Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  12956/18

 

CLAIMANT:                          Gavin Walsh

 

RESPONDENTS:               1.         Chief Constable of the Police Service of Northern Ireland

                                                2.         Nichola Murphy

 

 

JUDGMENT

 

The judgment of the tribunal is that the claimant suffered a detriment in accordance of Article 73(1) of the Employment Rights (Northern Ireland) Order 1996 and is entitled to an award of £3,000.00 payable by the first named respondent. 

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge:                                  Employment Judge Oliver

                       

Members:                                                     Mr McKnight

                                                                        Mr Atcheson

           

APPEARANCES:

 

The claimant attended and represented himself.

 

The respondents were represented by Ms Rachel Best, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

 

 

CLAIM

 

1.         The claimant lodged a claim on 3 September 2018 claiming that he had suffered a detriment in accordance with Article 73(1) of the Employment Rights (Northern Ireland) Order 1996.   

 

LEGAL ISSUES

 

2.         The legal issues to be determined by the tribunal are as follows:

 

Time Limit

 

3.         Did the claimant present his claim within the relevant time period being three months from the date of the act complained of?  If not, was it reasonably practicable for him to present the claim within that time period?  If it was not reasonably practicable to present his claim within that time period, did he present the claim within such further period as the tribunal considers reasonable.

 

Detriment

 

4.         Has the claimant suffer a detriment?

 

5.         Was the detriment caused by some act on the part of the employer?

 

6.         What was the reason for the employer’s act?

 

7.         Was the reason for the employer’s act for the sole or main purpose of preventing or deterring him from taking part in the activities of an independent trade union or penalizing him for so doing?

 

8.         If the answers to the above questions are yes, then the claimant is entitled to succeed in his claim.

 

Damages

 

9.         Applying the Vento scale for injury to feelings, at what level should the claimant’s claim be assessed?

 

EVIDENCE

 

10.       The tribunal considered the witness statements provided and listened to oral evidence from the claimant and Ms Tracy Godfrey on behalf of the claimant and the oral evidence of Ms Nichola Murphy on behalf of the respondent.

 

            The tribunal also took into account documentation to which it was referred during the course of the hearing.

 

FINDINGS OF FACT

 

11.       The tribunal found the following relevant facts to be proven on the balance of probabilities:-

 

12.       The claimant has been employed by PSNI since 1984 and was seconded to NIPSA as a Trade Union Representative in September 2006.

 

13.       In May 2017, the claimant became involved with NIPSA members in the Firearms and Explosives Branch (FEB) of the Police Service of Northern Ireland (PSNI).  There were reporting issues with line management and the processes in changing over from paper based firearms applications to online applications.  This led to unrest within the FEB and many meetings with senior management to try and resolve the changeover.  FEB was dealing with a deluge of applications and often disgruntled applicants.  The process led to discontent within the FEB.

 

14.       The claimant was involved in trying to resolve issues and it is clear that his style of dealing with the staff issues was not welcome by senior management, including Ms Murphy.

 

15.       It is accepted by the respondent that there was a breakdown in the working relationship with the claimant.  The respondent’s witness, Ms Murphy accepts this in her statement at paragraph 27.

 

16.       During the summer of 2017, after a direct request from Ms Murphy to NIPSA it was agreed that the claimant’s colleague, Ms Godfrey would take on the claimant’s role in FEB and the claimant took less involvement with FEB issues.

 

17.       The relationship between Ms Murphy and the claimant was fractious and confrontational.

 

18.       We turn now to deal with the facts which led to the sending of the e-mail which forms the basis of the claimant’s claim for detriment.

 

19.       One of the issues which Ms Murphy was attempting to streamline in FEB concerned the escalating of applications out of date order.  Ms Murphy was understandably and appropriately attempting to ensure that all applications were dealt with fairly and without favouritism being shown to any particular person or group.  The system of dealing with applications out of date order, could possibly lead to an impression that some applications were being dealt with more favourably than others.

 

20.       To ensure integrity in the approval of escalations Ms Murphy introduced a system whereby all escalations were to be approved by her.

 

21.       Apparently, unbeknownst to Ms Murphy, the FEB operated a slightly different system where a medical condition had been disclosed on a claim form.  In this case, the application was removed from the main bundle and assessed to ascertain if a medical report was required.  If no medical report was required the application was placed back in its initial place.  In other words it did not lose its rank in the queue of applications.

 

22.       The claimant lodged an application to vary his Firearms Certificate on 9 June 2017.  His Firearms Certificate Variation was approved on 6 July 2017 and his Firearms Certificate was actually issued to him on 7 November 2017.  There was nothing untoward about any of this and the claimant did not seek and nor was he granted any special status or escalation.

 

23.       On 11 September 2017, Ms Murphy states that she was advised by a member of staff that the claimant’s firearm application had been previously escalated out of date order.  When asked at tribunal to name the person who had informed her of this, Ms Murphy stated that she could not remember who the person was.  This seems surprising to say the least and we did not find Ms Murphy credible in this regard.

 

24.       Without waiting to carry out any investigations as to how or why the claimant’s application had been escalated, Ms Murphy sent an email to the claimant’s colleague at NIPSA.  This was a damaging and defamatory e-mail.  We will refer to this as “the email”. The email is as follows: “it was brought to my attention that Gavin Walsh firearm application form was escalated without my awareness. You are well aware of our extensive backlog. Gavin application took days to be approved.  This occurred at the time that Gavin was involved with FEB”.  The clear implication of the e-mail is that the claimant had used his position as a NIPSA representative within FEB to obtain preferential treatment for his firearm application.

 

25.       It is clear that Ms Murphy carried out some investigations after sending the first e-mail.  Less than forty five minutes after sending the first e-mail, she sent another to Ms Godfrey at NIPSA which advises that she now thinks “the issues are practices which require review”.

 

26.       The tribunal noted that it did not take very long for Ms Murphy to ascertain the correct position and we came to the conclusion that Ms Murphy had jumped to conclusions without being in full possession of all the facts.  We believe that Ms Murphy was motivated by a desire to undermine the claimant in his NIPSA role.  He had been a thorn in her side for some months and this was an opportunity to discredit him in his role.

 

27.       We were unable to obtain a clear picture as to why the claimant’s application came to Ms Murphy’s attention in the first place.  As the respondent accepted, there were thousands of applications in the process and it seems more than unfortunate that the claimant’s claim form was the one singled out for scrutiny in this way.

 

28.       We turn now to the claimant’s evidence in relation to the time limit.

 

29.       The claimant was informed of the existence of the e-mail of 11 September 2017 by Ms Godfrey on 5 June 2018.

 

30.       Ms Godfrey states that she informed the claimant of the existence of the e-mail after attending GDPR training.

 

31.       During July and August of 2018, the claimant indicated that he was considering his position, particularly as to whether he wished to pursue a claim.  He indicated that relations within FEB were still fragile and he did not wish to initiate any proceedings which would jeopardise the already fragile relationship.

 

32.       He also indicated that the office was short staffed during the summer.  Ms Godfrey’s mother sadly passed away and she was on leave for part of that time.  He was directing his energies into providing advice for others.

 

33.       An incident regarding a member of staff whom the claimant was representing made him question whether he was taking the right approach by not raising the matter formally.

 

34.       The claimant lodged his grievance with his employer and his claim form in the Industrial Tribunal on 3 September 2018.

 

35.       We turn now to the evidence in relation to damages.

 

36.       The claimant did not suffer any financial loss. 

 

37.       The claimant did not provide any medical evidence in relation to emotional or mental health issues arising from the incident.

 

LAW RELEVANT TO LIABILITY AND TIME LIMITS

 

38.       Under Article 73 of the Employment Rights (Northern Ireland) Order 1996 a worker has the right not to be subjected to any detriment as an individual by any act or any deliberate failure to act, by his employer if the act or failure to act takes place for the sole or main purpose of –

 

                        “(b)      preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so

 

                                    By virtue of Article 74(1) of the 1996 Order a worker may present a complaint to an Industrial Tribunal on the ground that he has been subject to a detriment

 

                        (2)       a tribunal shall not consider a complaint under this article unless it is presented –

 

                                    (a)       before the end of the period of three months beginning with the date of the action, … or

 

                                    (b)       within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

 

APPLICATION OF THE LAW TO THE FACTS FOUND

 

39.       The tribunal finds that the action to which the complaint relates was the e-mail sent by Ms Murphy on 11 September 2017.

 

40.       The tribunal accepts that the claimant was not aware of this e-mail until he was informed of it on 5 June 2018.  We found the explanation given by Ms Godfrey in relation to the delay in providing the claimant with a copy of the e-mail entirely credible.  We therefore find that it was not reasonably practicable for the claim to be presented within the initial three month time period as the claimant was not aware of the existence of the e-mail until after the three month limit had expired.

 

41.       We take the starting date for time to begin to run against the claimant as being the 5 June 2018, being the date he became aware of the existence of the e-mail.

 

42.       We note the respondent’s assertion that as a Trade Union representative the claimant should have been aware of the time limit and should have presented his claim in a more timeous manner.  We note the assertion that three months from the date of knowledge is not reasonable, particularly as the incident complained of had taken place almost nine months earlier.

 

43.       The tribunal finds that there has been no prejudice caused to the respondent by the delay.  The sending of the e-mail is the action complained of and the e-mail itself is readily available.  The respondent’s witness Ms Murphy could remember with clarity the sending of the e-mail and gave her reasons for sending such an e-mail.  Although the tribunal did not accept Ms Murphy’s innocent explanation, we did not think that the lapse of time had impacted on her ability to remember the sequence of events leading up to the e-mail.

 

44.       We accept that the claimant may have been considering whether it would jeopardise his ability to represent NIPSA colleagues if he commenced a claim.

 

45.       We accept that the NIPSA office was short staffed at times during the three month period between the date of knowledge and the date of lodging the claim.

 

46.       Having considered all the evidence, we find that the presentation of the claim on 4 September 2018 was within such further period as we consider reasonable and we allow the claim to proceed.

 

47.       The tribunal then went on to consider whether the claimant has suffered a detriment.  The word detriment is not defined in the legislation.   A person is subjected to a detriment if he is put at a disadvantage.  We have no hesitation in finding that the e‑mail sent by Ms Murphy to the claimant’s work colleague in NIPSA constitutes a detriment.  This impugned the good name of the claimant with little or no evidence to back up the allegation.  It is telling that it took less than forty five minutes for Ms Murphy to ascertain that she had jumped to the wrong conclusion.  A little discretion and regard for the good name of the claimant would have led Ms Murphy to withhold sending the e-mail until she was sure of her facts. The detriment to the claimant has been compounded by the fact that Ms Murphy did not at any stage officially retract her allegation and put on record the fact that the claimant’s firearm application had been handled entirely properly.  She did not make Ms Godfrey aware of this. The claimant’s good name could easily have been lost if Ms Godfrey had believed the allegations against the claimant.  Ms Godfrey could also have shared the e-mail with others although there is absolutely no suggestion that she did so.  We say this to emphasise that Ms Murphy had no regard for the damage she could have caused to the claimant’s reputation.  It is significant that Ms Godfrey obviously viewed the email as important as she felt obliged to bring it to the claimant’s attention after GDPR training.  She had clearly not forgotten the contents of the e-mail nine months after it had been sent.

 

48.       The second question in respect of liability relates to whether the detriment has been caused by some act of the employer. We have no hesitation in finding that the detriment has been caused by the sending of the e-mail by an employee of the employer.

 

49.       We next asked ourselves what was the reason for the employer’s act.

 

50.       The reasons advance by the respondent were twofold:

 

            1.    To notify NIPSA at the earliest time of the issue.

 

            2.    Out of openness transparency and completeness and in the spirit of working together as previously agreed.

 

51.       We note that if the respondent had taken time to carry out even the most cursory of investigations, it would have been apparent that nothing untoward had taken place in respect of the claimant’s firearm application.  It is not acceptable to share accusations about another employee without taking the time to carry out proper investigations.  We therefore do not accept the first reason given.

 

52.       We fail to see how making unfounded allegations about another member of staff can be “in the spirit of working together”.

 

53.       We do not accept these reasons as given by the respondent.

 

54.       We believe that the claimant was singled out for scrutiny as a result of his Trade Union activities.  We remain unhappy with the method by which the claimant’s Firearms application came to light in any event.  This was a personal application to a government body.  There is no justification for seeking out the claimant’s application and then using this information in an internal employee matter.   Even if Ms Murphy herself did not seek out the application, it is apparent that someone within FEB did and then saw fit to bring it to the attention of Ms Murphy.  The action of selecting and commenting on the claimant’s application and then sending an e-mail to another employee about the application is completely inappropriate. We believe that this action was only taken because the claimant is a Trade Union representative and its sole or main purpose was to penalise the claimant for being such a representative.

 

55.       The tribunal therefore finds that the claimant is successful in his claim that he has suffered a detriment in the terms of Art 73(1).

 

56.       We turn now to the question of remedy. 

 

57.       We note that the claimant has suffered injury to feelings.  However, we note that no medical evidence has been provided.  We note that the e-mail does not appear to have been shared with many other employees. 

 

58.       We accept that the claimant has suffered embarrassment and that it is unpleasant to realise that your employer has made unfounded allegations about your integrity.  It is unpleasant to realise that your colleague has been put in a difficult position by being provided with damaging information about you which is in fact incorrect.

 

59.       We believe that the claimant is at the lower end of the Vento scale for injury to feelings and we award £3,000.00

 

60.       This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

Employment Judge:  F.  Oliver.

 

Date and place of hearing:          24 & 25 September, 21 November & 20 December 2019, Belfast.

 

This judgment was entered in the register and issued to the parties on: