THE INDUSTRIAL TRIBUNALS
CASE REF: 379/06
CLAIMANT: Colin Mallon
RESPONDENT: Northern Ireland Railways Translink
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed, that the claimant was not discriminated against on the grounds of his sex and that there had been no unlawful deductions from the claimant's wages.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Ms F Graham
Mr B Heaney
Appearances:
The claimant was represented by his wife, Mrs Deborah Mallon.
The respondent was represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.
THE CLAIMS AND THE DEFENCE
- The claimant claimed that he had been unlawfully dismissed from his employment with Northern Ireland Railways (Translink). The claimant also claimed that he had been discriminated against on the grounds of his sex in the handling by Translink of his complaint of harassment under Translink Dignity at Work Policy. The claimant also claimed unlawful deduction of wages during his period of suspension.
THE DEFENCE
- The respondents stated that they had dismissed the claimant on the grounds of his conduct in that he had sexually harassed a female employee and that he had falsified and wilfully misrepresented his qualifications and work experience on application forms. The respondents denied that the claimant had been discriminated against on the grounds of his sex in relation to his complaint of harassment under the Dignity at Work Policy. The respondents also denied there had been any unlawful deduction of wages during the claimant's period of suspension.
SOURCES OF EVIDENCE
- On behalf of the claimant the tribunal heard from
(1) the claimant;
(2) Mrs Deborah Mallon;
(3) Mr Anthony Kevin Perry.
- On behalf of the respondent the tribunal heard from
Mr Alan McCully, Personnel Manager, Translink.
Mr Philip Blair, Route Manager for Northern Ireland Railways;
Mrs Heather Grant, Industrial Relations Manager – Rail;
Mr Hilton Parr, Customer Services Manager, Translink;
Mr David Hamilton, Industrial Relations Manager – Bus, Translink;
Mr Mal McGreevy, General Manager Train Services, Translink.
DOCUMENTS
- The tribunal was referred to one main bundle of documents, a supplementary bundle of documents, both prepared by the respondent and had sight of various miscellaneous documents which were submitted to it before and during the hearing. The tribunal indicated at the outset of the hearing that it would have regard only to those documents that have been specifically drawn to its attention.
SUBMISSIONS
- The tribunal heard submissions from the parties' representatives.
FINDINGS OF FACT
- Having considered the oral and documentary evidence before it the tribunal found the following relevant facts either admitted or proved on the balance of probabilities;-
- The claimant commenced his employment for Translink on 14 April 2003. He was employed as a senior porter. The claimant had applied for this post by application form dated 18 August 2002.
- During his employment the claimant applied for promotion posts as these were advertised. Amongst others the claimant applied for the post of Conductor by application form dated 16 October 2003 and for the post of Marketing Officer by application form dated June 2004.
- The claimant was successful in obtaining the post of Marketing Officer and was in this post working in the Booking Office at Central Station when he was dismissed. However, prior to his dismissal the claimant had applied for and had been successful in obtaining a Train Driver post for which he had applied by application form dated March 2005. Although successful in this application the claimant never took up this post.
- On 13 October 2005 a fellow employee of the claimant's in the Booking Office, Mrs Sinead Casey, made a complaint of sexual harassment against the claimant, the sexual harassment complaint. Mrs Casey reported her allegations of sexual harassment to her manager Mr Joe Hollyoak on October 13 2005. Mrs Casey was invited to put her complaint in writing and Mr Hollyoak advised his manager Mr Andrew Morrisey of this complaint and he in turn advised Mrs Heather Grant, Industrial Relations Manager-Rail that a complaint of sexual harassment had been made.
- Mrs Grant discussed this matter with the Director of Human Resources, Mr Alan Mercer, and it was agreed between them that Mrs Grant and a Mr Philip Blair, Route Manager (Bangor-Rail) would investigate this complaint.
- During the course of the investigation into the complaint of sexual harassment made by Mrs Casey, Mrs Grant examined the claimant's personnel file. The claimant was unknown to Mrs Grant and she thus sought to familiarise herself with his details. She noticed that there were discrepancies between the claimant's original application form for senior porter and his application form for marketing officer in 2004. These discrepancies gave Mrs Grant some concern and having discussed it with Mr Mercer it was decided that the matter would be referred to Mr Alan McCully, Personnel Manager, to look into further.
- Mr McCully investigated the discrepancies separately and independently from the ongoing investigation into the sexual harassment complaint that had been brought against the claimant. This investigation resulted in charges being brought against the claimant for misrepresentation and falsification of his qualifications and work experience, the application forms complaint.
- The claimant contended that his personnel file had been deliberately searched for the purpose of finding any discrepancies or misdemeanours against him that would contribute to his dismissal. However the tribunal accepted the company's response to this claim, that personnel files were often referred to in circumstances where a complaint had been made against an employee or where, for whatever reason a manager not familiar with an employee sought to familiarise his/herself with that employee's background.
- In reaching this decision the tribunal took into account that a practice of reviewing an employee's file would not of itself connote any sinister intent. It also took account of the fact that in this instance it was not disputed between the parties that the claimant had been unknown to Mrs Grant before the sexual harassment complaint was made against him, bearing out Mrs Grant's contention that she had reviewed the claimant's file because she had not been familiar with the claimant prior to this.
- During the course of the investigation into Mrs Casey's sexual harassment complaint and by letter dated 6 November 2005 the claimant lodged a complaint against Mr Hollyoak, his supervisor, under the Dignity at Work Policy for Mr Hollyoak's alleged failure properly to deal with staffing difficulties that arose during the course of 2005. The claimant submitted this complaint to Mrs Grant and Mr Blair at a meeting on 7 November 2005, the claimant's complaint Under the Dignity at Work Policy.
- This complaint related to an alleged whispering campaign amongst his fellow employees that the claimant believed had been started by Mr Hollyoak. This complaint also formed a part of the claimant's defence to Mrs Casey's sexual harassment complaint against him in that the sexual harassment complaint itself was part of a conspiracy against him by most of his fellow employees in the Booking Office.
- On receipt of the claimant's complaint under the Dignity at Work Policy Mrs Grant again spoke to Mr Mercer and it was decided that because of the factual overlap between this complaint and the ongoing investigation into the sexual harassment complaint against the claimant that the same team comprising Mrs Grant and Mr Blair would investigate this complaint too.
- The claimant subsequently claimed that the respondents discriminated against him on the ground of his sex, the claimant's sex discrimination complaint, and alleged that they investigated his complaint of sex discrimination in a different and less favourable way in which they dealt with Mrs Casey's sexual harassment complaint. The claimant's sex discrimination complaint was later investigated by Mr Mal McGreevy.
- The claimant contended that the respondent's decision-that the same team comprising Mrs Grant and Mr Blair would investigate the sexual harassment complaint against him and his harassment complaint against Mr Hollyoak-was inherently unfair in that they would be thus disposed against him. The claimant also claimed that this decision had been taken deliberately to deprive him of a fair chance or hearing and thus contributed to the outcome of his dismissal.
- The respondents refuted that the decision to conduct the investigations in this way was unfair. It was the role and responsibility of these managers to investigate such complaints however taken and by whom. In this instance the fact that the claimant's complaint under the Dignity at Work Policy also formed part of the claimant's defence to the sexual harassment claim against him made it more straightforward to progress by the same team and the factual overlap between the two complaints ensured against potential bias as might otherwise arise in circumstances where two entirely separate complaints fall to be dealt with.
- The tribunal accepted that this had been the rationale for the decision and found that the decision that the same investigation team should hear the two complaints was not inherently unfair and or done to ensure the outcome of the claimant's dismissal. The tribunal also took into account that where a separate issue did arise, the discrepancies in the application forms, this matter was referred to and investigated separately by another manager, Mr Alan McCully.
The sexual harassment complaint
- The investigation team commenced the investigation into the sexual harassment complaint against the claimant by reviewing Mrs Casey's written complaint received on the 18 October 2005. Mrs Casey set out three separate allegations of sexual harassment, two of which had occurred prior to the incident which took place on 12 October 2005.The team interviewed Mrs Sinead Casey and the claimant separately on 31 October 2005.
- The team also interviewed a number of staff from the Booking Office between 31 October 2005 and 1 November 2005, 11 witnesses in total. They also received and considered written statements from two other employees. At the interviews the team apprised the employees of the allegations they were investigating and asked them if they had seen any of the incidents or could comments on them. The claimant contended that this approach was fundamentally flawed in that the respondents thus biased the witness evidence against him. He contended that this approach had contributed to the outcome of his dismissal. The tribunal found that this approach, to put the allegations made by Mrs Casey against the claimant to the witnesses and to ask them for their comments on them, was proper and reasonable and did not accept that this had been done in such a way as to contribute to the outcome of dismissal.
- The three specific allegations of sexual harassment included an incident where Mrs Casey stated that the claimant had put his hands on her shoulders and started to rub them. Mrs Casey was on the phone at the time and when her call ended she told the claimant to "fuck off and don't do that again". The second allegation was that the claimant had come up behind Mrs Casey and poked her on the top of the ribs just below her right breast. The claimant said as he was doing this "by the way that's not sexual harassment that's just me poking you" and laughed. Again Mrs Casey told the claimant to "fuck off and don't do that again".
- The third specific allegation of harassment related to an event that occurred on 12 October 2005. The claimant sought to demonstrate to another colleague that ticket paper turned black near heat and asked Mrs Casey if she had a lighter. Mrs Casey said yes her lighter was in her coat pocket and pointed to her coat. The claimant then asked if he could put his hand into her pocket and get the lighter and Mrs Casey agreed. Instead of searching Mrs Casey's coat pocket the claimant put his hand inside her trouser pocket and when Mrs Casey reacted in a shocked way the claimant took his hand away and said "you told me it was in your pocket and I could put my hand in". Mrs Casey repeated that the pocket that she had referred to had been her coat pocket. The claimant started laughing and said "I don't know what your problem is I'm sure Paddy Loughlin has had his hand in there plenty of times". This was a reference to another colleague of Mrs Casey's.
- During the investigation Mrs Casey made further allegations of sexual harassment against the claimant which included his having made a number of remarks to her about her "toned and tight body" and a comment by the claimant, on hearing that Mrs Casey did combat training, that she "could take him (the claimant) on anytime".
- The claimant denied all the specific allegations contained in Mrs Casey's written complaint. He denied having rubbed Mrs Casey's shoulders on any occasion. He denied having poked her in the ribs below her breast. In relation to the incident on 12 October the claimant said that he had not put his hand into Mrs Casey's trouser pocket, that he would not want to put his hand in Mrs Casey's trouser pocket and in fact her trousers were so tight that he would not have been able to put his hand in Mrs Casey's pocket.
- However during the hearing the claimant further claimed, and for the first time, that the uniform trousers worn by Mrs Casey did not have pockets. This claim was refuted by the respondents and indeed when asked why he had not raised this issue sooner the claimant stated that he had not thought that it was relevant.
- The Tribunal noted the variation in the evidence given by the claimant in relation to this and noted in particular that the last version of it arose only at this hearing. The Tribunal did not accept that Mrs Casey's uniform trousers did not have pockets and found that this version of the evidence was a last ditch attempt by the claimant to support his defence to the charge. The Tribunal rejected the claimant's evidence on this and found that the claimant had invented this version of the evidence at the hearing.
- The investigation panel asked the claimant why Mrs Casey would have fabricated her allegations of sexual harassment. The claimant stated that the reason may have been "an operational one" and recounted an incident where he had given an operational instruction to a more senior member of staff. The claimant maintained that this person, who was known to Mrs Casey, could have taken offence at this.
- The claimant further maintained that Mrs Casey was part of the vendetta involving most if not all his fellow employees in the Booking Office, which sought to create or avail of this opportunity to get rid of him for his past involvement in reporting most if not all of them for a range of employment infractions including bad timekeeping, being drunk on arrival at work, going home early, ignoring rules, unauthorised use of internet and mobile phones at work.
- The claimant stated variously that Mrs Casey had been used to contrive a complaint against him in order to secure his removal from the booking office and/or that his colleagues had taken advantage of and corroborated Mrs Casey's complaint to this same end. The claimant also claimed that this vendetta was motivated by jealousy on the part of his colleagues at his success in getting the Train Driver job.
- Having completed their investigation into Mrs Casey's sexual harassment complaint the investigation team found that although there were some inconsistencies between the statements of the other employees the statements largely corroborated Mrs Casey's allegations. The respondents took account of the inconsistencies in the statements as noted by the claimant and concluded that these were insignificant and tended to show that the employees had not colluded with one another in preparing their statements. The investigation team found the statement evidences credible. The investigation team also found that Mrs Casey's evidence was more believable than the claimant's as he had been evasive at interview and had struggled to answer some of the questions put to him.
- The investigation team upheld the complaint of sexual harassment and advised Mrs Casey of this on the 8 November 2005. On the same date the claimant was given a charge sheet charging him with sexually harassing Mrs Casey. The charge sheet invited the claimant to make further comments and asked him to indicate whether he wished to have "a personal interview with (his) manager".
- The Claimant returned the charge sheet with the words "I deny these charges totally" but did not indicate whether he wanted to have an interview with his manager or not. By letter dated 8 November 2005 the respondents confirmed to the claimant that he was suspended on full pay, acknowledged receipt of the returned charge sheet, confirmed that an interview had been arranged for 21 November 2005 and advised the claimant that he had the right to be accompanied by a trade union representative or colleague. This interview was arranged not with the claimant's manager but with a member of the investigating panel, Mr Philip Blair, and was referred to by the respondents in their "Disciplinary Investigation Summary" as the claimant's "appeal".
The Pay Issue
- By letter dated 19 December 2005 the claimant queried his level of pay. His letter indicated that while he had been a Senior Porter his then Terms and Conditions had entitled him to "contractual overtime" and that he believed that when he became clerical staff in the Booking Office that he remained entitled to it. He stated that therefore "full pay" should include his rostered hours and include contractual overtime and he sought a rebate of monies owed.
- By letter dated 3 January 2006 the respondent advised the claimant that whilst on suspension he was entitled only to Basic Pay without enhancements or allowances. The claimant did not lodge a grievance or a complaint to the respondents about this until the matter was claimed in his application to the Tribunal.
- At hearing the respondents reiterated their position that "full pay" meant "full basic pay". The claimant's challenge to this was to query the use of this terminology and to question why the term had not been used in their correspondence to the claimant. However there was no further evidence brought by the claimant about his contractual entitlement to pay whilst suspended or other challenge to this by him.
- In the absence of any evidence from the claimant as to his entitlement to contractual overtime whilst on suspension the Tribunal found that the claimant was entitled only to basic pay.
The Disciplinary Hearing
- Although this interview was planned for 21 November 2005 it did not take place until 5 December 2005. In the first instance the claimant wrote to the respondents on 18 November 2005 and sought details of a number of things including clarification of the nature of the meeting, Translink's Disciplinary Procedure, an agenda for the meeting and an acknowledgement of the complaint submitted by him on 7 November 2005. His letter also requested that his wife accompany him to the interview in lieu of his trade union representative who was unable to attend. The claimant also advised that he was on medication from his doctor.
- The respondents arranged a medical for the claimant to attend on 21 November 2005 in lieu of the pre-arranged interview, which they re-arranged for 22 November 2005. Although deemed medically fit to be interviewed this second arrangement was further postponed at the claimant's request on the basis that he needed time to obtain and peruse further information. As the claimant had indicated that he would this time be represented by his union representative, Mr Tommy McKeown, the further postponement had to take account of the fact that both Mr Blair and Mr McKeown were on annual leave.
- In a letter dated 25 November 2005 Mrs Grant advised the claimant that his disciplinary hearing had been arranged for 5 December 2005, would be heard at 10.00am and that his complaint under the Dignity at Work Policy would be heard immediately afterwards at 11.00am. This was the first occasion in correspondence that the respondents had referred to any part of this re-scheduled meeting/interview as a "disciplinary hearing".
- The investigation team interviewed the claimant the 5 December 2005 at which meeting the claimant submitted a lengthy "Defence Statement". This statement refuted in some detail each of the allegations of sexual harassment. It challenged the making of the complaint by Mrs Casey and sought to undermine the validity of it by drawing attention to the fact that Mrs Casey had finished her shift after the incident on the 12 October 2005 and that she had not reported the incident until the next day. It also rehearsed? the claimant's view that the sexual harassment complaint had been fabricated as part of a conspiracy against him and that the sexual harassment complaint was thus linked to his having raised issues concerning poor work practices in relation to most of his colleagues.
- This Defence Statement suggested, for the first time, that Mrs Casey had also made her sexual harassment complaint in retaliation for the fact that the claimant had reprimanded her for selling cigarettes in public.
- The investigation team found that the claimant had raised with Mr Hollyoak a substantial number of complaints against his colleagues of a variety of different employment infractions. These included bad timekeeping, being drunk on arrival at work, going home early, ignoring rules, unauthorised use of internet and mobile phones at work.
- The claimant had kept a record of these infractions during a period of months between February 2005 and August 2005. He had reported them on an ongoing basis to his supervisor, Mr Hollyoak. He reported the consistent bad habits of particular colleagues. When the claimant was not satisfied that Mr Hollyoak had dealt with these matters well or at all he raised the issues with Mr Hollyoak's manager, Mr Morrissey. Mr Morrissey told Mr Hollyoak to sort out the matter.
- Mr Hollyoak had then spoken to and reprimanded a number of the claimant's colleagues. Two of them received Recorded Verbal Warnings. The investigation team noted that the claimant had been subsequently cold-shouldered by at least two of his colleagues. The claimant maintained that this poor working relationship background had been allowed to continue and that his supervisor had not only failed to deal with the situation but had actively encouraged it and taken part in it. The investigation panel noted that some of his colleagues communicated with each other about the claimant by text messages. On one occasion the claimant read a text message on Mr Hollyoak's phone stating "Colin is in the shit".
- The claimant maintained that this situation was the basis of the collective vendetta to oust him from the Booking Office. However the investigation team noted that although the claimant had been cold-shouldered by some of the colleagues that this behaviour had not continued for very long. The team also noted that these events had begun in February 2005 and had concluded in or about August 2005, some months prior to the complaint of sexual harassment made against the claimant.
- The team also noted that Mr Morrissey had spoken to Mr Hollyoak about his text message and that Mr Hollyoak had apologised to the claimant and that his apology had been accepted. The team concluded that this issue had thus been dealt with and concluded some months prior to the making of the complaint.
- The investigation panel investigated the submissions raised by the claimant in his defence to the allegations of sexual harassment and in relation to his complaint against Mr Hollyoak. They re-interviewed Mrs. Casey and spoke to Mr Hollyoak, Mr Morrissey and five others. They also spoke to Mrs Sinead Casey on two subsequent occasions in relation to the claimant's specific allegations of her having sold contraband cigarettes.
- The investigation team concluded that the claimant's allegations of a conspiracy or vendetta against him to remove him from the booking office were unfounded. In reaching their conclusion the respondents also took account of the fact that it was well known in the Booking Office that the claimant had been successful in getting a Train Driver's post and would be leaving the office to take it up.
- The investigation team also found no evidence that Mrs Casey had been selling cigarettes. The team subsequently noted that one of her colleagues did mention that Mrs Casey had been selling cigarettes but that this statement was made after the maker of it had resigned from the company pending gross misconduct charges.
- Accordingly the respondents wrote to the claimant on the 3 January 2006 advising him as follows;
- that the disciplinary charge against him had been upheld, that he was dismissed from the company with effect from the 4 January 2006 and that he could appeal against that decision;
- that his complaint under the company's Dignity at Work Policy had not been upheld and that he had a right to appeal this decision to Mr Hilton Parr,
- and that another complaint against him made by Mrs Casey would not be investigated further due to his dismissal from the company.
The application forms complaint
- Throughout the same period of time that the sexual harassment complaint against the claimant was being investigated and the claimant's complaint against Mr Hollyoak was being investigated another investigation was being conducted into discrepancies that had been discovered in the claimant's application forms, the application forms complaint. As stated this matter had been given to Mr Alan McCully to examine further and he commenced his investigation by inviting the claimant to a meeting with him on 7 November 2005.
- The contents of that meeting were recorded by Mr McCully in a letter to Mr Mallon dated 15 November 2005. Mr McCully pointed out the discrepancies between the application form completed by the claimant for Senior Porter in August 2002 and the subsequent application form completed by the claimant for the post of Marketing Officer in about June 2004. In the first application form the claimant indicated he possessed a C in English language GCE and a D in Maths GCE (1977) the criteria for the post were two GCSE passes in English and Maths.
- In June 2004 the criteria for the post of Marketing Officer were three GCSE grades C passes, or equivalent in English, Maths and one other subject. The claimant recorded that he possessed a C in English language GCSE and a C in Maths GCSE (1977) and a C in History GCSE (1977). When confronted with these discrepancies the claimant indicated that he believed he had re-sat his Maths and upgraded from D to C and that he had thought from memory that he held a grade D in History. The claimant also indicated that if he had been mistaken in correctly completing his qualifications it was in the rush to complete the application form for Marketing Officer. Mr McCully asked the claimant to produce verification of the Maths GCSE grade C pass and the grade in History GCSE.
- Mr McCully also indicated discrepancies in the claimant's employment record between the post of Senior Porter in August 2002 and Marketing Officer and the subsequent Train Driver application forms in June 2004 and in March 2005 respectively. On the application form for the claimant's first post at Translink of Senior Porter he gave his employment history including working at Belfast City Council from March 2000 to January 2002 and from January 2002 as a Team Leader Park Ranger and from January 02 to the then present date (August 2002) as working in Belfast City Council as Driver/Labourer. This contrasted with the claimant's subsequent application forms for Marketing Officer and Train Driver. In these application forms the claimant set out his employment history as an additional sheet in the application form and included his employment history dating back to 1977 to the time of the application form. In both applications the claimant indicated that between May 1999 and November 2002 he was "unemployed. Caring responsibilities for elderly father and my three children".
- Mr McCully indicated in his letter of 15 November that depending on the claimant's responses the company would have to consider whether disciplinary action was warranted.
- The claimant wrote to Mr McCully on two occasions in relation to this. The first letter was dated 10 November 2005 and was prior to Mr McCully's letter of 15 November and the claimant's second letter was dated 17 November and was in direct response to Mr McCully's letter. In his first letter the claimant indicated that the qualifications detailed on his original application were correct and that an error arose on applications thereafter due to an upheaval at home with the loft conversion and records being misplaced.
- The claimant also added that in respect of the Marketing Officer post he had decided to apply for the post at the last minute. He drew Mr McCully's attention to the fact that the form was submitted on the closing date. The claimant indicated that he had completed the form in a rush and had copied a previous application form that he had made in relation to a Conductor's post (October 2003). The claimant indicated that the errors that appeared on his Marketing Officer application form and Train Driver application form in fact arose from his mistakenly completing a Conductor's post application form in October 2003. The claimant also indicated that when he was completing his Marketing Officer form he had concentrated on the requirement for cash handling skills which he believed he fulfilled. In his second letter of 17 November 2005 the claimant reiterated the reasons for his errors in relation to his qualifications. The claimant also indicated that his employment history had accidentally omitted reference to his employment at Belfast City Council.
- On 25 November 2005 the claimant was charged with gross misconduct in respect of falsification and misrepresentation of his qualifications and employment history. On 30 November 2005 the claimant denied the charges and sought information in order to defend his case further.
- The claimant was invited to a disciplinary hearing in relation to this charge on 9 December 2005. As this was the date set for the claimant's other disciplinary hearing and his own complaint interview the claimant sought a postponement of this disciplinary hearing. The claimant was invited to attend a postponed disciplinary hearing on 9 December at 11.00am. At this hearing the claimant submitted a defence statement. The meeting was further postponed until 1.00pm that afternoon so that the claimant's defence statement could be read. Mr McCully indicated that in the criteria for the Marketing Officer position the qualifications were deemed essential criteria and any candidate not meeting the essential criteria of three GCSE passes would not be selected for interview.
- In his letter 3 January 2006 Mr McCully summarised the disciplinary hearing. He indicated that the claimant's application for Senior Porter had stated that he held a C in English language, a D in Maths and a D in Business Studies and that these qualifications met the stated criteria of passes in English and Maths. Mr McCully indicated that the subsequent application form for Marketing Officer dated June 2004 stated that the claimant stated that he had possessed O level C in English language, Maths and History. The claimant had accepted that he had no evidence to prove that he had subsequently improved his Maths grade from D to C or that he had a C in History. In fact that claimant accepted that the evidence indicated he had a D in Maths and a U, ungraded, in History. It was noted that the claimant stated that he had mistakenly stated his qualifications when filling out the Marketing Officer application form in haste.
- The disciplinary hearing noted the claimant's argument that he met Marketing Officer post's requirement on experience. The respondent company was unable to indicate whether the short-listing panel for the Marketing Officer post had taken the claimant's experience into account.
- Mr McCully noted that the claimant's response to having left out his period of employment with Belfast City Council on application forms subsequent to his first application form completed in August 2002 was down to "misjudgement human error and not deliberate deception."
- The disciplinary hearing did not accept the claimant's argument that he had mistakenly recorded a Maths grade as C when he held a certificate stating D and that he had recorded a grade in History at C when in fact he had been ungraded. The disciplinary hearing disregarded the claimant's arguments that he satisfied the criterion of clerical experience including cash handling experience as this was irrelevant in that it did nothing to alter the fact that the claimant had misrepresented his qualifications in order to meet the essential educational standard for the post.
- Mr McCully did not accept that the claimant had mistakenly omitted an employment period of over two and a half years and he came to the conclusion that the claimant had deliberately excluded his period of employment history from Belfast City Council.
- The tribunal noted that at the tribunal hearing the claimant changed his account of why his employment history was different between the two application forms that his period of employment at BCC had been omitted. The claimant stated that he had not been aware that his period of employment at BCC had been omitted from the applications forms, that his wife had compiled his employment history and that he had not checked them thoroughly. He then stated that his wife had made a mistake when she has compiled this list. The claimant subsequently stated that he had omitted the employment period at BCC because that employment history was not relevant to the positions in Translink for which he was applying.
- The tribunal then heard evidence from the claimant's wife. Mrs Mallon admitted in cross-examination that she had deliberately left out the period of employment in question. She stated that she had been the one to do this and accepted that she had been the one to lie on the form. At first Mrs Mallon stressed that this deliberate deception was "her lie" and that it was not her husband's fault. However she subsequently accepted that the claimant had become aware of this deception and that therefore he had collaborated in the deception to Translink.
- The Tribunal noted the variations in the evidence for the explanation for the omission of the claimant's employment history from his applications forms. The Tribunal also noted that the version of it, that Mrs. Mallon had deliberately omitted when compiling the employment history list, was mentioned for the first and only time at this hearing. The Tribunal further noted Mrs. Mallon's demeanour and discomfiture when giving this evidence. The Tribunal concluded this was another last ditch attempt by the claimant and Mrs Mallon to defend the claimant against the charges. The Tribunal rejected this evidence and concluded that both the claimant and Mrs Mallon had lied to the Tribunal.
- The disciplinary hearing concluded that the charge against the claimant of having misrepresented his qualifications and his employment history was proven and concluded that the claimant had deliberately misrepresented the details in his application forms to obtain an unfair advantage. Accordingly the disciplinary hearing upheld the charge of gross misconduct and summarily dismissed the claimant effective from 3 January 2006.
The claimant's sex discrimination complaint
- In a letter dated 17 November 2005 the claimant stated that the respondents had not complied with the terms of the Dignity at Work Policy in that they had not acknowledged receipt of his complaint nor had they interviewed him within 3 days of receipt. The claimant subsequently wrote to the respondents on the 21 November 2005 and stated that his complaint under the Dignity at Work Policy had not been investigated within the same timelines or dealt with in the same way as that of the female staff member, Mrs Casey.
- The basis of the claimant's sex discrimination complaint was that the respondents had failed to adhere to the Dignity at Work Policy and procedures by not arranging to meet him within 3 days of his making his complaint, by failing to discuss his complaint with him before they met the alleged harasser (Mr Hollyoak) and by taking a longer time to complete the investigation into his complaint than they had to complete Mrs. Casey's sexual harassment complaint. It was accepted that the investigation into claimant's complaint had been completed in 44 days and that the investigation into Mrs. Casey's sexual harassment complaint had been completed in 16 days.
- The Tribunal noted that the policy required a complainant under it to be interviewed by a manager within three working days. The purpose of this meeting was to request from the complainant full written details of the complaint, if not previously supplied, to clarify and formally record the nature of the complaint, to confirm that it is the complainant's request that it be handled under the formal procedure, to ensure that the complainant has a copy of the Dignity at Work policy and understands it, to advise the complainant of the next stages of the process and to advise insofar as is practical to avoid direct or indirect contact with the alleged harasser. The policy also stated that every effort would be made to complete an investigation at the earliest opportunity.
- The respondents contended that the procedure and processes set out in the Dignity at Work Policy were guidelines and were there to ensure that the substance of what ought to be done would be done. The respondents also contended that not all complaints could be investigated within the timelines set out in the procedure as complaints varied in type and complexity.
- The Tribunal found that although the respondents had not followed the same procedural steps when investigating the claimant's complaint under the Dignity at Work Policy as they had done when investigating Mrs Casey's sexual harassment complaint against the claimant that both investigations were carried out within the terms of that Policy.
- Specifically the respondents contended and the Tribunal accepted that as Mrs Casey had firstly made an oral complaint against the claimant to her line manager she had been invited to put her complaint in writing. She had then been interviewed to have an opportunity to give further details if necessary. The claimant, on the other hand, had firstly set out his complaint in detail in writing and as the complaint also formed part of the claimant's defence to the sexual harassment complaint against the claimant had the opportunity in his subsequent defence statement to go into further detail which had enabled them to go to the next stage of the procedure and interview Mr Hollyoak. The respondents contended and the Tribunal accepted that this had obviated the need to follow the procedural steps strictly as the requirements contained within them had been thus met.
- The claimant wrote to the respondents on the 17 November 2005 noting that he had not received acknowledgement of his grievance or clarification of its progress. The Tribunal accepted that although receipt of the claimant's complaint was not acknowledged in writing until 12 days after he had lodged it the claimant had hand-delivered his complaint to Mrs Grant on the 7 November 2005, that she had noted it to him then and had spoken to the claimant the next day about how it would be dealt with. The Tribunal also found that on receipt of the claimant's claim on the 7 November 2005 the investigation team had commenced their investigation into it as early as the 8 November 2005 and had interviewed Mr Hollyoak on the 11 November 2005.
- Further the Tribunal also found that Mrs Grant wrote to the claimant on the 18 November 2005 and advised him that his grievance was being investigated and by further letter dated 25 November 2005 Mrs Grant reminded the claimant that they had indicated to him on the 7 November 2005 that they would be taking this course of action and that he had been told subsequently on the 8 November 2005 that they believed there was enough information in his written complaint for them to initiate an investigation and that they would interview him in due course.
- The Tribunal found that the length of time to complete the investigation into the claimant's complaint was influenced by a number of factors. One of these was that the respondents had had to investigate fresh submissions from the claimant in relation to the circumstances surrounding the alleged vendetta against him as these arose during the course of the joint investigations into the sexual harassment complaint against him and in the investigation into the claimant's own complaint. The Tribunal noted that the respondents reached no conclusions on either the charge against the claimant or his own complaint until each of these fresh submissions had been explored and tested.
- The Tribunal also noted that another factor which contributed to the overall length of time taken to complete the investigation into the claimant's own complaint was the fact that, given the factual overlap between the two complaints, the respondents dealt with the two matters together. However the Tribunal noted that this joint approach in itself led to difficulties where, for example, in some instances both complaints were dealt with on the same morning, with one investigation meeting following close on the heels of another. While the Tribunal noted that the respondents stated at the outset of each meeting what its purpose was and that minutes and records of these meetings reflected this nevertheless the Tribunal could appreciate the claimant's need for the sometimes detailed clarification he frequently sought about the meetings which he was invited to attend.
The Appeals
- The claimant appealed against the following:-
(1) That the charge of sexual harassment had been found proven.
(2) That the charge of falsifying and misrepresenting his qualifications and employment history was proven.
(3) That his harassment complaint against Mr Hollyoak had not been upheld. The claimant did this by letter dated 9 January 2006.
- An appeal hearing date was set for 1 February 2006. The claimant wrote to the respondent on 24 January 2006 and requested a number of documents to assist him in his appeals. The claimant wrote to the respondent again on the morning of the appeal hearing and requested further documentation that remained outstanding. In this letter the claimant indicated that he believed the respondent company's handling of his case was procedurally inadequate and that the investigations into his charges and complaint and the appeals in his case were not high on the company's list of priorities. However, in spite of the claimant being offered an opportunity to re-arrange the appeal hearing to facilitate his preparation the claimant indicated that he wished to proceed.
- The appeal hearing proceeded on 1 February 2006. This hearing took longer then was planned and a further appeal hearing was re-convened for Monday 6 February 2006. At this meeting the claimant submitted a further appeal document. In it he rehearsed arguments that had been made at the first appeal hearing and advanced further arguments in his defence against the two charges proven and arguments that his harassment complaint ought to have been upheld.
- The respondent company further investigated issues raised by the claimant in the course of his appeal and conducted further interviews. However at a meeting on 23 February 2006 the claimant was advised that the appeal panel upheld the findings of gross misconduct in respect of the sexual harassment charge and in respect of the falsification and misrepresentation of his qualifications and employment period.
- By letter dated 2 March 2006 the claimant was furnished with a seven page letter setting out the rationale and the conclusions for the decision taken. In this letter the appeal panel advised that in respect of the charge of falsifying and misrepresenting his qualifications and employment history that although the panel found the claimant guilty they substituted the penalty of dismissal with a final written warning and removal from his Marketing Officer post back to the Senior Porter grade. In doing so the appeal panel took account of his previous good service record. However the appeal panel upheld the finding on the charge of gross misconduct and that the penalty of dismissal was appropriate, in spite of their consideration of the claimant's good service record in this regard and he remained dismissed. This letter advised the claimant that he had a further appeal to Mr Mal McGreevy.
- The claimant wrote to Mr. McGreevy on the 6 March 2006 and indicated his intention to appeal against his dismissal for gross misconduct and the decision not to uphold his complaint under the Dignity at Work Policy.
The Final Appeal
- Mr McGreevey wrote to the claimant on 8 March 2006 and advised him that he would be conducting the claimant's appeal. In view of the fact that the claimant had again requested extensive information there was no date set for the final appeal hearing at that stage. By letter dated 2 May 2006 the claimant was advised that the final appeal would be heard on the 17 May 2006. The respondent company also advised that as the claimant's complaint under the Dignity at Work Policy overlapped with some aspects of his final appeal that all matters would be considered together and that he would be advised of the company's response in relation to his grievance after the final appeal hearing.
- The claimant's final appeal hearing took place on 17 May 2006. At this final appeal hearing the claimant submitted a "final appeal document". Mr Mal McGreevey considered the claimant's submissions and this further document.
- During his consideration of the claimant's final appeal Mr McGreevey contacted a Mr Stanley Black at Belfast City Council. Mr McGreevey had sought the claimant's prior written authority to do this.
- On contacting the Belfast City Council Mr McGreevey was advised that the claimant had worked at Belfast City Council between March 2000 and November 2002, contrary to the claimant's statement on subsequent application forms that stated that between May 1999 and November 2002 he had been "Unemployed. Caring responsibilities for elderly father and my three children."
- Mr McGreevey was also advised by Belfast City Council that the claimant had been dismissed for a number of employment irregularities some of which were found proven. These included being 'absent from duty on four occasions, being off your approved patrol route, conduct at work likely to offend female staff, and acting in a threatening manner to other staff'. On the basis of this Mr McGreevey concluded that the claimant's omission of his period of work at Belfast City Council from his employment history was not an oversight as claimed by the claimant but was intended to deceive, mislead and misrepresent.
- By letter dated 27 June 2006 Mr McGreevey indicated to the claimant that he had considered his submissions in respect of the charges against him and of his own complaint that he had been discriminated against on grounds of his sex in the manner in which his complaint under the company's Dignity at Work policy had been dealt with, and had rejected them.
- Mr McGreevey concluded that the claimant remained guilty of the two charges of sexual harassment and falsification and misrepresentation of his qualifications and employment history. Mr McGreevey went on to review the reasonableness of the penalties that had been applied to both of these findings and to satisfy himself that the appeal panel took due cognisance of any extenuating circumstances. Mr McGreevey went on to conclude that on the basis of his further investigations into the claimant's employment history with Belfast City Council that it was appropriate to reinstate the penalty of dismissal for the application form complaint rather than the reduced penalty the appeal panel had imposed.
- Mr McGreevey also rejected the claimant's assertion that he was treated less favourably on the grounds of his sex in relation to his complaint under the company's Dignity at Work policy. Mr McGreevey noted that key elements of this complaint overlapped with the claimant's evidence used in his defence against the charge of sexual harassment and that this complaint has been adequately dealt with at the initial and subsequent hearings into the charge of sexual harassment. Mr McGreevey also indicated that it was satisfied with the process that had been undertaken in relation to the processing of the claimant's complaint and concluded that any further review of the complaint was "academic and no further remedies are required".
THE LAW
- The tribunal considered the relevant statutory provisions and case law in respect of both unfair dismissal and sex discrimination as claimed.
Unfair Dismissal
- The statutory provisions in relation to unfair dismissal are contained in the Employment Rights (Northern Ireland) Order 1996. Article 126 of that Order sets out the right of an employee not to be unfairly dismissed by his employer.
- Article 30 of that Order goes on to state that -
(1) In determining … whether the dismissal of an employee is fair or unfair, it is for the employer to show -
(a) the reason (or if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it -
(a) relates to the misconduct of the employee.
- Article 30(4) goes on – where the employer has fulfilled the requirement of paragraph 1 the determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and these shall be determined in accordance with equity and the substantial merits of the case.
Sex discrimination
- The statutory provisions in relation to sex discrimination are contained in the Sex Discrimination (Northern Ireland) Order 1976, the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and relevant case law.
- Article 8 of the 1976 Order provides;
It is unlawful for a person, in the case of a women employed by him at an establishment in Northern Ireland to discriminate against her –
(a) In the way he affords her access to the opportunities for promotion transfer or training or to any other benefits, facilities or services by refusing or deliberately omitting to afford her access to them; or
(b) By dismissing her, or subjecting her to any other detriment……
The Burden of Proof
- The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 inserts a new Article 63A into the Sex Discrimination Northern Ireland Order 1976:
- Article 63A provides Burden of Proof: Industrial Tribunals.
- This Article applies to any complaint presented under Article 63 to an Industrial Tribunal
(i) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this article, conclude in the absence of an adequate explanation that the respondent – (a) has committed an act of discrimination against a complainant which is unlawful by virtue of part 3 or (b) is by virtue of Article 42 or 43 to be treated as committing such an act of discrimination against the complainant;
(ii) The tribunal shall uphold the complainant unless the respondent proves that he did not commit or as the case may be is not to be treated as having committed that act.
Case Law
Unfair Dismissal
- The tribunal considered the cases to which it had been referred. In reaching its decision the tribunal paid particular regard to the case of British Home Stores Ltd –v- Burchell [1978] IRLR 379 which sets out the task for the tribunal to assess whether the dismissal was fair or not. The tribunal must determine whether the employer believed that the claimant was guilty of the misconduct, that the employer had reasonable grounds for that belief and that the employer had carried out as much reasonable investigation into the matter as was reasonable in all the circumstances of the case. That case also indicated that it was not for a tribunal to replace its own view of what it would have done in the same circumstances.
- The tribunal also considered the case of Iceland Frozen Foods Ltd -v- Jones [1982] IRLR 439 which sets out the same principles as guidance; the tribunal must consider the reasonableness of the employer's conduct and not consider whether the tribunal itself considers the dismissal to be fair. In most cases there is a band of reasonable responses ranging between the view that one employer might reasonably take to the view another employer might reasonably take. The tribunal's function is to determine whether, in the particular circumstances of the case before it, the decision to dismiss falls within the band of reasonable responses which a reasonable employer might have adopted.
Sex Discrimination
- The tribunal has relied on the guidance by Lord Justice Peter Gibson in Igen Ltd and others v Wong (2005) IRLR 258 which clearly sets out the process by which the tribunal approaches the reversal of the burden of proof. This is a two stage process where the claimant must prove facts from which the tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts from the claimant onto the respondents. The respondents must then show that they did not commit the unlawful discrimination and that the treatment of the claimant was not related to sex.
- The Tribunal also noted and applied the case of Madarassey v Nomura International plc [2007] IRLR 246 CA which held that this burden does not move from the claimant to the respondent where there is only a difference in status (in this case sex) between the claimant and his comparator and a difference of treatment. This case indicates that "could conclude" means "could properly conclude". The Tribunal also considered the case of Shamoon v The Chief Constable of The Royal Ulster Constabulary [2003] IRLR 285HL with regard to the circumstances in which any comparison between a claimant and his comparator can be drawn.
The Tribunal's Conclusions
- The claimant was dismissed by the respondents for gross misconduct on the basis that they found him guilty of sexual harassment of another employee and of submitting applications forms that were false and misleading in relation to his qualifications and employment history.
- The issue for the tribunal was to examine whether or not the dismissal of the claimant on these bases was reasonable and fair. In order to reach a conclusion on this the tribunal had to consider the procedural steps taken by the respondents in reaching this conclusion and assess if these were conducted in accordance with reasonableness and fairness.
- The tribunal also had to consider whether dismissal in the circumstances of this case was a sanction which fell into the range of reasonable responses. The tribunal noted that although the claimant's complaint under the respondent's Dignity at Work Policy was not upheld, this decision did not form the basis of or contribute to the claimant's dismissal.
The Reasonableness of the Procedures
- The claimant claimed that in the disciplinary proceedings taken against him the respondents had failed fully to take into account any of the issues raised in his defence statements, that they had asked leading questions of the witnesses to bias the investigation in favour of his dismissal, that his personal records had been searched deliberately to look for discrepancies and other misdemeanours that would bias the investigation in favour of his dismissal and that there had been a colleague vendetta against him that was supported in his view by the way in which management had investigated the complaint against him.
- Given the facts found the Tribunal did not accept that the respondents had not fully taken into account any of the issues raised by the claimant in his defence statements. The tribunal noted from its findings of fact that the respondents investigated each of the submissions made by the claimant in each of the charges brought against him as these arose not only during the investigations into the charges but during and throughout the appeal process. As the claimant brought to each of the disciplinary interviews and hearings detailed defence statements containing new submissions and fresh allegations so on each occasion the respondents investigated these.
- Accordingly the Tribunal found no basis on which to conclude that the respondents had "not fully taken into account any of the issues raised in (the claimant's) defence statement".
- The claimant's other contention was that his dismissal was unfair because the respondents had failed properly to conduct the investigation interviews by asking leading questions of the witnesses to bias the investigation in favour of his dismissal. The tribunal found that the respondent's investigation team properly put to those interviewed the specifics of the allegations made against the claimant and invited their comments. The tribunal could not conclude that to conduct the interviews in this way was anything other than proper, to give the claimant's fellow employees an opportunity to make their comments in the knowledge of the allegations made. Accordingly the tribunal concluded that the respondents had been procedurally correct to conduct the interviews in this way and that they had not asked leading questions in order to bias the investigation in favour of the outcome of dismissal
- The claimant claimed that the respondent had been procedurally and substantively unfairly biased against him in the act of searching his personnel records to scan these for other misdemeanours or discrepancies. He was of the view that the respondent had acted procedurally unfairly against him by deliberately exploring his personnel records as if a fishing expedition, to seek out previous discrepancies or misdemeanours that they could hold against him and thus be biased in favour of dismissing him.
- The tribunal rejected this contention on two bases:- the tribunal did not accept that the act of checking the claimant's personnel records was a sinister act on the part of the respondents designed to seek out further discrepancies and misdemeanours otherwise unknown to them. The tribunal found that it was proper for the respondent to explore the personnel records of the claimant against whom any complaint and the tribunal accepted that in this instance Mrs Grant had the additional need to familiarise herself with the claimant who had been previously unknown to her.
- The tribunal also rejected the claimant's claim that the respondent had failed properly to investigate the discrepancies in his personnel records in a way that took any account of his defences to the discrepancies found. The Tribunal found that the respondent gave the claimant every opportunity to explain the discrepancies and went to some lengths to explore the submissions made by the claimant in his defence.
- Accordingly the Tribunal concluded that in all the circumstances the respondent's procedures had been fair and reasonable.
The Reasonableness of the Sanction of Dismissal
- The claimant was dismissed on foot of both charges against him-the sexual harassment complaint against him and the false and misleading application forms complaint. The Tribunal noted that on each occasion the respondent considered the nature of the offence, the claimant's defence to it and took into account his previous good employment record with them. In these circumstances the Tribunal considered that although dismissal did not necessarily follow the commission of either of the charges that the sanction of the dismissal was within the band of reasonable responses and that the respondent did not act unfairly by imposing it on the claimant.
- The Tribunal noted that although the sanction of dismissal had been reduced for the false and misleading application forms complaint charge at the claimant's first appeal the sanction had been reinstated at the claimant's final appeal. This had been done on the basis that it had been discovered between these appeals that the claimant had been sacked from BCC and that therefore the omission had been intentional to deceive the respondent.
The tribunal concluded that in these circumstances the respondents were reasonable in concluding that the claimant had completely failed in his duty of fidelity to them and that the sanction of dismissal was within the band of reasonable responses.
The Sex Discrimination Complaint
- In order for a claim of sex discrimination to succeed the tribunal must identify from the evidence facts from which, before any explanation from the respondents, the tribunal could conclude that discrimination might have occurred. Such facts include any differential treatment between the claimant and his comparator, in this case Mrs. Casey. However the comparison exercise to be made between these two is itself a legal exercise and must be done within the context of the case Shamoon v The Chief Constable of The Royal Ulster Constabulary [2003] IRLR 285HL . That case requires the tribunal to make the comparison of the treatment between the two parties where the circumstances being compared are the same or are not materially different.
- As the Tribunal concluded in its findings of facts that the circumstances of the claimant's complaint of sex discrimination were not the same or even materially similar to the circumstances in Mrs Casey's complaint the Tribunal was not required to make any analysis of any difference in treatment between the two.
- In any event the Tribunal also concluded that although the claimant identified a female comparator and demonstrated that the respondent had approached the investigation of his complaint differently than they had the investigation of his comparator's sexual harassment complaint the Tribunal concluded that he had not adduced sufficient facts from which a conclusion of discrimination could properly be drawn.
- Accordingly the Tribunal concluded that the claimant's claim of sex discrimination fails.
Chairman:
Date and place of hearing: 24-28 September 2007, 15 October, 18, 19 and 22 October 2007, 8 and 9 November 2007.
Date decision recorded in register and issued to parties:
