Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1607/16

 

 

CLAIMANT: Shane Hynds

 

RESPONDENTS: 1. South Eastern Regional College

2. Tim McAlister

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was not unlawfully discriminated against by way of victimisation on account of the claimant having carried out a protected act under the provisions of Article 4 of the Race Relations (Northern Ireland) Order 1997. The tribunal Orders the claimant's claim to be dismissed, without further Order.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Leonard

 

Members: Ms M J McReynolds

Mr P Sidebottom

 

 

Appearances:

 

The claimant was represented by Mr Potter, Barrister-at-Law, instructed by Thompsons NI, Solicitors.

 

The first-named respondent was represented by Mr Doherty, Barrister-at-Law, instructed by Worthingtons, Solicitors.

 

The second-named respondent was represented by Mr Gilmore, Barrister-at-Law, instructed by Francis Hanna & Co, Solicitors.

 

 

 

REASONS

 

1.             By claim form dated 4 July 2016 the claimant claimed unlawful discrimination contrary to the Race Relations (Northern Ireland) Order 1997 (as amended) (hereinafter referred to as "RRO 1997") and/or European Law, providing detailed particulars of his claim. By response to the claim dated 18 August 2016, the first-named respondent, being South Eastern Regional College (hereinafter referred to as "SERC") denied each and every allegation made by the claimant in his claim form and, specifically, denied the allegation that the claimant was unlawfully victimised contrary to Article 4 of RRO 1997. SERC did not accept liability on behalf of the second-named respondent, Tim McAlister. SERC, in the response, provided details of the grounds upon which the matter was to be defended. The second-named respondent (hereinafter referred to as "Mr McAlister") in a detailed response dated 12 August 2016, denied the claimant's allegations and indicated that certain matters were for SERC to address.

2.             The hearing was subject to case management. It was directed that the witnesses for the claimant and for the respective respondents would submit witness statements and that these were to be formally adopted by the witnesses, in each case, as their evidence. The witnesses were then to be subject to cross-examination and to re-examination in an oral hearing. The tribunal, as would normally be the case, was permitted to ask questions for the purposes of clarification. Apart from the bundles of witness statements, the tribunal had before it an agreed bundle of documents running to some 462 pages and various documents contained therein were referred to throughout the course of the oral hearing. The evidence received by the tribunal was, in respect of the claimant's witnesses, evidence in the form of written statements and responses to cross-examination questions and any questions from the tribunal, from the claimant himself and from Joyce McAndrew, Regional Support Official from the University and College Union (hereinafter referred to as "UCU"). Witnesses for SERC were John Nixon, Head of School, Paul Henry, Deputy Head of School, Victoria Boyce, Senior Human Resources Business Partner, Maureen McKay, Human Resources, Emma Carson, Deputy Head of Human Resources, Paul Smyth, Chief Human Resources Officer, Gary Lyons, Independent Investigatory Officer and Heather McKee, Director of Strategic Planning, Quality & Support. Witnesses for
Mr McAlister were Mr McAlister himself and Katherine Clarke, Northern Ireland Official for UCU.

 

THE TRIBUNAL'S FINDINGS OF FACT

 

3.             The tribunal, on the balance of the evidence, made the following findings of fact:-

 

3.1          The claimant commenced employment on 13 October 2006 with SERC. At the material time, the claimant was a full-time lecturer in the School of Construction and Engineering Services, working in the Motor Vehicle Department of SERC's Downpatrick campus. This employment appears to have been relatively uneventful, as far as the evidence before the tribunal was concerned (this observation is, however, qualified to the extent mentioned towards the conclusion of this determination). Certain events then transpired which involved allegations of race discrimination being made by a James Nyamutenha, who was a full-time lecturer at SERC's School of Construction and Engineering Services (Motor Vehicle Department). These allegations concerned a number of individuals connected with the place of work and appear to have covered a period from September 2011 to January 2015. As a consequence, an internal investigation was commissioned by SERC. This was arranged to be conducted by Jacqueline Gamble and is hereinafter referred to as the "Gamble investigation". The Gamble investigation was conducted in accordance with SERC's harassment and bullying procedure.

 

3.2          The tribunal was given sight of SERC's Individual Grievance Procedure for Teachers in Institutions of Further Education and the Equal Opportunities Policy and Harassment Policy. The tribunal has little doubt that such policies and procedures were properly communicated to all staff, including those persons alluded to in this claim. In the course of her investigation Ms Gamble made enquires and conducted interviews which, in short, resulted in the production of a detailed and comprehensive report, hereinafter referred to as the "Gamble report". It appears that Ms Gamble arranged to conduct her investigation on a confidential basis, in that she assured anyone providing information that this would be treated in confidence. The Gamble report was completed in July 2015. Sometime later it was provided to a number of individuals, including to Mr McAlister, however in a substantially-redacted form. A full and unredacted copy of the Gamble report was not provided to the tribunal.

 

3.3          The claimant's direct line manager was Mr McAlister, as Assistant (or Deputy) Head of School in the School of Construction and Engineering Services (Motor Vehicle Department) of SERC. Mr McAlister had held this post since about 2013. It seems that specific complaints were raised by Mr Nyamutenha against Mr McAlister and against two of his colleagues. That appears to have been in or around January 2015. The Gamble report was not provided to Mr McAlister until November 2015. The tribunal had sight of the copy report as provided to Mr McAllister and that bore substantial redactions.

 

3.4          Ms Gamble had investigated a total of fourteen allegations. The outcome was that four of these allegations were determined substantiated and were upheld against Mr McAlister. As some of the allegations were not upheld, it is unnecessary to detail the specifics. The four allegations substantiated, as numbered in the report, were:- (a) number 8, relating to the treatment by Mr McAlister of Mr Nyamutenha at meetings; (b) number 9, being that Mr McAlister had altered information in an EV spreadsheet to make it look like Mr Nyamutenha had made a mistake; (c) number 10, concerning allegations made by Mr Nyamutenha against Mr McAlister concerning undermining and the suggestion of plagiarism; and finally (d) the first allegation of certain further allegations, this being of alleged interference with the investigation. The Gamble report concluded that, of the allegations substantiated, allegations numbered 8, 9 and 10 were found to constitute bullying and harassment. The report expressly made a comment (at paragraph 6.3) concerning whether alleged incidents of harassment and/or bullying, if substantiated, were related to Mr Nyamutenha's race. In this respect, Ms Gamble found that of the four allegations substantiated against Mr McAlister, none were deemed to be related to Mr Nyamutenha's race.

 

3.5          Mr McAlister was provided with a copy of the Gamble report, as mentioned, in a substantially redacted form, confirming the investigation outcome. That was sent to him under cover of a letter from SERC dated 9 November 2015. The letter confirmed that, in accordance with SERC's harassment policy and the conclusions and recommendations within the Gamble report, SERC's disciplinary procedure would be initiated against Mr McAlister as recommended by Ms Gamble in respect of the substantiated allegations. As a consequence of receiving this outcome notification and the intimation of disciplinary proceedings, Mr McAlister sought advice and assistance from his representative body, UCU. In seeking advice, Mr McAlister had dealings with Katherine Clarke, UCU's Northern Ireland Official. The claimant himself also sought support from UCU. Because of the potential conflict between parties, the claimant had separate discussions with Joyce McAndrew, UCU's Regional Support Official, who was based in England. Ms Clarke arranged for Mr McAlister to obtain legal advice and assistance from UCU's legal advisers, Messrs Francis Hanna and Company, Solicitors. As a consequence, Mr McAlister met on at least two occasions with Mr Gerry Daly, Solicitor, who is now regrettably deceased. From the evidence it is clear that Mr McAlister met with the Solicitor to obtain legal advice concerning the building of his defence in respect of the pending disciplinary proceedings. The tribunal received very little evidence or information regarding a claim for race discrimination apparently pursued by Mr Nyamutenha to an Industrial Tribunal. The decision not to impart much information to the tribunal about the race discrimination claim was a decision jointly taken by the respective representatives. From any information available, this discrimination claim appears to have been initiated prior to March 2016.

 

3.6          Many matters of evidence in this case were not in contention. However, there were a number of evidential issues which were very much in contention. One such relates to the discussions which took place between Mr McAlister and Ms Clarke and the late Mr Daly and the precise content of any legal advice imparted by the Solicitor. Ms Clarke's evidence to the tribunal was that Mr McAlister was advised by Mr Daly to ascertain if certain individuals in SERC would be willing to provide statements, or in any other way to assist in the construction of Mr McAlister's defence. In these discussions, Mr McAlister queried with the Solicitor whether approaching individuals might render him vulnerable to accusations that he was interfering with witnesses. Mr McAlister was advised both by the Solicitor and also by Ms Clarke that that would not be so when the (Gamble) investigation was closed. Such advice was, without doubt, referenced to the closure of the Gamble investigation in July 2015. The Solicitor explained to Mr McAlister that he had an absolute right to defend his position and as it was apparently put, he had "legal authority" to do so. There was apparently a further meeting between Mr McAlister and Mr Daly to which Ms Clarke was not privy, but the tribunal does not understand that this added much to the foregoing advice imparted by the Solicitor. The tribunal had no reason to doubt the veracity of Ms Clarke's evidence in regard to the specific content of the advice provided by the Solicitor to Mr McAlister, notwithstanding that this was challenged in cross-examination on behalf of the claimant. The tribunal found Ms Clarke to be a fully credible witness. Materially, the tribunal finds the suggestion advanced in the case that Ms Clarke had informed the claimant that Mr McAlister had not followed the legal advice provided to him by the UCU and by the Solicitor, to be unsupported by the evidence. The tribunal fully accepts Ms Clark's account, which is that this suggestion is entirely incorrect. Ms Clark indicated that she was already representing Mr McAlister at the time she was first approached by the claimant. She therefore could not discuss matters pertaining to UCU's support of Mr McAlister with the claimant. Furthermore, had Mr McAlister failed to follow legal advice, he would have been in contravention of UCU's legal support scheme and legal services would consequently have been withdrawn.

 

3.7          One of the notable features in this case, seen in the context of the claimant's allegations, is that there were no exchanges or dealings of any adverse, confrontational, or unpleasant character between Mr McAlister and the claimant between that time, early November 2015, when Mr McAlister had received the redacted copy of the Gamble report and specific events then occurring in early April 2016, being the primary focus of the claimant's allegations of victimisation. It may be said in short that, upon the weight of the evidence, Mr McAlister's apparent motivation in wishing to speak with the claimant towards the end of March or early April 2015, some five months after having received the report, was not obviously characterised by any reaction or impulse engendered by his reading the report and therein observing certain comments attributed to the claimant. Mr McAlister's motivation, at this later time, was connected with his seeking legal advice from UCU and the late Mr Daly and preparing himself to meet the disciplinary charges which were pending at that time.

 

3.8          Regarding any race discrimination claim pursued by Mr Nyamutenha, a decision was taken by the professional representatives not to impart information regarding that claim to the tribunal. Irrespective of the wisdom of that decision, the consequence was that the tribunal was effectively placed in a position where there was a significant dearth of information concerning any such claim, specifically, insofar as that might have connected to Mr McAlister and to any outcome. In Mr McAlister's evidence, he mentioned that Mr Nyamutenha's race discrimination claim was apparently settled in December 2016 but that Mr McAlister was unaware of the terms of any settlement. The claimant stated that he understood Mr Nyamutenha to have the lodged a claim with the Industrial Tribunal in February of 2016. He states that he indeed provided a witness statement in support of Mr Nyamutenha's claim, but that was not until October 2016, well after the April 2016 events. Going back to early April 2016, disciplinary procedures were certainly 'live' as far as Mr McAlister was concerned; that appears to have been his focus at this time.

 

3.9          The specific allegation referenced in the Gamble report to which the tribunal's attention was directed was allegation numbered 8. This was entitled, 'Treatment at Meetings'. The relevant paragraph comprised in the Gamble report reads as follows:-

 

" Shane Hynds confirmed that he was also at the self-evaluation meeting. Although Shane gave the date as June 2013 it became clear from the description at the meeting that it is the same meeting to which David Irwin referred. Shane stated that James asked where Alan Kerr was and described a meeting where Tim gave James a "shocking" doing for an hour and went "off the rails". Shane confirmed that David Irwin stood up to defuse the situation and challenged him about the way he was treating James when he said he was unprofessional. Shane stated that he was shocked and embarrassed. He confirmed Tim and James moved to a study room where the shouting lasted for a further 15 minutes".

 

The significance of the foregoing extract is that it was in connection with this that Mr McAlister wished to meet with the claimant. There is no evidence that this particular meeting was in connection with anything else.

 

3.10       Towards the end of the week prior to the meeting, possibly on Friday 1 April 2016, Mr McAlister met with John Nixon, Head of School. The two had a brief discussion concerning the pending disciplinary matters. In his evidence to the tribunal, Mr Nixon could not recall much of the specifics of this discussion. However, he made clear that he had sanctioned Mr McAlister meeting with the claimant and that it was agreed that a note-taker would be present, Paul Henry, another Deputy Head of School. The issue of whether or not the matter at that point ought to be referred to SERC's Human Resources Department was considered by Mr Nixon, but he decided not make a referral. Mr Nixon's explanation for this to the tribunal was that he wished a degree of informality to attach to any discussions between Mr McAlister and the claimant; he did not see the need to involve Human Resources at that point. This latter decision was strongly criticised on behalf of the claimant. However, the tribunal noted Mr Nixon's evidence and found his approach and his reasoning in this respect to be both credible and permissible in the circumstances. He held proper authority to make such a decision as Head of School. Indeed Mr Nixon indicated to the tribunal that in his senior role he made many decisions across a wide range of matters and referrals to Human Resources would not routinely be made unless there was a specific reason to do so. Mr Nixon believed that staff could perceive the involvement of Human Resources as creating the perception of a formal process.

 

3.11 In order to prepare his defence to the disciplinary matter, Mr McAlister sent emails to a number of staff members. The emails, in each case, alluded to the internal investigation carried out against Mr McAlister and specifically detailed the allegation concerning Mr McAlister's stated treatment at meetings. For example, on 4 April 2016, Mr McAlister sent to a member of teaching staff, Basil Colquhoun, an e-mail as follows:

 

" As you are aware there has been an internal investigation carried out against me.

One of the outcomes of the internal investigation is mentioned below.

Could you please read this allegation and give me your honest feedback on whether or not in any of the team meetings etc that you have been present. (sic) Have you ever witnessed me behaving in any of the ways highlighted in the below statement.

Allegation-treatment at meetings

 

During meetings, you raised your voice and shouted at James Nyamutenha. Further, you told Mr Nyamutenha to be quiet, shouted him down and told him he was out of order at departmental meetings.

I would appreciate your confidentiality in this matter.

If you could please respond to me via e-mail ."

3.12.     An e-mail in identical terms and of the same date, 4 April 2016, was also sent by Mr McAlister to James McClure (otherwise "Ian" McClure) and the same text was later used in an email sent to Alan Kerr on 20 April 2016. Mr McClure responded shortly after receiving this e-mail and stated to Mr McAlister, in a replying e-mail, that he had honestly not witnessed this. On that same day Mr McAlister requested a brief chat with Mr McClure who then came to Mr McAlister's office. Mr McClure related to Mr McAlister an incident which had occurred on the morning of 4 April 2016 whereby Mr McClure's students had told him that Mr Nyamutenha, as it was expressed, "has had Tim, Alan (that being Alan Kerr) and Alan's dad sacked". Mr McAlister's evidence was such spreading of rumours caused him to become greatly concerned about the need to maintain confidentiality. He accordingly took the decision not to inform the claimant, in advance, concerning the subject of the requested meeting. Mr McAlister's stated motivation for the disparity in treatment of the claimant, on the one hand and for example that of Mr McClure, on the other, was strenuously challenged in cross-examination by the claimant's representative. It was put to Mr McAlister that the disparity in treatment was quite intentional and that this arose on account of a particular motivation which could not be satisfactorily accounted for by Mr McAlister's desire merely to keep matters confidential. It was put to Mr McAlister that this was designed to pressurise the claimant into amending any evidence and/or to put pressure on the claimant as a means of retribution for the claimant providing to the Gamble investigation certain evidence which was adverse to Mr McAlister's position. The tribunal will explore this issue further below. However, it is sufficient to say at this point that the tribunal did not find Mr McAlister's evidence in this regard to the inherently incredible. Indeed, in respect of the "retribution" proposition, the tribunal bore in mind the inescapable fact that Mr McAlister had been in possession of the extract from the Gamble Report for nearly five months by this time. There was no evidence whatsoever that Mr McAlister had at any time throughout that five-month period endeavoured to avail of any opportunity to approach the claimant for the purposes suggested by the claimant's representative alleged to have surrounded the 6 April 2016 meeting.

 

3.13.     A further illustration of what occurred at this particular time emerges from a letter dated 5 April 2016 which was sent by Ms Clarke of UCU, to SERC's Chief Human Resources Officer, Paul Smyth. In this letter, Ms Clarke relates that that morning she had received a telephone call from Mr McAlister relaying circumstances that appeared to be a serious breach of confidentiality in relation to disciplinary hearings scheduled for Mr McAlister and Mr Kerr. Ms Clarke's letter mentions that Mr McClure had reported to Mr McAlister that Mr McClure's students had said to him that Mr Nyamutenha, "has had Tim, Alan and Alan's dad sacked". These events, upon the available evidence, appear to have caused considerable distress to Alan Kerr, who apparently had to go home ill. The letter from Ms Clarke concludes with the request that, "urgent and necessary steps would be required to stop the private personnel matters of staff being the gossip fodder of the SERC student population". Clearly the content of this contemporary letter supports the proposition that Mr McAlister was very concerned at the situation. He had accordingly communicated his concerns to his UCU representative, Ms Clarke.

 

3.14.     Going back slightly in time, on 30 March 2016 the claimant received an email from the Senior HR Business Partner of SERC, Victoria Boyce, seeking the claimant's consent for the release of a full copy of the notes of his interview with Jacqueline Gamble to the individuals against whom allegations had been made. Such confirmation was requested to be forthcoming from the claimant by midday on 6 April 2016 and Ms Boyce indicated that, if such consent was not forthcoming, SERC would release a redacted copy of the notes. An e-mail in similar terms was sent by Ms Boyce at that time to all members of staff and students who had provided notes as part of the Gamble investigation. The claimant declined to provide his consent to the release of the notes by a communicated message from his UCU representative at that time.

 

3.15.     On 5 April 2016 the claimant received a Skype communicator message from Mr McAlister asking which class he would be teaching the following day. Mr McAlister stated that he needed to have a chat with the claimant and that he would come down to the Downpatrick Campus the following day. When the claimant asked Mr McAlister what the chat was to be about, Mr McAlister replied that he would explain the following day. As a result of this communication the claimant apparently felt anxious. He was concerned that the meeting might be related to the email that he had received from Ms Boyce on 30 March 2016. Accordingly, on the afternoon of 5 April the claimant met with Ms McKay of SERC's Human Resources Department. He expressed concern that Mr McAlister had arranged a meeting for 6 April and declined to explain the purpose. The main discussion between the two concerned guidance sought by the claimant from Ms McKay as to whether or not he was required to attend.

 

3.16.     There was a conflict in evidence between the claimant and Ms McKay as to the precise information imparted. Nonetheless, Ms McKay shortly thereafter contacted SERC's Deputy Head of Human Resources, Emma Carson and sought advice from her, which advice Ms McKay then imparted promptly to the claimant. In terms of resolving any conflict, the tribunal preferred the evidence of both Ms Carson and Ms McKay as being inherently more credible, when set against the evidence of the claimant. The tribunal concludes that Ms Carson received a telephone call from Ms McKay on the afternoon of 5 April 2016. In the course of this Ms Carson advised Ms McKay that the witness statements had not been released to Mr McAlister. Furthermore, she advised that Mr McAlister, as Deputy Head of School, was entitled to have meetings with his staff. It was explained that Mr McAlister was entitled to gather evidence in his defence, but that the claimant also had the right to refuse and not to participate in the meeting if he was not comfortable in so doing. Ms Carson indicated that the meeting could be in relation to a departmental matter and that the claimant should accordingly go back and seek clarity as to the purpose of the meeting. Ms McKay then shortly afterwards expressly advised the claimant that, in the event that the meeting was about the Gamble investigation, the claimant did not have to participate in the meeting and that Mr McAlister could prepare his defence from the report, but that there was no obligation for the claimant to answer questions. Ms McKay, of note, also advised the claimant in the course of a telephone call made at approximately 5.00pm that day that Mr McAlister had indeed not been issued with the notes of the meetings.

 

3.17.     In his evidence, the claimant indicated that Ms McKay had told him that Mr McAlister was his line manager and that if the meeting related to any school business he should attend and that Mr McAlister was allowed, as part of his defence, to ask people questions. In giving this evidence-in-chief, the claimant appears to have, it must be presumed, intentionally omitted any reference to the option which had been clearly explained to him. This was the option of seeking to clarify the purpose of the meeting and of only providing information if he wished to do so and if the topic did not relate to the Gamble investigation. Examining the two contrasting positions, the tribunal prefers the evidence of both Ms Carson and Ms McKay as providing a fuller and more accurate account of what actually transpired. Indeed, Ms McKay stated in her evidence that she had informed the claimant on two separate occasions, firstly when she met the claimant in the classroom and, furthermore, when she telephoned him after seeking clarification from Ms Carson that the claimant did not have to participate in the meeting with Mr McAlister if it related to the Gamble report. The tribunal accepts this evidence as being credible and the tribunal finds that it fully echoed the conversation which had taken place that day between Ms McKay and Ms Carson.

 

3.18.     The tribunal now turns to any evidence concerning the meeting. At the commencement of the morning of 6 April 2016, the claimant was engaged in teaching a class in the Downpatrick campus when he was approached by Mr McAlister who requested a meeting with him in a room known as the "Enterprise Suite", scheduled for 10.00 am that morning. The claimant did not query with Mr McAlister the purpose of the meeting at that time. Nothing turns on that, as the motivation of the claimant in not questioning the purpose is quite understandable for the reason that he was then engaged in teaching a class. The claimant attended the meeting as requested. He arrived at the Enterprise Suite, which was a relatively small room. When the claimant entered the room, Mr McAlister was located behind a table or desk and Paul Henry was positioned to one side. There was considerable evidence given to the tribunal regarding the layout of the room, the positioning of the parties relative one to the other and of any words spoken. There were conflicts in portions of this evidence.

 

3.19.     The tribunal first examined the evidence of Mr Henry. Mr Henry had not been involved in any manner in any of the preceding grievances or the Gamble investigation. In submissions for the claimant an endeavour was made to characterise Mr Henry as being anything other than impartial. Mr Henry was portrayed as being fully complicit in the alleged endeavour by Mr McAlister to construct an intentionally oppressive scenario for this meeting. The tribunal deliberated carefully concerning all of the evidence. Having made an assessment, the tribunal does not accept that Mr Henry's evidence inherently lacked credibility, as had been suggested. The tribunal found Mr Henry to be a credible witness. On this basis, Mr Henry did initially greet the claimant with the words, "Hello Shane". There was no handshake, but the tribunal finds that nothing specifically turns on this, of itself. Mr Henry's general credibility is further enhanced by his candid statement that the atmosphere in the room was what he described as being "awkward". The claimant's evidence was that Mr Henry was introduced to him by Mr McAlister as being there "to support" Mr McAlister. Mr Henry denied this. He indicated that his presence at the meeting was explained to the claimant as being as a note-taker and possibly as a witness. The tribunal accordingly does not accept the claimant's evidence that the expression "to support" was used by Mr McAlister (or indeed by Mr Henry) to depict Mr Henry's function at the meeting.

 

3.20.     The meeting was certainly very brief (a matter of a very few minutes only) and that is not in contention. However the precise duration was not recorded. The best assessment of all of the evidence leads to the conclusion that the claimant did approach the meeting with a degree of anxiety. The content of what was said during the course of the meeting by Mr McAlister to the claimant was in dispute. When the claimant noted that the anticipated meeting with Mr McAlister was also to be in the presence of another Deputy Head of School, Mr Henry, he appears to have felt anxious. He observed that Mr McAlister had a document in his hand, highlighted in green. A copy of this document was produced to the tribunal and this consisted of a portion of the Gamble Report, with the extract as mentioned above (at para. 3.9).

 

3.21.     The claimant's version of what was stated at the meeting was that Mr McAlister commenced by telling him that he wanted clarification on points within the document which he was holding in case Human Resources had misinterpreted what the claimant had said. The claimant's evidence was that he did not know exactly what document Mr McAlister was holding and that he was worried (presumably notwithstanding his having been told the previous day by Ms McKay that this was not the case) that Mr McAlister might have got a copy of the notes from his interview with Ms Gamble. His evidence was that towards the outset he indicated to Mr McAlister that he found the situation to be stressful. His evidence was that Mr McAlister replied by asking how he (Mr McAlister) felt and that he had had fifteen months of this and had been in front of the Board of Governors and that he (Mr McAlister) could lose his job. The claimant's evidence was that he again stated that he found the situation to very stressful and he asked Mr McAlister why he had not been informed before what the meeting was to be about. There was a further brief discussion and then the claimant left the meeting room.

 

3.22.     Mr McAlister's evidence was that he introduced Mr Henry to the claimant and this was confirmed as accurate to the tribunal by Mr Henry. Mr McAlister denied that he had stated that Mr Henry was there, "to support him". The tribunal accepts this denial as being credible, confirmed as it is by Mr Henry's evidence. Mr McAlister denied that he was aware that the claimant's mood was becoming more anxious as the meeting progressed but he indicated that he said to the claimant that this had been a very highly pressured situation for all and that he in no way wished to add to that and if the claimant did not feel he wanted to answer or to clarify, Mr McAlister was happy to leave it there. Mr McAlister denied that he had asked the claimant, "How do you think I feel?" and denied that he had said, "I have had fifteen months of this". Further, he denied saying that he had been in front of the Board of Governors and that he could lose his job.

 

3.23.     The evidence from Mr Henry was that there was a sense of "awkwardness" in the room. Mr Henry had not been involved in any way in the Gamble investigation and he was there, as he saw it, impartially to take notes, but he did not intend to record a verbatim account. In his evidence he did not recall the claimant saying that he was stressed or upset, as such. Mr Henry confirmed that Mr McAlister spoke, not aggressively but quietly, during what was a short meeting. Mr Henry confirmed that Mr McAlister did say to the claimant, "How do you think I feel?" Mr Henry indicated under cross-examination that this was possibly a response to the claimant stating that he felt the meeting to be stressful, but he also confirmed that he certainly could not recall that being stated by the claimant. When it was put to Mr Henry in cross-examination that he was intentionally selective in his note-taking in order to assist Mr McAlister, Mr Henry questioned why that would have been the case. He denied being intentionally selective in note-taking in support of Mr McAlister. Mr Henry did concede that the note which he had taken was not a verbatim record and that he could have taken a fuller note, but he maintained that this was not done on account of any ulterior motive. Having assessed the general credibility of Mr Henry, in relation to the specific issue of note-taking, the tribunal finds that this was not intended to be a verbatim record of what was spoken. It was a contemporaneous note. The tribunal does not accept that it was added to or altered "after the event", as had been suggested. What is clear is that at no stage, either expressly or by obvious implication, did Mr McAlister request the claimant to retract any statement of evidence nor to alter any evidence impacting upon the disciplinary proceedings at that time being faced by him. Mr McAlister's focus, without doubt, was entirely directed to the copy extract from the Gamble Report which he had in front of him and it was this short extract which he wished to discuss. He believed that matters might have been misinterpreted by Ms Gamble. It has been suggested that, by words spoken in the course of the meeting, Mr McAlister in some way engaged with the claimant as so as effectively to detain him in the meeting against his will, almost to "trap" him. The tribunal finds that this is far from being the case. The claimant was entirely free to leave the meeting at any point. Indeed, he did so of his own volition after some brief discussions. The claimant then returned to his class.

 

3.24.     The claimant was then approached by Mr McAlister, approximately 45 minutes after the meeting had concluded and when the claimant was in the Motor Vehicle Workshop. Mr McAlister stated to the claimant that he was sorry for what had happened upstairs. He then proceeded to ask the claimant about student numbers for the next year in his Level 3 class and about a recent inspection. Mr McAlister also asked the claimant whether he needed any tools or equipment. This particular exchange was portrayed, in the presentation of the claimant's case, as constituting a further endeavour by Mr McAlister to employ a "carrot and stick" technique of, on the one hand, promising resources and, on the other, discussing student numbers. Mr McAlister's explanation for this conversation was quite at odds with this proposition. He indicated that it was nothing other than a genuine desire on his part to apologise to the claimant for any embarrassment or difficulty arising on account of the earlier meeting and to discuss normal college business with the claimant in terms of student numbers and the allocation of resources.

 

3.25.     The claimant soon afterwards raised concerns with Ms Carson by contacting her by telephone and by email that same day, 6 April. Ms Carson requested that the claimant provide written details to her. Ms Carson reverted to the claimant by e-mail the following day, 7 April, confirming that she had addressed the matter directly with Mr McAlister. In this respect Ms Carson sent an email to Mr McAlister on 7 April stating that it had been brought to her attention that Mr McAlister had been meeting with staff in respect of preparing a defence for his pending disciplinary hearing. Whilst the College certainly did not wish to prevent or impede Mr McAlister from preparing a defence to allegations, any such meetings should be stopped with immediate effect and Ms Carson suggested that, in collating his defence, Mr McAlister would first ask staff members via email if they were prepared to meet or provide a statement in his defence and to provide a clear explanation for the purpose of the request. Mr McAlister's explanation in an e-mailed reply to Ms Carson on that date (this being the day after his meeting with the claimant, 7 April ) was that the claimant had asked what the meeting was to be about the previous day and that Mr McAlister had said that he would explain to the claimant when he saw him and that this was done to try and avoid any further conversations such as had been reported to Mr McAlister on Monday and Tuesday of that week, this being a reference to the breach of confidentiality mentioned above. Mr McAlister assured Ms Carson that he would conduct any future conversations in the manner that she had recommended.

 

3.26.     Mr McAlister was suspended from work by letter dated 13 April 2016 from SERC's Principal and Chief Executive, Ken Webb, who advised him that an investigation was to be conducted into Mr McAlister's conduct as regards the claimant. That investigation was arranged to be conducted by Gary Lyons, an Independent Investigatory Officer who was retained by SERC for such purposes.

 

3.27.     The claimant went on sick leave due to diagnosed work-related stress on
12 April 2016 which he stated to be as a result of the events surrounding the
6 April 2016 meeting. The claimant returned to work on 11 October 2016, but then he went back again on sick leave on 18 November 2016. He remained absent from work at the date of the tribunal hearing. In this regard, the tribunal was referred to some medical evidence connected with the claimant's absence from work. The tribunal shall allude to this further below.

 

3.28.     Mr Lyons proceeded with his investigation and the claimant attended a meeting with Mr Lyons who also met with other relevant parties in the course of his investigation. Mr Henry met with Mr Lyons and explained to him that, if the claimant felt threatened, it was not because of Mr McAlister's behaviour or the way he was speaking in the course of the meeting. He indicated that Mr McAlister had been very professional. Having assessed any evidence gathered in the course of his investigation, Mr Lyons concluded his report under SERC's Bullying and Harassment Policy into allegations of bullying and harassment arising from the meeting held on 6 April 2016. A copy of this was provided to the claimant under cover of a letter dated 20 December 2016 from Mr Smyth, SERC's Chief Human Resources Officer. This letter stated that Mr Smyth had considered the report and was in full agreement with the conclusions reached by the investigating officer and had therefore determined that no further formal action should be taken. Mr Lyons' conclusions in his report included the finding that Mr McAlister had requested to speak with Mr McClure in a manner which was consistent with the manner adopted in respect of the claimant, in that he did not inform Mr McClure prior to the interview what it was to be about and that there was no independent third-party present. It was Mr Lyons' conclusion that Mr McAlister's actions did not constitute bullying and/or harassment and specifically that the claimant had wished to leave and that he had been allowed to do so. There was no evidence that the interview was conducted in an oppressive or threatening manner. Mr McAlister had a right in law to prepare a defence.

 

3.29.     The claimant returned to work following a period of sick leave on
11 October 2016 on an agreed phased return. In the claimant's evidence he stated that he was unaware that Mr McAlister's suspension had been lifted by that time. However, prior to the claimant's return to work there had been a meeting with Occupational Health held on 19 September 2016 and attended by the claimant and by Mr Nixon, where it was agreed that Mr McAlister would not be the claimant's line manager until the internal process which was then ongoing had been concluded. This would be so until the outcome of the Lyons investigation was known and the situation would then be reviewed. On 11 October 2016 the claimant met with Mr Nixon and he expressed concerns about Mr McAlister returning as his line manager and also about the length of time the internal investigation (by Mr Lyons) was taking. One of the reasons for the apparent delay was that Mr McAlister was suspended from work but also that he was ill and certified unfit for work and accordingly there was a difficulty in Mr McAlister providing information to Mr Lyons. Unfortunately, the claimant appears to have had a panic attack on 11 October 2016 and he had to go home. He appears to have unfortunately suffered a number of such panic attacks at this time. On 10 November 2016 Ms Boyce sent an email to Ms McAndrew, the claimant's UCU representative, indicating that they were still awaiting the report from Mr Lyons, but that this report was shortly anticipated and also that Mr McAlister's suspension had been lifted, but that Mr McAlister had not returned to work. Mr McAlister's suspension was confirmed as lifted in an e-mail sent to him on 30 September 2016 but he remained absent from work on sick leave. The claimant went back again on sick leave from 18 November 2016 and indeed he still remained unfit to work, due to illness, at the tribunal hearing date.

 

THE APPLICABLE LAW

 

4.         The Statutory Provisions.

 

The relevant statutory provision concerning victimisation is Article 4 of RRO 1997, which provides:-

 

"Discrimination by way of victimisation

 

4.—(1) A person ("A") discriminates against another person ("B") in any circumstances relevant for the purposes of any provision of this Order if—

 

(a) he treats B less favourably than he treats or would treat other persons in those circumstances; and

 

(b) he does so for a reason mentioned in paragraph (2).

 

(2) The reasons are that—

 

(a) B has—

 

(i) brought proceedings against A or any other person under this Order; or

 

(ii) given evidence or information in connection with such proceedings brought by any person; or

 

(iii) otherwise done anything under this Order in relation to A or any other person; or

 

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or

 

(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

 

(3) Paragraph (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

 

The relevant statutory provisions concerning liability of employers and principals (including the so called "statutory defence") are comprised in Article 32 of RRO 1997, which provides:-

 

"Liability of employers and principals

 

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

 

(2) Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Order as done by that other person as well as by him.

 

(3) Paragraph (2) applies whether the authority was—

 

(a) express or implied; or

 

(b) given before or after the act in question was done.

 

(4) Paragraphs (1) and (2) do not apply in relation to offences under this Order.

 

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

 

(a) doing that act, or

 

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

 

In regard to the burden of proof in industrial tribunals, the relevant provisions of RRO 1997 are comprised in Article 52A and these provisions are:-

 

"Burden of proof: industrial tribunals

 

52A.-(1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent—

 

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

 

(b) has committed an act of harassment.

 

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—

 

(a) has committed such an act of discrimination or harassment against the complainant,

 

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

 

5. In written submissions, the tribunal was referred by the parties' respective representatives to the following cases, which cases were considered by the tribunal in reaching its determination:-

 

Simpson v Castlereagh Borough Council [2014] NICA 28

 

McCann v Extern Organisation Limited [2014] NICA 65

 

Derbyshire v St Helens Metropolitan Borough Council [2007] ICR 841

 

Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065

 

Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Limited [2016] NICA 19

 

Ministry of Defence v Jeremiah [1979] 436

 

Curley v Chief Constable of the Police Service of Northern Ireland [2009]
NICA 8

 

Canniffe v East Riding of Yorkshire Council [2000] IRLR 555

 

Rahman v Arearose [2001] QB 351

 

6.             The tribunal found principles enunciated in these cases to be of assistance. In the Northern Ireland Court of Appeal case of Jill Simpson -v- Castlereagh Borough Council [2014] NICA 28, Girvan LJ stated (at paragraph 18):

 

"[18] A person discriminates against the person alleged to have been victimised if he treats the person less favourably "by reason that the person victimised" has (inter alia) done anything under or by reference to the 1976 Order or the Equal Pay Act. "By reason that" simply means "because" (see Lord Neuberger in Derbyshire v St Helen's Metropolitan Borough Council [2007] ICR 841 at 865 paragraph 76) .... in determining whether an act is done because the party victimised did one or some of the things set out in [the relevant statutory provision] the test to be applied may be expressed in somewhat different ways though it should lead to the same answer. The tribunal can ask the question "why did the respondent act as it did?" See, for example, Nagarajan v LRT [1999] IRLR 57 at paragraphs [13] and [18]. In Derbyshire Lord Neuberger put the matter thus:

 

"The words `by reason that' require one to consider why the employer has done the particular act ... and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused a detriment, one must view the issue from the point of view of the alleged victim."

Alternatively the tribunal may pose the question "Would the respondent have acted as it did but for the fact that the victimised party did what he or she did acting under Article 6(1) (a)-(d)". (See for example Lady Hale in R v Governing Body of JFS [2010] IRLR 136 paragraph [58] and Lord Clarke (ibid.) at paragraphs [131]-[134]). Alternatively, it may pose the question, as Lord Mance did in JFS, whether the impugned act was inherently discriminatory."

 

In McCann v Extern Organisation Limited [2014] NICA 65 Horner J, giving the judgement of the Court (at para 14) endorsed the "causative link" approach to matters and the approach suggested in the IDS Handbook, which stated at paragraphs 9.41 and 9.42:-

 

"9.41 To succeed in a claim of victimisation, the claimant must show that he or she was subject to the detriment because he or she did a protected act or because the employer believed he or she had done or might do a protective act ...

 

9.42 .... The essential question in determining the reason for the claimant's treatment is always the same: what consciously or sub-consciously motivated the employer to subject the claimant to the detriment? In the majority of cases, this will require an inquiry into the mental processes of the employer ..."

 

Brightman LJ said in Ministry of Defence v Jeremiah [1980] ICR 13 (at paragraph 31) that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment". That observation was cited with apparent approval by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 (at paragraph 53). The facts of Khan were that Sergeant Khan brought proceedings based on an allegation of unlawful racial discrimination in the course of his employment, against the Chief Constable. Before those proceedings ended, he applied for another job and asked for a reference. The Chief Constable refused to provide it, on the basis that it would prejudice his position in the proceedings. Sergeant Khan then brought a new claim under the Race Relations Act. The claim failed. Lord Nicholls in Khan at para 29, stated this "....does not raise a question of causation as that expression is usually understood .... . The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

 

A little more recently what might be termed the "reasonable worker" test was approved by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. At paragraph 35, Lord Hope, after referring to the observation and describing the test as being one of "materiality", also said that, "an unjustified sense of grievance cannot amount to 'detriment'". In the same case (at paragraph 105) Lord Scott, after quoting Brightman LJ's observation, added, "if the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice".

 

In the case of St Helens Borough Council -v- Derbyshire and others [2007] UKHL 16, Baroness Hale emphasised, following Lord Nicholls in Khan, that there are three relevant questions to be asked under the legislation. Firstly, did the employer (or discriminator) discriminate against the claimant in any of the ways prohibited by the legislation? Secondly, in doing so, did the employer or discriminator treat the claimant less favourably than he treats or would treat others in the relevant circumstances? Thirdly, did he do so "by reason that" the claimant had done, or that the employer or discriminator knew that the claimant intended to do a protected act, or suspected that the claimant had done, or intended to do, a protected act?

Also in Derbyshire Lord Neuberger emphasised the reasoning of the House of Lords in Khan which centred on the words "by reason that" (as found in the relevant English Act). Lord Neuberger (at paragraph 63) referred to paragraph 31 of Khan and the speech of Lord Nicholls, which he took as encapsulating the reasoning, where Lord Nicholls said:

 

"Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ("by reason that the person victimised has - (a) brought proceedings against the discriminator... under this Act") cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who bought the proceedings".

 

In Northern Ireland Fire and Rescue Service -v- McNally [2012] NICA 59 Higgins LJ stated (at paragraph 30) as follows:

 

"[30] Much of the discussion in Derbyshire concentrated on the words in the English legislation 'by reason that' in relation to why the employer acted as he did. Those words do not appear in the legislation in force in Northern Ireland. Here a person discriminates against another by way of victimisation if he treats him less favourably and does so for one of the reasons mentioned in paragraph 5. Nothing much turns on this difference in the legislation. The court must look at why the employer has taken the particular act from his standpoint and whether the act has caused detriment from the point of view of the alleged victim. What is clear is that an unjustified sense of grievance by the employee at the act of the employer cannot amount to a detriment. However, if it is the victim's opinion that the treatment was to his detriment and that was a reasonable opinion to hold, then that ought to suffice to prove detriment. But it would require positive evidence and findings to that effect. Mental distress and worry induced by honest and reasonable conduct of an employer in the course of his defence of a claim on its own cannot amount to detriment. There would have to be something more, at the very least the distress would have to be objectively reasonable."

 

THE SUBMISSIONS AND THE TRIBUNAL'S CONCLUSIONS

 

7.             The tribunal, after the conclusion of the oral hearing, received written submissions from the respective representatives for the claimant, for SERC and for Mr McAlister. The tribunal found the submissions to be helpful. The claimant's submissions specifically drew the tribunal's attention to the extract from the redacted version of the Gamble Report mentioned above (regarding the reference to, "Tim gave James a shocking doing" and the following passage). The claimant alleged that he had been discriminated against by way of victimisation under Article 4 of RRO 1997 in that he was subjected to less favourable treatment and detrimental treatment by Mr McAlister in the course of his employment and asserted that the reason he was subjected to detriment treatment was that he had done a protected act.

 

8.             The concept of "less favourable treatment" necessitates an exercise in comparison. In terms of an identified comparator, the submission for the claimant proposed that a hypothetical comparator would not have been subjected to such pressure, that being a person in the same or similar circumstances who had not done a protected act. It was argued that an open and transparent communication, such as an email asking for a response, would have been sent by Mr McAlister. An evidential example of how a comparator would have been treated was proposed to be Mr Kerr whom, it was stated, was approached by Mr McAlister in an open and transparent manner. In contrast to this, the claimant had done a protected act and Mr McAlister wanted to test the truth of allegations which were prejudicial to him. Consequently there was altogether different treatment accorded to the claimant. The claimant's representative contended that Mr McAlister's difference of approach in not freely communicating the purpose of the meeting to the claimant in advance was designed to set up some manner of an "ambush". Notwithstanding this strenuous and well-articulated submission, the tribunal on balance is not persuaded that this is so. The tribunal's determination, considering all of the relevant evidence, is that Mr McAlister's manner of approaching the claimant, without first notifying the purpose of the meeting, was based upon a quite understandable and reasonable desire to maintain confidentiality in view of what he had just been informed.

 

9.             Mr Henry had provided credible evidence that the atmosphere at the meeting was "awkward". It was submitted for the claimant that Mr Henry was a witting, rather than an unwitting, accomplice in this awkwardness. It was contended that Mr Henry's note-taking was defective and that there was a real doubt over the authenticity of the note. It was submitted that Mr McAlister subjected the claimant to less favourable treatment and to detriment because of a protected act and that the tribunal might draw a discriminatory inference, given the evidence. It was argued that this discrimination caused the claimant to suffer injury to feelings, ill-health and loss of earnings and that the issues did not stop in October 2016 when the claimant returned briefly to work, but rather continued as the claimant still continued to be absent from work due to illness at the time of the tribunal hearing. In terms of the so-called "statutory defence", it was contended that this defence was not open to SERC because SERC had failed to take adequate generic preventative steps and had failed, in April 2016, to take particular preventative steps that could reasonably have been taken, which would have been effective. The tribunal's attention was directed in the submission to the internal investigation conducted by Jacqueline Gamble in respect of which the claimant had made comments substantiating, so it was contended, part of Mr Nyamutenha's claims. Specifically, it was contended that one comment in particular was prejudicial in respect of Mr McAlister, that during a meeting, "Tim gave James a 'shocking doing' for over an hour and 'went off the rails'". It was submitted for the claimant that the tribunal must consider the following: (a) the protected act being relied upon; (b) the correct comparator; (c) the less favourable treatment; (d) the reason for the treatment; (e) any defence; and (f) the burden of proof. It was submitted that the protected act fell within Article 4(2) (a) (iii), Article 4(2) (a) (iv) and Article 4(2) (b) of RRO 1997. Nothing else apart from the specific statement recorded in the investigation report extract was referred to in the claimant's submission as constituting the essence of the protected act.

 

10.          The tribunal had a little difficulty with this submission for the following reason. It must first be noted that the tribunal was, by agreement with the parties, not provided with much information regarding Mr Nyamutenha's claim of race discrimination made to an Industrial Tribunal. The tribunal cannot disregard the concession made on behalf of the respondents. It appears to have been readily conceded that the claimant had indeed carried out an action which, in legal terms, constituted a protected act. In the absence of anything else being depicted by the claimant's representative as constituting a protected act (other than the provision of specific information to the Gamble investigation, which then came to be encapsulated in the Gamble report) the tribunal has no information concerning the extent to which the claimant may or may not have carried out any other action, or provided any other evidence or information, which directly connected with or assisted Mr Nyamutenha in bringing his race discrimination claim to the Industrial Tribunal. Any such did not form part of the case presented on behalf of the claimant. If the protected act within the express focus of the claimant's representative's submission related only to the information directly imparted by the claimant to Jacqueline Gamble in the course of her investigation, that did not of itself, at least directly, relate to the giving of evidence or information in connection with any Industrial Tribunal proceedings brought by Mr Nyamutenha under RRO 1997. This, rather, was information imparted by the claimant in connection with the Gamble disciplinary investigation.

11.          The outcome of the Gamble investigation certainly resulted in the upholding of a number of complaints against Mr McAlister and these were thereafter followed into an internal disciplinary process. However, none of these complaints upheld related to race discrimination, which was expressly discounted in the report's conclusions. The tribunal nonetheless noted the concessions made. It is perhaps of note that the tribunal did not hear any arguments expressly advanced upon the possible contention that the forgoing information imparted by the claimant to Ms Gamble did not, of itself, constitute a protected act under RRO 1997. It might have been helpful to the tribunal to have received some developed arguments or submissions on this point. Nonetheless, the tribunal proceeds upon the basis of this concession by the legal representatives of a protected act.

 

12. The claimant's representative, in submissions, placed particular emphasis upon the decision of the Court of Appeal in Northern Ireland in the case of Jill Simpson -v-Castlereagh Borough Council. A helpful passage from Girvan LJ in Simpson, is mentioned above when the Court of Appeal was engaged in the exercise of examining what might be termed, in shorthand, the "less favourable treatment" issue and the "reason why" issue. The less favourable treatment issue, of its very essence, necessitates an exercise in comparison. This exercise is conducted by the identification of an appropriate comparator or comparators, which may be either actual or hypothetical. Dealing firstly with the issue of the correct comparator, the Court of Appeal in Simpson observed that where the complaint is of victimisation based on dismissal, for example, the proper comparator is simply another employee in the same employment who has not been dismissed. The court quoted with approval an extract from Lord Nicholls in Chief Constable of the West Yorkshire Police v Khan:

 

" the statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant has not done a protected act and the treatment, which was or would be afforded to other employees who have not done the protected act".

 

13.          Upon the facts of Simpson, the Court of Appeal determined, following Lord Nicholls' approach, that the correct comparator was someone who had merely instituted a grievance but who had not carried out a protected act. The instant case is not quite as straightforward. For the claimant, it was submitted that the comparator was a person in materially similar circumstances to the claimant, who had not done the protected act. It was contended that a hypothetical comparator to the claimant would not been subjected to such pressure as was alleged to have been visited upon the claimant. The submission was that an evidential example of how a comparator would have been treated was the case of Mr Kerr, whom it was submitted had been approached by Mr McAlister in an open and transparent manner. In contrast, the claimant had done a protected act and Mr McAlister wished to test the truth of any allegations which were prejudicial to him and as a consequence there was altogether different treatment of the claimant. Indeed, there was an "ambush".

 

14.          In opposing this submission, Mr McAlister's representative argued that no comparator indeed had been ever adduced by the claimant in his evidence-in-chief, nor in the cross-examination of any of the respondent's witnesses. For SERC, any submissions from the representative did not include any argument directly addressing the comparator issue.

 

15.          Noting that the tribunal was invited to consider the treatment of the claimant in the context of a hypothetical comparator, the tribunal notes the express reference made in the claimant's representative's submissions as to how a person, identified as Mr Kerr, was treated. Although other persons were not mentioned expressly in the claimant's representative's submission, the tribunal considered all of the evidence which might have been material to the issue and considered the treatment accorded to any other person who might be seen to constitute a potential comparator.

 

16. In terms of the sequence of material events, on 30 March 2016 Ms Boyce sent an email to the claimant requesting that he provide his consent to the release of a full copy of his signed interview notes concerning the Gamble investigation to the individuals against whom allegations had been made. At this time Mr McAlister commenced communicating with a number of parties. On 4 April 2016, he sent e-mails the contents of which are as mentioned above. Apart from sending e-mails on 4 April 2016, Mr McAlister also sent an e-mail in similar terms to Mr Kerr on 20 April 2016. It is this later approach to Mr Kerr which was expressly mentioned in the claimant's representative's submissions as illustrating an approach conducted in an open and transparent manner. This submission contrasts Mr McAlister's manner of approach to Mr Kerr and suggests a disparity in treatment. In that regard, it is necessary to examine specific events which occurred over quite a brief period of time.

17. It is clear that shortly before the meeting between Mr McAlister and the claimant on 6 April 2017, students had been discussing Mr Nyamutenha's grievance as it related to various members of SERC's teaching staff. An illustration of this emerges from the letter of 5 April 2016 sent by Ms Clarke to Mr Smyth. These events appear to have caused considerable distress to Mr Kerr. Ms Clarke's letter concluded with the request that, "urgent and necessary steps would be required to stop the private personnel matters of staff being the gossip fodder of the SERC student population". The tribunal does not doubt that once this information was imparted to Mr McAlister, he became genuinely concerned. He communicated his concerns to Ms Clarke. He had sent e-mails that day in the terms mentioned above. However, once the foregoing breach of confidentiality was drawn to his attention, his approach thereafter appears to have significantly altered. The tribunal's conclusion is that this change of approach is entirely credible and understandable, given the sensitive circumstances, including the distress communicated to Mr McAlister which had caused to Mr Kerr to go home ill. Mr McAlister thus felt it best to apply a measure of discretion in any communications at this specific time. In submissions for the claimant it was contended that this difference of approach was designed to set up some manner of an "ambush". However, the tribunal does not accept that proposition. Mr McAlister's manner of approaching the claimant was based upon a perfectly understandable and reasonable desire to maintain confidentiality, given the specific events at that time.

18. Mr McAlister communicated with the claimant, via Skype on 5 April 2016, indicating that he was seeking a meeting. Then he spoke at the start of the following morning, at the Downpatrick campus. He indicated that he wished to have a meeting but he did not state the purpose. The tribunal does not accept the depiction of McAlister's motivation as being to set up an "ambush" of the claimant. Whilst there were a number of different courses that might have been taken by Mr McAlister, the approach adopted, in the tribunal's view, was one of a number of perfectly proper and reasonable alternative approaches, under these particular circumstances. The tribunal does not determine that any motivation may be fairly and properly attributed to Mr McAlister that he was endeavouring to devise an "ambush" connected to the entirety or any part of the claimant's claim of victimisation. Mr McAlister has strenuously denied this to be the case. The tribunal finds such a denial to be fully credible.

 

19. The tribunal does not accept the proposition that the others to whom an approach was made by Mr McAlister prior to Mr McAlister approaching the claimant are in a comparable position. The submitted "open and transparent" approach adopted by Mr McAlister to any of these persons to whom e-mails were sent at this specific time was adopted prior to Mr McAlister fully appreciating the need for confidentiality to be maintained. Mr McAlister's focus was entirely different, once he was informed of the confidentiality breach at this time.

20. Mr McAlister did send an e-mail in similar terms to Mr Kerr a little later, on 20 April. A few observations are perhaps necessary. Firstly, on 7 April Mr McAlister had been told by Ms Carson to desist from arranging meetings as he had done with the claimant, after the claimant had raised a complaint. Mr McAlister had been expressly instructed by Ms Carson to deal with persons thereafter in a specific manner, as mentioned above. Furthermore, Mr McAlister was suspended from work on 13 April. His e-mail communication to Mr Kerr was therefore entirely consistent with the instruction that had been given to him by Ms Carson. His focus at the time of dispatch of that e-mail was quite different to that which had very evidently preoccupied him at the time he resolved to meet with the claimant. On account of all of this on balance the tribunal does not draw anything supporting the conclusion that any hypothetical comparator, constructed in the manner suggested, who had not carried out a protected act, would have been treated in any different manner. That is so, given Mr McAlister's focus at this specific time when he was arranging the meeting with the claimant.

 

21. The argument is made for the claimant that the meeting had been intentionally arranged by Mr McAlister to be conducted in an oppressive physical location, in a small room, in an intimidatory fashion, with another senior member of staff present, Mr Henry. It was contended that these arrangements had been quite intentionally devised in order to, as it were, "browbeat" the claimant into changing his "evidence". The only relevant "evidence" of which the tribunal is aware consists of the extract from the Gamble report, communicated to Mr McAlister nearly five months before. There was no suggestion (and nothing evidentially before the tribunal) that there was any other material, document, or witness statement which might have existed or which the claimant might have made concerning the race discrimination proceedings being pursued to an Industrial Tribunal by Mr Nyamutenha. If Mr McAlister had indeed wished the claimant to change his evidence, that could only have been any evidence already imparted by the claimant to Jacqueline Gamble as comprised in the report extract. Indeed, the claimant's evidence, uncontroverted, was that at the meeting Mr McAlister had before him a highlighted document. That turned out to be the extract from the report and it was precisely that which Mr McAlister wished to discuss. Any findings, which were at that stage being escalated to disciplinary proceedings against the claimant did not relate to any finding of race discrimination.

22. A further striking issue in the case is that if Mr McAlister had been so exercised by the information imparted to Ms Gamble (as reported in the extract) that he had wished to, as it were, "get back" at or punish the claimant, he was extremely tardy in doing so. Nearly five months had passed before the April 2016 meeting with the claimant. The tribunal notes Mr McAlister's representative's reference to the case of McCann v Extern Organisation Limited [2014] NICA 65 were the Court of Appeal observed that, "There was a significant time lapse between the protected act and the detrimental act, with no evidence in the interim of any lingering animosity or hostility". Similarly, in this case there was entirely an absence of any evidence of lingering animosity or hostility in the intervening period. The claimant's submission appears to rest upon the proposition that this animosity was stored in latent form and was then deployed in early April 2016. Notwithstanding this, there is no persuasive evidence to support the proposition of some manner of delayed retribution. For this reason the tribunal's conclusion, in examining any possible motivation to be attributed to Mr McAlister, is that there is nothing to support the motivation ascribed in the claimant's representative's submissions. To be fully clear on this point, there is certainly nothing which would persuade the tribunal to adopt the view that Mr McAlister was merely biding his time in respect of some manner of delayed retribution.

 

23. The relevant authorities indicate that any tribunal adjudicating upon a victimisation claim is required properly to investigate and to examine the mental processes and motivations of the person or persons perpetrating alleged victimisation. These mental processes will, as such, normally require a careful examination of conscious motivations, but the authorities do admit the possibility of unconscious motivation also. What then was Mr McAlister's motivation for approaching the claimant to have the meeting? The best interpretation which the tribunal can place upon the timing, coming as it did many months after first sighting the redacted report, is that Mr McAlister was motivated, most probably, by the discussions in which he was then engaged with his legal representative, the late Mr Daly and UCU. In the absence of information regarding any race discrimination tribunal claim by Mr Nyamutenha, Mr McAlister was motivated by the need to defend himself against the allegations which were proceeding to a disciplinary process. The tribunal has no doubt that the Solicitor, Mr Daly, gave perfectly measured and proper legal advice to Mr McAlister. Upon the evidence, this advice was that Mr McAlister was perfectly entitled to prepare his defence and that must have been in relation to the impending disciplinary proceedings. The submission advanced for the claimant was that Mr McAlister was trying to get the claimant to change his evidence. The only evidence was that encapsulated in the Gamble report extract. Mr McAlister's explanation is that he did not trust Ms Gamble. He wished to discuss with the claimant Ms Gamble's recording in the report of specific comments attributed by Ms Gamble to the claimant which he believed might have been misunderstood and which fed into the disciplinary process. This was an entirely reasonable course for Mr McAlister to take, given the circumstances.

 

24. Taking account of all of the evidence and the facts determined therefrom, the tribunal does not view this as being either an endeavour to engage in retribution against the claimant, nor to get the claimant to change his evidence. The tribunal is not persuaded by the claimant's representative's submissions. The tribunal concludes, on balance, that Mr McAlister's actions were reasonable and proper, in meeting with the claimant as part of the construction of his defence to the disciplinary proceedings, in the light of all of the prevailing circumstances at that specific time.

 

25. There were of course arguments advanced on behalf of the claimant regarding the size of the room, the presence of Mr Henry as a Deputy Head of School and other circumstances, which are portrayed as having been intentionally oppressive. Arguments are reliant upon Mr Henry having been complicit. Assessing all of the evidence, the tribunal does not regard Mr Henry as being anything other than a credible witness who was not in any manner complicit in an endeavour to create an intentionally oppressive atmosphere at the meeting. Mr Henry, indeed candidly, described the atmosphere as being "awkward". However, he also was very clear that Mr McAlister was professional at all times. He did not accept the suggestion that there was any intentional setting up of the meeting designed to put pressure upon the claimant. The meeting was very brief. The claimant was entirely free to go at any stage. Voices were not raised. The claimant was quite free to explain that he did not feel comfortable in continuing with the meeting. He was free to depart. He did so after a brief period.

 

26. One of the difficulties in this case is that the claimant, very regrettably, suffered a serious psychological episode at this time. This has been entirely attributed, in submissions on his behalf, to the actions of Mr McAlister in conducting the meeting in the manner in which it was held, with compliance from Mr Nixon and from SERC. The tribunal shall make some specific comment concerning that matter below. Indeed, the fact of Mr McAlister having a further conversation, a short time after the meeting had concluded, with the claimant during the course of which Mr McAlister apologised to the claimant is also postulated as constituting further evidence of victimisation.

 

27. In terms of the general protection afforded, any person who conducts what amounts to a protected act can seek to rely upon statutory protection from victimisation. In most cases, victimisation shall be linked to a claim to a Tribunal by the party alleging victimisation. However, this is not such a case. In extending the scope of protection, Article 4 of RRO 1997 provides that a party may avail of protection if they have given evidence or information in connection with relevant proceedings brought by any other person. In this case, to avail of the protection, the claimant would need to have given evidence or information in connection with relevant proceedings brought by Mr Nyamutenha. As mentioned, the tribunal was not greatly assisted in submissions. The tribunal had anticipated that the parties' representatives might have sought to make fully clear any connection, by the adduction of appropriate evidence and by providing appropriate information and submissions to the tribunal. That was not done. Nonetheless there was an express concession of a protected act.

 

28. "Detriment" for the purposes of victimisation proceedings envisages A (the alleged perpetrator of the victimisation) treating B (the subject of the victimisation) less favourably than A treats or would treat other persons in those circumstances. In the instant case, that would need to be on account of the fact that the claimant had given evidence or information in connection with proceedings brought by any person or had otherwise done anything under RRO 1997 in relation to A or any other person; or had alleged that A or any other person had (whether or not the allegation so stated) contravened RRO 1997.

29. In terms of the correct comparator, on behalf of Mr McAlister the submission was that the claimant had not produced any evidence to suggest that his treatment was in any way different to that of other members of staff. It was submitted that the claimant appeared to rely on the fact that Ms Carson had asked Mr McAlister to stop meetings with staff, with immediate effect. However, this only went to demonstrate that such meetings were not unique to the claimant. The submission continued that Mr McAlister had been cross-examined regarding his meetings with Mr McClure and with other members of staff and he gave evidence that he spoke to some members of staff who were not involved in the Gamble investigation. As such, these persons did not fall into the same set of circumstances as the claimant. Thus it was suggested that these were not proper comparators. With regard to Mr McClure, Mr McAlister's evidence was that he spoke to Mr McClure briefly one morning and then he e-mailed him and spoke to him in the afternoon. When doing so he did not inform Mr McClure of the reason for the conversation. The submission for Mr McAlister was therefore that the claimant fell at the first hurdle. He had failed to prove that he was treated less favourably than any other person in relevant circumstances. The submissions made on behalf of SERC did not directly address the issue of comparators.

 

30. The authorities bring us back yet again to the issue of motivation. For example, in Simpson the Court of Appeal, in common with many authorities, had emphasised the question, "why did the respondent act as it did?" It is thus useful to examine the issue of motivation in the context of the allegation of comparative detriment, this being a proper approach as suggested in a number of authorities. In the submissions for the claimant, the detriment alleged consists of the claimant being subjected to improper pressure, amounting to victimisation, on account of the claimant being invited to a meeting, Mr McAlister refusing to tell the claimant what the meeting was to be about, the meeting occurring on SERC's property, in an office used by Mr McAlister and during College hours, with the meeting being held in a very small room and with another manager (Mr Henry) being in the room with paper, with the claimant not being informed that Mr Henry would be there, with the claimant not being given the opportunity of bringing someone to the meeting and with Mr McAlister seeking clarification about the claimant's statement to the Gamble investigation. Further, it is contended that when the claimant made his discomfiture clear, Mr McAlister continuing to press him. Finally, the fact that Mr McAlister apologised after the meeting to the claimant and the manner in which he spoke thereafter is contended to be a detriment.

 

31. The question of what amounts to "less favourable treatment" or "detriment" is properly to be subjected to the test of what a "reasonable worker" would regard as being detrimental treatment (see in that regard Ministry of Defence v Jeremiah). Whilst it is clear that the tribunal is tasked with examination of the conscious (or indeed possibly unconscious) motivation, the tribunal must, importantly, direct proper focus to the perception of the person subjected to the treatment alleged, to the extent that, viewed through the lens of the "reasonable worker", any such treatment would be regarded as detrimental.

 

32. The tribunal examined the evidence concerning the claimant's reaction to the meeting and to the subsequent conversation. It is clearly somewhat difficult to align the diametrically opposed perspectives of Mr McAlister on the one hand and the claimant on the other. The claimant's subsequent absence from work and the available medical evidence to which the tribunal was referred in the course of the hearing might, to an extent, account for the claimant's particular perspective and perhaps for the subsequent reaction. That reaction, of itself, cannot be readily explained by an objective assessment of the circumstances. The tribunal is reliant upon such medical information as was contained within the bundle of documentation and that only. It might be the case that the tribunal was not made privy to a body of additional information in respect of the claimant's medical or work history, but the tribunal is not entitled to engage in impermissible speculation in that regard concerning potential reasons for the claimant's reaction to events.

 

33. Viewed from the perspective of the "reasonable worker", firstly, the arrangements made by SERC and by Mr McAlister for the meeting, secondly, the specific circumstances in which the meeting was conducted and thirdly, the conversation thereafter between Mr McAlister and the claimant cannot be construed (from the reasonable worker's perspective) as constituting any manner of a material detriment, depicted in this case as constituting improper pressure amounting to victimisation. Mr McAlister did not react in any retributive manner when first given a copy of the report; he did not seek to subject the claimant to what would amount to victimisation as an immediate or timely reaction. It is fully apparent that Mr McAlister's motivation in arranging the meeting emerged from discussions with the late Mr Daly. He was advised by the Solicitor and by UCU that he could approach witnesses to build his defence. The legal authorities are clear concerning the entitlement of any person to build a legitimate defence. As mentioned above, in Derbyshire Lord Neuberger emphasised, with approval, the reasoning of the House of Lords in Khan and the speech of Lord Nicholls, encapsulating that reasoning: " Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation..... An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings."

 

34. The e-mails sent by Mr McAlister to various persons indicated that Mr McAlister wished to seek assistance in the building of his defence. Had the claimant not carried out a protected act (as has been conceded) Mr McAlister would still have had the opportunity to speak with the claimant in order to build his defence. For
Mr McAlister, it is submitted that the protected act just happens to be a protected act because the original allegation related to race discrimination. However the allegations upheld by Ms Gamble did not relate to race discrimination. The Gamble investigation was concluded by the material time. Mr McAlister had received clear and unequivocal legal advice. He was entitled to approach and to meet with the claimant if he felt, upon reasonable grounds, that the claimant might assist him. The tribunal does not accept that Mr McAlister was not entitled to do so, nor does the tribunal accept that, under all of the circumstances then prevailing, Mr McAlister's manner of approach and his actions at the time and his dealings with the claimant, were designed to place unwarranted pressure upon the claimant or to engage in retribution because the claimant had done a protected act. The claimant has thus failed, upon the facts and the proper application of the law, to establish his case of victimisation.

 

35. In the light of this determination, the tribunal does not need to consider the statutory defence comprised in Article 32. Any liability, which it was contended would have attached to SERC, is not made out.

 

36. In reality, whatever might lie behind the claimant's psychological reaction to events, this did not arise on account of the claimant being exposed to a material detriment as described in RRO 1997. In summary, there was a very brief meeting, present at which, by agreement with the Head of School, Mr Nixon, was another Deputy Head of School, Mr Henry. This meeting was not arranged in a manner so as to be oppressive nor to bring improper pressure to bear upon the claimant and the claimant was free to depart at any time. There was a further discussion a short time afterwards, which in no way can be properly taken to constitute any endeavour, or any further endeavour, to place improper pressure upon the claimant. It is easy to envisage a number of potential scenarios in which a more junior member of staff might be effectively "trapped" by a more senior staff member with a view to bullying or harassment. This is not such a case. The tribunal is unable to accept the claimant's representative's submissions that the claimant was subject to detriment or to any treatment which would not have been visited upon a proper comparator in the claimant's situation or in a similar situation, who had not done a protected act.

 

37. As this was a significant feature in the case, the tribunal had better make some concluding observations regarding any evidence going towards a possible explanation concerning the claimant's adverse reaction at this time. The tribunal was not provided with a detailed medical history, but the tribunal was nonetheless referred to a number of medical reports and records contained in the bundle of documents. It is clear that the claimant's absence from work was in connection with diagnosed "work-related stress." It is also clear that his ongoing condition was connected with what the claimant regarded as being a lack of resolution concerning work-related matters.

 

38. The claimant was referred to Occupational Health for a diagnosis and for assistance. In a medical report dated 22 March 2017, Dr Mary McBride states: "It does not seem one particular incident triggered Mr Hynds' anxiety attack but rather an accumulation of incidents and issues over a period of time". In another (earlier) report from Dr McBride dated 20 April 2016 (which appears to be a joint report between Dr McBride and Dr Philip McCrea, as it was signed by Dr McCrea) the following appears: "As you are aware, Mr Hynds became absent from work on 12 April due to suffering a deterioration in his psychological wellbeing which he attributes to challenging workplace issues which have been ongoing for some time. He tells me he had realized he was struggling for some months prior to his absence however this appeared to come to a head recently". These observations appear to suggest a divergence from the proposition that the claimant's anxiety condition and subsequent absences from work were induced or arose as a result of one meeting which took place with Mr McAlister and on account of the specific circumstances surrounding that. A further observation is contained in a report from the South Eastern Health and Social Care Trust's Mental Health Assessment Centre, dated 19 September 2016, from the Community Mental Health Team, concerning the claimant, which states that the claimant had been seen at that time by Claire Smyth (a Mental Health Social Worker). Ms Smyth states that, upon assessment, the claimant had advised Ms Smyth that he had had a 3-4 year history of anxiety and resultant variable mood, although ongoing work-related investigation and significant ill-feeling with some colleagues was mentioned in the report.

 

39. The tribunal can only take from all of these reported observations, in the absence of any further specific medical evidence, the suggestion emanating from medical practitioners and health professionals of, as it were, a "bigger picture" giving rise to issues in respect of which the claimant had been "struggling" for a time prior to the events surrounding the April 2016 meeting with Mr McAlister. The tribunal had mentioned at the commencement of this decision that the claimant's employment appeared to be largely uneventful until matters occurred around the start of April 2016. That said, this was expressed to be subject to the important qualification which is now mentioned. There was certainly no conflict with Mr McAlister, as far as the claimant's own evidence and any other evidence was concerned, prior to the commencement of April 2016, so there must have been some other factor or factors affecting the claimant's health and well-being which have not been fully accounted for to the tribunal. The tribunal concludes, from all of this, that there has been a strenuous endeavour to depict all of the claimant's unfortunate difficulties (including his long-term absences from work) as being solely and exclusively connected with alleged victimisation on the part of Mr McAlister, in the context of a corresponding lack of support and involvement by other members of SERC's personnel. The tribunal cannot accept that proposition.

 

40. There were further matters alluded to in helpful and well-developed submissions. However, taking everything into account, the matter need go no further. It is the tribunal's unanimous conclusion that the claimant's case cannot succeed, upon the evidence and the determined facts. The claimant was not subjected to a detriment on account of his having carried out a protected act under the referenced statutory provisions. Accordingly, the tribunal is not required to deal with any further issues raised in in the matter. For these reasons, the claimant's case is dismissed by the tribunal, without further Order.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 25, 26 and 27 April 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: