FAIR EMPLOYMENT TRIBUNAL

CASE REFS:  62/15FET
2328/15

CLAIMANT:		Sarah McCrossan

RESPONDENT:		Department for Social Development

DECISION

The decision of the Tribunal is as follows:

(1) 	The claimant suffered unlawful discrimination on grounds of political opinion and is entitled to compensation for injury to feelings;

(2)  	The claim of detriment on grounds of Trade Union activities is dismissed.

Constitution of Tribunal:

Employment Judge Murray	
Mrs F Cummins
Mr C McIlwaine 

Appearances:

The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by McCartan Turkington and Breen Solicitors.

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

THE CLAIM

1.	The claimant's claim was that she suffered direct discrimination when she was unlawfully subjected to detriment on grounds of political opinion under the Fair Employment and Treatment (NI) Order (as amended) (referred to below as FETO).  The claimant further claimed that she was unlawfully subjected to detriment on grounds of engagement in trade union activities under the Employment Rights (NI) Order 1996 (referred to below as ERO).

2.	The respondent contended that the claimant was legitimately disciplined for breach of the relevant Northern Ireland Civil Service (NICS) policy and that the disciplinary action and penalty decisions, were not taken on grounds of political opinion nor on grounds of trade union activities.

THE ISSUES

3.	The issues in this case were therefore as follows:

(1)	Whether the claimant was subjected to detriment on grounds of political opinion;
(2)	Whether any such detriment amounted to less favourable treatment when compared to a hypothetical comparator;
(3)	Whether the Facebook postings were private and therefore outside the scope of the relevant NICS policy;
(4)	Whether the claimant was engaged in trade union activities at the relevant time;
(5)	Whether any detriment suffered by her was on grounds of her having been engaged in trade union activity;  
(6)	If the claimant is successful in either or both of the claims the level of damages to be awarded.

SOURCES OF EVIDENCE

4.	The claimant and Mr K Joiner, trade union official, gave written and oral evidence for the claimant’s side.

5	For the respondent, we had written and oral evidence from: 

•	Tracey McCloskey, the Grade 7 in the claimant’s division of the Department; 

•	Maura Pettigrew, a Staff Officer in the Department’s Conduct and Discipline Division of the Human Resources (HR) Department who dealt with the appeal; 

•	Mark McCord, an EOI in the HR Conduct and Discipline division who dealt with the disciplinary decision; 

•	Gloria Brush, a Staff Officer in the claimant’s Department who dealt with the fact-finding interview; 

•	Terry McKeown, the Grade 7 in the Conduct and Discipline Division of the HR division of the Department.  

6.	The Tribunal had regard to the documentation to which it was referred from the bundle of documents which ran to approximately 360 pages.  In that bundle of documents 150 related to copies of policies and of those policy documents we were referred to two paragraphs amounting to half a page.  It is most unfortunate that the bundle of documents was almost double the size that it actually needed to be.

THE LAW

7.	The parties referred us to the following list of authorities which are listed below as they appeared in their bundles of authorities.  Not all of the cases were referred to in detail by either side.

The Claimant’s authorities

(1)	McKay v Northern Ireland Public Service Alliance [1994] NI 103
(2)	Gill v Northern Ireland Council for Ethnic Minorities [2001] NIJB 299
(3)	Ryder v Northern Ireland Policing Board [2008] NIJB 252
(4)	Owen & Briggs v James [1982] ICR 618
(5)	In Re Northern Ireland Electricity Service’s Application [1987] NI 271
(6)	Nagarajan v London Regional Transport [2000] 1 AC 501
(7)	R (E) v Governing Body of JFS [2010] 2 AC 728
(8)	Chant v Aquaboats Limited [1978] 3 ALL ER 102 (EAT)
(9)	Dixon and Shaw v West Ella Developments Ltd [1978] IRLR 151
(10)	The Marley Tile Co. Ltd v Shaw [1980] IRLR 25
(11)	British Airways Engine Overhaul Ltd v Francis [1981] IRLR 9
(12)	F M Lyon v St. James Press [1976] IRLR 215
(13)	Bass Taverns Ltd v Burgess [1995] IRLR 596

The respondent’s authorities

Political Opinion

(1)	McConkey & Ors -v- The Simon Community [2009] UKHL 24
(2)	Ryder v NIPB [2007] NICA 43

Direct Discrimination

(3)	Power v Greater Manchester Police Authority UKEAT/0087/10/JOJ
(4)	McFarlane v Relate Avon Ltd [2010] IRLR 196 EAT
(5)	Drew v Walsall Healthcare NHS Trust [2013] EqLR 1051 EAT

Test/Burden

(6)	Curley v Chief Constable for Police Service of Northern Ireland [2009] 
NICA 8.
(7)	Nelson v Newry and Mourne District Council [2009] NICA 24
(8)	McDonagh v Royal Hotel Dungannon [2007] NICA 3
(9)	Madarassy v Nomura International Plc [2007] IRLR 246
(10)	Network Rail Infrastructure Limited v Griffiths-Henry [2006] IRLR 865
(11)	Igen v Wong [2005] 3 ALL ER 812
(12)	Qureshi-v-Victoria University of Manchester EAT [2001] ICR 863
(13)	O’Neill v Gov of St Thomas More RC School [1996] IRLR 372 EAT

Comparator/Less Favourable Treatment

(14)	CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439
(15)	R v JFS [2009] UKSC 15
(16)	London Borough of Islington v Ladele [2009] IRLR 154 EAT

(17)	Shamoon v RUC HL [2003] UKHL 11
(18)	Nagarajan v LRT H/L [1999] IRLR 572

Trade Union Activities

(19)	Bass Taverns Ltd v Burgess [1995] IRLR 596
(20)	The Marley Tile Co Ltd v Shaw [1980] 85
(21)	Drew v St Edmondsbury BC [1980] 85
(22)	Chant v Aquaboats Limited [1978] 3 ALL ER 102
(23)	Lyon & Sherk v St James Press Limited [1976] IRLR 215

Social Media

(24)	Game Retail Ltd v Laws UKEAT/0188/14
(25)	Martin & Ors -v- Giambrone, P/A Giambrone & Law, Solicitors and European Lawyers [2013] NIQB 48
(26)	Smith v Trafford Housing Trust [2012] EWHC 3221
(27)	Crisp v Apple Retail (UK) Ltd (ET/1500258/11)

Summary of the relevant law

8.	We summarise below the relevant principles and highlight extracts from the case law which are relevant in light of our factual findings.  

9.	The Fair Employment and Treatment (NI) Order 1998 (FETO) provides at 
Article 3(2)(a) that it is unlawful to discriminate against an employee on grounds of political opinion stating as follows:

	“(2)	A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of a provision of this Order, other than a provision to which paragraph (2A) applied if ‒

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

Political opinion

10.	In the Matter of an Application by the Northern Ireland Electricity Service [1987] NI 271, Nicholson J said at 285H:-

	“ ... the words “on the ground of religious belief or political opinion” are capable in their own ordinary meaning of covering any cause or reason for an action based on religious belief or political opinion, whether it is the belief or opinion of the person affected by the action or of the person doing the act or of another person.”  (emphasis added).

11.	The case of McKay v Northern Ireland Public Service Alliance [1994] NI 103 at 117 dealt with the issue of the meaning of the term “political opinion”.  Kelly LJ stated:-

	“There can be no difficulty as to the meaning of the word ‘opinion’ and none as to the word ‘political’.  When they come together in the phrase ‘political opinion’ it means, in broad terms, and without attempting any exhaustive definition, an opinion relation to the policy of government and matters touching the government of the state.”

“On grounds of”

12.	The question of whether treatment is on the ground of a protected characteristic was considered in the case of Nagarajan v London Regional Transport [2000] 1 AC 501, a race discrimination case, Lord Nicholls at 511A-D stated:

	“This is the crucial question.  Was it on grounds of race?  Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?  Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator.  Treatment, favourable or unfavourable, is a consequence which follows from a decision.  Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming.  Usually the grounds of the decision will have to be deducted, or inferred, from the surrounding circumstances.

	The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so?  The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred.  For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant.  Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds.  In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign.  For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant’s life a misery.  If racial grounds were the reason for the less favourable treatment, direct discrimination under section 1(l)(a) is established”.

13.	The three approaches outlined by the Supreme Court in R(E) v Governing Body of JFS 2010 (and approved in Simpson v Castlereagh Borough Council [2014] NICA 28) have been described as: “the reason why test”, the “but for test” and the “inherently discriminatory test”.  

14.      Paragraphs 13 and 78 in the JFS case endorse the approach outlined in Nagarajan and state as follows:

	“13.	In the phrase “grounds for discrimination”, the word “grounds” is ambiguous.  It can mean the motive for taking the decision or the factual criteria applied by the discriminator in reaching his decision.  In the context of the 1976 Act “grounds” has the latter meaning.  In deciding what were the grounds for discrimination it is necessary to address simply the question of the factual criteria that determined the decision made by the discriminator.  This approach has been well established by high authority...
	
	78.	Direct discrimination can arise in one of two ways: because a decision or action or action was taken on a ground which was, however worthy or benign the motive, inherently racial within the meaning of section 1(1)(a), or because it was taken or undertaken for a reason which  was subjectively racial: R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155, 1194 c-d per Lord Goff of Chievely, James v Eastleigh Borough Council [1990] 2 AC 751, 772 b-g per Lord Goff, and Nagarajan v London Regional Transport [2000] 1 AC 501, 511 a, per Lord Nicholls of Birkenhead, and 520 h-521b, per Lord Steyn.  In the Birmingham case [1989] AC 1155, girls were required to achieve a higher standard than boys for grammar school entry because of a disparity in the number of grammar school places available for boys and girls.

“Whatever may have been the intention or motive of the council, nevertheless it [was] because of their sex that the girls in question receive[d] less favourable treatment than the boys, and so [were] the subject of discrimination”: per Lord Goff, at p 1194.

It was for the council to find some way of avoiding this, eg, by balancing the places available.  In the James case [1990] 2 AC 751 the motive for adopting as the test for free entry to the swimming pool to people who had reached state pension age was no doubt benign (it was probably because they were perceived as more likely to be needy).  But being of pensionable age is not to be equated with ceasing to work or being in receipt of a pension, and the difference between the ages (65 and 60 respectively) at which men and women became of pensionable age made the test inherently discriminatory on the ground of sex.  In the Nagarajan case [2000] 1 AC 501, 511 a [sic] Lord Nicholls noted that “Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator” ...”

15.	It is stated in JFS at paragraph 16 as follows:

		“This “but for” test was another way of identifying the factual criterion that was applied by the council as the basis for their discrimination, but it is not one that I find helpful.  It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision”

16.	The Supreme Court stated further in JFS as follows at paragraph 116:

		“... the need to recognise the distinction between, on the one hand, the grounds for the decision (what was the basis on which it was taken) and on the other, what motivated the decision-maker to make that decision”.

17.	In the JFS case the reason for the impugned decision was very clear, in that, it  related to the nature of the claimant’s Jewish origins but the decision-makers raised arguments about their motivations for doing so.  As outlined by the Supreme Court, the issue is one of causation rather than motivation so the Tribunal must examine the reason why the adverse treatment occurred by assessing all the circumstances and any inferences it is appropriate to draw from the facts.

Burden of Proof

18.	Article 38A of FETO 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 –

(1)	has committed an act of unlawful discrimination or unlawful harassment against the complainant or

(2)	is by virtue of Article 35 or 36 to be treated as having committed 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 treated as having committed that act.”

19.	The Court of Appeal, in the case of Igen  v  Wong [2005] IRLR 258 considered provisions equivalent to Article 38A of FETO, in a sex discrimination case, and approved, with minor amendment, guidelines set out in the earlier decision of Barton  v  Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332.

20.	In brief, it is for the claimant to prove facts from which a tribunal could conclude that an act of unlawful discrimination occurred.  If the claimant does so the burden shifts to the respondent to prove that any detrimental treatment was in not on prohibited grounds.  These are the two stages referred to in the cases cited below.  The claimant's task has been described as a requirement to prove a difference in treatment (ie a detriment), a difference in status, and “something more” before the burden shifts to the respondent for it to show that the impugned acts are untainted by unlawful discrimination.

21.	In the case of Network Rail Infrastructure Limited  v  Griffiths-Henry [2006] IRLR 865, the Employment Appeal Tribunal held that:-

“A Tribunal at the second stage is simply concerned with the reason why the employer acted as he did.  The burden imposed on the employer will depend on the strength of the prima facie case ….

It would be inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable.  Unfairness is not itself sufficient to establish discrimination.”

22.	The Court of Appeal in the case of Nelson  v  Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof.  The Court stated:

“22	 The Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves 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.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  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 be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 23	In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.  

24	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 an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [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.”

23.	In Laing  v  Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 73- 76:-

“ (73)	No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure  v  Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.
...

 (75)	The focus of the Tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a Tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

(76)	Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling tribunals in every case to go through each stage.”

Comparator

24.	It is for the claimant to show that the hypothetical comparator would have been treated more favourably.  The circumstances of that comparator must not be materially different from those of the claimant.  The Tribunal must be satisfied that the reason for the less favourable treatment was due to the relevant protected characteristic.

25.	Harvey at Division L at paragraphs 246 onwards, discusses the issue of comparators.  Following an analysis of  the import of the decisions in the Eweida, Drew and Ladele cases Harvey states as follows under the heading: “The use of comparators and the ‘reason why’ test” :
“[259]
	As already observed, it will sometimes be helpful to approach a situation where direct discrimination is said to exist by adopting a two-stage test: first, to ask whether there was less favourable treatment, and secondly to ask whether it was on the grounds of sex. In other words, to ask 'the reason why' question after less favourable treatment has been proved to exist. In simple cases where a flesh and blood comparator in the workforce can be identified this will often be a sensible approach. But it will not always be the correct approach. It was pointed out by Lord Nicholls in Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] IRLR 285, [2003] ICR 337 (at paras 7–12) that sometimes it will not be possible to decide whether there is less favourable treatment without deciding 'the reason why'. This is particularly likely to be so where a hypothetical comparator is being used. It will only be possible to say with any confidence that a hypothetical comparator would have been treated differently once it is known what the reason for the treatment of the complainant was. If the complainant was treated as they were on the ground of the relevant protected characteristic, then it is likely that a hypothetical comparator without that protected characteristic would have been treated differently. But that conclusion can only be reached once the basis for the treatment of the complainant has been established”.

Trade union detriment

26.	The right not to be subjected to detrimental treatment for taking part in Trade Union activities is contained within Article 73 of ERO the relevant parts of which provide:

“73(1)	A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of –

a)	preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so...”

27.	In the case of Chant v Aquaboats Limited [1978] 3 ALL ER 102 the EAT examined the meaning of the phrase: ‘activities of an independent trade union’.  Kilner Brown J stated:

“There is a dearth of authority to assist in the interpretation ...  There is no definition of “activities”.  It seems to us that this was deliberate parliamentary policy due to the probability that the word itself connotes a variety of possibilities varying with the circumstances of a particular case.  This means that to decide whether or not the reason for dismissal was involvement in activities of a trade union is very largely a question of fact”. (para 103)

28.	In the Marley Tile Co. Ltd v Shaw [1980] IRLR 85 Eveleigh LJ stated:

“I would not wish to say anything which would fetter the judgment of members of the Tribunal who are experienced in industrial matters when they come to their task of deciding whether or not such conduct amounts to trade union activity.  I think it is essentially a question of fact for them and I would not wish to encourage the advocate who seeks to discover a question of law wherever possible.”  (para 33).

29.	In trade union detriment cases the burden of proof operates in a different way to that in discrimination cases.  It is for the claimant to prove detriment and that she was engaged in trade union activities and if she proves those two points the burden shifts to the employer to show that any adverse treatment was not on grounds of trade union activities.  The key point in this case was whether the claimant’s activities constituted trade union activities.

Social Media

30.	In Martin & Ors – v – Giambrone p/a Giambrone & Law, Solicitors and European Lawyers [2013] NIQB 48 Horner J stated as follows:

“I should say that anyone who uses Facebook does so at his or her peril.  There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends.  Furthermore, it is difficult to see how information can remain confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends.” (para 4).

31.	In Smith v Trafford Housing Trust [2012] EWHC, which involved a breach of contract claim by an employee who posted on Facebook about matters not related to his employment, Briggs J stated: 

“Of course, an employer may legitimately restrict or prohibit such activities [free speech] at work, or in a work-related context, but it would be prima facie surprising to find that an employer had, by the incorporation of a code of conduct into the employee’s contract, extended that prohibition to his personal or social life.” (para 66)

32.	In Drew v St Edmondsbury BC [1980] IRLR 459 an employee was dismissed and attempted to claim that he had been engaged in trade union activities when he made complaints about Health & Safety.  That claim was rejected and it was found that the employee had been carrying out his own activities when he made the complaints notwithstanding that Health & Safety matters are capable of being part of the activities of a Trade Union.

33.	The EAT decision of Game Retail Ltd v Laws UKEAT/0188/14 concerned dismissal for misuse of Twitter.  Mrs Justice Eady stated as follows:

“We do not say that private usage is an irrelevant question.  We recognise that there is a balance to be drawn between an employer’s desire to remove or reduce reputational risk from social media communications by its employees and the employee’s right of freedom of expression; see Smith.  In the Smith case it was considered relevant that Mr Smith’s Facebook wall had not acquired a sufficiently work-related context to attract the prohibition against the promotion of political or religious beliefs in the housing trust’s code of conduct.  That prohibition, it was recognised, had to be considered in the light of the obvious potential to interfere with an employee’s right of freedom of expression and belief.  Allowing that the present case would involve the right of freedom of expression, rather than that of religious or other belief worthy of protection, the point would still be relevant.  Generally speaking, employees must have the right to express themselves, providing it does not infringe on their employment and/or is outside the work context.  That said, we recognise that those questions themselves depend on the particular employment or work in question”. (Para 46).

FINDINGS OF FACT AND CONCLUSIONS

34.	The Tribunal found the following facts proved on a balance of probabilities and, having applied the law to the facts found, reached the following conclusions.  It is important to note that this decision does not record all the competing evidence but records the primary findings of fact found following an assessment of all the evidence.  Both sides provided written submissions which were supplemented by oral submissions on the last day of hearing.  We took account of all submissions by both sides.

35.	The claimant was employed as an EO2 within the Employment Support Allowance (ESA) Division of what was the Department for Social Development and is now the Department for Communities (the Department).  The claimant was employed by the Department from January 2002 until she left under the Voluntary Exit Scheme on 31 January 2016 and she is no longer employed in NICS.

36.	At the time relevant to these proceedings the claimant was also a trade union representative for NIPSA with particular responsibility for equality issues.

37.	On or before 14 May 2015 an anonymous complaint was received by three members of staff in Human Resources including Terry McKeown.  That complaint stated as follows:

“The following screenshots have been sent anonymously to: 

Neil Dunbar 		– 	EO1
Terry McKeown 		-	Grade 7
Maeve Walls		-	Grade 5

It is my understanding that staff within the NICS should maintain neutral working relationships both inside and outside the workplace including on social media.

Before, during and after the election on Thursday 7th May Facebook was subjected to the opinions of a member of staff, an EO2 from James House.

Sara [sic] McCrossan refers to anyone who voted for the DUP or Conservatives as ‘bastards’, in response to a comment about riots (which did occur in London) she responds ‘bring it on’, and has set up an anti government page talking about government corruption.  There are many other examples prior, during and after the election.

Like many thousands of people in Northern Ireland I voted DUP and should not be labelled a bastard by a colleague as a result.

4 screenshots from a selection of many have been included.  Surely even these examples breach many rules of NICS conduct and discipline”.

38.	The complaint attached a screenshot of the claimant’s Facebook page.  That Facebook page had a photograph of the claimant’s face but did not refer to her being a civil servant nor did it refer to the Department for which she worked.  It did refer to her being in the trade union.  

39.	The Facebook posting in issue in this case was dated 8 May 2015 which was the day after of the General Election.  That posting stated as follows:

“Thank you to all the self serving bastards across the UK who voted Tory or DUP.  Goodbye NHS, you made us proud to be part of the Uk and helped countless people for free and were the envy of the world.  Goodbye welfare state, you helped people when times were tough and were a safety net to catch the sick or unemployed.  Goodbye full employment contracts, you gave respect and clarity to workers so that they could plan their lives and families.  Goodbye financial independence, for many people Universal Credit will leave them reliant on whoever the ‘benefit’ is paid to, not good news for people in violent domestic relationships.  Goodbye the furthering of equality for reproductive rights for women in NI and also gay marriage.  Most importantly, goodbye empathy and care for others.  We used to pride ourselves on helping others but now its clear we couldn’t give a fuck about our fellow humans already living in poverty, on zero hours contracts or without homes.  Well done UK, Maggie would be proud, there will be ‘no such thing as society’ in five years!”

40.	On 14 May 2015 Mr McKeown sought legal advice as to his decision to progress the matter to investigation and possible disciplinary action, and was advised essentially that there was no difficulty with this approach.  By that date the Grade 7 Ms McCloskey had also been informed of the posting and complaint and the Minister had also been alerted.  In this regard we note that Mr McKeown’s evidence was that the main issue for him was the adverse comment about Tory/DUP voters given that the Minister was from the DUP and the role of civil servants was to protect the Minister because the comment had potential to cause embarrassment to the Minister.  He stated that if the Minister had been from another party, that the matter might still have been flagged up but the fact that the Minister was from the DUP made it more relevant to flag it up.  He confirmed that the reason that it was flagged up to the Minister was because the claimant expressed a view that was against the Minister’s party.

41.	Part of 6.11 of the NICS handbook which is titled “Personal Use of Social Media Outside Work” states as follows at paragraph 6.2:-

“Do not bring the NICS into disrepute by your contributions to social media sites.  Disrepute means online behaviour by you as a civil servant that could lead to embarrassment or cause harm to the reputation of the NICS.  Articles or contributions to forums about the work of the NICS must be cleared with your Principal Information Officer.  Do not comment at all on controversial issues connected with the responsibility of your own minister”.

42.	Paragraph 6.3 of the same policy states as follows: 

“6.3		Do not make disparaging, discriminatory or defamatory remarks about colleagues or customers who are entitled not to have their rights infringed or their reputation damaged by contributions made to electronic communications.”

43.	A “fact-finding” meeting took place on 19 May 2015 and was conducted by Gloria Brush, a Staff Officer in the claimant’s division of the Department.  The claimant was told that the investigation was into potential breach of paragraph 6.3 of the policy.

44.	Ms Brush conducted the fact-finding interview and forwarded that to Mrs Pettigrew, a Staff Officer in the HR Department.  It was Mrs Pettigrew who took the decision that the actions warranted disciplinary action and she allocated that task to 
Mr McCord, an EO1 in HR.

45.	A charge letter issued on 28 May 2015 from Mr McCord to the claimant outlining the following charge which referred to paragraph 6.2 of the policy rather than to paragraph 6.3:

“It has come to my attention that you posted comments on a social media site relating to the general election that were perceived to be offensive by a colleague and had the potential to cause harm to the reputation of the NICS.

Your behaviour is considered to be in breach of the rules of conduct set out in the Conduct Policy of the HR Handbook.  Specifically you have breached the:

•	NICS HR Handbook Chapter 6.11 Use of Electronic Communications paragraph 6.2.”

46.	On 4 June 2015 a second anonymous complaint was received and forwarded to HR.  That complaint identified the claimant as a civil servant working on benefit claims appeals and made further complaints about the claimant’s statements on “a variety of social media platforms”.  It stated as follows:

“To Whom It May Concern

I write to you with the deepest of concern in regards to the activity of a current civil servant.  I use the cloak of anonymity such is my fear that I may be discriminated against by this individual or her cohort of allies within the Department of Social Development. [Redacted]

My complaint/concern rises in relation to the behaviour of a member of staff within the Department of Social Development who I am lead to believe deals with a number of benefit claims/appeals.  Her name is Sarah McCrossan.

I believe her actions online represent a severe breach of NICS HR Policy in particular 6.11 Use of Electronic Communications.

I believe that her comments on a variety of social media platforms could bring the NICS into disrepute.  It could lead to embarrassment and cause harm to the reputation of the NICS.

She is in direction violation by commenting on controversial issues connected directly to the responsibility of the Department and the Minister.  Given the difficult year ahead faced with implementing Welfare Change it only serves to magnify the embarrassment and damage to the Department and will make it harder for the Department to provide a service to all customers.

In a wide ranging attack Sarah makes a number of disparaging, discriminatory and defamatory remarks against political groups based on political her own political ideology.  I have no doubt that Sarah will come into contact with various stakeholders who hold these views and it would appear that she has not ability to deal with these people in a professional and balanced manner.

I myself are particularly offended having voted Conservative and DUP in the past.  My personal voting preference is of no concern to Sarah, she is to provide a service to the community and nothing more.  [Redacted].  I insist that every bit of work be looked at again, every decision looked at so as to assure that no bias has occurred.  How damaging to the Department and Civil Service as a whole would this be if it is found to be the case?

Civil Servants are not supposed to pass comment on their voting preference nor should they case comment on mine.  I am absolutely disgusted that Sarah would act in such a manner and get away with it.

I imagine though that the Department would be particularly interested in her views on Universal Credit, soon to be rolled out in Northern Ireland.  How can this individual be trusted working in the civil service any longer if she is unwilling to implement Universal Credit?

I speak out now despite my fear in the hope that action will be taken to prevent this outrage growing any greater.

I beg you, please restore my faith in the Civil Service and the difficult job they do and release the character from her contract.”

47.	It was the respondent’s case that this complaint was effectively ignored because it was decided that it replicated the existing complaint.  We do not accept the respondent’s case on this and we find that the second complaint added to the rigour with which the claimant was treated.

48.	Mr McCord’s evidence to us was clear that the main complaint that he was dealing with was the Tory/DUP comment.  He had the claimant’s Twitter account before him and knew that it was Ms McCloskey, a Grade 7, who had sent that through.  He also had a copy of the legal advice and knew that Mr McKeown, his superior, was involved.  He had the second complaint before him but did not disclose that to the claimant.  We find that Mr McCord was therefore fully aware of the high level at which concern had been expressed.  

49.	Mr McCord decided that paragraph 6.3 did not apply and it was his decision to proceed under paragraph 6.2.  Mr McCord’s concern was about three comments namely: the Tory/DUP comment, the Welfare Reform comment, and the Universal Credit comment.  He decided that the first comment risked causing embarrassment to the NICS and therefore fell under 6.2.  The other two comments related to controversial issues connected with the DSD Minister.  

50.	The disciplinary hearing took place on 16 June 2015 and Mr McCord decided to impose a disciplinary penalty on the claimant following that meeting.  The penalty was a one-year formal written warning.  This was communicated to the claimant by letter of 30 June 2015 the salient parts of which state as follows:

“Whilst I accept that you did not intend your comments to be offensive, it has to be remembered that the decision as to whether or not material is considered offensive will depend on the perception of the recipient and/or observer, rather than the intention of the sender.  In this case your comments caused offense (sic) to a colleague.

At our meeting your rep stated that you were not speaking on behalf of the Department but voicing a personal opinion.  I fully accept that this was your intention but as your photo was attached to your profile, you were easily identifiable as a Civil Servant and I feel that your comment, ‘Thank you to all the self serving bastards across the UK who voted Tory or DUP’, certainly had the potential to cause embarrassment to the Department if it had come to the attention of the wider media or the general public.

Furthermore, NICS HR Handbook Chapter 6.11 Use of Electronic Communications paragraph 6.2 states, ‘Do not comment at all on controversial issues connected with the responsibility of your own Minister.’  In your post on Facebook you stated, ‘Goodbye welfare state, and, ‘... for many people Universal Credit will leave them reliant on whoever the ‘benefit’ is paid to, not good news for people in violent relationships.’  In commenting on these areas you are clearly in breach of this”.

51.  	Mr Doherty submitted that it is highly significant that 6.3 of the policy was not proceeded with as this would have covered disparaging comments about colleagues or customers. In contrast paragraph 6.2 refers to bringing NICS in to disrepute by on-line behaviour which could lead to embarrassment or cause harm to its reputation.  The second limb of paragraph 6.2 relates to commenting on controversial issues connected with the responsibility of the Minister of the employee’s Department.

52.	We find that this change of paragraph together with the evidence of managers at Tribunal, supports our finding that the abusive language was an ancillary matter for managers.  We find on the evidence in this case, that in practice what mattered was that the comments (rather than the issues) were potentially controversial because they were at odds with the political opinions of the Minister’s party.  

53.	It was clear from Mr McCord’s evidence that it was enough for him that the complainant had identified the claimant as a civil servant.  He discounted the claimant’s valid argument that there was nothing on her Facebook to identify her as employed by the NICS or the Department and therefore that it was not clear as to how her comments had the potential to bring NICS or indeed the Department into disrepute.  We find that this supports our conclusion that the focus of concern was not on NICS nor on the Department but, rather, on the difference between the political views held by the claimant on the one hand and the Minister and the complainant on the other.

54.	The claimant appealed that disciplinary decision, and an appeal hearing took place on 25 August 2015.  Mrs Pettigrew dealt with the appeal despite the fact that it was she who had decided following the investigation that the incident warranted disciplinary action.  The reason we were given for this was that there was a limited number of staff who could conduct these appeals.  The height of the claimant’s point on this appeared to be that there was a drive by more senior staff to push this case along a disciplinary path. We accept the claimant’s point on this given the early active involvement of Ms McCloskey, Mr McKeown and the early referral to the Minister.

55.	An outcome letter was sent to the claimant by Mrs Pettigrew on 7 September 2015.  The appeal was not upheld and the salient parts of the appeal outcome letter state as follows:

“As I pointed out at our meeting, DHR can access social media sites and do not require management to provide further details.  Any information sent by Tracy McCloskey was not relevant, nor was it considered in this disciplinary matter.  The second complaint received on 4 June 2015 was not considered either as it was a rehash of the original allegation.  This is the reason why it was not put to you.

You were correctly charged with breaching para 6.2 of this guidance which states:

	“Do not bring the NICS into disrepute by your contributions to social media sites.  Disrepute means online behaviour by you as a civil servant that could leave to embarrassment or cause harm to the reputation of the NICS ... Do not comment at all on controversial issues connected with the responsibility of your own minister.”

As I explained to you at our meeting, there is no issue with your commenting on controversial issues provided it is not in relation to the responsibilities of your own minister.  However, once you label people who voted Tory or DUP as “bastards” you crossed the line between commenting on controversial issues and being offensive to those individuals.  You [sic] comments only have to have the potential to embarrass your employer to bring the NICS into disrepute”.

56.	One of the key points made Mrs Pettigrew in her evidence was that the claimant had used abusive language which was perceived to be offensive and that this had the potential to bring the NICS into disrepute.

57.	It was however clear from Mrs Pettigrew’s evidence that:

(i)	The problem was the use of language about Tory/DUP voters when the Minister was from the DUP;

(ii)   	If the same language had been used about another party it was unlikely that the Minister would have been told; 

(iii)  If the claimant had said that she was in favour of Universal Credit that this would not have been deemed controversial and she probably would not have been disciplined;

(iv)  If the comment had been: “I’m glad so many voted DUP”, the claimant would probably not have been disciplined.

58.	Having assessed the totality of Mrs Pettigrew’s evidence, it is clear to us that the key point was that the claimant was expressing a view on Welfare Reform, on Universal Credit and on Tory/DUP voters which only caused her to be subjected to disciplinary action because her political views were at odds with those of the DUP Minister and because a complaint had been made by someone who was a DUP voter.  Whilst on the one hand Mrs Pettigrew stated that it was because of the abusive language that disciplinary action resulted because offence had been taken, it was clear that the tipping point for the disciplinary action was the fact that that views and abusive language were used about the DUP when that was the Minister’s party and the complainant identified him or herself as a DUP voter.

59.	We must assess the mental processes of all the decision-makers but particularly the decision-maker on appeal.  We therefore reject the respondent’s argument which was, essentially, that any tainted decisions at an earlier stage of the process should not be attributed to later decision-makers.  In this case viewing the totality of the evidence, it is clear to us that the driving force for the disciplinary action was the disparity between the political views of the claimant and the political views of the Minister and complainant.  The political views held by all three individuals therefore permeated the decision-making process.

Political Opinion

60.	The first issue for us is whether or not the claimant expressed a political opinion or opinions at the relevant time.  There were three opinions in issue which we have referred to as the Tory/DUP opinion, the Welfare Reform opinion, and the Universal Credit opinion.  Whilst there was some reference during the hearing to the other opinions expressed in the claimant’s Facebook posting, the key opinions in this case are the three opinions set out in this paragraph.  

61.	Mr Kennedy agreed that the opinions expressed on Universal Credit and Welfare Reform could amount to political opinions.  He contended that the Tory/DUP comment could not amount to the expression of a political opinion as it was essentially abusive language directed at a portion of the electorate.

62.	Mr Doherty in contrast contended that all three were political opinions and that the Tory/DUP comment was either a political opinion, per se, or came within the scope of that concept as it expressed an opinion on voting preferences which related to a means of achieving a political end.

63.	We find that all three opinions individually constituted political opinions.  The Tory/DUP comment related to voting preferences in the General Election and clearly comes within the scope of the concept “political opinion” whether on its face or as a method of achieving a political end.  In our judgement, the fact that the claimant used intemperate or abusive language in that expression of opinion does not detract from the fact that it was a political opinion in the context of the posting as a whole.  

64.	The Welfare Reform and Universal Credit opinions amount to political opinions.  Whilst the respondent’s submission referred to reasons for expressing those opinions which were other than political, there was no evidence that those possible reasons were at play in this case. 

65.	It was clear to us that the claimant in her Facebook posting was expressing political opinions and we find that that was clear from the posting itself.

On Grounds of Political Opinion

66.	It appeared to be common case, and we so find, that the claimant was subjected to detriment in that she was subjected to a disciplinary process which resulted in a Formal Written Warning due to last for one year.  The next issue for us therefore is whether the decision to subject the claimant to the disciplinary process; the decision to impose that disciplinary penalty; and the decision to uphold that penalty on appeal, amounted to decisions which were taken on grounds of political opinion: we therefore look at causation.

Correct Test for causation

67.	As outlined above, the JFS case sets out three possible approaches to the question of causation:

(1)  	The “but for” test; 

(2)	The “inherently discriminatory” test, which the claimant’s side exhorted us to apply; 

(3)	The “reason why” test which (as explained in JFS) does not relate to motive but to the factual reasons for the act complained of. Both sides exhorted us to apply this test.

“But for” test

68.	Using the ‘but for’ test we find that it is too simplistic to say: ‘But for posting the comments the claimant would not have been treated as she was’.  We find however as a fact that, but for the complaint by someone with a different political view and but for the fact that the Minister was from a party whose views on Universal Credit and Welfare Reform differed from the claimant’s, the claimant would not have been treated as she was.

“Inherently discriminatory” test

69.	The respondent submitted that the respondent’s actions could not be considered inherently discriminatory as Mr Kennedy submitted that they were based on: “a policy which applied to all and makes no distinction between gender, belief, opinion, race or disability”.

70.	Using the ‘inherently discriminatory’ test we do not find the policy itself to be inherently discriminatory.  However, we find that its application in this case was inherently discriminatory as comments were deemed to be on controversial issues (thus triggering the policy and disciplinary action) if the view expressed was not aligned with that of the Minister (whoever that might be)  and a complaint was made by a complainant who clearly disagreed with the political opinions expressed.  The application of the policy in this way therefore depended on a difference between the political opinions of the employee on the one hand and that of the Minister and the complainant on the other.  The controversy thus related to the comments rather than the issues commented upon.  In this case we find this to be prima facie evidence that political opinion was the reason for the treatment.

71.	The logical conclusion of the application of the policy in that way is that if an employee expresses a view aligned with the Minister of her department and then that Minister changes to another with an opposing view, the comments, which initially would not have led to disciplinary action, would become comments on controversial issues if someone of a different political view complained that they found the views expressed to be offensive. That employee would then be liable to be disciplined for comments which, when first posted, would not have been deemed controversial even if they had come to the attention of managers other than via that type of complaint.

72.	We were told that the motive for having the policy was that its aim was to preserve NICS neutrality and to protect the Minister, but that is not to the point of what causes the detrimental treatment.  We wish to make clear that we do not find as a general principle that it is unlawful to have a policy in place to restrict the articulation by civil servants of political views on departmental policy because of the nature of the NICS:  the issue is the application of the relevant policy in practice in this case.

“Reason why” test

73.	The “reason why” test leads us to the same conclusion as it is our firm factual finding that the reason why the claimant was ultimately disciplined was because:

1)	She expressed a view which was at odds with the Minister who happened to hold the post in her Department at that time;

2)	The complaint was made by someone who clearly held an opposing political view; and

3)	The comments in the posting were thus deemed to be controversial.  It was therefore the comments which were controversial rather than the issues which were controversial as the policy would not have been applied in the same way to everyone who commented on controversial issues.

74.	The two factors which rendered her comments controversial issues were firstly that the Minister was from the DUP which meant that that Minister was in favour of Welfare Reform and Universal Credit and secondly that a complaint had been made by a complainant who identified as a DUP voter.  This was clear from the evidence of the respondent’s witness which was that if the posting had come to the attention of managers without a complaint she would likely have been told to take it down rather than been disciplined.  In addition we find as a fact that if the Minister had been a Minister from another party with views on these topics which aligned with the claimant's then she would not have been disciplined.

75.	On the evidence, therefore, we find that the factual reason for the detrimental treatment was because the claimant’s views were at odds with the incumbent Minister of her Department who happened to be from the DUP.  We find as a fact that she would not have been disciplined if her opinion had agreed with the DUP position on Welfare Reform and Universal Credit or if the Minister happened to be  from a party with whose policies her political views accorded.  We find that if no complaint of that nature had been made she would not have been disciplined.  We also find as a fact that the claimant was disciplined because she was deemed to have made controversial comments rather than that she commented on controversial issues.

Significance of the Complaint

76.	The process relied on the fact that there had been a complaint (received anonymously on 14 May 2015) by someone who found the views expressed to be offensive as the complaint was very clearly made by someone whose political views were opposed to the claimant’s.  

77.	It is clear from the NI Electricity case that the scope of FETO encompasses a situation where an individual is discriminated against because of the political opinions of another person.

78.	It is possible for someone to complain about a civil servant articulating views in public when holding a particular job - that complaint can be made without the complainant holding opposing views.  In this case however it is clear from the complaint that the complainant disagreed with the political views expressed by the claimant and this fact was one of the drivers for the disciplinary action.

79.	We do not fault the respondent for not trying to investigate the identity of the person who made the complaint in the circumstances where the delivery of the anonymous   letter was by courier and there was no realistic way of identifying that person.  However, we do wonder whether an anonymous complaint such as that in this case  should result in disciplinary action at all particularly when an employee is being investigated for social media postings made on their own time and that employee is not readily identifiable as a civil servant.  The fact that such an anonymous complaint was pursued so vigorously by the respondent's managers lends weight to our conclusion that a key factor in managers' minds was that the political views articulated by the claimant were at odds with those held by the complainant and the Minister.

80.	We also find as a fact that the second complaint of 4 June 2015 was not entirely discounted as alleged but it increased the rigour with which the claimant was pursued.  Our reason for so finding is that there was no reason for it to be before Mr McCord when he was conducting the disciplinary process.  It was more than a ‘rehash’ of the first complaint as it was lengthy, detailed and referred to “a variety of social media platforms” and not just Facebook.

81. 	We do not accept the respondent's argument that the complaint in this case was like another complaint that led to disciplinary action against another civil servant.  In that instance, the employee in his online presence identified himself as a civil servant and posted a cartoon and comments disparaging Muslim women and Muslims generally in a way that was clearly offensive.  We find that scenario to be of a wholly different character to the claimant's situation where she articulated political views which were not intrinsically offensive.  We therefore reject the respondent's argument that the treatment of that other civil servant helps to show that no less favourable treatment occurred in the claimant’s case.  At this point we note that the respondent’s managers’ evidence in cross-examination was clear that the claimant was not primarily being disciplined for the language used as the key problem was her expression of views on Universal Credit and Welfare Reform which were deemed to be controversial because of the divergence between those views and those held by the complainant and Minister.

Less Favourable Treatment

82.	A key question for us is whether the detrimental act amounted to less favourable treatment when looking at how a hypothetical comparator would have been treated.

83.	In accordance with the authorities we have determined the factual reason why detrimental acts occurred before attempting to construct the hypothetical comparator.

84.	Both counsel provided specific submissions on the characteristics of the hypothetical comparator as it was agreed that it was a key issue for us to construct a hypothetical comparator in order to see whether less favourable treatment had occurred.

85.	Mr Doherty submitted that the hypothetical comparator was one of the following:

(i) 	Someone expressing a view in support of Universal Credit who would not have been disciplined;

(ii) 	Someone expressing a view relating to Education who would not have been disciplined;

(iii) 	Someone expressing an opinion that is not political, for example, regarding a sporting matter or a media matter who would not have been disciplined.

86.	Mr Kennedy submitted that the hypothetical comparator was one of the following:

(i) 	A person expressing views adherent to their own antipathy to a section of the voting public and making a comment which was on a controversial subject potentially connected with the minister of their department.

(ii) 	A person making the same comments as the claimant but whose antipathy to DUP/Tory voters and opposition to Welfare Reform are not based upon any political views.  An antipathy to Tory/DUP voters could be based upon personal experiences and prejudice arising from apolitical events and opposition to Welfare Reform and could be based upon a fear/expectation of losing income.  In addition the hypothetical comparator is someone against whom a complaint had been made.

(iii)	Someone who makes anti-Sinn Féin posts that someone finds offensive because they hold a political opinion different to the claimant’s.

87.	Both sides agreed with the Employment Judge that it was open to the Tribunal to find that the hypothetical comparator was someone who expressed political views agreeing with the political stance of the Minister of her Department on an issue within that Minister’s responsibility.  The respondent’s side submitted that additional characteristics for this comparator were that he or she had made comments on a controversial issue and was someone against whom a complaint had been made.

88.	Our finding is that the hypothetical comparator has the characteristics set out at paragraph 87 above. We reject the respondent’s contention that the hypothetical comparator made comments on controversial issues as that would be a different circumstance from that of the claimant who (on the facts which we have found), was deemed to have made controversial comments due to a difference between the political opinions of the claimant, the Minister and the complainant rather than to have commented on a controversial issue.  If it requires a complaint from a person, again it makes no difference to the outcome in view of our factual findings on the requirement for a difference between the political opinion of the complainant and Minister on the one hand and of the claimant on the other, for the policy to be applied in a way that led to disciplinary action.  The nature of the issues commented upon was not the factor that led to the adverse treatment; rather it was the decision to deem them controversial because of the difference in the political views held by the claimant, the Minister, and the complainant.

Summary

89.	We found the evidence of the Managers to be unsatisfactory in that it was muddled in relation to the connection between the relevant parts of the policy and the reasons for the investigation, charges, and disciplinary action.  Their emphasis also changed at different points from the language used to the content of the postings.  It was clear from an assessment of all of their evidence that the language used was not the main problem for them.

90.	Causation, not motive, is the key question in this case for us.  The cause of the detrimental treatment was managers' assessment of the comments as  controversial because of a complaint by a complainant who held a political opinion contrary to the claimant's coupled with the fact that the political opinion expressed by the claimant was contrary to that held by the relevant Minister’s party at that time.  From our assessment of the evidence we find as a fact that the nature of that complaint and the divergence between the political views of the claimant and of the party of the relevant minister were the cause of the decision to progress with the disciplinary action. It is also clear that it was the claimant’s comments that were deemed controversial rather than the issues commented upon.

91.	Applying the policy in this way means that someone can express an opinion which accords with that of the Minister of her Department and then, if the Minister changes to one who holds the opposing view, and there is a complaint about the posting, the individual is liable to be disciplined.  Before the ministerial change that person would not be liable to be disciplined but merely told to take the posting down.  This leaves employees in an invidious position where they seek to express political opinions on social media in their own time and it is clear that the application of the policy in this way could have a “chilling effect” on free speech.  For this reason we have scrutinised the evidence of the relevant managers on their thinking processes very carefully.

92.	The respondent argued that the claimant was disciplined because she commented on controversial issues and not because her comments were controversial.  We reject that contention in view of our factual finding that if she had commented favourably on Welfare Reform or on DUP voters she would not have been disciplined.

93.	The claimant expressed views on Universal Credit and Welfare Reform which are not intrinsically controversial as they are espoused by many people including the claimant’s trade union.

94.	We reject the argument that the hypothetical comparator has as a characteristic that he or she commented on controversial issues.  Rather, we find that that comparator has as a characteristic, making comments that are not intrinsically controversial and are not regarded as controversial because they accorded with the views of the Minister and complainant.

95.	We find the following to amount to evidence of the unusual treatment of this complaint which we find supports our conclusion that managers drove the disciplinary process forward because of the divergence between the claimant's expressed political views and those held by the complainant and the Minister:

•	Ms McCloskey the Grade 7 in HR was alerted immediately;

•	Ms McCloskey offered to do the fact-finding meeting herself in breach of normal procedure that the line manager (Mrs Brush) should do it;

•	Ms McCloskey then, of her own volition, looked at the claimant's Twitter account allegedly check the claimant's identity. We reject that explanation as the claimant's identity was checked at the fact-finding interview by the simple expedient of asking the claimant if this was her Facebook account and the claimant readily confirmed that it was;

•	The Minister was informed of the posting and complaint from the outset even though the claimant was at a relatively junior grade and was not readily identifiable as a civil servant from her Facebook profile and postings.

96.	Our finding therefore is that the impugned decisions were taken on grounds of the claimant’s political opinion.  The disciplinary action taken was in accordance with the policy and in particular the last line of that policy at paragraph 6.2 which states: “Do not comment at all on controversial issues connected with the responsibility of your own Minister”.  According to Mr McCord’s disciplinary decision, this part of the policy was engaged by the claimant’s opinions on Welfare Reform and Universal Credit.  The detrimental acts therefore occurred explicitly because the claimant made the comments which we have found to be political opinions and the reason for the detrimental acts was because she had expressed those particular opinions.  The Tory/DUP comment was found to have the potential to cause embarrassment to the Department (rather than the NICS as outlined in the policy) which supports our finding that it was the fact that the minister was from the DUP which was a key consideration for managers.

97.	We find that the principal reason for instituting the disciplinary process and imposing and confirming the disciplinary penalty was therefore grounded on the divergence between the claimant’s political opinion and that of the complainant and the relevant Minister.

98.	Having found as a fact the reason why the claimant was treated as she was and having constructed the hypothetical comparator accordingly, we find that the claimant has proved less favourable treatment occurred.  The claimant has also proved that the detriment suffered was on grounds of political opinion.  We therefore find that the claimant has proved facts from which we could conclude that an act of discrimination on grounds of political opinion occurred and the burden shifts to the employer to prove that the relevant decisions were untainted by the fact that she had expressed her political opinion.

99.	The explanation provided by the respondent was that a hypothetical comparator would have been treated no differently.  Given our findings on the characteristics of the hypothetical comparator we reject that explanation and find that the hypothetical comparator would have been treated differently given our factual findings in this case.  The respondent also pointed to the importance of the reason for the existence of the policy namely maintaining neutrality and protecting the Minister.  As outlined above, a benign motive is not relevant to the issue of causation.  We therefore reject this as an untainted explanation for the cause of the impugned treatment.

Human Rights Issues

100.	There was reference in the evidence and by some of the witnesses to issues of free speech and curtailment of the claimant’s right to freedom of expression on her own time.  There was also reference in the Game case (which was referred to generally by both sides) to the necessity of interpreting policies in the light of the right to free speech in the Human Rights Act.   For this reason the Employment Judge invited both counsel to consider whether or not they needed to make specific submissions on human rights points in this case. 

101.	Mr Kennedy’s submission was that human rights issues, if they were relevant, could only be aired in judicial review proceedings and were not the province of the Tribunal.  Mr Doherty’s submission was that specific human rights submissions were unnecessary and that he relied solely on the interpretation of FETO which was compliant with the Human Rights Act.

102.	Whilst we understand the submissions of both sides we do concur with the view expressed by Mrs Justice Eady in the Game case to the effect that, in a case where freedom of expression appears to be engaged and an employee is disciplined for expressing a political opinion in his or her free time, we should scrutinise very carefully the circumstances surrounding the disciplining of the employee in the context of the importance of this right in a democratic society.

Detriment on Grounds of Trade Union Activities

103.	The second aspect of the claimant’s claim is the claim for detriment on grounds of trade union activities.  The claimant’s side relied on the Universal Credit and Welfare Reform comments as trade union activities.  The claimant’s side disclaimed reliance on the voting preferences comment (ie the Tory/DUP comment) as a trade union activity.

104.	It is clear that the claimant’s views on Universal Credit and Welfare Reform aligned with the trade union’s views.  The first issue for us is whether or not the claimant’s posting amounted to a trade union activity.  This is a question of fact for the Tribunal and the authorities are clear that there is a wide definition of what constitutes a trade union activity but it is not without limit.

105.   	Having assessed carefully the evidence on this point, we reject the import of Mr Joiner's evidence that the claimant was disciplined because there was antagonism generally to the trade union because of an allegedly hostile reception given by Ms McCloskey to trade union representatives at a meeting which was unrelated to the events in this case.

106.	The claimant contended that her posting on Facebook was private and at the same time she argued that she was pursuing trade union activities on her own time by promoting trade union policies with her “friends”.

107.	We reject the claimant’s case on this for the following principal reasons:

1)	We wholly concur with the comments of Mr Justice Horner in the Martin case set out at paragraph 30 above.  We find that the claimant’s Facebook posting was not private as she had approximately 738 friends at the time and there was no restriction on any one of those friends passing on her postings and comments.

2)	There was nothing on the Facebook page to indicate that the claimant was a civil servant or linked to her Department; and

3)	The claimant's trade union had its own Facebook pages for promoting its policies.

108.	If the claimant’s Facebook was private it did not amount to a trade union activity in our view.  We find that the Facebook was not private and still arrive at the same result.  The claimant was propounding views which were aligned with her trade union but we find that there was insufficient connection with the trade union for the expression of those views on the claimant’s personal Facebook page to amount to engagement in trade union activities.  It is insufficient in our judgement for the claimant to argue that alignment with trade union views is enough to amount to a trade union activity in the circumstances of this case.

109.	The claim for detriment on grounds of trade union activities is therefore dismissed.

Compensation

110. 	As our conclusion is that the claimant suffered unlawful discrimination on grounds of political opinion she is entitled to compensation for injury to feelings.  As no specific submissions were made on injury to feelings compensation the parties will be given the opportunity to provide submissions on that point.

Employment Judge:       

Date and place of hearing:  24 May, 25 May and 3 June 2016, Belfast. 	

Date decision recorded in register and issued to parties: