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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hinds v Mueller Primaflow Ltd [2008] NIIT 1376_07IT (11 September 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1376_07IT.html Cite as: [2008] NIIT 1376_7IT, [2008] NIIT 1376_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01376/07

CLAIMANT: Peter Rodney Hinds

RESPONDENTS: 1. Mueller Primaflow Ltd

2. Michael Bailie

DECISION

The unanimous decision of the tribunal is that the claimant's claims of unlawful discrimination are not well founded. Accordingly, those claims are dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Mr T Waite

Mr J Nicholl

Appearances:

The claimant appeared in person.

The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by BurroughsDay Solicitors.

REASONS

1. The claimant's skin colour is black. The skin colour of the vast majority of the inhabitants of Northern Ireland is white. Accordingly, the claimant, in terms of skin colour, belongs to a small Northern Ireland minority. In our capacity as an industrial jury, we are well aware that prejudice on the ground of skin colour is not by any means a rare phenomenon, either in Europe generally or in Northern Ireland in particular. We have carefully considered the claims and evidence in this case against that general background.
2. The claimant was employed by the first-named respondent ("the company") from 18 September 2006 until the Spring of 2007. He was employed by the company as a warehouseman/van driver. He was dismissed following an incident which took place on 30 March 2007. Throughout the claimant's period of employment with the company, the second-named respondent ("Mr Bailie") was the claimant's line manager.

Some key legislative provisions

3. The Race Relations (Northern Ireland) Order 1997 ("the 1997 Order") is the legislation which addresses the problem of racial discrimination in employment in Northern Ireland.
4. Article 6(2) of the 1997 Order makes it unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee:

"(a) …

(b) …

(c) by dismissing him, or subjecting him to any other detriment."

5. As a general rule, if a claimant's colleague has carried out a relevant act of unlawful discrimination, the claimant's employer will be treated as though the employer had itself carried out that act (and therefore the employer will have secondary liability in respect of the colleague's act of unlawful racial discrimination).
6. For the purposes of the 1997 Order, the term "discrimination" includes racial discrimination. According to Article 3(1) of the 1997 Order, a person discriminates against another in any circumstances relevant for the purposes of any provision of the 1997 Order if:

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons …"

7. Article 5 of the 1997 Order defines "racial grounds" as including the ground of "colour".

The claims

8. In these proceedings, the claimant complains in respect of acts of alleged mistreatment which, according to the claimant, occurred during a period of less than a week from 27 March 2007 onwards.
9. The claimant says that all of those acts of mistreatment constituted unlawful racial discrimination on the ground of colour.
10. The relevant acts are as follows. First, the claimant's complains in respect of his dismissal. Secondly, he claims that he was subjected to the following instances of unlawful, racially discriminatory, detrimental treatment:

(1) On 27 March, his probationary period was re-extended.

(2) The workplace keys were taken off him on the same date.

(3) On 30 March 2007, he was unjustly reprimanded because he had used toilets in the workplace which were reserved for the use of female visitors.

(4) On 30 March 2007, he was unjustly suspended, because of an issue, in relation to a diesel docket, which had arisen on 29 March 2007.

The sources of evidence and the arguments

11. The claimant gave evidence. Ms Jennifer MacKenzie (the claimant's personal partner) also gave evidence on his behalf.
12. On the respondents' side of the case, the following gave evidence:

(1) Mr Bailie (who was the Manager at the relevant workplace);

(2) Mr Maurice Doran (the Assistant Manager at the relevant workplace); and

(3) Ms Catherine Pang, the company's Human Resources Director.

13. We also saw:

(1) a large agreed bundle of documents, consisting of approximately 235 pages; and

(2) various miscellaneous documents which were provided to us during the course of the hearing.

We told the parties that we would only have regard to any document within the bundle if our attention was specifically drawn to that particular document.

14. The arguments on each side of the case can be summarised as follows:

(1) The claimant asserted that he had been badly treated by Mr Bailie in respect of all of the treatment which is the subject-matter of these proceedings. He says that Mr Bailie is a racist. Mr Bailie, he says, seized any available opportunity to disadvantage the claimant. The claimant did nothing wrong in relation to the diesel docket. The dismissal was a grossly disproportionate reaction to events. (In particular, the claimant never kicked Mr Bailie). Mr Bailie was an aggressor during the relevant incident. Mr Bailie was not dismissed. Therefore, Mr Bailie was treated more favourably than the claimant was treated.

(2) The respondent said that the claimant had been the perpetrator of a serious assault on his line manager. Any employer would have dismissed in the circumstances. The other matters complained of by the claimant were matters in respect of which Mr Bailie was entitled to take, and did take, a firm approach. The claimant had been an unsatisfactory employee. Mr Bailie had had to take corrective action in respect of those unsatisfactory aspects of the claimant's performance. Mr Bailie was not a racial bigot. He had shown this, by offering the claimant employment in the first place. Furthermore, in the context of the bigot issue, it was highly significant that there were no allegedly racially discriminatory incidents of mistreatment (of the claimant) cited by the claimant in respect of any time prior to the month of March 2007.

The facts

15. We made the following findings of fact which are relevant to the issues which have been determined by us in this case:

(1) The claimant is a large, strong, fit man. So is Mr Bailie. Mr Bailie is older than the claimant, but not by many years. The two men share a common background, in that they are both ex-soldiers.

(2) The claimant was appointed to the relevant post with the company in the following circumstances. He made enquires with Mr Bailie as to whether there was a vacancy. Mr Bailie told him there was a vacancy and more or less told him that he would be appointed if he applied. He then applied. He got the job.

(3) The company held its Christmas 2006 party in early 2007. The claimant asked Mr Bailie if a couple of his ex-Army friends could join the party. Mr Bailie readily agreed. When the mates arrived at the party, it became clear that, like the claimant himself, they were black. At the party, the mates, the claimant, Mr and Mrs Bailie and others, all sat around the one table. Mrs Bailie stayed at that table all night. Mr Bailie went back and forth to other parts of the room (because he was taking the opportunity to network with other company officials). However, he retained his seat at that table and returned to it on several occasions. Against that background, we reject the claimant's suggestion that the "party episode" was indicative of racial prejudice on the part of Mr Bailie. On the contrary, it was indicative of the fact that Mr Bailie and the claimant enjoyed a good relationship in early 2007.

(4) The claimant has not pointed to any instance of ill treatment against himself, apart from those which are the subject of the claims in these proceedings. All of the instances of alleged mistreatment which are the subject of the present proceedings, relate to events which took place in March 2007 or afterwards.

(5) Having considered all the evidence in this case, and having considered in particular, the facts set out at sub-paragraphs (2) - (4) above, we are satisfied that Mr Bailie is not a man who is instinctively racist on colour grounds, or that he had any instinctive dislike for the claimant on colour grounds.

(6) The company is a plumbing parts supply company, supplying plumbing parts to the retail and trade sector. The company is an amalgamation of three companies: Brassware Sales, Primaflow and Vemco Brasscapri, which companies were merged on 1 January 2007.

(7) While the claimant was employed by the company, his work location was the company's warehouse at Balloo Link, Bangor, Northern Ireland.

(8) When he was employed, he was originally issued with a contract from Brassware Sales. Following the amalgamation of the three businesses, all the staff from Brassware Sales were issued with a new employment contract. According to that new employment contract, his probationary period was recorded as six months and was therefore due to expire on 18 March 2007.

(9) During the early part of 2007, the claimant was spotted carrying a female passenger in his van. This was in breach of the company rules. On 27 March, the claimant made a delivery to Homecare Ltd based in Magherafelt. While he was out on this delivery, the claimant contacted the warehouse and reported that Homecare's manager, Mr Chris O'Kane, would be calling to make a complaint about him. On hearing this, Mr Bailie contacted Mr O'Kane, who reported that the claimant had called him an "asshole" under his breath when he had asked the claimant to put certain boxes, which the claimant was delivering, onto the counter, rather than onto the floor.

(10) When the claimant returned to the depot, Mr Bailie spoke to him about the complaint. The claimant denied that he had spoken offensively to Mr O'Kane. Mr Bailie told him that he intended to re-extend the claimant's probationary period, for reasons which included the carrying of the passenger without prior authorisation and the fact that the complaint from Homebase had been made. Mr Bailie told the claimant that he would be extending his probationary period for a period of three months. He confirmed that extension on the following day, 28 March.

(11) As a result of his experiences as the claimant's line manager, Mr Bailie had correctly formed the view that the claimant was impetuous and headstrong. He formed the view that the claimant was very angry about the extension of his probationary period. As a result, he was fearful that the claimant would simply resign with effect from 27 March and never come back to the workplace. Therefore, he took the workplace keys off the claimant on that date.

(12) Soon after the beginning of his shift on Friday 30 March 2007, the claimant used the ladies toilets. The claimant had been forbidden to use the ladies toilet, which were kept in a state of cleanliness and were reserved for any female visitors. The claimant had previously been found to be using the ladies toilets on at least one occasion and, on that occasion, he had been criticised. On 30 March, when Mr Bailie found that the claimant had used the ladies toilet, he made it clear that he was unhappy about what the claimant had done and he shouted at the claimant to that effect.

(13) It was coming near the end of the month, so on Tuesday 29 March Mr Bailie asked the claimant for his diesel receipts (dockets) from petrol stations. (He would usually ask the claimant for the dockets on the last Friday of each month, but he knew it was going to be really busy the next day, so he asked him on 29 March. He sends all the fuel dockets with any expenses forms to head office in Birmingham).

(14) The claimant put his dockets on Mr Bailie's desk. Mr Bailie then said that the claimant could leave for the day (it was after 4.30 pm).

(15) After the claimant had gone, Mr Bailie started sorting the dockets into date-order. As he was going through those dockets, he noticed that part of one of the dockets supplied by the claimant had been scribbled on in blue pen. He examined the docket and realised that the blue pen had partially obscured the part of the docket that showed when the fuel had been bought.

(16) He went and discussed it with Mr Doran. They both looked at the docket very closely and were able to read that the fuel had been bought some time between 15:20 and 15:30.

(17) Mr Bailie quickly jumped to the conclusion that the attempted obscuration of the time was intended to facilitate the claimant in hoodwinking Mr Bailie as to the precise time of completion of the claimant's delivery duties on 29 March.

(18) On Friday 30 March, immediately after the confrontation about the ladies toilets, Mr Bailie raised the docket issue with the claimant. He then went off to make enquiries with the filling station which had provided the docket. He then was told by the manager in the filling station that it was unlikely that staff at the station had tampered with the docket. He came back to the workplace and said to the claimant: "It was f**king you!".

(19) He was walking back towards his office. Then he turned and said: "Go home. I will contact you by letter and let you know what is happening". (In effect, he was indicating to the claimant that the claimant was being suspended because of the dockets incident).

(20) The claimant replied: "What for?". Mr Bailie then approached him and pushed him and said: "F**k off home". The claimant replied: "You f**k off" and pushed him back.

(21) The claimant claims that Mr Bailie at that stage aimed a kick at the claimant between the legs and the groin and that he defended himself by hitting Mr Bailie.

(22) We do not accept Mr Bailie aimed any kick at the claimant, or that the claimant had any good reason to believe that he was in any danger of being kicked in the groin by Mr Bailie. We do not accept that this allegation is factually accurate.

(23) The claimant's evidence on this matter has been inconsistent. We are satisfied that, during a telephone call with Ms Pang on the day of the incident, the claimant had asserted that "blows were exchanged between himself and Mr Bailie". In the claimant's statement in the claim form in these proceedings, he alleged that Mr Bailie had actually kicked him in the groin (as distinct from attempting to kick him).

(24) In his evidence to the tribunal, the claimant did not assert that Mr Bailie had actually kicked him. Instead, he merely asserted that Mr Bailie had tried to kick him. For the reasons explained in the preceding paragraph, we do not accept that aspect of the claimant's testimony.

(25) So, at this point, Mr Bailie has, in effect, announced the suspension of the claimant, then he pushes the claimant. He tells the claimant to go home. What happens next? The next thing that happened is that the claimant repeatedly punched Mr Bailie in the face. He punched him hard. Mr Bailie fell to the ground. The injuries were sufficiently severe to require an attendance at a Casualty Department at a hospital and the claimant received one stitch for an injury to his nose.

(26) Mr Bailie has given various versions of events as to what occurred immediately after the claimant began to punch him. We regard that aspect of Mr Bailie's version of events as being unsatisfactory because he has given distinctly varying accounts, at various times. In an account of events given soon after the incident, Mr Bailie unequivocally stated that the claimant had kicked him several times, with steel toe-capped boots, to the stomach area and to the legs. (That account was given in a statement to the company). On the day of the incident, in a statement to the police, Mr Bailie said merely that, as he had lain on the floor, the claimant had kicked him several times on the left leg. In his written witness statement, in these proceedings, the claimant stated that he could not be a hundred per cent sure:

"… but at the time it felt like Peter was also kicking me…".

(27) The claimant has always vehemently denied kicking Mr Bailie. Mr Doran, who was the only eye-witness to the incident, did not have any recollection of Mr Bailie being kicked by the claimant.

(28) Against that background, and for those reasons, we are satisfied that Mr Bailie's evidence on the kicking issue is inaccurate and the claimant's evidence on that issue is to be preferred.

(29) The incident was reported to the police, and the police investigated the incident, on the day it happened.

(30) Also on the day of the incident, Miss Pang was a party to various phone calls. The claimant rang her. She was also in telephone contact with Mr Bailie.

(31) Before that day was over, she had written a letter to the claimant which contained notification to him that he was being summarily dismissed for gross misconduct, because of the assault.

(32) According to the claimant in his written witness statement in these proceedings, the dismissal letter states that Mr Bailie had hit him, however, the letter contains no such assertion. (It merely states that Mr Bailie "pushed you away").

(33) The dismissal letter arrived with the claimant on the following Monday morning. On that morning, prior to receipt of that letter, he turned up for work, just as if nothing had ever happened. He apologised to Mr Bailie for what had happened. Understandably, and appropriately, he was sent away.

(34) Subsequently, Mr Bailie withdrew his criminal complaint against the claimant.

(35) Mr Bailie's reaction in respect of the diesel docket was disproportionate and inappropriate. The available information in respect of the docket was insufficient to justify any suspension of the claimant. In his evidence to us, Mr Bailie has been unable to provide a convincing explanation in respect of his own actions in respect of that matter. His explanation seems to consist merely of a reiteration of the assertion that the action which he took was entirely justified by the evidence which was then available; we do not accept the validity of that proposition. Furthermore, because Mr Bailie was wrong on the kicking issue, that seriously affects his credibility as a witness generally.

(36) Mss Pang gave evidence in these proceedings. We were satisfied that she was a truthful witness. She also gave us the impression of being inflexible and somewhat arrogant. There was a refusal on the part of the respondent to answer a racial discrimination questionnaire which had been served by the claimant pursuant to Article 63 of the 1997 Order. Mrs Pang took the decision not to respond to that questionnaire in a mistaken attempt to mark her disapproval of the assault and because she thought that the service of the questionnaire was an attempt to pressurise the company.

(37) In the particular circumstances of this case, the failure of the part of the company to respond promptly to the questionnaire does not, in our view, make it more probable that Mr Bailie and/or Mr Pang discriminated racially against the claimant. However, we wish to point out that, in many situations, a failure to respond to a discrimination questionnaire will indeed lead to drawing of an inference that relevant mistreatment was accorded on a relevant prohibited ground.

(38) For ease of reference, we have included some additional findings of fact below (alongside our conclusions).

The legal principles

16. We now set out a statement of what we consider to be the applicable principles of law:

(1) What evidential rules have to be applied in the context of a claim of discrimination on the ground of colour? It seems to be clear that the relevant principles are best expressed in the Court of Appeal judgement in King v Great Britain-China Centre [1992] ICR 516, 528-529, in the following terms:

"From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (3)  The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but … 'almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

(2) The effect of the King principles is that a tribunal is entitled, but is not required, to decide in favour of a claimant in a skin colour discrimination case if the claimant has established a "prima facie" case, which is not the subject of a satisfactory (in the sense of credible and non-discriminatory) explanation from the employer.

(3) In the context of employment discrimination law, there is said to be prima facie evidence, in relation to a particular issue, if a party's evidence in connection with that issue is sufficiently weighty to entitle a reasonable tribunal to decide the issue in his favour.

(4) This is a case in which the claimant's assertions include an assertion that he has received less favourable treatment (on the ground of his skin colour) than the treatment which would have been accorded to a hypothetical statutory comparator.

(5) Where a hypothetical comparator is cited (as in this case) it will usually be more convenient for a tribunal to focus, in the first instance, on the question of whether or not the relevant treatment was accorded on the ground of the claimant's skin colour.

(6) In considering whether or not any relevant treatment was affected by skin colour, it is important to bear in mind that, in the context of direct racial discrimination, treatment will be on the ground of skin colour even if the victim's skin colour is not the main ground for the treatment, so long as the ground of colour is a substantial and effective cause. In other words, the colour ground needs only be an important, or significant, factor. (In this context, see Igen Ltd v Wong [2005] IRLR 258, at paragraph 37 of the judgement).

(7) Even if the racial ground element of the definition is satisfied, it will also be necessary (if the claimant is to succeed) for the tribunal to conclude that the "less favourable treatment" element of the racial discrimination definition has also been met.

(8) The "less favourable treatment" element will be satisfied if an actual or hypothetical white-skinned comparator has been treated, or would have been treated, more favourably than the claimant has been treated in the relevant instance.

(9) In other words, the claimant has to establish less favourable treatment, by reference to an appropriate statutory comparator, but the statutory comparator can be either an actual comparator or a hypothetical comparator.

(10) In cases (like the present case) in which a hypothetical comparator is cited, it is appropriate for a tribunal to construct a picture of how a hypothetical comparator would have been treated in comparable surrounding circumstances.

(11) When a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment. Was the treatment, in reality, accorded on the ground of the claimant's skin-colour? That will call for an examination of all of the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the ground of his skin-colour, was less favourable than was or would have been afforded to others.

(12) The reasonableness or unreasonableness of the treatment complained of is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was accorded on racial grounds: See Bahl v Law Society [2004] IRLR 799, especially at paragraph 101 of the judgement; see also paragraph 51 of the judgement in Igen (where the Court of Appeal accepted that a tribunal could decide that there was a prima facie case of unlawful discrimination mainly on the basis of the tribunal's findings that there was unexplained unreasonable conduct on the part of the employer).

(13) Article 63 of the 1997 Order makes provision in respect of racial discrimination questionnaires. That Article provides that if it appears to a tribunal that a respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period to a racial discrimination questionnaire, the tribunal "may … draw any inference from this fact that it considers it just and equitable to draw, including an inference that [the employer] committed an unlawful act [of racial discrimination]."

(14) A finding of discrimination on racial grounds under the 1997 Order does not require that the discriminator was consciously motivated in treating the claimant less favourably; it is sufficient if it can properly be inferred from the evidence that, regardless of the discriminator's motive or intention, a significant cause of his decision to treat the claimant less favourably was the claimant's race. (See Nagarajan v London Regional Transport [1999] ICR 877).

The issues

17. In relation to each of the claimant's unlawful discrimination complaints (including the dismissal complaint as well as each of the detrimental treatment complaints), the issues can be summarised as follows:

(1) Was the relevant treatment accorded to the claimant because of his skin colour?

(2) If so, has the claimant thereby been treated less favourably than the relevant alleged perpetrator (the person or persons accused of the relevant act of discrimination) treats or would have treated an appropriate, actual or hypothetical statutory comparator?

Conclusions: Dismissal claim

17. We now set out our conclusions in relation to the claim of discriminatory dismissal:

(1) On 30 March 2007, the claimant seriously assaulted Mr Bailie, his line manager. The assault was a grossly disproportionate, and entirely inappropriate reaction to what Mr Bailie said and did. The assault happened because the claimant momentarily lost his self-control.

(2) In such circumstances, most reasonable employers would dismiss the relevant employee.

(3) We are satisfied that Mr Bailie is not a man who is instinctively racist on colour grounds.

(4) We are satisfied that the claimant's skin colour was of no significance in the decision-making process which culminated in the claimant's dismissal.

(5) We are satisfied that, if the claimant had been white, he would still have been dismissed. And if Mr Bailie had done what the claimant did during that incident, Mr Bailie would have been dismissed.

(6) Accordingly, we must conclude that the dismissal was not racially discriminatory on the ground of colour.

Conclusions: Detrimental treatment claims

18. We now set out our conclusions in respect of the claims of "other" discriminatory detrimental treatment:

(1) We are satisfied that, during the period from August 2007 until mid-March 2008, Mr Bailie was well-disposed towards the claimant and that the claimant and Mr Bailie had a good working relationship throughout that period.

(2) We are satisfied that Mr Bailie did not have any instinctive dislike for the claimant on colour grounds.

(3) The early 2007 decision to extend probationary periods happened within the context of the amalgamation of companies; was not racially discriminatory; and, in any event, is not the subject-matter of any racial discrimination complaint in these proceedings.

(4) The decision to further extend the claimant's probationary period, on 27 March 2007, is however the subject of a racial discrimination complaint in these proceedings. By 27 March 2007, there had been incidents involving questionable conduct on the part of the claimant. (See sub-paragraphs (9) and (10) of paragraph 15 above). Many reasonable employers would extend the probationary period of a probationary employee, against a background of such incidents.

(5) Having taken due account of the latter factual conclusion, within the context of the evidence in this case as a whole, we are satisfied that the claimant's skin colour was of no significance in the context of the March re-extension of the probationary period. (See sub-paragraph (2) above).

(6) We are satisfied that the claimant showed considerable anger when he was told on 27 March by Mr Bailie that his probationary period was being re-extended and that, in those circumstances, Mr Bailie did genuinely fear that the claimant would immediately resign in a huff and would never return to the workplace. Most employers, in that situation, would have taken the keys off an employee.

(7) Against that background, and in light of the conclusions set out at sub-paragraphs (1) and (2) above, we are satisfied that the claimant's skin colour was not a factor in Mr Bailie's decision to take the keys back from the claimant.

(8) In relation to the toilet situation, especially when one has regard to the previous history in respect of use of the ladies toilet, we are satisfied that Mr Bailie's treatment of the claimant was proportionate and appropriate. Having weighed that factor, in particular, alongside the conclusions set out at sub-paragraphs (2) – (4) of paragraph 15 above, we are satisfied that the claimant's skin colour was not a significant decision-making factor in connection with the treatment which the claimant received in connection with the toilets issue on 30 March 2007.

(9) The claimant was badly treated in respect of the docket receipt issue. The attempted obliteration of the time on the docket receipt would probably have caused many reasonable employers to make some discreet enquiries. However, in all the circumstances, the decision to suspend the claimant was a grossly disproportionate reaction. That grossly unfair and disproportionate reaction is a matter to be considered in deciding whether or not the relevant investigatory and suspension processes were tainted by factors relating to the claimant's skin colour. Was the claimant's skin colour a significant reason for the relevant mistreatment, and would a white man have been treated in the same way in much the same circumstances?

(10) We were not satisfied with Mr Bailie's explanation for that mistreatment. His explanation consists of little more than an assertion that the relevant treatment was appropriate and proportionate. Furthermore, we are satisfied that some other aspects of Mr Bailie's evidence was inaccurate. (See paragraph 15(28) above).

(11) We consider that the inappropriateness and disproportionality of the relevant treatment is a factor to be considered in deciding whether or not the relevant mistreatment constituted mistreatment on the ground of colour).

(12) However, in considering that matter, we must take account of all of the evidence in the case. Therefore, on that question, we take account, in particular, of two other relevant conclusions. First, we have concluded that the claimant and Mr Bailie had a good working relationship throughout the period from August 2007 until March 2008. Secondly, we have concluded that the claimant's skin colour was not a factor which caused Mr Bailie to instinctively dislike the claimant.

(13) Against that background, and for those reasons, we are satisfied, on all the available evidence, that no tribunal could properly conclude that Mr Bailie's mistreatment of the claimant, in relation to the diesel docket controversy, was in any way affected by racial bias. Even allowing for the unsatisfactory (in the sense of unconvincing) explanation for the relevant mistreatment, we are satisfied that this mistreatment was probably untainted by racial bias. Therefore, the diesel docket discrimination claim cannot be upheld.

Chairman:

Date and place of hearing: 30 July – 1 August 2008, Belfast

Date decision recorded in register and issued to parties: