Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 4148/17

 

CLAIMANT: Thomas Conway

 

 

RESPONDENTS: 1. Parfums Christian Dior (UK) Limited

2. Boots UK Limited

 

 

DECISION

 

The unanimous decision of the tribunal is that the claims of unfair dismissal and of unlawful discrimination on the ground of sexual orientation are dismissed.

 

 

Constitution of Tribunal:

 

Vice President: N Kelly

Members: F Cummins

B Collins

 

Appearances:

 

The claimant appeared in person and was unrepresented.

 

The first named respondent was represented by Mr Barry Mulqueen, Barrister‑at‑Law instructed by Arthur Cox Solicitors.

 

The second named respondent was represented by Ms B L Herdman, Barrister‑at‑Law instructed by Shoosmiths LLP Solicitors.

 

 

Background

 

1. The first named respondent ("Dior") is a limited company which markets toiletries. The second named respondent ("Boots") is a limited company which runs a chain of pharmacies, including one in Donegall Place, Belfast.

 

2. The claimant had been employed as an Account Manager by Dior to market its products in the Donegall Place store operated by Boots. He describes himself as gay.

 

3. He had been employed for just over one year from 28 March 2016 to 4 April 2017 when he was dismissed by Dior for gross misconduct.

 

4. On 27 June 2017, the claimant lodged a claim with the tribunal alleging that he had been unfairly dismissed, contrary to the Employment Rights (Northern Ireland) Order 1996 and that he had been unlawfully discriminated against on the grounds of his sexual orientation contrary to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003.

 

5. The claim form is diffuse and difficult to read. However it concentrates in particular on one incident on 24 February 2017, when the claimant alleges that he had been bullied by a Ms Fiona Dillon, a Boots employee who had been the "beauty hall manager" and who had responsibility for the part of the shop in which the claimant had worked, on behalf of Dior and with the agreement of Boots. The claim form also described an alleged pattern of harassment and bullying by Ms Dillon.

 

6. Following the incident on the 24 February 2017, on 2 March 2017 Boots withdrew its approval for the claimant to work on its premises. Dior laid disciplinary charges against the claimant alleging that he had been abusive during that incident and that his conduct had been likely to bring Dior into disrepute. Following an investigation, a disciplinary hearing and an appeal hearing, the claimant was dismissed for gross misconduct.

 

Sexual Orientation Discrimination

 

7. The relevant legislation is set out in the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 ('the 2003 Regulations'). The relevant provisions are as follows:-

 

"Discrimination on grounds of sexual orientation

 

3(1) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -

 

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

 

(2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, than the other."

 

8. Discrimination in the field of employment is specifically covered in Regulation 6(2) which provides as follows:-

 

"It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person -

 

...

 

(d) by dismissing him, or subjecting him to any other detriment.

 

(3) It is unlawful for an employer, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment a person whom he employs or who has applied to him for employment ...".

 

9. Regulation 4 of the 2003 Regulations provide:-

 

"(4) For the purposes of these Regulations a person ('A') discriminates against another person ('B') if he treats them less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that B has -

 

...

 

(d) alleged that A or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of these Regulations."

 

Harassment on grounds of sexual orientation is covered in Regulation 5 which provides as follows:-

 

"5(1) For the purposes of this Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of -

 

(a) violating B's dignity, or

 

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

 

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect."

 

10. Regulation 35 of the 2003 Regulations provides:-

 

"(2) Where on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Regulation, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed against the complainant an act to which Regulation 34 applies; and

 

(b) is by virtue of Regulation 24 (liability of employer and principals) ... to be treated or having committed against the complainant such an act,

 

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."

 

Shifting Burden of Proof

 

11. The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA - 3 April 2009. The court held:-

 

"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

 

'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

12. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

 

"(19) We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

13. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

...

 

(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage."

 

14. In Frank McCorry and Others v Maria McKeith [2016] NICA 47, the Court of Appeal stated:

 

" The Shifting Burden of Proof.

 

[35] While Ms McKeith did not advance a claim for disability related discrimination in relation to the period before the dismissal decision, her background treatment in the preceding months did inform the approach of the Tribunal in relation to the dismissal decision.  The background included the requirement that Ms McKeith remain absent from work for periods to look after her disabled daughter. Had it arisen for decision, the Tribunal would have concluded that the previous treatment of Ms McKeith amounted to disability related discrimination (paragraph 132).

 

[36] On taking into account that background and the evidence in relation to the dismissal of Ms McKeith, the Tribunal stated that "the shifting burden of proof is going to be crucial" (paragraph 136). 

 

[37] The Burden of Proof Directive (EEC) 97/80 was extended to the United Kingdom in 1998 and Article 4(1) provided -

 

"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them have established, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

 

[38] Section 17A(1B) of the 1995 Act provides -

 

`Where, on the  hearing of a complaint under sub-section (1), the complainant proves facts from which the Tribunal could, apart from this sub-section, conclude in the absence of adequate explanation that the respondent has acted in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act.'"

 

[39] The approach to the shifting burden of proof was considered by the Court of Appeal in England and Wales in Wong v Igen Ltd (2005) EWCA Civ 142.  It was stated that the statutory amendments required a two-stage process.  The first stage required the complainant to prove facts from which the Tribunal could, apart from the section, conclude, in the absence of an adequate explanation, that the employer had committed, or was to be treated as having committed, the unlawful act of discrimination against the employee.  The second stage, which only came into effect on proof of those facts, required the employer to prove that he did not commit or was not to be treated as having committed the unlawful act, if the complaint is not to be upheld.

 

[40] The issue was revisited by the Court of Appeal in England and Wales In Madarassy v Nomura International plc [2007] EWCA Civ 33 which set out the position as follows (italics added) -

 

"56. The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent `could have' committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal `could conclude' that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

 

57. `Could conclude' [in the Act] must mean that `a reasonable Tribunal could properly conclude' from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory 'absence of an adequate explanation' at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the complaint to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by [the Act]; and available evidence of the reasons for the differential treatment. 

 

58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.  The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.  The consideration of the Tribunal then moves to the second stage.  The burden is on the respondent to prove that he has not committed an act of unlawful discrimination.  He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant.  If he does not, the Tribunal must uphold the discrimination claim."

 

[41] The Tribunal was satisfied that Ms McKeith had established a prima facie case that she had been directly discriminated against because she had been the primary carer of her disabled daughter (paragraph 147).  The Tribunal then found that the Ardoyne Association had not put forward any convincing or coherent explanation for its decision to make Ms McKeith redundant (paragraph 148).  It was accepted on the hearing of the appeal that, if this was a case where the burden of proof shifted to the employer, there had not been a sufficient explanation.  Accordingly, the challenge was concerned with whether the evidence before the Tribunal was such that a prima facie case of associative direct discrimination had been made out. 

 

[42] In this regard the Tribunal set out a number of facts which concerned Ms McKeith having been sent home on previous occasions because of her disabled daughter, Ms Burns' belief that she should be at home with her disabled daughter, the reluctant piecemeal and incomplete nature of discovery, the other two persons  who were made redundant at the same time were first re-engaged as volunteers and then rehired, the evasive and unconvincing evidence of the Manager and the non-compliance with statutory dismissal procedures. The Tribunal stated ". If this is not a case where the burden of proof should shift, no such case exists" (paragraph 147). 

 

[43] We are satisfied that, as outlined by the Tribunal, there was such evidence of a difference in status, a difference in treatment and a reason for differential treatment that, in the absence of an adequate explanation, a Tribunal could conclude that the employer committed an unlawful act of associative disability discrimination.  The burden on the Ardoyne Association was not discharged. It followed that the Tribunal would find disability discrimination.

 

[44] We are not satisfied on any of the appellant's grounds of appeal.  The appeal is dismissed."

 

15. The Burden of Proof Directive 97/80/EC was extended to the United Kingdom in 1998. The preamble to that Directive provided:-

 

"(17) whereas plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the National Courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminatory;

 

(18) whereas the Court of Justice of the European Communities has therefore held that the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought."

 

16. Article 4(1) of the Directive provided:-

 

"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of equal treatment."

 

Unfair Dismissal

 

17. The statutory test to be applied by a tribunal, when considering the fairness of a misconduct dismissal, appears simple. However it has provoked a lengthy series of appellate decisions.

 

18. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

"130(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

(a) the reason (or if more than one, the principal reason) for the dismissal and

 

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2) a reason falls within this paragraph if it -

 

(b) relates to the conduct of the employee,

 

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

 

(b) shall be determined in accordance with equity and the substantial merits of the case."

 

19. The Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

 

"(49) The correct approach to [equivalent GB legislation] was settled in two principal cases - British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLC (formerly Midland Bank) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

 

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

 

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, and another quite reasonably take another;

 

(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair. "

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, it must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the Tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being "sure", as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."

 

20. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal (GB) considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment Tribunal. The Employment Tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

"I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer."

 

He continued at Paragraph 19:-

 

"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal."

 

21. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal (GB) again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

 

"In brief, the council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the 'range or band of reasonable responses'. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity. "

 

At Paragraph 38 of the decision, he continued:-

 

"On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council's dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim. "

 

22. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal (GB) again considered a decision of an Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

 

"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite"

 

"In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. "

 

23. The Court of Appeal in Northern Ireland further examined the approach that a tribunal should adopt in claims of unfair dismissal in the case of Connolly v Western Health & Social Care Trust [2017] NICA 61.

 

In that case, a nurse, who was on duty in a hospital ward and who was experiencing the symptoms of an asthma attack, used a Ventolin inhaler from the locked ward stock. She had intended to replace it with another inhaler which would have been supplied to her on her own prescription. She had not sought prior permission to use the hospital's inhaler; she had not approached any doctor in the hospital for assistance; she had not attended the Accident & Emergency Department for assistance. She did not disclose the use of the inhaler until her next day on duty two days later. It was not in dispute that there had been misconduct on the part of the claimant in using a prescription only medicine which was part of hospital stock. The issue in all of this was whether the misconduct had been sufficiently serious to ground summary dismissal for gross misconduct.

 

24. The WHSCT had been concerned that the claimant had intended to replace the inhaler from her own supply. That would have broken the chain of supply within the hospital and in the employer's view would have presented a serious risk to the health of patients. The employer was also concerned that the claimant had sought, in response to the disciplinary proceedings, to stress that Ventolin had not been a controlled drug (although it had been a prescription only drug). The employer felt the claimant still believed that her conduct was permissible in certain circumstances and that therefore the behaviour could recur. The claimant was summarily dismissed for gross misconduct.

 

25. This case was the subject of two separate appeals to the Court of Appeal. However, the later appeal is the one relevant to the present case. It was a split decision. The minority decision, reached by Gillen LJ, found that the tribunal decision had been correct, in that it had held that there had been a fair dismissal for gross misconduct. The hospital rules had made it clear that ' misappropriation' of drugs was a potential offence. The claimant had not notified any other member of staff of her use of the inhaler before using it or for the rest of that shift. She had attended work for her next shift some two days later and had only then informed her manager that she had used the Ventolin inhaler from ward stock.

 

26. In essence, Gillen LJ determined that the decision to summarily dismiss the claimant in all the circumstances of the case had been a decision which a reasonable employer could reasonably have reached, even if may not have been the decision that the tribunal or the court would have reached, had it been determining the issue at first instance.

 

27. After citing the usual authorities, Gillen LJ approved the following statement in the tribunal's findings:-

 

"It may not re-hear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: that is, whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt. The question is not whether the tribunal will have reached the same decision from the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case."

 

28. Gillen LJ then noted that the tribunal had determined that the employer had been concerned by the use of the prescription only inhaler from the ward stock which had been kept under lock and key, the claimant's intention to replace that inhaler with an inhaler from her own supply and that she knew the use of such medication was wrong. The tribunal had determined that the employer had held a genuine belief in gross misconduct which had been reached on reasonable grounds following a reasonable investigation and that it was not for the tribunal to substitute its own opinion or penalty for that of the employer in the circumstances of this case. Gillen LJ determined that:-

 

"49. I consider that there is no basis upon which this court could consider that this conclusion was plainly wrong or that it could not have been reached by any other reasonable tribunal. Taking a prescription drug from under lock and key for the appellant's own use is clearly an extremely serious matter which no hospital can or should tolerate. Not only was the appellant well aware that this was prohibited behaviour but it could easily have been avoided by seeking assistance from A and E or the duty doctor.

 

50. It was not unreasonable to conclude that this was aggravated by her failure to report the matter until two days later. Moreover it was perfectly reasonable for the Panel, made up of employees of the Trust well versed in Trust procedures and policies, to take the view that intent to personally replace it infringed the pharmacy supply chain. Frankly it scarcely requires an expert to inform the court that decisions to replace prescribed medications in principle should not be taken at this level irrespective of how simple an exercise in replacement in individual instances may appear to be."

 

29. Gillen LJ concluded:-

 

"57. Whilst this may not necessarily have been the conclusion that this court would have reached had it been hearing the matter at first instance, I find no basis for substituting our view for that of the Panel and the Industrial Tribunal hearing this matter. I therefore dismiss this ground of appeal."

 

30. The majority of the Court of Appeal in Connolly, Deeny LJ and Weir LJ, reached a different conclusion. Firstly, they concluded that the decision of the respondent to dismiss the claimant, in all the circumstances of the case, was not a decision which a reasonable employer could reasonably have reached. Secondly, it determined that the decision of the industrial tribunal was ' plainly wrong'. That second decision is based on the facts of the Connolly decision and on the view taken by the majority of the Court of Appeal in relation to the wording of the tribunal decision in that case. The first decision, and the approach taken by the majority to the objective standard of reasonableness, is of primary importance to the present decision.

 

31. Deeny LJ stated that:-

 

"Reaching a conclusion as to whether the dismissal is fair or unfair 'in accordance with equity and the substantial merits of the case' as required by Article 130(4)(b) would appear to involve a mixed question of law and fact."

 

32. Deeny LJ then cited the well-known paragraph in Iceland Frozen Foods Ltd v Jones (above) which sets out the ' reasonable responses' test. He went on to quote further from that decision to include the following:-

 

" Although the statement of principle in Vickers Ltd v Smith [1977] IRLR 11 is entirely accurate in law, for the reasons given in N C Watling & Company Ltd v Richardson [1978] ICR 1049, we think industrial tribunals would do well not to direct themselves by reference to it. The statement in Vickers Ltd v Smith is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section. This is how the industrial tribunal in the present case seems to have read Vickers v Smith. That is not the law. The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the band of reasonable responses and industrial tribunals would be well advised to follow the formulation of the principle in N C Watling & Company Ltd v Richardson [1978] ICR 1049 or Rolls Royce Ltd v Walpole [1980] IRLR 343. "

 

33. Deeny LJ then pointed out that gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee:-

 

"So the conduct must be a deliberate and wilful contradiction of the contractual terms."

 

34. Deeny LJ stated that:-

 

"The facts as found are that she [the claimant] took five puffs of this inhaler when undergoing an asthmatic attack, without permission. The tribunal accepted the Appeal Panel's view that this was aggravated by her failure to report the matter until two days later.

 

It seems to me that, even taking into account the delay, for which an explanation was given and was not rejected as a finding of fact, that cannot constitute 'deliberate and wilful conduct' justifying summary dismissal. Her terms of employment do not seem to have expressly prohibited such a use. The Code of Conduct is ambiguous at best on the topic. If she had asked the Ward Sister for permission before she used the inhaler and the Sister had refused her permission and she had nevertheless gone ahead and had used it one might have had the sort of act of disobedience contemplated by the Court of Appeal in Laws v London Chronicle Limited. That would have been a deliberate flouting of essential contractual conditions, ie following the instructions of her clinical superiors. But that is not what happened here. Furthermore, I agree with the statements in Harvey ... that dismissals for a single first offence must require the offence to be particularly serious. Given the whole list of matters which the employer included under the hearing of Gross Misconduct it is impossible, in my view, to regard the nurse's actions as 'particularly serious'."

 

35. Deeny LJ stated:-

 

"For this court to approbate the tribunal's decision upholding as within a reasonable range of responses the summary dismissal of an employee from her chosen profession on these facts without any prior warning as a 'repudiation of the fundamental terms of the contract' would be to turn language on its head. Employment law is a particular branch of the law of contract. With statutory interventions it has, of course, developed a character of its own. But any dismissed employee opting to go into a court of law and claim damages for breach of contract at common law against an employer who had summarily dismissed them for using a Ventolin inhaler while suffering from an asthmatic attack and delaying two days in reporting that, particularly when it was their 'first offence', could be tolerably confident of success before a judge, in my view."

 

36. Deeny LJ held further that:-

 

"The interpretation of what, in this jurisdiction, is Article 130(4)(a) of the 1996 Order has been fixed by a series of appellate courts over the years, ie that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the tribunal would have made. That test, expressed in various ways, is too long established to be altered by this court, and in any event has persuasive arguments in favour of it. But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b), ie that that decision 'shall be determined in accordance with equity and the substantial merits of the case'. ... ."

 

37. The statutory test of unfairness in Article 130 of the 1996 Order (and in its predecessor) is in simple terms, and should be straightforward. It is difficult to see why it has generated such an extended discussion in case law over the last 40 years. The words of Article 130 comprise the only statutory test of unfairness. The formulation of the ' band of reasonable responses' test, variously worded in different decisions, cannot be a substitution for the proper application of the statutory test. It may best be regarded as a double-check to be applied to ensure that, in applying the statutory test, the tribunal has avoided substituting its own views, on what it would have done in the relevant circumstances, for the decision of the employer. In other words it is, as the Court of Appeal (GB) stated in Fuller (above), a ' reassurance of objectivity'.

 

It is therefore important to remember that the ' reasonable responses' test, although long-established as pointed out by the Court of Appeal in Connolly (above), appears nowhere in the statute. This is a statutory tribunal whose function is to apply the statute. Non-statutory wording or non-statutory paraphrasing of the statutory test can only be of assistance where it is remembered that it cannot substitute for the statutory test which sets out the remit and the function of the tribunal. In Iceland (above), it was stressed that the starting point should be the words of the legislation. In Connolly (above) the Court of Appeal (Northern Ireland) emphasised the importance of applying the statutory test as a whole.

 

38. There is no difference between the formulation of the legal principles expressed in the majority judgment and in the minority judgment in the case of Connolly. The detailed formulation of those principles set out by Gillen LJ at Paragraph 28(i) - (xvi) of the decision covers, in full, the procedure which should be adopted by an industrial tribunal in assessing the fairness or unfairness of a misconduct dismissal. It is not disputed or challenged in any way in the majority judgement.

 

39. In Reilly v Sandwell Metropolitan Borough Council [2018] UK SC16, the Supreme Court looked at a case of alleged unfair dismissal. The facts of that particular case are not of assistance to the present matter. However it is notable that Lady Hale, the President of the Supreme Court stated;

 

"the case might have presented an opportunity for this court to consider two points of law of general public importance which have not been raised at this level before."

 

The first point is not of relevance to the present matter. However, Lady Hale described the second point in the following way;

 

"nor have we heard any argument on whether the approach to be taken by a tribunal to an employer's decisions, both as to the facts under section 98(1) to (3) as the Employment Rights Act 1996 first led down by the Employment Appeal Tribunal in British Homes Stores Limited v Burchell [1978] ICR 303 and definitively endorsed by the Court of Appeal in Foley v Post Office [2000] ICR 1283, is correct."

 

She went on to state;

 

"Even in relation to the first part of the inquiry, as to the reason for the dismissal, the Burchell approach can lead to dismissals which were in fact fair being treated as unfair and dismissals which were in fact unfair being treated as fair. Once again, it is not difficult to think of arguments on either side of this question but we have not heard them."

 

40. Lady Hale went to state;

 

"34. There may be good reasons why no one has challenged the Burchell test before us. First, it has been applied by Employment Tribunals, in the thousands of cases which have come before them, for forty years now. It remains binding upon them and on the Employment Appeal Tribunal and Court of Appeal. Destabilising the position without a very good reason would be irresponsible. Second, Parliament has had the opportunity to clarify the approach which is intended, should it consider that Burchell is wrong, and it has not done so. Third, those who are experienced in the field, whether acting for employees or employers, may consider the approach is correct and does not lead to injustice in practice.

 

35. It follows that the law remains as it has been for the last 40 years and I express no view about whether that is correct.

 

41. Therefore, while the Supreme Court recognised the long standing of the Burchell test, and pointed out the significant difficulties inherent in challenging that non statutory test at this stage, it did, rather pointedly, indicate that they were not expressing any view about whether the non-statutory test is correct and that they had not heard any argument in relation to that point. At the least, the Supreme Court questioned whether the "reasonable responses" test should be challenged at the final appellate level.

 

Procedure

 

42. This case was case managed and directions were issued in relation to the interlocutory procedure and in relation to the exchange of witness statements.

 

43. One witness was called by the claimant on foot of a Witness Attendance Order; Ms Ann Gray. The claimant gave evidence on his own behalf and called three other witnesses; Ms Keri McKay, Ms Charmaine Simpson and Ms Correna McDonald. All had provided their evidence in chief by way of witness statements.

 

A Ms Olivia Hammond had also provided a witness statement on his behalf but did not attend the hearing to swear or affirm to that statement or to be cross-examined. That statement therefore cannot be given any particular weight.

 

44. Boots called two witnesses: Ms Clarissa McSorley, the deputy store manager in Donegall Place and Ms Fiona Dillon the beauty hall manager in Donegall Place.

 

45. Dior called three witnesses; Mr Andrew Woods, the investigating officer, Ms Theresa Turnbull, who had conducted the disciplinary hearing and who had dismissed the claimant, and Ms Mandy France who had heard the claimant's appeal against that dismissal.

 

46. Ms Abbigail Riley had provided a witness statement in advance, but, in the event Dior did not call her to swear or affirm to her statement or to be cross-examined. Her statement can therefore be given no particular weight.

 

47. Each witness (with the exception of Ms Gray), adopted their previously exchanged witness statement as their evidence in chief and moved immediately to cross-examination and to re-examination. Ms Gray gave oral evidence in chief and was then cross-examined and re-examined.

 

48. The claimant had been pursuing claims of unlawful sexual orientation discrimination against both respondents. At the conclusion of the claimant's evidence, Dior asked for any complaint of sexual orientation discrimination against it to be struck out. No such allegation against Dior had been included in the claim form to the Industrial Tribunal. The only complaints of sexual orientation discrimination which appeared in that claim, and the only complaints of sexual orientation which were therefore properly before the tribunal, were those made by the claimant about Ms Dillon who had been a Boots employee. There had been no application at any stage to amend the claim form to include any additional claims against Dior. Furthermore, nothing in the witness statement lodged by the claimant by way of evidence in chief, had raised any claim of sexual orientation discrimination against Dior.

 

49. When the tribunal asked the claimant to identify any complaint of sexual orientation discrimination which he had made against Dior, the claimant alleged that he had been told in September 2016 not to wear eye liner when working for Dior in the Boots premises in Donegall Place. That message had originated from a Dior trainer and had been passed to the claimant by the Dior regional manager at the time, Ms Emma Clarke. In any event, the claimant had not made that claim in the claim form or in the witness statement. He did not refer to any male heterosexual who had been allowed or who would have been allowed to wear eye liner at work. He could not explain satisfactorily why that complaint had not been the subject of any grievance or internal complaint at the time. He was not able to satisfactorily explain why it had not been included in the tribunal claim form. He did not allege that there had been a pattern of continuous harassment by Dior on the ground of sexual orientation and he did not explain satisfactorily why a claim had not been lodged to the Industrial Tribunal in respect of any alleged complaint against Dior within three months from the date on which that incident occurred in September 2016.

 

50. The tribunal is a statutory tribunal with no inherent or general jurisdiction. It may not hear and determine claims which are not properly before it in accordance with the relevant statutory provision. The tribunal determined the only complaint of sexual orientation discrimination which had been identified by the claimant against Dior was not properly before it as a claim and that it could see no basis on which it could extend time or permit an amendment of the claim in respect of this matter at this stage.

 

The claim of sexual orientation discrimination against Dior was therefore dismissed.

 

51. The case proceeded as a claim of unfair dismissal contrary to the 1996 Order against Dior and a claim of unlawful discrimination on the ground of sexual orientation contrary to the 2003 Regulations against Boots.

 

Relevant Findings of Fact

 

52. The claimant had been first employed by Dior on 28 March 2016 as an accounts manager and had been placed in Boots. It had been made plain to the claimant, and he had understood, that he had been expected to be subject to the day to day direction of the store management in Boots; in this case, Ms Fiona Dillon who was the manager of the Beauty Hall. The Beauty Hall comprised much of the ground floor of the Donegall Place store. There were several separate counters, each staffed by employees of various manufacturers of cosmetic products. There were approximately 250 such staff in total, comprising both full-time and part-time staff who covered the hours during which Boots was open to the public.

 

53. It had also been made plain to the claimant, and the claimant had understood, that if Boots ever withdrew its approval for the claimant to work in its store, Dior would have no option but to remove him from that store.

 

54. The claimant had on-line access at all times to Dior's policies including, in particular, Dior's equality policy and its disciplinary policy. The disciplinary policy specified that an employee could be dismissed for gross misconduct. It gave several examples of behaviour which Dior would regard as gross misconduct, including "abusive behaviour" and "conduct which does, or in the opinion of the company is reasonably likely to, or could, bring the company into disrepute or materially affect its business."

 

55. At the end of 2016, various disciplinary issues arose between the claimant and Dior. They concerned;

 

(i) high levels of absence due to illness and not following the correct reporting procedure;

 

(ii) conduct and behaviour in store while representing the brand;

 

(iii) mobile phone use at work, the completion of time sheets and the completion of reports.

 

56. Following an investigation on 11 January 2017, the claimant was issued with a "record of conversation" on 8 February 2017, which set out the concerns of Dior in respect of the matters set out above. It stated;

 

"However if we do not see an improvement within all the points raised, this will lead for (SIC) further investigation and may result in disciplinary."

 

57. The record of conversation set out the "details of action agreed". It recorded;

 

"You have assured me that you are working towards reducing the high levels of absence. You have had a tooth extracted. If there is further dental work required you have agreed to inform the store and company in advance and schedule your days off around this."

 

"Tom you have agreed that you will take all points raised into account and work towards improving your tone when speaking to store management. Be respectful of their role and position in store. Be mindful when communicating to colleagues and store management of your tone and volume. You have agreed that you will show me that you can now forge and build a relationship in store."

 

"You have agreed that the mobile phone would be used only for conference calls and WattsApp group information."

 

58. That record of conversation amounted to a form of non-disciplinary action. The claimant signed that record.

 

59. The claimant alleged in his cross-examination, and for the first time, that he had only signed the record of conversation because he had been told by Ms Clarke, who had conducted the conversation, that he could not appeal it unless he had signed the document. He further alleged, and again for the first time, that he in fact had appealed this record of conversation. He stated that he had not done so in writing but he had his position plain. He had expected Ms Emma Clarke to progress the appeal against the record of conversation on his behalf.

 

60. The tribunal does not accept that the claimant had at any stage appealed the record of conversation. He had not mentioned any such appeal in the course of this litigation before he mentioned it in his cross-examination. Furthermore, when the record of conversation had been directly relevant, in the course of the investigation, disciplinary and appeal processes, the claimant had not raised any alleged appeal and he had not queried the respondent's reliance on the record of conversation because he had "an appeal" outstanding. This is particularly pertinent at the appeal stage. At that point, it had been absolutely clear that Ms Turnbull had taken the record of conversation into account when reaching the decision to dismiss the claimant. If there had indeed been an outstanding appeal which had not, for some reason, been processed by the respondent, the claimant would have raised it at that point. He did not.

 

61. Furthermore the claimant did not, in the period immediately following the 8 February 2017, raise the matter of any outstanding appeal. When Ms Clarke was made redundant shortly thereafter, he did not query the status of any "outstanding" appeal. Finally, the use, on three occasions, of the words "you have agreed" in the record and the fact that the claimant had signed that record is simply inconsistent with any allegation of an outstanding appeal. Finally, the tribunal was not taken to any appeal procedure in Dior's policies which would have enabled "an appeal" against non-disciplinary action of this nature.

 

62. The tribunal therefore unanimously concludes that this evidence given in the course of cross-examination by the claimant was untruthful. He had not at any stage sought to appeal the record of conversation. He had signed it. He had agreed with it and had accepted it.

 

63. The claimant made several complaints in the course of this litigation about his management by Ms Dillon. Those complaints were very generalised and difficult to pin down. Furthermore, the claimant used dramatic language which was not consistent even with his own evidence in relation to various matters. For example, while it was plain, even on his own evidence, that Ms Dillon had simply followed him upstairs to the upper floor in Boots on 24 February 2017, the claimant persisted in describing Ms Dillon's actions as "pursuing" him. Another example is that when Ms Dillon asked him on that date to move to the front of the store for a conversation, he described this as Ms Dillon "apprehending" him. In his evidence, the claimant repeatedly alleged that he had "feared for my safety" during the incident on 24 February 2017. Ms Dillon was older than the claimant and appeared to be slightly built. The claimant had been in his twenties and was a regular gym user. There had been no evidence, even from the claimant, of real or threatened violence from Ms Dillon towards him. When the claimant was asked to explain how he had "feared for his safety", he said he had feared for his job. However that is not what he had repeatedly said. There is a big difference between "fearing for my safety" and "fearing for my job".

 

When he described what he alleged had been a pattern of harassment by Ms Dillon, he said in his witness statement that it was "eroding my very fabric and DNA as a human being". Even if the claimant's evidence were accurate (and it is not), this was an overstatement.

 

64. The claimant complained in particular that Ms Dillon had refused on various occasions to allow him time off for lunch at his request so that he could meet his friends. However it seems clear from the evidence of other witnesses that the busiest time in the store was between 12 noon and 2 pm each day. There had been an accepted rule or practice amongst all staff in the beauty hall that lunches would not be taken between 12 noon and 2 pm and that that had applied to all staff. It was also clear from the evidence that the Dior counter had relatively fewer staff than other counters and that it had therefore been more difficult to arrange time for lunch and breaks while still ensuring that at least one member of staff was available to staff the counter. The only two full-time members of staff at the Dior counter were the claimant and Ms Olivia Hammond. The claimant also complained that he had not been allowed other breaks during the working day and that he had not been allowed to take Saturdays off. He complained that Ms Dillon had made unjustified complaints about his team and that she had falsified his sick leave. There was no evidence to support any of these allegations.

 

65. The claimant kept stating in the course of his evidence that he had repeatedly complained to Ms Emma Clarke, who had been his Dior regional manager until some point in February 2017. However there was absolutely no documentary evidence of any such complaint. Furthermore Ms Clarke did not attend to give evidence and the email trail leading up to the record of the conversation on 11 January 2017 made it plain that Ms Clarke had also experienced considerable difficulty in managing the claimant. At one point she had noted that it was something "every week" with the claimant. There was no evidence that the claimant had been treated differently or unfairly in relation to lunch breaks or other breaks and absolutely no evidence, even if there had been any such practice, that his breaks had been in any sense related to his sexual orientation.

 

66. The claimant also complained that he had not been given holiday breaks and that that had been due to his sexual orientation. However it was clear that holidays had been arranged primarily with Dior and that Ms Dillon's involvement as beauty hall manager had been simply to ensure that the counters were adequately staffed. The claimant in evidence could only point to one alleged incident where he had already approved a holiday for Ms Hammond and had then decided that he also wished to go on holiday at the same time. On that occasion, Ms Dillon had objected on sound business grounds. If both full-time employees had been absent on holiday that would have caused difficulties for the Dior counter and sales would have been affected. Again, no evidence was provided of any unfair or discriminatory treatment.

 

67. The claimant also complained that he had been asked to turn down the music on at least one occasion. However the tribunal accepts the clear evidence of Ms Dillon that where this had occurred, it had followed an incident in which the claimant had danced along to loud music in an inappropriate manner on the sales floor. Again there was no evidence of any sort of discriminatory or unfair treatment.

 

68. The claimant also alleged that he had been told on one occasion not to wear eyeliner at work. Again, it has to be remembered that the only complaint of sexual orientation discrimination was against Boots. The claimant accepted that the incident had arisen because he had worn eyeliner in a demonstration of a particular cosmetic product. A trainer directly employed by Dior had seen this and had passed his objections to Ms Emma Clarke who had been the claimant's regional manager at that point. Ms Emma Clarke had spoken to him. It is difficult to see how the claimant alleges that this can be laid at the door of either Fiona Dillon or Boots. The tribunal accepts Ms Dillon's clear evidence that she had been on holiday when the incident had occurred. On her return, the claimant had raised the incident with her and had told Ms Dillon that he was going to "take Dior" to a tribunal over the incident. He did not do so. Again, the tribunal can find no evidence of sexual orientation discrimination by Boots.

 

69. The claimant further alleged that a Boots staff discount card had been removed and not reinstated. It is clear that the claimant had himself requested that the discount card be removed because he had at that point lost his personal possessions, including his card, on a night out. The claimant stated that the card had not then been renewed as an act of sexual orientation discrimination. However the tribunal prefers the clear evidence of Ms Dillon that the claimant had not wished to use his staff discount card anymore. He had not asked for it to be renewed. He preferred to use his staff discount card from his previous employment in Debenhams which he had retained.

 

The claimant alleged that the evidence of the card account had in some way been falsified by Boots. The tribunal concludes that this allegation is frankly ridiculous.

 

70. The claimant alleges that Ms Dillon had constantly called him "princess", "diva", "drama queen" "tomgerine" and "wotsit".

 

The latter two terms apparently relate to alleged insults in relation to the use of spray tan. Those do not appear, on any reading of the allegations, to relate to sexual orientation and therefore can be disregarded for the purposes of this litigation.

 

71. The allegations in relation to the other alleged terms, "princess", "diva" and "drama queen" do not appear in the investigation process, the disciplinary process or the appeal process. The claimant was asked to explain why, in a situation where he was alleging that he had been harassed by Ms Dillon and in a situation where he was alleging that Ms Dillon had been biased against him because of his sexual orientation, he had not mentioned these allegations in the internal process. He stated that it had not been relevant and that if he had done so it "would have made his life hell". The tribunal does not accept that explanation. In a situation, particularly at the appeal stage, where the claimant had stated to the tribunal that he had set out "the entire history" of harassment that he had suffered at the hands of Ms Dillon, it is simply not credible that he chose for some reason to exclude from this "entire history", the three terms he currently seeks to rely on to bolster his claim of sexual orientation discrimination.

 

72. Furthermore the three alleged terms do not appear anywhere in his Industrial Tribunal claim form. They first appeared in a response to a Notice for Additional Information in February 2018. It is notable that where one witness who was called in his behalf, Charmaine Simpson, had prepared her witness statement before that date, she makes no mention of the alleged use of these three terms. However, two witnesses who were called on his behalf to give evidence and who prepared their statements after he had responded to the Notice for Additional Information, do refer to those terms.

 

73. It is simply not credible that, if Ms Dillon had "constantly" used those terms, a contemporaneous complaint would not have been made. It is also simply not credible that Ms Dillon, an experienced manager on a shop floor, with several staff and open to the public, would have used such terms either "constantly" or at all. It is furthermore simply not credible that the claimant did not raise these allegations in the course of the investigation, the disciplinary process or in the appeal process because it would have "made his life hell". He had already made serious allegations of harassment and bullying against Ms Dillon. It would not have made his position any worse if he had added those allegations at the time. The tribunal unanimously concludes that these allegations were invented in February 2018 simply to bolster a claim of sexual orientation discrimination. The tribunal also unanimously concludes that the witness statements of Ms McKay and Ms McDonald were untruthful in this respect.

 

74. It is clear from the emails disclosed in the course of this hearing that the claimant and the more junior staff employed by Dior, some of whom who worked directly to him, had a deep seated hatred of Ms Dillon. They used terms to describe her which frankly do not bear repeating in the context of a judicial decision. It is sufficient to say that the conversations between the claimant and more junior members of staff involved the vilest terminology that this tribunal has ever come across. The tribunal concludes that if anyone had suffered abuse in these circumstances, it had been Ms Dillon.

 

75. On 24 February 2017, the claimant had been working at the Dior counter with Ms Olivia Hammond. Ms Dillon approached and there was a discussion about sales targets. The claimant stated that his sales targets had already been met at that point. Ms Dillon indicated that he should still pursue sales and that he should try to seek additional business. This had appeared to inflame the claimant who became agitated.

 

76. Ms Dillon asked the claimant to go to the front of the store for a private conversation away from Ms Hammond. The claimant became more agitated.

 

77. At a later stage, the claimant was in discussion with Ms Gray. In the course of that discussion Ms Dillon had become involved. The claimant became even more agitated. He began to shout. He demanded the presence of Ms McSorley who was the deputy store manager employed by Boots. Eventually he and Ms Dillon had moved towards the escalator and proceeded to the upper floor where Ms McSorley's office was situated.

 

78. Ms McSorley, Ms Dillon and Ms McCool observed what happened next. It had been apparent to Ms McSorley and to Ms Dillon who both gave evidence that the claimant was extremely agitated. He had been purple in the face with rage, and was shaking his hands about the place and shouting. The tribunal concludes that the claimant had not simply been "sunburnt" as alleged by the claimant in the course of this hearing. The tribunal is satisfied that he had been extremely angry and upset at this point. Ms Dillon and Ms McSorley formed the conclusion that there had been a risk that he would strike Ms Dillon. The claimant stated on several occasions that he resigned from his employment.

 

79. In the event the claimant did not resign and continued to attend work.

 

80. On the 2 March 2017, when the claimant had not followed through with his resignation, Ms McSorley withdrew the approval for the claimant to work in the Boots store. Dior suspended the claimant pending an investigation into the incident on 24 February 2017.

 

81. Mr Andrew Woods, an area manager in England, was asked to conduct the investigation on behalf of Dior.

 

82. He was given statements from Ms McSorley and Ms Dillon. He asked for a further statement from another witness on the upper floor a Ms Marion McCool.

 

83. On 9 March 2017 he interviewed the claimant. The claimant stated that he had been treated unfairly by Ms Dillon. He stated that there had been previous "run-ins" with Ms Dillon. Importantly, he did not make any allegation whatsoever about sexual orientation discrimination. He stated that she always had been "on his case". However he did not in the course of that interview allege that Ms Dillon had been "on his case" because of his sexual orientation.

 

84. The three statements in Mr Woods' possession indicated that the claimant had been "aggressive", "very threatening" and "looking very aggravated". They indicated that Ms Dillon had asked him to calm down and that Ms McCool had been worried and that she had therefore contacted Ms McSorley.

 

85. Mr Woods had raised the record of conversation from 11 January 2017 and had specifically raised the issue of the claimant being previously warned about his behaviour. The claimant had stated that he disagreed with the record of proceedings, even though he had signed it. Importantly, he did not at any stage state that he appealed the record of conversation or that any appeal had been outstanding. He simply disagreed that the record of conversation had been relevant to the investigation.

 

86. Mr Woods reached his decision on the basis of the three statements then in his possession. The claimant asked for further statements to be obtained from Ms Hammond and Ms Gray. Mr Woods did so, although he did not regard them as relevant.

 

87. Mr Woods recommended that the matter should proceed to the disciplinary process.

 

88. The claimant in the course of the tribunal hearing repeatedly argued that Mr Woods had in some way failed in his duties by not reaching a decision on guilt and by not conducting further interviews and in not further "testing" the evidence. The tribunal concludes that Mr Woods' position had been as an investigating officer. His job had simply been to decide whether there was a prima facie case which should proceed to the disciplinary process, and not to reach a final finding on guilt or otherwise. The tribunal could find nothing inappropriate or wrong in Mr Woods' actions.

 

89. Ms Theresa Turnbull, another area manager from England was asked to conduct the disciplinary hearing. There were two disciplinary charges against the claimant. Firstly one of aggressive and threatening behaviour displayed towards Ms Fiona Dillon on 24 February 2017, which subsequently resulted in the removal of the store approval and, secondly, potentially bringing Dior into disrepute as a result of the alleged behaviour.

 

90. The claimant was provided with all necessary documentation including the investigation report and the statements obtained. The claimant was offered a representative but wished to continue without one. It is apparent from Ms Turnbull's evidence and from the notes of the meeting that the claimant had been fixated on his relationship with Ms Dillon. He alleged that the relationship had broken down and that Ms Dillon had told "lies" about his team. Importantly, he did not allege sexual orientation discrimination and he did not raise the allegations that he had been called "princess", "diva" or "drama queen".

 

91. In the course of the disciplinary hearing, Ms Turnbull repeatedly asked him whether had he been abusive and aggressive towards Ms Dillon in the upper floor office. Ms Turnbull never got a straight answer from the claimant. For example, at one point he replied "not on the shop floor". After the conclusion of the hearing, there was a 55 minute break. After that break, the hearing resumed and Ms Turnbull informed the claimant that she had decided his behaviour had been gross misconduct and that he would be summarily dismissed. That was later confirmed in writing on 7 April 2017. Ms Turnbull noted that Mr Connolly had acted in a hostile and aggressive manner towards Ms Dillon which had resulted in Ms Dillon having felt personally threatened. She had taken the record of conversation into account in reaching her conclusions.

 

92. The claimant appealed against that decision but he did not set out any grounds on which he did so.

 

93. Ms Mandy France, a senior regional manager from England, was asked to conduct the appeal hearing.

 

94. Ms France had received a telephone call earlier on the 24 February 2017 from the claimant who had been in an obvious state of distress. The claimant told Ms France in the course of that telephone conversation that he had just had an argument with Ms Dillon. She felt that he was agitated and appeared panicked. The claimant had stated to her that the argument had escalated and that he had resigned.

 

95. The appeal hearing was conducted on 27 April 2017. Again the claimant was informed of his right to be represented by a colleague or by a trade union representative. He declined.

 

96. Ms France had been involved in a road traffic accident and was unable to travel for the purposes of the appeal hearing. It was decided that the appeal hearing would be conducted by way of a telephone call. The claimant was asked several times at the start of the appeal hearing if he was happy to continue with the appeal in the course of a telephone conversation. Ms France offered to reschedule the appeal hearing if the claimant had not been happy. However he indicated that he was happy to proceed.

 

97. The claimant presented a written submission.

 

98. At the end of the appeal hearing Ms France took time to consider. On 12 June 2017 the appeal outcome letter was issued to the claimant. Ms France confirmed that she had upheld the decision to summarily dismiss the claimant. She had relied on the statements obtained from the three individuals, Ms McSorley, Ms Dillon and Ms McCool who had witnessed the incident on 24 February 2017 upstairs in Boots. The claimant had been aggressive and was shouting at Ms Dillon, to the point where Ms Dillon had felt threatened and worried. The statements from Ms Hammond and Ms Gray were not relevant to that issue since neither had been present at that stage. They had remained on the ground floor.

 

99. The claimant had again in the course of the appeal hearing argued that he had been subject to bullying and harassment from Ms Dillon but again, crucially, he did not at any stage suggest that there had been sexual orientation discrimination and he did not raise the alleged remarks of "princess", "diva" and "drama queen".

 

100. The claimant was clear in his cross-examination that he had been given a full opportunity in the course of the investigation procedure, the disciplinary hearing and the appeal hearing to put forward his position in full. He alleged that there been a failure in the part of Boots in not providing CCTV coverage. However it was clear that no CCTV coverage had been available of the upper floor in Boots, where the alleged incident had taken place in which he had been abusive and threatening and in which he had placed Ms Dillon in fear for her safety.

 

101. The tribunal concludes that any CCTV coverage of the ground floor would not have included any audio recording and it would have been of peripheral interest at best. The issue to be determined in the course of disciplinary process was the incident which had occurred upstairs in Boots. The evidence which the claimant had suggested was contradictory to that from Ms Dillon, Ms McSorley and Ms McCool was simply not relevant. It had related to earlier events on the ground floor.

 

DECISION

 

Unfair Dismissal Claim

 

102. The unfair dismissal claim can only lie against the employer at the relevant stage which was Dior.

 

103. The tribunal is satisfied that the reason for the dismissal had been misconduct, a potentially fair reason for the purposes of the 1996 Order.

 

104. There was no question of non-compliance with the statutory dismissal procedure. It is clear to the tribunal that that procedure had been followed in full.

 

105. The investigation, disciplinary and appeal process had been conducted carefully and appropriately. The criticisms made by the claimant were groundless. The available CCTV recordings simply would not have been relevant. The evidence which he regarded as "conflicting" was again simply not relevant. The issue which concerned the respondent was the claimant's conduct upstairs in Boots where he had been abusive and threatening and where he had put Ms Dillon in fear for her safety.

 

106. On the evidence before Dior, the decision to suspend and then to summarily dismiss the claimant was a decision which a reasonable employer could reasonably have reached. It is important to remember that Boots had removed the store approval following the claimant's treatment of Ms Dillon. The evidence from Ms Dillon, Ms McSorley and Ms McCool was sufficiently consistent and clear in establishing that the claimant had been angry, abusive and threatening. Minor inconsistences or changes in description simply reflected the differing perceptions of different witnesses of matters of detail and the passage of time.

 

This had been behaviour which any reasonable employer would have regarded as justifying summary dismissal.

 

107. The tribunal therefore concludes that the dismissal had been a fair dismissal for the purposes of the 1996 Order. The claim of unfair dismissal is dismissed.

 

Sexual Orientation Discrimination

 

108. The only claim of sexual orientation discrimination lies against Boots.

 

109. There is simply no prima facie case of such discrimination on the evidence before the tribunal. It is clear that the claimant had resented being managed. It is clear that he had a previous history of difficulty when managed by Ms Emma Clarke who had then been the regional manager directly employed by Dior. It is equally clear that he had a long running dispute with Ms Dillon and that he resented being told what to do by Ms Dillon. However there is absolutely no evidence to support the allegation that Ms Dillon's attitude towards him had been in any way motivated by his sexual orientation.

 

110. The tribunal notes in particular the concerns that it has about the claimant's credibility. The evidence which he gave in cross-examination in relation to an alleged appeal against the record of conversation on 11 January 2017 was clearly untruthful. His evidence in relation to the alleged remarks of "princess", "diva" and "drama queen" and the evidence presented on his behalf by Ms McKay and Ms McDonald had also been untruthful. The claimant did not show any care to restrict his statements to statements of truth. He was given to hyperbole. For example his allegations that he had been "pursued" or "apprehended" or that he had "feared for his safety" bear little if any connection with the truth, even on the basis of the evidence which he had presented of the alleged incidents.

 

111. Ms McKay and Ms Simpson in their witness statements in support of the claimant both used the unusual phrase "bore witness to". The claimant also used "bore witness to" or "bear witness to" verbally in his cross-examination and in his submission. When each were asked to explain their use of this somewhat antiquated phrase, each separately stated that they had done a google search of how to complete a witness statement and that is how the use of that phrase was adopted. It is difficult to imagine the google search that they each separately and independently had made which would have recommended the use of that phrase. Ms McKay and Ms Simpson maintained in cross-examination that they had not colluded with each other in the preparation of their witness statements and they had not received any assistance or advice from the claimant. That is highly improbable. For that to be correct, Ms McKay and Ms Simpson and indeed the claimant would have had to separately and independently come up with a particular phrase which, to put it mildly, is not in common usage and then separately and independently decided to use it in either their witness statements or in their cross-examination and submission. It seems much more likely, and the tribunal concludes, that Ms McKay and Ms Simpson had colluded together and with the claimant in the production of their witness statements even though each denied having done so.

 

112. Furthermore Ms McKay and Ms Simpson and Ms McDonald maintained that they had never at any stage following the claimant's dismissal discussed his ongoing tribunal litigation with him. There had been ongoing and regular social contact but their evidence was that this particular topic had never been discussed. The tribunal finds that incredible and does not accept that testimony. It is much more likely than not that the claimant's outstanding case before this tribunal had been a subject of repeated and detailed discussion.

 

113. The fact that Ms McKay, Ms Simpson and the claimant made such efforts to deny collusion in the preparation of the witness statements, and to deny discussing the litigation, where it was clear that this is precisely what had occurred, suggests that their evidence does not deserve any credibility whatsoever.

 

114. No evidence has been presented in relation to the various allegations of alleged sexual orientation discrimination which would enable the tribunal to conclude that the burden of proof had shifted to the respondent. Even if it had been, the tribunal concludes that the evidence presented on behalf of Boots presents a clear explanation of events and establishes that Boots' actions had been in no way motivated by the claimant's sexual orientation.

 

115. The claimant's claim of sexual orientation discrimination against Boots is therefore dismissed.

 

116. For the avoidance of doubt, all claims are dismissed.

 

 

 

 

Vice President:

 

 

Date and place of hearing: 29, 30, 31 May and 1 June 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: