Order 1997?

8. Was the Claimant treated less favourably by the Respondent than any other employee raising her voice to another employee or Rose McMullan on the grounds of her Sex by dismissing her, contrary to the Article 3 and 8 of the Sex Discrimination (NI) Order
1976?

9 Did the Claimant raise a grievance relating to sex discrimination and racial
discrimination? If so is this a protected act? and if so, was the claimant subjected to victimisation for that reason contrary to art 6(1)(c) or 6(l)(d) Sex Discrimination (NI) Order 1976 or art 4(2)(a)(iii) or 4(2)(a)(iv) Race Relations (NI) Order 1997?

10. Did the claimant by reason of any act or omission on her part contribute to her dismissal?

11. Did the claimant take reasonable steps to mitigate her loss and seek alternative employment?

12. Were the claimant’s losses attributable to her dismissal?

13. Did the claimant sustain injury to feelings as a result of unlawful discrimination?

14. Should an award (if any) be uplifted or reduced to take account of failure to follow procedure by either the claimant or the respondent?

15. Were there any aggravating features of the employer’s conduct, in particular, the failure to support a manager dealing with an aggressive employee (if same applied)?

END