Connolly v Dermot McMullan and Pauline Mc... Dermot McMullan and Pauline Mc... Dermot McMullan and Pauline Mc... [2013] NIFET 3

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 92/12 FET

1591/12

3/13 FET

CLAIMANT: Gavin Cyril Connolly

RESPONDENT: Dermot McMullan and Pauline McMullan, t/a Oakdene Services

DECISION

The unanimous decision of the Tribunal is that:-

(i) The respondent unlawfully discriminated against the claimant on grounds of religious belief or political opinion, contrary to the Fair Employment and Treatment (NI) Order 1998.

(ii) The claimant was constructively and unfairly dismissed by the respondent.

(iii) The claimant was not victimised by the respondent.

(iv) The respondent is ordered to pay to the claimant the sum of £14,152.00 as set out in paragraphs 4.9 and 4.13 of this Decision.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr J Kinnear

Mr M Grant

Appearances:

The claimant was represented by Ms Suzanne Bradley, instructed by The Equality Commission for Northern Ireland.

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

1. ISSUES

1.1 The issues for the Tribunal to consider fell into three categories before the Tribunal:-

(1) Discrimination on grounds of religion

(a) Was the claimant subjected to direct discrimination on grounds of religious belief contrary to Article 3(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998?

(b) Did the claimant suffer less favourable treatment because he was not a member of the Brethren community, whereas his employers and some other members of their staff were members of the Brethren community?

(c) Was the claimant subjected to harassment contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998?

(d) Are any of the acts of discrimination complained of continuing acts or is any part of the claim out of time? If so, should the Tribunal exercise its discretion to admit those elements of the claim which are out of time?

(2) Unfair Dismissal

(a) Was the claimant unfairly selected for redundancy? Was the claimant constructively unfairly dismissed contrary to Article 126 and Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996?

(b) Did the respondent commit a fundamental breach of contract or show an intention no longer to be bound by the contract of employment with the claimant, such as to justify the claimant resigning on 24 July 2012?

(d) Did the claimant delay in resigning and waive the breach of contract?

(e) Did the respondent comply with the Labour Relations Agency Code of Practice in relation to grievance procedures and in respect of the claimant’s grievances lodged on 13 June 2012, 11 July 2012 and 17 July 2012. If not, is the claimant entitled to an uplift on any award made to him?

(3) Victimisation

Was the claimant victimised by the respondent because he:-

(a) Brought a claim of religious discrimination against the respondent?

(b) Raised grievances against the respondent alleging discrimination on grounds of religious belief?

1.2 (4) Preliminary

At the outset of the proceedings it was drawn to the Tribunal’s attention that the respondent had not lodged a response to the claim of victimisation made by the claimant in this case. The respondent’s representative indicated that they had not formally been served with a claim form. They conceded however that they had received a copy of the claim in the course of documents being made available in preparation for the case. The panel also noted that there had been two Case Management Discussions in relation to this case in April/May 2013 and the respondent’s representative had never raised an issue about the claim form not having been received. This was in spite of the fact that they had been put on notice that a claim of victimisation would be made in December 2012. They had also received the claimant’s witness statement which set out particulars of the alleged victimisation. The respondent’s representative, rather belatedly, made an application to file a late response and this was objected to by the claimant’s representatives. We considered this matter carefully. It did seem to us that the application on the part of the respondent’s representative was somewhat disingenuous, as they were well aware both that the claim was to be lodged and also that it actually had been lodged at the latest by February 2013, and no application was made to lodge a late response at that stage. However, we are satisfied that the case has been prepared for hearing on the basis that the victimisation claim would be defended and that there is no prejudice to the claimant in the matter being defended. It is our view that it is in the interests of justice for the response to be lodged and accordingly we agree to permit lodgement of the late response.

1.3 It was clarified that the respondents’ business is run as a partnership. At the relevant time when the claimant was employed by the respondent the partners were Dermot McMullan and Pauline McMullan and accordingly we order that the name of the respondents shall be amended to read “Dermot McMullan and Pauline McMullan t/a Oakdene Services”.

2. FACTS

2.1 We had the benefit of hearing evidence from the claimant, from his former colleague, Mr Jordan Anderson, and from Laurie McMullan, Dermot McMullan, Mrs Pauline McMullan, Daniel White, Michael Carless, Edward Lavery and Mr Colin Cummings on behalf of the respondent. A number of documents were opened to us in the course of the hearing. There was considerable conflict between the two parties in relation to the facts of this case. We set out below our findings of fact insofar as they are relevant to the determination of the issues.

2.2 The claimant commenced employment with the respondent on 2 August 2010. The respondent firm is a commercial printing and merchandising company based in Newtownabbey. The chronology of events is summarised in the next paragraphs, before we go on to consider the detailed allegations made by the claimant. The claimant was initially employed within telemarketing, but the business card with which he was issued simply refers to him as being within “Sales and Marketing”. From August 2010 until he moved to a sales role in 2011, the claimant was mainly office-based and did not require the use of a car. Over the course of his employment the claimant had two pay rises. Within the sales department the claimant reported to Laurie McMullan, son of Dermot and Pauline McMullan, who was the General Manager. The McMullan family belong to the Brethren denomination, the claimant does not. The main staff in the Department were Dermot McMullan and Jamie McMullan who were salesmen, and the claimant and Gary Bell who worked in telemarketing. Mr Bell subsequently left and was replaced by Jordan Anderson who was non-Brethren. Shortly after the claimant started work Daniel White and Daryl White joined the company. Initially neither of them was involved in sales but subsequently both moved to sales posts. Both were members of the Brethren community. Within the firm as a whole, there were about 24 people employed, including Mr and Mrs McMullan, who were Brethren and who were then the only partners. Of those 24, about 10 were non-Brethren and the rest were Brethren.

2.3 In the summer of 2011 - the claimant believed it was May 2011 but other witnesses indicated that it was August 2011 and we accept that it probably was later in the summer 2011 - the claimant’s role changed in that he was asked to do a mixture of telemarketing and outside sales. This was on the basis that the claimant, Jordan Anderson and Laurie McMullan had attended a training course which indicated that telemarketing alone was not the best way to promote sales within a company. Jordan Anderson did not enjoy this role and asked to be moved back to telemarketing. He was then given a position in “lead nurturing” from Autumn 2011. The claimant however was in a sales role, apparently similar to that of Daniel White and Daryl White, from at least August 2011 through until the end of March 2012. The claimant then moved to the lead nurturing role following Jordan Anderson’s departure from the company in February 2012.

2.4 On 13 June 2012 the claimant was invited to a meeting by Laurie McMcullan and told at that meeting that his job had been identified for possible redundancy. The claimant was shocked and upset by this because he had no prior indication of it. He was told that his was the only post which had been identified for redundancy. That evening, the claimant sent a detailed grievance to the respondents by e-mail. The following day his colleagues Daniel White and Daryl White were told that their posts were also at risk of redundancy. The claimant was on self-certified sick leave for a few days to 19 June. He resumed work on 20 June only to be told at this stage that the management of the respondent's eBay site, which had been the claimant’s responsibility, had been moved from him. He was subsequently certified as sick by his General Practitioner for 2 weeks until 5 July 2012 and his sick line showed that he was suffering from work-related stress. The claimant received a further sick line from his GP, but was still being pressed to attend meetings. The claimant then resigned his post on 24 July 2012 and, in his resignation letter, said he believed that he had been constructively dismissed. Following this, the respondent agreed to set up an independent grievance hearing chaired by a Solicitor, Teddy Lavery, who had been retained to do this job. The claimant agreed to defer acting on his resignation that the basis that a grievance would be dealt with on 1 August and he would receive the outcome by 3 August. He was then given an indication that it would be provided by 10 August 2012. When he was subsequently advised on 9 August that the grievance outcome would not be available by 10 August, the claimant confirmed his resignation. Details of the way that the grievance was addressed and its outcome are set out below.

2.5 The detailed allegations made by the claimant in relation to each of his specific claims were as follows:-

2.6 (1) Religious Discrimination

The claimant’s case is that he was discriminated against by his employers who were members of the Brethren community. The claimant specified a number of ways in which he alleged he had been treated less favourably than his Brethren colleagues.

2.7 (a) Lunch breaks - A refusal by Brethren to eat with non-Brethren

The claimant indicated that he had became aware after starting work that members of the Brethren community did not have the same lunch breaks as members of the non-Brethren community. This was explained to us by Laurie McMullan and other Brethren witnesses as a requirement of their religion that they should withdraw themselves from eating with anyone with whom they did not share communion. In practice, that this meant that within the respondent’s workplace there were two lunch breaks, one for Brethren and one for non-Brethren. This was also manifest at training sessions, when members of the Brethren community ate separately from members of the non-Brethren community. In one specific incident (early in 2011) the claimant and Jordan Anderson were directed to eat at lunchtime along with the trainer (who was also non-Brethren) and separately from the other Brethren participants in the course. It was the claimant’s evidence that he felt isolated and separated from his colleagues and he also noted that informal chats about work over lunch breaks were curtailed because of eating separately.

2.8 (b) Company Cars

When the claimant was first employed by the respondent it was as a telemarketer and he acknowledged that as he was working at the respondent’s premises, he did not need a car to carry out his role. However, in Summer 2011 when the claimant moved to a sales position, he was travelling out to see customers more frequently. In September 2011, the claimant sent a letter by e-mail to Laurie and Dermot McMullan seeking a company car. The claimant indicated that he believed he had been treated less favourably than some of his colleagues, specifically Daniel White, Daryl White and Craig McMullan. In his e-mail, the claimant set out that it was his understanding that he was now the only member of the sales staff who did not have the benefit of a company car. He pointed out that he had raised this informally and that he had been encouraged to reach his sales targets. He pointed out that he was achieving targets and indeed that he had exceeded them. The letter also set out that Craig McMullan, who had initially been employed as part of the sales team and therefore had had a company car as a contractual entitlement, had moved to a role within production where he did not require the use of a car. No response was received to this e-mail, apart from an acknowledgement by Laurie McMullan, indicating that they would “get back to” the claimant.

2.9 The respondent’s response at the hearing was that Mr McMullan had been seconded to the post in production and that he still had a contractual entitlement to a car. Both Daniel White and Daryl White at this stage had access to company vehicles. Daryl White had the use of a van which he used to travel from Londonderry (where he lived) to work. The reason he had been given the van initially according to the respondent was so that he could carry out deliveries on their behalf each morning at Campsie. However, he was able to retain the vehicle for private use as well. Daniel White’s evidence to the tribunal was that he had use of a “pool car” and that he did not have any entitlement to a company car until June 2012, when a vehicle was bought for his use. It was put to him that he had use of a Saab, but he emphasised that was a pool car. However, he did agree that if he had sales calls to make in the North West on a Thursday or Friday then he would use this vehicle to make these calls and would retain the vehicle over the weekend. We find as a fact that although Daniel White did not formally have a company car until June 2012, he did have the use of a car which, although nominally a pool car, he could use to travel to and from work and for private use at weekends.

2.10 Neither the claimant nor Jordan Anderson had use of a company car. Jordan Anderson subsequently moved back to exclusively in-house telemarketing sales in August/September 2011 and left the company in February 2012. Accordingly, at this stage, the claimant was the only member of the sales team travelling out to see customers who did not have a company car and he was also the only member of that team who was not Brethren. The claimant also asserted, and it was not disputed by the respondents, that there were other members of the firm who had company cars, were members of the Brethren community and were not involved in sales.

2.11 (c) Differences in Pay; Bonus on Marriage/Birth of a Child

The claimant was initially employed within telemarketing and in the course of his employment with the respondent he received two pay rises, first moving from £16,000.00 per annum to £18,000.00 per annum in 2011 and then to £19,500.00 in early April 2012.

2.12 When Daniel White was first employed in 2010 he started on a salary of £15,000.00 per annum. His pay was subsequently raised to £17,472.00 and then to £19,500.00 prior to April 2012. In April 2012 his pay was increased to £25,000.00 per annum and in September of that year a new contract was issued to him formally recording his entitlement to a company car, although the car had been provided to him in June 2012. Daryl White also was initially employed on the production side of the business in 2011 at a salary of £16,000.00 per annum. He subsequently received a pay rise to £20,000.00 and then in April 2012 he received a subsequent pay rise to £25,000.00 per annum. However in his initial contract dated 31 May 2011, Daryl White’s job title is given as “Sales/Marketing” and that contract confirmed that his position had the benefit of a company car. As noted above, that car was primarily to enable him to carry out deliveries on behalf of the company rather than to carry out a sales function.

2.13 Craig McMullan, who was employed initially as a sales representative, subsequently moved to the production side of the business. Both Laurie and Dermot McMullan were adamant that he was moved on “secondment” to gain more knowledge about products. This was also Craig McMullan’s evidence to us although the claimant alleged it was because Craig McMullan had not proved successful in the sales role. Certainly his “secondment” to the production role was not formally recorded as the claimant’s move to lead nurturing was in March 2012. Mr McMullan confirmed Craig McMullan had joined the company in November 2010 on a salary of £20,000.00. In September 2011 after he had moved to the production side of the business (away from sales), his salary was increased to £25,000.00 and he retained his company car. In April 2012 his pay was increased to £28,000.00 per annum and in June of that year he moved back to the sales department doing some sales and as a Personal Assistant to Laurie McMullan. This increase in pay was reflected in a new contract issued in September 2012. Daryl White, Daniel White and Craig McMullan are all members of the Brethren community.

2.14 It was the evidence of the claimant and Jordan Anderson (although strongly denied by both Laurie McMullan and Dermot McMullan) that they believed there were differentials in pay and that they were paid less than their Brethren colleagues. The respondents indicated that the reason Daniel White received pay rises and a company car was because of the excellent sales records he had produced. No documentary evidence of this was adduced. However Laurie McMullan’s evidence was that “Daryl was letting the whole team down” and that his sales figures were poor. It is difficult to see therefore how the respondent justified giving Daryl White a rise in pay of £5,000.00 per annum in April 2012 if his sales figures were poor. Equally, it is difficult to see how Craig McMullan’s substantial pay rises were justified when he was in the production side of the business and not in sales. The claimant and Jordan Anderson both gave evidence that in discussions with Daniel White, he had told them that when a Brethren man got married, his wages were increased by the company. Jordan Anderson said that he had raised this with Laurie McMullan who had replied that this was correct, because married female Brethren do not work and their husband’s wages were therefore increased to compensate for this. There was also a comment made to the effect that when children were born to Brethren staff, this was taken into consideration and an increase would occur at that stage as well. Mr McMullan flatly denied that he had made this comment. We note however that Craig McMullan was married at the end of February 2012 and received a pay rise of £3,000.00 per annum from April 2012. While Craig McMullan denied that he had received a pay rise because of his marriage, we note that the timing of the pay rise closely follows the date of his marriage. On balance, we are satisfied that the pay rise was due to Craig McMullan being married and being Brethren. The claimant was not married but indicated that he had been discriminated against on the grounds that he and his partner had had a child while he was working for the respondent and he had not received any bonus. Craig McMullan indicated that his first child was born early in 2013 but that he had not received any pay rise as a result of this. This was after the claimant had left the respondent firm and no evidence was adduced to us of this matter and so we are unable to make any finding in this regard.

2.15 (d) Discriminatory Comments

The claimant gave evidence that Brethren colleagues would refer to non-Brethren as “worldly”. Various witnesses who gave evidence on behalf of the respondent - Mr McMullan, Laurie McMullan, Craig McMullan and Daniel White in particular - indicated that the term was used to distinguish between Brethren and non-Brethren people but did not agree that the comment was in any way derogatory. They also indicated that the term would not be used to
non-Brethren people but only about them.

2.16 The claimant also indicated that he had spoken to Laurie McMullan early in February 2012 and had asked him if he would prefer to employ only Brethren people. He indicated that Mr McMullan had said that would be his preference “but there was law out there”. In spite of the assertion by Brethren witnesses that the term was not used in a derogatory way, the net result was that the claimant and Jordan Anderson both felt that they were being treated as “different” and both said that they felt uncomfortable about approaching the management of the company in relation to work-related issues as they felt that they would be treated less favourably than Brethren employees.

2.17 (e) Mobile Phones

The claimant made the case that he and other members of the Sales Team were treated differently in that he did not have a Blackberry for business use. The claimant and Jordan Anderson were given standard mobile phones for business use. Daniel and Daryl White however were provided with new Blackberry mobile phones which were e-mail enabled and therefore could be used to pick up business e-mails in the course of the day. The respondent indicated that the claimant did not require the functions of a Blackberry. However, although the claimant initially was office based and used an e-mail on his work computer, he moved to a mixed Sales and Telemarketing role which involved in being out of the office so he needed to pick up his e-mails and respond to them in the course of the day. It was also noted that although the respondents did not supply a Blackberry for the claimant, they agreed to him accessing work e-mails from his personal mobile Blackberry phone which meant that the respondent had the advantage of the claimant being able to use this function. While the respondent made the point that the two people issued with Blackberrys had to pay for their personal use of the phone, the only evidence of this was two payslips for June and July 2012 following the claimant raising a grievance in relation to this issue. The claimant also pointed out that the national insurance number on all four payslips was the same which raised a doubt in his mind as to the accuracy of the information provided.

2.18 (f) Out of Hours Meetings

The claimant and Jordan Anderson became aware that early morning meetings were held at the respondent’s premises to which only Brethren members of staff were invited. Mr Dermot McMullan, Laurie McMullan and Craig McMullan indicated that these meetings were held at most twice a year and that they related to purely internal Brethren business. Both Dermot and Laurie McMullan stated their position as follows: “The meeting is held on our own premises and outside working hours. Surely we are entitled to use our premises in whatever way we wish”. Daniel White indicated that as he was travelling from Londonderry most mornings, the meetings were not a regular occurrence or he would not have been able to attend. All of them were adamant that the meetings were very occasional meetings and not a regular occurrence. This was contrary to the evidence given by Jordan Anderson that the meetings took place on average three times per week. The claimant did not indicate that he was at work while the meetings were going on, but was aware they took place. The main issue from the claimant’s point of view in relation to these meetings was that he had been told by Daniel White that sales and marketing issues were discussed at the meetings. It was his evidence and that of Jordan Anderson that they both felt isolated by being excluded from these meetings. As a matter of fact, we find that these meetings took place occasionally rather than several times a week and accept the evidence of the respondent’s witnesses that the meetings were predominately to do with Brethren community business. However, we also note that they were held on business premises and that the meetings were still going on or just finishing as non-Brethren staff were arriving for work. We therefore accept the claimant’s evidence that he felt excluded from these meetings and isolated from them.

2.19 (g) Training Opportunities

The claimant alleged that he had been excluded from training opportunities by the respondent. There was an annual trade show in relation to promotional merchandise (which is part of the respondent’s business) held in England in the early part of each year. Laurie McMullan confirmed that quite a number of the sales staff had gone to this show in Coventry in 2011. Certainly Daniel White and Daryl White went to this conference, but the claimant did not. Laurie McMullan’s evidence was that with hindsight it had not been cost effective for so many people to go. In 2012 however, he and Lloyd Palmer (who was involved in dispatch) went to the conference. Mr McMullan was then the General Manager and not a salesman. None of the other Sales staff were included, certainly the claimant was not, and he believed he had been disadvantaged by not being able to attend this trade show. The claimant had been advised by Daniel White that another reason why the claimant was not sent to this course was that when Brethren travel to such shows, they normally stayed with other Brethren families. The claimant, as a
non-Brethren, would not be able to do this and therefore there would be more cost to the company. This was completely denied by Laurie McMullan, but he did concede that when he and Lloyd Palmer travelled to the trade show they had stayed with friends who lived locally. We note that the claimant’s exclusion from this event was a “one-off” and that he was included in other training events.

2.20 (h) Motivational Correspondence/E-mails

It was agreed between the parties that motivational posters were put up around the respondent’s premises and also that the Brethren members of staff received a personal e-mail to their work computer each day, including a word, proverb or a quotation from Scripture. Craig McMullan’s evidence was that this was to keep the scripture before an individual and in their mind during the working day. However, these e-mails could only be sent to members of Brethren as they needed a special code to sign up for them. The claimant again felt excluded in this regard. It is clear that there were some motivational posters headed “Silver Bullets” which were posted around the respondent’s premises. These were not religious in content and were purely to do with business matters.

2.21 (i) eBay Account

The respondent had decided to set up an eBay account as way of selling off some old and sample stock. At a sales meeting early in June 2012, the claimant offered to attend to this as he had some experience of dealing with eBay accounts. This was progressed by the claimant, however shortly thereafter he was given notification of potential redundancy and then went off sick for a couple of days. On his return to work, on 19/20 June he was advised that the responsibility for the eBay account was being taken from him and passed to Michael Carless. The e-mail he received from Pauline McMullan indicated that this decision had been taken because it was imperative that items would be posted out after a transaction had been completed, so they had “no other option but to make alternative arrangements for the care of the eBay listings”. While the claimant acknowledged that someone else needed to deal with the eBay account in his absence, he queried why the work needed to be moved from him permanently. He had noted that this had happened after the submission of his grievances and he believed that this was a step taken by the respondent with a view to getting rid of him. It was subsequently alleged by the respondent that the claimant had not looked after the eBay account properly and their items had been listed without reserve costs being stated, thereby generating a loss for the company. No evidence of this was adduced by the respondent.

2.22 (2) Constructive Dismissal/Unfair Selection for Redundancy

The second limb of the claimant’s claim is that he was unfairly selected for redundancy. He also claimed that as part of the redundancy situation, when he raised a grievance in relation to the identification of his post for redundancy and raised issues in relation to religious discrimination, his grievance was dealt with in such a poor manner that this constituted a fundamental breach of his contract on the part of the respondent. We take these matters individually.

2.23 (a) Selection for redundancy

The first issue to be considered is the evidence for a redundancy situation existing when the claimant was advised of the potential redundancy in June 2012. Laurie White gave evidence that costs had been increasing and that the company needed to save money. He indicated that the company had increased their prices by 3% to boost profits in April 2012 and that they had cancelled a contract with Creative Media to save money. Dermot McMullan’s evidence to the Tribunal was that he had been advised by his accountant that the company needed to save £40,000 per year. When asked when that advice had been received, Mr McMullan was unclear about this. He said that it was “sometime in 2012”. In spite of being asked to clarify whether it was before or after the company’s year end (which falls in March each year) he was unable to specify when the advice had been received and what other steps had been taken in response to it. Dermot McMullan did not produce any correspondence from his accountant or any annual accounts to justify his assertion that there had been a falling off in business and that the firm needed to make redundancies.

2.24 The Tribunal also notes that almost all staff had received pay rises in 2011. Late in 2011 and in April 2012, Craig McMullan had received pay rises totalling £8,000 per annum. Daniel White had received a pay rise of £5,000 per annum plus a funding of the company car valued at £6,500.00 and Daryl White received a pay rise of some £5,000 per annum plus a company car. The claimant also received a pay rise and was put on a bonus scheme. These expenses alone amounted to over £20,000 per annum in terms of expenditure.

2.25 It is also clear that when the claimant was first notified of the potential redundancy on 13 June 2012, his was the only position which was identified as being at risk of redundancy. The claimant had been called to a meeting with Laurie McMullan and Michael Carless (as minute taker) on the morning of 13 June 2012. At that meeting, Mr McMullan indicated that “We have looked at every department and unfortunately telemarketing is showing poor returns”. He asked the claimant to think of any alternatives to suggest at the next meeting to avoid redundancy. The claimant specifically asked what other areas were being looked at for compulsory redundancy and Laurie McMullan’s reply was “The area of marketing has shown the least returns”. The claimant pointed out that he had achieved his targets for the last quarter and Mr McMullan stressed that, “This was no reflection on you but the job role in telemarketing is “at risk” because of the poor returns”. In the letter which Laurie McMullan gave to the claimant at the end of the meeting, the claimant was advised that his position was at risk and he should regard the letter as warning of a potential redundancy. The letter also said “On a personal note, may I say how sorry I am that this situation has come about, and I wish to assure you this is no reflection on your ability or commitment to the company. It merely reflects the current difficult circumstances in which we are operating”.

That letter indicated that there would be a further meeting on Friday, 15 June 2012 at 11.00 am at which the claimant was entitled to be accompanied by a fellow employee or a trade union official.

2.26 In his evidence to the Tribunal, Laurie McMullan indicated that the claimant had not performed well in previous months, that he had not achieved targets and that Mr McMullan had reduced the claimant’s targets so that he would achieve his bonus. This seems to be an exceptional way of conducting a business. It is also at odds with Mr McMullan’s comments to the claimant in the course of these meetings. Indeed Mr McMullan produced a sales analysis of the claimant’s contacts with outside meetings during which time the claimant was carrying out both telemarketing and outside sales roles. Dermot McMullan’s evidence was that he did approximately 8 calls with customers each day. While this indicates only an average of 1.3 calls per day from January to April 2012, it is fair to note that the claimant was never pulled up on his work performance and also that he was doing this work while also carrying out a telemarketing role. No comparable analysis was produced for the other sales personnel.

2.27 As a matter of fact we find that there was not a redundancy situation in existence in June 2012. Further we find that as a fact that the claimant’s post was the only post identified as potentially redundant and this was conceded by Laurie McMullan in his evidence to the Tribunal. He further agreed that it was only after receipt of the claimant’s grievance by e-mail on the evening of 13 June that a decision was taken to include Daniel White and Daryl White within the potential pool for redundancy.

2.28 In the claimant’s grievance letter of 13 June 2012, he pointed out that he had been told that he was the only employee at risk of redundancy and put forward the view that the decision not to include Daryl and Daniel White within the redundancy pool was unfair and that the claimant believed that he had been treated less favourably than them. He indicated that he had previously raised a grievance regarding inequalities within the respondent firm and set out a further grievance. The letter raised concerns that a predetermined decision had been made regarding the redundancy process as the claimant had been told by Laurie McMullan that he would receive a month’s pay as part of the redundancy. He also alleged he had been told that redundancy involved no notice pay requirements.

2.29 An e-mail was sent in reply by Laurie McMullan that evening, denying that the claimant had not been informed of what his redundancy pay would be. The claimant was then sent an e-mail by Laurie McMullan later in the afternoon of 14 June, advising him that he intended to address the claimant’s grievance at the next redundancy consultation meeting on 15 June 2012 at 11.00 am. The claimant replied that evening, saying he would not be fit to attend work the following day or to attend the meetings and would send a fit note from his doctor. Following this the claimant sent a letter to Mr McMullan on 18 June indicating that he was dissatisfied with this proposed course of action for dealing with his grievance, and that the grievance and redundancy process should be dealt with separately. He also pointed out in that letter that he objected to Mr McMullan presiding over the redundancy process and the grievance process as he believed that he was being discriminated against on grounds of religion.

2.30 Following this, the claimant attended his doctor and was subsequently certified as sick for a period of two weeks from 20 June until 5 July. He was notified in the meantime by the respondent that his grievance was to be referred to Pauline McMullan. His sick line showing that he was suffering from “stress-work-related” was sent to the respondent on 20 June 2012. Mrs McMullan however proposed to go ahead and hold a grievance meeting on 22 June 2012. The claimant asked for the meeting to be postponed due to his poor health. He stressed in the e-mail which he sent to Pauline McMullan that it was his intention to attend a grievance meeting when he was deemed fit by his GP. Mrs McMullan however replied that the company needed to deal with this matter and offered him the opportunity to attend by telephone, by making written representations or by sending someone else on his behalf. The claimant indicated that he could not participate on that basis. He wrote an e-mail on 20 June 2012 to Mrs McMullan, asking her to reschedule the meeting for a date at some point after his medical line had expired. He also indicated that if the respondent continued to act in this manner:-

“I would consider your actions as tantamount to a further act of discrimination and as a blatant refusal on your part to afford me my basic statutory rights”.

The grievance meeting went ahead in the claimant’s absence and perhaps unsurprisingly, the outcome was that the grievance was not upheld.

2.31 On 25 June 2012, the claimant e-mailed Mrs McMullan to ask if the meeting had gone ahead and then to ask for details of the outcome. The letter sent by Mrs McMullan to the claimant on 27 June indicated that his grievance had not been upheld and stressed that if he wished to appeal he should do so within 24 hours, although the company handbook stated that the time limit for lodging an appeal was five working days. The claimant lodged an appeal and this was to be dealt with by Dermot McMullan. He initially arranged the appeal meeting for 2 July 2012, before the expiry of the claimant’s sick line. The claimant asked for a postponement until his sick line had expired. He was then advised of an appeal meeting on Thursday, 5 July at 7.30 am at the Oakdene Board Room. The claimant e-mailed Dermot McMullan on 4 July to say that he had been to see his GP that day and had been declared unfit for work for a further two weeks. After that he received an
e-mail sending the invitation to the meeting on 5 July. He
e-mailed Mr McMullan to indicate that he could not come to work for another two weeks and would not therefore be fit to attend the appeal hearing. The appeal hearing went ahead in his absence and again, not surprisingly, the appeal was turned down. Following this the claimant received a letter dated 9 July 2012 from Laurie McMullan which was a formal notification of redundancy. This letter was much more detailed than the letter which he had been handed on 13 June.

2.32 On 11 July 2012 the claimant sent a detailed letter to the respondents setting out a grievance in relation to the way his initial grievance had been dealt with. The position can be summarised by his first paragraph which says:-

“I believe I have been unfairly treated throughout the grievance process, that no consideration was given to the fact that I was unwell and therefore unable to attend any hearing scheduled and I therefore believe that the grievance process was neither fair nor meaningful.”

He asked for his letter to be treated as a further grievance and a hearing arranged when he would be fit to attend. His medical certificate took him up to 19 July 2012.

2.33 A redundancy consultation scheduled for 11 July 2012 went ahead in the claimant’s absence and he was sent a copy of the minutes of that meeting on 13 July 2012. By this stage the claimant was increasingly distressed at the way matters were unfolding. He sent a further grievance letter to the respondent by e-mail on 17 July 2012, setting out in detail allegations of religious discrimination against the respondents. A letter acknowledging receipt of this letter was sent to the claimant by the respondents on 18 July 2012. That letter gave the name of the signatory as “T Lavery Independent Grievance Officer”. Mr Lavery’s evidence was that he had not seen that letter and it was apparently “pp’ed” on his behalf by Laurie McMullan. A further letter was sent again in Mr Lavery’s name to the claimant on 18 July 2012. That letter suggested that a grievance meeting should take place on 25 July 2012 at 12.00 am (sic). The claimant was still off on sick leave at this time, and not due to return to work until August.

2.34 On 24 July 2012 the claimant sent a resignation letter to the respondent. This set out his dissatisfaction at the way his grievances had been addressed, alleging lack of consistency in how his grievances were dealt with and the pressure he had been put under to attend meetings when medically unfit to attend work. He indicated that he believed that these actions were designed to increase pressure on him to resign at a time when the company knew his health was suffering. He also believed that his relationship with the company was irrefutably damaged and that returning to work would only result in further discriminatory treatment. Accordingly he resigned his position. On 27 July Pauline McMullan sent a letter to the claimant asking that he reconsider his resignation. Her letter indicated that another grievance meeting had been scheduled for Wednesday, 1 August to be chaired by Teddy Lavery who had been nominated as an independent person to hear the grievance of 17 July 2012. The claimant agreed to let his resignation letter be suspended pending a grievance meeting. He indicated by e-mail that he would decide whether or not to withdraw his resignation when he received the outcome of that meeting. He had pressed for the outcome of the grievance to be available by 3 August. Mrs McMullan advised him that would not be feasible, but it should be available by 10 August. However she had not agreed this with Mr Lavery and in the event the outcome of the grievance was not available until September. Mr Lavery met the claimant on 1 August 2012 and had a meeting with him which lasted approximately an hour and a half. Minutes of that meeting were taken by Michael Carless.

2.35 On 9 August Mrs McMullan advised the claimant that the outcome of the grievance would not be available by 10 August and in light of that the claimant resigned. It does not appear however that Mr Lavery who was dealing with the grievance had been asked to ensure that his response would be available by 10 August nor was this apparently discussed at the grievance meeting itself. Mrs McMullan however was well aware that the claimant regarded the outcome of the grievance meeting as an urgent matter.

2.36 In relation to the way the grievance was conducted by Mr Lavery, we do not intend to rehearse every single incident which was addressed by him. We note a number of matters however. First of all Mr Lavery had had a previous professional relationship with the respondents’ family in that he had carried out a conveyancing transaction some 12 months previously on behalf of the respondents’ son. He agreed with hindsight he was probably not completely independent. Secondly, he confirmed that this was the first grievance he had ever conducted. Thirdly, his conduct of the matter was incomplete and unsatisfactory. He indicated that he had a brief conversation with Dermot McMullan after the grievance meeting had taken place that he had spoken to Pauline McMullan in the corridor of the respondent's building and that he had subsequently spoken to her by telephone. He does not appear however to have carried out a thorough investigation or interviewed any of the other individuals referred to by the claimant nor did he seek any documents for examination. Mr Lavery agreed that he was aware that the claimant was off sick but he had not been aware that the claimant was medically certified as suffering from stress. Mr Lavery made the point, quite fairly, that it would take sometime to produce a transcript of his meeting with the claimant and he was very frank in saying that the delay in issuing the decision was down to him. However, he had not been aware that there was any time pressure in producing the outcome. The bulk of Mr Lavery’s findings were against the claimant, in particular the issues regarding the salary, company car and mobile phones. In relation to the issue of lunch/break times, his comment was “Upon making enquiries about this, I find that the Brethren community treated everyone who was non-Brethren equally and as such that difference is a clear difference in religious backgrounds and not a discrimination against Mr Connolly individually, nor a policy which treated him less favourably.”

Fourthly, in his evidence to the tribunal Mr Lavery was unclear as to whether he was dealing with a grievance or an appeal and his letter to the claimant giving the outcome of his grievance, failed to set out any right of appeal.

2.37 Some of the other allegations made by the claimant were found to be unsubstantiated or unproven. This is perhaps not surprising given that Mr Lavery did not interview any of the other people the claimant indicated were involved. The only part of the grievance which was upheld was that the claimant had submitted a grievance to the company on 11 July 2012 and his grievance had not been responded to.

(4) Victimisation Claim

2.38 The claimant resigned his post on 9 August 2012. He obtained another post through an employment agency starting work on 13 August 2012. That job was with a firm named “Excite” Promotions and his employer in that post was Colin Cummings. Mr Cummings’ evidence was that the claimant had attended for two interviews before being appointed to the post and he had discussed with the claimant his background and experience. Mr Cummings specifically asked the claimant if there was any restrictive covenant in his contract with his previous employers which would limit the work he could do. The claimant told him on more than one occasion that there was no restrictive covenant in place. Mr Cummings’ evidence was that he had also checked this through the employment agency.

2.39 On 3 September 2012, Mrs Pauline McMullan on behalf of the respondent wrote to both the claimant and to Mr Cummings, pointing out the existence of a restrictive covenant in the claimant’s contract of employment with Oakdene which prevented him from taking up work with a competitor and contacting customers of the respondent for a period of nine months after the ending of this employment. Her evidence to the tribunal was that the respondent had been contacted by four separate customers who had been contacted by the claimant seeking their business following his appointment with Excite.

2.40 The claimant’s evidence in relation to this particular clause of his contract of employment was that he had been given the contract to sign in May 2011, some seven months after he started work. He indicated that he had drawn the restrictive covenant clause to his employer’s attention and expressed concern about it, but had been told that he had 24 hours to sign the contract. As a result the claimant signed the contract confirming his acceptance. In light of this it seems surprising to say the least that the claimant did not recall there was a restrictive covenant clause in his contract.

2.41 The letter from Mrs McMullan to the claimant sets out the contract clause at issue and concludes:-

“Further to this clause, Oakdene requires that you cease and desist your contact with clientele of Oakdene for the period as outlined in the agreement. Any further contact with any of our clientele may result in Oakdene pursuing legal action against you.”

2.42 It was Mrs McMullan’s evidence that, as with everything she had done during her entire dealings with the claimant, she had taken advice from Peninsula Business Services as to the appropriate course of action, and had followed their advice completely.

2.43 Two days later the claimant’s Solicitor wrote on his behalf to Peninsula Business Services, referring to Mrs McMullan’s letter, making the point that Oakdene’s action interfered with the claimant’s new employment. His letter also made the point that the contract relied upon by the respondent was signed by the claimant some nine months after he entered employment and was only signed by him because he had been told that if he did not do his employment would be terminated. He pointed out that this action endangered the claimant’s ability to mitigate his losses.

2.44 Mr Cummings said that he had contacted both the claimant and Mrs McMullan to discuss this matter. His evidence was that he wanted to try and deal with the matter as reasonably as possible, but he was understandably concerned about the threat of legal action against his own firm. He believed the respondent was amenable to resolve the matter by discussion. His evidence was that he wanted to keep the claimant but felt that he was in a difficult position. Mr Cummings met the claimant to discuss the way forward. The claimant’s response was, “I’ll just go” and he got up and walked out. The claimant then went on sick leave and left some time later.

2.45 Subsequently, when the claimant took up a new further post with Ageas 50 he was approached by the HR Advisor about a very negative reference she had received from his previous employers, namely the respondent. This meeting took place on 6 December 2012 when the claimant had already started work with Ageas 50 on 19 November 2012. The claimant was advised that the content of the reference referred to the claimant’s sickness levels and the reference also stated that the claimant’s ability to use his initiative was “poor”. Other matters such as cooperation with others, attitude towards work, quality of work and timekeeping record were stated to be “satisfactory” and the reference also stated that the claimant would not be re-employed, but did not give any explanation as to why. On perusing this reference we also note that in answer to the question “Did the applicant have a disciplinary record?” the answer “yes” is highlighted but no information is given as to the details of this. In fact, it was Mr Dermot McMullan’s evidence to us that the claimant had been given a verbal warning late in 2011 because of using electronic gadgets at work. The tribunal appreciates that a reference in these terms may give a negative impression. As far as the claimant’s sick record is concerned, we note however that the information given was purely factual and was accurate. Mrs McMullan again confirmed in her evidence that she had only included information under guidance from Peninsula. The tribunal notes however that the claimant was asked to supply a personal reference and there was no suggestion that the claimant did not get a job as a result of this or that he was asked to leave his job with Ageas 50.

3. THE RELEVANT LAW

3.1 (1) The Claim of Religious Discrimination

The relevant legislation in relation to the claimant’s claim of religious discrimination is to be found in Articles 3 and following of the Fair Employment and Treatment (Northern Ireland) Order 1998 and Article 46 of the same Order (“the 1998 Order”). These provide as follows:-

“3(1) In this Order “discrimination” means -

(a) discrimination on the grounds of religious belief or political opinion; or

(b) discrimination by the way of victimisation; and “discriminate” shall be construed accordingly.

(2) A person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this order, other than a provision to which paragraph 2A applies, if -

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same religious belief or political opinion as that other but -

(i) which is such that the proportion of persons who are of the same religious belief or the same political opinion as that other who can comply with it is considerably smaller than the proportion of persons not of that religious belief or, as the case requires, not of that political opinion who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the religious belief or political opinion of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it…

“ (4) A person (“A”) discriminates by way of victimisation against another person (“B”) in any circumstances relevant for the purposes of this Order if -

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

(b) he does so for a reason mentioned in paragraph (5).

(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

(6) paragraph (4) does not apply to treatment of a person by reason of any allegation made by him in the allegation was false and not made in good faith.

“46(1) Subject to paragraph (5) and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003, 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 3 months beginning with the day on which the claimant first had knowledge, or might reasonably be expected first to have 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…

“(5) A Court or 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 -

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act should be treated as extending throughout the duration of the contract; and

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person in question does an act consistent 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.”

In this case the claimant makes claims of direct discrimination on grounds of religious belief under Art.3(2)(a) of the 1998 Order and victimisation under Art3(4) of the 1998 Order.

3.2 Burden of Proof

The burden of proof in Fair Employment cases is set out in Article 38A of the 1998 Order. It is the claimant’s responsibility to prove facts from which the Tribunal could conclude, in the absence of an adequate alternative explanation, that the respondent’s treatment of the claimant was on grounds of religious belief. Once facts have been established from which discrimination could be inferred, the burden shifts to the respondent to show that there is another explanation for the treatment. It is clear that a difference in status is not enough to establish the inference of discrimination (Madarassy v Nomura International Plc [2007] IRLR 246). Where the claimant relies on actual comparators to show less favourable treatment, it is necessary to compare like with like. In addition, the claimant may rely on the evidential significance of non-exact comparators in support of an inference of direct discrimination. In recent years, however, and particularly since the ruling of the House of Lords in Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL there has been a movement towards treating the question of whether less favourable treatment was on the proscribed ground - the “reason why” issue - as the crucial question for tribunals to address (Aylott v Stockton on Tees Borough Council [2010] IRWR 994 CA; JP Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648) rather than focussing on the characteristics of actual or hypothetical comparators. As put by Mummery LJ in Aylott, “Did the claimant, on the proscribed ground, receive less favourable treatment than others?”.

Human Rights and Freedom of Religion

3.3 In the course of this hearing, the respondent’s witnesses on a couple of occasions made comments in relation to their own freedom of religion. Most specifically in relation to the issue of early morning meetings, both Dermot McMullan and Laurie McMullan effectively said the following:-

“The meetings were taking place on our own premises and before normal working hours. Are we not entitled to do what we want on our own premises?”

3.4 In relation to separate lunch breaks, the respondents also asserted that it was an important tenet of their religious belief that they would not eat with anyone with whom they did not share communion.

3.5 This needs to be considered in the light of Human Rights Law regarding freedom of religion and the law on religious discrimination. First of all, it is to be noted that this case involves allegations of direct discrimination by the claimant. He alleges that he has been discriminated against by the respondent “on the grounds of religious belief or political opinion” and has been treated less favourably than others. Our domestic legislation (as contained in the 1998 Order) does not permit any type of “objective justification” for discriminatory practice where direct discrimination has been established.

3.6 Although the point was not covered by the representatives for either party, we consider it relevant to consider the provisions of the Human Rights Act 1998 and the case law under the European Convention on Human Rights (ECHR) as it applies to this particular case. Effectively, the respondents argue that the exercise of their religious freedom has been limited by the requirements of the 1998 Order.

3.7 The right to freedom of thought, conscience and religion is protected by Article 9 of the ECHR which provides as follows:-

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in a community with others, and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or belief shall be subject only to such limitations as prescribed by law and as are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals and for the protection of the rights and freedoms of others”.

3.8 The case law of the European Court of Human Rights was considered in some detail by Mr Justice Weatherup in An Application for Judicial review by the Christian Institute and Others [2007] NIQB 66. Mr Justice Weatherup noted that “The right to thought, conscience and religion is absolute. The right to manifest religion or belief may be subject to limitations”. In Kokkinakis v Greece [1993] EHRR 397, European Court of Human Rights stated:-

“31. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is in its religious dimension, one of the most vital elements that go to make up the identity of believers and the conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. But pluralism, indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

“While religious freedom is primarily a matter of individual conscience, it also implies inter alia freedom to “manifest” one’s religion. Bearing witness and words and deeds is bound with the existence of religious convictions.

“According to Article 9, freedom to manifest one’s religion is not only exercisable in community with others, “in public” and within the circle of those whose faith one shares, but can also be asserted “alone” and “in private”; furthermore it includes in principle the right to try to convince one’s neighbour, for example, through “teaching” failing which, moreover freedom to change one’s) religion or belief enshrined in Article 9 would be likely to remain a dead letter”.

3.9 In this case, we are satisfied that the respondent’s belief is a long established system which is made in good faith. We are therefore satisfied that Article 9 is relevant in the present case. The extent to which manifestation of religious belief may be limited is a different issue. To quote Lord Nicholls in R (Williamson) v Secretary of State for Education and Employment [2005] 2 EAC 246, not every impact on the manifestation or religious belief will constitute “interference” for the purposes of Article 9. It must be shown that the impact (in this case, of the 1998 Order) interferes “materially, that is, to an extent which was significant in practice, with the claimant’s freedom to manifest their beliefs in this way”.

3.10 Article 9(2) makes it clear that limitations on the right to manifest religious belief may be prescribed by law and must be necessary in a democratic society, i.e. proportionate. In this case the domestic basis for the “interference” with the respondent’s religious beliefs is to be found in the 1998 Order. This legislation is clearly accessible to any individual. Thirdly the limitations must pursue an permitted aim. The permitted aims are set out in the second part of Article 9 and include the protection of the rights of others.

3.11 We have also taken account of the decisions given in a number of recent cases which consider freedom of religion in the context of the rights of others. In particular, we refer to the judgment of Lady Justice Rafferty in Bull and Bull v Hall and Preddy [2012] EWCA Civ 83, where she quotes with approval the judgment of Lord Justice Laws in McFarlane v Relate Avon Ltd [2010] IRLR 872, when he said:-

“22. In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and the ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or context of the content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions for a free society. ……..

25. So it is that the law must firmly safeguard the right to hold and express religious beliefs; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational régime.”

One further consideration is the matter of proportionality i.e. whether the limitation on one person’s freedom of religion is proportionate to the goal to be achieved. This was considered by Justice Weatherup in his judgment, and the principles to be applied summarised as follows:-

1. The overarching need to balance the interests of society with those of individuals and groups.

2. The recognition of the latitude which must be recorded to legislative and executive choices in relation to the balance of public and private interests.

3. The legislative objective makes it sufficiently important to justify limiting the fundamental right.

4. The measures designed to meet the legislative objective being rationally connected to it, that is, the measures must not be arbitrary, unfair or based on irrational considerations.

5. The need for proportionate measures being used so as to impair the right or freedom no more than is necessary to accomplish the objective, that is, that the measures are least intrusive, in the light of both the legislative objective and the infringed right. The Court should consider whether the measures fall within a range of reasonable alternatives, rather than seeking to ascertain whether a lesser degree of interference is a possibility.

6. The need for proportionate effect in relation to detrimental effects and the advantageous effects of the measures and the importance of the objective.

3.12 Level of award of injury to feelings

The appropriate level of damages for injury to feelings was set out in guidelines in the case of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 as reviewed in the case of Da’bell v NSPCC [2010] IRLR 19 to take account of inflation.

The lowest band is now up to £6,000; the middle band is from £6,000 to £18,000 and the top band, which applies to the most serious cases of discrimination or harassment, is from £18,000 upwards to £30,000.

Aggravated damages may be awarded by the Tribunal, but the award should be compensatory, not punitive and is part of the award for injury to feelings. It should be noted that malice or bad intent on the part of the respondent may lead to an award of aggravated damages, as may a high-handed approach by the employer. The issue to consider in each case is whether (and if so, by how much) the employer’s behaviour has aggravated the injury suffered by the claimant.

Unfair Dismissal

3.13 The relevant law in relation to unfair dismissal is comprised, in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). Specifically in this case where the allegation is of constructive dismissal, the applicable legislation is Article 127(1)(c) of the 1996 Order which provides as follows:-

“(1) For the purposes of this Part, an employee is dismissed by his employer if (and, subject to paragraph 2(2))… only if -

(c) The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate without notice by reason of the employer’s conduct.”

3.14 This is usually referred to as constructive dismissal. In a case of constructive dismissal we have to consider the following:-

(1) What are the terms of the contract of employment?

(2) Do the facts found by us as a tribunal constitute a breach of contract by the employer?

(3) Was that breach a fundamental breach of contract?

In this case the allegation is that there has been a breach of the implied duty of trust and confidence which should exist between employer and employee, particularly in relation to the selection of the claimant’s post for redundancy and subsequently the way in which his grievance and appeal was dealt with.

3.15 The duty of implied trust and confidence was affirmed by the House of Lords in Mahmud and Malik v Bank of Credit and Commerce International SA [1997] ICR 606 in the following terms:-

“The employers shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”

Lord Steyn commented that:-

“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between the employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”

3.16 In Mahmud and Malik the House of Lords rejected three suggested limitations to the scope of the duty of trust and confidence. It will be recalled that this was in the context of a claim by two former employees at BCCI who said that they considered they had suffered loss and damage when that bank collapsed as they had been tainted by BCCI’s poor reputation and had been unable to find other work. First of all, the House of Lords held the duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. Secondly, the Court held that it was not necessary for the employee necessarily to be aware of the wrongdoing whilst still employed, however the question of when the breach is discovered is highly relevant to the question of remedy: If a breach is not discovered until after the employment ends, the employee cannot rely on it as a ground for terminating the contract and thus it will not provide the basis for an unfair dismissal claim. Thirdly, the duty of trust and confidence may be broken even if an employee’s trust and confidence is not undermined. Similarly, it follows that there will be no breach simply because the employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee’s claim will fail (Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 EWCA). In Omilaju the Court of Appeal noted that many constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time, and as Lord Justice Dyson stated:-

“Suppose an employer has committed a series of acts which amount to a breach of the implied term trust and confidence, but the employee does not resign his employment, instead he soldiers on and affirms the contract. He cannot subsequently rely on these acts to enable him to do so. If the later act he seeks to rely on is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.”

It has been noted by a number of commentators that the standard of the repudiatory conduct required here is such that it must - objectively speaking - if not destroy, then seriously damage, trust and confidence. Mere damage is not enough, the term is there to protect the employee’s interest in not being unfairly and improperly exploited. The most recent authority on this topic is Buckland v Bournemouth University [2010] 4 ALLER 186 where the Court of Appeal in England and Wales cited with approval the comments of his Honour Judge Clarke in the EAT as follows:-

“In summary, we commend a return to settled authority, based on the following propositions. (1) In determining whether the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied. (2) If, applying the Western Excavating ECC (Ltd) v Sharp [1978] ICR 221 principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed. (3) It is open to the employer to show that such dismissal was for a potentially fair reason. (4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see J Sainsbury Plc v Hitt [2003] ICR111, fell within the range of reasonable responses and was fair.”

Victimisation

3.17 We have already set out above the legislative basis for the claimant’s victimisation claim in this case, which is set out in Article 3(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998. There are three limbs to a claim of victimisation. First of all, it must be shown that the claimant has done a “protected act” within the meaning of Article 3. In other words, he must either have brought proceedings against the respondent under the 1998 Order himself, given evidence or information in relation to such proceedings brought by someone else; alleged that the respondent has contravened the Order or “otherwise done anything under or by reference to this Order in relation to [the respondent] or any other person”. To satisfy the second limb of the test, the claimant must show that he or she has been less favourably treated than others in the same relevant circumstances. This comparator can be actual or hypothetical, but the circumstances must be relevant. For example, in Nagaragan v London Regional Transport [1998] IRLR 73, the claimant brought race discrimination proceedings against the respondent. He then applied for a job with the respondent company, but when he asked why his application had not been dealt with, he was told that it had not been received. The vacancy was still open and the tribunal drew the inference that, because the claimant was not invited to reapply, he was treated less favourably than other job applicants. The Court of Appeal held the correct approach would have been to ask whether other job applicants, whose job applications had gone astray, would have been invited to reapply. The third limb of the test requires the claimant to show that the less favourable treatment was “by reason that” the claimant did a protected act, that is there was a causal link between the protected act and the treatment received. In West Yorkshire Police v Khan [2001] ICR 1065HL, Lord Scott said that the words “by reason of” suggested to him that it was “the real reason, the core reason, the causa causans, the motive for the treatment complained of that must be identified”.

4. REASONS AND DECISION

Religious Discrimination

4.1 We have concluded that the claimant was unlawfully discriminated against on grounds of religious belief by the respondent in a number of ways. Most specifically the allegations made by the claimant against the respondent fall into two main categories. The first are what one might describe as “tangible” benefits such as company cars, pay rises etc. The second group are rather more “intangible” matters such as separate lunch breaks, the motivational
e-mails and messages and the early morning meetings.

We take these matters in two groups.

First of all the more “tangible benefits” such as company cars, pay rises and mobile phones: it is clear to us from the tenor of the evidence given for and on behalf of the respondent that this was a family run firm, with predominantly members of the Brethren religion within the workforce. We accept that there was an emphasis on the Brethren religion within the workplace, and that the claimant and Mr Anderson felt they were perceived as “different” and treated differently to other staff. On the basis of the evidence which we have set out above at paragraphs 2.8 to 2.10, we find that the claimant was discriminated against on grounds of his religion in relation to the provision of a company car. While the respondent indicated that Daryl White initially had a car to carry out deliveries for the company, and Craig McMullan initially was given a car because he was employed within sales, Craig McMullan continued to have the car even after he moved to a non-sales role. It was argued by the respondents and by Mr McMullan that he had been “seconded” to a different department. There was no clear record of this and certainly no letter or memo was produced to us during the hearing. By contrast when the claimant moved from sales back to a “lead nurturing” role, this was recorded in a letter and the basis of his bonus was clearly set out. As regards pay rises (see paragraphs 2.11 - 2.14 above), we note that while it may have been justifiable for the respondent to give Daniel White substantial pay rises and the benefit of the company car due to his excellent work performance, the same rationale would not apply to Daryl White, who in the words of Laurie McMullan, was “letting the whole team down”. Daniel White, Daryl White and Craig McMullan all received pay rises over a period of two years which are each in the region of £9,000 to £10,000, together with the benefit of a company car each. This means that their pay went up by more than 40%. The claimant equally received pay rises, but they were of a much lesser order (roughly 20%) than the pay rises received by the other, Brethren, members of staff. He did not receive the benefit of the company car, in spite of having raised this in a respectful and well reasoned e-mail in September 2011 nor was he given a satisfactory response as to why his request was refused. A number of the assertions he made in that e-mail were not specifically challenged by the respondent at the time. We are not persuaded by the respondent’s evidence on the company car issue or the pay issue. We find that the pay rises given to Brethren members of staff were substantially greater than those given to non-Brethren members of staff and we have not been able to ascertain any satisfactory rationale for this which is innocent of the explanation of religious discrimination. In considering the issue of “bonuses” for Brethren staff who got married or had children, it seems probable to us that Craig McMullan was given a pay rise because of his marriage. He said that this was not the case, but the timing of the pay rise about a month after his wedding, particularly given that he had not at that time changed job role or received any promotion, seems to us surprising. The claimant was not married and did not get married while he was working for the respondent so we do not see that there is any detriment to the claimant in this regard. Equally although the claimant had a child while working for the respondent, it does not appear that any of the other Brethren staff working for the respondent had children and were given a bonus and therefore we cannot make any finding in the claimant’s favour on this particular point.

4.2 In relation to the question of company phones (paragraph 2.17 above), we again note that the claimant was given the usual standard mobile phone, but was not given a Blackberry for business use, unlike Daniel and Daryl White who were Brethren. Again this can be seen as a difference in treatment afforded to non-Brethren employees. The phones they were given were less advanced and had fewer functions than the Blackberrys. Arguably therefore the claimant was not able to carry out his work as effectively when carrying out his sales role from Summer 2011. We also have some doubts as to whether Daniel and Daryl White did actually have to pay for their personal use of the phone or whether this was a further benefit which they received. While the financial loss to the claimant may not have been huge the most important aspect of this we believe is the fact that there was a difference in treatment which led to the claimant and Jordan Anderson feeling that they were being treated less well than their Brethren colleagues.

4.3 In relation to the “intangible” issues such as out of hours meetings, comments made by Laurie McMullan, going on separate lunch breaks and training opportunities, and motivational correspondence and e-mails (see paragraphs 2.7 and 2.18 - 2.20 above), it is clear to us that there was very much a culture within the respondent company of “sheep and goats”. We are left with the clear impression from the respondent’s witnesses that they saw it as desirable and preferable to be Brethren and by implication, undesirable not to be Brethren.

4.4 While we accept that out of hours meetings took place infrequently and we accept that these were predominantly to discuss Brethren community business, we note that they were held on business premises and that the meetings were either still going on or just finishing as non-Brethren staff arrived for work. We accept therefore the claimant’s evidence that he felt excluded from these meetings and isolated from them. This was compounded by the fact that the claimant was told by Daniel White that sales and marketing issues were discussed at the meetings. While this may not have been correct we can appreciate that the claimant felt excluded. The respondent took the view that these were their premises and they could do what they wished on them. While up to a point this is true, care must be taken by an employer to ensure that anything conducted on business premises, however benign, does not lead to a feeling amongst one section of the workforce that they are being excluded or isolated. The example can be given of a meeting to which only men were invited and female staff were excluded. This clearly would be an act of unlawful sex discrimination under our legislation as it stands. The same must apply in the case of religious discrimination.

In relation to the matter of separate lunch breaks, the respondent clearly admitted that it was Brethren practice not to eat with those people with whom they did not share communion. This is clear discrimination on grounds of religious belief. This was formalised by the respondent in this case by having two separate lunch breaks, one for Brethren and one for
non-Brethren. The matter was emphasised even further at trainings when Brethren staff ate together and the non-Brethren workforce ate separately. In the case the claimant mentioned in early 2011, this was an instance where he and Jordan Anderson were asked to eat with the trainer who was
non-Brethren, so it was very obvious as to who was being treated separately and differently.

In relation to the matter of motivational posters, we do not see these as discriminatory, because they were not religious in tone and were simply put up around the office. However, the motivational e-mails which were sent to Brethren staff only and for which they had to have a special code, were clearly discriminatory in that they could only be sent to members of the Brethren religion. The claimant did not indicate that he particularly wished to receive these e-mails, it was more the fact that he was excluded from receiving them which he felt marked him out as different. While we have some reservations as to how strongly the claimant really felt about this, we find that for the employer to arrange for these emails to be sent to Brethren staff at their work computers is an act of unlawful religious discrimination, on the basis that non-Brethren staff were automatically excluded. We have considered in light of the relevant case law whether there is any scope under Article 9(2) of the European Convention on Human Rights to permit the respondent’s to manifest their religious beliefs in the workplace as they have done.

We believe that the situation has been very aptly summed up in the judgment of Lord Justice Laws in McFarlane v Relate Avon Ltd. [2010] IRLR 872, set out at para 3.11 above. He confirmed that the law protected the right to hold and express a belief but distinguished this from the law’s protection of that belief’s substance or content. He goes on to say:… “So it is that the law must firmly safeguard the right to hold and express religious belief; equally, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions for a free and rational regime.”

4.5 In this case, and taking account of the principles of proportionality set out above at para 3.11, we find that the requirements of the 1998 Order which require the employer to provide a workplace which is neutral in matters of religious or political belief, are a necessary limitation on the respondent’s right to manifest their religious beliefs under Article 9(2) of the European Convention of Human Rights.

4.6 As regards the “discriminatory comments” of the respondents in referring to
non-Brethren staff as “worldly” and also Laurie McMullan’s alleged comment about preferring to employ only Brethren people, we accept that this was said. We also accept that both the claimant and Jordan Anderson were reluctant to approach their employers in relation to work-related issues because that they believed that they were being treated differently to other staff. In reaching this conclusion, we have been aware of the dicta in Igen v Wong and other cases such as Madarassy which refer to the burden of proof in discrimination cases and how that should be applied. In order to establish unlawful discrimination, the claimant must prove facts from which the Tribunal could conclude that there has been discrimination. We have already set out above that the claimant has succeeded in this, from our findings of fact set out above. The burden then shifts to the respondent to show that there is an explanation, innocent of unlawful discrimination, for their action. The respondent has not succeeded in doing this in this case. They have clearly conceded that separate lunch breaks for Brethren and
non-Brethern staff were arranged for religious reasons. The strongest example was the training session when the claimant and Jordan Anderson were sent to have their lunch with the trainer, who was also non-Brethren, while the Brethren staff ate separately. The claimant therefore was effectively cut off from the general discussion, whether work-related or not, which would have taken place at such an event. They have also agreed that there were out-of-hours meetings to which non-Brethren staff were not invited. Even if one accepts that these meetings were purely and simply to do with Brethren business, the fact that they took place on work premises, with the owners of the company involved and promoting these meetings, indicates that the claimants were treated differently and were treated as being “different”. We accept the claimant’s evidence that he felt isolated and excluded, although we are also aware that the claimant had a good and strong working relationship and indeed a strong friendship with Daniel McMullan at that time. We also accept that the claimant was excluded from travelling to a trade show in England when other members of the sales department had this opportunity. Whether this was because of his non-Brethren beliefs or not is not entirely clear, but we do accept the evidence given that the claimant would not have been able to stay with Brethren people in the area and therefore that this was a factor which weighed with the respondent in deciding whether or not to send him to the trade show.

eBay Account

4.7 The claimant alleged that moving him from running the company’s eBay account was an indication that the respondent had predetermined that the claimant was to be made redundant and therefore the work was moved from him permanently. We can understand why the respondent moved the work to Mr Carless while the claimant was off sick. It does seem premature however to have moved the work permanently to Mr Carless while the claimant was only off sick for 4½ days at that time. We do not see it as part of a separate act of discrimination, but rather as part of the issue in relation to the claimant’s selection of redundancy.

The claimant argues that his selection for redundancy was also an act of religious discrimination. Certainly, at the time when the claimant was identified for redundancy it was clear to us that his was the only post identified for redundancy and he was the only non-Brethren in that department. Although Laurie McMullan indicated in his initial meeting with the claimant that telemarketing had not been showing good returns, there is no record of any discussions between Mr McMullan and the claimant in relation to his work performance or in relation to the returns on telemarketing before this meeting in early June. Indeed, the claimant’s evidence to us was that he had met his targets and certainly there was no evidence from the respondent to contradict this. Mr McMullan’s comment that he had to keep reducing the claimant’s targets so that he would get his bonus seems to us a bizarre explanation and we simply do not accept it. This is reinforced by Laurie McMullan’s evidence that Daryl White (who was Brethren) was “letting the whole team down” and yet he initially was not identified as being at risk of redundancy. Accordingly, we find that the claimant’s identification for redundancy on 13 June 2012 was an act of religious discrimination on the part of the respondent towards the claimant.

4.8 In the issues identified for the hearing, one of the questions raised was whether some of the acts of discrimination alleged by the claimant were out of time, in that the claimant’s claim form was not lodged until August 2012, but he refers to acts of discrimination as long ago as early 2011. Most specifically he refers to the training event early in 2011 at which he and Jordan Anderson were obliged to eat with the trainer, and separately from other Brethren participants in the course. We believe however that this is part of a continuing act of discrimination encompassing various types of behaviour from the respondent towards the claimant. Accordingly we believe that it would be just and equitable in all the circumstances to extend the
time-limit and to treat this incident as part of a continuing course of conduct.

4.9 In relation to an award to the claimant for injury to feelings in relation to unlawful discrimination, we have considered the evidence carefully. We have a short medical report from the claimant’s GP and his GP medical records. We were not provided with a consultant’s report and other than this we simply have the claimant’s own evidence of how he felt at the way he was treated. We note however that up until June 2012, it appears that the claimant had generally a good working relationship with his employers. The tone of his e-mail in relation to the matter of a company car in September 2011 is courteous and pleasant towards his employers. He also indicated that he had a good relationship - indeed a strong friendship - with Daniel White and with the other people with whom he worked. It was really only when the claimant was identified for redundancy in June 2012 that the claimant then raised the issue of religious discrimination with his employers. The claimant’s representative argued that the award for injury to feelings in this case should be at the higher end of the high range of Vento. On the current figures as approved in Da’bell v NSPCC, this would put the award at over £18,000.00. The claimant’s representative referred us to the case of Faithful v Axa PPP Healthcare Plc (Ashford) Case No: 1100218/09 16 December 2010 as regards the award for injury to feelings. From the information we have in relation to that case, there were some parallels with the instant case, but mostly in relation to the way the grievance was dealt with. It is our finding that the award for injury to feelings in this case should fall within the middle range of Vento, as revised by Da’bell. We have considered all the evidence and the fact that the claimant did not raise any issue of religious discrimination until after he was selected for redundancy. Indeed the issue of religious discrimination was raised principally in the claimant’s third grievance on 17 July, although it had been included in his earlier compliant about the way his grievance had been addressed. We also note that although the claimant was off sick for about 6 weeks in the summer of 2012 and later that autumn, he did not complete the course of medication prescribed by his GP. This indicates to us that the claimant did not feel that he needed the medication at that time. However, given the acts of discrimination which we have found proven, we believe the appropriate award in this case is £10,000.

Aggravated damages

The claimant’s representative argued that aggravated damages should be awarded due to the way the claimant’s grievances were handled. This is dealt with by the provision for uplift on the unfair dismissal award and it is not appropriate, in our view, to make an additional award for aggravated damages in this case.

Constructive Dismissal/Unfair Dismissal

4.10 There are two aspects to the issues of constructive/unfair dismissal. The first of these was whether or not there was redundancy situation and identifying the claimant’s post for redundancy. The second relates to the way in which the claimant’s grievance was addressed, and whether either or both of these matters constitute a fundamental breach of contract such that the claimant is entitled to resign.

4.11 In relation to the issue of whether there was a redundancy situation, we have set out our findings of fact in relation to that matter at paragraphs 2.22 - 2.27 above. As a matter of fact we have found that there was not a redundancy situation in existence in June 2012. We also have found that the claimant’s post was the only post identified as potentially redundant and that it was only after receipt of the claimant’s first grievance by e-mail on the evening of 13 June when the decision was taken to include Daniel White and Daryl White within the potential pool for redundancy. The respondent then proceeded to deal with the grievance and subsequently, the redundancy. The first proposal by Laurie McMullan was that the grievance would be dealt with at the next redundancy meeting on 15 June. The claimant pointed out first of all that he would not be fit to attend work that day and secondly, the grievance and redundancy process should be dealt with separately. He also pointed out that he believed that Mr McMullan had discriminated against him on grounds of religion and therefore objected to him dealing with the grievance. Having lodged a sick line for two weeks, the claimant was then advised that Mrs McMullan, Laurie McMullan’s mother, would deal with the grievance meeting. The claimant asked for the meeting to be postponed due to his poor health but this was refused. Mrs McMullan decided to go ahead and hold the grievance meeting while the claimant was still off on sick leave. She then indicated to the claimant that if he wished to appeal the outcome of the grievance he should do so within 24 hours, even though the company handbook stated that the time-limit for lodging an appeal was five working days. When the appeal was lodged, this was passed to Dermot McMullan (Pauline McMullan’s husband and Laurie McMullan’s father, and whose independence therefore has to be in question) to deal with. Again the appeal meeting was arranged for a date within the claimant’s period of sick leave. The claimant asked for a postponement until his sick leave had expired. The meeting was postponed for three days, but when the claimant went to see his GP again, and was given a further sick line for two more weeks, the appeal hearing went ahead in his absence. The claimant was advised on each occasion that he could attend the meeting by telephone, that he could send in a written submission or that he could have someone appear on his behalf. He had, however, indicated that he wished to attend in person when he was fully fit. However, the issue remains as to how long the claimant might have been off on sick leave, given that he did not return to work at all between 20 June and his resignation on 9 August, but submitted sick lines at each step.

4.12 The Labour Relations Code of Practice on Disciplinary and Grievance Procedures clearly indicates that the best way for a grievance to be dealt with is for a meeting to be held “without unreasonable delay after a grievance is received”. Paragraph 80 of the Code indicates that “Employers, employees and their companions should take reasonable steps to attend the meeting”. Paragraph 81 indicates that employees should be allowed to explain their grievance and how they think it should be resolved. Consideration should also be given to adjourning the meeting for any further investigation that may be necessary. It does not expressly say in the Code of Practice that the employee must be able to attend or that a meeting should be deferred until such times as an employee returns after sick leave. Clearly it is important that the employee should be able to have their grievance addressed and it is implicit in the requirement for a meeting that the employee should be able to attend in person. It is generally accepted that if an employee is off sick, meetings will be deferred for a reasonable time to allow him/her to attend. It is also important however that the person against whom the grievance is brought or any other interested parties have the opportunity to have the matter dealt with promptly. In this case for example, as Mrs McMullan pointed out, there were two other members of staff potentially affected by the redundancy situation and it was important that the issue was dealt with from their point of view as well. While the tone of Mrs McMullan’s correspondence to the claimant and the correspondence from Dermot McMullan to the claimant did not indicate any particular warmth or indication that they wanted to try to facilitate the claimant in any way, we note that there is always a balance to be struck. Ultimately when the claimant lodged further grievances on 11 and 17 July, the respondents decided to appoint an independent grievance officer. We have already set out the shortcomings of that process, but it was an attempt to address the claimant’s grievances and the claimant did attend the meeting with Mr Lavery, although he was still on sick leave at the time.

In our view, however, there are substantial shortcomings in the way that all the claimant’s grievances were addressed. First of all there must have been doubts about the impartiality of any member of the McMullan family in dealing with the grievance, given that the initial grievance was brought against Laurie McMullan and was to be dealt with by his parents. It was always going to be difficult within the family setup to find someone independent to deal with the grievance. Secondly, there appears to have been a rush to deal with the initial grievance brought by the claimant and it does seem that he was put under pressure to attend meetings. If at the first stage of the grievance Mrs McMullan had arranged for a meeting after the claimant was due back after sick leave, it would have signalled to the claimant that the grievance was being taken seriously and that he was not being put under undue pressure. It might in circumstances have facilitated the matter being dealt with more promptly. Mrs McMullan clearly made an error (which added to the feeling of pressure) when she indicated to the claimant that he should lodge an appeal within 24 hours of the outcome of her grievance procedure having been transmitted to him.

The subsequent grievance of 17 July was dealt with by Mr Lavery as an independence grievance officer. We have set out above at paragraphs 2.36 and 2.37 our misgivings in relation to that grievance. In our opinion, this grievance process was defective in that it was not carried out by someone who was properly independent, a thorough investigation of the claimant’s allegations was not conducted and the claimant was not properly advised about the length of time the grievance was likely to take to be processed. Some of the conclusions reached by Mr Lavery are somewhat questionable. In particular, in relation to the issue of lunch/break-times, his final comment was “Upon making enquiries about this, I find that the Brethren community treated everyone who was non-Brethren equally and as such that difference is a clear difference in religious backgrounds and not a discrimination against Mr Connelly individually nor a policy which treated him less favourably.” From this it appears that Mr Lavery has completely misunderstood the basis of our domestic legislation in relation to religious discrimination. The timing of the result of the grievance was also a significant matter. The respondent (Mrs McMullan) was well aware that the claimant viewed this as an important and urgent matter. However, she clearly did not transmit this to Mr Lavery, who took over a month to produce the outcome and who failed to advise the claimant as to his right of appeal. There must therefore be some question-mark over whether the respondent deliberately failed to give this information to Mr Lavery, knowing it was likely that the claimant would in fact proceed with his resignation.

In light of this we believe that the way the grievance was handled and the selection of the claimant for redundancy in early June 2012 individually and together constitute a fundamental breaches of the claimant’s contract such that he was entitled to resign. We do not believe that the claimant’s agreeing to suspend his resignation at the end of July to enable the independent grievance to proceed was a waiver of his resignation and nor did this in any way affirm his contract. We also find that the claimant was unfairly constructively dismissed by the respondent.

4.13 The claimant was able to find alternative work quite promptly and the parties reached agreement in relation to the appropriate loss suffered by the claimant in relation to the issue of unfair dismissal. The claimant had 2 complete years’ service and was over 22 at the date of his dismissal. His net pay was £259.15 per week. His basic award is therefore £259.15 x 2 = £518.30. The ongoing loss suffered by the claimant was agreed between the parties as £3,028.09. We order the respondent to pay to the claimant the sum of £3,546.39 as compensation for unfair dismissal.

This is a relevant decision for the purposes of the Recoupment Regulations. The relevant period is from 22 December 2012 to 2 February 2013 and 9-16 March 2013. The amount of the monetary award to which relates to the relevant period is £1,834.05. The monetary award exceeds the amount by £1,712.34. The other matter we must consider is the uplift on the award which we may award for the respondent’s failure to follow the LRA Code of Practice on Disciplinary and Grievance procedures.

While we note that an employer must take account of the position of all staff affected by a grievance, we believe that in this case, the employer acted contrary to the spirit of the Code of Practice in pushing forward with the claimant’s grievance and appeal within his first two week period of sick leave when he had clearly indicated he wished to attend. Mrs McMullan breached the respondent’s own procedures in telling the claimant he had only 24 hours, rather than 5 working days, in which to lodge his appeal. Mr Lavery, in dealing with the third grievance, failed to advise the claimant of his right to appeal and failed to carry out a proper investigation. For all these reasons, we believe the appropriate uplift in the compensatory award would be 20%. We order the respondent to pay to the claimant the sum of £605.61 by way of uplift.

4.14 We have considered the question of aggravated damages which we were urged by the claimant’s representative to consider. It was put to us that the respondent had acted in a high-handed and insulting way in the manner it treated the claimant’s grievances. However that matter is dealt with by the issue of uplift on the award for failure to follow the Labour Relations Agency’s Code of Practice and accordingly we decline to make any award for aggravated damages.

Victimisation

4.15 We are satisfied that the claimant had done a “protected act “ under Art3(4) of the 1998 Order in that he had brought a claim of religious discrimination against the respondent. The main issue for us to decide is whether either or both of the incidents complained of by the claimant were to his detriment or whether they occurred “by reason of” the protected act.

On the basis of the evidence provided we are not satisfied that the first incident of alleged victimisation, i.e., the letter regarding the restrictive covenant is an act of victimisation. At the time when it was written, it was clear that the main concern of the respondents seem to be the breach of the restraint of trade clause which they have included in the contracts of other staff. This restricted employees from working for a competitor or in canvassing business from customers of the respondent for a period of nine months after employees left their employment. We also note that the claimant was not at all frank with Mr Cummings, his new employer in relation to the restrictive covenant. We are satisfied that the claimant was well aware of the covenant from the discussions he had had with the respondent when the contract was signed in 2011. It is accepted that copies of the contracts had probably not been given to staff. Given however that the claimant had made a point of raising the clause with his employer we would believe that he was well aware of the issue and of the restrictions placed on him when he moved to another job. We have considered the letter written by Mrs McMullan both to the claimant and to Mr Cummings in relation to the clause. The issue for us to decided is whether this written letter was written “by reason of” the fact that the claimant had brought a claim of religious discrimination. We are not satisfied that there is any evidence of this. It seems to us that the main reason Mrs McMullan wrote the letter as she did and when she did was because she was concerned about losing customers to a competitor. We believe that she would have done the same in the case of any former employee and so the claimant was not less favourably treated than others. We therefore find that this act of victimisation is not proven. We have also considered the reference given to RIAS in relation to the claimant. As set out above at paragraph 2.45, the claimant had secured a job with Ageas 50 and a couple of weeks later he was advised that the company had received a negative reference form from the respondent. Mrs McMullan was clear that she had completed this reference in accordance with the advice given to her by Peninsula Business Services Limited. She was also adamant in her view that she could tell only the truth in relation to the claimant’s situation. It was clear that she had provided the reference because the claimant had provided the respondent’s details as a referee, it was not supplied at the respondent’s own initiative. As an aside, given the circumstances in which the relationship with the respondents ended, it is surprising that the claimant gave the respondents as referees.

We have considered the reference in relation to the claimant’s comments regarding his sick record. The information given regarding the claimant’s sick record was purely factual and we cannot see that this information could have been provided in any other way. On her assessment of the claimant’s work performance, Mrs McMullan was not the claimant’s direct line manager. She gave evidence that she provided information on the claimant’s work performance on the basis of CRN reports. Certainly, at least one element of this part of the reference was negative in that she described the claimant’s attitude as “satisfactory” which is only one step up from “poor”. There was no objective information in which Mrs McMullan could base her assessment. The claimant had not been given any negative reports by the respondent while working for them which were recorded, although we note there was a conflict of evidence on the claimant’s work performance. Mrs McMullan also indicated that the claimant had a disciplinary record without clarifying that this was a verbal warning and not anything more serious. Indeed the verbal warning at issue had probably expired by the time the claimant left the respondent’s employment. The issue for us to consider is whether this negative reference was given “by reason of” the fact that the claimant had brought discrimination proceedings against the respondent. It is for the claimant to make the case and to establish the causal link. We are not satisfied that the claimant has discharged this duty. On balance, given that the claimant had obviously given the respondent’s name as a referee in relation to this matter and given that the claimant was already established in his new job when the reference was furnished, we find on balance that the provision of this reference and its negative tone was not given “by reason of” the fact that the claimant had brought discrimination proceedings against the respondent. Further there was no evidence before us that the claimant had to leave his job because of the negative reference and so he did not suffer any loss or detriment because of it.

4.16 In total therefore we order the respondent to pay to the claimant the sum of £14,152.00. We also order the respondent to pay to the claimant interest in the sum of £1,466.66 in respect of the award for injury to feelings from 2 August 2011 to the date of the hearing. We have chosen this date as the mid-point of the claimant’s employment with the respondent to the date of hearing, a period of just over 22 months.

4.17 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990 and Article 7 of the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995.

Chairman:

Date and place of hearing: 17 to 21 June 2013, Belfast.

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
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Fair Employment Tribunal Northern Ireland Decisions