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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Duffy v Ulsterbus Ltd [2007] NIFET 84_01 (30 March 2007) URL: http://www.bailii.org/nie/cases/NIFET/2007/84_01.html Cite as: [2007] NIFET 84_01, [2007] NIFET 84_1 |
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CASE REF: 84/01FET
28/02FET
140/02
CLAIMANT: Gerald Duffy
RESPONDENT: Ulsterbus Limited
The majority decision of the Tribunal is that:-
was unlawfully discriminated against on the grounds of his religious belief and also by way of victimisation. The respondent is ordered to pay to the claimant the sum of £19,950.00 by way of compensation.
(b) The claimant was not unfairly dismissed and the said claim is dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Panel Members: Mr G Bradley
Mr M Lee-Kelly
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Macauley & Ritchie, Solicitors
REASONS
The claimant presented a further originating application to the Tribunal on 8 January 2002 in which he referred to the proceedings referred to above. He complained that he had been subjected to further incidents of sectarian harassment, culminating in an incident on 12 October 2001, when he had received an abusive telephone call in which he was told that if "if he ever drove an Ulsterbus again, it would be the last time". He complained of the failure of the respondent to take any or adequate measures to deal with these matters and that the respondent's attitude towards him had caused him further distress. He linked the further incidents of harassment to the ongoing investigation by the respondent into the matters, the subject matter of the original proceedings; and complained that it had failed to take any or adequate steps to ensure he was not subjected to further harassment. He further complained that, due to the further harassment and the respondent's attitude to him, he had resigned by letter dated 9 November 2001; and he had been subjected to further harassment on the grounds of religious belief and/or political opinion and had been victimised and constructively dismissed.
The respondent, in its notice of appearance presented to the Tribunal on 4 February 2002, in relation to the claimant's claim of constructive dismissal, denied that it had committed any breach of the claimant's contract of employment, which entitled him to resign and claim constructive dismissal. In a further notice of appearance presented to the Tribunal on 4 February 2002, in relation to the claimant's complaint of unlawful discrimination, the respondent set out, inter alia, the history of its investigation of the claimant's original allegations of sectarian harassment, the subject matter of the first set of proceedings, and its conclusion that, following the said investigations, his allegations of sectarian harassment had not been substantiated. In relation to the further claims, the subject matter of the second set of proceedings, it denied the claimant had been victimised or the subject of harassment on the grounds of his religious belief and/or political opinion. The respondent further stated that it had done everything reasonably practicable to prevent the claimant from being victimised or being the subject of harassment on the grounds of his religious belief and/or political opinion; it concluded that it had taken the claimant's complaints seriously, carried out a proper investigation of his complaints and come to a reasonable conclusion on the facts.
At his attendance with the doctor on 21 November 2000, he complained of depression and sleep disturbance. He complained of irritability and was noted to be worried. The doctor found no obvious cause for his depression and anxiety symptoms and noted his marriage was well and his children were thriving. However, he did inform the doctor that he hated his work. The claimant contended that, at that time, he had hair loss on his head (alopaecia); but this was not noted by his doctor. He was given anti-depressant medication and a sick line by his doctor. The claimant made a further three visits to his doctor in December and early January 2001, where there was not seen to be any improvement in his condition by his doctor. It was not until a visit in early February 2001 that he referred to an issue of harassment at work.
In view of his absence from work and, in accordance with the respondent's normal procedures in relation to the sickness notification by the depot manager, the claimant was referred to the respondent's company doctor, Doctor I. S. Hamilton in Belfast on 15 December 2000. Doctor Hamilton reported to Mr William H. Telford, a Protestant, the Northern Area Operations Manager, who was based at that time in Derry and who had senior line management responsibility for the Ballymena area, including the depot and for, in particular, the shunters/cleaners and drivers in the said depot. In or about 1995/6 Mr Telford's Office had been in the depot at Ballymena. He was the immediate line manager of Mr Tony Wylie, a Protestant, who was the depot manager at all material times relevant to these proceedings.
In a report to Mr Telford, dated 15 December 2000, Doctor Hamilton reported as follows:-
"This man has quite a pronounced depressive illness and he is significantly retarded with very low esteem poor sleep pattern etc.
There is little or no improvement to date after three weeks of anti-depressants.
He claims religious harassment in work as the predominant precipitating cause and complains that he has suffered this in the five years he has been in Ulsterbus. He has felt depressed for some considerable time but only recently been so bad and sought advice.
I feel he is likely to be off some time. Review 8/52".
The report was sent to Mr Telford, via the respondent's personnel office in Belfast who received it from Doctor Hamilton on or about 21 December 2000. The Tribunal is prepared to accept that, with the Christmas/New Year holiday period, Mr Telford did not receive the report until on or about 8 January 2001. In view of its contents and its specific reference to religious harassment Mr Telford spoke to Ms Heather Grant, who at that time was the Human Resources Adviser for Translink, the holding company for the respondent. It was decided to arrange a meeting with the claimant to discuss the contents of the doctor's report. Prior to this report, Mr Telford and Ms Grant had not been aware of any such complaints by the claimant.
The Tribunal is satisfied that, on receiving the report from Doctor Hamilton, they took the matter seriously and decided to arrange a meeting for as soon as possible. The meeting was arranged for Antrim, rather than the depot in Ballymena, and took place on 29 January 2001.
Clearly, in view of the contents of the doctor's report, it would have been better if the meeting had been arranged for an earlier date; but the Tribunal is satisfied that, whilst the delay was regrettable, it was a consequence of the holiday period and the varied and other commitments of Mr Telford and Ms Grant.
At the meeting, Ms Grant took notes and subsequently prepared a minute of the meeting. The notes taken were very limited and it is apparent from the minutes that further matters, than were set out in the notes, were also discussed. The Tribunal is satisfied, prior to the report received from the company doctor, the respondent had not been aware of any complaint by the claimant of religious harassment. Given that the meeting was to discuss this complaint of religious harassment, the Tribunal is satisfied that reference was made, at the outset of the meeting, by Ms Grant to the respondent's harassment policy and why he had not made use of it. It does not accept, as the claimant has contended, that there was no reference to same. The Tribunal is satisfied that the minute is an accurate reflection of what was said at the meeting and, in particular, on this issue, namely "Ms Grant explained to Mr Duffy that the company had a harassment policy and was he aware of its contents? Mr Duffy said that he was, but he felt that he could not make a complaint for fear of what might happen to him".
The Tribunal is also satisfied that the minute accurately records that "Ms Grant asked was there anything in particular that happened which had made him go off ill in November". And the claimant replied, "No, there had just been a build up but there was nothing specific in recent months".
As it was felt the claimant was close to breakdown, the meeting was cut short. At the meeting, as set out in the minute, the claimant gave limited details in relation to any specific complaints.
In the report, Doctor Hanley noted, inter alia, that the claimant had given detailed descriptions of various instances; though those were not set out in the said report. He referred to the claimant referring to a specific incident which he had brought to the attention of Mr Wylie, the date unknown, and about which he had been disappointed in Mr Wylie's response. Doctor Hanley also noted that the claimant had been reluctant to bring a formal complaint on the grounds it may have led to him being further targeted in some fashion.
"(i) The Union Jack waved at my face and shouted up the fucking Pope you fucker.
(ii) Watch yourself in bed tonight because you'll get petrol bombed.
(iii) Buy a house in there as you will be burned out.
(iv) Make sure you put your flag out again or you won't have a house left.
(v) I had two sets of keys stolen at work and they turned up about 3 months later at work in places I had already looked, done to make me look stupid.
(vi) I had stones and oil and carry outs delivered to my house in my name and also food delivered to me at work.
(vii) Had my car hit at work.
(viii) In pay room talking about political subjects.
(ix) I had someone say to me "I wish the fucking troubles would start up again for you would be the first Catholic bastard I would shoot".
Although Ms Grant was aware she was due to hold the above meetings on 8 February 2001 and, in particular, with the claimant, she stated that, before leaving for the said meetings, she had signed and put out for the post the respondent's said reply to the questionnaire. The claimant says he received the reply to the questionnaire on 10 February 2001.
In the reply, reference, inter alia, was made to the meeting on 29 January 2001 and also went on to state:-
"Although requested to do so the claimant refused to make any specific allegations or name any individuals he alleged were involved as participants or witnesses".
The claimant was particularly upset, when he received the reply, to see the reference to the foregoing, as it did not refer to what had taken place at the meeting on 8 February 2001 where, the Tribunal accepts, some names and further details were provided by him.
The Tribunal is satisfied that, at this meeting, Ms Grant would have had a copy of the reply to the questionnaire which, as set out above, she had signed and left out for the post earlier that day before attending these meetings at the Ballymena and Antrim Depots. Thus, at the time of signing the questionnaire and leaving it for the post, the above reply to the questionnaire was therefore accurate. Ms Grant stated that she had prepared the reply, setting out what had taken place up until the meeting due to take place on 8 February 2001, as she had not had great expectations, given the claimant's reluctance at the previous meeting to go into any details/names, that this further meeting would advance the situation greatly. Despite this, the Tribunal is surprised that Ms Grant, before signing the reply and/or putting it into the post, did not await the outcome of the meeting on 8 February 2001. She did not do so; nor, after the meeting, did she make any attempt to stop the reply going out in the post that day and to have thus given herself further time to update/amend the reply to reflect the further information given at the meeting on 8 February 2001 and, in particular, to amend/update that section of the reply referred to above. However, although the Tribunal believe it would have been preferable, if she had done so, it does not consider that her failure to do, in the circumstances, was done in order to upset the claimant.
During the course of the meeting with Mr Wylie, the manuscript note of the meeting records:-
"5 - See before.
There are problems in the garage - religious/harassment".
There is no reference to this in the typed up minute of the meeting. As stated previously, the notes were not verbatim notes. Ms Grant explained her recollection of how this manuscript note came to be written. She said that Mr Wylie acknowledged there had been some problem previously in the garage; but when he had been asked whether this was to do with religious harassment he had said that it had not. In these circumstances she stated there was nothing further set out in the manuscript note and no reference had been required to be made in the typed up note of the meeting.
The majority of the Tribunal were of the opinion that Mr Wylie in fact, as recorded in the manuscript note, admitted to problems of religious harassment in the garage, but Ms Grant had failed, despite its obvious relevance, to include any reference to this admission in the typed up minute. The minority member of the Tribunal was prepared to accept Ms Grant's explanation; albeit he was surprised that Mr Wylie's response, even if it was in the negative, was not set out in the typed up note of the meeting. However, in accepting Ms Grant's explanation, he did so having regard to the accuracy of her note taking in relation to other matters at this meeting; and also, as set out later in this decision, at other meetings.
Ms Grant and Mr Telford also interviewed Mr Corrigan and Mr Glendinning.
Mr Wylie and the Inspectors were each asked to keep these discussions confidential.
Following the meeting with the Depot Manager and the Inspectors, Mr Telford and Ms Grant met the claimant at the Antrim Depot.
At the time of this meeting the respondent had not yet received from the Tribunal the originating application, which was not sent to the respondent by the Tribunal until on or about 13 February 2001, having been signed by the claimant on 22 January 2001 and presented to the Tribunal on 24 January 2001.
In the originating application, the claimant made a number of specific complaints, which compared with the specific complaints set out in the questionnaire; though with some minor differences of wording.
"(i) A Union Jack waved at my face and shouted "Up the fucking Pope you fucker".
(ii) Watch yourself in bed tonight in case you get petrol bombed.
(iii) Don't buy a house in there as you will be burned out.
(iv) I had two sets of keys stolen and they turned up about three months later in places I had already looked.
(v) I had stones, and oil and carry outs delivered to my house in my name and also food delivered to me at work.
(vi) I had someone say to me "I wish the troubles would start up again for you would be the first Catholic bastard I would shoot".
(vii) I had my car hit at work.
In particular, the Tribunal noted there was no reference to the complaint set out in the questionnaire of "the talking of political subjects in the pay in room".
At the conclusion of the meeting Ms Grant and Mr Telford, whilst acknowledging that the claimant was very nervous and tearful, also considered that he was very believable in what he had told them.
Following this meeting there was a decision to set up a formal investigation under the company's harassment policy. Members of the investigation team were Ms Grant, a Protestant, and Mr Malachy McGreevy, a Roman Catholic, who at that time was a Senior Engineering Executive in Translink.
"I started bus to reverse to enable me to fuel bus. I looked in driver's mirror, put bus in gear, checked passenger mirror and released hand-brake. Meanwhile a car had reversed into a parking space and I then reversed into same. I stopped bus and applied hand-brake and reported accident to Inspector and Depot Manager".
There was a rough sketch of the accident and the report indicated that the car's door was damaged. It also stated that the bus had been travelling at 5mph before the accident and 5mph at the point of impact; whereas the car was travelling at 5mph before the accident and 0mph at the point of impact and was stationary.
The respondent is a self insurer and drivers of the respondent's vehicles are instructed by the respondent that at no time should they admit responsibility for an accident. That is a matter for the respondent, as insurer, to determine and, where appropriate, resolve with the third party, whose vehicle has been damaged.
Mr McGreevy felt the claimant was unwell at the time of the meeting and extremely nervous. During the course of the interview he had had to reassure him and give him a number of short breaks. Prior to this meeting, he had noted that the claimant was generally reluctant to name names against the specific allegations that he was making. He found that the claimant, who was clearly finding the whole process difficult, had to be persuaded to volunteer names to the investigation team during the course of the interview.
The Tribunal is satisfied that the typed up notes, although not verbatim notes, reflected the principal matters/issues discussed at the meeting.
(i) Wish the fucking troubles would start up again because you would be the first Fenian bastard I would shoot; which he had reported to Mr Wylie who had said, "Forget it".
(ii) Handouts going about in the staff room where I took lunch at my table to stop going to Catholic shops; which he had brought up in front of Mr Simpson who had laughed.
The Tribunal is satisfied, these two specific matters were raised in the course of the meeting albeit the phraseology may not have been exactly the same; but the Tribunal was also satisfied that the typed up note of the meeting showed that a large number of other matters, but not referred to by the claimant in his diary entry, were also discussed during the course of the meeting.
The Tribunal was satisfied that, in the course of this meeting, Mr McGreevy also raised the issue of what Mr Neilly had said, in the course of his interview about a private hire duty he and the claimant had carried out on the Remembrance Sunday in or about November 2000, shortly before the claimant went off sick. Both parties agreed the issue was raised; but the claimant contended that he had been so shocked and knocked back, after being told the result of the investigation, he had not made any response. In support of this he relied on his diary/journal entry, where he had made such a reference. The typed up note prepared by Ms Grant of the meeting stated that the claimant confirmed that he and Mr Neilly were on a private hire on that day (which was clearly correct); but he had also confirmed that they had stayed together all day, it was a friendly atmosphere and that nothing had happened and that he and Mr Neilly had sat on the bus and chatted most of the day. The Tribunal was satisfied Ms Grant's note was an accurate record of what the claimant said at that time. The Tribunal did not consider, as set out elsewhere in this decision, that it could place any reliance on entries in the claimant's diary/ journal.
Insofar as he gave the claimant any further reasons for the decision, Mr McGreevy informed the claimant, inter alia, that he had concluded the witnesses had come across as honest and there was no sign of a cover up.
This report set out the history of the matter and then set out the investigation team's conclusion in the following way:-
"…
When interviewed, Mr Duffy always appeared very nervous, he suffers from alopecia and is a believable witness.
The investigating team interviewed all employees Mr Duffy had alleged were harassing him, also the District Manager, Inspectors and other witnesses which were named by him or his alleged harassers. There was no evidence at all to support the allegations Mr Duffy had made, nor was there anything to suggest a cover up. All those interviewed appeared genuine and to be telling the truth.
Some of the witnesses were able to confirm being aware of the allegations which Mr Duffy had made in relation to deliveries being sent to his home which he had not ordered, but there was no indication that there was anyone involved from his depot and it appeared that most of their awareness came from Mr Duffy talking to his colleagues.
The driver whom Mr Duffy named as his main harasser had accompanied Mr Duffy doing a private hire the week before Mr Duffy had gone off on the sick. The private hire was on Remembrance Sunday and turned out to be a "UVF - type" organisation. Both Mr Duffy and the alleged harasser agree that they sat all day on the bus and chatted while they were waiting for the return journey and that there was no animosity at all between them.
It would be the investigating team's conclusion that there is no evidence to substantiate this claim, however, it is obvious that Mr Duffy is not well and may suffer from some sort of paranoia.
…" .
Mrs J Farrar also was no longer in employment with the respondent at the relevant time. It seems no written request was sent to her, asking her to attend for interview. Mr McGreevy said that it had been decided to proceed with Ms Conway's interview, who was available; and who did not corroborate the claimant's complaints. With hindsight, he acknowledged that it might have been better, at least, to try to secure the attendance of Mrs Farrar.
Mrs Farrar did not attend the Tribunal to give evidence. The claimant, at the hearing, sought to have admitted in evidence a statement signed by her, which the Tribunal agreed to do under its wide powers to admit such evidence; but it made clear that, in doing so, this was subject to any consideration by the Tribunal about the weight to give to such a statement and in circumstances where the respondent had had no opportunity to cross examine her.
The claimant said that Mrs Farrar was depressed and had been advised by her doctor not to attend the hearing of the Tribunal. No relevant medical evidence was produced to support this.
The statement of Mrs Farrar, produced by the claimant was dated 5 May 2001. Prior to the hearing, it had not been produced by the claimant to the respondent. It was clearly written out in the claimant's hand writing and, whilst it referred to a number of the claimant's claims, the subject matter of these proceedings, it did not, apart from her signature, set out whether she in fact agreed or not with the matters set out and/or her involvement in and/or her knowledge of the matters set out. In the circumstances, the Tribunal concluded that it could not place any reliance upon this statement.
In addition, further matters were referred to, which the Tribunal noted had not been raised by the claimant in his originating application, his questionnaire or indeed during the course of the investigations referred to previously.
By way of example:-
"…
(4) Around Christmas 1997/98 the applicant had been informed that if he got his work done early he could get away early. When he approached Inspector Simpson at about 7.30 pm, he told him to go back to the fuel hut and that he would check on him every half hour until 9.30 pm. The applicant contends that it was Inspector Simpson's practice during his employment to subject him to less favourable treatment than that given to Protestant workers. For example, whilst other shunters were allowed to drive the buses up to clean and refuel, he told the applicant that he did not want to see him driving a bus. On one occasion the applicant told Inspector Simpson that he had had enough of him picking on him and for six months he received no overtime, whilst other workers continued to get extra hours.
(6) In or around the latter part of 1999 the applicant was sitting with Stephen Neilly and another driver on a private hire bus, having each brought a bus of bandsmen to the Ormeau Road. A band member who had remained on the bus commented that he hoped that they would get home alright that night. Stephen Neilly responded that they would get home safely by putting the applicant in front where he could show his crucifix.
(7) In or around December 1999, at the time of the appointment of Martin McGuinness as Education Minister, the applicant was required to get off a bus he had been driving as it had been allocated to another driver, Jack McHendry. A comment was made to the applicant by Mr McHendry that, "Yous think you are taking over everything, what sort of education are youngsters going to get now". Mr McHendry then proceeded to thump the applicant, causing him to fall to the ground.
(9) In or around July 2000, the applicant invited his co-workers to the evening reception of his forthcoming marriage. No-one came to the function and no- one offered him a wedding gift or "whip round" as was the normal practice. The applicant was tied up in the yard and was given a "doing" with eggs contrary to custom in the yard. When the applicant returned to work after his honeymoon, Inspector Corrigan handed him a disciplinary charge allegedly for sleeping in one day prior to the wedding. The applicant contends that he phoned in sick that day and that the charge was unwarranted and another example of harassment by the respondent.
(10) In or around August 2000 the applicant was sitting in the pay in room when about ten drivers came in and started referring to the LVF and UVF and saying what a hero Johnny Adair was. The applicant's manager, Tony Wylie, was present and was smiling during the conversation.
(11) On Remembrance Day in November 2000, the applicant was asked to take a bus to a commemoration in Belfast. Stephen Neilly was also taking a bus up and when they arrived to pick up the passengers he asked the applicant whether he knew whom he was picking up. He told the applicant that it was young members of the Ballymena UDA. When they arrived in Belfast Mr Neilly proceeded to point out people who had been involved in picketing at Harryville Church and those that had been in jail for offences.
Reference was also made, for example, not only to the display of blue and white bunting and a calendar with Mr Paisley's face on it but also the display of notices about parades in the fuel hut, which latter claim had not been previously referred to.
"Whatever the merits or otherwise of Mr Duffy's claims of harassment there is no doubt he remains profoundly depressed despite high dose of anti-depressants. There is no change since I last saw him. I am not optimistic about early resolution.
Review 2-3 months".
The Tribunal is satisfied that this meeting was originally arranged for 23 April 2001 but the date was subsequently changed to 25 April 2001, as is clear from Ms Grant's diary for the said dates.
In contrast the claimant's diary/journal incorrectly stated that the date of the meeting was 23 April 2001.
Prior to the hearing, the respondent did not produce on discovery any record of what had taken place at this meeting. During the course of the hearing, a typed record of the meeting was produced. There seemed to be some confusion in which particular file Ms Grant had placed this document and from which it had now been produced. Ms Grant had apparently a number of different files relating to the claimant. The Tribunal is satisfied that, at all times, it was a relevant document, as was Ms Grant's diary entry and both should have been discovered prior to the hearing as part of the informal discovery process in which the parties had engaged. The Tribunal was also satisfied that there was no good reason given for not doing so until during the course of the hearing - if a proper search of all relevant files had been carried out in time.
Also, prior to the hearing, the respondent failed to discover to the claimant Dr Hamilton's report dated 29 March 2001. The Tribunal is satisfied the report was a relevant document and also should have been discovered in advance of the hearing.
Ms Grant agreed, in evidence, that she had been stunned by the claimant's allegation that, Mr Simpson had been given such a call by her. As a result, she did not deny that there might have been a period of stunned silence. However, she was adamant that she had not had a conversation with Mr Simpson or indeed met him prior to the Tribunal hearing. The Tribunal was prepared to accept her assurance that there had been no such conversation by her with Mr Simpson; and that she had asked Mr Wylie to make the arrangements for the interviews by the investigation team. The claimant maintained that, in response, Ms Grant had suggested that the call had not been made by her but another person in the office. This Ms Grant specifically denied. The Tribunal concluded that she was most unlikely to have made such a response; where her office had not made the detailed arrangements, but rather had left them to Mr Wylie. She said she had asked Mr Wylie to make the arrangement with Mr Simpson, rather than herself, as she felt he might have had some success, having worked with him prior to his retirement. The Tribunal was prepared to accept her reasons for doing so.
The Tribunal noted that, the claimant said this information, that Mr Simpson had been contacted from Belfast about the claimant's complaints and that he had then been in a position to forewarn the various witnesses, before the investigation team arrived, had come from Mr Dunlop on a visit to his house. He stated that Mr Dunlop had said to him that Mr Simpson had told him of the above conversation and he had also said, "There will be boys running around the yard sweating about this". The claimant said that this was one of the last occasions, other than for a family funeral, that Mr Dunlop had been in the claimant's house; and indeed, he had said, as he left, that he would not be back in case his car was seen and he got petrol bombed.
Mr Dunlop denied in evidence to the Tribunal that any such conversation had taken place, which denial the Tribunal accepted. In addition, the Tribunal also noted that, by the time the investigation team went to Ballymena, there had been the earlier meetings involving Mr Wylie and the Inspectors. The arrangements for the timetabling of the various interviews with the investigation team had also had to take place before their arrival. Whilst Mr Wylie and the Inspectors had been asked to keep their conversations with Mr Telford and Ms Grant confidential, the Tribunal believes that it would have been naïve to expect that there would not have been some discussion amongst the staff. The Tribunal was satisfied Mr Wylie had been asked to contact Mr Simpson by Ms Grant, to see if he was willing to attend such an interview, albeit he had then declined; and Mr Wylie, as instructed by Ms Grant, had also arranged for attendance of the various persons at the depot, whom the investigation team wanted to interview. Mr Neilly, in his interview, on 22 February 2001 with the investigation team, whose series of interviews were spread over a two day period, had indicated that he had been told by Mr Dunlop, and other unnamed drivers, following their interviews on 20 February 2001 that he was being accused of sectarian harassment. This confirmed, in the Tribunal's view, that there must have been some discussion amongst the staff, prior to the interviews and over the two day period in which the interviews took place; however much the investigation team may have wished the matters to remain confidential.
The claimant in his diary/journal records that he visited his General Practitioner on 24 April 2001. Again, this was the date of the meeting with Ms Grant/Mr Telford. The date in the journal/diary is clearly wrong and the visit, from the doctor's record, was in fact on 27 April 2001. On that visit she encouraged him, inter alia, to try to do something else or to do a course.
It subsequently also emerged, in evidence, that the claimant had also been less than truthful when applying for this job and earlier for his employment with the respondent. It emerged that he had a number of previous convictions, inter alia, for driving offences but, in particular, a conviction for theft of money from a previous employer in 1992 for which he had been placed on probation for a period of two years. He conceded in evidence that he had been required, as set out on the application form, to disclose the said convictions when he applied for his post at Homefirst (and indeed earlier with the respondent as a driver); and that he had failed to do so. He stated that everyone had done something they regretted and he wanted to have that part of his life left out of it. He agreed what he had stated to Homefirst, and earlier to the respondent, was in fact not true.
The Tribunal noted that, although the claimant visited his General Practitioner on a number of occasions in or about May/June 2001 he did not apparently inform her of the above development. The Tribunal is satisfied that if he had done so, she would have made a reference to this in her notes which, within the limitation of a doctor's notes, were full and referred to anything which appeared to Doctor Purce to be relevant. The Tribunal has no doubt that the claimant's success at interview and having been placed on the waiting list, as set out above, would have been, if she had known, something of relevance to her as she considered his condition. This is particularly so, since she had encouraged him to try to do something else or to do a course. Indeed, Doctor Purce's notes record no improvement during this period and a situation of continuing depression. Indeed, it was in this context that the claimant was referred to Doctor McFarland, Consultant Psychiatrist in June 2001 and was seen by Doctor McFarland in October 2001.
The claimant was subsequently offered the job with Homefirst on 18 October 2001, subject to relevant checks. As set out in the GP's record, on a visit on 25 October 2001, albeit he had not referred to it before, he informed his General Practitioner that he had obtained a job with Homefirst. In the Tribunal's opinion, as indicated by the said note, the claimant had decided to accept by that date the said offer of employment by Homefirst, which had always been his intention, as set out previously, when he originally attended the interview. During the checking process by Homefirst, the convictions referred to above were revealed. These were discussed with the claimant on 5 November 2001. In light of his explanation, on or about 6 November 2001 Homefirst decided to proceed with the job offer made to the claimant. The Tribunal is satisfied there were subsequent discussions, in the following months, about an actual start date and the claimant did not actually start work for Homefirst until 10 January 2002; but that was in the context of a decision by the claimant to accept the offer, as stated to his General Practitioner. Further, the Tribunal is satisfied that the said decision had been taken before he sent his letter of resignation of 9 November 2001 and received on 14 November 2001 by the respondent, and to which reference shall be made later in this decision.
"You have now made a number of additional allegations of harassment in your replies in your Tribunal case which you had not made during our four previous meetings or in your FET1 or questionnaire".
He was informed these allegations would have to be investigated and was told it would be of assistance to the investigation to interview him as part of this process. He was asked to contact Ms Grant if he wanted to be interviewed.
The claimant did not reply and Ms Grant sent a further letter dated 22 August 2001, when he was informed that although it would be more difficult to conduct the investigation, without his assistance, the respondent would nevertheless proceed with the investigation.
During the course of the meeting there were discussions, inter alia, about the possibility of various options in relation to job location and even working for another company within the Translink Group, such as Northern Ireland Railways. The claimant, indicated to Mr Telford/Ms Grant that he was not really keeping any better and was not ready to think about such matters at that time. The claimant made no reference to what had already taken place with regard to his involvement with Homefirst.
After reviewing the conflict of evidence in the matter and, in particular, the conflict of whether it was only to do with bus allocation or had some political element to it, they concluded the complaint had not been established to their satisfaction.
They referred, in particular, to the difficulty of reaching a conclusion when it was one person's word against another and there were no witnesses and in circumstances were the claimant had declined to be interviewed.
Their principal areas of doubt set out in the report were as follows:-
"…
(a) Mr McHendry may or may not have made comments about Mr McGuinness, the Education Minister; we have only one word against the other.
(b) It has been confirmed by Mr Glendinning, Mr Duffy was on the wrong bus, and the investigation team believed this was capable of initiating the incident.
(c) Mr Glendinning confirmed the bus change over took place back from the stand.
This concurs with Mr McHendry's version.
(d) It seems strange to the investigating team that Mr Duffy could have overlooked an incident such as this during the first round of investigations.
(e) Mr Glendinning, who saw Mr Duffy immediately after the event, did not notice any dishevelled or dirty clothes consistent with Mr Duffy falling to the ground on a December day as he alleges.
The investigation team therefore conclude that the findings of the original investigation still stand.
In relation to the other allegations there was no evidence to support Mr Duffy's claim".
There was no evidence before the Tribunal that a copy of this report was shown or given to the claimant. The Tribunal noted that there was no detailed analysis or reasoning in relation to the matters other than the McKendry incident.
In the letter he also complained that this was a further act of sectarian harassment which he believed could only have come from employees of Ulsterbus. He suggested it was similar to the previous actions in which they had been involved and he was being victimised for making a complaint. He reminded Ms Grant he was off work with depression because of the earlier sectarian and religious harassment from employees of the company, and the upset the above harassment had caused to him.
His diary/journal entry for 19 September 2001 referred to this call and delivery and that he had reported it to the Police. No evidence was produced of the Police making such a record of any such report.
Although this call was said to have taken place on 8 July 2001, the claimant made no reference to this when he met Mr Telford/Ms Grant on 8 August 2001. He also did not refer to this call in his letter of 25 September 2001. It is correct however to note that this call was referred to in connection with the claimant's second set of proceedings (Case Reference Number 28/02FET, 140/02) and in particular, the replies to particulars furnished on 24 January 2003 by the claimant in relation to the second set of proceedings.
"… should you be able to produce any evidence that would indicate the involvement of an Ulsterbus employee, I can assure you this matter will be fully investigated. However on the information you have provided there is no such indication.
I would suggest to you that this matter should be investigated by the Police and would urge you to contact your local Police Station as soon as possible.
Should any more evidence come to light, or if I can be of any further assistance, please do not hesitate to contact me".
Ms Grant replied by letter dated 22 October 2001 repeating what she had stated, in her previous letter, about an investigation if he could produce evidence to indicate involvement of an Ulsterbus employee and further reiterating that this letter similarly gave no such indication. She referred to contacting the Police and to consideration of getting his telephone number changed and the possibility of tracing calls. She also stated that a thorough investigation had taken place and no evidence was found to support the claim.
The claimant's journal/diary entry for 12 October 2001 had an entry relating to the above call. The Police record for that day also records the claimant reported the above call.
There were no further calls received by the claimant following the trace being put on his telephone.
At this meeting, the claimant gave no indication that he had obtained a job with Homefirst; nor did he suggest any intention of resigning his employment with the respondent because of what had happened.
"… The reason is due to religious and sectarian harassment I have received during my time served with your company Translink Ulsterbus. I believe the company has failed to adequately address these matters and that continued contact with yourselves is causing me continuing depression. I feel I am being victimised and being subject to continuing harassment because I made a complaint. Therefore I feel myself, my wife and my family can take no more, so I feel because of all this and my condition I have no other choice but to hand you my resignation and try to put all these events behind me so that I can try to get on with my life".
Ms Grant replied by letter dated 5 December 2001, that she would give the claimant the opportunity for some time to reconsider his position; but he declined to take up that opportunity.
As set out in the statutory questionnaire, dated 8 January 2002, he concluded that, "due to the further harassment and the company's attitude he felt he could not longer bear to be in contact with the respondent and that he had tendered his resignation on 9 November 2001".
The claimant claimed, in evidence, that during his first week at Homefirst, on or about 11 and 17 January 2002, two taxis had arrived for him at his new place of employment, which he had not ordered. His former colleagues at the respondent would have had an opportunity to see the claimant drive in his Homefirst vehicle around the town and would have thus been aware of where he was working, following his resignation from the respondent. His diary/journal recorded that these taxis had arrived on the days set out above. His manager at Homefirst was said, in evidence, by the claimant to have been aware of these incidents involving the taxis, but he did not give any evidence to the Tribunal.
The Tribunal was not satisfied, on the evidence before it, that there was sufficient evidence, upon which it could rely, to link these taxis to the respondent, and in particular any person employed by it.
The Tribunal was satisfied, on the documents produced to it, that the tax authorities had accepted the claimant was, for tax purposes, an employee of his wife in the above business, from when he started in or about May 2003.
However, prior to starting work in May 2003, the Tribunal came to the conclusion that the claimant, at a time when he was unable to return to work with Homefirst and was complaining of continuing serious depression, played a significant and demanding role in the setting up of the business with his wife in late 2002/early 2003. The Tribunal found this was not consistent with his evidence of such continuing depression and his inability to work. If he was as bad, as he suggested, the Tribunal does not accept he could have played such a role. It was also to be noted that he was obtaining statutory benefits at this time. The claimant did not inform his doctors of the work he was doing in connection with the dry cleaning business in the period late 2002/early 2003; despite its relevance, in the Tribunal's view, to his ongoing condition.
The claimant contended in evidence that at all times he was merely an employee of his wife, who was the owner of the business. Subsequently, for tax purposes, the Tribunal is satisfied that that technically was the position, as set out in the relevant tax authority documents. However, the Tribunal noted that the claimant had taken part, in the period late 2002/early 2003, in negotiations to obtain financial support from the local bank and he had done so on the basis that he held himself out as the owner of the business. The Tribunal noted that, in doing so, the claimant had clearly been prepared to tell untruths, in order to achieve the necessary finance to enable the business to be set up.
Further the claimant, rather than his wife, had been instrumental in this period in obtaining and negotiating for expensive equipment for use in the new premises. Again, such activity did not suggest to the Tribunal the claimant was so unwell at this time; and that he was playing a much greater role, in the circumstances, than merely a prospective employee.
In this context, a local newspaper cutting for January 2003 was produced in evidence to the Tribunal which referred to the opening of the new business and referring to the claimant as the proprietor of the business as well as his wife. It was an advertising feature and the claimant accepted that he had made the arrangements for obtaining this feature and had given the interview, the subject matter of the feature, in which he had been referred to as an owner. He had also posed for the photograph which was included in the feature. In the opinion of the Tribunal, it clearly gave the impression that he was a co-owner - which impression could only have been given by the claimant. Again this did not suggest a person who was so unwell and depressed. It also showed his close involvement with the new business and in which he had clearly decided at that time to play a significant role.
In conclusion, the Tribunal was satisfied that throughout this period, when he was off sick from work from in or about August 2002, he was in fact playing an active role in the setting up of the business and also in connection with its opening in or about January 2003.
The Tribunal was further satisfied that the claimant had decided from late 2002 that he wished to work with his wife in the new business, in which he was clearly financially and otherwise involved, rather than continuing to work for Homefirst.
"(3) [signatories] to the document jointly condemn intimidation or harassment by word or actions, commit themselves to take all reasonable steps to secure the safety of employees from intimidation or harassment in the workplace by persons of other religious beliefs or political opinion. Such intimidation or harassment should be regarded as an offence of gross misconduct which may warrant dismissal.
(4) The company declares that these premises shall be a neutral working environment. It therefore prohibits the display of flags, emblems, posters, graffiti or the circulation of any material or deliberate articulation of slogans or songs which are likely to give offence or cause apprehension to a particular group of employees".
The Tribunal accepts that the respondent has a number of harassment advisers and that a list of their names and contact numbers are put up on the company's various notice boards in the form of a poster setting out that the advisers role is to:-
"Meet with employee in private
Listen to the circumstances
Provide information on personal rights under harassment policies
Provide information on the options available to resolve the problems".
The Harassment advisers role is specifically referred to in the said harassment policy.
In view of the said reference in the policy document the Tribunal is prepared to accept that such a poster had been put up on a notice board in the depot for some time after the policy was distributed in 1997. However it was not convinced that it was there at the time when the claimant made his complaint to the company in or about November 2000/January 2001. The Tribunal found it most surprising that no mention of the advisers and their role was made to the claimant at any of the meetings with the claimant. Indeed, the poster was only discovered to the claimant's advisers at the outset of the proceedings. It clearly was a relevant document and the Tribunal found the failure to discover the document, until this late stage, demonstrated the lack of attention and importance attached to the poster and ensuring that the workforce knew about the advisers role. In the Tribunal's view, the failure to discover the poster until the outset of the proceedings was not explained by the suggestion of the respondent's representatives that it did not think it would be an issue, in view of the claimant's stated awareness of the policy at the initial meeting in January 2001. The poster, and its existence, was different to the policy document and its existence.
"committed to creating a harmonious working environment in which all employees have respect for the human integrity and dignity of our customers and of one another in order that apprehension is not felt because of religious or political beliefs …"
Further, it defines harassment "as any verbal or physical abuse, derogatory statements, displays of emblems or discriminatory remarks made by one or more persons in the work environment or in the course of work which are any of the following:-
- unwanted and non-reciprocated
- causes humiliation, offence, alarm or distress
- interferes with job performance or creates an unpleasant working environment
- trivialises people as individuals or as a group and emphasises their … religious belief, political opinions … over their role as workers.
Forms of harassment are set out and are stated to include by way of example:-
- verbal harassment through jokes, offensive language, gossip and slander, sectarian songs etc
- visual displays of posters, graffiti, obscene gestures, flags, bunting and emblems
- isolation and non-cooperation at work, exclusion from social activities.
Doctor Purce, his General Practitioner, made no record of the claimant's complaint of alopecia; she accepted he may have mentioned to her at the time but she had not considered it a major element and would have merely assured him that it would grow back. She also made no entry relating to weight loss or indeed of feeling it necessary to carry out any weight check, as part of her examination; though she was apparently aware his face was thinner following his complaint of depression from November 2000. Mr Corrigan, in or about November 2000, noted a bald patch on his head; and it was referred to by Dr McFarland to whom the claimant was referred, as seen later, in her reports. The Tribunal was satisfied there was for a period, until in or about 2002, some hair loss and that the claimant also suffered some weight loss, linked to his depression. In the file note, dated 29 March 2001, following the investigations, there was reference to alopecia.
The GP notes recorded from in or about November 2000 entries of attendance at his General Practitioner during the period, and in particular, in early 2001, during which time his General Practitioner had prescribed anti-depressant medication, but to which the claimant had not responded. Doctor Purce referred the claimant to Doctor E McFarland, Consultant Psychiatrist, in or about June 2001 as the claimant was, in her opinion very depressed, withdrawn and had developed social phobia. The claimant saw Doctor McFarland on 5 October 2001.
Doctor McFarland, in light of what she was told by the claimant about what had happened to him in his work situation and the symptoms found by her initially concluded after this first attendance on 5 October 2001 that the claimant "was suffering from an adjustment reaction with pronounced depressive and anxiety features precipitated by harassment at work which she presumed was on the basis of religion.
She increased his anti-depressant medication and subsequently the claimant was seen by Doctor McFarland and/or members of her staff on a regular basis with ongoing symptoms and with increased levels of medication. She confirmed that she had had to advise him not to drive, when he was with Homefirst in or about February 2002, due to the level of medication he was taking at that time. She set out in her report dated 23 July 2003, her summary and psychiatric opinion:-
"Mr Duffy initially presented in 2001 with loss of confidence, disturbed sleep pattern and thoughts of killing himself, allegedly following five years of severe harassment while employed at Ulsterbus. There is no family history or personal history of psychiatric illness. Physically he had developed patches of alopecia in his scalp and his mental state was characterised by avoidance of eye contact, irritability, depressed mood, loss of motivation, lack of interest, loss of libido, loss of confidence, social withdrawal, initial insomnia, early morning wakening, loss of appetite with significant weight loss, poor concentration, forgetfulness, intolerance of noise, and a range of anxiety symptoms including palpitations, sweating, fearfulness. The diagnosis is an adjustment reaction with pronounced depressive and anxiety features as a consequence of the alleged harassment at work and his perception that he could not talk to his superiors and was branded a liar.
…
His mental state remains fragile and he is easily distressed by events relating to the court case or by taunts from ex-colleagues at Ulsterbus. One can only hope that once the court case is over there may be some reduction in his symptoms. Given the chronicity of his illness it is unlikely his symptoms will fully resolve. I would anticipate there will be many years before his self confidence returns".
This report was admitted in evidence without formal proof.
Doctor Mangan, Consultant Psychiatrist, who had initially seen the claimant on 8 June 2001, for the purposes of a medical/legal report on instruction from the claimant's advisers, gave evidence to the Tribunal. In his initial report he set out in some detail the claimant's history of harassment which the claimant said had taken place at the time of his work with the respondent. Doctor Mangan concluded that the claimant was suffering from a major depressive episode. In his opinion, "his depressive illness was characterised by significant sleep disturbance, including initial insomnia and a broken sleep pattern, depressed mood including thoughts of life not worth living, loss of confidence, reduced interest in his normal activities, irritability generalised worry and anxiety symptoms and impaired concentration".
In a further report dated 28 February 2003, he remained satisfied with his diagnosis of major depressive episode; he believed the claimant continued to have significant problems with depression; albeit he noted some improvement at that time. He concluded that -
"Bearing in mind the protracted course of his depressive illness he is likely to require maintenance to anti-depressant medication for some considerable time. In the next few years, he is vulnerable to developing further problems with depression in times of stress".
Doctor B Fleming, Consultant Psychiatrist, who initially saw the claimant on 27 October 2003 for the purpose of a medical/legal report, on instructions of the respondent's advisers, did not consider the claimant was at that time clinically depressed. He accepted the claimant had a very high level of persisting complaint dating back to 1995 but found it difficult to see how the claimant had functioned in his job with the high level of psychiatric complaint he reported. Doctor Fleming would have expected that, given this high level of complaint, the claimant would have consulted with his General Practitioner in relation to these matters during this period. As is common case in this matter the claimant did not do so until in or about November 2000, when he first complained of depression. Doctor Fleming felt there was a high level of subjective complaint, which he did not consider was borne out by the GP records, which he had seen, but also his work history with the respondent and subsequently with Homefirst.
In his subsequent report dated 14 January 2004 he referred, inter alia, to Doctor Mangan's report and his conclusion that the claimant was suffering from a major depressive illness and also Doctor McFarland's conclusion of an adjustment reaction. He pointed out that these were two very distinct entities.
"Depressive episodes are either mild, moderate or severe and are conditions of pervasive lowered mood, which is usually unresponsive to circumstances. Adjustment reactions on the other hand are states of subjective emotional disturbance, which are a direct consequence of stressful events, and are generally accepted as being at the milder end of the spectrum of severity of psychiatric disorders. They are by definition time limited".
He concluded as follows:-
"The over-riding impression from these records is this gentleman did have an adjustment reaction to the stress of what he perceived to be harassment at his work. The difficulty is in dating the onset of this. Mr Duffy told me that his symptoms began shortly after he started working with Ulsterbus. It is difficult to explain why he wouldn't have consulted with his General Practitioner before November 2000, given that he reported to me only a modest improvement over the course of the intervening years. I think Doctor MacFarland's diagnosis when she saw him in October 2001 is reasonable. This gentleman appears to function fairly well, at least from the period when he found employment with the Homefirst Trust in early 2002. Records would suggest that his low mood ran a fluctuating course at times, depending on whatever stress he was experiencing. This is typical of adjustment reactions. I would certainly be very reluctant to diagnosis him with a major depressive illness, given the information contained within the records supplied to me".
A major issue for the Tribunal therefore to resolve was the issue whether the claimant was suffering from a major depressive illness, as concluded by Doctor Mangan or from an adjustment reaction with pronounced depressive and anxiety features, as concluded by Doctor McFarland and also by Doctor Fleming, albeit with some reservations.
It was clear to the Tribunal that, whilst there was a difference between these two entities from a medical point of view, the distinction did not radically alter the medication and treatment given to the claimant. Of course, it has to be remembered that all the medical experts who provided reports/gave evidence to the Tribunal were relying, on the history which was given by the claimant of what he alleged had occurred during the period of his employment with the respondent and what they were told and/or observed of the symptoms of the claimant; though it is correct to note that Doctor Fleming raised issues of exaggeration on the part of the claimant in relation to his symptoms and in particular of body language at the time of his examination.
There was considerable evidence given to the Tribunal of the various criteria used by psychiatrists on how it can be determined that a depressive illness can be classified as a major depressive episode. The Tribunal came to the conclusion that it preferred the diagnosis of Doctor McFarland of an adjustment reaction with a pronounced depressive and anxiety features. The Tribunal noted that Doctor Fleming did not disagree, in essence, with Doctor McFarland, that the claimant had an adjustment reaction with depressive features. In coming to this conclusion, the Tribunal was very conscious that Doctor McFarland's diagnosis was based on having had the opportunity to observe the claimant on many occasions and not merely for the purposes of medical/legal reports; and, in such circumstances, it felt she had a better opportunity to observe and come to a conclusion which included whether the necessary number of criteria which required to be satisfied for the purposes of making a diagnosis of a future depressive episode had been satisfied.
In the Tribunal's view much depended on the impression of the history given by the claimant but also the conclusions reached, on the basis of the records compiled by the General Practitioner and Dr McFarland. In such circumstances the Tribunal felt Dr McFarland was in a better position to come to an appropriate diagnosis. The Tribunal accepted therefore Dr McFarland's diagnosis of such an adjustment reaction, which was clearly linked to the harassment complained of by him. The Tribunal also accepted that, despite the absence of complaint and symptoms prior to November 2000, that such a link was established.
Dr Fleming did not dispute the symptoms, as found by Dr McFarland, albeit he had concerns about exaggeration in relation to the period after the claimant had left the respondent. The Tribunal shared those concerns. In this context the Tribunal noted that, in or about May 2001, when the claimant attended his interview with Homefirst, he was clearly much better than he was telling his doctors. Indeed he did not inform them of the interview, which the Tribunal considers would have been very relevant for them to have known. In addition his work in the setting up of the new dry cleaning business, again in the Tribunal's opinion, suggested a person who was not suffering as much as he stated and was clearly improving; albeit he was still on anti-depressant medication, taking two types of anti-depressant drugs.
The Tribunal felt that given the claimant was now no longer working for the respondent since in or about 2001 and was now, by his own choice, working in the dry cleaning business with his wife there would be ongoing improvement in his condition - as further distance was put between him and his previous work with the respondent. It was apparent that even when working for Homefirst there was an improvement in his condition. However, the Tribunal accepted that he would have to remain on anti-depressant medication for some time.
In essence, the claimant was at all times claiming that there was a series of acts of sectarian harassment taking place in the depot against him at various times over the period of his employment, which at all times was denied by the respondent.
Mr Darren Crawford, a Protestant, also worked in the garage as a painter and at all material times was a member of the Orange Order; but at no time was a member of the Masonic Order. He was also a member of a 'marching band', who would have paraded, inter alia, for Orange Order events including, in particular, the summer marching season in July. He owned his own Orange Order Collar/sash.
Mr Stephen Neilly, was initially employed, like the claimant, as a shunter/cleaner from in or about 1994; and, in or about 1999, became a driver. At all material times Mr Neilly was a member of the Orange Order; and a member of the Masonic Order.
The Tribunal noted that the claimant had made a generalised allegation relating to flags and emblems in the workplace in his "pleadings"; though he had never made any specific complaint at any time about these specific incidents referred to above and did not appear to be personally aware of them, prior to the hearing of this matter. The Tribunal considered the reference in the 'pleadings' to flags and emblems in the workplace was a reference to the matters alleged in relation to what happened in the fuel hut and the Darren Crawford incident.
In relation to the first incident, the Tribunal was satisfied that a flag was displayed on the garage overnight one 12th July. The date was uncertain but it was probably in or about 1996, at a time of heightened tension, due to Drumcree, in the Ballymena area. There was no evidence who did it nor a proper investigation to find out who carried it out; though, given its location, the Tribunal believed it was probably an employee working in the depot and probably an employee working in the garage. The majority of the Tribunal believed that this incident was probably what Mr Wylie was referring to, when he met Mr Telford/Ms Grant on 8 February 2001. It was within 24 hours or thereabouts, removed by Mr Telford and Mr Fiddament, the relevant senior line managers with responsibility for the depot. The Tribunal is not satisfied, on the evidence, that any formal steps were taken to give any formal warnings to staff and/or reminders about the respondent's flag and emblems policy about such displays. If anything was done it was done very informally by the manager of the garage and then only to garage staff. Mr McGreevy, as the engineering executive with particular responsibility for garage staff, was aware of this incident. He gave an instruction to Mr Fiddament to remind garage staff of the flags and emblems policy; though he does not appear to have followed his instruction up or the manner in which his instruction had been carried out. The following year, at about the same time, a further flag was flown on a pole in the depot at the back of the bus wash, which was in the depot but at or about the border with the adjoining railway property. This was again removed by Mr Telford, who was accompanied by Mr Wylie, within a similar time scale to the previous incident. Again, no investigation was carried out or any further action taken. The depot was very open and covered an area to which the public could easily gain access. The Tribunal accepted it was possible, given its location, that this display was not carried out by an employee of the depot but by a third party. The Tribunal noted that there was no evidence of any further displays of such flags at the depot. Both displays would have been visible to the staff working in the depot, prior to the removal. Such displays were contrary to the respondent's harassment policy and joint declaration of protection.
At all times, the Tribunal noted that this absence of corroboration was a constant feature, relating to many of the claimant's claims. The Tribunal was very conscious that the absence of such supporting evidence is not determinative of the matter and, in particular, a claim of unlawful discrimination. The Tribunal therefore had, in determining whether any such matter, relevant to these proceedings, occurred or not had to consider very carefully the evidence of those who were not supporting the claimant's version of events, their background and how they came to be involved in this matter, including what they had said during the course of the investigation. In coming to its conclusions, the Tribunal did not disregard the fact that in relation to obtaining employment and also finance from the bank, in relation to the dry cleaning business, he had been found to have told some untruths. However, equally the Tribunal was very aware that he claimant had been found by Mr Telford/Ms Grant initially and subsequently by the investigation team to be believable in relation to these claims - albeit, in their view, evidence had not been produced to substantiate the claims. The Tribunal was also very aware that at all times during the claimant's employment there was a significant minority of Roman Catholics employed in the depot.
Turning to the specific issue of the fuel hut, the Tribunal was particularly aware that none of the claimant's co-religionists were prepared to give any support to the claimant on this issue, including Ms Conway, a cleaner, or Inspector Corrigan. Ms Conway was a person whom the claimant had informed the investigation team would support his claim and was clearly a person who liked the claimant. She was not prepared to support the claimant's allegations. These were matters, which if they occurred, would clearly stick in a person's mind and not be forgotten.
In the circumstances, the Tribunal was not satisfied that there were such displays at any time in the fuel hut.
Clearly the central issue in relation to the claimant's claim relating to the pay in room was whether comments were made about the various loyalist paramilitary groupings, such as the LVF/UVF. If such comments were made, then clearly, in the Tribunal's view, these would go beyond what might be thought of as normal acceptable banter and would undoubtedly have been unacceptable to the claimant. On the other hand, the Tribunal could accept that, in a place such as the pay in room, there could often be what might be described as genuine normal banter as staff went on and off duty. It would be unrealistic to think otherwise. Such banter would not normally be something which a person would take offence about. Clearly, what the claimant was alleging went beyond what might be thought of as normal acceptable banter.
The Tribunal is satisfied that there was talk in the pay in room relating to football and, on occasion, this could have related to scores/results relating to teams such as Rangers/Celtic/Linfield and also leading premier league sides in England, who all had supporters amongst the workforce. However, no-one was prepared to give any support to the claimant's claims that what took place in the pay in room was of the particular sectarian nature referred to above. The claimant's co-religionists gave him no support; nor the person, Mark McCormick, a Catholic driver, who supported Celtic and who had been identified by the claimant, in the course of the investigation, as the person who would corroborate what he was saying. The Tribunal found this failure particularly relevant and significant in the circumstances.
The Tribunal noted that, there was never any attempt to ascertain why the claimant's practice was not to go into the pay in room. He clearly did his job well and there was no suggestion his practice was wrong per se or causing difficulties in
his work. Thus, the Tribunal is not convinced, without more, that such further enquiries were required to be made.
Inspector Glendinning, co-religionist, with whom the claimant appeared to have a reasonable relationship had, on occasion, enquired whether the claimant was okay; and he had given no hint of any difficulty. He made no complaint to anyone else about this, including any of his co-religionists.
The Tribunal also noted that, whilst the claimant had made the allegation in relation to the sectarian/political type comments in the pay in room from the outset, it was not until June 2001, in the said replies to particulars, when the investigation had taken place and the findings made known, that the claimant made the specific complaint that Mr Wylie, the Depot Manager, had been present on one occasion when such remarks had been made and had been smiling during the conversation - with a clear indication he heard the said remarks. This event was supposed to have taken place in August 2000; but was not mentioned until some 10 months later. In particular it was not mentioned in November 2000/early 2001 when it might have been expected to be freshest in the claimant's mind. In addition, the claimant, although invited to do so by Ms Grant at the initial meeting on 29 January 2001 with the claimant, did not refer to this incident and indeed stated (see previously) "there was nothing specific in recent months".
In the circumstances, the Tribunal was not prepared to accept such comments were made in the pay in room as claimed by the claimant.
At no time until the claimant gave evidence did the claimant expressly state that the crash was a "deliberate" action on Mr Neilly's part. The implication, arising from the failure to use such terminology about this matter was, in the view of the minority member of the Tribunal, significant. To damage a bus he was driving, and certainly if done deliberately, had also the potential to lead to Mr Neilly facing a disciplinary charge; or, in the event of further accidents, at a later time. The minority member of the Tribunal did not consider Mr Neilly would have been prepared to so expose himself to any such risk. In the absence of an express statement from the outset that the actions of Mr Neilly were deliberate, and given that accidents can happen and did happen in the depot, he concluded this was merely an unfortunate accident.
The Tribunal, in light of the most unsatisfactory nature of Mr Crawford's evidence, came to the conclusion that it could not accept Mr Crawford's denial and that Mr Crawford did as the claimant alleged. There was no suggestion of any other subsequent similar action by Mr Crawford.
There was a complete conflict of evidence, which it was difficult for the Tribunal to resolve. The claimant clearly got some details wrong, as seen above; but yet it seemed unlikely the claimant could have come to know the membership of Mr Colvin and Mr Neilly of the said Order, unless they told him.
On balance, the Tribunal concluded both Mr Colvin and Mr Neilly must have made, in the depot, remarks about their membership of the Order to the claimant, and that their membership allowed them to get away with things.
Ms Grant, during the course of the investigation, gave Mr Neilly the opportunity to admit that such remarks had been made by him at this time of tension in the area by way of friendly advice to a Roman Catholic moving into a housing area which was predominantly Protestant and where it would have been customary to display flags on the houses in the area at the time of the July marching season. He declined the opportunity and continued his denial.
However, the Tribunal found Mr Neilly's denial unconvincing and given the tensions in the area at the time and difficulties for a Roman Catholic moving into such an area at such times, which Mr Neilly in the Tribunal's view must have known about, it concluded that such remarks had been made by Mr Neilly.
There was again a conflict of evidence. Mr Colvin denied that he had ever made such a remark and there was no one who gave evidence in support of the claimant's claim. Again no complaint was made by the claimant to anyone that such a remark had been made. Clearly, if it was said, it was a particularly serious and offensive remark.
The investigation team were fully aware that it was Mr Colvin who was alleged to have made this remark. Indeed, it was Mr Dunlop, a relative of the claimant by marriage, who was said by the claimant to have been a witness. The claimant also said that he reported it to Mr Wylie who had, in essence, told him not to worry about it. Mr Wylie had no recollection of receiving such a complaint, which he said he would have noted if it had been made. Mr Dunlop equally gave no support of having heard the remark made by Mr Colvin. The Tribunal was particularly concerned that, in the course of the investigation, the specific terms of what Mr Colvin's was alleged to have said were not directly put to Mr Dunlop or more particularly Mr Colvin; albeit this was a very specific statement and the identity of the person saying it was known.
The Tribunal, not without some hesitation, has come to the conclusion that this remark was made by Mr Colvin. It is such a specific complaint, it concluded, it was not the sort of remark to have been made up. From the outset, the claimant had said such a statement had been made to him.
Whilst the Tribunal has no doubt that if the specific wording had been put to Mr Dunlop or indeed Mr Colvin the same answer would still have been given - the Tribunal would, at least, have had these responses in their full context in trying to assess the said conflict of evidence between the parties. A fundamental part of any investigation, in the Tribunal's view, was always to put to the person, alleged to have said the offending remark or heard it, the precise remark.
The Tribunal was not impressed by McGreevy's assertion that, to have set out the full terms of the comment to Mr Colvin and Mr Dunlop, would have increased problems for the claimant on any return to work. The staff at the depot were fully aware that an investigation was taking place and the nature of same. It would have been preferable, in the Tribunal's opinion, albeit the result of the interview might have been the same, to have ensured that any gossip, which Mr McGreevy feared, would at least be accurate. The consequences for the claimant of any return to work were matters the respondent was always going to have to deal with.
It was clear from the evidence of his co-Inspectors and also Mr Wylie, and from what the Tribunal could observe when Mr Simpson gave his evidence, that Mr Simpson clearly was a person with a difficult management style and it was the sort of style which came into conflict with many staff, including his fellow inspectors. In such circumstances, the Tribunal had no doubt that it was never Mr Simpson's practice to let staff away early on Christmas Eve and in the circumstances he would always have rejected the request of anyone to finish early, not just the claimant. The Tribunal could understand the claimant would have been anxious, as a family man to get home early on Christmas Eve. Indeed, the Tribunal believed that other Inspectors when on duty, on such a night, might have taken a different course of action if they had been asked by any member of staff, including the claimant. The Tribunal is prepared to accept that the claimant did ask Mr Simpson and was refused; but this was in accordance with his normal practice and style to everyone. The Tribunal was not satisfied that there was any evidence that Mr Simpson had picked on the claimant - though it did not ignore the possibility that the claimant, like others in the depot, had had their difficulties with Mr Simpson. There was no evidence to suggest that any difficulties the claimant had were any worse or different than those of other staff, including his fellow Inspectors.
The Tribunal also noted that, in the replies to particulars in June 2001 the claimant had referred to the above matter and the swearing by Mr Wylie. However, when giving his evidence, the claimant claimed that when he had raised the issue with Mr Wylie he had also asked him, "Is it because I am a Catholic?" This had never been suggested previously. Mr Wylie denied that this had ever been asked. Given its obvious importance to be included, where the claimant was making a claim of unlawful discrimination against Mr Wylie, the Tribunal came to the conclusion that this had never been said and it had been included by the claimant, in evidence, in order to give a specific sectarian slant on the events surrounding his confrontation with Mr Wylie on that day.
Neither Mr Wylie nor Mr Simpson commenced any investigation nor took any action to give any warning about the consequences of such action, albeit each recognised the potential involvement of a member of staff at the depot. There was no suggestion that any other employer's keys/equipment had suffered the same fate as the claimant's keys.
In reporting the keys missing, the claimant was clearly indicating his concern about the matter and his objection to what had happened. At almost the same time, a further set of missing keys belonging to the claimant turned up in an oil can used daily by staff, including the claimant. The Tribunal came to the conclusion this also was a deliberate action of an employee at the depot against the claimant.
The crucial issue for the Tribunal to determine was, whether in addition to the serious altercation between the two men, Mr McHendry made the offending remarks, set out above. The Tribunal was satisfied, having observed Mr McHendry give evidence, he was quite capable of saying it; in particular where he had clearly lost his temper. He was an admitted supporter of the DUP and clearly not in favour of the appointment of Mr Maginness, as Education Minister. Again there was a conflict of evidence between the two men, with Mr McHendry adamant that he did not make any such remark. The claimant, in reporting the incident to Inspector Glendinning, his co-religionist, did not inform him what Mr McHendry said at the time and solely informed him of the fracas. The majority of the Tribunal, finding Mr McHendry less than impressive, was satisfied he was quite capable of making the remark, in light of his views and having lost his temper; and concluded that, despite his denial, Mr McHendry made the remark, in the course of the altercation in which he was as much involved, if not more so, as the claimant.
Notwithstanding he found Mr McHendry a less than impressive witness the minority member of the Tribunal was not prepared to accept the remark was made. In particular, he noted the failure of the claimant to inform Inspector Glendinning, his co-religionist, who would have been fully aware of the significance of such a remark and how it would have put a different complexion on what was otherwise an unpleasant workplace row over a bus allocation and placed it on a different level. As it was, Inspector Glendinning persuaded both men not to pursue the matter further as both could have suffered disciplinary action. The claimant had no difficulty in remembering the incident, and the remarks made; but yet did not raise it, the minority member of the Tribunal noted, until the replies to particulars in June 2001. He was confirmed in his view no such remark was made when the claimant, in evidence, but not before, said Mr McHendry had also alleged the claimant was a Fenian. The failure to have included this, even at the late stage of the replies, for the minority member threw even further doubt on the claimant's credibility in relation to this issue.
Certainly, there had been examples in the past where there had been a collection for weddings and which had involved Protestant staff in the depot; but any such collection was not formally organised by the respondent and was voluntary.
The claimant suffered a 'doing' in relation to his wedding. The Tribunal is satisfied that Inspector Corrigan, not only turned a blind eye to what was taking place, he had effectively agreed that it could take place when asked by one of the instigators of the action. Ms McLaughlin and Ms Bradley, the instigators of the action, were co-religionists of the claimant. The Tribunal was satisfied that such a 'doing' was a regular occurrence in the depot in previous years. Photographs of previous 'doings' in the depot were produced during the course of the proceedings, which again should have been discovered earlier. As indicated above, there had been no weddings of drivers in the depot during the period of the claimant's employment and therefore there had been no occasion for such a 'doing'. There were members of the garage married in this period; but none of them suffered a 'doing'. The claimant was the only member of staff to suffer a 'doing' in the period. The claimant clearly went along with what happened, although the Tribunal is equally satisfied that he was not happy about what took place. The Tribunal is satisfied that as the 'doing' took place in the main area of the depot that it would have been visible to many of the employees working there, many of whom watched and cheered and joined in at what was taking place. Ms McLaughlin assumed that this was a common practice in the depot, as she had seen it taking place in other depots where she had previously worked for the respondent. Since these events such 'doings' have been stopped by the respondent. The Tribunal was satisfied Inspector Corrigan saw more from his office of the 'doing' than he was prepared to admit.
It was in the replies to the particulars that the claimant for the first time gave details of what he alleged had taken place on that day.
The Tribunal is satisfied that in agreeing to do this parade, the claimant did not realise it involved taking members of the Ballymena UDA, who are members of Ballymena Flute Band, and who had arranged the hire of the bus. However, in the replies to particulars, this failure to inform him did not form any part of the complaint made against the respondent; albeit was referred to in the course of the hearing. The Tribunal readily accepts that the claimant, whilst willing to do private hires, would clearly have preferred not have taken this particular private hire, if he had realised from the limited paper work he had seen, prior to doing the run, who were the persons who had hired the bus. The Tribunal was not clear from Inspector Glendinning's evidence what information about the parade the claimant had been given when he was asked to do the private hire to this Remembrance Service. The claimant had done private hires in the past, involving flute bands. However, it does not believe that Inspector Glendinning, a co-religionist, and who could readily understand the claimant's concern about having such persons on his bus would have deliberately, in order to get him to carry out the duty told him that it was an old people's run. The relevant booking details certainly did not disclose that members of the Ballymena UDA would be on the bus. As indicated above, Mr Neilly when he first raised the matter did not suggest that any difficulty had arisen between himself and the claimant during the private hire duty. At that stage he was not responding to any allegation by the claimant about the matter. However, when interviewed by the investigation team in September 2001 Mr Neilly said, inter alia, as set out in the typed up minute:-
'He may have told Mr Duffy they were taking the UDA away. There would be no harm in telling him who was going to be on the bus and that it was better that Mr Duffy knew who he was carrying. He may have been pointing out who was there for his own benefit. Mr Neilly said, for instance, he did remember one of the guys being in the bus who had been up for a stabbing but had not been convicted - there would have been some bad fellas on the bus'.
In light of what he said at the time of the investigation, the Tribunal was therefore satisfied Mr Neilly did tell the claimant who they were carrying on the bus, namely members of the UDA and also pointed out certain members, who had been involved in serious crime. In the course of cross examination, but not previously, he suggested he had done so to prevent the claimant making remarks about the members' appearance.
The claimant wrote promptly to Ms Grant about these matters on 25 September 2001 and 15 October 2001. In the letter of 25 September 2001, he did not refer to the call on 8 July 2001. Indeed he had not referred to it when he met Mr Telford/Ms Grant at their meeting in August 2001.
As has already been stated the Tribunal did not find the claimant's journal/entry of assistance in determining certain issues in this matter. Indeed it found the diary/journal most unsatisfactory and unreliable as an accurate contemporaneous record of main events following his complaint to the company doctor. Dates of some entries were clearly inaccurate and did not follow in appropriate sequence. The year was repeatedly wrong. It appears to have been written using the same pen/ink, which would be unusual for such a document. Some entries were clearly not written contemporaneously, despite the claimant's contentions to the contrary. The Tribunal could not accept, given the number and frequency of the errors that these could be explained by the claimant's depression. In such circumstances the Tribunal was not prepared to rely on the document in determining whether or not these or other matters took place.
Despite the failure to raise the phone call on 8 July 2001, until the replies to particulars, and the absence of any reference in the letter of 25 September 2001 or the meeting in August 2001, the Tribunal, on balance, was prepared to accept the phone call on 8 July 2001 took place. In doing so, it took into account the timing/sequence of this call with the other said calls; and the absence of any other evidence to suggest the call did not take place.
Given the promptness of his complaint, the Tribunal was prepared to accept the call on 19 September 2001 and the unordered delivery took place on that date. Similarly, the Tribunal was prepared to accept that the call on 12 October 2001 was made to him. In addition, the Tribunal noted that in relation to that call there was the record of the policy entry.
The claimant claimed that on or about 28 April 2002 in a local Costcutter store, which was near the home of Mr Neilly, Mr Neilly had sworn at him when approaching him in an aggressive manner. In a further incident, he alleged that Mr Neilly had followed him home, though Mr Neilly's mother, he accepted, lived nearby. He further alleged in July/August 2002, the claimant was driving a Homefirst vehicle when he met a vehicle of the respondent's, with Mr Neilly on board, and Mr Neilly had made a shooting motion towards him.
The claimant applied, in the course of the hearing, to give evidence in relation to an incident, again said to involve Mr Neilly, which he alleged had occurred on 29 July 2004, during the break over the summer period of these proceedings.
Again, in light of the Anya decision, the Tribunal agreed to admit this evidence. The claimant alleged he had been parked waiting for his daughter outside a local shop; when Mr Neilly, who had by then left the respondent, drove up alongside the claimant's vehicle blocking him in and reving his engine. As the claimant followed Mr Neilly's vehicle on his way home, he alleged he saw Mr Neilly giving a finger motion of a shot to the head on a number of occasions. The claimant reported the matter to the Police who took no further action following Mr Neilly giving a statement to the Police.
In the face of Mr Neilly's firm denial and the absence of any other corroborative evidence relating to these matters the Tribunal was not prepared to conclude that these matters occurred. These matters therefore were not found by the Tribunal to be of assistance and relevance in relation to the determination of those matters the subject matter of these proceedings.
"A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if -
(a) On either of those grounds he treats or would treat other persons; or
….
Under Article 3(3) of the 1998 Order a comparison of the case in persons of different religion, religious belief or political opinion under paragraph 2 must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
…..
(b) Where that person is employed by him -
…
(iii) By dismissing him or by subjecting him to any other detriment.
In the case of Shamoon -v- Chief Constable of the RUC [2003] IRLR 285, the House of Lords held the detriment was an act which a reasonable employee might feel places him at a disadvantage with regard to the circumstances in which they work.
Under the 1998 Order, there was no definition of dismissal.
The Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, (Regulation 9) amended the 1998 Order to include Article 19(3)(b) which provides a specific definition of dismissal, which includes "constructive dismissal".
Under the 2003 Regulations there are transitional provisions; but these do not provide transitional provisions for this Article. Thus, Article 19(3)(b) does not apply to these proceedings, which commenced prior to 10 December 2003, when the Regulations came into operation.
Similar difficulties arose in relation to the Race and Relations Act 1976, but in the case of Derby Specialist Fabrications -v- Burton [2001] ICR 833 it was held a dismissal should be interpreted to include constructive dismissal.
The Tribunal therefore decided it would follow, insofar as was necessary, the Derby Specialist case and was therefore satisfied dismissal under the 1998 Order included constructive dismissal.
Regulation 24, in particular, amended Article 38 of the 1998 Order, in relation to the burden of proof applicable to these proceedings - by the insertion of Article 38A, which states as follows:-
"Article 38A -
Where on the hearing of a complaint under Article 38, the complainant proves the facts from which the Tribunal could (Tribunal's emphasis) apart from this Article, conclude in the absence of an adequate explanation that the respondent -
(a) committed such discrimination or harassment against the claimant or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant and the Tribunal shall (Tribunal's emphasis) hold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act".
The English Court of Appeal, in the case of Igen -v- Wong [2005] 3AER 812 considered provisions equivalent to Article 38A of the 1998 Order, in a sex discrimination case and approved, with minor amendment, the guidelines set out in the earlier decision of Barton -v- Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332.
In a very recent decision of the Northern Ireland Court of Appeal the case of Bridget McDonagh and Others -v- Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3, the Court approved the decision of Igen -v- Wong. The Court of Appeal further in the McDonagh case confirmed that it was necessary for a Tribunal to go through the two stage decision making process referred to in the case of Igen -v- Wong, if a complaint of unlawful discrimination was to be upheld.
…"The first stage required the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, the complaint is not to be upheld".
The Court of Appeal also confirmed that the amended Barton guidance, as to the correct approach to be taken to the incidences of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1998 Order, as well as all other forms of unlawful discrimination.
The Barton guidance, as amended in Igen, provides, inter alia, in relation to the second stage -
"(10) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which said inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal would need to examine carefully the explanations for failure to deal with the questionnaire procedure and/or code of practice.
Article 19(1)(A) provides that it is unlawful for an employer, in relation to employment by him in Northern Ireland, to subject to harassment a person whom he employs …
Article 3(A)(1) "A person ("A") subjects another person ("B") to harassment in any circumstances relevant to the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or the effect of
(a) Violating B's dignity or;
(b) Creating and intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect as specified in sub paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should be reasonably considered as having that effect.
(3) With this Order a person subjects another to unlawful harassment if he engages in conduct in relation to that other which is unlawful by any provision mentioned in Article 3(2B).
Contrary to the submission to the claimant, the Tribunal was satisfied that in relation to this Article there was no relevant transitional regulation in the 2003 Regulations; thus, the Articles relating to harassment, were not in force for the purposes of these proceedings, as these proceedings commenced prior to 10 December 2003.
However, as with most of the discriminatory legislation, prior to 2003 there was no specific standing right for harassment. Under the 1998 Order, harassment was not actionable as such under the said Order. It was necessary, in order to bring a successful action under the 1998 Order, to show less favourable treatment in the normal way and show that harassment fell within the definition of detriment. In numerous cases (for example, De Souza -v- Automobile Association [1986] ICR 514), it has long been recognised harassment has the potential to be unlawful direct discrimination.
Indeed in the case of Porcelli -v- Strathclyde R.C. [1986] IRLR 177, it was suggested that if the form of [sexual harassment] was [gender] specific there was no need for a comparator. However, the decision of the House of Lords in the case of MacDonald -v- Advocate General for Scotland [2003] IRLR 512, the House of Lords made it clear that comparison remains a necessary ingredient of this type of unlawful conduct.
Such a comparison, as seen in the Shamoon case, can include a real or hypothetical comparator.
Thus conduct which subjects the victim to a detriment and is of a sectarian nature may not be sectarian harassment, contrary to the 1998 Order, if it cannot be shown that such treatment constituted less favourable treatment than that of a relevant comparator.
In these matters, the claimant did not point to any actual comparator; but was relying in the circumstances on a hypothetical comparator. As the House of Lords made clear in the case of Shamoon (see before) such a hypothetical comparator is permissible in the case of unlawful discrimination and it is not necessary to identify an actual comparator in any such case.
As Lord Nicholls in his judgment in the Shamoon case made clear the normal two step approach of tribunals, in considering whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, that less favourable treatment was on the proscribed ground, "can often be avoided by concentrating on why the claimant was treated as he/she was and was the reason the said proscribed ground or some other reason. If the latter, the application fails. If the former, there will then usually be no difficulty in deciding whether the less favourable treatment, afforded on the proscribed ground, was less favourable than was or would have been afforded to others (see further paragraph 11 of the judgment).
As was stated in the sexual harassment case of Reed and Bull Information Systems Limited -v- Stedman [1999] IRLR 299 - "The essential element of sexual harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves which is acceptable to them and what they regard as offensive".
Many sexual harassment cases, prior to the introduction of the legislative amendment, relied on the definition seen in the EC code of practice "unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women at work including unwelcome physical, verbal or non-verbal conduct".
This can clearly be adapted for the purposes of sectarian harassment, and unwanted conduct is essentially the same as "unwelcome or uninvited".
(see further Insitu Cleaning Company Ltd -v- Heads [1995] IRLR 4.)
In the case of McKay -v- Northern Ireland Public Service Alliance [1994] Northern Ireland 103 the Court of Appeal considered what was meant by political opinion. Kelly L J in that case stated it meant, " … the opinion relating to the policy of government and matters touching the government of the state …". This was approved in the case of Gill -v- N.I.C.E.M [2001] NIJB 299 when Carswell L C J, as he then was, said, …'the type of political opinion in question must be one relating to the government of the state on matters of public policy.'
As set out previously the Tribunal was satisfied no claim of such unlawful discrimination arose in these matters.
Article 46 of the 1998 Order provides:-
(1) Subject to paragraph (5) a tribunal shall not consider a complaint under
Article 38, unless it is brought before, whichever is the earlier or:-
(a) into the period of three months beginning with the day in which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or:-
(b) the end of the period of six months, beginning with the day in which the act was done.
(5) … The Tribunal may nevertheless consider any such complaint the claim where application which is out of time if, in all the circumstances the case, 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 shall be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
…"
It was therefore necessary for a claimant to show, by direct evidence or inference from primary facts, that the various incidents of discrimination alleged were linked to one another and were thus evidence of a continuing discriminatory state of affairs sufficient to satisfy the concept of "an act extending over a period".
Issues of time clearly go to the jurisdiction of the Tribunal to hear any such claim of discrimination and, if the claim is out of time, pursuant to the provisions of Article 46(1) then, under Article 46(5) it is then necessary for the Tribunal to determine whether it should consider a claim, which is out of time, on the just and equitable grounds referred to therein.
The Tribunal has a wide discretion and although the matters to be found in the Limitation Acts for extension of time in a claim for personal injuries in the High Court are useful guidance, they are no more than that. [See British Coal Corporation -v- Keeble [1997] IRLR 336]. Such relevant factors would include the length of and reasons for the delay in bringing proceedings and the extent to which the cogency of the evidence is likely to be affected by the delay, the promptness with which a claimant acted and/or took advice once he knew of the facts giving rise to a cause of action and also relative prejudices to the parties should the case proceed. In the case of Johnston -v- Chief Constable of the RUC [1998] N.I., approving Hickey
-v- Laggan t/a The Fly Bar [1995] unreported, the Northern Ireland Court of Appeal made it clear that the absence of prejudice does not make it just and equitable to ignore the time limits. Time limits are there to be observed and, as seen in the decision in the case of Robertson -v- Bexley Community Centre [2003] IRLR 434. The exercise of the discretion can be considered the exception rather than the rule.
In the second set of proceedings, the claimant also made a claim under the 1996 Order of constructive dismissal. As in a claim of unlawful discrimination, there are also relevant time limits for such a claim.
Under Article 145(2) it is provided:-
"Subject to paragraph 3, an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months".
The test of reasonable practicability, in order to extend time, as set out above, is a much narrower test than the test of just and equitable which is applicable to a claim of unlawful discrimination as set out previously.
"…
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct".
To establish a claim for constructive dismissal it is necessary for a claimant to show the following (see Harvey on Industrial Relations and Employment Law Vol. 1 para. D1/403):-
(i) There must be a breach of contract by the employer. It must be an actual or anticipatory breach.
(ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous interpretation of the contract by the employer, will not be capable of constituting a feudiation in law.
(iii) He must leave in response to the breach and not for some other, unconnected, reason.
(iv) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.
Such a breach of contract can include breach of the implied duty of trust and confidence. In the case of Mahmud -v- B. C. C.I. [1997] ICR 606, the House of Lords held "an employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
In the case of Bracebridge Engineering Limited -v- Derby [1990] IRLR 3, a case of sexual harassment, failure to properly investigate allegations of sexual harassment or to treat such matters with sufficient gravity was held to constitute breach of this term.
In Brown -v- Merchant Ferries Limited [1998] IRLR 682, the Northern Ireland Court of Appeal, said the test to be applied was whether the employer's conduct so impacted on the employee that, viewed objectively, the employee could properly conclude the employer was repudiating the contract.
In the case of Waltons and Morse -v- Donnington [1997] IRLR 488, the EAT held that it was a term of every contract of employment that, "an employer will provide and maintain for his employee insofar as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties".
In relation to the said "last straw" doctrine it was stated in the case of Lewis -v- Motorworld Garages [1985] IRLR 465 - "the last action of the employer which leads to the employee leaving need not itself be a breach of contract, the question is does the cumulative series of acts taken together amount to a breach of the implied term".
If the Tribunal considers such a constructive dismissal has occurred, a tribunal is still required to consider the fairness of the dismissal.
Under Article 130 of the 1996 Order, and determining whether the dismissal was fair or unfair, it is for the employer to show -
(1) (a) reasons (or if more than one, 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 being in the same position as the employee held.
Having established the said reason, it is then necessary for the Tribunal to
have regard to the provisions of Article 130(4) of the 1996 Order to
determine whether the employer's decision to treat the reason or the reason justifying the dismissal was a decision which in all the circumstances was within the range of reasonable responses available to the reasonable employer.
(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 has 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 these things or suspects that B has done or intends to do any of these things.
As the House of Lords made clear in the decision of Chief Constable of West
Yorkshire -v- Khan [2001] IRLR 830, victimisation occurs when, in any
circumstances relevant for the purposes of any provision of the act, a person is treated less favourably than others because he has done one of the protected acts. The burden of proof provisions also therefore apply to such a claim. Further, in order to make the necessary comparison, it is necessary to compare the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. In the absence of an actual comparator, the Tribunal must also consider the position of a hypothetical comparator. Lord Nicholls said that situations should be looked at subjectively and the question asked - "why did the alleged discriminator act as he did - what consciously or unconsciously was his reason"; or, as Lord Scott said, "the real reason the core reason the motive for the treatment complained off".
The meaning of "in the course of employment" has been, for the purposes of the 1998 Order, determined in the leading case of Jones -v- Tower Boot Company Limited [1997] IRLR 168, a case of racist bullying, where it was decided that "in the course of employment" it should be given a wide and purposive interpretation; the words should be interpreted in the sense in which they are employed in every day speech and not restricted by reference to the principles laid down by case law for establishing an employer's vicarious liability for the torts committed by an employee. The application of the phrase is a question of fact for each tribunal to resolve. It was made clear in HM Prison Services -v- Davies [1998] unreported, that an act can take place in an "off duty" situation and still, depending on the particular facts, be held to be in the course of employment (see further Chief Constable of Lincolnshire -v- Stubbs [1999] IRLR 81, but contrast Waters -v- Commissioner of the Police of the Metropolis [1995] IRLR 531/Sidhu -v- Aerospace Composite Technology Limited [2000] IRLR 602). In such off duty situations, it is often difficult to discern from the authorities where the line has been drawn and each case, in this area, tends to be fact sensitive.
However, an employer is not liable for the acts of a third party who is not an employee or agent. In MacDonald -v- Advocate General for Scotland [2003] IRLR 512, the House of Lords, over-ruling the case of Burton -v- De Vere Hotels Limited (the famous Bernard Manning case) held that the employee could not be held vicariously liable for the acts of a third party and it was not relevant whether the employer could have, by the application of good employment practice, have prevented the harassment or reduced the effect of it.
3.12 Under Article 36(4) of the 1998 Order, it is provided that:-
"In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove he took such steps as were reasonably practicable to prevent the employee from doing that act or from doing in the course of his employment acts of the same description.
The burden of proof is on the employer. As was seen in the case of Canniffe -v- East Riding of Yorkshire Council [2000] IRLR 555, Burton J. said "The task of the Tribunal is -
(i) Identify whether the respondent took any steps at all to prevent the employee whom it is vicariously liable, from doing the act or acts complained of in the course of employment.
(ii) Having identified what steps, if any, they took, to consider whether there were any further acts that they could have taken, which were reasonably practicable. Whether taking any such acts would in fact have been successful in preventing the acts of discrimination in question is not determinative. An employer will not exculpate if it has not taken reasonably practical steps simply because, if it had taken those steps, they would not have prevented anything from occurring".
[see also further Brannigan -v- Belfast City Council [2002] unreported].
Indeed the Tribunal was unable to find any authority to support the said submission. Certainly specific provision is made for such a reduction under the 1996 Order, in a case for unfair dismissal. No such a provision is made in the 1998 Order.
In the Tribunal's opinion, a relevant provision would have been necessary to have been provided in the 1998 Order, to enable such a reduction to be made in the award of compensation made under the 1998 Order. Whilst the compensation paid on foot of the 1998 Order is under tortious principles (see further Article 39(1)(b) and Article 40 of the 1998 Order), provisions relating to contributory negligence for the reduction of any compensation on a finding of negligence are the result of a specific statutory intervention (Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948), which was introduced because, at, Common Law, where such a finding was previously made, it resulted in a complete defence to the defendant.
Thus, the Tribunal is not satisfied that contributory fault has any relevance to any issue of compensation to be awarded on foot of a claim under the 1998 Order.
Following the case of Sheriff Klyne Tugs (Lowestoft) Limited [1991] IRLR 481, a tribunal, in a claim of unlawful discrimination, is able to award compensation for personal injury, subject only to the requirement of causation being satisfied. In the case of Essa -v- Laing [2004] IRLR 31, it was decided that, provided a direct link was established between the act of discrimination and the loss laid out, no issue of reasonable foreseeability was relevant in relation to any such award for personal injury.
In the case of Vento -v- Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318, by way of guidance the Court of Appeal set out three broad bands of compensation for injury to feelings:-
(i) Between £15,000 and £20,000 for the more serious cases involving eg a lengthy campaign of discriminatory harassment. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.00.
(ii) Between £5,000 and £15,000 for serious cases not meriting an award in the highest band.
(iii) £500 and £5,000 for less serious cases, such as an isolated one of act of discrimination.
A tribunal has to be careful to ensure that, it takes into account any overlap between any claim for personal injury and any claim for injury to feelings.
Aggravated damages are available for an act of unlawful discrimination. Where the respondent has behaved in a high-handed, malicious, insulting or abrasive manner in committing the act of discrimination (Alexander -v- Home Office Acts [1998] ICR 85).
The Northern Ireland Court of Appeal, in contrast to the English Court of Appeal, in the case of McConnell -v- Police Authority of Northern Ireland [1997] IRLR 625, which is binding on this Tribunal, held that no such separate head should apply in discrimination cases but, where awarded, form part of the general award for injury to feelings.
In relation to pecuniary loss, the claimant is entitled to be put into the financial position he would have been but for the unlawful conduct of the employer - but, as seen before, provided the loss or damage claimed was caused by the discriminatory act it is not necessary to show the loss claimed was reasonably foreseeable.
Where a dismissal is both unlawful discrimination and unfair, Article 160 of the 1996 Order prevents double recovery of any head of loss which has already been taken account of in awarding compensation for the unlawful discrimination under the 1998 Order.
In particular, the respondent contended that the claims, in both sets of proceedings, pursuant to the 1998 Order were, for the most part, out of time and the discretion to extend time should not be exercised in the claimant's favour on the "just and equitable grounds". The respondent submitted, in relation to the various acts of unlawful discrimination relied upon by the claimant, no issue of continuous discrimination arose; and that the only claim that was in time in the first set of proceedings were the events alleged at the Remembrance Day Parade in November 2000. In relation to the second set of proceedings, the respondent submitted that the claims arising out of the phone calls in July 2001 and September 2001 were out of time as the second set of proceedings were not presented to the Tribunal until 8 January 2002.
The issue between the parties was therefore whether there was a succession of unconnected or isolated specific acts; or whether they were linked to one another, such as to show the continuing discriminatory state of affairs sufficient to satisfy the concept of "an act extending over a period" (See Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96). To enable the Tribunal to come to the conclusion on the foregoing matters, the Tribunal considered that it could not do so in advance of reaching a conclusion on whether the acts relied upon by the claimant were in fact discriminatory. It will therefore be necessary to return to this issue later in this decision.
Where the Tribunal concluded that the reason for less favourable treatment was on the grounds of the claimant's religious belief, namely that he was a Roman Catholic, it was satisfied that a hypothetical Protestant comparator would not have been so treated.
Mr Neilly, a Protestant, who lived on a Protestant estate would have been, in the Tribunal's opinion, fully aware of the significance of the words used by him to the claimant. Such offensive language, in the context of Northern Ireland, emphasised the difference in the claimant's religious belief from Mr Neilly, and was contrary to the respondent's harassment policy. Such harassment could therefore be a detriment and a further act of less favourable treatment on the grounds of the claimant's religious belief. Again, such comments were made in the depot by an employee of the respondent in the course of his employment, for which acts the respondent therefore could be liable.
Given the involvement of an employee in the depot, albeit unidentified, and who was taking such action against a fellow employee, the Tribunal is satisfied such action was carried out by an employee in the course of his employment and for which actions the respondent could be liable (See further Jones -v- Tower Boot). These actions therefore could be harassment amounting to a detriment and in the circumstances constitute less favourable treatment suffered by the claimant by reason of his religious belief.
In the circumstances, the Tribunal was satisfied such an act could be harassment amounting to a detriment and an act of less favourable treatment on the grounds of the claimant's religious belief, for which the respondent could be liable.
As stated previously, the majority of the Tribunal were satisfied the words were said by Mr McHendry. The words having been said, as found the majority, were clearly objectionable unwanted behaviour on the part of an employee in a depot, which was required to be a neutral working environment and thus, what was said by Mr McHendry, could have constituted harassment amounting to a detriment. In one sense the words said had a political basis; but the Tribunal considered Mr McHendry was making the remark as a form of abuse, because the claimant was a Roman Catholic and not because of any political opinion the claimant might or might not have.
In the circumstances, such remarks could therefore constitute a further act of unfavourable treatment on the grounds of the claimant's religious belief.
As the guidance makes clear, the Tribunal would normally expect cogent evidence to discharge that burden. At this stage, it was therefore necessary for the Tribunal to consider whether an adequate non-discriminatory explanation had been given by the respondent. Where such an explanation has not been given, pursuant to Article 38A of the 1998 Order, the Tribunal must uphold the discrimination claim.
Any such finding however, was also subject to the Tribunal finding that the Tribunal had jurisdiction to hear the said claims and that they were not out of time (See further paragraph 7.1).
The minority member of the Tribunal would have been prepared to accept that such a discriminatory state of affairs existed until in or about 1999; but, in view of his conclusion, that there were no such acts of unlawful discrimination in or about 2000, he would have found the first set of proceedings to be out of time and it would then have been necessary for the Tribunal to consider whether time should be extended on the just and equitable grounds. In light of the decision of the majority, that the first set of proceedings were in time, such consideration was not required to be made by the Tribunal.
The call on 8 July 2001 could be such a detriment but given that it did not follow a similar pattern to what had taken place previously nor introduced any element of religion, the Tribunal was not prepared to accept that such a call could amount to less favourable treatment on the grounds of the claimant's religious belief. Also, the call was not in fact received by the claimant, but by his wife.
However, in order for the burden to shift to the respondent, there was one further crucial issue which required to be considered by the Tribunal. This related to whether the respondent could be liable for such treatment in the absence of any identified employee of the respondent or any direct evidence that a employee of the respondent was involved in carrying out the said harassment. In light of the previous history of such unordered deliveries and the use of a telephone number, albeit now ex-directory, which could have been obtained from the depot by an employee, the Tribunal came to the conclusion that, on the balance of probabilities that the making of the telephone calls and/a person arranging the delivery of the carry-out was by an employee of the respondent. Further, since any such action by an employee had to be connected with the employment of the claimant at the depot, as there could have been no other reason for such action by an employee, the Tribunal concluded such an act was carried out in the course of employment, for which the respondent could be liable [Jones -v- Tower Boot].
In February 2001, the investigation team did not uphold the claimant's complaints. At that time the claimant had already brought proceedings. Following the replies to particulars in June 2001, there had been necessity for further investigation and interviews with employees into the additional matters referred to in the said replies. These were held in early September 2001. These further acts followed these further interviews; and, in the Tribunal's view the timing was potentially relevant and significant.
To establish a claim of victimisation the Tribunal had to be satisfied that the reason the claimant suffered these acts was because he had done one of the 'protected' acts under Article 3(4)(5) of the 1998 Order, namely by making these further complaints of unlawful harassment, on foot of the proceedings he had brought, and which had been the subject of further investigation in September 2001.
The Tribunal had no doubt that these acts in September 2001 and October 2001 could be considered less favourable treatment. Given the similarities with what had taken place previously and the timing of the further commencement of these further acts, which as set out previously the Tribunal is satisfied were carried out by an employee of the respondent acting in the course of employment, the Tribunal concluded that the reason for such acts could, in the circumstances, be because the claimant had done the said protected act. It did not believe that a person who had not made these further complaints, which required further investigation, would have suffered such treatment. In the circumstances, it was therefore satisfied the claimant could have been victimised by the respondent.
The second set of proceedings were presented to the Tribunal on 8 January 2002. Therefore, the events of 12 October 2001 and subsequent were within time. However, the Tribunal is satisfied that the events of 19 September 2001 were linked and not a separate isolated incident and that in the circumstances, there was a continuing discriminatory state of affairs during this period sufficient to be an act extending over a period. In the circumstances, the Tribunal was therefore satisfied that the said claims of unlawful discrimination in the second set of proceedings were in time and the Tribunal therefore had jurisdiction to hear them.
There was clearly a build up in the situation in that the events of 19 September 2001 were followed soon thereafter by the events of 12 October 2001. At that time, Ms Grant had not been told of the phone call in July 2001. Ms Grant's reaction to the events of 19 September 2001 might have been understandable, if it had been an isolated one off incident; but by the time of the second telephone call it was clear that a pattern was emerging. In the Tribunal's view, in light of the second call and the past pattern of events, there was sufficient detail by that time for Ms Grant to have at least looked further into the claimant's complaint and, if necessary, take some action, as suggested above. This she resolutely refused to do. Ms Grant, without any medical evidence, had already suggested in the file note the claimant may suffer from paranoia (file note 29 March 2001). This had never been suggested by an doctor, including the company doctor. Neither Mr McGreevy nor Ms Grant had any medical expertise. To label a person as suffering from paranoia, in the absence of a medical diagnosis was particularly dangerous and emotive use of language. Even in the non medical sense as Ms Grant contended she used it, it was clear she had taken the view the claimant was a person who wrongly believed others were doing things to him and could not be believed when he made such allegations. Given this view by her it was not surprising therefore in the Tribunal's view that she was so dismissive of his further allegations. But this was not a view she was entitled to take, in the judgment of the Tribunal, in the absence of medical evidence of a diagnosis of paranoia.
Although, there was a breach by the respondent of the said term of trust and confidence, it would only be sufficient to establish a claim of constructive dismissal if it was sufficiently serious to justify the claimant leaving. Such a breach, in the Tribunal's opinion, was sufficiently serious in the circumstances.
However, it would only permit a claim of constructive dismissal to be established if the claimant left in response to the said breach.
In the circumstances the claimant was not constructively dismissed but resigned; and therefore no issue of unfair dismissal arises. The claimant's claim of unfair dismissal must therefore be dismissed.
In Vento -v- Chief Constable to West Yorkshire Police (No. 2) [2003] ICR 318, the Court of Appeal, as set out previously, found that sums in the high band were reserved "for the most serious cases", for example where there had been a "lengthy campaign of discriminatory harassment". The claimant had clearly endured such a campaign. At all times, in assessing the appropriate award to be made in relation to these matters, the Tribunal was aware of the degree of overlap between the injury to the claimant's feelings and the personal injuries suffered by him. In addition was the added difficulty of the necessity for the Tribunal to make an award in each set of proceedings and to avoid any overlap of compensation or any element of double recovery. The Tribunal decided an appropriate award for injury to the claimant's feelings in this matter would be £15,000.00.
The Tribunal further considered that the said award for injury to feelings should be increased to £17,500.00 to take account of an award of aggravated damages (see further McConnell -v- Police Authority for Northern Ireland [1997] IRLR 635). The Tribunal found the various failures of the respondent to discover relevant documents, which were clearly discoverable, until during the hearing of the proceedings particularly insulting and high handed. The Tribunal also took into account the failure to refer the claimant to the harassment adviser throughout these proceedings, who clearly could have assisted the claimant and given him support in relation to his complaint. The Tribunal also took into account the various criticisms found by the Tribunal of the manner in which the investigation team conducted the investigation, but, in particular, the failure of the investigation team, having accepted the deliveries and the incident of the keys involved an employee, to take any action. The team, despite their acceptance of employee involvement, albeit unidentified, did not give a general warning or reiterate the claims of the harassment policy; but, in particular never acknowledged to the claimant their acceptance of such involvement. Rather, the team rejected the claimant's claim in its entirety. Further, the report of the investigation team into the further allegations was never shown to the claimant. Although there were various incidents investigated, only the McHendry incident was dealt with in any detail in the said report and the further incidents were summarily dismissed in two lines. All of this illustrated, in the Tribunal's opinion, a dismissive and high-handed attitude to the investigation of the claimant's further complaints.
Further in the file note dated 29 March 2001 in relation to the initial investigation of the claimant's complaints, Ms Grant, with the agreement of Mr McGreevy suggested, "the claimant may suffer from paranoia". This was certainly highly emotive use of language - but in the absence of any medical diagnosis to support it, particularly insulting with a most hurtful stigma attached.
The Tribunal was of the opinion, having had regard to the Guidelines for the Assessment of General Damages In Personal Injury Cases in Northern (2nd Edition) the claimant's said injury was an injury which could be described, in the circumstances, as a moderate psychiatric injury. The Guidelines suggest that such an injury would fall in the range of £7,500.00 to £30,000.00. However, as noted by the Tribunal, there was a degree of exaggeration by the claimant of his symptoms and indeed, the claimant was not as unwell as he at times suggested. For example, he was able to attend a successful interview for employment with Homefirst in or about May 2001. Similarly, from late 2002 he had played a significant and demanding role in the setting up of the dry cleaning business. In doing so, the Tribunal did not consider he was suffering as much as he stated and was clearly improving - albeit he had had to continue on anti-depressant medication. The Tribunal was of the view that, since he was no longer working for the respondent and, by his own choice, was now working in the dry cleaning business with his wife there would be continuing improvement in his condition.
Having regard to the foregoing and the overlap between the two sets of proceedings, the Tribunal concluded an appropriate award would be £17,500.00. In doing so it took into account that the period the claimant suffered most was the period prior to the presentation of the second set of proceedings.
During the said period he was on full pay sick leave and subsequently half pay sick leave, as set out below.
The Tribunal calculated the claimant's loss in this period as follows:-
Average net weekly earnings at
Ulsterbus = £ 293.00
(a) Average net weekly earnings
on full sick pay leave
(Nov 2000 - Apr 2001) = £ 156.00
Difference = £ 137.00
No. of weeks on full pay sick
leave is 23 - 23 weeks x £137.00 = £3,151.00 - Loss
(b) Average net weekly earnings on
half sick pay leave
(May 2001 - Aug 2001) = £ 136.40
Difference = £ 156.60
No. of weeks on half pay sick
leave is 18 -
18 weeks x £156.60 = £2,818.80 - Loss
(c) Loss of earnings (Sept 2001 -
9 Nov 2001) -
9 weeks x £293.00 = £2,637.00
2. Loss of Pension Contributions
Average weekly pension contribution = £ 12.42
(a) Average weekly pension
contribution on half pay sick leave = £ 6.21
Difference = £ 6.21
18 weeks x £6.21 = £ 111.78 - Loss
(b) Estimated pension contribution
(Sept 2001 - 9 Nov 2001) -
18 weeks x £12.42 = £ 223.56
Total Loss in period = £8,942.14
However, under the said Order (Article 6(3)) where, having regard to the circumstances of the case as a whole or to a particular sum in the award, the Tribunal considers serious injustice will be caused if the interest were to be awarded in respect of the periods set out above, the Tribunal is entitled to calculate interest by reference to different periods or use different periods for different sums in the award.
In view of the fact the claimant made no complaint until he complained to the company doctor on or about 15 December 2000, the Tribunal decided that serious injustice would be caused if the normal periods of interest, as set out above, were applied in this case. The acts of discrimination commenced in or about July 1995 and it was only following his visit to the company doctor that the claimant exhibited symptoms relating to the said personal injury.
The Tribunal therefore decided that interest should be calculated, in relation to the award for injury to feelings from 1 January 2001 to the date of calculation, namely 23 March 2007; and in relation to the award for personal injury and loss of earnings, from the mid point, namely 15 February 2004.
(i) Injury to Feelings - £17,500.00
Interest @ 8% per annum from
1 January 2001 - 23 March 2007 - £ 8,715.00
(ii) Personal Injury - £17,500.00
Interest @ 8% per annum from
15 February 2004 - 23 March 2007 - £ 4,338.00
(iii) Financial Loss - £ 8,942.14
Interest @ 8% per annum from
15 February 2004 - 23 March 2007 - £ 2,216.55
TOTAL - £59,211.69
=========
Ms Grant, having already concluded, albeit with no medical evidence, that the claimant might be suffering from paranoia, was clearly not prepared, in the opinion of the Tribunal to countenance the possibility there might be truth in the claimant's further complaints; and was just a further example of the claimant wrongly believing others were getting at him. To do so was particularly insulting and high handed.
The Tribunal, having regard to the sum awarded in the first set of proceedings took the view an appropriate award would be £7,500.00.
Award of Compensation
(I) Injury to Feelings - £ 7,500.00
Interest @ 8% per annum from
19 September 2001 - 23 March 2007 - £ 3,300.00
(ii) Personal Injury - £ 7,500.00
Interest @ 8% per annum from
20 June 2004 - 23 March 2007 - £ 1,650.00
TOTAL - £19,950.00
=========
Chairman:
Date and place of hearing: 12 January - 16 January 2004,
19 January - 22 January 2004,
13 February 2004,
26 April - 30 April 2004,
4 May - 7 May 2004,
11 - 13 October 2004,
4 - 5 November and 29 - 30 November 2004,
1 - 2 December 2004 and
21 December 2004 at Belfast.
Date decision recorded in register and issued to parties: