FAIR EMPLOYMENT TRIBUNAL

CASE REF:	5/99FET

APPLICANT:	Boyd Ireland

RESPONDENT:	Ministry of Defence

DECISION
The unanimous decision of the Tribunal is that the complaint is dismissed.

Appearances:
The applicant appeared without representation.
Mrs N Murnaghan, Barrister-at-Law, for the respondent instructed by the Crown Solicitor.

1.	The applicant complained to the Tribunal that he had been victimised by the respondent because of a previous allegation that he had made that the respondent had committed an act which was unlawful under the Fair Employment (NI) Acts.  This victimisation took the form of irregularities in procedures during a prolonged harassment investigation including application to his GP for the release of personal medical information without his consent.  This treatment had not been equally applied to individuals in similar circumstances who had not made allegations under the Fair Employment Acts.  In addition, the applicant alleged that he had been so treated because of his political opinion.

2.	We are satisfied that the respondent operated a policy whereby they regarded a consent to an approach to a GP for medical information as having a ‘shelf life’ of up to 2 years regardless of the purpose for which the consent was given.  In making this finding we were impressed by the evidence of the witness who testified to it.  The practice was not evidenced in writing before, during or after its lifespan.  It is difficult to understand how such a practice could be adopted, justified or excused and no one sought to do so on the respondent’s behalf.  It is a practice which has now ceased.  We are further satisfied, on the evidence, that it was a practice employed in relation to all employees.  We, in the Fair Employment Tribunal, are not entitled to investigate invasions of privacy or abuse of a system or procedure.  On the credible evidence which we heard we are satisfied that the applicant was not treated less favourably on this account than any other employee.

3.	The applicant’s complaint, as we have mentioned, was of discrimination in the form of irregularities in procedures.  The procedures employed arose out of a situation where the applicants Officer Commanding (O.C.) transferred him to a new post.  The O.C. expressed an opinion on the existing incumbent of that post.  The move was part of a larger scheme of transfers within the O.C.’s sphere of influence and, as a result, a trade union meeting was held to discuss those moves.  The applicant was the trade union representative.  At the meeting the applicant referred to what the O.C. had allegedly said about the existing holder of the post in the presence of that person.  The existing holder of the post complained to the respondent of harassment by the applicant.  The O.C. denied saying what the applicant said he had said about the existing postholder and the applicant made a complaint against the O.C. as a consequence.  The applicant’s complaint was related to his less favourable treatment in the course of the investigation and adjudication of the complaint made against him.

4.	The respondent accepted that the applicant was taking part in trade union activities at an appropriate time when he said what he said about the O.C. and the existing postholder.  He said it whilst acting as a trade union officer.  It is somewhat surprising, to say the least, that an employer should seek to investigate, and adjudicate upon, what a trade union official said to a trade union member at a trade union meeting.  An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of preventing or deterring him from taking part in the activities of an independent trade union or penalising him for doing so – Article 73 of the Employment Rights (NI) Order 1996.  It is somewhat surprising that an employer should contemplate harassment investigation and disciplinary action against a trade union official in relation to something said at a trade union meeting without prior discussion with senior trade union officials – especially as it was in breach of the Ministry’s own regulations.

5.	The respondent, when he commenced this harassment investigation, was not aware of the incident at the trade union meeting.  The incidents of harassment, being then investigated, related to alleged attempts by the applicant to undermine the position of his predecessor by reporting to the O.C. that goods in his predecessor’s care were incorrectly stored or located.  The applicant became aware of the new charges in the course of the investigatory meeting.  It is more than surprising that this should happen – particularly where one of those charges arises out of what was said by the applicant, as a trade union official, at a trade union meeting.  The other two matters being investigated also related to the undermining of the position of his predecessor by the applicant.  All of the charges, bar the charge relating to the trade union meeting were held to be unfounded.  A distinction made between charges by the investigating officer between being ‘unfounded’ and there being on the balance of probabilities insufficient evidence to substantiate is not explained.

6.	The applicant was then charged with harassing his predecessor by humiliating him in front of colleagues at a trade union meeting by making derogatory comments allegedly used by the O.C. about his predecessor to him.  The respondent, in a considered decision, took the view that not merely were they entitled to consider things said at a trade union meeting but the fact that the incident occurred during a trade union meeting was “irrelevant”.  The essence of the charge was that the applicant, at the trade union meeting, told those present 

that the O.C. had told him that his predecessor was inefficient at his job and that if he remained in his post the Depot would grind to a standstill.  At the disciplinary hearing, the Civilian Management Representative – representing the Ministry of Defence – is recorded in the Record of the Disciplinary Hearing as stating –

	“[Mr Maddison] stated that the Board had accepted that the O.C. had made comments that [the applicant] had subsequently repeated at the Trade Union meeting.”

	The record goes on –

	“It would appear that [the applicant’s predecessor] took offence.  The Board’s acceptance of the origin of the comments also therefore accepts that [the applicant] had not invented them or lied to Mr Bean but the harassment allegation calls into question [the applicant’s] judgement in repeating them …..

	Mr Maddison replied that [the applicant’s predecessor] was not taking offence at the move but at the way in which it was communicated and this was the point of the charge.”

	Harassment is defined for a number of purposes in the respondent’s procedures, ie. sexual, racial, etc.  Non-specific harassment is defined in terms, namely

	“Regardless of the grounds, harassment should not be tolerated in the workplace.  Bullying and other forms of intimidatory, offensive or insulting behaviour should also not be permitted or condoned at work.”

7.	It is quite amazing, in our opinion, that a senior trade union official who told a colleague in a trade union meeting what he had been told by senior management should find himself facing a charge of harassment by his employer.  It is amazing also that his employer should see the fact that this was said at a trade union meeting as irrelevant.  It is amazing that such an official should be found guilty of harassment for what his employer saw as an honest error of judgement – and on the basis, it was argued, that ‘one should say something bad in private’.  And that seemingly applied whether or not a person complained of harassment if investigation found harassment it did not matter if a complaint of harassment had not been made.

8.	The applicant appealed.  At the appeal the appeal body saw the fact that the conduct took place at a trade union meeting as ‘irrelevant’.  The applicant appealed to Headquarters who had accepted harassment took place but withdrew the reprimand because –

	(a)	the offence was relatively minor, and

	(b)	there was no intention.

9.	On his final appeal to the Under-Secretary of State, the charge of harassment was withdrawn.

10.	The applicant alleged that the discrimination inflicted upon him took the form of irregularities in procedures during a prolonged harassment investigation including the making of an application to his GP for the release of personal medical information without his consent.  In his questionnaire to the respondent the applicant alleged that the respondent victimised him by writing to his GP without his consent and conducting an investigation into alleged acts of harassment committed by him – which investigation was conducted in an 

	irregular manner and contrary to the respondents own procedures.  In amplification the applicant alleged that he was treated differently compared to others because of his role as a trade union representative.  In his evidence to the Tribunal the applicant alleged that Major H, and only Major H, discriminated against him.  He does not allege discriminatory conduct on the part of anyone else.  Major H was not responsible for the approach to his GP.  Major H was not involved in the investigatory procedure into the complaint of harassment against the applicant other than to check with him what he had said.  That must be the end of the matter so far as this Tribunal is concerned.

11.	It seems to us that this case is about trade union activities.  It is difficult to understand the stance taken by the respondent and the tenacity with which that stance was defended.  We have difficulty in our most generous interpretation in seeing where the harassment alleged against the applicant actually was.  There are clear grounds, even in the respondent’s own evidence, for concluding that the applicant merely repeated what Major H told him – and at a trade union meeting called for trade union purposes.  In our experience this harassment allegation and disciplinary process were quite unique.  And we have no doubt whatsoever that the applicant suffered grievously because of the respondent’s treatment of him and we would wish to record our hope that the decision of this Tribunal will not be seen by the respondent as a barrier to the Department’s appreciation of that fact.  We are dumbfounded at the fact that a government department adopted a practice whereby they regarded an employee’s consent to the release of confidential medical information for a particular purpose as consent to the release of confidential medical information generally for a period of two years.  On both counts of his complaint, we believe a serious injustice was done to the applicant but unfortunately, on the evidence before us, it is not an injustice within our power to remedy.

____________________________________
J E MAGUIRE
President

Date and place of hearing:	3-5 December 2001, Belfast

Date decision recorded in register and issued to parties: 11 February 2002