FAIR EMPLOYMENT TRIBUNAL

CASE REF:  76/08FET

CLAIMANT:		Colin Mullan

RESPONDENT:		Dungannon and South Tyrone District Borough Council

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim of direct discrimination on the ground of religious belief is dismissed.

Constitution of Tribunal:
Chairman:			Mr S A Crothers

Members:			Mr M Roddy
				Mrs G Savage
Appearances:
The claimant was represented by Miss T McKenna, instructed by Francis Hanna & Company, Solicitors.  Mr G Daly, Solicitor, from Francis Hanna & Company, Solicitors represented the claimant in providing further written and oral submissions.
The respondent was represented by Mr S Elliott, Barrister-at-Law, instructed by Simmons Meglaughlin & Orr, Solicitors.

THE CLAIM

 1.	The claimant, a Protestant, alleged that the respondent discriminated against him on the ground of his religious belief.  Case Management Discussions were held on 29 July 2008, 29 August 2008 and 5 January 2009.  In the course of these Case Management Discussions both parties agreed that there should be eight lead cases representing eight different categories of claim.  The claimant is in one such category.  The representatives furnished a list of agreed issues.  These were further refined, by the Tribunal and agreed by both counsel.  The respondent denied all of the claimant’s allegations.  

THE ISSUES

2.	The issues before the Tribunal in relation to this case are as follows:-

(i)	Whether the respondent’s application to have the response amended in relation to the claimant’s claim should be allowed.

(ii)	Whether the principle of res judicata applies to the claim brought by the claimant.

(iii)	If the answer to question (ii) is “no”, is the claim in time, or if not, should time be extended to allow the claim in accordance with Article 46(5) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (“the Order”).

(iv)	If the claims are in time, whether the claimant was the subject of direct discrimination on the ground of religious belief contrary to Article 3(2) of the Order.

(v)	Whether a settlement between the respondent and Catholic claimants in or about October/November 2007 constituted an act of unlawful discrimination under the Order.

	The written submissions in relation, inter alia, to the above issues are appended to this decision.  The Tribunal also took into account brief oral submissions made by both parties’ representatives on 23 March 2009.  The Tribunal was not satisfied that the submissions from both parties adequately addressed some key issues in the case.  After due consideration, and following a Case Management Discussion on 7 May 2009, the Tribunal found it necessary to request both parties’ representatives to provide further written and oral submissions on the issues outlined therein.  Further oral submissions were heard on 5 June 2009.

SOURCES OF EVIDENCE

 3.	The Tribunal heard evidence from the claimant and from the respondent’s Head of Human Resources, Brendan Currie, and from the respondent’s Director of Technical Services, Bertie McMinn.  The Tribunal was also presented with documentation and took into account as evidence only those documents specifically referred to in the course of evidence.  The Tribunal was referred to few documents relative to the size of the bundles presented to it.

THE FACTS

 4.	Having carefully considered all of the evidence insofar as same was relevant to the issues before it, the Tribunal made the following findings of fact on the balance of probabilities:-

(i)	In 1989 the respondent introduced an incentive bonus scheme which allowed employees to earn a bonus of 331/3% on top of their basic wages.  This scheme continued until 1993 when, following a competitive tendering exercise, (the outcome of which was to retain services in-house), the respondent decided that employees who commenced employment after the compulsory competitive tendering exercise would have the opportunity to earn a maximum bonus of 25% and not 331/3%.  The bonus schemes were then removed as from 1 April 2004 when single status was introduced.  After that date however employees who had been on the 331/3% bonus had their earnings protected.  A job evaluation process also began in April 2004 but had not been completed in respect of all relevant employees at the date of the Tribunal hearing.

(ii)	The Tribunal was referred to a table setting out statistics in relation to the bonus scheme.  In 1994 and 1995 there were 16 Protestants and one Catholic earning 331/3% bonus.  In 1994 there were two Protestants and two Catholics earning 25% bonus and in 1995 four Protestants and two Catholics.  By 2002 there were 16 Protestants and one Catholic still receiving the 331/3% bonus but 47 Protestants and 46 Roman Catholics receiving the 25% bonus.  In 2003 15 Protestants and one Catholic were receiving the 331/3% bonus with 49 Protestants and 47 Catholics receiving the 25% bonus.  In 2004 the 331/3% bonus was being paid to 14 Protestants and one Catholic and the 25% bonus to 51 Protestants and 46 Catholics.  It is common case that in contrast to the position prior to 1993, the make-up of the workforce changed substantially in subsequent years, as more Catholics joined.  

(iii)	Some of the employees who are on protection may be regraded as a result of job evaluation appeals.  Two employees who are craftsmen and who did not come within the single status scheme still earn 331/3% bonus.  It would appear that apart from these two individuals there are currently several employees still in receipt of the protected bonus of 331/3%.  This was to remain the case until the Review of Public Administration in 2009.

(iv)	The Tribunal is satisfied that attempts have been made over several years involving the respondent, affected employees, and the unions to resolve differences in pay and to ensure that all employees are paid equitably.  The Tribunal was referred to a minute of a meeting with management and union representatives regarding payment of possible bonus arrears held in the respondent’s Chief Executive’s office on 21 November 2002, (the Chief Executive then being Mr William Beattie).  The section headed “Background” in the minutes reads as follows:-

“Mr Beattie said that the purpose of this meeting was to update unions on progress being made regarding arrears to former manuals arising from different rates of bonus and to advise on the present position.  Arising from this situation the Council are involved with the DOE Local Government Division and Chief Local Government Auditor.  Background work has been undertaken but before making payments we require the approval of the Chief Local Government Auditor and the Department.  Several meetings have taken place and discussions with Chief Local Government Auditor are ongoing”.

Also at that meeting were Mr Brendan Currie, Head of Human Resources, Mr Michael Kiddle, Regional Organiser, UCATT, Mr Bertie McMinn, Director of Technical Services, and Mrs Hobson who was responsible for the minutes.  In the last paragraph of the minutes it is recorded as follows:-

	“Mr Kiddle said that a memo had been put up on the notice board saying that the money would be paid.  Mr Currie advised that this had arisen out of the Policy and Performance Monitoring Committee but it did say money would be paid subject to clearance”.  

The memo however had been removed.

(v)	A number of Protestant and Catholics employees lodged claims with the Tribunal Office alleging indirect discrimination against the respondent in 2005.  The Tribunal has no evidence before it as to when precisely these cases were lodged or the number of claimants involved.  The Tribunal is satisfied that in or around October/November 2007 a settlement was reached with the Catholic claimants and arrears paid in full relating to the difference between the existing 25% bonus and the bonus of 331/3% paid to others.  However, the Protestant claimants withdrew their cases some time beforehand on legal advice that they could not succeed in indirect religious discrimination cases as well as the Catholic claimants. The Respondent was advised that it may lose the claims made by the Catholic claimants at tribunal.  The tribunal had no documentary evidence before it concerning the withdrawal and dismissal of any previous claims.

(vi)	The Tribunal sought to ascertain, through Mr Currie, the precise basis for the settlement with the Catholic claimants.  Mr Currie accepted that he was responsible for supervising the conduct of the defence of these  claims and had been involved on behalf of the respondent in the earlier claims brought by the Protestant claimants.  Mr Currie asserted in his evidence that the cases had been settled in 2007 on an individual basis and that there was no admission of liability or of indirect discrimination.  However, the Tribunal found the evidence in relation to the settlement terms unsatisfactory and found Mr Currie to be an unconvincing witness.  It is clear that a settlement was not arrived at by way of compromise agreement or by way of conciliation under the auspices of the Labour Relations Agency.  The Tribunal was not shown any documentary evidence whatsoever in relation to any terms of settlement (if any existed). Mr Currie had not volunteered any evidence regarding the settlement terms in his written statement of evidence before the Tribunal nor, apart from Mr Currie’s evidence, was any other evidence provided to establish definitively the terms of the settlement.  The Tribunal therefore had no evidence before it that the settlement terms precluded publicity or required confidentiality as to any terms.  Furthermore, the Tribunal is satisfied, even though the cases which were settled in 2007 were not strictly test cases, that there was an understanding among the employees both Catholic and Protestant that a settlement would mean that their terms and conditions would be amended to reflect any inequalities in pay.  The Tribunal is also satisfied that this was the advice provided by the union to its members both Protestant and Catholic preceding the settlement in 2007.  

The Tribunal heard evidence from Mr McMinn, Director of Technical Services and is satisfied that he understood the general nature of what a test case means.  Moreover, the Tribunal was referred to a document entitled “Stage Two Grievance Meeting 16 January 2008 – Bonus Payments”.  Mr McMinn was in attendance at this meeting together with Mrs A Mullan, Union Facilitator and Mr B Currie, Head of Human Resources.  It is recorded in those minutes that:-

	“Mrs Mullan added that the perception of the test cases had caused problems and there are grievances as after effects of the Tribunal claim settlements.  Protestants now feel discriminated against because Catholics have won awards and the situation has been reversed.  The Bin Loaders and HGV Drivers all feel the same as the General Operatives in this regard.

	Mr McMinn said that he could not comment on why the test cases did not result in others getting an award as he was not an authority on employment law.

	Mrs Mullan added that in order to access the Fair Employment Tribunal, the application must first go through internal procedures.  Certain cases follow on from the previous complaints and a precedent has been set.  The current grievances need to be looked at or new Tribunal applications will arise.  If there is no settlement then there will be a need for action outside of Council procedures.

	Mr McMinn said that may be the road that this has to travel.  Mrs Mullan added that if the issues related to the same job and the same situation this should be cleared internally.  This would save money from an audit point of view.

	Mr McMinn referred to the need to progress re legal advice.  Mrs Mullan agreed but emphasised that the issues need to be sorted out.  She added that if the other Catholic employees had lodged/remained with tribunal applications, they would have received a settlement.

	Mr McMinn said all Council Officers wanted to see this matter sorted out fairly.  Mrs Mullan agreed to an extension of the times within the Grievance Procedure to allow legal advice to be taken and Mr McMinn and Mrs Mullan agreed that the grievance only relates to the 331/3% as opposed to the 25% bonus payments at present.”

	On 8 April 2008 Mr McMinn wrote to Mrs Mullan, the Union Facilitator in the following terms:-

		“Dear Angela 

		Re:	BONUS PAYMENTS

	Further to the appeal hearing held on 16 January 2008 I have requested detailed legal advice on the various issues involved and have recently received a response from Council’s Solicitors.  It is now my intention to arrange an early meeting with the Chief Local Government Auditor to ascertain his views on permitted payments to employees.

		I am sorry for the delay in processing this matter but I am sure you will understand the need for Council to ensure it is proceeding in an appropriate [manner].

		I will write to you again when I have received a response from Mr Buchanan.

		Yours sincerely”

(vii)	The claimant who commenced employment with the respondent on 22 March 1999 signed a further claim alleging religious discrimination on 18 March 2008 and identified his legal representation therein.  The Tribunal accepts that the date of knowledge of 1 November 2007 specified by the claimant in his claim form was an approximate date as he indicated in that form.  It is common case that a collective grievance was lodged with the respondent on 11 December 2007 which included the claimant.  The respondent acknowledged that it had been responsible for delay in progressing the grievance and the respondent decided not to conclude the grievance process but to allow further Fair Employment Tribunal claims to take their course.  The claimant’s claim was presented to the Tribunal Office on 2 May 2008.

(viii)	The act complained of by the claimant is the respondent’s decision to settle the cases of the Catholic employees and not to pay the difference between the 25% and 331/3% bonus to him as was done in the cases of the Catholic claimants.  Mr Currie, who was responsible for supervising the council’s defence of these fresh claims, asserted in evidence that he did see certain of the draft responses before they were submitted to the Tribunal, and stated he was unaware that the response in the claimant’s case, at paragraph 5.2, includes the following:-

	“The applicant has compared himself to his Catholic counterparts who had their cases settled as it was accepted that there had been indirect discrimination based on their religious beliefs.  If the Catholics were indirectly discriminated against (this is accepted by the Council) then the Protestant employees could not also have been discriminated against based on their religion”.

The response was signed by the solicitors on behalf of the respondent.  These same solicitors had been engaged by the respondent in the 2007 settlement negotiations involving the Catholic claims.  The respondent’s counsel, at the outset of the hearing, sought to have part of the above paragraph amended by deleting the following words “as it was accepted that there had been indirect discrimination based on their religious beliefs” and “this is accepted by the Council”.  Mr Currie was responsible for collating the information necessary for the response documents to be completed and the Tribunal is not satisfied by his explanation that the respondent’s solicitors took it upon themselves to insert wording of such fundamental importance without the instructions and/or approval of the respondent.

	(ix)	Furthermore it was only after some effort, that the Tribunal ascertained from Mr Currie that he was aware of the negotiations leading up to the settlement of the claims in 2007 and that he was responsible for liaising with the respondent’s joint Executives and with Council members leading to the approval of the settlement recommended by the respondent’s legal advisors.  

	(x)	The claimant was initially employed as a general operative when he commenced employment in March 1999.  He subsequently became an HGV Driver on 3 January 2000.  It was in or about the year 2000 that he received a 25% bonus on top of his existing basic pay.  His initial comparator in this case was Eddie Sharkey a Catholic who received a 331/3% bonus.  However in the course of the hearing the claimant’s comparator was changed to Harry Corr, who, along with Gerry Herron, Brendan Fegan and Lyndsay McKinney, were paid the differential in the bonus rate from the commencement of their employment with the respondent as a result of the settlement in 2007.  There is no evidence before the Tribunal that the claimant is paid the same as Harry Corr, as stated in the respondent’s written submissions.  The claimant asserts that, having been part of a collective grievance submitted to the Council on 11 December 2007, the Council refused to uphold his grievance and refused to make any compensation payments to Protestant employees which he alleges constitutes in his case less favourable treatment on the ground of his religious belief.  The claimant also has an appeal outstanding in relation to the job evaluation process which had not been concluded in the course of the Tribunal hearing.  

	(xi)	The claimant’s previous claim which he had withdrawn some time prior to the settlement in 2007, involved an allegation of indirect discrimination only.  The claim before this Tribunal involved a claim of direct discrimination on the ground of religious belief arising directly from the settlement with Catholic claimants in October/November 2007.

RES JUDICATA

 5.	In this regard the Tribunal considered the written and oral submissions submitted by both counsel carefully together with Harvey on Industrial Relations and Employment Law (“Harvey”) at T1011 – 1025.  Basically there are three categories of estoppel as follows:-

		(i)	cause of action estoppel which prevents a party pursuing a cause of action which has been dealt with in earlier proceedings involving the same parties; 

(ii)	issue estoppel which prevents a party re-opening an issue which has been decided in earlier proceedings involving the same parties; and

(iii)	the Rule in Henderson  v  Henderson that if a party fails to rise an issue in proceedings which, if he had exercised due diligence, he could have raised, he will be estopped from raising that issue in the future.  

	Harvey at T1012 states as follows:-

			“The term “res judicata” is used to describe a defence, pleaded by way of estoppel, to an entire cause of action, the ground of it being that the whole of the legal rights and obligations of the parties in relation to that cause of action have already been determined as between the parties by an earlier final judgement of a court of competent jurisdiction; this is also known as “cause of action estoppel” … the term “issue estoppel”, on the other hand is used to describe a defence, likewise pleaded by way of estoppel, to a particular issue raised in legal proceedings, the basis of such defence also being that the same issue has already been judicially determined, finally and with certainty, in earlier proceedings between the same parties”.  

			The Tribunal is satisfied, on the facts as found, that the claimant did withdraw a claim of indirect religious discrimination but is satisfied that his current claim of direct discrimination does not satisfy the test in Henderson  v  Henderson in that it arises directly from the settlement arrived at with Catholic claimants in 2007 and is a claim of direct discrimination on the ground of religious belief.  The claimant is therefore not estopped from pursuing his claim before the Tribunal.  

AMENDMENT TO RESPONSE APPLICATION

 6.	The Tribunal has carefully considered the parties’ submissions in relation to the amendment application.  It also took into account the guidance given by Harvey at T356 – 370.  Although the application was made at the outset of the hearing the Tribunal is not satisfied that it should be allowed in light of the facts found in relation to the drafting and presentation of the response.  Moreover the fact that the respondent did not deny that the Catholic claimants were paid in full for the arrears and that there was no compromise in this regard is consistent with the wording used in its response.  

TIME ISSUES

 7.	(1)	Article 46 of the Order states that:-

		“46.-(1) Subject to paragraph (5) and to any regulations under Article 22 of the Employment (Northern Ireland) Order 2003, the Tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of-

	(a)	the end of the period of 3 months beginning with the day on which the complaint 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 6 months beginning with the day on which the act was done. …

 (5) A court or the Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(6)	 For the purposes of this Article- …

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

(c)	a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he had done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it were to be done.”

	(2)	The Tribunal, on the facts as found, is satisfied that the date of knowledge of the act complained of was not earlier than 1 November 2007.  However on the evidence before it, it is not satisfied that the date of knowledge was mid November 2007 as contended by counsel for the claimant.  Reference was also made in the course of the hearing to Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, the effect of which is, for the purposes of this case, that the grievance having been raised in writing within three months from the date of knowledge of the act complained of, the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.  Three months from 1 November 2007 ends on 1 February 2008.  This means that the further three months runs from 2 February 2008 until 2 May 2008 and the claim is therefore in time.  Even if the Tribunal is incorrect in this conclusion, it is satisfied on the basis of the facts as found, and in accordance with the relevant legislation and case law outlined in the submissions, that it is just and equitable to extend time in order for the Tribunal to have jurisdiction to consider the claimant’s claim.

THE REMAINING ISSUES

THE LAW AND BURDEN OF PROOF

 8.	(1)	The Order states that a person discriminates against another person on the ground of religious belief or political opinion … “(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons;”

		Article 3(3) states that:-

			“A comparison of the cases of persons of different religious belief … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

	(2)	Regulation 24 of the 2003 Fair Employment Regulations inserts a new Section 38A in the 1998 Order.  It deals with the burden of proof and provides:-

“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 claimant; 

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case maybe, is not to be treated as having committed that act”.

(3)	In the case of Igen Ltd (formerly Leeds Carers’ Guidance) and Others -v- Wong; Chamberlain Solicitors -v- Emokpae; Brunel University –v- Webster [2005] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance also applies to cases of discrimination on the grounds of religion/political opinion and states as follows:-

	(i)	Pursuant to Section 63A of the 1975 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 employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant.  These are referred to below as ‘such facts’.

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

(iii)	It is important to bear in mind in deciding whether the claimant has provided such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such 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’.

(iv)	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.

(v)	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 where inferences of secondary facts could be drawn from them.

(vi)	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.

(vii)	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

(viii)	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.

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

(x)	It is then for the employer to prove that they did not commit, or as the case may be, is not to be treated as having committed, that act.

(xi)	To discharge that burden it is necessary for the employer 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.

(xii)	That requires a Tribunal to assess not merely whether the employer 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.

(xiii)	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 poof.  In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

	(4)	The Tribunal also considered the Northern Ireland Court of Appeal decision in McDonagh & Others -v- Hamilton Thom Trading as the Royal Hotel Dungannon (2007) NICA 3 together with the cases of Madarassy –v- Nomur International PLC (2007) IRLR 246 (“Madarassy”), Laing –v- Manchester City Council (2006) IRLR 748 EAT and Mohmed –v- Westcoast Trains Ltd (2006) UK EAT O682053008.  It is clear from those authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57 -

“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

‘Could conclude’ in s.63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory ‘absence of inadequate explanation’ at this stage …, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by S.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment”.

	(5)	The Tribunal also received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41, which read as follows:-

	“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

		(1)  In every case the tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

		(2)  If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

			(3)  As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:

		‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

		If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

			(4)  The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:
	
			‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

		Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

			(5)  It is not necessary in every case for a tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

			(6)  It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.

			(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated.  The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter)  v  Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party.  Lord Hoffmann summarised the position as follows (paragraphs 36-37):

			’36.  The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”.  The meaning of these apparently simple words was considered by the House in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.  Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:

			(1)  The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.  

			(2)  The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

			(3)  The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143.  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

		37.  It is probably uncommon to find a real person who qualifies … as a statutory comparator.  Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life.  At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed.  In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator.  If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

	The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator.  This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was.  Accordingly:

	‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
	
	This approach is also consistent with the proposition in point (5) above.  The construction of the statutory comparator has to be identified at the first stage of the Igen principles.  But it may not be necessary to engage with the first stage at all”.

	(5)	Chitty on Contracts (Volume 1) General Principles, at 18-003 states:-

		“The common law doctrine of privy of contract means that a contract cannot (as a general rule) confer rights or impose obligations arising under it or any person except the parties to it”.  

(6)     The claimant did not rely on any of the provisions of the Contracts (Rights of   Third Parties) Act 1999.  The claimant’s case (as articulated by the claimant’s representative on 5 June 2009), was that he was not relying on the private contract entered into by Catholic employees and the respondent when their cases were settled in or about October/November 2007.  The claimant relied instead on alleged unfair and inequitable treatment subsequent to the private contracts.  When compared to the payments made to the Catholic employees whose cases were settled, the Protestant claimants (including the claimant) were directly discriminated against on the ground of their religion by not receiving a similar backdated payment.  The claimant’s representative, however conceded that the alleged direct discrimination emanated from the settlement with the Catholic employees.  

(7)	The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

			“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

		Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-

	“The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention.  Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention.  However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent.  The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures.  That is a strong factor tending to point away from a sexually discriminatory intent.  Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”.

SUBMISSIONS

 8.	The Tribunal carefully considered the written submissions from both parties attached to this decision together with the oral submissions heard on 23 March 2009 and 5 June 2009.  The parties’ representatives acknowledged the reasons behind the Tribunal requesting these further submissions and also acknowledged that it was not possible for the Tribunal to arrive at a decision without further submissions.

CONCLUSIONS

9.	Having considered the evidence together with the submissions and relevant authorities and applied the principles of law to the findings of fact the Tribunal concludes as follows:-

(1)	The Tribunal is satisfied that the settlement made with Catholic claimants in 2007, has had the effect of producing an unsatisfactory and unequitable state of affairs for certain employees, Protestant and Catholic alike.

(2)	In the particular circumstances of this case the Tribunal is satisfied that the Doctrine of Privity of Contract pertaining to the settlement in October/ November 2007 with certain Catholic claimants, should not defeat the intention of the Order in affording the claimant the right to make a claim to the Fair Employment Tribunal.

(3)	Having regard to the whole context of the surrounding evidence, including the fact that both Catholic and Protestant employees were affected by the settlement in 2007 in similar practical ways, the Tribunal is not satisfied on the evidence available and the findings of fact, that it could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination against the claimant on the ground of his religious belief.  In any event, it is not satisfied, on the evidence, that the relevant circumstances in his case were the same or not materially different to his named comparator, Harry Corr.

(4)	The Tribunal, whilst having sympathy for the claimant in the circumstances in which he finds himself, concludes that he has not proved facts from which conclusions could be drawn that he was treated less favourably on the ground of his religious belief, and his claim is therefore dismissed.

Chairman:

Date: 		9-12 March 2009; 23 March & 5 June 2009, Belfast

Date decision recorded in register and issued to parties: