Martin v Department of Social Developme... Jimmy Maguire [2014] NIFET 39

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 39/13 FET

CLAIMANT: Bradley Martin

RESPONDENTS: 1. Department of Social Development

2. Jimmy Maguire

WRITTEN REASONS FOR DECISION

1 This case was heard from 2 – 6 December 2013, and an oral decision was given on 19 December 2013. At the hearing on that latter date the claimant’s representative requested written reasons.

A written record of the decision was issued to the parties on 20 December 2013.

For convenience, a copy of it is attached as an Appendix, with a certificate of correction.

The written reasons for the Tribunal’s decision are set out in the succeeding paragraphs and are, in substance, those delivered orally.

2(i) The unanimous decision of the Tribunal is that the claimant’s claims of discrimination on the ground of religious belief and political opinion, and of harassment on the same grounds, are dismissed. These claims arise in the context of the claimant’s employment as a staff officer in the respondent Department of Social Development (‘DSD'), and he alleges that that respondent, together with his line manager, the second-named respondent, treated him less favourably in various respects which we set out later in this judgment. He also alleged that the DSD violated its Dignity at Work policy by publishing pictures (accompanied by a text) relating to a Charity GAA match on its intranet site.

(ii) The claimant alleged that he suffered unlawful religious discrimination because he was a Protestant and an Orangeman, working in a branch of the first-named respondent’s undertaking which he described as ‘predominantly Catholic’.

3 We commence by setting out the relevant law.

(i) It is to be found in Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998, as amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003. These provisions make in unlawful to discriminate on the grounds of religious belief, or to discriminate by way of victimisation.

Article 3(2), dealing with direct discrimination, provides:-

“(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if –

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

(ii) The concepts of ‘harassment’ and ‘unlawful harassment’ are dealt with by Article 3A:-

“3A

(1) A person (‘A’) subjects another person (‘B’) to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of –

(a) violating B’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

(3) For the purposes of this Order a person subjects another to unlawful harassment if he engages in conduct in relation to that other which is unlawful by virtue of any provision mentioned in Article 3(2B).”

(iii) In considering the concept of harassment we have had regard to the decision of Underhill J, as he then was, in Richmond Pharmacology v Dhaliwal [2009] ICR 724, a decision of the Employment Appeal Tribunal which considered a similar provision in Section 3A of the Race Relations Act 1974 (as amended by Regulation 5 of the Race Relations Act 1976 (Amendment) Regulations 2003, which apply in Great Britain).

(iv) Regulation 24 of the 2003 Fair Employment Regulations inserts a new Article 38A in the 1998 Order. It deals with the burden of proof and provides:-

“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

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

(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant;

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.”

4(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. It is not in dispute that this guidance also applies to cases of religious discrimination. This guidance is now set out at an Annex to the judgment in the Igen case, op.cit269,270.

We therefore do not set it out again, but we have taken it fully into account.

(ii) In short, the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds. The Tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

If the claimant does prove facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (in this case, religious belief). The Tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that religious belief was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a Tribunal will expect cogent evidence to discharge that burden of proof.

(iii) Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the Tribunal must put to one side the employer’s explanation for the treatment, but should take in account all other evidence, including evidence from the employer.

(See : Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International PLC [2007] IRLR 247; and Arthur v Northern Ireland Housing Executive and another [2007] NICA 25.)

(iv) These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24.

In the former Coghlin LJ, at Paragraph 16 of the judgment, emphasised the need for Tribunals hearing cases of this nature to keep firmly in mind the fact that such claims are founded upon an allegation of religious discrimination. This was re-emphasised by Girvan LJ, at Paragraph 24 of the judgment in the latter case.

5. We now proceed to make some general observations about the basis on which the claimant’s claims are predicated.

(i) We do not accept the claimant’s contention that his workplace was ‘predominantly’ Roman Catholic. This is clear from figures provided by the first-named respondent which show that the perceived religious breakdown of the workforce was 48.8% Protestant, and 51.2% Roman Catholic.

In other words it was approximately 50/50 with a small majority of Roman Catholics. However, when this was put to the claimant in cross-examination, while he did not challenge these figures, he refused, or was at least reluctant, to resile from his claim that the workforce was predominantly Roman Catholic.

(ii) Another feature of the claimant’s case was that in relation to alleged discrimination in the allocation of overtime to his section, that process also verged on the corrupt in that in relation to other teams, work was deliberately ‘stockpiled’, ie wrongfully held back by managers, with staff essentially doing little or no work on weekdays, to facilitate their working at overtime rates on Saturdays and Sundays.

We refute that entirely. No credible evidence was put before us to enable us to make such a finding. The main evidence of this alleged practice came from Mr John Scott, who we found to be a completely unconvincing witness in this regard. We fully accept the evidence of Ms Lyzan Martin, the Head of the Disability and Carers Service, and a co-religionist of the claimant, that such a practice did not occur. She had overall responsibility as accounting officer for the overtime budget, she monitored the overtime figures, and we are satisfied that had there been irregularities such as alleged by the claimant, they would not have escaped her notice.

(iii) In relation to the GAA photograph it is the claimant’s case that the first-named respondent violated its own Dignity at Work policy. In effect, he argued that the policy was violated when it was changed without discussion or notification. Again, we reject the underlying thesis that there was any change in policy. Our view is that what took place was a process of clarifying and interpreting the existing policy (or perhaps, more accurately, guidelines) to take account of circumstances which had arisen and where questions about its application had been raised.

(iv) Insofar as the claimant’s case is based on the fact that he was a member of the Orange Order, we emphasise that that was a perfectly lawful, democratic, and legitimate activity on his part, and had he suffered discrimination on that account in public employment that would have demonstrated an intolerable state of affairs. The claimant did not wish his membership of that organisation to be known at work, because of what he perceived the attitude of his colleagues would be, and he was entitled to take that position. However, his case is that, to use the words of one of his witnesses, his colleague made ‘a big deal’ of his membership. Against this it has to be said that any evidence of mention of his membership of the Orange Order at work arose after he was seen taking part in lawful and public activities of the Order such as a parade, and a memorial service at the City Hall.

6 It was initially put to the claimant and his witnesses in cross-examination by Mr Potter BL, for the respondents, that the claim, and the evidence in support of it, were part of some agenda on their part. We do not make any finding on that allegation – it is not necessary for us to do so. Nor do we have to determine if the complaints arise out of some genuine disaffection among Protestant employees of the DSD, though it would surely be wise for the first-named respondent to give some consideration to that possibility in view of some of the evidence given in this case.

7 We now proceed to deal with the claimant’s substantive allegations, applying the relevant law as set out above to them. In reaching our conclusions in respect of those matters, we have, where there has been a conflict in the evidence, in general preferred that of the respondents’ witnesses to that of the claimant and his witnesses.

8 The overtime claim

(i) In our opening remarks we have already stated that we reject the claimant’s allegation that there was a deliberate stockpiling of work to facilitate weekend overtime. We reiterate that although the claimant’s allegations are against Mr Maguire and Mrs McPeake, both of whom are Roman Catholics, the Head of DCS, who had overall responsibility for, and monitored overtime, was a Protestant.

(ii) We accept the evidence of Mr Maguire and Mrs McPeake that they did not know the claimant was a member of the Orange Order. The fact that there may have discussion in the office about the claimant’s membership of the Orange Order does not mean they were aware of it. As the holders of senior positions they would have been to some extent insulated from routine office gossip. While we are surprised at the insistence of Mrs McPeake and Mr Maguire that they were not aware of, or had not worked out, the claimant’s perceived religious background, we nonetheless accept what they say on this point in the absence of any contrary evidence. There is no previous evidence of animosity towards him on their part, they had never made any criticisms of his work, and, previously, Mrs McPeake had consistently given the claimant Box 1 markings in the annual reporting cycles.

(iii) We do not find the statistical information adduced in relation to overtime in any way conclusive on the issue of discrimination. Significantly, these figures were described by the claimant’s representative as difficult and complex in his cross-examination of the respondents’ witnesses. There was an element of selectivity – it has to be said not confined to the claimant – in the approach to these figures, as there were differences as to what were the relevant periods for consideration, for example, in relation to the comparison of overtime figures for the claimant’s team with Mary Watters’ team. We accept the evidence of the respondents’ witnesses that the fact that these figures related to different periods of the year do not render any comparison invalid.

(iv) Additionally, there is no evidence that the claimant was denied overtime for his team when he went through the proper procedures. His case is that it was made clear to him in the course of prior, informal, discussions with Mr Maguire that there was no chance of his team being allowed to work overtime. However, the claimant and Mr Maguire differ in their accounts of the content and purpose of those informal discussions, and we accept the evidence of the latter that these discussions were general discussions about work to be targeted, systems availability, the overtime budget, and that he never gave oral indications that any written bid would be turned down.

(v) There is no evidence that the claimant ever made any complaint or raised any grievance about the alleged refusal of his bids at these informal discussions.

(vi) Apart from the foregoing we are satisfied that a genuine business need, arising from the setting and publication of ministerial targets in relation to Disability Living Allowance provided a non-discriminatory explanation for any excess of overtime worked by other staff. Mark Haggan, a former staff officer at the Disability and Carers Service, and like the claimant, a Protestant, gave evidence that his requests for overtime were generally granted, and attributed this in his witness statement to his team’s link with DLA decision-makers.

9 Breach of the first-named respondent’s Dignity at Work Policy

(i) This relates to the publication of a photographs on the DSD intranet showing staff in GAA jerseys and sportswear, taking part in a charity Gaelic football match at Casement Park, to raise money for the Children’s Hospice and to mark the 20^th Anniversary of the inception of Social Security Agency (‘SSA'). The photograph was accompanied by a commentary which described the GAA stadium at Casement Park as ‘hallowed ground’. The claimant took exception, not only to the publication of the photograph, but to the description of Casement Park as hallowed ground, particularly in the light of the cruel and brutal murder of two soldiers at or near that ground in the late 1980s. As a Protestant and Orangeman he found this particularly objectionable, though as one of the respondents’ witnesses pointed out, disgust and revulsion at such murders by terrorists was something felt by all law-abiding and decent people, irrespective of their religious belief or political opinion.

(ii) The respondents takes a time point in relation to this complaint. The article had been published in May or June 2012, and we accept the evidence of Carol Bell that photographs/articles in this nature did not remain on the intranet for any appreciable period of time.

While we have reservations about the claimant’s account as to how he became aware of it, there is insufficient evidence to contradict that account, and we therefore give him the benefit of the doubt, and do not rule against him on the time point.

(iii) Leaving aside that point, his complaint in relation to this matter has no substance or merit.

The policy in question here was designed primarily to deal with emblems in the workplace, particularly people wearing inappropriate clothing at work. The intranet photographs and article generated an absolutely minimal number of complaints when they were put up, again when they were taken down and then when they were reinstated. This in its own would tend to show that those who raised complaints on the respective occasions were ultra-sensitive.

(iv) In some ways it could be argued that the reaction of senior management in the DSD was disproportionate, with meetings (at the top of the department) and a flurry of e-mails between HR personnel, some of which adopted differing attitudes to the publication. An uncharitable way of looking at this was that there was a lot of indecisiveness in how this matter should be dealt with, but the more reasonable explanation is that the DSD took Equal Opportunity and Dignity at Work extremely seriously and they wanted to be sure they were doing the right thing. The claimant makes the suggestion that there had been a change of policy, or at least an inconsistency in how policy was being applied. As is clear from what we said at the outset we reject any such views. Senior management - we note this matter went to Top of Office Group (‘TOG’) – three of whose four members were the claimant’s co-religionists – were attempting to interpret and clarify existing policy, and to determine its application to out-of-work events. Here the event was a charity football match, to raise money for the Children’s Hospice, and to mark 20 years of the SSA. It was considered, rightly, in our view, that such activities did not offend the Dignity at Work policy, and we find it surprising, to say the least, that any reasonable person could have considered it a violation of his dignity, or thought that it created an intimidating, hostile or offensive workplace environment.

(v) The reference to Casement Park as ‘hallowed ground’ is something we find had no political, sectarian, or religious significance, and could not have been understood to have such significance by any reasonable person. The term ‘hallowed ground’ is frequently used in relation to sports grounds and stadia – for football, rugby, cricket, the GAA, or whatever. We found the claimant’s attempt to link the phrase to the murder of two soldiers by terrorists to be somewhat distasteful.

(vi) As far as consistency is concerned, there had been a previous, and it has to be said, innocuous, display of staff wearing Glentoran regalia on the website. The claimant says he would have complained about that had he known of it, though it has to be said we have our doubts about that.

10 We now proceed to deal with the claimant’s other allegations against the respondents. The majority of these relate to Mr Maguire, or at least he is implicated in some way in them.

(i) The complaint by Frank Browne against Mr Maguire, and the way the second-named respondent dealt with it.

The complaint by Mr Browne against the claimant was one which became blown out of proportion, and we can understand why the claimant felt aggrieved. There was little of substance to Mr Browne’s initial complaint, and an organisation with robust procedures might have decided at the outset that it merited no further investigation.

(ii) The claimant’s allegation is that the second-named respondent relished the task of investigating what was essentially a non-complaint in order to use it as a stick to beat him with. It was hardly surprising that the complaint found its way to the second-named respondent, who was the appropriate line manager. In his handling of the matter he was directed by HR Connect, to whom parts of the Civil Service HR function are outsourced, and ultimately he stepped aside when it became clear that he had a potential conflict of interest. There is no evidence from which we can infer that is dealing with this matter, he was influenced, or motivated by, any animosity towards the claimant based on the latter’s actual or perceived religious belief or political opinions.

11 The line manager’s assessment (for promotion purposes)

The finding just made in relation to the Frank Browne complaint applies equally here. The second-named respondent followed the correct procedures. He initially gave the claimant what we would consider to be a good mark, though the claimant, it has to be said, was somewhat grudging about this. He consulted with Mrs McPeake, who as the claimant’s former line manager, was someone who had consistently given him Box 1 markings. He went back to previous managers when requested to do so, in accordance with the established procedure, and ultimately increased the claimant’s mark.

12 The allegation that the claimant was belittled and humiliated by the second-named respondent and Mrs McPeake.

There is a conflict of evidence between the claimant on the one hand and the second-named respondent and Mrs McPeake on the other hand. The issue comes down to who we believe. As indicated at the outset where there was a conflict in the evidence we generally preferred that of the respondents’ witnesses and we accept the evidence of the second-named respondent and Mrs McPeake. We do not attach any great weight to the evidence of Mr Haggan who was only there for a very short time. One of the comments allegedly made by Mrs McPeake to which the claimant took objection was when she said “I look after my own”. The claimant took this as a reference to looking after the interests of her Roman Catholic co-religionists. The comment was ambiguous. In the work context it could have meant looking after those who were her immediate subordinates or who were in her team. Either the claimant was duly sensitive or he wanted to be offended.

13 The Stress Enquiry Referral

(i) We find no evidence of unlawful discrimination here. Unfounded allegations have been made against Ms Toal in an attempt to draw the second-named respondent into the equation. This is because they were friends outside work. Ms Toal did not advise the subject of the referral to initiate a complaint against the claimant, but merely gave neutral advice on the relevant policy when the matter was referred to her.

(ii) Non-access by the claimant to the second-named respondent’s e-mails during the absence of the latter

Explanations have been given for that by the second-named respondent which we accept and which are not in any way discriminatory.

14 The incident in the public house involving Rorie Smyth

This is a matter which has caused us more concern. We would accept, contrary to Mr Potter’s submission, that the remarks made were capable of falling within Article 3A of the Order. While we have some suspicion that the comments, as alleged, may have been in fact made by Mr Smyth, overall we find the evidence on this matter inconclusive.

Had we found this allegation proved, we are satisfied that the first-named respondent would have been able to avail of the statutory defence afforded by Article 36(4) of the 1998 Order, having regard to the nature of the occasion in question and in the light of its equal opportunities policy.

15 That is our decision.

Chairman:

Date: January 2014

APPENDIX

Copy written record of decision issued on 20 December 2013, with Certificate of Correction

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 39/13 FET

CLAIMANT: Bradley Martin

RESPONDENTS: 1. Department of Social Development

2. Jimmy Maguire

DECISION

The unanimous decision of the Tribunal is that the claimant’s claims of unlawful discrimination on the grounds of his religious belief and political opinion are dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Smyth

Mr J Hughes

Appearances:

The claimant was represented by Mr M Mason, of Collective Business Services.

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

1 The decision of the Tribunal is set out above.

2(i) Oral reasons were given at the hearing.

(ii) Written reasons, as requested by the claimant, will issue in due course.

3 Counsel for the respondents indicated that he would be taking instructions on the issue of an application for costs against the claimant. Any such application should be made promptly, in accordance with the Rules of Procedure, and on notice to the claimant and Secretary of the Tribunals setting out the ground(s) of the application.

Chairman:

Date and place of hearing: 2 – 6 December 2013; and 19 December 2013, Belfast

Date decision recorded in register and issued to parties: 20 DECEMBER 2013

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 39/13 FET

CLAIMANT: Bradley Martin

RESPONDENTS: 1. Department of Social Development

2. Jimmy Maguire

Certificate of Correction

In the decision issued on 20 December 2013, the name of the second-named respondent should read:-

‘Jimmy Maguire’

A copy of the decision, as corrected, is attached.

Chairman:

Date: December 2013

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 39/13 FET

CLAIMANT: Bradley Martin

RESPONDENTS: 1. Department of Social Development

2. Bradley Martin

DECISION

The unanimous decision of the Tribunal is that the claimant’s claims of unlawful discrimination on the grounds of his religious belief and political opinion are dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Smyth

Mr J Hughes

Appearances:

The claimant was represented by Mr M Mason, of Collective Business Services.

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

1 The decision of the Tribunal is set out above.

2(i) Oral reasons were given at the hearing.

(ii) Written reasons, as requested by the claimant, will issue in due course.

Chairman:

Date and place of hearing: 2 – 6 December 2013; and 19 December 2013, Belfast

Date decision recorded in register and issued to parties: 20 DECEMBER 2013

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Fair Employment Tribunal Northern Ireland Decisions