FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   343/04 FET
206/05 FET

CLAIMANT:		Conn Lavelle

RESPONDENTS:		1.	Billy Thompson
2.	Colin Reed
3.	British Bakeries Limited

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by any of the respondents on the basis of his political opinion or religious belief nor was he victimised for having performed a protected act.

Constitution of Tribunal:
Chairman:		Mr Kinney
Members:		Mrs Stewart
			Mr Barbour

Appearances:
The claimant appeared in person and represented himself.
The respondents were represented by Mr P Bloch, of Engineering Employers’ Federation.

Legal issues

1.	The legal issues to be determined, which were agreed by the parties at the outset of the hearing, were as set out in the Record of Proceedings of the Case Management Discussion of 15 August 2007 as follows:-

(i)	Whether the claimant was treated less favourably on the grounds of religion in relation to the three changes to van route identified in his claim to the Tribunal.  The comparators identified by the claimant are Mr Raymond Neil, Mr A McClean, Mr Simpson, Mr Martin and Mr Mulgrew.

(ii)	In relation to the payment of commission, was the claimant treated less favourably on the grounds of religion as compared to Mr Simpson and Mr McClean.

(iii)	Was the claimant treated less favourably on the grounds of religion in relation to the repairs carried out to his van and in his treatment by the respondents during the last three weeks of his contract with the respondents, as set out in his claim form to the Tribunal.  The comparators identified by the claimant are the same as those referred to in Issue (i) above.

(iv)	In relation to the refusal of a reference for the claimant, was he treated less favourably on the grounds on his religion and/or was a reference refused on the grounds that he had presented a case against the respondents to the Fair Employment Tribunal?  The comparator identified by the claimant is Mr Simpson.  

(v)	Was the claimant treated less favourably on the grounds of religion in the manner in which his contract came to an end?  The comparators relied on by the claimant are the same as those referred to in Issues (i) and (iii) above.

Each party prepared a separate trial bundle.  The Tribunal made reference only to those documents referred to it by the parties during the hearing.

Findings of fact

2.	The claimant worked as a Franchise Van Driver for the third-named respondent trading as Mothers Pride.  He had been actively recruited by the first-named respondent and David Mills from Ormo Bakery in or around May 2001.  At that time he negotiated with Mr Thompson and Mr Mills the calls he was to undertake.    This was known as his ‘van’.

3.	For the first two years of his employment there were some alterations to the claimant’s van which were negotiated and agreed between the claimant and the bakery.

4.	Mothers Pride then bought over the Ormo Bakery.  There were various organisational and structural changes which ensued.  In many of the outlets supplied by the bakeries both Mothers Pride and Ormo Bakery drivers were calling.  These operations needed to be streamlined.  This required changes to the vans of most drivers, both franchisee and employee.  The bakery considered that they had additional responsibility towards their direct employees under the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE).

5.	From in or around October 2003 until May 2004 there were three changes to the claimant’s van.

First change

6.	Mr Thompson and Mr Mills met with the claimant on his van and discussed with him changes that they felt were necessary.  The changes proposed meant that the claimant would call with some of his customers at a later time than before.  He was also asked to do calls closer to his home.  The claimant was concerned that these changes would affect his trade.  He also felt it would make it harder for him to hit his targets for his bonus payment and he asked for an extra 1% in his commission payments.  

7.	Mr Thompson, who was negotiating with the claimant on behalf of the bakery, offered and provided support to facilitate the change.  He reviewed the claimant’s target to enable his bonus to be paid.  He added a further call to the van at the claimant’s request.  He provided extended support on the sale or return of unsold items.  He provided an assistant merchandiser at one of the claimant’s stores to help set out his display of bread. 

8.	The net result of the change was an increase in sales for the claimant and an increase in income.  His sales before this change to his van were below target.  In reviewing the target figures the claimant achieved the revised target and was paid his bonus.

9.	The bakery also indicated that further changes to the van may become necessary as the organisational and structural changes to the business evolved.

11.	The claimant’s request for an additional 1% on his commission was refused.

Second change

12.	Part of the claimant’s van included calling at stores in Dromore.  There were issues regarding late deliveries to Dromore and further changes were proposed by the bakery to the claimant’s van.  It was proposed that the Dromore part of the van be removed and three other calls added on.  

13.	The fact that call times with customers were later was a combination of both the change to the van that had previously been made and also that the claimant was starting his rounds later than he had before and later than other drivers.  The claimant again asked for an increase of 1% on his commission and was again refused.  

14.	The claimant also gave evidence about being required to do an additional delivery for a store in Ballynahinch.  It was a direct delivery for which drivers were paid a flat rate of 11/2% commission.  The claimant alleged that he was forced to take this call.  He further alleged that he asked for a minimum of £20.00 per week to do the call.

15.	The claimant’s evidence in this point was contradictory and confused.  This indeed characterised much of the claimant’s evidence to the Tribunal.  During the course of the hearing the claimant gave inconsistent and vague evidence and retracted a number of the allegations and claims made in his statement.  

16.	The Tribunal found the evidence from the respondents’ witnesses to be consistent and credible.  

17.	On this point the respondents gave evidence that there was no dispute over doing the call and there was no request from the claimant for a minimum of £20.00 per week to do this particular call.  The Tribunal prefers the evidence of the respondents on this matter.

Third change

18.	The third change to the claimant’s van came about when the claimant again asked for a 1% commission increase.  He was again refused, but Mr Thompson indicated in this conversation a final change to the van.  It was suggested that the claimant’s call at Supervalu Carryduff, be removed and be replaced by a call at Brackenvale supplying both Mothers Pride and Ormo products.

19.	The claimant maintained in evidence that the previous Ormo driver had lost space in Brackenvale placing him at a disadvantage.  However the claimant accepted that he had been given further support by the bakery on extended returns on unsold bread (which would normally have been at the risk of the franchisee) and improved management contact with the outlet to protect the business.  The lost business was recovered.

20.	The claimant asserted that the changes were forced on him and on his van, whereas changes in other drivers vans were conducted by negotiation and agreement.  However the claimant provided no evidence to support this assertion despite explanation of what was required to establish his claims from the Tribunal.

21.	The claimant compared himself in his evidence to Mr Neill.  The claimant was a Catholic and asserted Mr Neill was a Protestant.  The claimant maintained that Mr Neill was treated more favourably.  He said that he was the driver who had lost space at the Brackenvale Store and yet was given more calls than he was able to complete.   No evidence of Mr Neill’s van was provided.

22.	Mr Neill was an employee of the company.  The claimant was a franchisee.  Different terms applied to them.  Mr Neill had been an employee of Ormo and the TUPE Regulations applied to him.  The claimant was a self-employed contractor.  

23.	The claimant gave no evidence in relation to any of his other named comparators relating to changes to his or their vans.  

The commission payment

24.	The claimant asked for a 1% increase in his commission on at least three occasions and was refused on each.  He in his evidence referred to Protestant drivers; Mr Simpson and Mr McClean, who he alleged had received the extra 1% commission.

25.	Both Mr Simpson and Mr McClean had been headhunted by other businesses (one of which was a competitor of the third-named respondent).  They were both regarded as very competent sales people and the company was concerned about losing them to competitors.  Both drivers were offered an extra 1% to retain them.

26.	At this time eight other Catholic drivers were also being paid at the higher rate of commission and there were Protestant drivers being paid a lower commission rate than the claimant.  

27.	Whilst the claimant was regarded as a competent bread server and salesman by the company, they felt that he was not achieving to the best of his ability and he was underperforming.  There had been complaints made about the claimant by customers and there was no business case made out to justify any increase in the commission rate of the claimant.  

28.	In and around of April 2004 the claimant requested a meeting with the third-named respondent.  He met with Mr Colin Reed and Mr Thompson.  Mr Reed referred to the claimant’s sales figures at this meeting.  He indicated that the claimant was not supplying key products to major stores.  The claimant was told that the company would not reward poor performance.  The company would continue to monitor sales and would review the position in a few weeks.  

29.	A second meeting was held towards the end of May 2004 between the claimant, Mr Reed and Mr McDowell.  The object of the meeting was to try and improve the performance of the claimant.  Mr Reed was not happy to add more business to the claimant’s van in view of the performance issues and the complaints received.  

30.	This meeting took place at a time when the bakery had difficulty in recruiting new salesmen and losing a salesman would cost operational difficulties.  The Tribunal accepted the respondents had no desire to lose the claimant at this time.  

31.	At this meeting the claimant alleged that Mr Reed terminated his employment giving him four weeks notice.  Both Mr Reed and Mr McDowell gave evidence to say that no such statement was made.  The Tribunal, on the balance of probabilities, accepts the respondents’ version of events at this meeting.  This is also supported by the uncontested evidence of Mr Thompson that he, on return from holidays, telephoned the claimant on learning that the claimant was alleging that he had been put on notice.  Mr Thompson told the claimant this was definitely not the case.  However, the claimant thought this a ploy and refused to accept Mr Thompson’s assurance.  The Tribunal is satisfied that the claimant withdrew his services and ceased providing work for the company on 3 July 2004.  He subsequently started work at a new job on 13 July 2004.

32.	Both the meetings held with Mr Reed were held at the claimant’s request.

Treatment after May 2004

33.	In his evidence the claimant referred to a number of incidents which he said occurred in the final weeks before he left the bakery.

34.	The Tribunal has already commented on the nature of much of the claimant’s evidence.  There was some conflict in evidence between the respondents’ witnesses and the claimant in relation to some of these incidents.  The Tribunal makes the following findings of fact relating to these matters:-

(a)	Mr Thompson did not refuse the claimant easy payments to pay off a van that was due to the bakery.  In fact in his evidence the claimant accepted that instalments had been allowed by the bakery.  

(b)	The claimant was not refused a temporary replacement van when his own van broke down – a van was provided by the bakery.  As a franchisee the claimant was responsible for providing his own van.

(c)	After the repairs were completed to the van the claimant’s ‘handheld’ was damaged.  This is a computerised device which is used to keep records and to order bread.  It was not in dispute that the handheld was damaged.  However no evidence was given as to how the damage was done or who had caused it.

(d)	The claimant alleged that Mr McDowell told other drivers that it was the claimant’s fault that extra bread had been put on their vans.  As the franchisee drivers are financially responsible for their returns the claimant alleged that this caused difficulties for him in the yard.  He further alleged that Mr McDowell added at the same time an unreasonable amount of bread to his van.  Mr McDowell denied extra bread was put on other drivers’ vans.  He did place extra bread on the claimant’s van for one store which had run out of a product the previous week.  It was not uncommon for bread servers to order short of their needs at the weekend and go back to buy extra bread from the bakery at half price and deliver this bread making a higher profit.  However there was no guarantee that extra bread would be available as it would only be those products that had been overproduced.  The claimant accepted that he availed of this practice.  Mr McDowell indicated that the claimant had been short twice before and that Mr McDowell had filled the order to protect the business and satisfy the customer.  In any event the company policy was to give full returns on any products added to a bread server’s orders by the bakery.

	The Tribunal prefers the evidence of Mr McDowell in this regard and it 	finds that there was no reference by Mr McDowell to other drivers and 	that the extra bread added to the claimant’s order was not 	unreasonable.

(e)	The claimant was not promised an extra £1,500 of new calls by Mr Thompson.

(f)	The claimant was not paid his six month bonus for final weeks as he had not met his targets when he ended his franchise.

Victimisation claim

35.	The claimant after he left employment with the bakery applied for other positions.  Some of these sought references from the bakery.  The claimant, in particular, referred to a request for a reference made by Royal Mail.  The claimant maintained that another driver, Mr Simpson, got a reference, but the claimant did not.  The claimant alleged that Mr Thompson interfered with and prevented Royal Mail from getting a reference for him and that he had in fact refused several references for various jobs.  

36.	There was no evidence that Mr Thompson ever had any input into references.  The claimant called evidence from Mr Ramsey who gave evidence that he had no recollection of any reference request from Royal Mail.  He did recall one request for a personal reference from a hygiene company; but he made the decision to put that reference in the bin.  He subsequently spoke to Mr Thompson and told him that he had binned the request.  Mr Thompson said that it was not company policy to provide references for franchisees.

37.	There was no evidence that Mr Thompson had any involvement or input to the references sought by Royal Mail.  The Tribunal accepted on the evidence of the respondents’ witnesses that it was not a company practice to give references for franchisees and any such requests were dealt with by the Human Resources Section of the bakery.

38.	There was no evidence that Mr Thompson was aware of the claimant’s claim to the Fair Employment Tribunal at the time that he spoke to Mr Ramsey.

39.	There was no credible evidence that Mr Simpson had been provided with a reference.

The law

40.	Article 3(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) provides that

“ a person discriminates against another person on the grounds of religious belief or political opinion in any circumstances relevant for the purposes of the Order if:-

(a)	On either of those grounds he treats another less favourably than he treats or would treat other persons.”

41.	Article 3 provides that a comparison of the cases of persons of different 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.

42.	Article 38(A) of FETO states:-

	“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

(a)	Has committed an act of unlawful discrimination or unlawful harassment against the complainant; 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;

The Tribunal shall uphold the complaint 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.”

43.	Guidance on the application of the Burden of Proof Regulations has been given by the English Court of Appeal in Igen Ltd v Wong [2005] IRLR 258 in relation to a sex discrimination case. It has equal application in this case.  The guidance in Igen has been endorsed and applied in a number of cases, most notably by the Court of Appeal in the case of Madarassy v Nomura International plc [2007] EWCA Civ 33 and by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Ltd [2007] NICA25.

44.	Igen sets out a two-stage process in cases where direct discrimination is alleged as in the present case.  First, the claimant has to prove facts from which the Tribunal could conclude there has been unlawful discrimination.  Once that is done, the burden of proof shifts to the respondent who has to show that he did not commit unlawful discrimination.  The respondent has to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on any of the protected grounds.

45.	Igen sets out a 13-point guidance which provides as follows:-

(a)	Pursuant to Section 63A of the Sex Discrimination Act it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by Section 41 or Section 42 of the Sex Discrimination Act is to be treated as having been committed against the claimant.  These are referred to below as “such facts”.

(b)	If the claimant does not prove such facts he or she will fail.

(c)	It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such a discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(d)	In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(e)	It is important to note the word “could” in Section 63A(2).  At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(f)	In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.  

(g)	These inferences can include, in appropriate cases, an inference that it is just and equitable to draw in accordance with Section 74(2) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the Sex Discrimination Act.

(h)	Likewise the Tribunal must decide whether any provision of any relevant code of practice is relevant and; if so, take it into account in determining, such facts pursuant to Section 56A(1) of the 1975 Act.  This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(i)	Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(j)	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.

(k)	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.

(l)	That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such 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.

(m)	Since the facts necessary to prove an explanation would normally be in the possession of a respondent, the Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular, the Tribunal will need to examine carefully explanations where failure to deal with the questionnaire procedure and/or code of practice.

46.	In Madarassy, Lord Justice Mummery said:-

	“Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which were alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.  Such evidence from the respondent could, if accepted by the Tribunal, be relevant as showing that, contrary to the claimant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer in prima facie case of discrimination on the proscribed ground.”

47.	By Article 3(4) of FETO “a person (‘A’) discriminates by way of victimisation against another person (‘B’) in any circumstances relevant for the purpose 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).

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 stated) contravened this Order; or

iv.	otherwise done anything under or by reference to this Order in relation to A or any other person; or

v.	A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of those things.

48.	The burden of proof provisions also apply to claims for victimisation.  It is necessary to compare the treatment afforded to the claimant who has done that protected act to the treatment which was or would be afforded to other employees who have not done the protected act.  It is well established law that it must be established that the alleged discriminator had actual knowledge.

Tribunal’s conclusions

49.	The claimant has alleged that he was treated less favourably on the grounds of religion in relation to the three changes to his van route.  He identified comparators.  However no evidence was received by the Tribunal in relation to any of the comparators except Mr Neill.  Mr Neill, was an employee of Ormo and his position was significantly different as he was protected by the TUPE Regulations.  The claimant was a self-employed contractor and did not have the same protections.  The Tribunal did not consider that Mr Neill was an appropriate comparator, nor on the facts as found, could the Tribunal conclude in the absence of an adequate explanation from the respondents that the respondents had committed unlawful acts of discrimination against the claimant.  

50.	Similarly, the Tribunal is satisfied that in this case the burden of proof does not shift in relation to Issues (iii), (iv) and (v) as identified at the start of this decision.  On the facts as found the Tribunal cannot conclude in the absence of an adequate explanation from the respondents that the respondents committed an unlawful act of discrimination against the claimant.  The claimant provided no evidence of comparators, has raised no facts on the evidence from which the Tribunal raised the inference that his religion played any part in any of the deliberations by any of the respondents.  In relation to victimisation, the Tribunal found that the claimant had failed to provide evidence that Mr Thompson was aware of his claim to the Fair Employment Tribunal at the time he spoke to Mr Ramsey.  In any event, there was no credible evidence that the claimant was treated any differently to any other franchisee of the company.

51.	There is no doubt, however that on the evidence heard by the Tribunal the        third-named respondent appears to have had a very poor process in place in relation to requests for references from third parties.  At the very least the third-named respondent should have responded to requests for information by clearly stating their policy to avoid unnecessary time and effort from other employers uselessly following up on requests for information.

52.	In relation to the payment of commission the Tribunal did find as a fact that both of the comparators named by the claimant were paid a higher rate of commission.  Both comparators were Protestant and the claimant was Catholic.  The Tribunal is satisfied therefore that the burden of proof should pass to the respondents to explain the treatment of commission.

53.	The Tribunal is satisfied that the basis for the difference in treatment of the commission payments was a matter of reasonable business practice and was not tainted by discrimination.  The two comparators were competent and valued sales people that the company was imminently going to lose.  The claimant, whilst also a competent sales person, was in the company’s view underperforming and was the subject of a number of complaints.  There were varying commission rates paid to franchise drivers by the bakery.  Some catholic franchisees were paid at a higher rate than the claimant, and protestant franchisees paid less.

54.	For these reasons, the Tribunal finds that the claimant’s claims for discrimination on the grounds of religious belief and victimisation must fail.

Chairman:

Date and place of hearing: 22 -26 September, 29 September 2008.

Date decision recorded in register and issued to parties: