Dunbar v Department of Agriculture and ... [2012] NIFET 00029

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 29/10 FET

161/10 FET

CLAIMANT: William John Dunbar

RESPONDENT: Department of Agriculture and Rural Development

DECISION

The unanimous decision of the Tribunal is that the claimant’s claims of discrimination on the grounds of his religious belief and/or political opinion, victimisation, and harassment be dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Hall

Mrs M Heaney

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Worthingtons, Solicitors.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

1. By a claim form presented to the Fair Employment Tribunal on 22 February 2010 (Case Reference No: 29/10 FET) the claimant, Mr Dunbar, who is a Protestant, alleged that he had been discriminated against on the ground of his religious belief and/or political opinion by the respondent Department (‘DARD‘).

By a second claim presented on 25 November 2010 (Case Reference No: 161/10 FET) the claimant alleged further acts of discrimination, and also made an allegation of victimisation. Although neither claim form explicitly pleaded a case of harassment, the substantive hearing also proceeded on the basis of such a claim. The parties agreed that this proposed amendment placed a different label on facts already pleaded, and that no new factual allegations were being raised by the claimant.

2. The case, as it ran before the Tribunal, was a factual dispute with the respondent’s witnesses denying the claimant’s account of various incidents which he said took place. In general, we accepted the evidence of the respondent’s witnesses where their evidence conflicted with that of the claimant. That is not to say we were impressed by all the respondent’s witnesses and while the claimant was undoubtedly a difficult employee to deal with, the undeniable breakdown in his working relationships with his fellow employees and local managers was allowed to spiral out of control, giving rise to grievances and counter-grievances to such an extent that managers made complaints against him, a subordinate employee.

The situation was not helped by DARD's Byzantine grievance procedures. Some grievances were dealt with locally in Coleraine, others were referred to DARD Headquarters in Belfast and in turn outsourced to HR Connect, which performs the personnel function within the Northern Ireland Civil Service. This inevitably led to delay, which no doubt contributed to the matter becoming an ongoing festering sore.

3. Before setting out our findings of fact, we record the witnesses from whom we heard evidence:-

(i) The claimant gave evidence. His wife, Mrs Heather Dunbar, Mr Jim Donley (a representative of the GMB Union), and Mr Peter Macklin (a representative of the same union) gave evidence on his behalf.

(ii) The following gave evidence for the respondent:-

Ms Heather Gould (Deputy Principal, DARD, and Departmental Equal Opportunities Officer);

Ms Lorraine McWilliams (Area Engineer, Rivers Agency Coleraine and overall manager of the Coleraine Depot);

Kevin Clyde (District Foreman, Coleraine);

David McCrudden (Supervisor, Coleraine);

Patrick McMullan (industrial employee, Coleraine);

Walter Morhall (Deputy Area Engineer, Coleraine);

Sean Loy (Rivers Agency Health & Safety Adviser); and

Jackie Harte (Staff Officer, DARD, Omagh, with responsibility for various matters including HR functions in the Western Area).

(iii) We were also presented with documentary evidence which was voluminous – in fact nine volumes in total – and something about which we felt we had to express our extreme displeasure at the hearing. It does seem to us that the situation was made worse, rather than better, by the fact that we were referred to comparatively little of this documentation in the course of the hearing. We also deprecated the fact that so-called annexes were attached to witness statements. By way of an example, which surely constituted the apotheosis of absurdity, the annexes to one statement ran to 62B in numerical order. How much any of this is proportionate or consistent with the overriding objective must be open to doubt. However, to their credit, respective counsel took on board our criticisms, proceeded to present their lay clients’ cases concisely and expeditiously, and co-operated in excising much material that it was not necessary for the Tribunal to consider. We are grateful to them for their assistance in this respect, commend the example they ultimately set, and hope that it will be followed by others in the future.

4. We find the following facts:-

(i) The claimant, Mr Dunbar, is an industrial employee of the respondent. He has worked for DARD from 6 June 2002. In his witness statement he said that “[s]ince staring my job I have loved my work and have worked hard”, and generally it appears that managers had no major criticisms of the way he performed the actual duties of his post.

(ii) Things appeared to have started to go wrong around May 2009 when he had a disagreement with his foreman, Mr Kevin Clyde, about time off for an emergency dental appointment, or to be more accurate, about how such time off was recorded as absence from work. Matters largely went downhill after that, and difficulties in the workplace persisted until the summer of the following year. However, during that period, the claimant had two periods of sick leave, from July to September 2009 and January to May 2010.

(iii) It is also instructive to record at this juncture that a large part of the claimant’s case was predicated on the basis of discriminatory treatment by Mr Clyde, who the claimant stated was a Roman Catholic. In fact this was not the case. Mr Clyde is a Protestant, and a practising member of the Church of Ireland. There does not seem to have been any history of ill-feeling between the claimant and Mr Clyde over the years. However, of significance is the fact that in the period before the instances of alleged harassment occurred, Mr Clyde had provided photographic evidence which effectively undermined a pending civil action which the claimant had brought against the respondent and which arose out of, and in connexion with, the course of his employment.

(iv) It is also significant that at the relevant time the claimant was going through a period of turmoil and intense personal stress in his private life. His absences from work, to which we make reference below, were caused by factors such as anxiety, stress, and depression. While, of course, such illnesses could have been the result of mistreatment and harassment at work, we are satisfied from the extensive medical evidence, much of which is of a confidential nature, and which we therefore do not set out, that the claimant had suffered from extensive ongoing mental health problems over the years, and we find that his suggestions that this was not the case to be contrary to that medical evidence.

(v) The incident to which reference has been made at sub-paragraph (i) took place or on around 14 May 2009. The claimant’s request for time off to attend the appointment was refused by Mr Clyde, who said it would be treated as a half-day’s sick leave. It was the claimant’s perception that Roman Catholic workers were being treated differently in respect of time-off for such medical appointments and emergencies, in that they were taking time off and Mr Clyde and other managers were turning a blind-eye to it. In the course of the hearing this allegation was somewhat expanded in that the claimant alleged that certain workers, particularly David McCrudden, a Roman Catholic, was taking time off to go to the bookmakers with the knowledge of, and without any sanction by, Mr Clyde. It has to be said there is no evidence which supports this. Notwithstanding this, Mr Clyde made enquiries of Mr McCrudden when the matter was brought to his attention.

(vi) We are satisfied, however, that it was the practice in the Coleraine Depot when someone needed time-off to attend emergency medical or dental appointments to record the absence from work as ‘part-day sick’. This was a device to account for employee’s time. It was not a wholly inaccurate description of the situation, but an element of fiction was present in the sense that the absence did not go on his employee’s sick leave record (something which was a concern to the claimant at the time).

This was explained to the claimant by his supervisor, Mr Danny McFerran, and by Mr Clyde. However, he raised a grievance against the latter and this was dealt with by Mr Morhall on 20 May 2009 when he returned from a period of annual leave. Mr Morhall again explained that an absence of this nature did not count towards sick leave absence, and that it applied to all staff in the organisation right up to senior management level. The claimant accepted Mr Morhall’s explanation and said he no longer had a grievance with Mr Clyde. Mr Morhall drew up a letter effectively minuting the meeting, recording that Mr Dunbar’s grievance against Mr Clyde had been resolved and sent it to the former. The claimant returned the letter unsigned, saying that he would not sign it, on the advice of his trade union representative, but that he would send in his own letter. He subsequently did this, withdrawing his complaint against Mr Clyde.

What we find significant here is not the claimant’s refusal to sign Mr Morhall’s minute (apparently done on union advice) and then submitting his own letter to the same effect, but the fact that this matter, which we are satisfied had been genuinely resolved, was resurrected as part of his claim.

5.	(i)	Also in May 2009, rumours began circulating in the depot that the claimant was keeping a book in which he was recording details of his fellow employees. The claimant certainly did nothing to dispel these rumours, indeed there is some suggestion he fuelled them himself. He was in fact keeping notes, but was doing so, on the advice of a union official, for the legitimate and unobjectionable purpose of recording what he perceived as discrimination against, and harassment, of himself. However, this was at a time of heightened sectarian tension in the Coleraine area and some of his fellow workers who had served as part-time members of the security forces felt intimidated. This led to a series of meetings on 26 and 28 May 2009 between management and the claimant on the one hand, management and a group of his fellow employees on the other hand. At a meeting with the latter on 28 May 2009 (there had been a series of informal meetings on 26 May 2009) Mr Morhall informed them that he consulted with HR and DARD Headquarters, and had been advised that the complaints raised were more related to Dignity at Work than discipline. He told them that they might wish to speak to an Harassment Contact Officer, provided each of them with a list of such officers and a folder containing the Dignity at Work Handbook, and told them an official phone line in a private room on the premises would be available if they wished to use it.

	(ii)	Management clearly found itself in a difficult position in those circumstances, and the matter required sensitive handling. To what extent this was achieved is debatable. While satisfied that the claimant was not discriminated against on the ground of his religion (Mr Morhall, like him, is a Protestant) or victimised, this incident added to his isolation, and the impression may have been given that management was encouraging other industrial employees to act against the claimant.

	(iii)	In relation to the meeting on 28 May 2009, the claimant alleged that workers who were Protestants left it in disgust at the way he was being treated. We do not accept this. Rather we accept the evidence to the contrary of Mr Patrick McMullan, a Protestant co-worker who stated that neither he nor any other Protestant worker walked out of the meeting. Mr McMullan is someone who had never experienced any difficulty working with the claimant.

	(iv)	Mr McMullan, who had worked for the Rivers Agency for 40 years, also stated that there were no religious difficulties in the workplace. As against that, at a meeting with Equal Opportunities staff on 29 May 2009, Mr Morhall did refer to the possibility of ‘some underlying sectarian reason’ for the difficulties. However, this seems to have been speculation on his part. He went on to say that most of the time things were alright but that sometimes sectarianism would raise its head. None of the staff who contacted Equal Opportunities mentioned sectarianism as a factor in the equation.

6. A further allegation made by the claimant is that he was made to wash vans, tractors and lorries in the yard because he had made complaints. This occurred on two occasions in May and in July 2009. The first of the occasions in May predates his initial complaints. On the second occasion in May 2009 he was made to wash vehicle while other colleagues were at the meetings regarding the notebook he was keeping. We have already expressed our reservations about how that matter was handled. However, we are satisfied that washing vehicles was part of the claimant’s duties as an industrial grade labourer. We find that it was the practice to allocate tasks of this nature to workmen at times when there were no other jobs for them to do, for example where other members of the squad were unavailable through leave or attendance at meetings. On this occasion had the claimant not been brought to the yard to wash vehicles, he would have had to be left alone on site.

7. Also, at the end of July 2009, the claimant alleged he was the subject of discrimination and harassment when his work at grass cutting was criticised. He had been instructed to cut the grass in the grounds of the depot. Mr Morhall and Mr Clyde both gave evidence that the grass was at the front of the building and that if not properly cut it would have given a bad impression for visitors. According to the claimant the grass was not at the front of, or near a prominent part of the building. We prefer the evidence of Mr Morhall and Mr Clyde. We are satisfied that the claimant’s work on this occasion was not performed to an acceptable standard, and that this was pointed out to him. It was reasonable for his managers to do this, and we are satisfied that any other employee in these circumstances would have been treated in exactly the same way. We do not accept that the claimant was deliberately singled out.

8. The claimant, in his statement, says that around this time he believed that Kevin Clyde was telling lies about him and trying to turn everyone against him. However, this allegation is very general and unspecific in nature and we can find no evidence to support it.

9.	(i)	The claimant also made allegations on two occasions against David McCrudden, a work colleague. Although separated in time by a period of almost five months, it is convenient to deal with them together. On the first occasion, towards the end of July 2009, the claimant alleged that Mr McCrudden acted in an intimidatory fashion towards him in the canteen, by giving him a ‘dirty look’ and proceeding to bang the canteen door. On the second occasion, in December 2009, he alleges that he was threatened by Mr McCrudden who allegedly said that he would have the claimant’s windows put in.

	(ii)	Mr McCrudden denies these allegations, but we do not attach any great significance to that as we did not find him a particularly impressive witness. However, there is other evidence which supports his denials. In relation to the incident in July 2009 the door which was alleged banged could not have been banged, since it had large restrictor hinges designed to ensure that it did not do so. In relation to the December 2009 incident, managers acted promptly in interviewing witnesses who were present and who supported Mr McCrudden’s denials. The police were called to the depot by the claimant on the latter occasion, and he accompanied them to Coleraine Police Station. They did not take any further action in respect of the matter, though we attached limited significance to this.

10.	(i)	In the period from 30 July to 27 September 2009 the claimant was off work on sick leave. He attended two meetings with management in this period, on 24 and 28 August 2009. At the meeting on 24 August 2009, which was with Mr Porter, the Head of Rivers Agency, he made allegations of religious discrimination. He had previously made such suggestions at a meeting on 28 July 2009. The allegations of religious discrimination included allegations against Mr Clyde, who is a Protestant. Mr Clyde seems to us to have done his best, at this stage, to clarify many of the issues which were raised by the claimant.

	(ii)	The claimant returned to work on 28 September 2009, but unfortunately the situation did not improve, and he made further allegations of harassment against his colleagues. In October 2009 the claimant alleged that he was bullied and harassed in relation to power washer training. It seems that such training had recently been given and Mr Clyde believed that the claimant had received it. However, we accept the evidence of Mr Clyde that the claimant on this occasion was aggressive towards him, was loud, and used bad language. It seems to us that an everyday event in the workplace became a matter of controversy and dispute because the claimant unjustifiably attached a significance to it which it did not have and elevated it into another example of what he perceived to be harassment. Subsequently on 13 November 2009 the claimant received an informal warning in relation to this incident.

	(iii)	In November 2009 the claimant also alleged that he was not being given overtime in respect of call-outs and similar situations by Mr Clyde. However, Mr Clyde explained that the procedure in relation to out-of-hours calls is that he makes initial contact with the supervisors on the squad as it is they who have access to the transport and equipment required. It is only after he had done this that he might personally telephone squad members.

	(iv)	He also alleged that in early November 2009 he was denied the use of a works van to attend a medical appointment. Mr Clyde allegedly told him to make his own way there. We are satisfied that the reason he was denied the use of the van was because Occupational Health had advised that he should not carry out driving duties. We also accept Mr Clyde’s denials that on this occasion he had spoken to the claimant in an inappropriate way.

	(v)	In a further incident in November 2009 the claimant alleged that Mr Clyde failed to sanction other employees for not wearing proper work attire. On the occasion in question, Mr McFerran, a Roman Catholic, was wearing trainers instead of boots. He said that he had changed footwear because his boots were soaking wet. This occurred at the end of a shift. Mr Clyde spoke to him about the matter but otherwise took no further action. We are satisfied that he would have treated the claimant in exactly the same way in similar circumstances.

	(vi)	In December 2009 the claimant alleged that Mr Morhall, the Deputy Engineer at Coleraine, deliberately delayed processing a travel expenses claim form. This had been submitted on 21 December 2009 and was not paid until 10 February 2010. However, we are satisfied that Mr Morhall dealt promptly with this matter and with a query that arose in relation to it. Insofar as there was any delay (we have no evidence before us in relation to the average time for processing travel expenses) it may have been caused by a change in the arrangements for processing such claims. Responsibility for dealing with claims from industrial staff had passed from DARD’s Finance Department to Accounts NI.

11.	(i)	The claimant was on a further period of sick leave from January 2010 to May 2010. He complained that he was told that he was not permitted to enter the work yard (where the office was situated) and this made it difficult for him to hand in his sick lines. A previous allegation of a similar nature had been made by him. The respondent was unable to investigate the matter as the claimant declined to co-operate.

	(ii)	On 21 April 2010 the claimant notified his employers that he was fit to return to work on a phased basis. This GP recommended a return to a different squad. This was considered by the respondent and on 28 April 2010 he was offered a return to work in Limavady to accommodate the medical recommendation. However, this caused difficulty for the claimant who lived in Ballymoney. It increased his travelling distance considerably, and, for childcare reasons, he had difficulty with the pick-up point for work. Ultimately, on 17 May 2010, following a meeting between Mr Morhall and his union representative, he agreed to return to his old squad in the Coleraine area. Notwithstanding that the move to Limavady was unsatisfactory from the claimant’s point of view and did not work out, we are satisfied that it was a genuine attempt by management to accommodate him in the light of the medical advice from his GP. We reject any suggestion that the move to Limavady was offered on a ’take it or leave it’ basis. Indeed, the meeting with Mr Morhall shows that the respondent was prepared to re-consider it.

12.	(i)	The relevant law is set out in the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended by the Fair Employment and Treatment (Amendments) Regulations (Northern Ireland) 2003. These provisions make unlawful direct discrimination (Article 3(2)), harassment (Article 3A), and victimisation (Article 3(4)). We do not set them out in as much detail as we would do usually because of the highly fact specific nature of this case.

	(ii)	Regulation 24 of the 2003 Fair Employment Regulations inserts a new Article 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 complaint;

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.”

13.	(i)	In *Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2006] 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. It is not in dispute that this guidance also applies to cases of religious discrimination. This guidance is now set out at an Annex to the judgment in the Igen* case, op.cit 269,270. We therefore do not set it out again, but we have taken it fully into account.

	(ii)	In short, the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The Tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness. If the claimant does prove facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (in this case, religious belief). The Tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that religious belief was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a Tribunal will expect cogent evidence to discharge that burden of proof.

	(iii)	Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the Tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See : *Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International PLC [2007] IRLR 247;* and Arthur v Northern Ireland Housing Executive and Another [2007] NICA 25.)

	(iv)	These cases were considered more recently by HM Court of Appeal in Northern Ireland in *Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8* and *Nelson v Newry & Mourne District Council [2009] NICA 24*. In the former Coughlin LJ, at Paragraph 16 of the judgment, emphasised the need for Tribunals hearing cases of this nature to keep firmly in mind the fact that such claims are founded upon an allegation of discrimination. Similar comments, re-emphasising this, were made by Girvan LJ, at Paragraph 24 of the judgment in the latter case.

14. We now proceed to apply the law to the facts as we have found them.

Clearly in this case there was ongoing friction between the claimant and his fellow employees. It was characterised by allegations and counter-allegations, leading to many of the various protagonists lodging grievances against each other. The claimant had clearly an axe to grind where Mr Clyde was concerned. It seems to us, however, that it is improbable that Mr Clyde, a Protestant, would discriminate against a co-religionist on religious grounds. Other allegations made by the claimant are unsubstantiated, exaggerated or just not credible, and in general we accept the evidence of the respondent’s witnesses who have denied them, or provided explanations for what the claimant unfortunately perceived as discrimination or harassment.

We see no evidence of victimisation, nor are there any facts from which we can draw an inference of such conduct. The claimant was a difficult person to manage, and had unfortunately lost the sympathy of work colleagues. He came to see what were proper attempts to manage him as victimisation.

15. We dismiss the claimant’s claims.

Chairman:

Date and place of hearing: 9 – 13 May 2011;

17 – 18 May 2011; and

1 June 2011, Belfast

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
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Fair Employment Tribunal Northern Ireland Decisions