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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Wilkinson v Belfast City Council [2007] NIFET 423_04 (13 April 2007) URL: http://www.bailii.org/nie/cases/NIFET/2007/423_04_FET.html |
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CASE REF: 423/04 FET
202/02 FET
CLAIMANT : James Ian Wilkinson
RESPONDENT: Belfast City Council
paragraph 32, page 33, should be 31
paragraph 33, page35, should be 32
paragraph 34, page 35, should be 33
paragraph 35, page 36, should be 34
paragraph 37, page 39, should be 35
paragraph 38, page 40, should be 36
paragraph 38, page 45, should be 37
paragraph 39, page 47, should be 38
paragraph 36, page 47, should be 39
These paragraphs have been renumbered in the correct sequence.
_______________________________________________
Date: __________________________________________
CASE REFS: 423/04 FET
202/05 FET
CLAIMANT: James Ian Wilkinson
RESPONDENT: Belfast City Council
The unanimous decision of the Tribunal is that the claimant's claims of discrimination and victimisation are dismissed. The grievance element of the victimisation claim against the respondent is within time but is dismissed as the Tribunal is satisfied that the claimant was not victimised. The staff appraisal element of the victimisation claim against the respondent is out of time as it does not constitute an act extending over a period under Article 46(6)(b) of the Fair Employment and Treatment (Northern Ireland) Order 1998. As determined by a previous Tribunal it would not be just and equitable under Article 46(5) to extend time. The Tribunal is in any event satisfied that the claimant was not victimised in relation to the staff appraisal element. We award the claimant £200 in respect of preparation time on the basis of unreasonable delay in producing a document by way of discovery.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Members: Mr Margrain
Mr Collins
Appearances:
The claimant was unrepresented and appeared on his own behalf.
The respondent was represented by Mr Patrick Ferrity, Barrister-at-Law instructed by the Director of Legal Services, Belfast City Council.
The Tribunal received two bundles of documents, one from each side together with two bundles of witness statements. The Tribunal heard evidence from the following witnesses on behalf of the claimant:-
James Ian Wilkinson (the claimant)
Dr David Hamilton (Occupational Health Physician)
Mr Tom Wilkinson (the claimant's brother and trade union representative)
Mr Simon Bacon (analyst)
The Tribunal heard evidence from the following witnesses on behalf of the
respondent:-
Mr Terry Smith (Manager of Departmental Team in Information Services Belfast ('ISB') and the claimant's line manager)
Mr John Halligan (acting Senior ISB Manager)
Mr Tom Orr (Head of ISB until November 2004)
Ms Louise Barry (Assistant Manager in Strategy Team)
Mr David Coulter (Manager in ISB)
Mrs Rose Crozier (Assistant General Manager in ISB for five years up to November 2004 and Head of ISB since November 2004)
Mrs Eileen Wilson (ISB Commercial Manager)
Ms Theresa McKenna (acting Senior Human Resource Adviser)
Ms Dympna Murtagh (Principal Solicitor, Belfast City Council)
"On 22.7.04, while I was on sick leave, Management had my desk cleared. My PC and personal belongings were moved to another desk. Management moved someone else to my desk, this was without my knowledge or consent.
This was the last in a series of incidents which demonstrated a sustained period of unfair treatment. This included an instance where, following the death of my mother, and while on sick leave, my manager insisted that I continue to work at home. As a consequence I had to work at home for a period of several weeks while on sick leave.
Other employees of a different religious affiliation are not treated like this and, as my manager is of a different religious affiliation, I believe that I have been discriminated against on the grounds of religious belief and/or political opinion."
"Question 6(b) What is the respondent's policy on contacting staff members on sick leave?
Reply ISB may contact staff members on sick leave in a variety of circumstances:-
(i) A member of staff with more than 20 days consecutive absence is referred to the Occupational Health Unit.
(ii) A member of staff who has indicated that they are suffering from stress is referred to the Occupational Health Unit.
(iii) If a member of staff is unable to attend to Occupational Health Unit they are offered a home visit.
(iv) A manager will visit the member of staff on sick leave if requested to do so by the member of staff.
Question 6(e) Please provide details of telephone calls/bills.
Reply Please indicate the basis on which documentation is sought and why it is believed to be relevant to the applicant's claim.
Question 6 (i) Please provide minutes of management meetings held in the last year together with action lists.
Reply Please indicate the relevance of the documentation which is sought and consideration will be given to its release.
Question 6 (j) Please provide minutes, notes, documentation or memoranda of meetings between Terry Smith and myself.
Reply Please specify the relevance of the documentation which is sought and consideration will be given to its release.
Question 6 (k) Please provide minutes, notes, documentation or memoranda of meetings between Terry Smith and Simon Bacon.
Reply Please specify the relevance of all such documentation sought.
Question 6 (n) Please forward copies of all discoverable documents which are or may become relevant to any issue in this case, including without prejudice to the generality of the foregoing:-
(i) My personnel file.
(ii) My job description.
(iii) My contract of employment.
(iv) All correspondence, notes, memoranda and/or other documentation relating to all complaints made by me to the respondent and to the investigation of those complaints.
(v) The respondent's disciplinary code and/or grievance procedure if any.
(vi) Any minutes, notes, documentation or memoranda of any disciplinary hearings against any employee pursuant to my complaints.
(vii) All documents which are relevant in any way to this matter including all documents upon which the respondents will seek to rely at any Fair Employment Tribunal hearing.
The respondent did not reply to the list of specific requests at 6 (n) seriatim but rather provided appendices comprising the claimant's personnel file, his job description together with the disciplinary/grievance procedures and concluded by stating:–
"All documents believed to be relevant have been furnished but if other documents are believed to be relevant please identify the documents and consideration will be given to whether or not they are relevant and therefore discoverable."
A course of correspondence ensued between the claimant and the Legal Services Department in which the claimant clarified the discovery sought and identified material that he had not been provided with.
February 2003 (ISB) – I presented a case to my manager, Terry Smith, that a specific project should be managed by me. Deborah Colville proceeded to mislead our customer in order to win the project for herself. I complained to Terry but he did nothing about it.
April 2003 (ISB) – While I was on sick leave, without my knowledge or consent, resources were moved from my project to Deborah Colville's project. This caused a major delay to my project. When I complained to Terry Smith, he refused to discuss it.
July 2003 (ISB) – Deborah Colville was appointed Assistant Manager but refused to assume the responsibilities of the previous Assistant Manager. In spite of my strong objections, Terry Smith insisted that I assume those responsibilities.
October 2003 (ISB) – Terry Smith refused to upgrade me unless I attempted to work at a higher level. In response, I created an opportunity whereby I was asked personally to deliver a presentation to committee. Terry took this opportunity away from me for no reason. When I complained he refused to discuss it.
December 2003 (my home) – While I was on sick leave, following the sudden death of my mother, Terry Smith contacted me at home. Although I was suffering from serious health problems, he insisted that I continue to work at home while on sick leave.
February 2004 (ISB) – Although Terry Smith was aware that I had been suffering from work-related stress he continued to put pressure on me to increase my workload. When I complained he did not give a satisfactory response.
May 2004 (ISB) – For no reason, Terry Smith removed me as project manager from an important project – an action which I knew would damage my reputation with management, staff and customers, and would be reflected in my next assessment.
July 2004 (my home) – In order that Terry Smith avoid a meeting with BCC Welfare Officer (to discuss his unfair treatment of me and in particular the instance where I worked at home while on sick leave), I was transferred out of Terry's team. This was in spite of my strong objections to such a move.
22 July 2004 (ISB) – Management had my desk cleared. My PC and personal belongings were moved to another desk. This was without my knowledge or consent. This was management's response to a report from the Occupational Health Physician (dated 20 July 2004) which stated that 'any potential for redeployment could well be counterproductive at this stage of Mr Wilkinson's recovery process'.
Ongoing – Terry Smith has refused to upgrade me. He has said that he sees no evidence that I am doing the things required by broad-banding. Yet the indications are that most of the time he has been unaware of what I do and how I do it. Not only is he not examining the evidence … he is ignoring the evidence … sometimes even when he has specifically requested it. In one case the evidence was destroyed.
No commencement date was provided by the claimant in relation to the ongoing complaint but the claimant's evidence and the chronology of events furnished by him gives December 2002 as the start date which was shortly after Mr Smith became the claimant's manager.
Thus the claimant's complaint of religious discrimination can be conveniently addressed by reference to the ten incidents set out above.
"On 19.10.2004 I made an application to the Fair Employment Tribunal. On 29.11.2004 I submitted my complaints to the internal grievance procedure and invoked a process which took seven months to complete. The determination of the grievance appeal was delivered on 24.6.2005 – the investigation had apparently found no evidence of unfair treatment. The investigation of my complaints has been entirely unprofessional. The conclusions drawn by the investigating officers appear perverse. On 25.8.2005 I became aware of the flagrant nature and scale of the unfair treatment when I was provided with documentation relating to my grievance. All three officers involved in the grievance appeal are Catholic. As the matters investigated in the grievance procedure process are the subject of an application to the Fair Employment Tribunal, I believe that I have been victimised."
Details of the second victimisation were set out in paragraph 9 of the claim form as follows:-
"I consider my latest staff appraisal to be unfair. I requested a review of the appraisal through the normal procedures and submitted a large amount of evidence in support of my case. I was threatened that if I proceed with my appeal some of my scores, already agreed with manager, will be reduced further. I believe that this is further evidence of victimisation. This incident happened on 27.4.2005."
Paragraph 9 concluded as follows:-
"I believe that victimisation has been going on up to 24.6.2005."
The claimant identified the officers involved in the grievance appeal as Rose Crozier, Eileen Wilson and Teresa McKenna. The claimant also enclosed copy of a letter of complaint about the grievance procedure dated 24 October 2005 addressed to Mrs Crozier.
The Fair Employment and Treatment (Northern Ireland) Order 1998
Article 3(1) of the Fair Employment and Treatment (Northern Ireland)Order 1998 defines discrimination as:-
(a) discrimination on the ground of religious belief or political opinion; or
(b) discrimination by way of victimisation.
Article 3(2) provides that a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if: -
(a) on either of these grounds he treats that other less favourably than he treats or would treat other persons.
Article 3(3) provides that a comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
Article 3(4) defines discrimination by way of victimisation in any circumstances relevant for the purposes of the Order as being less favourable treatment by one person ("A") of another ("B") in those circumstances and for a reason mentioned in paragraph (5) of the same Article.
In Article 3(5) the reasons are that:-
(a) B has:-
(i) brought proceedings against A or any other person under this Order; or
(ii) given evidence or information in connection with such proceedings brought by any person or any investigation under this Order; or
(iii) alleged that A or any other person has (whether or not the allegation so states) contravened this Order; or
(iv) otherwise done anything under or by reference to this Order in relation to A or any other person; or
(b) A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.
If a person does any act under Article 3(5)(a) or is known or suspected by A of having done any such act the Order confers on B a "protected status", who will enjoy the protection of the Order.
The Lord Chief Justice has set out the legal test for victimisation in straightforward terms in an unreported case, McNally-v-Limavady Borough Council, [2005] NICA 46. To paraphrase it the test for victimisation is threefold; the person alleged to be victimised must have protected status. Secondly, the person must have been treated less favourably than other persons in the same circumstances and, thirdly, the less favourable treatment must have occurred because the victimised person has committed a protected act under the Order.
Article 44 (as amended by Regulation 28 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 ) provides as follows:-
"(1) With a view to helping a person ("the person aggrieved") who considers that another person may have unlawfully discriminated against him or subjected him to unlawful harassment to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Department shall by regulations prescribe -
(a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and
(b) forms by which the respondent may if he so wishes reply to any questions.
(2) Where the person aggrieved questions the respondent (whether in accordance with regulations under paragraph (1) or not) -
(a) the question, and any reply by the respondent (whether in accordance with the regulations or not) shall, subject to the following provisions of this Article, be admissible as evidence in the proceedings; and
(b) if it appears to the court or the Tribunal that the respondent deliberately and without reasonable cause omitted to reply within a period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal, the court or the Tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
The amendment to Article 44(2)(b) came into operation on 10th December 2003, subject to the transitional provisions contained in Regulation 2, the material portion of which is as follows:-
"2. (3) The amendment made to Article 44(2)(b) of the Fair Employment and Treatment Order by regulation 28 shall not apply in the case of a question served on a respondent before 10th December 2003."
Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998, in so far as material, provides as follows:-
"(1) Subject to paragraph (5) that the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of –
(a) the end of the period of thee months beginning on the day on which the complainant first had knowledge of, or might reasonably be expected to have had knowledge, of the act complained of; or
(b) the end of the period of 6 months beginning on the day on which the act was done.
(5) A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(6) For the purposes of this Article –
(b) any act extending over a period shall be treated as done at the end of that period."
(32.1) Article 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 states:-
"63A(2) Where, on the hearing of a complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III; or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant;
the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act".
The Tribunal considered the guidance provided by the Court of Appeal in Igen -v- Wong [2005] IRLR 258 on the application of similar Regulations which also applies to cases brought under the Fair Employment and Treatment Order.
(i) Pursuant to Section 63A of the 1975 Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These facts are referred to below as "such facts".
(ii) If the claimant does not prove such facts he or she will fail.
(iii) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of {sex} discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(iv) In deciding whether the claimant proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from facts found by the Tribunal.
(v) It is important to note the word "could" in Section 63A(20). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead to the conclusion that there was an act of unlawful discrimination. At this stage the Tribunal is looking at the primary facts before it to see where inferences of secondary fact could be drawn from them.
(vi) In considering what inferences or conclusions can be drawn from the primary facts. The Tribunal must assume that there is no adequate explanation for those facts.
(vii) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.
(viii) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and, if so, take it into account in determining such facts pursuant to Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(ix) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(x) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(xi) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(xii) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(xiii) 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 discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.
The claimant is a Protestant and his date of birth is 29 May 1960. The claimant was at all material times employed by the respondent as a consultant in Information Services Belfast ('ISB'). Mr Smith is the ISB manager and as such is in charge of the ISB Departmental team. In this capacity he is responsible for the successful delivery of Information Systems/Technology projects to Council Departments. Mr Smith is a Roman Catholic and was the claimant's line manager.
Discrimination Complaint
of each incident.
Incident 1
February 2003 (ISB) – I presented a case to my manager, Terry Smith, that a specific project should be managed by me. Deborah Colville proceeded to mislead our customer in order to win the project for herself. I complained to Terry but he did nothing about it.
In February 2003, the departmental team were asked to make a recommendation as to how best to replace certain information systems. The claimant made a case to Mr Smith that a new system should be developed in-house as opposed to procuring a package from an outside supplier. Mr Smith decided that as there was merit in both options the user should be presented with both options rather being presented with a recommendation. Mr Smith asked Ms Colville, a Protestant, to present users with the outside package option while the claimant should deal with the in-house development. Mr Smith asked them to present all the relevant facts both positive and negative of their solution and not to criticise the other's proposal. The users ultimately opted for acquiring a package from an outside supplier. Notwithstanding Mr Orr's evidence that in general the Council would prefer computer package solutions rather than the usually more expensive bespoke software we are satisfied that Senior Management were disappointed that the contract had been lost to an external supplier.
The claimant complained to Mr Smith that Ms Colville had withheld information from users that supported the in-house option and thereby had deliberately misled the user in order to win the project for herself.
The claimant complained about this matter to Mr Smith in or around the time of these events. The claimant also approached one of the users and advised that opting for the outside package was a mistake and that he intended to develop a system for them in any case. When Mr Smith learned of this, he told the claimant that this was extremely unprofessional action which would jeopardise the team's credibility with the user, that he had shown poor judgement and that he had no authority to take on the development of a system that had not been commissioned by a user.
The claimant remained unhappy and raised this issue at a meeting with Mr Smith on 9 April 2004. The purpose of this meeting according to the claimant's time records was to discuss active projects and the claimant's next assessment under broad banding. The record of the meeting produced by the claimant reveals that the meeting concentrated on the claimant making a case for upgrading under the broad banding pay scheme and it would appear that the claimant took the opportunity to rehearse a list of grievances. The claimant's record indicates that Mr Smith did not respond to the specific items on the list which included his complaint about Ms Colville's behaviour.
At the behest of the Welfare Officer, a meeting was arranged on 25 June 2004 between the claimant and Mr Smith to discuss this complaint and others. Mr Smith invited Ms Colville to the meeting as she was his assistant manager. The claimant objected to Ms Colville attending the meeting and refused to discuss anything in her presence. A meeting however did take place later on the same day between Mr Smith and the claimant in the presence of Mr John Halligan (Mr Smith's manager). A number of matters were discussed at this meeting but the claimant did not reiterate his concerns about Ms Colville's behaviour.
April 2003 (ISB) – While I was on sick leave, without my knowledge or consent, resources were moved from my project to Deborah Colville's project. This caused a major delay to my project. When I complained to Terry Smith, he refused to discuss it.
At the beginning of 2003, the claimant was working on a project to develop a replacement computer system for the cemeteries section. Randal Armstrong was assigned to work with the claimant. The claimant encouraged Mr Armstrong to write the data conversion software for the project. Simon Bacon, a Protestant, was also involved in developing the application software. By 5 May 2004, the claimant had fully documented the software development requirements for the project and he estimated that development of the software would occupy Mr Armstrong and Mr Bacon for eight and at least twelve weeks respectively. On 21 May 2004, the claimant was diagnosed as suffering from general debility and this kept him off work for approximately one month. When he returned to work on 18 June 2004, he discovered that the project was well behind schedule and that Mr Armstrong had been taken off the project by Mr Smith and moved to Ms Colville's All-in-1 replacements project.
July 2003 (ISB) – Deborah Colville was appointed Assistant Manager but refused to assume the responsibilities of the previous Assistant Manager. In spite of my strong objections, Terry Smith insisted that I assume those responsibilities.
In July 2003, Ms Colville was promoted to Assistant Manager and Mr Smith asked the claimant to take full responsibility for the Crest project which had previously been the responsibility of Ms Colville's predecessor. Mr Smith considered the claimant to be the obvious choice to take on the management of the Crest project as it was a development project and would provide the claimant with an excellent opportunity to take on the management of a high profile and important project. Mr Smith was aware that the claimant was already working on the Cemeteries Project and Port Health but believed that he would be capable of taking on the Crest project as well. Mr Orr regarded this as a reasonable decision. It is clear that the claimant was unhappy with the decision because it resulted in delays in the Cemeteries project and we are satisfied that he objected strongly to it. Furthermore, we accept Mr Smith's evidence that the claimant maintained his objection by taking no part in the project other than attending meetings at which he made no contribution.
October 2003 (ISB) – Terry Smith refused to upgrade me unless I attempted to work at a higher level. In response, I created an opportunity whereby I was asked personally to deliver a presentation to committee. Terry took this opportunity away from me for no reason. When I complained he refused to discuss it.
On 7 October 2003, the claimant demonstrated the new Cemeteries system to Councillor Hartley and this resulted in Councillor Hartley asking the claimant to deliver a presentation on the new system to Committee. Both the claimant and Mr Smith regarded this as a good opportunity for the claimant to raise his profile. Mr Smith referred the matter to the Head of Service, Tom Orr, (a Protestant) because in accordance with the respondent's practice, presentations were normally delivered by senior members of staff. Mr Orr decided that a senior member of staff should deliver the presentation but that the claimant should be in attendance to assist. There was some dispute between the parties as to whether Mr Smith was to deliver the presentation with the claimant present or visa versa. In the event the claimant was on sick leave when the time came for the presentation to be delivered and a decision was made that the Senior Cemeteries Office Clerk, Maggie Tomlinson should deliver it. It was not surprising that Mr Smith did not make the presentation as he freely admitted that he was unfamiliar with the system. Ms Tomlinson was not a senior member of staff rather she was a Scale 6 which was seven grades lower than the claimant although Ms Tomlinson was however responsible for commissioning the system and therefore was familiar with it. The presentation took place on 13 January 2004. Mr Smith and Mr Bacon were in attendance and took part in the presentation. The text of Ms Tomlinson's presentation credited Mr Bacon with the development of the system but made no mention of the claimant.
The claimant alleged that he raised this matter with Mr Smith in the context of a review meeting on 5 February 2004. The claimant's record of this meeting does not contain any specific reference to this aspect of the claimant's complaint. It is possible however that the claimant made a passing reference to this matter which is not recorded.
December 2003 (my home) – While I was on sick leave, following the sudden death of my mother, Terry Smith contacted me at home. Although I was suffering from serious health problems, he insisted that I continue to work at home while on sick leave.
On 31 October 2003, the claimant's mother died suddenly. As a result the claimant became very ill and was off work until 3 February 2004.
Mr Bacon worked on the cemeteries project with the claimant and was responsible for the development of the software. At some time after the claimant went off sick, Mr Bacon approached Mr Smith about a number of major issues which had arisen in the project and were causing him some concern. Mr Smith suggested that Mr Bacon should contact the claimant and Mr Bacon agreed to do so.
In fact what occurred was that on 8 December 2003 Mr Smith telephoned the claimant at home in Mr Bacon's presence and asked him to provide advice and assistance to Mr Bacon. There was some dispute between the parties as to precisely what was said during the telephone conversation. According to Mr Bacon the main purpose of the call was to discuss the project and ask the claimant for assistance. Other than this, Mr Bacon's recollection of what was said was hazy.
It was common case that Mr Smith introduced the topic by asking the claimant if he minded talking about work and also that the claimant's reply was that he was happy to do so. Mr Smith went on to suggest that the user was keen to continue with the implementation of the system and this elicited a response from the claimant to the effect that he did not believe that this would be possible and that Mr Bacon would not be able to do it as he would not be aware of the issues that would need to be sorted out to ensure a successful implementation. It is at this point that the accounts of the telephone conversation diverge significantly. According to the claimant, Mr Smith stated that he was not putting the claimant under any pressure whatsoever to come back to work but that he would have to be available on the telephone to give help and advice. Mr Smith could not recall saying that he was not putting any pressure on the claimant to return to work but this was the message that he intended to convey.
Mr Smith denied telling the claimant that he would have to be available on the telephone to give help and advice and stated that the claimant offered to help in whatever way he could. The claimant's evidence was that he indicated that it would be difficult for him to do that sort of work from home but that he might be prepared to do some work in the office in the afternoons if permitted and that when Mr Smith made no response the call ended. Mr Smith recalled the claimant saying that he would want to come in at the weekend to pick up some documents relating to the project and that he readily agreed. Mr Smith took this as further confirmation that the claimant was happy to help.
In our view, it is clear is that the claimant did feel under pressure to provide assistance and that his knowledge that Mr Smith was responsible for his performance appraisal under the broadbanding pay scheme added to the pressure.
Shortly after the conversation, Mr Smith gave Mr Bacon the claimant's telephone number and advised him to contact the claimant for assistance. He told Mr Bacon that the claimant was happy enough for him to call. Mr Bacon took up the invitation and contacted the claimant. They spoke about five or six times over a two or three week period and also exchanged text messages. Most of the calls were fairly short but one in which the claimant listed approximately a dozen issues to cover was quite lengthy. Mr Bacon also told the claimant about a particular problem that had arisen with regard to the length of time taken to record single interments on the system. The claimant eventually found a solution as did Mr Bacon after a great deal of time and effort. We accept that the claimant must have given considerable thought to the project in between telephone calls judging by the amount of advice and direction that he provided to Mr Bacon.
The claimant also spoke to Mr Smith on the telephone and advised him as to the amount of work that needed to be done and the dangers of proceeding without him. He told Mr Smith that there were a dozen outstanding issues on the project that Mr Bacon had not been aware of. Some were major issues and some were minor but that even the minor issues would cause the implementation of the system to fail if not addressed. The claimant believed that this information would have prompted Mr Smith to postpone implementation until the claimant's return to work and to withdraw his insistence that the claimant work at home. When Mr Smith did not respond, the claimant concluded that he had no choice but to assist Mr Bacon because the respondent was in dire need of his expertise and he reluctantly agreed to do the work from home. Mr Smith did not recall this or any further telephone calls with the claimant. We are satisfied that this call did take place but that rather than supporting the claimant's contention that Mr Smith insisted that he worked at home, it served to reinforce Mr Smith's belief that the claimant was willing to provide assistance.
There was no great urgency to complete the project given that the customer, Maggie Tomlinson was aware that the claimant was off sick and accepted that there would be a delay in implementation.
What seems clear is that Mr Smith wanted the claimant to assist Mr Bacon with the implementation of the project and the claimant was at the very least willing to do some work if he was permitted to come into the office in the afternoons. The net result was that Mr Smith believed that he had secured the claimant's agreement in principle to provide assistance to Mr Bacon. We are satisfied that Mr Smith gave Mr Bacon the claimant's telephone number shortly after their telephone conversation. Mr Smith advised him to contact the claimant for assistance and told him that the claimant was happy enough for him do so. We do not believe that Mr Smith would have done so had he believed that the claimant was unwilling to assist. It is also clear that the claimant did not rebuff Mr Bacon when he first telephoned him on 11 December 2003 to obtain assistance with the project. On the contrary, it is abundantly clear that once this initial contact was made by Mr Bacon, the claimant willingly provided assistance.
There can be no doubt that the claimant worked at home during this period and the fact that that both Mr Smith and Mr Halligan approached Eileen Wilson to enquire if he could be paid for this work reinforces its status. It also supports the view that the claimant was a willing and enthusiastic participant. Having carefully weighed up all the evidence in relation to this issue, we are satisfied that Mr Smith undoubtedly persuaded the claimant to make himself available to provide telephone assistance to Mr Bacon and on any interpretation the contact with Mr Bacon constituted working at home.
February 2004 (ISB) – Although Terry Smith was aware that I had been suffering from work-related stress he continued to put pressure on me to increase my workload. When I complained he did not give a satisfactory response.
In mid-January 2004 the claimant informed Mr Smith that he planned to return to work at the start of February 2004. Mr Smith advised him that the revised date for the implementation of the cemeteries project was 16 February 2004 and that "we just have to make this next date". As a result the claimant realised that if he did not return to work he would have to do a lot more work at home.
On 23 January 2004, Dr Hamilton advised that the claimant's return to work should be on a rehabilitative basis initially. A rehabilitative return to work was a relatively new concept and Mr Smith therefore sought advice from ISB Commercial Support and was advised that as it was close to end of the leave year and the claimant had a large amount of unused leave it would be reasonable to ask him to make use of that for his rehabilitative return to work. Mr Smith therefore advised the claimant that if he wished to reduce his working week he should use annual leave. When the claimant objected, Mr Smith referred the matter to Human Resources which advised against using annual leave for this purpose. Mr Smith agreed to facilitate the claimant's rehabilitative return to work in February 2004 on the basis that he would work a three day week for the first four weeks. When the claimant returned to work on 3 February 2004 it was agreed with Mr Smith that he would work exclusively on the cemeteries project for the first three to four weeks.
The claimant alleged that Mr Smith put pressure on him to work on the Port Health project as well as the cemeteries project. Mr Smith's version was that at a review meeting on 5 February 2004 he asked the claimant about the status of the Port Health project. We have read the claimant's own record of this meeting and we are unable to detect any sign of pressure being exerted by Mr Smith. As appears from the claimant's record, Mr Smith simply asked the claimant what he had done on the Port Health project and the claimant replied that he hadn't even looked at it. The discussion then moved on to the next broad banding assessment.
The claimant claimed that he complained about Mr Smith's treatment of him at a further review meeting with Mr Smith on 12 February 2004 and that in response, Mr Smith asked him to increase his working week. Mr Smith denied doing so. Again, the claimant's written record is of assistance and indicates that Mr Smith simply enquired whether the claimant could manage four days a week yet and the claimant replied in the negative.
May 2004 (ISB) – For no reason, Terry Smith removed me as project manager from an important project – an action which I knew would damage my reputation with management, staff and customers, and would be reflected in my next assessment
In April 2004, Mr Smith asked the claimant to take on the management of the Crest 2 project. Mr Smith considered that it was a good opportunity for the claimant to work at management level. The claimant further alleged that his subsequent removal from the Crest project deprived him of an opportunity to progress on the broad–banding pay scheme. The claimant alleged that the blame for the problems with the project was thrust on to him and that this would not have happened to a Catholic member of the team. In particular, he sought to compare himself with Marie McCrory.
It was common case that the project had been under way for some time before the claimant became involved. Mr Smith informed the claimant that his first task would be to review and finalise the draft project plan. Mr Smith stressed that the delivery timescales would have to be acceptable to the user.
On 26 April 2004, Mr Smith advised the claimant that he was to attend a meeting with the customers about the project on 28 April 2004. The claimant had a personal injury claim against the respondent which was listed for hearing in the High Court on 27 April 2004. The claimant suggested in his evidence that Mr Smith was trying to disrupt the claimant's preparation for the hearing by giving him only two days' notice of the meeting. This allegation strikes us as far fetched. We do not believe that the High Court proceedings had any bearing on the timing of the meeting or that Mr Smith's behaviour was influenced by his knowledge of the proceedings. We have no reason to disbelieve Mr Smith's evidence that two days notice was normal and the allegation which was first made by the claimant when he was giving his evidence appears to be something of an afterthought on his part. Even if Mr Smith was aware of the proximity of the hearing, which he denied, we do not regard this allegation as credible.
On 28 April 2004, the claimant and Mr Smith attended a meeting with the Crest customers. A project start date of 10 May 2004 was agreed and the customers requested a further meeting on 12 May 2004 to review and agree the final project plan.
As the project start date approached, senior members of staff expressed concerns about the plan. From 6 May 2004 there were a series of meetings to discuss the project. Two very experienced members of the ISB team, David Lockhart and Helena Cameron were involved in these discussions as was the user, Mr Jim McKeown of the Cleansing Department. Both Mr Smith and the claimant were worried that they were all expressing concern about a fundamental aspect of the project.
On 11 May 2004, Mr Wright sent Mr Smith an email alleging that the claimant had not read the system proposal. The subject was stated to be "stage 2 meeting today" and read as follows:-
"Ian [Wilkinson] mentioned something about a meeting today at 2.30. I was planning on taking a ½ day today and he was explicit in his views that I had no need to sit in any way. I can't hang around all day waiting for Ian to speak to you to determine if I should come or not. Good luck with the meeting. I'm not sure what or how it can proceed if Ian hasn't even read the proposals and has barely spoken about the project plan. I only hope you are more up to speed. Based on previous experience, Jim will not agree to anything you discuss today until he has spoken to Michael.
Hopefully someone can inform me what is going on with regard to stage 2 (its meant to have started yesterday) but in the meantime I've plenty to do for Tommy/Kathy & Andy Harrison.
I've a doctor's appointment so I may be delayed in the morning.
I might sound pissed off. It's not totally to do with this phase of the project (pressures of exams and all that) but it would be really nice if someone from our team knew what was going on."
A board meeting was due to take place on the afternoon of 12 May 2004 to ratify the project plan. At approximately 8.45 am, Mr Smith received a revised version of the project plan from the claimant by email. Mr Smith told the claimant that he was reasonably happy with it and restated that the timescales would have to be satisfactory to the user. He noted that the projected final completion date was the end of December 2004. Mr Smith told the claimant to make sure that Darren Wright, Paul Patterson and Helena Cameron were aware of the final plan and also to offer to meet with Mr McKeown in advance of the Board meeting to go over the plan with him and gain his full commitment.
The claimant asked Mr Wright and Mr Patterson to confirm the estimates contained in the project plan. As a result, both made changes. The revised plan indicated that Mr Wright's activities would not finish until mid April 2005 and that Mr Patterson's would not finish until October 2004.
Mr Smith received a revised plan from the claimant by email at 1.30 pm with the completion date extended to the end of March 2005. Mr Smith immediately sought an explanation from the claimant who advised that he had revised the estimate as a result of his discussion with Mr Wright and Mr Patterson. Mr Smith then spoke to Mr Wright who confirmed that he had asked for additional tasks to be built into the plan and accepted that he should have volunteered this information earlier. Mr Smith did not believe that this estimate would be acceptable to the user and was concerned that the ISB would be made to look incompetent. Although Mr Smith accepted that the claimant was not responsible for the original estimates, he felt that the claimant lacked understanding of the awkward position that they were in with the customers.
At 2.30 pm the claimant attended a meeting with Mr Smith and the Crest customers. The revised timescales proved unacceptable to the customers but they did not make a big issue of it and ultimately completion in November 2004 was agreed. After the meeting Mr Smith discussed the matter with the claimant and asked him to produce a new plan with a completion date of 30 November 2004. Mr Smith then met with Mr Wright who went home immediately after this meeting. The claimant was therefore unable to speak to Mr Wright but did take the opportunity to discuss the matter with Mr Patterson.
Mr Smith considered overnight whether or not to retain the claimant as project manager. He felt that the claimant had not acted appropriately but would have considered keeping him on if he accepted that he was wrong Mr Smith considered that the system proposal was a very important document which the claimant should have read at an early stage. Mr Smith was therefore not pleased to learn that he had not read it. It was the only factor that that Mr Smith later referred to in a grievance interview where this subject was discussed and it was therefore clearly to the forefront of Mr Smith's mind in his consideration of whether to remove the claimant from the project. To Mr Smith, it demonstrated that the claimant was not capable of managing the project.
They had a further discussion the next day. The claimant advised that since the meeting, he had spoken to Mr Patterson to see if the estimates for his module could be revised. Mr Smith considered that it was Mr Wright's module that was critical in terms of the delivery date and challenged the claimant as to why he had not spoken to him. Mr Smith accepted the claimant's explanation was that Mr Wright had left the office immediately after the meeting with Mr Smith and that therefore the claimant was unable to speak to him.
Mr Smith decided however to remove the claimant from the Crest project. Mr Smith told the claimant that he had demonstrated poor judgement, failed to consult properly and lacked knowledge of the project system. The claimant responded that he had not had time to read the proposal and had been busy working on the MAPS system.
According to Mr Smith, the reasons for the claimant's removal were a lack of commitment, failure to review and finalise the estimates until the last minute creating the appearance of ineptitude in project planning and failure to read the system proposal. The claimant's behaviour provided further evidence of poor project and customer management and the same uncooperative attitude as demonstrated in Incident 3. In Mr Smith's opinion, the presence of an effective manager was crucial in such an important project and ISB's credibility was at stake and this left Mr Smith with no alternative.
The claimant contended that the allegation contained in Mr Wright's email was false and that Mr Smith's belief that he had not read the system proposal was unfounded. Mr Smith denied relying on it to support his decision but rather relied in part upon the claimant's own admission that he had not read it. According to Mr Smith, the email did no more than alert him to the possibility that the claimant had not read the system proposal. The claimant, in his evidence to the Tribunal, did not accept that he had not read the system proposal but rather that he had not had time to study it in detail. According to the claimant's timesheet for 26 April 2004, he spent five hours "gathering information about the project plan, requirements analysis, system proposal etc". This may or may not be precisely the same as actually reading the system proposal. It was not suggested to the claimant that this entry was concocted and based on this together the claimant's evidence that he did read the proposal, we are satisfied that he did read the system proposal and that Mr Smith's belief that he did not was erroneous and no doubt influenced by Mr Wright's email. Mr Smith's evidence does however suggest that the project was not managed well by the claimant.
The claimant went on to claim that he felt that he was the victim of a personal vendetta and that he wished to take a grievance case against Mr Smith. The claimant asked about the procedure and Mr Smith said that he would get back to him about it which he did a short time later. Shortly afterwards, the claimant telephoned Mr Smith and told him that he could not stay in the office and was leaving. Mr Smith asked if he was taking the rest of the day off sick and the claimant replied that was going to see the Welfare Officer.
The claimant also complained that Mr Smith without reason cancelled a meeting that he and the claimant were due to attend later that day with Fiona Holdsworth about the Street Trees project. As a result these events the claimant went off on sick leave and did not return to work until 29 November 2004. This cancellation of this meeting did not feature in the claimant's claim and we do not believe that it has any bearing on the claimant's case.
July 2004 (my home) – In order that Terry Smith avoid a meeting with BCC Welfare Officer (to discuss his unfair treatment of me and in particular the instance where I worked at home while on sick leave), I was transferred out of Terry' s team. This was in spite of my strong objections to such a move.
In May 2004, the Head of Service, Mr Orr, decided to review each team's current programme of work, their anticipated new work over the next six to twelve months and their resource utilisation. This involved reviewing the workload of each team to ensure that operational requirements were being addressed. The review identified staff who could be more effectively deployed including the claimant. Staff were moved to meet the organisational needs and to afford employees an opportunity for personal development. The review process involved Mr Halligan engaging in discussions with each manager and reporting back to Mr Orr. Mr Orr then informed the management team of his proposed changes which were agreed after a short period to allow comment and consultation.
As a result of the review, it was decided that a number of staff would be re-allocated to meet the business needs of the service. The claimant was one of twelve staff affected by this decision. The outstanding work in the claimant's team was not considered to be of sufficient difficulty or complexity to merit a consultant at the claimant's level. It was therefore decided to move him to the External Team which had a requirement for experienced consultants. The decisions on reallocation of staff were made by early June 2004 before the various phone calls and meetings with the claimant in the second half of June.
On 14 June 2004, the claimant telephoned Mrs Crozier to inform her of the serious conflict between himself and Mr Smith. Mrs Crozier asked the claimant to meet with Mr Halligan in advance of his return to work. The claimant did so on 16 June 2004 but Mr Halligan was unable to provide a resolution and suggested that the claimant met with Mr Smith. The Welfare Officer had previously made a similar suggestion. Mr Smith had also asked the claimant to see the Occupational Health doctor and he did so on 25 June 2004. Immediately after seeing the doctor, the claimant attended a meeting with Mr Smith about his complaints. Mr Smith was only prepared to discuss matters with the claimant with a third party present namely Ms Colville, but the claimant refused to have any discussion in her presence and she left the meeting. The claimant asked Mr Smith to inform Human Resources that he had been working on the cemeteries project in December 2003 and January 2004 so that he would avoid going onto half pay. Mr Smith said that he would consider it.
The claimant came to see Mr Halligan on 25 June 2004 following a meeting with Mr Smith. Mr Smith joined them. The claimant told Mr Halligan that he was going to arrange a further meeting with the Welfare Officer when Mr Smith would have to answer his complaints. A rehabilitative return to work was also discussed. Mr Halligan agreed to a rehabilitative return but Mr Smith objected. Mr Halligan was aware of the claimant's impending transfer to the External Team but did not inform him of the move at this meeting because he was very agitated. There was also some discussion about the amount of time that the claimant spent working on the cemeteries system while he was on sick leave. Mr Halligan understood that the time spent by the claimant working on the cemeteries system between 1 April 2003 and 31 March 2004 amounted to the equivalent of five weeks.
On 1 July 2004, the claimant telephoned Mr Smith and told him that he intended to return to work on 14 July and it was agreed that Mr Smith would arrange a meeting with the Welfare Officer on 14 July.
On 2 July 2004 Mr Halligan telephoned the claimant at home and told him that he was being transferred out of the Departmental team and explained the reasons for it. Mr Halligan told the claimant that he should cancel his meeting with Mr Smith. As the claimant had indicated that he would be back at work in mid July 2004, Mr Halligan decided not to implement the move until that time. The claimant alleged that he told Mr Halligan that he objected to the move and that he would prefer to stay in the Departmental team. Mr Halligan did not deny that the claimant raised an objection to the move but disputed the claimant's assertion that he told him that he would prefer to stay in the Departmental team. As the claimant had indicated that he would be back at work in mid July 2004, Mr Halligan decided not to implement the move until that time.
The claimant contended that Mr Smith attempted to persuade him to drop his complaints in exchange for being allowed to return to the Departmental team. In this regard, the claimant placed reliance on a statement made by Mr Smith in the course of the claimant's grievance appeal. The material portion reads as follows:-
Question "So he could've come back to the team?"
Mr Smith – "If he had been prepared to put it behind him, of course. But I would have wanted to look at his project management skills."
Mr Smith maintained that the transfer was on the basis of business needs and that the reference to putting it behind him meant if he put the tensions that existed between them behind him.
Mr Smith denied making any reference to the claimant withdrawing his complaints and denied that the claimant was transferred in order to avoid addressing his complaints
We are satisfied that Mr Halligan was responsible for staff moves. It is however clear that Mr Smith did not object to the decision to transfer the claimant. The claimant was the only consultant in Mr Smith's team in June 2004. The work that consultants were expected to do was being done by analysts and he would not have refused a consultant if offered one. Mr Smith was not aware of any formal ISB policy about staff transfers but stated that resources are reallocated from time to time to keep up with the changing needs of the business.
When the letter from Dr Hamilton was received, Mr Halligan noted that it referred to the redeployment of the claimant. Mr Orr asked Mr Halligan to clarify this with the doctor and according to Mr Halligan he informed Dr Hamilton that the move was not redeployment and merely involved a move across an open plan office to carry out the same type of work and that there was the prospect of there being no work of substance for the claimant to do on his return to work to his existing team. As the doctor's letter also indicated that the claimant would probably be absent from work for at least another four weeks, Mr Halligan decided to proceed with the move.
In the event, the claimant did not return to work until the end of November 2004. On 24 November 2004, the claimant attended a pre-return to work meeting with Mr Halligan and Mr Lockhart. The claimant reiterated his objections to his transfer in advance of his return to work. The claimant started the discussion by stating that he was still not happy with his move. The reasons for the move were explained and the discussion moved on to a phased return to work. The discussion was amicable and the claimant expressed his thanks and appeared happy with all that was being arranged.
On 1 December 2004, Mr Halligan met with the claimant to discuss two documents that he had submitted regarding grievances. Mr Halligan was surprised by one of the documents in which the claimant objected to his move. The claimant told him not to worry about it and that he had to write it to protect his interests; that he told David Lockhart that he was happy to be in his team but felt that he had to retract what he said in case he was questioned about it. Mr Halligan asked Mr Lockhart to keep an eye on the claimant who did so and reported back that everything was fine. Mr Halligan therefore believed that the claimant was happy working in the External Team notwithstanding his objection to the move.
22 July 2004 (ISB) – Management had my desk cleared. My PC and personal belongings were moved to another desk. This was without my knowledge or consent. This was management's response to a report from the Occupational Health Physician (dated 20 July 2004) which stated that 'any potential for redeployment could well be counterproductive at this stage of Mr Wilkinson's recovery process'.
On 20 July 2004, the claimant attended with the Dr Hamilton. Dr Hamilton wrote to Mr Smith on the same day in the following terms:-
"I met with Mr Wilkinson today. I am glad to report that Mr Wilkinson's condition is improving. He has recently been to see a specialist who has prescribed some new medication which is clearly helping. If his improvement continues I feel that Mr Wilkinson could consider returning to work within the next four weeks and that when he does return it should be on a rehabilitative basis. Also I believe that any potential for redeployment could well be counter-productive in this stage of Mr Wilkinson's recovery process. I believe that Mr Wilkinson is going to make contact with yourselves in the near future to try and set up a meeting to discuss the finer issues of the above suggestions. Provided he does return to work as planned I would like to review in approximately eight weeks time towards the end of his rehabilitative return to work. I would of course be happy to see him sooner than this if required."
Mr Smith noted Dr Hamilton's comments about the potential for redeployment being counter-productive and passed the letter on to Business Support. The claimant also advised Mr Halligan of the doctor's concerns on 21 July 2004.
Mr Smith did not know why the doctor had referred to redeployment as it was nothing to do with him. Rather, it was a matter between the doctor and Mr Halligan. Mr Smith would not have been keen to transfer the claimant if it was contrary to medical advice but it was not his decision. Mr Smith discussed the report with Eileen Wilson to ensure that the normal return to work management procedures were being followed.
Mr Orr asked Mr Halligan to clarify the reference to redeployment with Dr Hamilton. Mr Halligan testified that he spoke to Dr Hamilton and informed him that the move did not constitute redeployment and merely involved a move across an open plan office to carry out the same type of work. According to Mr Halligan, he further advised Dr Hamilton that there might not be any work of substance for the claimant on his return to work to his existing team.
Mr Halligan gave evidence that in response to the doctor's letter, he spoke to the doctor and explained that the claimant was not being redeployed but was merely moving across an open plan office to another team for which he had previously worked happily for a number of years. Mr Halligan decided to proceed with the move after a sick line was received dated 20 July 2004 indicating that that the claimant would be off for at least another four weeks.
Dr Hamilton gave unequivocal evidence to the effect that he believed that any move whatsoever could be counterproductive. Dr Hamilton felt that redeployment covered a change of job. Dr Hamilton was concerned about a deterioration in the claimant's state of health and believed that redeployment either in the claimant's own office or in another office would be counter-productive. Dr Hamilton was unable to recall any consultation or case conference with Mr Halligan on this topic and would have recorded it if he had one. We have been provided with all relevant medical notes and no such record appears. We prefer Dr Hamilton's evidence on this issue to Mr Halligan's and therefore conclude that no such meeting occurred.
The move proceeded and it is common case that the claimant's computer and personal belongings were cleared from his desk which was allocated to another member of staff, Dee McCullough. There was some controversy as to precisely when the desk was cleared. Mr Halligan could not specifically recall when the claimant's pedestal and personal computer were moved but believed that it was one of the last moves and took place around the end of July or early August. The respondent's Notice of Appearance contended that the move was prompted by the receipt of a sick line at the beginning of August but we are satisfied that the desk was cleared on 22 July 2004 as this is consistent with both the claimant's evidence and Tom Wilkinson's evidence. It is also consistent with Ms Murtagh's letter of 10 November 2005 which refers to the move happening at the end of July 2004 and with Mr Halligan's belief that it was one of the last moves and took place around the end of July or early August.
The claimant contended that the desk clearance was management's response to the doctor's concerns. It is not clear who decided to clear the claimant's desk, but it was clearly a direct consequence of Mr Halligan's decision to move the claimant.
Ongoing – Terry Smith has refused to upgrade me. He has said that he sees no evidence that I am doing the things required by broad-banding. Yet the indications are that most of the time he has been unaware of what I do and how I do it. Not only is he not examining the evidence… he is ignoring the evidence… sometimes even when he has specifically requested it. In one case the evidence was destroyed.
The broad-banding assessment process is used to assess staff across a range of skills and competencies. To ensure consistency, no less than two people are involved in carrying out the assessment. In the claimant's case, Mr Smith's then assistant manager, Tommy Barr, was involved. According to Mr Smith, the claimant had certain areas of weakness which needed to be addressed to enable him to function more effectively as a senior consultant.
In December 2002, Mr Smith asked the claimant for a list of his achievements so that these could be taken into account when he was doing the assessment and promised to have a meeting with him. This was standard procedure. Mr Smith did recall the claimant demanding to know how he would do on the broad banding pay scheme which he regarded as a bit out of line. The claimant provided Mr Smith with a written record of his list of achievements plus a floppy disk in December 2002. Mr Smith believed that he examined all of the documents that the claimant provided to him but could not recall this document. However, having had his attention directed to the material in question, Mr Smith conceded that that he had confused the December 2002 document with a document dated March 2004 which was much more relevant to broad banding assessment. Mr Smith maintained that he would have made use of the information supplied in December 2002 and we are satisfied that he did so.
In any event, the promised meeting never materialised and when the claimant sought the return of his floppy disk, he was informed that that it had been thrown it in the bin. Not surprisingly, Mr Smith inferred that the claimant was alleging that he had thrown it in the bin and in his evidence to the Tribunal, Mr Smith was at pains to deny disposing of it in this fashion. During Mr Smith's cross-examination, the claimant indicated that he was not suggesting that Mr Smith had thrown the floppy disk in the bin but rather that his then Assistant Manager, Mr Barr, a co-religionist of the claimant, was responsible. It transpired that the claimant asked Mr Barr if he could give the floppy disk back to him and Mr Barr told him that he had thrown it in the bin with other floppy disks when he was clearing his desk. No ill intent was attributed to Mr Barr by the claimant.
In October 2003, the claimant gave Mr Smith documentation on the cemeteries project which he believed also demonstrated some of his achievements. There is no evidence to suggest that that Mr Smith did not read this material.
On 1 April 2004, the claimant submitted a document in support of his case for upgrading. According to Mr Smith the claimant supplied information by email which he retained and took into account in making his assessment. On 9 April 2004, he met with Mr Smith to review the document. The claimant told Mr Smith that he felt unfairly treated. The claimant also asked Mr Smith about the cemeteries project documentation. Mr Smith said that he had not read it and did not know where it was. The claimant gave him a further copy to read and suggested that it provided evidence of his achievements and Mr Smith responded that it looked like a description of a project or a project mandate.
On 16 June 2004, the claimant raised a complaint about broad banding assessment with Mr Halligan who was unable to assist and suggested that the claimant meet with Mr Smith. A meeting was arranged on 25 June 2004 between the claimant and Mr Smith. Ms Colville was also in attendance and as we have already found, Mr Smith was not prepared to discuss anything with the claimant unless a third party namely, Ms Colville, was present. As a result the meeting dissolved into a stalemate. A further meeting took place in Mr Halligan's office shortly afterwards involving Mr Halligan, Mr Smith and the claimant. There was a discussion about the amount of time spent by the claimant working on the cemeteries project while he was on sick leave but no discussion about the broad-banding assessment process.
The claimant invoked the grievance procedure on his return to work on 29 November 2004. On 3 December 2004 he claimant sent a memo to Eileen Wilson, the Commercial Manager of ISB, in which he confirmed that his grievance was firstly against Mr Smith in respect of unfair treatment and secondly against ISB management in respect of his transfer. There was no suggestion in the memo that the grievance was about religion and if there had been Mrs Wilson would have dealt with the issue under the Council's Equal Opportunities Policy and Procedures. Mrs Wilson appointed Mr Coulter to investigate the grievance. Mr Coulter's perceived religious affiliation is Protestant. Mr Coulter undertook the investigation on the basis of the 3 December 2004 memo. Mr Coulter interviewed the claimant, Mr Smith, Mr Halligan and Mr Bacon.
On 25 January 2005, the claimant received Mr Coulter's letter of determination. Mr Coulter indicated that whilst there was evidence of conflict between the claimant and Mr Smith, there was no clear evidence of the claimant being treated differently to anyone else in the team. It was also clear to Mr Coulter that the transfer was as a result of a review of resources by ISB. Mr Coulter was satisfied that the claimant volunteered to assist with the cemeteries project while on sick leave. He considered that it would have been reasonable to consider transferring the claimant to another team due to the conflict but that such action had been overtaken by events. He advised that it would be useful if the management team reviewed procedures for dealing with conflict. Finally, he advised the claimant of his right of appeal.
The claimant requested copies of the minutes of his interviews and these were subsequently provided to him. The claimant believed that the minutes were inaccurate and met with Mr Coulter on 28 January 2005 in order to agree the minutes. At the close of the meeting, the claimant asked Mr Coulter if he had heard anything that would make him change his letter of determination and he replied in the negative. Mr Coulter also confirmed that he was aware that the claimant had previously submitted an application to the Fair Employment Tribunal. On the same day the claimant wrote to Mrs Crozier seeking to appeal against Mr Coulter's decision and raising further points about the grievance procedure. Mrs Crozier's religion is Catholic and she is married to a Protestant. Mrs Crozier had known the claimant since she started work at the council in 1981.
On 8 February 2005, the claimant wrote to Mrs Crozier setting out the reasons why he disagreed with Mr Coulter's decision. Because Mrs Crozier was unclear about the grounds of the appeal, she met with the claimant and Tom Wilkinson on 14 February 2005. The latter complained that the decision letter was inadequate as it did not explain the reason for the decision. Mrs Crozier also sought advice from Human Resources. On this basis she decided that the appeal should be adjourned to enable clarification to be obtained of the grounds of Mr Coulter's decision. The claimant agreed with this course of action. Mrs Crozier wrote to the claimant on 4 March 2005. She concurred that the decision letter was inadequate and advised that she had asked Mr Coulter to provide a fresh letter of decision and noted that it had been agreed that the grievance would be recast to focus on two main episodes.
On 9 March 2005 the claimant received Mr Coulter's second letter of determination. Mr Coulter maintained his original decision but provided more detailed information and addressed the claimant's removal from the Crest project.
The claimant remained dissatisfied with the decision and wrote to Ms Crozier on 10 March 2005 outlining the grounds of his appeal which drew attention to flaws in Mr Coulter's analysis and reasoning. Mrs Crozier asked Mrs Wilson to investigate the matter. To provide independent assurance, Theresa McKenna was also asked to assist Mrs Wilson with the investigation. Mrs McKenna has been a member of the Human Resources team since 1994 and has been acting Senior Human Resources Manager since November 2004. The investigation centred on the complaint about Mr Smith asking the claimant to work while on sick leave and moving him to another team. Mrs Wilson and Mrs McKenna met with the claimant on 21 April 2005 to clarify the issues that were to be the subject of their investigation.
In the course of their investigation they interviewed the claimant, Mr Smith, Mr Bacon and Mr Halligan. Mr Smith was interviewed on 22 April 2005, Mr Bacon on 22 April 2005 and Mr Halligan on 29 April 2005.
On 15 June 2005, the investigating officers submitted their findings to Mrs Crozier. They concluded that there was no evidence to support the allegation that Mr Smith insisted on the claimant working at home while on sick leave or that he was treated any differently than any other member of staff who had been moved while on sick leave. They noted that the claimant made no allegation of religious discrimination during the course of the investigation and did not seek to compare his treatment with other members of staff.
On 20 June 2005, the claimant wrote to Mrs Crozier complaining about the delay. Mrs Crozier considered that the time taken to complete the report was reasonable and was not an attempt to victimise the claimant. Mrs Crozier met with the claimant and his brother on 24 June 2005 and went through the report with them. The report concluded that there was no evidence to support the allegation that Mr Smith insisted that the claimant work while on sick leave; that the claimant had been treated no differently from other staff who had been moved while on sick leave and that there was no evidence to suggest that the transfer was other than for business needs and that it was in line with management practices. The claimant disputed that the investigation had been thorough and the determination fair. The claimant sought to raise the issue of his broad banding appeal but Mrs Crozier advised him that it was outside the scope of the grievance appeal. Mrs Crozier advised the claimant that a letter setting out the decision would be provided by close of business on 28 June. Mrs Crozier was ultimately responsible for the decision on appeal having taken into account the investigators' report and the points raised by the claimant at the meeting on 24 June. Mrs Crozier was aware of the claimant's Fair Employment Tribunal claim at the time of the appeal but denied that it affected her treatment of him and denied victimisation.
The report was duly provided to the claimant on 28 June 2005. The claimant believed that the report contained several misleading and false statements and he brought these to Ms Crozier's attention by letter dated 21 July 2005. In this letter, the claimant drew attention to the investigating officers' finding that the claimant was transferred for business reasons and contrasted this with Mr Smith's statement in his interview on 22 April 2005 that the claimant was transferred because he would not withdraw his complaints. The claimant also criticised the failure to make a finding that he had undertaken work at home. He also found inaccuracies in relation to the nature and duration of a number of telephone calls. The claimant also considered it unfair that he was not permitted to interview Mr Bacon. Because of this failing, the claimant did not become aware that Mr Bacon was present when Mr Smith telephoned the claimant at home and could therefore provide important evidence about the telephone call.
On 18 August 2005, the claimant was provided with the minutes of the investigating officers' meetings with other staff. The minutes caused him concern about the manner in which the appeal was conducted. In particular, he noted that the investigating officers disclosed information unnecessarily, asked interviewees' leading questions, allowed crucial questions to go unanswered, were not impartial and made untrue statements about the claimant. The claimant further noted that the interview records were inaccurate, contained significant alterations and excluded or misstated important statements made by the claimant.
Mrs Wilson denied that the investigation was unprofessional or that its conclusions were contrary to the evidence or perverse. She also denied that there was undue delay or that the delay was an attempt to victimise the claimant. She further denied disclosing information unnecessarily during the investigation, leading interviewees and putting words in their mouths, allowing crucial questions to go unanswered and partiality.
All three officers involved in the grievance appeal were Catholics and were aware that the matters under investigation were the subject of an application to the Fair Employment Tribunal. Mrs Wilson is married to a Protestant. Mrs Wilson denied that her knowledge of the claimant's complaint affected her treatment of him.
According to Mrs McKenna, the claimant never suggested that his allegations of unfair treatment were as a result of religious discrimination. Nor did he refer to any of the comparators that he relies upon in these proceedings. At a meeting on 21 April 2005, Mrs McKenna asked the claimant why he thought Mr Smith would treat him unfairly and he replied that 'he did not know'. Religious discrimination was never raised by the claimant and their investigation focussed on establishing whether Mr Smith insisted on the claimant working while on sick absence and the reason for his transfer to another team. The investigation established that the claimant was contacted about work while he was on sick leave but that there was no pressure put on him to cooperate or that he worked from home. The findings indicated that the claimant gave help willingly and that the contact was confined to five to six telephone calls. The claimant disputed the number of calls but the investigation was unable to substantiate if phone calls made from ISB were made by Mr Smith or Mr Bacon. They would have been concerned if the claimant had been subjected to persistent phone calls but were not satisfied that had occurred.
At the beginning of 2005, the claimant requested a review of his staff appraisal. The claimant alleged that he was threatened by Ms Barry on that if he proceeded with his appeal against his appraisal, some of the scores already agreed with his line manager could be reduced further.
Firstly, the claimant alleged that during a meeting on 27 April 2005, about his staff appraisal, Ms Barry said as follows:-
"If you are not careful, I will take points off you."
Secondly, the claimant alleged that Ms Barry made the following remark:-
"If you don't accept our decision then you are saying that we are either discriminating or stupid".
Thirdly, the claimant alleged that Ms Barry commented in relation to his grievance, "You know you won't win". The claimant responded, "You don't know the full facts."
Ms Barry was responsible for the relevant staff appraisal. As Assistant Manager in the Strategy Team Ms Barry's main responsibilities were staff development and the broad banding pay scheme. Ms Barry had known the claimant for approximately 22 years both in a work setting and socially. They had fallen out at one point but were back on friendly terms at this time. We will consider each of the statements attributed to Ms Barry in turn.
(1) Ms Barry was involved in reviewing the broad banding pay scheme in April/May 2005. Staff who fell under this scheme were assessed over a number of competencies. According to Ms Barry, some of the evidence produced by the claimant in support of his appeal did not relate to the competencies referred to by him but were relevant to 'Commitment to Quality' in respect of which the claimant had the highest score. Ms Barry's evidence was that she advised the claimant that she would look at the complete assessment and not just the matters appealed and said, 'Be careful marks can go down as well as up.' It was her way of hinting to the claimant not to take it any further. Ms Barry could not deduct points off the claimant on her own. It would have to be agreed with Mr Halligan who chaired the appeal panel and had the final say although he relied heavily on Ms Barry's advice. Ms Barry denied that it was possible to reduce marks that were not the subject of the appeal.
(2) Ms Barry denied saying "discriminating or stupid" and claimed that she said, "unfair or stupid".
(3) Ms Barry accepted that she may have said, "You know you won't win" but that this comment merely reflected her view that it was inconceivable that Mr Smith would have been guilty of religious discrimination.
Ms Barry could not specifically recall whether she was aware of the claimant's Fair Employment Tribunal claim in 2004 and denied that her actions were in any way influenced by the Tribunal proceedings.
We have taken account of the detailed written submissions provided to the Tribunal by both parties. We do not propose to attempt to summarise all of these submissions and instead we have appended copies of same to our decision. We have however highlighted some of the key points that emerged from those submissions and oral argument below.
The claimant sought to place reliance on Mr Smith's display of ash on his forehead on Ash Wednesday and queried whether this offended against the respondent's Equal Opportunities Policy. Mr Smith accepted that it would be likely to offend some Protestants and that it might not contribute to a neutral and harmonious working environment. In particular, the claimant submitted that it fell within paragraph 6.5 of the respondent's anti harassment policy and in particular the Guidance Note for Employees. It was not part of the claimant's complaint that the respondent had failed to provide a neutral and harmonious working environment but rather was relied upon as evidence of Mr Smith's discriminatory behaviour.
The claimant submitted that the respondent's explanation for the delay in providing a copy of Mr Wright's email was at odds with the known facts and that it was only produced under the threat of a strike out application. The claimant submitted that it was not the case that the respondent suddenly understood the relevance of this document.
The claimant submitted that the Tribunal should draw an inference of unlawful discrimination based on the respondent's delay in replying to the statutory questionnaire and on the basis that the response was incomplete and evasive. The claimant also placed reliance on the subsequent correspondence with the council. The claimant further submitted that no evidence was offered by the respondent in either correspondence or evidence for the three month delay in providing its reply to the questionnaire. In this regard, the claimant referred us to a previous decision of the Tribunal in Coleman v McCabe (Case Ref No: 62/93 FET).
In relation to Igen, the claimant submitted that the respondent was seeking to avoid providing an explanation by claiming that certain events did not happen.
With regard to the time point, the claimant contended that the various matters of which he complained constituted a continuing act. In addition, the claimant submitted that Incidents 5, 8 and 9 are inextricably linked as are Incidents 7, 8 and 9. In addition, the claimant submitted that Incidents 8 and 9 should be looked at together with Incidents 5 and 7 as well as with each other. In this regard, the claimant sought to place reliance on the Court of Appeal's decision in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA. The claimant contended that the matters of which he complained should be seen in the context of a continuing state of affairs. The unfair treatment to which he was subjected was carried out by Mr Smith and was allowed to be perpetrated to the extent that the claimant was transferred when he made a complaint. The claimant contended that the respondent had a policy of not addressing complaints and that this was born out by the manner of the grievance investigation was undertaken. The claimant further submitted that the respondent sought to avoid the issue of religious discrimination throughout the grievance process. The claimant sought to explain why he did not address the issue of religious discrimination during the grievance process on the basis that he was advised by Tom Wilkinson to avoid being drawn into this issue and to concentrate on establishing unfair treatment first. He was also conscious of Ms Barry's comment that he knew that he would not win. Therefore the claimant did not ask the respondent to investigate his complaint under its Equal Opportunities Policy.
The claimant went on to submit that if the Tribunal found against him in relation to the continuing act point, it would be just and equitable to extend time. The claimant sought to rely on the alleged failure of the respondent to mention the time point in its response to the proceedings.
In relation to the staff appraisal element of the victimisation claim, the claimant maintained a similar approach to that adopted by him at the pre-hearing review and placed reliance on the provision of documents by the respondent on 18 August 2005 as leading to his realisation on 25 August 2005 that he had grounds for complaining of victimisation. The claimant went on to submit that the decision by Mr Palmer was not over generous in allowing him seven days to consider the documents given that the respondent took seven weeks to produce the documentation and Ms Murtagh took some time to peruse it in order to determine if it was relevant.
The claimant submitted that the respondent should be penalised in costs because it had behaved unreasonably in the manner in which it defended the claims. In particular, the failure to provide documents speedily necessitated additional correspondence between the claimant and the respondent and the Tribunal. The claimant further contended that the responses received by him were evasive and equivocal and in addition, the respondent failed to comply with the Case Management Discussion's order to produce witness statements and an agreed bundle. The claimant also placed reliance on the Equality Commission's Notes and Frequently Asked Questions (FAQs) in section 13 and drew attention to the Fair Employment Tribunal's Guidance Notes (page 3) which enjoin claimants to inform the Tribunal straight away if threatened with costs.
On behalf of the respondent Mr Ferrity contended that all bar one of the claimant's complaints were out of time. Mr Ferrity agreed that the claim may be saved if it constituted a continuing act but submitted that there must be some homogeneity. According to Mr Ferrity, this is not provided by Mr Smith being common to all the incidents. Mr Ferrity submitted that only if the act ended on 19 July 2004, could the time point be defeated.
Mr Ferrity accepted that under Hendricks, one should not be too rigid but there must be some interconnection between the incidents which must consist of some discriminatory flavour to the incidents. Mr Ferrity accepted that if the Tribunal found religious discrimination, that would provide connectivity.
Mr Ferrity queried whether Incident 9 was understandable out of context of the claimant's transfer (Incident 7). Mr Ferrity suggested that the desk clearance was a minor physical manifestation of the transfer being put into effect. Mr Ferrity submitted that if the desk clearance is a stand alone incident, it would be necessary to show that it had a religious flavour.
Mr Ferrity submitted that the transfer (Incident 7) fell a long way short of being an incident of religious discrimination. The claimant did not allege that persons of a different religious persuasion would not have been transferred or handled in a different way. There is only an unsubstantiated assertion that a Roman Catholic would not have been treated in the same way.
Mr Ferrity did not accept that Incident 9 saves the other incidents or is the last chapter of the act. He submitted that a trivial incident should not be allowed to save the time point in relation to the more substantive complaints.
Mr Ferrity accepted that the discrimination claim could still be saved on a just and equitable basis but submitted that as the claimant has not attempted to persuade the Tribunal to exercise its discretion in his favour there was no evidential basis for the Tribunal to base exercising its discretion.
Mr Ferrity contended that the claimant never got to grips with the comparator issue and failed to provide an evidential basis for a hypothetical comparator but merely engaged in speculation. Mr Ferrity submitted that it would have been necessary to call some evidence in order to show that a Catholic would not have been treated in this way. In addition, the claimant did not pursue the actual comparators identified by him with any vigour.
Mr Ferrity accepted that the 'ash on forehead' incident might possibly be the sort of evidence that might serve to demonstrate that a notional comparator would not have been treated in this way and thus the claimant might gain a foothold in the notional comparator world. However the 'ash on forehead' incident was raised for the first time when the claimant was coming towards the end of his evidence after a week's hearing. It had never previously featured in the case and did not appear in the claimant's statements. It was not pursed by the claimant or any of his witnesses who emphatically denied any religious discrimination by Mr Smith. If anything, the ash was a sign of Mr Smith's faith rather than his being opposed to other faiths and claimant's case did not involve allegations of sectarian harassment or discrimination. It was not raised as a 'stand alone' issue but rather as evidence to suggest that a notional comparator is sustainable.
Mr Ferrity also drew attention to the absence of any reference to discriminatory treatment in the medical evidence and in particular that Dr Hamilton only referred to work related stress.
Adopting the formulation in Madden v Preferred Technical Group [2005] IRLR 46 CA, Mr Ferrity submitted that the Tribunal must be satisfied that what happened to the claimant was because he was a Protestant.
Mr Ferrity accepted that the grievance aspect of the victimisation complaint was within time but suggested that Mr Palmer's decision was over generous to the claimant in allowing him seven days to read the documentation in relation to the staff appraisal aspect. Mr Ferrity pointed out that the claimant was not a novice in such matters. Mr Ferrity submitted that these two aspects of the victimisation complaint were not capable of constituting a continuing act because different people were involved and in accordance with Mr Palmer's decision it would not be just and equitable to extend time.
Mr Ferrity contended that the respondent had provided an explanation for the failure to answer the questionnaire within time. The explanation was that the questionnaire was served just before the Christmas holidays and the pressure of work. The failure to answer a questionnaire within time was a balance tipper in Coleman v McCabe but there was other supporting evidence in that case. The claimant's case would fail but for the delay in answering the questionnaire. If the Tribunal accepts the respondent's explanation for the delay it could not draw an inference on the basis of interlocutory failings as this does not fall within the legislative provision.
In relation to costs, Mr Ferrity submitted that the respondent did not behave disruptively, abusively or otherwise unreasonably. The respondent's defence was not misconceived and nor was the respondent seeking to defend a hopeless case. Mr Ferrity accepted that while unreasonableness may depend on the outcome it would not be appropriate to penalise the respondent in costs even if the claimant was successful. Mr Ferrity also pointed out that the claimant made no attempt to quantify his costs.
Mr Ferrity also sought to place reliance on Laing v Manchester City Council, Elias J rejected a mechanistic approach to the Igen guidelines by Tribunals.
CONCLUSIONS
"The question is whether that is 'an act extending over a period', as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."
In our view the issues of whether the claimant was subjected to unlawful discrimination and whether his complaints were brought within time are inextricably interwoven and it is not feasible to determine the time issues prior to reaching a concluded view as to whether the claimant was the subject of unlawful discrimination. In our view the preferable approach is to examine each of the claimant's complaint's in the light of such inferences as we may be prepared to draw and thus determine whether one, some or all of the matters complained of constitute unlawful discrimination and then insofar as necessary determine to what extent the complaints fall within time.
The claimant sought to identify appropriate comparators in relation to his discrimination claim. As the claimant made complaint in relation to ten separate incidents, this was understandably a difficult exercise. Whilst the use of comparators can in many cases be a useful means of ascertaining whether or not unlawful discrimination has occurred, it can be problematic for the reasons set out by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337. The claimant did not identify any comparators in either his claims to the tribunal or in the further particulars provided by him. He did identify a number of named comparators in correspondence with respondent but failed in his evidence to demonstrate to us that those identified were in materially the same or identical circumstances to him. For this reason the claimant sought to rely upon a notional or hypothetical comparator instead of an actual comparator. Although Mr Ferrity has criticised the claimant's approach to the hypothetical comparator as being devoid of any evidential basis, we believe that it is both a valuable means of testing the claimant's case and potentially more beneficial to him. We have therefore approached each element of the claimant's claims on the basis that it is the claimant's contention that a Catholic employee of similar seniority, skills and experience would not have been treated in the manner in which the claimant alleges that he was.
Statutory questionnaires are important tools in addressing the question of whether unlawful discrimination has occurred when applying the Burden of Proof Regulations.
In the present case, the claimant seeks to rely on both the respondent's delay in replying to his first questionnaire and the incomplete and evasive nature of certain replies and invites the Tribunal to draw an inference of unlawful discrimination based on same.
It is clear that there was a significant delay in replying to the first questionnaire. It was received on 1 November 2004 and replied to on 8 February 2005, a period of approximately 14 weeks. Article 44 of the Fair Employment and Treatment Order (Northern Ireland) 1998 as amended by Regulation 28 of the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 empowers this Tribunal to draw any inference from that fact that it considers it just and equitable to draw, including an inference that the respondent committed an unlawful act if it appears to the Tribunal that the respondent deliberately and without reasonable cause omitted to reply within a period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal.
Ms Murtagh gave evidence that the delay in replying to the Questionnaire was due to time taken to obtain instructions (1 November 2004 to 10 January 2005), pressure of work and intervening Christmas holiday period. The questionnaire clearly required a significant amount of work on the part of the respondent and the eight week period expired during the Christmas holidays. The respondent's solicitor was provided with instructions early in the New Year and served the reply within four weeks of receiving instructions.
The respondent did not reply seriatim to the list of specific requests for documents sought in the questionnaire, but rather provided seven appendices and concluded by stating –
"All documents believed to be relevant have been furnished but if other documents are believed to be relevant please identify the documents and consideration will be given to whether or not they are relevant and therefore discoverable."
A course of correspondence ensued between the claimant and the Legal Services Department in which he clarified the discovery sought and identified material that he had not been provided with.
One particular item that the claimant required discovery of was the email which Mr Wright sent to Mr Smith on 11 May 2004. This email was first specifically requested by the claimant by letter dated 12 June 2005 in which he sought discovery of all emails received by Mr Smith between 10 May 2004 and 13 May 2004. Ms Murtagh was furnished with copies of a number of emails on 8 July 2005. These were sent to the claimant on 28 July. On 6 August 2005, the claimant wrote to Ms Murtagh and indicated that he believed that Mr Smith had other relevant emails in that period. He indicated that he required copies of all emails relating to the Crest project (Phase 2) received by Mr Smith from any person for the period in question. Ms Murtagh wrote to the ISB Department on 17 August 2005 and asked for an outline of the Crest project and how it was relevant to proceedings. The claimant wrote again seeking disclosure of emails on 3 November 2005. Ms Murtagh understood from the department that no other emails existed and so advised the claimant by letter dated 10 November 2005. At a Case Management Discussion on 14 November 2005, the Tribunal ordered the claimant to detail the emails that he believed had not been disclosed within 7 days. On 15 November 2005, the claimant wrote to the respondent and indicated that he was referring specifically to the email in which Mr Wright suggested that the claimant had not read the Crest Project system proposal. Ms Murtagh wrote to Mr Smith on 21 November 2005 and requested this email. Mr Smith sent Ms Murtagh a copy of the email on 2 December 2005 and indicated that he had assumed that only relevant emails were required by way of discovery and that this email did not appear to have any relevance to the claims being made by the claimant. Ms Murtagh wrote to the claimant on 15 December 2005 and asked him how it was relevant to his claim. The claimant provided an explanation as to its relevance by letter dated 22 December 2005. Ms Murtagh remained unconvinced of its relevance but decided to provide it to the claimant in any event. Ms Murtagh believed that she had sent a copy of the email to the claimant but on reviewing the file in preparation for this hearing, realised that she had not and therefore sent him a copy of the email on 1 March 2006.
Mr Smith testified that he did not disclose Mr Wright's email due to his interpretation of the request. He dealt with 20-25 emails per day and therefore was not looking for all the emails received by him but rather all emails relating to the claimant's claim and therefore he only supplied the emails sent by the claimant. He neglected to find the one from Mr Wright because he had not thought of looking for emails other than those received from the claimant. He had no reason for withholding the email. He believed that he conducted the email search by name and date and neglected to look for one
from Mr Wright but believed that he had forwarded all email that existed. As soon as Mr Smith became aware that the claimant had a specific email in mind, he had no difficulty in producing it. It was put to Mr Smith by the claimant that he regarded it as a very serious incident and had written down an account of it. Mr Smith responded that at that stage, he thought that he had provided all relevant emails and that when he was made aware of the specific email he went and found it. Mr Smith also agreed that he read the email two days before deciding to remove the claimant from the project. Mr Smith accepted that a request for similar emails was passed to him but he had no specific recollection of it. Mr Smith could not recall any other malicious emails of that nature from Mr Wright or other junior members of staff mentioning the claimant by name and making allegations about him. Mr Smith accepted that Mr Wright's email should have been disclosed in response to the request for all emails.
It is clear from the evidence outlined above that the pursuit of the Wright email was conducted through the process of discovery rather than the questionnaire procedure. While the email might be regarded as falling within the wide request for documents contained in the questionnaire, we find it impossible to find fault with the respondent for not producing it in its reply to the questionnaire. Furthermore, the claimant was curiously reluctant to specifically direct the respondent to this email at an early stage which he could easily have done. Having said that, we do believe that Mr Smith should have been alert to the relevance of the email having regard to the further particulars produced by the claimant on 21 May 2005 which should have reminded him of the background to his decision to remove the claimant from the Crest project. We do not attribute any sinister motive to Mr Smith in this regard as it is clear from the evidence that the existence of the email was widely known and we are not prepared to draw an inference of unlawful discrimination from the failure to produce it. It does however sound on costs which we will address later.
In relation to the Coleman v McCabe, there are a number of points to note. Firstly, the questionnaire in that case was never replied to as such although most of the information sought was provided in response to orders made by the Tribunal some six months later. Secondly, no explanation was provided for the delay. Thirdly, there was other evidence that pointed towards less favourable treatment. Fourthly, this case is not binding on us and is no more than an example of a case where a Tribunal was prepared to infer unlawful discrimination from the failure to answer a questionnaire.
We have given careful consideration to the explanation proffered by the respondent for the delay in answering the first questionnaire and have reached the conclusion that the explanation does constitute 'reasonable cause' within the meaning of Article 44 of the 1998 Order (as amended). We are not therefore prepared to draw an adverse inference based on delay.
The claimant also submitted that the reply in relation to the policy on contacting staff on sick leave set out in the Reply 6(b) was misleading. We are satisfied on the basis of the evidence given by the respondent's witnesses that there is no written policy dealing with the circumstances in which staff can be contacted at home while on sick leave. It is obvious from the terms in which Reply 6(b) is couched in terms that are not directed specifically at the claimant's circumstances but rather that it appears to be intended to regulate contact with staff on sick leave and with particular reference to the role of the Occupational Health Unit. Given that there is nothing in this answer that directly impinges upon the claimant's circumstances, it could not plausibly be suggested that it is evasive. It could however be regarded as incomplete but in order to make good this point the claimant would have to have demonstrated that the respondent had left part of its policy out of this reply. As there was no written policy, it is hard to see how part of it was omitted. We have no reason to doubt that the wording included at 6(b) came from ISB with input from either or both of Business Support or Human Resources and they must have been aware what the unwritten policy was in this area. We suspect that the true reason for the absence of any wording to cover contacting staff about work related matters is that it was not envisaged as necessary because either this occurred infrequently or it was simply outside the remit of the policy. Either way it would have been preferable if Reply 6(b) had made clear where the claimant's circumstances fell in relation to the policy but we are not prepared to condemn the statement of policy as either incomplete or evasive. In these circumstances it is not appropriate to draw an inference of unlawful discrimination.
In addition, the claimant complained about the failure of the respondent to provide him with telephone records, the minutes of management meetings and documentation in relation to the investigation of his complaints. This material was pursued by the claimant through correspondence and it is clear that the respondent sought clarification about the material requested and queried the relevance of some of it. We are satisfied that the respondent did not seek to conceal any of this material and we do not regard the reply to the questionnaire to be incomplete in this respect. The claimant has also criticised some of the correspondence in relation to this material as being evasive or equivocal. We do not accept that this criticism is valid but even if there was some merit in this point, we would not be prepared to draw an inference against the respondent as the correspondence was not issued in response to the questionnaire as such.
The claimant also complained about the delay in responding to his second questionnaire and drew attention to the absence of any explanation for the delay. While it would have been preferable if the letter enclosing the reply had included an explanation for the delay this does not mean that there was no explanation. Although the respondent's reply was again well outside the eight week period, we are satisfied that number of questions posed by the claimant and the level of detail sought by him would inevitably required a considerable amount of time and effort in order to provide a response. In all the circumstances, we would not be prepared to draw an inference of unlawful discrimination from the absence of a timely reply.
The claimant alleged that the reason for Mr Smith's unfair treatment of him can be traced to proceedings brought by the claimant against the respondent in respect of an accident at work involving a Catholic colleague of Mr Smith, Danny Lorenc. The claimant suggested that Mr Smith's behaviour was prompted by settlement of the proceedings in the High Court on 27 April 2004 for £2,500. Mr Smith testified that he had no knowledge of the case at that time and only became aware of the proceedings as a result of reading the papers in the present proceedings when preparing his witness statement. The claimant was unable to point to any evidence that contradicted Mr Smith on this issue either in terms of demonstrating that Mr Smith must have been aware of the proceedings or that Mr Lorenc was harmed in any way by the outcome. Given the modest value of the settlement it is difficult to believe that anyone's career or prospects could be affected by it. Moreover as Mr Ferrity points out the proceedings arose from an accident in 1999 long before Mr Smith became the claimant's line manager. We are therefore satisfied that there is no basis for the claimant's belief that Mr Smith treated him unfairly because of these proceedings. We also reject the suggestion that Mr Smith attempted to disrupt the claimant's preparation for the High Court hearing by giving him additional work shortly before it. Overall, the notion that Mr Smith was motivated by these proceedings strikes us as entirely speculative and fanciful.
There was a conspicuous absence of overt evidence to suggest that any of the behaviour attributed to the respondent by the claimant was based on anyone's religious beliefs or political opinions. While we appreciate that it is often the case that there is no direct evidence of discrimination, it is noteworthy that none of the claimant's witnesses sought to attribute any such motives to the respondent or Mr Smith in particular. It is also striking that the claimant's brother and trade union representative, Tom Wilkinson, would go no further than to suggest that Mr Smith may have been guilty of favouritism on occasions and did not suggest that there was any discriminatory flavour to it. The claimant never made any reference to religion or gave any indication that his manager was motivated by any underlying religious tenor throughout his contact with Dr Hamilton. The medical records make reference to the claimant suffering from stress at work and to his manager being unsupportive but at no stage did the claimant even hint at religious discrimination. Somewhat belatedly, the claimant introduced the contention that Mr Smith behaved in a manner that was not conducive to a neutral working environment by attending work on Ash Wednesday with ash on his forehead. Mr Smith's evidence was that he would normally wipe the ash off his forehead, not because he believed that there was anything wrong with it but because he realised that some people would take offence at it. Mr Smith accepted that he may on occasions have forgotten to do so or not wiped it off completely. We do not regard the fact that Mr Smith attended work with ash on his forehead as having any evidential significance in the sense of being indicative of an unlawful discriminatory attitude on his part.
Incident 1
The essence of this aspect of the claimant's claim is that Ms Colville attempted to mislead a customer. The claimant did not present any independent evidence that this occurred and the respondent's evidence tends to suggest that it was the claimant who was guilty of unprofessional behaviour. On balance, we accept Mr Smith's explanation as to how the two options were to be presented to the users and reject the claimant's suggestion that Ms Colville misled the users in order to win the project for herself. The claimant's complaint that Mr Smith was guilty of permitting the claimant's area of responsibility to be eroded by condoning Ms Colville's actions therefore falls away as the claimant has failed to establish that Ms Colville attempted to mislead a customer. However, even if we were persuaded by the claimant that there was substance in this aspect of complaint there is no religious tenor to it given that both the claimant and Ms Colville are Protestants.
There remains the question of whether Mr Smith was guilty of failing to address the claimant's complaints about Ms Colville. The claimant's evidence on this point tends to suggest that after his initial complaint about Ms Colville, he did raise the matter from time to time with Mr Smith as one of a number of complaints that he had about his treatment. Having regard to respective religious persuasions of the protagonists, we find it difficult to understand how any failure by Mr Smith to address Ms Colville's behaviour can amount to religious discrimination. However, as we are satisfied that this particular complaint was unfounded, we accept that Mr Smith was justified in not taking any action in respect of it.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 2
We are satisfied on the basis of Mr Smith's evidence that it was common practice in the Departmental team for staff to be assigned to more than one project at a time and that Mr Armstrong was needed on another project. We can see nothing sinister in Mr Armstrong being assigned different duties. While this clearly caused annoyance to the claimant and the likelihood of delay to the cemeteries project, we regard it as a legitimate managerial decision as to the allocation of resources. The fact that Mr Smith complained at a later date about the delay in the cemeteries project does render his allocation of resources at this point invalid as priorities may change over time. In relation to the claimant's contention that he raised this matter at his meeting with Mr Smith on 9 April 2004, we have already found the meeting in question concentrated on the claimant making a case for upgrading under the broad banding pay scheme during which the claimant took the opportunity to rehearse a number of grievances. Perhaps unsurprisingly, Mr Smith did not respond to the specific complaints referred to by the claimant. We are satisfied however that this particular complaint was completely unfounded and therefore Mr Smith cannot be criticised for not responding to it particularly in the context of a meeting that focussed on other matters.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 3
There is no evidence that the imposition of this additional work on the claimant was in any way unreasonable and in these circumstances we do not see how it could be regarded as unfair treatment. Rather it seems to us that the claimant wished to concentrate his efforts on other work and in particular the Cemeteries project. While this may be understandable and a reflection of the claimant's dedication to this particular project, it was up to management to allocate resources as it best saw fit. In addition, the Crest project presented a valuable opportunity for the claimant to enhance his profile and this cannot sensibly be viewed as unfair treatment.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 4
The requirement to have a senior member of staff involved in the presentation was satisfied by Mr Smith's attendance. It was unfortunate that the claimant's role was not acknowledged by Ms Tomlinson but this oversight cannot be laid at Mr Smith's door as it is clear that Ms Tomlinson was responsible for the presentation. The suggestion that Mr Smith took this opportunity away from the claimant flies in the face of the unequivocal evidence of both Mr Smith and Mr Orr, which we accept, that it was Mr Orr's decision. There was nothing untoward in Mr Smith referring the matter to Mr Orr for a decision as to who should make the presentation and there was no evidence that Mr Smith sought to discourage Mr Orr from allowing the claimant to participate in the presentation although it was clearly his view that it should be delivered by a senior member of staff in accordance with normal practice. Both fully expected the claimant to be present in some capacity.
With regard to the complaint that Mr Smith failed to give the claimant an explanation for taking away the opportunity to make the presentation and refusing to discuss it, we accept Mr Smith's evidence that he remained of the view that the claimant should be involved in the presentation and therefore no explanation was required. The claimant's record of his meeting with Mr Smith on 5 February 2004 does not contain any specific reference to this aspect of the claimant's complaint. We feel sure that the claimant would have mentioned it in his note, if he had made a point of complaining to Mr Smith about being deprived of the opportunity to make the presentation to the committee. We do not believe that Mr Smith can be fairly criticised for not discussing it particularly given that the matter had been rendered academic by the claimant's ill health. We are therefore satisfied there is no substance in the claimant's allegation that he was treated unfairly by Mr Smith in relation to this matter.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 5
The evidence clearly establishes that Mr Smith was fully aware of the claimant's ill health at this time. He could not have been otherwise as he was the claimant's line manager. We do not believe that Mr Smith's contact with the claimant while he was on sick leave was contrary to council policy, as we understand it, but it was clearly unwise to do so and however willing the claimant may have appeared to be, Mr Smith should not have allowed a situation to develop where the claimant ended up doing a considerable amount of work while on sick leave. It is not however our function to decide whether Mr Smith or the respondent was in breach of any duty of care or poor management practices. Rather, our role is to determine whether or not the respondent was guilty of unlawful discrimination.
In relation to the claimant's chosen comparators, Mrs Wilson denied that any employee had been forced to work while on sick leave or maternity leave although on occasion it was necessary to contact such employees about work. Such contact was made without regard to the employees' religious belief or political opinion. While not accepting that staff on maternity leave were appropriate comparators, Mrs Wilson pointed out that Marie McCrory was contacted by Mr Smith while on maternity leave in 1998. Furthermore, whilst managed by Mr Smith, she only availed of eight days maternity leave. Sinead Fitzell was also managed by Mr Smith and was contacted by Jane Hewitt while on maternity leave. The other male comparators were not contacted at home while on sick leave. A number of other employees of both religions were contacted at home while on sick leave.
That is not the end of the matter as it remains open to us to find unlawful discrimination on the basis of the primary facts as found by us. As we have said, we consider that Mr Smith's decision to initiate contact with the claimant while he was on sick leave was unwise. As the claimant's line manager, he could hardly fail to be aware that the claimant had suffered significant stress at work and the last thing that he should have been doing was contacting him at home about work. Whether or not this was in breach of the respondent's policy in this area is largely irrelevant. However, the facts found by the Tribunal do not point towards any discriminatory motivation on the part of Mr Smith rather it is clear that he was prompted to go down this route by the concerns expressed by Mr Bacon. In our view, Mr Smith should have resisted the temptation to seek the claimant's assistance with the cemeteries project but there is no evidence that religion played any part in his behaviour. For the reasons given above, we do not consider it appropriate to draw any adverse inference from the respondent's reply to Question 6(b) in the claimant's first questionnaire.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 6
The claimant's complaint about the handling of his rehabilitative return to work does not have the flavour of discriminatory treatment. We accept Mr Smith's evidence that this was a relatively new concept and that he sought advice from two separate sources before accepting that the claimant should not be required to use his annual leave to facilitate his rehabilitative return to work. Nor do we accept that there was anything untoward about Mr Smith's inquiry in relation to the Port project. While the claimant may well have felt pressure as a result, we do not see how Mr Smith can fairly be criticised in this regard. While it is true that Mr Smith asked the claimant if he could increase his working week to four days, the evidence fails to establish that Mr Smith applied any pressure on the claimant to do so.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 7
The claimant sought in his evidence to modify his case to the effect that he was not given a satisfactory explanation for his removal from the project rather than no explanation at all. While we accept that this was a reasonable concession to make when faced with Mr Smith's clear evidence that he was given a full explanation, we have to approach this matter on the basis of the case originally put forward by the claimant and having regard to that, we are satisfied that he was given a full and detailed explanation. The fact that Mr Smith only mentioned one factor in the grievance interview at a later date does not detract from his clear evidence that he provided the claimant with a full explanation at the time. It does however suggest that the alleged failure to read the system proposal was the main factor in Mr Smith's decision. We are therefore satisfied that the claimant's complaint that he was removed from the project for no reason or without a satisfactory explanation is unfounded. We are also satisfied that Mr Smith was mistaken in his belief that the claimant had not read the project proposal. The only possible flaw in the reasons given for his removal was the failure to mention Mr Wright's email. We do not see how this could give rise to a valid complaint of discrimination. While the email may suggest that Mr Wright was not favourably disposed towards the claimant this aspect of the claim is directed against Mr Smith (a Catholic) rather than Mr Wright (a Protestant). This reinforces our view that religion played no part in the decision.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 8
It is common case that Mr Smith was not responsible for transferring the claimant. We are further satisfied on the basis of Mr Orr's and Mr Halligan's evidence that the transfer, in common with a number of other transfers at the same time, was based on business needs. No improper motive was attributed to either Mr Orr or Mr Halligan rather the focus of the claimant's case has remained throughout on Mr Smith no doubt because of their different religious persuasions. There was a dispute as to whether or not Mr Halligan met with Dr Hamilton to explain what the move involved and reassured the doctor. We are satisfied on the basis of Dr Hamilton's evidence that no such meeting took place. We believe that had such a meeting occurred it would have featured in the doctor's notes. However, this does not advance the claimant's complaint of religious discrimination as it seems unlikely to us that neither Mr Halligan's decision nor his failure to consult Dr Hamilton were influenced by religion as both he and the claimant were Protestants. The suggestion that the claimant was transferred to avoid a meeting between Mr Smith and the Welfare Officer strikes us as inherently unlikely and we accept Mr Ferrity's submission that the Welfare Officer would not have been a figure of fear. We are therefore satisfied that the transfer of the claimant was not undertaken for an improper discriminatory motive.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 9
The decision to clear the claimant's desk was a direct consequence of Mr Halligan's decision to transfer the claimant. We are unable to determine who was responsible for having the claimant's desk cleared. It appears to have been done in order to facilitate Dee McCullough's move. The claimant at one point suggested that Mr Halligan was responsible. If so, that would not aid the claimant's complaint of religious discrimination in view of Mr Halligan's religion. It is clear however that there is no evidence that Mr Smith was involved and there is absolutely no evidence to suggest that there was any element of religious discrimination involved in the decision. Accordingly we are satisfied that the respondent did not unlawfully discriminate against the claimant in respect of this incident.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
Incident 10
We are satisfied that the claimant pursued his case for upgrading on the broad banding pay scheme with vigour and that Mr Smith was hard to persuade that the claimant's performance merited upgrading. While Mr Smith probably did not give the material that he received from the claimant the attention that the claimant felt it deserved particularly in the case of the cemeteries project documentation, we have no reason to doubt that Mr Smith took account of the material for broad banding assessment purposes. We also believe that the claimant was guilty of exaggerating Mr Smith's perceived indifference. In particular, the claimant managed to convey the clear impression that Mr Smith was responsible for destroying evidence that he had supplied whereas the material in question had been innocently disposed of by Mr Barr a co-religionist of the claimant. On the whole, we find the claimant's evidence in relation to this aspect of his claim is far from convincing and we are unable to detect any element of unlawful religious discrimination by Mr Smith.
Applying the Igen Guidelines, the claimant has not proved on the balance of probabilities facts from which the Tribunal could conclude that the respondent has committed an act of discrimination against him.
The claimant contended that both the initial investigation and the appeal were undertaken in an unprofessional manner and that the conclusions reached were perverse. We do not accept that the investigation was flawed in any significant manner and we are satisfied that such defects as there may have been were properly addressed firstly, by Mr Coulter restating his decision and secondly by the grievance appeal. There is nothing in the evidence to suggest that Mr Coulter's treatment of the claimant was influenced by his knowledge of the claimant's complaint to the Fair Employment Tribunal and we are therefore satisfied this knowledge did not affect either his first or second letter of decision.
The claimant complained that no-one asked him any questions about religious discrimination or responded to his assertion that he was being treated differently. In addition, no-one suggested that the matter should be dealt with under the respondent's Equal Opportunities Policy and Procedure. We consider that these complaints are disingenuous. If the claimant genuinely believed that he was the subject of religious discrimination, it was incumbent on him to raise the matter in either his written grievance or during the course of his interview and he conspicuously failed to do so. It is apparent both from the claimant's evidence and that of his brother that the focus of their approach was to establish unfair treatment in the first instance and not make any direct reference to religious discrimination. Therefore they shied away from making any overt reference to religious discrimination. In our view, they should have pinned their colours to the mast at an early stage and invited the respondent to deal with the matter under its Equal Opportunities Policy and Procedure.
There is nothing to suggest that Mr Coulter's treatment of the claimant was influenced by his knowledge of the claimant's complaint to the Fair Employment Tribunal and we are therefore satisfied this knowledge did not affect either his first or second letter of decision.
We do not consider that there can be any legitimate complaint about not being permitted to interview Mr Bacon. Mrs Wilson and Mrs McKenna were charged with investigating the claimant's grievance. It would not have been appropriate for the claimant to have participated in the investigation by interviewing potential witnesses. Furthermore there is no evidence that the claimant sought to speak to Mr Bacon informally or that he was in any way inhibited from doing so.
We have given careful consideration to the various complaints that the investigating officers disclosed information unnecessarily, asked the interviewee leading questions, allowed crucial questions to go unanswered, were not impartial, made untrue statements about the claimant, and that the interview records were inaccurate, contained significant alterations and excluded or misstated important statements made by the claimant. Overall, we are satisfied that the second investigation was carried out in a fair, impartial and professional manner. That is not to say that it was entirely without fault. There were undoubtedly occasions when leading questions were asked and questions went unanswered but it must be remembered that we are dealing with a workplace grievance rather than a police investigation and hence the standards to be applied are lower. The record of the interviews was not intended to be a transcript and the interviewers freely admitted that some words were changed in order to capture the sense of what was being said. In addition the reproduction of the records was inaccurate in places due to typographical or clerical errors.
Applying the law on victimisation, we are satisfied that the claimant enjoys protected status on the basis of having made an application to the Fair Employment Tribunal on 19 October 2004 (423/04 FET)
There is no evidence that the claimant was treated less favourably than other persons in the same circumstances.
Even if we were satisfied that the claimant had been subjected to less favourable treatment, on the evidence presented to us we could not be satisfied that this occurred because the claimant had committed a protected act.
The first issue is whether the remarks attributed to Ms Barry by the claimant are accurate. There is very little difference between the accounts given of these conversations by the claimant and Ms Barry. Such differences as there may be are relatively minor and in these circumstances we propose to address this issue on the basis of the claimant's evidence as to what was said by Ms Barry.
The second issue is whether these remarks are capable of amounting to victimisation.
As indicated above we are satisfied that the claimant enjoys protected status on the basis of having made an application to the Fair Employment Tribunal on 19 October 2004 (423/04 FET).
Again, there is no evidence that the claimant was treated less favourably than other persons in the same circumstances. We accept Ms Barry's evidence that she bore no ill will towards the claimant but rather was endeavouring to assist him.
Even if we were satisfied that the claimant had been subjected to less favourable treatment, on the evidence presented to us we could not be satisfied that this occurred because the claimant had committed a protected act as we are entirely satisfied that Ms Barry's motives were entirely innocent and were not influenced by knowledge of the claimant's complaint to the Fair Employment Tribunal.
In view of our findings above, it is not strictly necessary for us to address the question of time.
Main Discrimination Complaint
The claimant first raised an allegation of religious discrimination when he filed his first complaint in the Tribunal on 19 October 2004. In his application, the claimant referred specifically to the clearance of his desk on 22 July 2004 (Incident 9) which he alleged was the last in a series of incidents which demonstrated a sustained period of unfair treatment. In addition, the claimant specifically raised a complaint that his manager (Mr Smith) insisted that he continued to work at home while on sick leave (Incident 5). The date of this occurrence did not appear in the claimant's complaint but he subsequently clarified that it took place in December 2003. Incidents 1 to 5 are well out of time and can only be saved if the Tribunal is satisfied that these incidents were either part of an act extending over a period or it would be just and equitable to extend time. Incidents 6 and 7 are also outside the prescribed time limit.
It was common case that Incident 9 was within time. We are further satisfied that incidents 8 and 9 are very much interwoven and for the purposes of the time issue, we regard Incidents 8 and 9 as a single act. We are satisfied that both Incidents 8 and 9 are within time. Incident 10 is a continuing act and is therefore also within time.
In order to determine whether Incidents 1 to 7 form part of an act extending over a period it is necessary to examine the facts in order to decide whether the acts form part of a connected chain of events. We approach this task in the context of the claimant's case that all ten incidents are connected. We also bear in mind the claimant's contention that Incidents 5, 8 and 9 are inextricably linked as are Incidents 7, 8 and 9 and that Incidents 8 and 9 should be looked at together with Incidents 5 and 7 as well as with each other. The ten incidents could be regarded as connected in the sense that they all occurred in the context of the claimant's employment with the respondent and one can see links between various incidents such as Incident 9 being a physical manifestation of Incident 7. However, such links are not sufficient in themselves to come within the concept of an act extending over a period of time. Nor is it sufficient that there common factual elements involved such as a commonality in terms of participants. Hence the involvement of Mr Smith throughout does not of itself prove that these were acts extending over a period. We therefore looked to see if there was evidence that the claimant was the subject of less favourable treatment on religious grounds in relation to these incidents. As appears from our conclusions in relation to the discrimination complaint, we are satisfied that religion did not play any part in incidents 1 to 7. Accordingly, there is no evidential basis for the claimant's contention that Incidents 1 to 7 form part of an act extending over a period of time. The claimant did not put forward any not exercising our discretion to extend time on a just and equitable basis.
In summary therefore we are satisfied that the claim insofar as it relates to Incidents 1 to 7 is out of time but that the claim in relation to Incidents 8 to 10 is within time.
Victimisation re Grievance Procedure
The claimant's victimisation claim comprised of two elements. The first element related to the alleged unprofessional manner in which the respondent investigated the claimant's grievance. The claimant submitted an internal grievance on 29 November 2004 and received the decision in his grievance appeal on 24 June 2005. The claimant did not raise any claim of victimisation at this time notwithstanding the fact that he clearly believed that the investigation of his complaints was unprofessional and that the conclusions drawn by the investigating officers were perverse.
The claimant sought discovery of the records of interviews from the respondent in the context of his discrimination complaint. Ms Murtagh initially took the view that these documents were not relevant because the claimant had not suggested in his grievance that his treatment was on grounds of religious belief or political opinion. However, on reading the material, she formed the view that the respondent would wish to rely on it and therefore forwarded same to the claimant on 17 August 2005 who received it on 18 August 2005. On 25 August 2005, after taking seven days to study the documentation, the claimant alleges that he became aware of the flagrant nature and scale of his unfair treatment in relation to the grievance. It is perhaps surprising that the claimant did not take action straight away and waited until 22 November 2005 to lodge a victimisation claim.
As noted above, Mr Ferrity now accepts that the grievance aspect of the victimisation complaint was brought within time. We regard this as an appropriate concession and respectfully agree with Mr Palmer's approach to this issue. The claimant was entitled to have some time to peruse this documentation and as the period involved was only seven days, we consider that it is just and equitable to extend time.
Victimisation re Performance Appraisal
The second element of the claimant's victimisation claim was based on his conversation with Ms Barry on 27 April 2005. Therefore, on the face of it, this element of the victimisation claim is almost two months out of time.
The Tribunal that considered time as a preliminary issue found that this element of the victimisation claim was out of time and that it would not be just and equitable to extend time in respect of it. We would respectfully agree with this aspect of the Tribunal's decision. The Tribunal left open the question as to whether this element of the victimisation claim was saved by Article 46(6)(b) in that it might be construed as the last in a series of acts extending over a period.
It is clear that the complaint in relation to Ms Barry was confined to 27 April 2005. In paragraph 9 of the victimisation claim, the claimant stated that the victimisation was ongoing up until 24 June 2005 that being the date on which the claimant and his brother met with Mrs Crozier in order to discuss the investigation report produced as a result of the grievance appeal.
We are therefore faced with the question as to whether the staff appraisal element should be regarded as a continuing act in combination with the grievance element and therefore extending over a period and on this basis should be treated as done at the end of that period.
There is no evidence whatsoever that the two elements of the victimisation complaint are interlinked in any way. Plainly the claimant must have been aware of the significance of Ms Barry's remarks either on 27 April 2005 or shortly thereafter but he offered no credible basis for not lodging victimisation proceedings in respect of the staff appraisal within three months of 27 April 2005. We are not satisfied that there is any relationship between the staff appraisal element and the receipt of documentation on 18 August 2005. Accordingly, we hold that the staff appraisal element of the victimisation claim was not brought within time.
Chairman:
Date and place of hearing: 19-23 June 2006, 3-5 July 2006, 29 August 2006,
12-13, 15 and 27-28 September 2006, 26 October 2006, 17 November 2006 and 29 November 2006, Belfast
Date decision recorded in register and issued to parties:
