THE INDUSTRIAL TRIBUNALS    

CASE REF:    441/13  

CLAIMANT:	Marc Van Rompaey

RESPONDENT:	Concentrix Europe Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was subjected to detriment on grounds of his activities as an employee representative and is awarded compensation in the sum of £1,760.00.

Constitution of Tribunal:

Chairman:	Mrs Ó Murray

Members:	Mr A Crawford
	Mr R McKnight

Appearances:

The claimant represented himself.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Pinsent Mason Solicitors.

THE CLAIM

1.	The claimant claimed that he was subjected to detriment on grounds of his activities as an employee representative.

THE ISSUES

2.	The issues for the tribunal were as follows:-

(1)	Whether the claimant was subjected to three detrimental acts namely: an accusation by Miss Mahaffey at a meeting on 24 August 2012 that he had instigated agitation; the claimant being unjustifiably moved to telephone duty in October 2012 which was to his detriment; being spoken to aggressively by Miss Aydin on 30 November 2012.

(2)	Whether any alleged detrimental acts were on grounds of his activities as an employee representative.

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and from Mr Stil on the claimant’s behalf.  For the respondent the tribunal heard evidence from Miss Mahaffey, Business Manager; Mr Ryan, Business Manager; Mr Van Straten, Performance Manager; Miss Aydin, People Performance Manager; Miss Ni Bhuitigh, Employee Relations Specialist; Mr Robert Taylor, Business Manager.  The tribunal also had regard to the documentation to which it was referred.

AMENDMENT APPLICATION

4.	At the outset of the hearing the claimant sought to amend his claim to include two additional heads of claim, namely failure to consult on a TUPE transfer and failure to consult where collective redundancies were proposed.  For reasons given orally at the hearing the amendment applications were refused.

THE LAW

5.	Employee representatives are protected from detriment by the combined provisions of the Information and Consultation of Employees Regulations (Northern Ireland) 2005, at Regulation 33, and the Employment Rights (Northern Ireland) Order 1996, (as amended) (see Articles 71 and 72)).

6.	The scope and effect of the provisions is discussed at Harvey Division DII paragraphs 311 to 340.

7.	Paragraphs 594 and 596 to 597 outline the correct approach of the tribunal in such cases: 

	“[594]  The correct approach, it is submitted, is to ask:

•	first, whether the employer has in fact treated the complainant differently (from an actual or hypothetical comparator);
•	second, whether the reason for that different treatment was the employee’s protected act or status (was he treated differently because he was a zealous safety representative or because he made a protected disclosure or as the case may be); and 
•	third, whether that different treatment did in fact result in a detriment to the employee, intended or unintended, foreseen or unforeseen.   

If the answer to all three questions is ‘yes’, then the employee has a legitimate complaint.”  

“[596]  In determining the grounds upon which a particular act was done it is necessary to consider the mental processes both conscious and unconscious of the employer.  It is not sufficient to simply apply a ‘but for’ test to the facts (see Harrow London Borough v Knight [2003] IRLR 140, EAT).

[597]  Only the employer knows what prompted him to behave as he did, and therefore formal onus of proof is placed upon the employer to show the ground upon which any act, or any deliberate failure to act, was done (ERA 1996 s 48(2); NMWA 1998 s 24(2)) (see further para [631] ff).  The employer must prove on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the employee (see NHS Manchester v Fecitt [2011] Civ 1190, [2012] IRLR 64, CA).  Therefore, if the employer fails to prove that the act, or deliberate failure, complained of was ‘in no sense whatsoever’ on the prohibited grounds, the question or issue must be determined in favour of the employee.”

8.	Detriment is determined using the Shamoon test which is whether a reasonable worker would or might take the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of being disadvantaged.  

9.	In the Vento case the Court of Appeal gave guidance on the assessment of damages for injury to feelings.  The guidance states as follows:

“Employment tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury.  

(1)	The top band should normally be between £15,000 and £25,000.  Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race…Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(2)	The middle band between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.

(3)	Awards of between £500 and £5,000 are appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence.  In general, awards of less than £500 are to be avoided altogether as the risk being regarded as so low as not to be a proper recognition of injury to feelings.  

There is of course within each band considerable flexibility allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.  The decision whether or not to award aggravated damages and if so what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.

Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for no pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage.  In particular double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage.  The extent of overlap will depend on the facts of each case.”

10.	The Vento bands were reconsidered by the EAT in Da’Bell v National Society for the Prevention of Cruelty to Children EAT 0227/09.  The current middle and upper bands are £6,000 to £18,000 and £18,000 to £30,000.  

11.	Mr Warnock provided written submissions supplemented by oral submissions and he referred to several authorities all of which were considered by the tribunal in reaching its conclusions.

FINDINGS OF FACT AND CONCLUSIONS

12.	The tribunal took account of all submissions from both sides and found the following facts and reached the following conclusions having applied the legal principles to the facts found.

13.	During the period relevant to this claim the claimant was an employee of the respondent.  On 4 April 2012 the claimant was elected as an employee representative on the respondent’s Employee Consultative Board (ECB).  The claimant held the position of employee representative until he resigned from that position on 31 December 2012.

14.	It was common case that at one stage in 2012 it appeared that redundancies might be required in one part of the respondent’s business which dealt with contracts for MSN.  This was due to that client reducing the amount of work it needed the respondent to do.  It appears that this decision of the client was sudden and led to a brief sent by the respondent on 27 July 2012 indicating that there would be a reduction in head count.  

15.	The claimant had a redundancy at risk consultation meeting on 7 August 2012. 

16.	Ultimately the decision which led to the proposal for redundancies was reversed by the client and no compulsory redundancies resulted.  It was common case that, firstly, there was unhappiness amongst the claimant and other workers about the way the redundancy process was handled and secondly, that this led to an apology from a manager to all staff affected.  

17.	It was common case that the claimant had raised issues at several points in relation to the way the proposed redundancy process was handled which essentially related to a lack of communication and lack of engagement of the ECB.  The claimant also complained that information was not communicated quickly enough and that those on warnings could not apply for another job.  

18.     Management appeared to accept that they had not engaged ECB early enough as in their apology e-mail of 20 September 2012 they state: “For future reference that ECB will be involved from an early stage and to please use ECB to flag any concerns”.

19.	There seemed to be no dispute (and we so find) that the claimant raising concerns was part of his role as an ECB representative.  It is not part of our task to assess whether or not any points raised were valid.  If we find that the claimant suffered detriment the issue for us is whether that was connected in the requisite way to his activities as an ECB representative.

20.	In the claim form the claimant alleged several detriments which had reduced by the time of the hearing to three detriments.  We deal with each of them in turn below.

Meeting 23 August 2012

21.	The first detrimental act alleged related to the meeting of 23 August 2012 when the claimant was called to a meeting with Miss Mahaffey and Miss Crilly of HR.  

22.	Miss Mahaffey’s position was that she called the claimant to the meeting because she had received approximately 15 complaints via managers about the claimant essentially pestering fellow employees to join the Union.

23.	The claimant’s case was that he had had no difficulty with his managers or his employers until the end of August when he was accused at this meeting by Miss Mahaffey of instigating unrest.  The claimant also alleged that Miss Mahaffey said that he was taking ECB “too seriously”.  The claimant connected this to his objections that he had raised about the way the proposed redundancies were being handled.

24.	Miss Mahaffey’s evidence was that she had received feedback from her direct reports saying that the claimant was encouraging people to actively sign-up to unions and that people felt that they were being forced to do so.  She said that there were 15 to 16 complaints and that she had spoken to the complainants herself before meeting with the claimant.  The problem was that the individuals were being told to gang up together.  Her motive in meeting the claimant was to protect him and to make him aware that people had come to their managers.  She hoped that the claimant would get his point across with people on the floor rather than bullying them into signing up to the Union.  

25.	The claimant’s evidence in his written statement was that he was accused of instigating agitation and he felt intimidated.

26.	There is no mention of complaints in the respondent’s note of the meeting.  The reference is to: “Rumour around frustration to force people to sign up to unions and attend ECB meetings.  People feel you are contributing to the negativity.”  We would have expected to see specific reference to complaints of bullying given Miss Mahaffey’s evidence and given the delicacy of admonishing a representative about his activities. The absence of any such reference detracts from Miss Mahaffey’s credibility.  We therefore accept the claimant’s account as his account of Miss Mahaffey’s behaviour is supported by the comments of Ms Aydin in November 2012 (see below).

27.	We further find that the claimant has proved that a detriment occurred and that it was on grounds of his activities as an employee representative.  Being accused of instigating agitation and taking ECB too seriously, amounts to a detriment as it amounted to managers admonishing the claimant for his activities and might have deterred him from pursuing his activities vigorously in the future.  In addition, following the meeting, the claimant’s email refers to him being caught by surprise and being treated very intimidatingly.  

Telephone duty

28.	The second detriment alleged by the claimant related to his being moved to telephone duty from 26 October 2012 to 15 December 2012.  We find that the claimant has not proved that he was subjected to a detriment in this regard for the following principal reasons:-

	(1)	We accept Mr Van Straten’s evidence about the manpower difficulties in the relevant team at that time.

	(2)	We accept Mr Van Straten’s evidence that one member of staff had a stammer and the other had hearing difficulties and therefore were not suitable for telephone duties at that time.

	(3)	The claimant appears to have actually volunteered for the telephone duties at that time and there appears to have been an acceptance on his part that there was a shortage of people.  

	(4)	The primary issue for the claimant was that he said that he had a verbal agreement that he would not be put on telephone duties in that way when he agreed to move to this contract.  We accept the respondent’s evidence that they tried to find evidence of this agreement but could not do so.

	(5)	A key point which fatally weakens the claimant’s case on this point is that another worker, Mr Ljeiten, who the claimant says had the same agreement in this contract was treated the same way as the claimant and he was not an ECB representative nor was he a TU representative.  The claimant’s case was that Mr Ljeiten also had a verbal agreement not to work on the telephones and that he was forced to go on the telephones too.  

	(6)	The claimant agreed that the extent of telephone call work was two to three telephone calls a day amounting to approximately 30 minutes of the day and that the time spent on calls was minimal. 

29.	For the reasons set out above we find that the claimant has failed to show that the move to the telephones which lasted for a short period was a detriment.

Incident with Miss Aydin

30.	The third detriment alleged related to an incident with Miss Aydin which took place on 30 November 2012.

31.	Mr Stil was unhappy about having to do telephone work and sent an e-mail to his manager, Miss Aydin, on 30 November 2012, essentially stating that he no longer wanted to work on the telephones given that others were allowed to choose not to do so.

32.	The claimant’s case was that he saw the e-mail that Mr Stil had sent and he went over to Mr Stil’s desk to advise him to think carefully about what he was doing and to seek advice before taking that course about the telephone duties.  The claimant’s case was that Miss Aydin approached the desk and was aggressive to him, wanted to know what they were talking about, asked if they were talking about the e-mail and accused the claimant of being a trouble-maker and said: “We’re keeping an eye on you”.  

33.	In the claimant’s written account he states that she told him: “You are a 
trouble-maker and the managers are keeping an eye on you to avoid you from making more troubles and I will report this to your manager”.  (sic)

34.	In the claim form the claimant says that she told him that all the managers considered him to be a trouble-maker and that they were keeping an eye on him.

35.	Mr Stil’s evidence was that Miss Aydin approached him and the claimant and said: “You have been causing problems before and we’re keeping an eye on you”.  In cross-examination he said that she had asked if they were talking about the e-mail.  Mr Stil also said that it sounded like Miss Aydin was talking about the claimant being a trouble-maker.  He stated that he was shocked at what she had said and he confirmed that the claimant was annoyed at the interruption.

36.	Mr Stil and the claimant had an e-mail exchange immediately after this incident.  In that exchange the claimant asks Mr Stil if he heard her say that the managers were keeping an eye on him so as not to cause any more trouble and because they want to avoid him creating more problems.  Mr Stil confirmed that he had heard that.

37.	Miss Aydin’s account was that she went to speak to the two men because she saw them talking for five or ten minutes and it meant that they were not at their work.  Her account was that the claimant immediately became aggressive and stormed off.

38.	We do not accept Miss Aydin’s account.  We prefer the claimant’s account as it is corroborated by Mr Stil and it is corroborated in its essentials by the contemporaneous e-mail exchange.  Whilst the wording used may vary between the different accounts, the essential point being made by the claimant was that he was told in an aggressive manner by Miss Aydin that he was a trouble-maker and that managers were keeping an eye on him.

39.	This took place in an open-plan office where others would likely have heard what happened.  

40.	The comments by Miss Aydin accord with the sentiments expressed by Miss Mahaffey on 23 August 2012, that is that managers regarded him as a 
trouble-maker and we infer that it related to the queries he had recently raised in relation to the redundancy process.  There is no dispute that he was raising these issues in his capacity as a representative.

41.	We find that the claimant suffered a detriment by being aggressively accused by Miss Aydin of being a trouble-maker and by being told managers were keeping an eye on him.  Given that the claimant has proved that he was subjected to a detriment in the Aydin incident the burden moves to the employer to show that the conscious or unconscious motivation for the act was not related to the activities as a representative.  It is clear to us that the sentiments expressed by Miss Aydin related to the claimant’s activities as a representative (given the context and the previous comments by Miss Mahaffey) and the claimant therefore succeeds on that basis.

SUMMARY

42.	We have adopted the approach outlined in Harvey by looking firstly at whether or not the claimant suffered some detriment.  We find that the claimant did suffer detriment in the Mahaffey incident in that management made clear their disapproval of his activities.  We found that he was subjected to detriment in the Aydin incident in that he was chastised forcefully in an open planned office where it was likely that others observed this.  

43.	We find that the detriment was indeed caused by an act of the employer as both incidents involved positive acts by the respondent’s managers in work.

44.	The third element which we must examine is whether or not the detrimental acts were done on the grounds of the claimant’s activities or proposed activities as an employee representative.  Here we must look at the respondent’s motivation whether conscious or unconscious ie we must look at what was the reason why the claimant was treated detrimentally.

45.	At this stage the burden moves to the respondent to show on a balance of probabilities that the act complained of was in no sense whatsoever on the prohibited ground.  As we have rejected Miss Mahaffey’s account that she only spoke to the claimant to protect him, and as we have accepted the claimant’s account, we find that the act was motivated by the claimant’s activities as an employee representative.  On the claimant’s account he was being chastised for raising issues relating to the redundancy process and the lack of involvement of the ECB.  It was therefore clearly because of his activities as a representative.  The incident with Miss Aydin built further on the first incident by making it clear that the claimant was being watched because his activities caused displeasure to managers.  

46.	We therefore find that the detrimental acts complained of were committed on grounds of the claimant’s activities as an ECB representative.  We have rejected the accounts given by the two managers and find that the claimant’s activities as a representative materially influenced their behaviour towards him in the two incidents.  

COMPENSATION

47.	We find that this case falls within the low band of Vento and have taken account of the following factors in deciding on the amount of compensation:

(1)	We have found that two detrimental acts occurred on 23 August 2012 and 30 November 2012.  This was therefore not a one-off act.  It did however relate to two instances which were fairly close together.

(2)	At hearing the claimant’s prime concern and annoyance appeared to be focussed on his move to telephone duties between the end of October 2012 and 15 December 2012.  As we have not found this to be a detrimental act, the claimant’s annoyance or injury to feelings in relation to that act does not result in compensation.

(3)	The claimant clearly felt frustrated and annoyed that issues which he had raised as part of his role led to him being admonished.  This made him feel that there was no point in being involved in the ECB.

48.	Taking account of the above factors and the guidelines in Vento, we assess compensation in this case at £1,600.00.

49.	The calculation of compensation is therefore as follows:-

Date of first detrimental act: 23 August 2012.

Date of calculation: 23 November 2013.

Injury to feelings:   				£1,600.00
Interest @ 8% per annum 
for 15 months: = 				£   160.00
					Total:		£1,760.00

50.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:   23-24 July and 23 August 2013 at Belfast.

Date decision recorded in register and issued to parties: