Armstrong v K J Flanagan and Co Ltd K J Flanagan and Co Ltd [2011] NIFET 00072

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 72/10FET

1561/10

CLAIMANT: Gareth Armstrong

RESPONDENT: K J Flanagan and Co Ltd

DECISION

The unanimous decision of the Tribunal is that the claimant’s claims are not well-founded. Accordingly, they are dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Dr E McPherson

Mr G Hunter

Appearances:

The claimant was self-represented.

The respondent was represented by Mr T Sheridan, Peninsula Business Services Ltd.

REASONS

1. The claimant was employed by the respondent company (“the Company”) as a lorry driver. He was employed by them from 5 November 2007 until February 2008, when he left to take up employment elsewhere. However, that new employment did not work out. So he asked for his old job back, and he was given his old job back. Accordingly, he was again employed by the Company, as a lorry-driver, from February 2008 until 16 April 2010. He resigned with effect from the latter date.

2. In this Decision, we use the following terminology. (1) We refer to a Roman Catholic as “a Catholic”. (2) If any individual comes from a Catholic community background, we also refer to him as a Catholic. (3) We refer to anybody who belongs to a Protestant Christian denomination as “a Protestant”. (4) We refer to anybody from a Protestant community background as a Protestant. (5) We refer to anybody who favours the continuation of the Union (the Union between Northern Ireland and Great Britain) as “a unionist”. (6) We also refer to anybody from a unionist community background as “a unionist”. (7) Anybody who favours the re-unification of Ireland is referred to as a nationalist. (8) Anybody from a nationalist community background is also referred to as a nationalist.

3. The unfair dismissal legislation is contained in the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). The legislation which prohibits religious or political discrimination or harassment is contained in the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the 1998 Order”).

4. In these proceedings, the claimant complains in respect of treatment which he allegedly received while he was in the employment of the Company. He says that the relevant treatment was ill-treatment, and that the ill-treatment was politically and/or religiously discriminatory treatment, and/or that it constituted religious and/or political harassment. (In his claim form, the claimant also complained of breach of contract, but he told us during the hearing that the alleged breach of contract consists only of the detrimental discrimination and harassment).

5. The claimant also complains that he has been “constructively” dismissed by the company. He asserts that this dismissal was an unfair dismissal (under the 1996 Order) and an unlawful discriminatory dismissal (under the 1998 Order).

6. The religious discrimination and religious harassment complained of in these proceedings consists of anti-Protestant discrimination or harassment. The political discrimination and political harassment complained of in these proceedings is anti-unionist discrimination or harassment.

7. The claimant is a Protestant and a unionist. The Company is owned by Catholics. Mr Michael Flanagan, who was a witness in this case, and who is Operations Director of the Company, is a Catholic. Mr Michael Toner, who was a witness in this case, and who was involved in a controversial encounter with the claimant (of which more details are provided below) is also a Catholic.

8. “Discrimination” within the meaning of the 1998 Order, includes anti-Protestant and anti-unionist discrimination.

9. Article 19 of the 1998 Order provides that it is unlawful for an employer to discriminate against a person, by dismissing him, or “by subjecting him to any other detriment”.

10. A person will be subjected to “detrimental” treatment, within the meaning of Article 19 if, in light of the treatment to which he or she was subjected, a reasonable employee would or might take the view that he or she had been disadvantaged in the circumstances in which that employee would thereafter have to work. A person is not subjected to detrimental treatment merely because that treatment gives rise to an unjustified sense of grievance on his part. In considering whether or not any particular treatment constitutes “detrimental” treatment, it is necessary and appropriate to have regard to all of the Tribunal’s findings of fact in the whole case (and not just those findings of fact which are of particular relevance in the context of any particular alleged mistreatment).

11. The effect of Article 3A of the 1998 Order is that a person (“A”) subjects another person (“B”) to harassment in certain circumstances (which are referred to in Article 3A) where, on a ground related to religious belief, or on the ground of political opinion, the perpetrator (“A”) engages in unwanted conduct which has the purpose or effect of :

(a) violating B’s dignity or

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

Article 3A (2) provides that for the purposes of Article 3A, any particular conduct is to be regarded as having the effects specified in sub-paragraphs (a) and (b) above only if, having regard to all the circumstances (including the perception of B) it should reasonably be considered as having that effect.

12. As a general rule, an employer will be liable under the 1998 Order for any act of detrimental discrimination, or of unlawful harassment, which is carried out against a claimant by a work colleague of his. However, there is an exception to that general rule. That exception is as follows. The employer will not be liable in respect of the colleague’s discriminatory acts if it proves that it took such steps as were reasonably practicable to prevent the colleague from doing that act, or from doing, in the course of his employment, acts of the same description.

13. In his claim form, the claimant specified the allegations of mistreatment which are the relevant allegations in the context of the detrimental treatment and harassment claims. We refer to that account below.

14. Article 19 of the 1998 Order makes it unlawful to discriminatorily dismiss an employee.

15. As Article 19(3) makes clear, in the context of that Article, “dismissal” includes “constructive” dismissal.

16. Article 126 of the 1996 Order confers the right not to be unfairly dismissed. For the purposes of Article 126, a person is to be deemed to be dismissed if they have been “constructively” dismissed.

17. For the purposes both of the 1998 Order and the 1996 Order, a person who resigns from his employment is to be regarded as having been constructively dismissed only if he resigned in circumstances which were such that he was entitled to terminate the contract of employment without notice, by reason of the conduct of the employer. (See Article 19(3) of the 1998 Order and Article 127(2) of the 1996 Order).

18. A employee is entitled to terminate his contract of employment without notice only if the employer is guilty of a repudiatory breach of that contract.

19. There is no doubt that the claimant’s complaint of unfair dismissal was brought within the primary time-limit which is applicable in respect of unfair dismissal. There is also no doubt that the complaint of discriminatory dismissal was brought within the primary time-limit which is provided for in the 1998 Order.

20. There is, however, controversy between the parties on the question of whether or not the complaints of discriminatory detrimental treatment, and of religious and/or of unlawful harassment, were brought within the relevant time-limit, as provided for in Article 46 of the 1998 Order. (Article 46(1) contains what amounts to a primary statutory time-limit in respect of such acts).

21. Article 46(1) of the 1998 Order contains what amounts to a primary time-limit in respect of discrimination and harassment claims, and provides as follows:

“Subject to paragraph (5) … the [Fair Employment] Tribunal shall not consider a complaint [of religious or political discrimination, or of religious or political harassment] unless it is brought before whichever is the earlier of —

(a) the end of the period of 3 months beginning with the day on which the claimant first had knowledge, or might reasonably be expected to first have had knowledge, of the act complained of; or

(b) the end of the period of 6 months beginning with the day on which the act was done”.

22. In respect of cases which are not brought within the primary time-limit, Article 46(5) provides for what amounts to a secondary time-limit. Article 46(5) is in the following terms:

“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.”

23. Article 46(6) provides that, for the purposes of the time-limit provisions, any act extending over a period is to be treated as having been done at the end of that period. The same paragraph provides that a deliberate omission is to be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act (if it were to be done).

24. The claimant presented his case in a clear, intelligent and courteous manner, with the able assistance of his wife.

25. The claimant had provided written details of his claim, in an annex to paragraph 7 of his claim form. The view of events as set out in that annex is very clear-cut. However, when the claimant came to provide his sworn oral testimony during the main hearing of these proceedings, his evidence was not nearly as clear-cut. It was less precise. It was, in some significant respects, somewhat vague. There were some discrepancies between the account of events which is set out in the annex and the account of events which the claimant gave in the course of his sworn testimony.

26. None of those matters was helpful to the claimant in the context of our task of assessing his credibility. However, in a wider sense, those differences do reflect well upon the claimant, who clearly was more concerned with attempting to be fair and truthful, than he was with maintaining the internal consistency of his overall account (throughout the course of these proceedings) in respect of events.

27. Mr Michael Flanagan was an impressive witness. He provided his sworn oral testimony in a clear and forthright manner. His testimony appeared generally to be internally consistent, and to be consistent with the undisputed facts (those facts relevant to these proceedings which were undisputed between the parties).

28. There was a significant variance between the accounts of events which the claimant gave and the accounts of events which Mr Flanagan gave. To the extent that there was such a variance, we preferred the evidence of Mr Flanagan.

29. In the annex to the claim form, the claimant described the alleged instances of mistreatment (upon which the complaints of discriminatory detriment and of harassment are based).

30. In essence, the mistreatment allegations can be broadly classified into three groups. (1) First, there are allegations relating to working conditions. (2) Secondly there are health and safety allegations. (3) Thirdly, there are the “banter” allegations.

31. Having listened carefully to the claimant’s testimony, to the testimony of Mr Flanagan and to the testimony of Mr Toner, we are satisfied that the claimant was not unfairly treated, compared to other drivers, in respect of working conditions. In particular, he was not treated less favourably in relation to routes, hours or holiday requests.

32. Having noted the more nuanced way in which the claimant put these matters in the course of his oral testimony (as compared with the very forthright and clear-cut manner in which he put the matters in the annex to the claim form), we are satisfied that the claimant only infrequently expressed reservations about the condition of particular vehicles and that, when he did so, there was an appropriate and proportionate response from Management. The claimant alleges that, in February 2010, brakes failed in his lorry, and he was then told that it would be too expensive to call a break-down truck, and that he was told to drive the truck back, and that this was a very unsafe practice. Having considered the evidence of Mr Flanagan and Mr Toner, we are satisfied that the claimant’s version of events, in relation to the February 2010 allegations, is not an accurate reflection of the real position.

33. According to the claimant, in May 2009, he was involved in an accident in Cork; he suffered back and neck injuries and was in a lot of pain; but he was not given the chance to receive medical attention; and he was told by Mr Flanagan to take pain- killers and to continue driving. In reality, the position was as follows. A Garda, who had been called to the scene of the accident, asked the claimant, in the presence of Mr Flanagan, whether he (the claimant) needed medical treatment. The claimant said that he didn’t need medical treatment. Mr Flanagan asked the claimant if he was “ok to drive”. The claimant said he was.

34. The claimant has served in the Army. He is proud of his record of service and commitment in that capacity. He says that, on several occasions, workmates (both Protestants and Catholics), referring to his Army service, called him “a UVF Brigadier”. He also told us that, on at least one occasion, it was suggested to him, during a workplace conversation, that he supported the DUP. He said that on one occasion, a Catholic worker spoke to him in a language which he didn’t understand, but which he thinks may well have been Irish, and that the colleague laughed when the claimant did not understand what was being said.

35. Our conclusions in relation to that group of allegations, we note the following. First, as the claimant admitted, he had no precise details, regarding the dates of the various incidents. Secondly, he had not kept any contemporaneous notes of any of the incidents. Thirdly, the claimant’s evidence, regarding the contexts and details of the various incidents, was notably vague. Fourthly, prior to the termination of his employment, the claimant had never complained to Management in respect of any of the alleged incidents.

36. We are clear that, on several occasions, workmates of the claimant did make reference to him being a “UVF Brigadier”, and we are also clear that, in doing so, they were mocking or teasing the claimant (probably because of his evident pride about his military record).

37. The claimant was not clear as to whether or not he was being spoken to in Irish. Accordingly, we are far from convinced that the remarks in the unknown language were actually remarks which were made in Irish, or that they were remarks that were tainted by sectarian bias.

38. We note that this employer has achieved a workforce which is well-balanced (between Protestants/unionists on the one hand and Catholics/nationalists on the other hand). On the evidence of Mr Flanagan, we are satisfied that the Management of the Company work hard to make sure that nobody within the workforce feels uncomfortable because of religious or political considerations. On the basis of that evidence, we have no doubt that workers within the firm have always had good reason to clearly understand that they are all under an obligation to work harmoniously together, in a way that does not disadvantage or alienate anybody on account of their religion or politics.

39. As the claimant admitted in the course of his oral testimony, none of the references to the UVF was made in the presence of anybody from Management within the firm, and the claimant was unable to testify that he was sure that such remarks had been overheard by anybody from Management. And the claimant accepted that, prior to the termination of his employment, he had never complained about any of the alleged “banter” incidents.

40. Against that background, we are satisfied that the Company has taken such steps as are reasonably practicable to prevent any colleagues of the claimant from engaging in sectarian banter. Accordingly, even if the “Brigadier” remarks did constitute detrimental discrimination, and even if they did constitute unlawful sectarian harassment (as distinct from merely constituting ill-judged and insensitive attempts at humour), the Company is not legally liable, because it has made out the “practicability” defence. (The situation might have been different if the claimant had made complaints to Management which they had refused to address, or which they had not adequately addressed).

41. Having concluded that the Company is not legally liable in respect of any discrimination or harassment arising out of the “Brigadier” remarks, we do not need to arrive at a clear determination as to whether or not the people who uttered those remarks were in any way affected by sectarian feeling; nor do we need to arrive at any conclusion on the question of whether or not the making of the remarks constituted detrimental discrimination, or constituted unlawful harassment.

42. However, before leaving this part of the case, we should make it clear that we are not in any respect accepting that any relevant banter was appropriate conduct, and we are in no way underestimating the potentially toxic effects of mocking banter within the workplace.

43. According to the claimant’s claim form, the situation was as follows:

“I decided to complain about [Michael Toner] to Michael Flanagan, Director, but he didn’t seem to take my complaints seriously and said that I didn’t need to worry and [had] no need to raise this in a formal capacity as he would resolve it. He clearly did nothing about it, things got worse and I began to feel increasingly isolated and intimidated in the workforce and it was starting to have an effect on my health.”

44. In light of the oral testimony in this case, we are satisfied that the claimant never made any complaint about Mr Toner’s conduct until after the 29 March 2010 incident, and that complaint focussed on the 29 March 2010 incident.

45. In summary, the claimant’s complaints of sectarian discriminatory detriment and of harassment could not succeed, because of the following considerations. The terms and conditions allegations and the health and safety allegations fail because they are not factually well-founded. In the case of the “Brigadier” remarks, they fail because of the reasonable practicability defence. The unknown language allegation would fail because (even if one were to accept the allegation in the terms in which it has been stated by the claimant) there is no clarity as to whether or not there was an “Irish” dimension to the relevant conduct.

46. The claimant resigned from his employment with the Company because of what was said and done during a confrontation (between himself and Mr Michael Toner) which occurred on 29 March 2010, and because of what happened during the ensuing grievance process.

47. As already made clear above, the parties are in dispute on the question of whether or not some or all of the complaints of detrimental discrimination and harassment were brought within the relevant time-limits. On balance, we decided that it was just and equitable to extend the primary time-limit, in every relevant instance, so that the claimant’s complaints of sectarian discrimination and harassment could be adjudicated upon. In arriving at that conclusion, we had regard to the sometimes lengthy periods which had elapsed from the dates on which the relevant conduct allegedly took place; and we noted the likelihood that there would be some significant prejudice, to both parties, in terms of presenting evidence, as a result of the delays in bringing the proceedings in respect of the relevant allegations (those allegations of detrimental discrimination and unlawful harassment which had not been brought within primary time-limits).

48. The Company sought to defend itself against all of the claims of discriminatory treatment and harassment (including the claim of discriminatory constructive dismissal) by arguing that the Tribunal is deprived of jurisdiction on account of the claimant’s failure to set out any allegations of discrimination or of sectarian harassment in any written grievance, in advance of the commencement of this litigation. Article 20 of the Employment (Northern Ireland) Order 2003, when read with provisions of the Dispute Resolution Regulations (which have been made pursuant to the 2003 Order) is clear in its effect. A tribunal, in the circumstances of this litigation, is deprived of jurisdiction, in respect of a complaint of discriminatory detrimental treatment, and in respect of a complaint of unlawful harassment, unless a written grievance in relation to those matters has been lodged with the employer, by the employee, prior to the commencement of the tribunal proceedings. It is clear, in this case, that the claimant’s only written grievance related only to mistreatment by Mr Toner during the 29 March 2010 incident, and it is equally clear that that particular grievance did not touch upon any allegations of sectarian conduct. For that reason, we are constrained to conclude that we probably have no jurisdiction to entertain the claimant’s claims of detrimental treatment, and of sectarian harassment and of discriminatory dismissal. (However, our conclusions on this jurisdictional point are of limited practical significance, given our conclusions in respect of other aspects (as set out above), of the relevant allegations and claims).

49. Article 20 of the 2003 order, when read alongside certain provisions of the Dispute Resolution Regulations, has to be regarded as depriving this Tribunal of jurisdiction to entertain any complaint of a discriminatory constructive dismissal if the allegedly discriminatory nature of the relevant alleged repudiatory breach of contract has not been outlined in a pre-litigation grievance. We have looked carefully at the claimant’s statement of grievance in this case. In our view, it clearly does not refer to any sectarian aspects of the conduct complained of (which is the conduct of
Mr Toner during the 29 March 2010 confrontation).

50. Accordingly, we are constrained to conclude that we have no jurisdiction to entertain the complaint of constructive dismissal which the claimant has made under the 1998 Order. (However, the practical implications of this conclusion are limited, in view of the conclusions which we have arrived at on the question of whether or not the dismissal was, in any event, a constructive dismissal: See below).

51. The claimant’s account of the 29 March 2010 confrontation is well expressed in his letter to Mr Flanagan of 30 March (which constituted the claimant’s written statement of grievance). According to that letter:

“On Monday 29 March 2010, at approximately 8.30 am, I was in the back of the lorry loading it in preparation for my deliveries that day, when I was approached by Michael Toner who said in a very aggressive manner that he needed a word with me. I asked Michael what he wanted to talk about and he said that 2 people had come to him on Friday stating that I had been bad mouthing him and saying that he needed to attend a management course. Without even giving me a chance to reply he said that Michael Flanagan had called him last week to say that there were too many drivers and that he needed to get rid of some of them and that I could quite easily be the first to go. He told me that this needed to stop or else.

I told Michael that I hadn’t said anything about him and he replied that he was happy and that was the end of the matter. However he then said that he wanted me to go and confront who I thought had said these things about me. He asked me had I fallen out with anyone last week and if I had I should maybe think about asking them. I went to look for Phil Smith and asked him had he made this statement about me to Michael and he said no I then went back to Michael, who was at this time still standing in the back of my lorry, and told him that I would be speaking to Michael Flanagan about this in a formal capacity as I was feeling completely uncomfortable with this whole situation. Michael said there was no need to involve Michael Flanagan as the conversation had ended and he had accepted my word for it.

Michael then walked away and I got into the lorry and left the yard to make my deliveries. However the conversation has left me feeling very intimidated and in fear that I would lose my job.

I contacted the office to arrange a meeting with yourself and you agreed to see me later that afternoon. However during the meeting I again began to feel totally uncomfortable by the way you spoke to me and felt that you were trying to pressurise me into dropping any formal complaint.

The thought of returning to work is making me feel quite anxious, stressed and unable to sleep, mainly because I feel that I have now been placed in a non-tenable situation where in order to keep my job I have to continue to work with a Manager who uses completely inappropriate language and acts in an unprofessional manner towards me.”

52. In considering the account of events which is set out in that letter, we have taken careful note of the sworn testimonies of the claimant, of Mr Toner and of Mr Flanagan.

53. On the balance of probabilities (and bearing in mind that we do not have to be satisfied about any matter beyond any reasonable doubt), we have concluded that the claimant’s account of events, as set out in that letter, is a substantially accurate account of the confrontation with Mr Toner.

54. The implications of our conclusions, regarding the accuracy of the account of events in the 30 March letter, are as follows. First, the claimant was spoken to in a bullying and inappropriate manner by Mr Toner. Secondly, Mr Toner entirely inappropriately threatened the claimant with dismissal.

55. When the claimant went to discuss the matter with Mr Flanagan, he (Mr Flanagan) discussed with the claimant the possibility of the matter being resolved on an informal basis, without going through any formal grievance process. In our view, it was entirely appropriate for Mr Flanagan to discuss that option with the claimant. (When disputes arise in the workplace, it is best that they are resolved, as speedily as possible, and as informally as possible, so long as people are not deprived of their legal entitlements). We are sure that Mr Flanagan did not (whether by word or action) attempt to deprive the claimant of his legal entitlements to pursue a formal grievance.

56. The claimant made it clear that he was determined to pursue a formal grievance.

57. As soon as the claimant made it clear that he was determined to pursue a formal grievance process, the Company made it clear that it was willing to engage with him in respect of that process. Some legalistic correspondence then passed between the claimant and the Company.

58. Soon after the 29 March confrontation, the claimant went on sick leave. (His doctor certified him to be unfit for work because of stress). A grievance hearing was arranged for 15 April 2010. However, on 9 April 2010, the claimant notified Mr Flanagan of his resignation. He did so, by writing to Mr Flanagan in a letter dated

9 April. The key paragraph in that letter is as follows:

“I feel that you are not committed to resolving this issue and I would be then placed in a difficult situation with regards [to] returning to work and having to deal with possible recriminations from Michael Toner because of the fact that I raised a formal complaint about him. Therefore I feel I have no choice but to resign from my position as Driver with the Company giving one week’s notice, making my last working day with the Company Friday 16 April 2010”.

59. So the position was as follows. The claimant had raised what he considered to be a very serious complaint about Mr Toner’s conduct. That allegation was being investigated during the course of a formal grievance process, which the claimant had insisted upon. While that investigation was still not completed, the claimant terminated his contract of employment.

60. Can the claimant’s resignation be treated as a dismissal? Only if he was resigning as a response to a repudiatory breach of the contract of employment.

61. From the correspondence which we have quoted, it is clear that the claimant took the view that the relevant repudiatory conduct consisted of the following:

(1) Mr Toner’s bullying conduct, in requiring the claimant to ask some of his colleagues whether they (the colleagues) were the source of the “leak” regarding the insulting remarks which the claimant had allegedly made about Mr Toner;

(2) Mr Toner’s bullying behaviour in warning the claimant that his job could be at risk if he repeated any such insulting behaviour; and

(3) the allegedly inadequate responses, on the part of Mr Flanagan, in the context of the claimant’s grievance.

62. Having carefully compared and contrasted the accounts of events of the claimant and of Mr Flanagan (regarding Mr Flanagan’s response to the claimant’s grievance), we prefer Mr Flanagan’s version of events. We are satisfied that the actions which he took, in connection with the grievance, were entirely appropriate and proportionate. In our view, the claimant has no good reason to criticise Mr Flanagan’s responses in that connection.

63. In deciding whether or not the Company has carried out a repudiatory breach of contract, we are entitled to take account of any acts or omissions on the part of managers, such as Mr Toner. So the Company has to be treated as having bullied the claimant in the two ways which we have already described above. Against the factual background of this case, do those two incidents of misconduct, in themselves and when taken together, constitute a repudiatory breach of this contract of employment? In our judgement, they do not.

64. It is true that it was inappropriate for Mr Toner to “require” the claimant to go and talk to his colleagues about the insulting remarks which the claimant had allegedly made about Mr Toner. It is also true that it was entirely inappropriate for Mr Toner to pretend that the claimant’s job could be put into jeopardy on account of the alleged insulting remarks. However, there was a clear process for resolving those matters. There was an internal grievance process, which the Company was very willing to implement. There was also the option of having an informal dialogue, with a view to making sure that Mr Toner was reminded, on an informal basis, that he ought not to be saying the things which he did say.

65. Both of those options (the formal grievance option and the informal dialogue option) offered the possibility of addressing the hurt which the claimant felt, and of allowing the protagonists to move on. The claimant prevented those options from being implemented, by terminating the relationship.

66. Accordingly, against that background, and for those reasons, we have concluded that there was no repudiatory breach of contract. Because there was no repudiatory breach of contract, there was no constructive dismissal. Because there was no constructive dismissal, the termination of this contract of employment has to be regarded as having occurred because of the resignation of the claimant. Because the termination occurred by way of resignation, the claimant cannot successfully complain either in respect of unfair dismissal or in respect of discriminatory dismissal.

67. We accept that, subjectively, by early April 2010, the claimant felt that there had been an irretrievable breakdown of his relationship with Mr Toner, on account of what had occurred on 29 March 2010. We also accept that the claimant was distressed at that time. However, in our view, nothing had been said or done (by Mr Toner) which would have caused an employee reasonably to conclude that the continuation of the line management relationship (between the claimant and Mr Toner) was, in practice, impossible. On the contrary, a continuation of that relationship was entirely practicable, especially if both Mr Toner and the claimant had approached the matter in a constructive frame of mind.

68. We have noted that, in his letter of 9 April, the claimant makes the following comments:

“I would also like to remind you that last year I raised this issue with you about Michael Toner’s attitude towards me and you assured me that you would deal with this without it having to become a formal matter”.

69. Having considered the oral testimony of the claimant and of Mr Flanagan, we are satisfied that this part of the claimant’s evidence is inaccurate. We are satisfied that, in reality, until the March 2010 incident, the claimant had never complained to Mr Flanagan regarding Mr Toner’s attitude.

Chairman:

Date and place of hearing: 7 and 8 February 2011, Belfast.

Date decision recorded in register and issued to parties:

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