THE INDUSTRIAL TRIBUNALS

CASE REF:	6955/18

CLAIMANT:			Declan Toner

RESPONDENTS:		1.	LF Fasthouse Limited
				2.	James Grant
				3.	Collette Meenan
				4.	Niall Higgins

DECISION 

The unanimous decision of the tribunal is that the claimant’s claim of direct age discrimination is dismissed.

CONSTITUTION OF TRIBUNAL:

Employment Judge:	Employment Judge Bell
		
Members:			Mr I Carroll
				Mr I Foster

APPEARANCES:

The claimant represented himself.

The respondents were represented by Mr M Corkey, Barrister-at-Law, instructed by Carson McDowell LLP.  

THE CLAIMS

1.	The claimant in his claim complained of age discrimination and breach of contract in relation to his treatment and dismissal on 7 March 2018.  At CMD on 
19 September 2018 the claimant’s breach of contract claim was dismissed following its withdrawal and the claimant confirmed that he was not pursuing a claim of indirect discrimination.  

2.	The respondents in their response contended that the claimant was dismissed within his probationary period for reasons connected to productivity (including work speed, following of procedures and carrying out of unnecessary tasks) following unsuccessful attempts to find a function to which he was suited after moving him across different functions within the factory and that the dismissal was not tainted by unlawful discrimination.

THE ISSUES

3.	The issues for determination were as follows (as agreed at CMD and again confirmed at hearing):

	Legal Issues

(1)	Has the claimant established a prima facie case of age discrimination in order for the burden of proof to shift to the respondent under Regulation 42 Employment Equality (Age) Regulations ( Northern Ireland) 2006 (“the Age Regulations”)?
 
(2)	Did the respondents unlawfully directly discriminate against the claimant on grounds of age contrary to Regulations 3(1)(a) and 7(2)(d) of the Age Regulations in the treatment of which the claimant complains of and by dismissing him?

(3)	Who is the appropriate comparator in respect of the relevant complaint and is that comparator real or hypothetical?

(4)	If the respondent has discriminated against the claimant, is that treatment objectively justifiable pursuant to Regulation 3(1) of the Age Regulations as a proportionate means in achieving a legitimate aim? 

(5)	If the tribunal finds that the second, third and fourth respondents discriminated against the claimant, did they do so in the course of their employment and if yes can the first respondent establish the statutory defence set out in Regulation 26(3) of the Age Regulations (Northern Ireland) 2006.

	Factual Issues 

(1)	Was the Line Supervisor aggressive toward the claimant generally, culminating in a confrontation on 18 October 2017 when the claimant states he was threatened with physical violence and dismissal?

(2)	Did the respondent James Grant behave in a passive aggressive manner towards the claimant, and if so, did this constitute less favourable treatment on grounds of age?

(3)	Was the claimant placed under work pressure in that work expectations from him differed from those of others? If so, was this less favourable treatment on grounds of age?

(4)	Following the claimant’s complaint to the third respondent, Collette Meenan about Niall Higgins, was he falsely labelled as unproductive? Was this on the grounds of his age? 

(5)	Was the claimant dismissed for failing to complete his required probation standards or was he dismissed on grounds of his age?

(6)	Did the claimant fail to achieve probation standard, and in particular was he found to have had poor productivity?

(7)	What steps were taken to support the claimant? Was he given an opportunity to improve? Did he in fact fail to improve?

(8)	Did the second respondent James Grant desire a younger workforce?

(9)	What was the age profile of the workforce before the claimant’s dismissal, and after the recruitment exercise carried out in April 2018?

(10)	Were the claimant’s complaints appropriately investigated and dealt with? If not did this constitute less favourable treatment on grounds of his age?

(11)	Was the claimant singled out in being required to manhandle Glu-Lam Beams on his own? If so, did this constitute less favourable treatment on grounds of his age?

SOURCES OF EVIDENCE

4.	The tribunal considered the claim, response, agreed trial bundle, additional documentation provided at hearing including extracts from the claimant’s diary, character references, dismissal meeting minutes, also written witness statements from the claimant on his own behalf and from James Grant (Production Manager),  Niall Higgins (Production Supervisor), Colette Meenan (Office Manager) and William Usher (Operations Manager) for the respondent, together with sworn oral testimony from the claimant, Mr Grant, Mr Higgins, Ms Meenan and Mr Usher.  Limited weight was attached to written statements for which no witness was called and evidence unable to be tested under cross-examination.  This decision does not record all the competing evidence but rather, records the principal findings drawn from all the evidence.

THE LAW

5. 	The Employment Equality (Age) Regulations (Northern Ireland) 2006 prohibit discrimination on grounds of age unless it is justified.  The initial burden is on the claimant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that an act of discrimination has occurred.  If the claimant succeeds in proving such facts the burden shifts to the respondent to prove that any detrimental acts were in no sense whatsoever connected to the claimant’s age or the protected act or acts. 

	In particular the Age Regulations provide at:

“3.—	(1) 	For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if — 

(a)		on the grounds of B’s age, A treats B less favourably than he treats or would treat other persons,… and A cannot show the treatment….to be a proportionate means of achieving a legitimate aim.

(2)	A comparison of B’s case with that of another person under 
paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. …

7.— 	(2)	It is unlawful for an employer, in relation to a person whom he employs at an establishment in Northern Ireland, to discriminate against that person— …

 (d) 	by dismissing him, or subjecting him to any other detriment. …

26.—(3)	In proceedings brought under these Regulations against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description. …

42.—(2)	Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent— 

(a)		has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or

(b)		is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,

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

6.	The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures (SDDP) to be followed as a bare minimum by an employer contemplating a dismissal.  This includes sending a letter to an employee warning that they are at risk of dismissal and inviting them to a meeting, holding a meeting on reasonable notice and a dismissal letter stating that the employee has the right of appeal and the employee is entitled to exercise that right at a further meeting.  Failure to comply with the statutory procedure may result in an automatically unfair dismissal and an adjustment of compensation where the employee has qualifying service of one year to make a complaint of unfair dismissal.  In this case the claimant’s length of service was however less than one year. 

7.	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 to 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.”

8.	The Court of Appeal considered the shifting burden of proof in a discrimination case in S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279.  It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof.  At Paragraph 19, Lord Justice Sedley stated:-

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal.  In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire.  In other instances it may be furnished by the context in which the act has allegedly occurred.”

9.	The EAT in Laing v Manchester City Council [2006] IRLR 748 stated at Paragraphs 71 et seq:-

“(71)	There still seems to be much confusion created by the decision in Igen  v  Wong.  What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

(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 nice 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 behaved as 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.”  

10. 	Mr Justice Gillen in Thorton v Northern Ireland Housing Executive [2010] NIQB 4; paragraphs 12 and 13 set out factors to consider in assessing the credibility of a witness:-

“[12]	Credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence.

[13] 	In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following,

•	The inherent probability or improbability of representations of facts,

•	The presence of independent evidence tending to corroborate or undermine any given statement of fact,

•	The presence of contemporaneous records,

•	The demeanour of witnesses e.g. does he equivocate in cross-examination,

•	The frailty of the population at large in accurately recollecting and describing events in the distant past,

•	Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication,

•	Does the witness have a motive for misleading the court,

•	Weigh up one witness against another.” 

11.	If there has been less favourable treatment of the claimant, the Tribunal must determine whether it had been on the grounds of age or for some other reason - Nagarajan v London Regional Transport [1999] IRLR 572 HL.

12.	Unreasonable conduct does not necessarily equate to evidence of direct discrimination - Singh v Biotechnology and Biological Sciences Research [2011] EqLR 1248 CS.

13.	An honest belief of a claimant that he has suffered less favourable treatment does not of itself establish such less favourable treatment but is a matter for the tribunal to decide - Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT.

14.	Often it will be appropriate to start by identifying the reason for the treatment the employee complains of, if the answer is a protected characteristic, the finding of less favourable treatment will likely follow - Shamoon v Chief Constable of the The Royal Ulster Constabulary [2003] UK HL11.

AUTHORITIES

15.	The following were referred to by Mr Corkey:

	Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT

	Nagarajan v London Regional Transport [1999] IRLR 572 HL

	Singh v Biotechnology and Biological Sciences Research [2011]
	EqLR 1248 CS

	Igen v Wong [2005] IRLR 258 CA

	Madarassy v Nomura International PLC [2007] IRLR 246 CA

	Thorton v Northern Ireland Housing Executive [2010] NIQB 4

	Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UK HL11

CREDIBILITY 

16.	At the heart of this case is a conflict in evidence about whether comments were made by Mr Grant distinguishing the claimant on grounds of his age and stating that the respondent needed younger employees. 

17.	Mr Corkey referred to relevant considerations identified in Thorton in the assessment of credibility.  He contended that the claimant’s suggestions that he did not raise allegations of age discrimination despite being aware of age discrimination, in order to maintain good relations so as not to affect him getting his job back, were not credible, based on the claimant’s evidence of having raised many other allegations without concern; that the claimant’s suggestion that it was because he would not be listened to did not explain the absence of any reference to age until the claimant’s claim form.  Mr Corkey contended that the claimant had a motive to mislead in that his claim for unfair dismissal without the suggestion of age discrimination would have been rejected for insufficient length of service and this was supported by the narrative description given of what the claimant ‘felt’ to be details of his claim, rather than what he ‘knew’ based upon the specific comments subsequently alleged. 

18.	We found the claimant’s evidence overall exaggerated and often inconsistent.  In particular;  the claimant’s account of Mr Grant having angrily said ‘you’re hardly that stupid at your stage of the game’ while looking into the claimant’s face on 
16 October 2017 and later concession that Niall Higgins present taking statements would ‘probably would not have heard’; the claimant’s account of Mr Grant having been callous towards all employees both older and younger when investigating the lift strap failure and later account of Mr Grant making comment distinguishing the claimant on grounds of his age, but no mention thereof in the claimant’s claim form, record in his diary, report made thereof nor suggestion of age discrimination raised at any earlier stage during his employment or appeal stage and varying reasons given as to why. 

19.	We are of the view the evidence of Mr Higgins, Mr Grant and Ms Meenan however underplayed their interactions with the claimant all as mild mannered and general recollection of the correct dates of events occurring around late January and early February 2018 were confused.  We consider that notes of two meetings by Ms Meenan on 7 February 2018 are not contemporaneous but were written at a later date and whilst accurately reflect the content of discussions that took place with the claimant confuse an earlier discussion that took place at the end of January 2018 with a different complaint raised by the claimant on the morning of 7 February 2018.  We consider that their evidence, including that of 
Mr Usher, was otherwise reliable, and found in particular the evidence of Mr Grant unequivocal, straight forward and overall credible.  

FINDINGS OF FACT AND CONCLUSIONS

20.	The tribunal considered all the evidence both oral and documentary, found the following relevant facts proved on a balance of probabilities and reached the following conclusions:

21.	The claimant is an experienced joiner, a good craftsman and an intelligent man who holds a BSc (Hons) in Environmental Science.  The claimant is an exceptionally confident and forthright person and is capable of robustly asserting his view.  

22.	The first named respondent (hereinafter referred to as ‘the respondent’) manufactures modular closed panel timber framed systems for the construction industry employing both Joiners and General Operatives in its assembly process. 

23.	Following interview by Ms Meenan and Mr Mullan (the respondent’s project manager), with the knowledge of Mr Grant, the claimant was employed as a Joiner by the respondent from 16 October 2017.  Mr Higgins was the claimant’s line manager.

24.	Under his contract of employment the claimant was subject to a six month probationary period.  Clause 8 of his contract specifies:

“You will be required to serve a probationary period for the first six months of employment with the company.  Progress during this period will be monitored by your manager.

However in the event of you not making satisfactory progress under instruction, at any time during or at the expiration of the probationary period, because of lack of capability or through lack of interest or effort, or any other reason, your employment will be terminated.  

In the event of unsatisfactory progress your employment will not be regarded as confirmed and will be terminated either during or at the end of probation in accordance with the provisions relating to notice set out below…

After probation and providing your employment is confirmed you will be subject to the Company’s disciplinary procedure referred to in the Company Handbook”.

25.	The respondent paid Joiners a higher starting rate of pay than General Operatives with General Operatives pay being increased on a successful review following their first six weeks in employment.  Whilst a six week review was normally carried out for General Operatives, the respondent did not in practice always carry one out for other employees who had started on a higher rate of pay, this included Mr Grant and the claimant.

26.	At the time of the claimant’s employment the respondent was in its infancy with its main focus being on the production process and whilst it regularly recorded and analysed data on its production output from the various stages of its production process, it did not at that time record the names of specific personnel working on each stage. 

27.	By way of induction it was the respondent’s practice to pair new employees to work alongside current employees experienced in the function with which they were tasked.  This practice was followed with the claimant. 

28.	Mr Grant in his role as Production Manager spoke regularly to team leaders and supervisors on the factory floor.  He was not involved in the daily tasks of all employees on the floor.  

29.	On 17 October 2017 the claimant was working alongside a General Operative 
Mr Levasseur, who was French.  As per the claimant’s evidence he had realised a better way to do something and Mr Levasseur said to him ‘No that is not the way’ to which the claimant responded ‘I am a joiner.’ Another employee, Mr Oldcroft, later told Mr Higgins that the claimant was ‘fighting with the Frenchman’.

INCIDENT 18 OCTOBER 2017

30.		On 18 October 2017 the claimant who had been moved to a different function each day was working alongside Mr Oldcroft building roof trusses.  As per the claimant’s evidence when he highlighted to Mr Oldcroft that component studs being used were too long Mr Oldcroft responded that Mr Higgins was ‘going to go mad’ and despite the claimant’s advice that they needed re-cut, fitted them anyway.  The claimant considered Mr Oldcroft’s lack of experience meant there would be an issue when they came to fitting plasterboard. 

31.	When Mr Oldcroft showed Mr Higgins the problem Mr Higgins instructed the claimant to screw the plasterboard on, which the claimant did.  Mr Higgins was greatly frustrated, not by Mr Oldcroft or the claimant, but by the major issues the respondent was having with its design cutting program cutting timber incorrectly and the considerable time already spent by Mr Oldcroft and the claimant and likelihood they might now have to start over. 

32.	Mr Higgins went to check drawings on his computer to see if the sheeted panel could be used to avoid further time being spent reworking it, but concluded it would not work and returned to tell Mr Oldcroft and the claimant this.  The claimant in the meantime knowing himself that it would be no good removed the screws again.  Mr Higgins on returning instructed the claimant to screw the plasterboard off again.  The claimant replied ‘I already have’.  We consider that the claimant’s account of the interaction that next followed is exaggerated in its reference to him having been threatened by Mr Higgins with physical violence, but that the account of Mr Higgins underplays it with his suggestion that he at no time used swear words.  We find that Mr Higgins’ frustration at the technical problem that had arisen which he had so far expressed generally to both employees, at that point, became specifically directed toward the claimant when he passed comment suggesting that he had anticipated the problem and had in effect ‘told them so’.  Mr Higgins in response advised the claimant not to say anything more and told him that he could leave if he did not like their way of doing things.  

33.		The claimant complained about the incident to Mr Grant.  In the presence of 
Mr Higgins the claimant alleged that Mr Higgins had threatened him with violence, Mr Higgins replied ‘that’s a f**king lie.’

34.	The respondent’s Informal Grievance Procedure provides:

		“The Company encourages you to raise any grievance you have in an informal way, as quickly as possible, with your line manager.  An informal resolution has advantages for both you and the Company as it prevents the matter escalating, and can be dealt with quickly.

	You should, in the first instance, discuss your grievance with your immediate line manager as soon as possible.  The line manager will consider your grievance with the aim of resolving it, where possible.

		…

Where it has not been possible to resolve your grievance informally, you should raise it with management using the formal grievance procedure.”

35.	On 19 October 2017 on the advice of Mr Grant, Mr Higgins approached the claimant and put to him that it was never his intention to make him feel threatened in any way, that if he had then the claimant had misunderstood him.  In the course of this discussion Mr Higgins put to the claimant that Mr Oldcroft had told him that the claimant had been ‘fighting with the Frenchman’.  Ultimately the claimant agreed with Mr Higgins that they move on from the incident on 17 October 2017. 

INCIDENT 26 OCTOBER 2017

36.	On 26 October 2017 the claimant was working on Floor Cassettes with 
Mr Thompson (an employee older than the claimant) and Mr Venturini (an employee younger than the claimant) when a lifting strap failed.  The claimant was shocked at this occurrence and what its potential serious consequences might have been.  The claimant considered Mr Grant to have been ‘callous’ in the way that he dealt with the matter failing to ask any of the employees involved if they were ok.  Mr Higgins was asked to take statements.  The claimant’s and Mr Grant’s evidence are in conflict as to whether, when the claimant told Mr Higgins that  the other two employees had told him to avoid standing under the cassette during lifting, that Mr Grant had interrupted angrily saying ‘well you’re hardly that stupid at your stage in the game’, whilst looking the claimant in the face.  Mr Higgins did not hear the alleged comment.  We accept that Mr Grant was also shocked and concerned at the potential seriousness of the incident (which led to the respondent subsequently changing its process to prevent a re-occurrence) but taking into account Mr Corkey’s contentions in relation to credibility and matters set out above, we on balance are not persuaded that the alleged comment, which was not overheard by Mr Higgins who was present taking statements at the time, was in fact made. 

37.	Before Christmas 2017 the claimant helped by a 16 year old employee did a major clean-up filling approximately 20 tonne bags with waste wood, neither of them received any praise from Mr Grant.

38.	All employees including the claimant were invited to the respondent’s 
Christmas 2017 night out.  The claimant attended, he much enjoyed the event and experienced no ill will.  When the bus was leaving to take people home Mr Higgins alerted the claimant to this and arranged for it to change its route so as to leave the claimant off at his house.  The claimant was appreciative and when getting off the bus he and Mr Higgins shook hands and Mr Higgins wished him a Merry Christmas. 

JANUARY 2018

39.	In January 2018 all employees were requested to return to work from holiday early to meet production demands.

40.	Mr Grant took over direct management of the claimant from Mr Higgins following discussion between them regarding tension between Mr Higgins and the claimant. Mr Grant considered the way in which the claimant reacted to criticism created a tension and atmosphere which Mr Higgins found difficult to manage and that the claimant might better listen to him directly.  

41.	In late January 2018 the claimant was moved from the Glu-Line to constructing Spandrel panels.  The claimant was paired with one of the respondent’s employees most experienced in that role, Mr O’Hara.

42.	When the claimant was building trusses in the Spandrel Panel Area Mr Higgins took issue with the claimant over his arrival time at his work bench.  The claimant approached Mr Grant about his treatment by Mr Higgins; Mr Grant removed the claimant from the factory floor and left him in an office while he went to fetch 
Ms Meenan.  The claimant thereafter complained that he was being picked on by Mr Higgins and felt intimidated by him.  Mr Grant put to the claimant that Mr Higgins was under pressure to ensure that orders were produced and despatched in time and to check each person’s work to ensure that there were no delays, the claimant was told to go back to work and not to talk to Mr Higgins.  It was in dispute in essence whether this occurred in late January 2018, or on 7 February 2018.  We find more probable the claimant’s account that it happened in late January 2018, supported by Mr Higgins’s email to Ms Meenan on 7 March 2018 which includes at the end a note of an incident on 2 February 2018 setting out that the claimant stated to Mr Higgins ‘I wasn’t allowed to talk to him anymore’ and as such suggests an earlier incident.

INCIDENT 2 	FEBRUARY 2018

43.	On 2 February 2018 after delivering his vote for the Line Representatives to 
Ms Meenan at her office the claimant was slightly late (between one and seven minutes) returning to his work bench.  Mr Higgins advised the claimant that he was late.  The claimant explained he had been delivering his vote and was offended by the suggestion that he was late and that he should have delivered his vote on his break.  Mr Higgins questioned whether he should get someone else to do the claimant’s work.  The claimant and Mr Higgins each separately advised 
Ms Meenan of the matter.  Ms Meenan confirmed to the claimant that she could verify that the claimant had been with her. 

44.	It was in dispute whether the claimant was left to manipulate Glu-Lam beams by himself.  We accept that this was clearly contrary to the respondent’s new employee induction training on manual handling which instructs “DO NOT attempt to carry or lift anything that is too big or heavy”, and, “Inform your line manager and ask for assistance” and find more probable the evidence of both Mr Grant and 
Mr Higgins that the claimant was advised of safer procedures to be followed, where needed getting a member of store staff to lift the beam with the combi lift and move it towards the saw rather than using a hand saw which Mr Higgins advised the claimant was unsafe and had asked him not to do on more than one occasion. 

INCIDENT 7 FEBRUARY 2018

45.	On the morning of 7 February 2018 upon Mr Higgins advising the claimant that he had not applied a membrane correctly to a panel the claimant responded loudly ‘You are not allowed to talk to me’.  Mr Higgins raised the matter with Ms Meenan and Mr Grant. 

46.	At 9.15 am on 7 February 2018 the claimant was asked by Mr Grant to attend a meeting with him, Ms Meenan and Mr Higgins, to try to improve relations between the claimant and Mr Higgins.  The claimant complained of feeling intimidated by Mr Higgins.  Mr Higgins confirmed he had no issues with the claimant up until Christmas but had struggled with his performance and attitude since then and did not know what to do about the claimant as every time he raised any matter with him, the claimant accused Mr Higgins of harassment; that if he questioned the claimant’s methods or told the claimant to do things a certain way that he was accused of harassment; that the claimant equated Mr Higgin’s supervision to harassment and could not cope with the structures they had in place.  Mr Higgins explained that this was his job and that he treated all staff in the same way.  The claimant apologised to Mr Higgins for the misunderstanding, they shook hands and Mr Higgins left the meeting. 

47.	Mr Grant thereafter raised with the claimant his performance putting to him that he was slower than other men on the line.  The claimant responded that he found the recording of information time-consuming.  The claimant was advised that if there was an issue with how machines were cutting wood the claimant must stop working and advise management rather than patching it up; also that he must let his supervisor know if leaving his work station; and to focus on his work and speed it up. 

PRAISE OF CLAIMANT AND ANOTHER JOINER

48.	In February 2018 Mr Higgins in connection with setting targets for production spoke with employees in the canteen.  In the course of this meeting Mr Higgins gave praise to employees, including the claimant and another joiner with whom he had been working assembling trusses, for their production effort.

49.	Mr Higgins, we accept, as part of his supervisory role endeavoured to give general praise to groups of employees rather than to specific individuals but in practice also encouraged less experienced workers with praise to reassure them.

INCIDENT 5 MARCH 2018

50.	Mr Grant had the same type of jeep as the claimant and was interested in driving off road, he and another employee with an off road vehicle met up outside of work to drive off road and had invited the claimant to join them. 

51.	When passing through the car park on 5 March 2018 Mr Grant approached the claimant who was sitting in his car and remarked ‘you need to pump some wind into them the[re] tyres’ while pushing the tyre and roof, the claimant replied that the tyre pressure was correct and that he would prefer if Mr Grant would stop rocking his vehicle.

INCIDENTS 6 MARCH 2018

52.	Mr Higgins praised the claimant for slightly improved production. 

53.	Ryan McKinney took over from another employee working on the claimant’s bench.  The claimant considered Mr McKinney’s behaviour erratic and commented that there was no need to work at such ‘high tempo’, this annoyed Mr McKinney who responded that he would get the claimant in bother with Mr Grant and that he would ‘be out the gate’.  No complaint was raised at any time by the claimant with the respondent alleging that Mr McKinney had thereafter made a disgusting remark directed at the claimant referring to his wife working in a mental hospital.

54.	The respondent had a work placement university student, Mr Mullan, who was responsible for collecting work sheets from various workstations and inputting the data from them onto the respondent’s electronic system to monitor production.  Mr Mullan approached the claimant to ask him to fill out production time records correctly having noted they were not completed as required.  As put by the claimant he was ‘a wee bit cheeky’ in response to Mr Mullan.  The claimant complained to Mr Mullan that the paperwork and having to tick a whiteboard were slowing him down.  Mr McKinney came over to ask what they were arguing about and he then reported the incident to Mr Higgins.  Mr Mullan also reported the matter to Mr Grant.

DISMISSAL 7 MARCH 2018

55.	On 7 March 2018 Mr Grant and Ms Meenan met and discussed the incident that had occurred the previous day with Mr Mullan.  They decided to assess the claimant’s future, realised that his probationary period was coming to an end and decided to call a meeting to review his performance.  A decision was made to dismiss the claimant prior to the end of his probationary period. 

56.	Throughout his employment the claimant had been paired with numerous different employees across the factory floor and had been moved frequently to different areas within the factory including Cross Cut Saw, Bonded Panel Line, Timber Frame Line, Floor Cassettes and finally the Spandrel Panel Area.

57.	Mr Higgins was asked by Mr Grant to be on standby should there be any issues with the claimant after his performance review as a potential outcome was dismissal.

58.	Mr Grant approached the claimant and asked him to come to a meeting with him and Ms Meenan.  The claimant was advised that it was a probationary review meeting because his six month probation period was nearing its end.  The claimant said he had thought his probationary period was six weeks; he was corrected and referred to his contract of employment.  Mr Grant told the claimant that his performance was slower than other people on the line and that he was advised of this on 7 February 2018 and that he was to focus on his work and to speed it up.  Mr Grant said there had been no improvement since then.  Ms Meenan informed the claimant that as he was making unsatisfactory progress they were terminating his employment with immediate effect.  On Ms Meenan asking the claimant if he had anything to say the claimant responded that he was not for arguing with her.  Mr Grant then escorted the claimant to collect his belongings and off the premises.  The respondent did not follow its contractual disciplinary procedure because the claimant was still under his probationary period. 

59.	It was common case that while escorting the claimant to leave that Mr Grant said to the claimant ‘ I hate doing this’  but in dispute whether  Mr Grant proceeded then to say ‘but I need younger employees in the factory in their 20s or 30s’.  We accept the contentions made on behalf of the respondent to be taken into account in assessing credibility per LJ Gillen in Thorton and find on balance more probable the evidence of Mr Grant that he did not make this additional remark supported by the absence of it being specifically raised at any stage by the claimant until his witness statement either in his subsequent telephone call with Ms Meenan, appeal submission or appeal hearing and furthermore the wording used in his claim form that he ‘felt’  that the reason for his treatment was that the respondent wanted younger employees rather than “knew” based upon the alleged comment. 

60.	As the claimant was leaving Mr McKinney passed by the doorway and commented ‘see ya later Declan’.  When Mr Grant returned subsequently to the factory floor 
Mr McKinney asked if the claimant had been dismissed, Mr Grant responded that he was unable to comment. 

61.	We do not on balance accept that Mr Grant laughed at Mr McKinney’s actions while the claimant was leaving or that he had decided on 5 March 2018 with 
Ryan McKinney to manipulate/or ‘stage manage’ the claimant’s dismissal after the claimant had asked that Mr Grant stop rocking his car.  

62.	On 8 March 2018 the claimant rang Ms Meenan to enquire when he would get his P45 and pay.  The claimant reported to Ms Meenan that when he had been leaving the premises on 7 March 2018 that Mr McKinney had followed him and Mr Grant to the employee exit door and said twice in a raised voice ‘see you later’ and the claimant enquired how Mr McKinney had known that he was leaving.  Ms Meenan assured the claimant that no-one else had known that he was leaving and that she would look into it.  Ms Meenan understood the claimant was content that she would address the matter and that he did not expect her to go back to him.  Ms Meenan spoke to Mr Grant about the matter.  Mr Grant had not made Mr McKinney or other floor staff aware of the claimant’s dismissal prior to the claimant leaving and so no further action was taken. 

63.	At no time during his employment did the claimant raise a formal written grievance or complaint.  

64.	The claimant was not given his one week’s contractual notice but was later sent payment in lieu of his notice and an ex-gratia payment of one week’s pay.

APPEAL

65.	Following his dismissal the claimant contacted the LRA for advice.  The claimant also undertook research on the internet.

66.	By letter dated 29 March 2018 the claimant sought to appeal his dismissal.
Ms Meenan passed his letter to Mr Usher to deal with from which Mr Usher identified the claimant’s grounds of appeal as: 	

a. 	his productivity levels were not an issue;

b. 	he was singled out by management because of prior complaints about ‘general bullying by a certain employee’;

c. 	his dismissal was unjustified and based on discrimination; and

d. 	he claimed that notice was due and ‘full pay for the duration of the contract’ or reinstatement was due.
 
67.	On 6 April 2018 the respondent wrote to the claimant noting the grounds for appeal identified and confirming that he would be asked to provide further detail and clarify certain points.

68.	An appeal meeting conducted by Mr Usher took place on 23 April 2018 which the claimant attended unaccompanied.  Ms Simpson (an external HR consultant) attended as note-taker and minutes thereof are not in dispute.  The claimant brought a prepared written statement which he read during the meeting.  During the appeal the claimant specifically mentioned that he had experienced difficulties working with Mr Higgins, Mr McKinney, Mr Grant, Mr Mullan, and Mr Levasseur and that the whole matter was based on the perception that he was racist.

69.	No allegation of age discrimination was alluded to or made directly by the claimant in his appeal submission or in the course of the appeal hearing.  Reference by the claimant to feeling discriminated against was made solely in the context of the remark by Mr Higgins that the claimant was ‘fighting with the Frenchman’ and claimant feeling management perceived him to be a racist.  At the end of the meeting Mr Usher asked the claimant if there was anything further that he wished to raise and the claimant confirmed no, and put that he felt like he had been listened to and that it was the first time he had been.

70.	A copy of the appeal minutes were checked and agreed by the claimant on 
30 April 2018.

71.	Mr Usher, reviewed written statements from Mr McKinney, Mr Higgins and 
Mr Mullan, also Ms Meenan’s meeting notes of 7 February 2018.  Mr Usher concluded that the claimant was difficult with everyone he worked with wherever he was moved within the factory and that this impacted on his and the factory’s productivity, keeping his colleagues back from work by not doing his job as required and frustrating them.

72.	The claimant’s appeal was not upheld.  In the outcome letter of 30 April 2018 
Mr Usher confirmed he had no evidence to suggest that racial discrimination in any way influenced the decision to dismiss the claimant, nor was it a contributing factor in issues between the claimant and other employees.  He was satisfied that the claimant was made aware of performance issues and unsatisfactory levels of productivity, and that he was moved to several different areas of the factory in an attempt to support and provide him with an opportunity to improve.  Mr Usher was satisfied that unfair targets had not been set for the claimant, based on the performance of other employees assigned to the tasks before and after the claimant was assigned to them.  

73.	The claimant presented his complaint to the office of the tribunals on 24 May 2018.  At section 7.4 Details of your claim, ‘The Main Points’ he set out ‘I feel that the real reason I was unfairly dismissed was because JG wanted more employees who were in their 20’s or 30’s.  I feel he thought that I was incapable because of my age’.  By letter issued 18 June 2018 the claimant was advised that part of his claim in respect of Unfair Dismissal could not be registered as it appeared from the claim form that he had not been continuously employed for a period of not less than one year and Tribunal therefore did not have power to consider it in accordance with Rule 3(1) (b) of Schedule 1 of The Industrial Rules of Procedure 2005.

74.	In his witness statement dated 7 December 2018 the claimant for the first time set out ‘As JG was escorting me out of the factory he stopped me and said, he hated doing this but he needed younger employees in the  factory in their 20s or 30s’. 

AGE PROFILE BEFORE AND AFTER	

75.	The undisputed evidence of the respondent was at the time of the claimant’s employment there were around 60 employees on the factory floor; there are currently 72 employees ranging in age from teenage to 58 years old; the two largest age brackets being ‘25 to 35’ and ‘40+’.

76.	The claimant at the time of his engagement and dismissal was 48 years of age.

COMPARATORS

77.	The claimant specified as comparators Mr Higgins (36 years of age), Mr McKinney (believed to be around 37 years of age) and ‘employees who were generally younger’.  The claimant considered Mr Higgins had been guilty of gross misconduct on 16 October 2017 but was not dismissed; that Mr McKinney was guilty of gross misconduct on 6 March 2018 for making a disgusting comment to him but was not dismissed; and that his own dismissal arising out of his conduct toward Mr Mullan on 6 March 2018 was comparable and as such amounted to less favourable treatment on grounds of his age.  The claimant referred to there being younger employees than him on the production line who were not ‘under the same stress’ but did not provide any further detail despite being given the opportunity to do so.  

REMAINING FINDINGS 

78.	It was in dispute whether the reason for the claimant’s frequent moves in the factory were an upward progression because he was considered so experienced, adaptable and good or whether it was because the respondent was seeking to find a suitable role in which the claimant could excel and operate well with other employees.  We find that the respondent considered the claimant not to work well under instruction, understood other employees found the claimant to consider himself always right and as such hard to work with, which caused tension and was believed to have a negative knock on effect on production and this was the reason for numerous of his moves.

79.	We do not consider that Mr Higgins was aggressive generally toward the claimant, save on 18 October 2017 when his general expression of frustration arising from a technical problem which was not at first specifically directed at the claimant became so when the claimant passed comment to Mr Higgins suggesting that he had anticipated the problem.

80.	We are not persuaded that Mr Grant behaved in a passive aggressive manner towards the claimant but consider he was trying to best manage the claimant who he found to be difficult to get to follow established processes without giving his view on the correct way to do things, which was not well received by others, and considered to slow processes on the production line.

81.	We do not consider that the claimant was placed under work pressure with different work expectations from those of others or that he was singled out to manhandle Glu-Lam Beams on his own, but rather that the claimant chose to do things differently, that he was told not to take things upon himself but to advise management of issues, told to follow established procedures and where needed get help with lifting.  

82.	We find that the respondent genuinely considered the claimant’s behaviour to be having a negative effect on production.

83.	The reason for the claimant’s dismissal we find was the respondent’s identification of the claimant as difficult to manage and the negative effect this was perceived to have on production.  Whilst the respondent labelled the issue as ‘productivity’ we consider it could have been more fully and better explained to the claimant specifically raising his perceived inability to follow required procedures and direction from supervisors and difficulty getting on with people on the line based on feedback from colleagues. 

84.	We accept that the claimant effectively failed to achieve the respondent’s probation standard, however find that he was not given specific feedback as to colleagues finding him disruptive or difficult to work with and albeit the respondent moved him without raising this with good intentions of keeping the peace and the hope of finding a function they considered he suited, by not specifically raising their concerns with him the claimant was deprived of proper opportunity to try to address and improve upon these matters. 

85.	We accept that Mr Grant did not desire a younger workforce but valued a diverse one. 

86.	The claimant’s complaints were dealt with in a way consistent with the respondent’s informal grievance procedure and at no stage was a formal grievance raised by him.  

CONCLUSIONS 

87.	We accept Mr Corkey’s submission that there is no evidence of a disparity in treatment by any of the respondents of employees in the respondent company based on age.  We do not consider that the claimant has shown a difference in status and treatment of a comparator in the same relevant circumstances.  The relevant circumstances surrounding the altercation in which the claimant was involved with Mr Mullan and that of Mr Higgins with the claimant we consider are materially different.  The incident on 6 March 2018 for which the claimant considers his behaviour led to his dismissal arose out of a management issue being put to the claimant to which the claimant responded ‘cheekily’.  The incident involving Mr Higgins and the claimant arose from the claimant’s comments following a management instruction issued by Mr Higgins rather than to Mr Higgins.  Likewise we consider that the relevant circumstances of the alleged comment by Mr McKinney are not the same, no complaint having been raised at the time about the matter by the claimant with the respondent.  

88.	We are of the view that the respondent badly managed the claimant’s dismissal by not sharing with him frustration expressed by his colleagues, albeit in the hope of finding him a suitable function, but as a result deprived him of a full opportunity to remedy matters and to endeavour to work harmoniously with his colleagues and follow the respondent’s required procedures.  But even accepting the treatment of the claimant as unreasonable we do not consider on the facts proven that the something more from which unlawful age discrimination could be inferred has been established and do not consider that on the facts proven (in the absence of an explanation from the respondent) that the tribunal could properly infer unlawful age discrimination.

89.	We find the real reason for the claimant’s treatment and dismissal was the respondent’s difficulty in managing the claimant to follow their procedures, anecdotal reports of other employees’ difficulty interacting with the claimant and respondent’s perceived negative effect on his fellow employees and production, with the tipping point being the claimant’s altercation with Mr Mullan on 
6 March 2018 and respondent’s realisation that the claimant was approaching the end of his probationary period and so the respondent acted quickly to get rid of the claimant whilst within his probationary period and not subject to the respondent’s contractual disciplinary procedure or statutory dismissal procedures.

90.	We consider that a younger hypothetical comparator in the same relevant circumstances, that is, an employee with the same capability and production output as the claimant, who the respondent had despite numerous attempts found difficult to place, who it perceived to keep colleagues back from work by not doing his job as required causing colleagues frustration and to have a negative impact on his own and their productivity, who on approaching the end of his probationary period had an altercation with the respondent’s work placement student who sought the correct completion of work data sheets by the employee to monitor production, would have been treated the same as the claimant.

91.	We find that the claimant has failed to establish a prima facie case of age discrimination in order for the burden of proof to shift to the respondent.  We are furthermore satisfied that even were the burden of  proof to have shifted that the respondents have given a fully adequate explanation as to why they behaved as they did and it has nothing to do with age.

92.	Accordingly the respondents did not directly discriminate against the claimant in his treatment or dismissal on grounds of age and the claimant’s complaint of direct age discrimination is dismissed.

Employment Judge:

Date and place of hearing:  5, 6, 7 and 8 February 2019, Belfast.		

Date decision recorded in register and issued to parties