Logan v Belfast City Council [2010] NIIT 00231

THE INDUSTRIAL TRIBUNALS

CASE REF: 231/09

232/09

CLAIMANTS: 1. Patrick Logan

2. Kevin O’Doherty

RESPONDENTS: 1. Belfast City Council

2. Jim Ferguson

3. Sam Skimin

DECISION

(A) The unanimous decision of the tribunal is that the claimant Patrick Logan’s claim is not well-founded and accordingly it is dismissed.

(B) The unanimous decision of the tribunal is that all of the claims of the claimant Kevin O’Doherty are not well-founded and accordingly they are dismissed.

Constitution of Tribunal:

Chairman: Mr Paul Buggy

Members: Mrs Caitriona Stewart

Mr Ahmed Ebrahim

Appearances:

The claimants were represented by Mr P Moore of P M Associates.

The respondents were represented by Mr P Ferrity, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.

REASONS

1. Earlier today, a Fair Employment Tribunal Decision was issued in cases 26/09FET, 27/09FET and 37/09FET. In the present Decision, we refer to that earlier Decision as “the FET Decision”.

2. The members of the industrial tribunal which decided the present proceedings were also the members of the Fair Employment Tribunal which issued the FET Decision.

3. The claimants in the present proceedings, along with Mr Sean O’Neill and
Mr Gerard McCurdy, were the members of an Entry Squad whose job it was to make sure that entries were kept clean across large areas of West Belfast. They were all based in the Springfield Avenue Cleansing Depot. At all material times, Mr McCurdy, Mr O’Doherty and Mr O’Neill were employed as Cleansing Operatives. (Mr McCurdy had a supervisory role). At all material times, Mr Logan was employed with the Squad as a lorry driver.

4. In cases 24/09FET, 81/09FET, Mr McCurdy brought proceedings for religious discrimination against the Council and against the persons who are individual respondents to the present proceedings (Mr Ferguson and Mr Skimin).

5. The members of this industrial tribunal were also the members of the Fair Employment Tribunal which adjudicated in respect of all of Mr McCurdy’s claims. Nevertheless, both of the claimants in the present proceedings, and all of the respondents, have agreed that it is appropriate that we should sit as members of this tribunal in the present proceedings.

6. Alongside the industrial tribunal proceedings which are the subject of the present Decision, the two claimants in the present proceedings, along with Mr O’Neill, brought proceedings for religious discrimination against the Council and against
Mr Ferguson and Mr Skimin. (Those are the proceedings in the subject of the Decision which was issued earlier today, which we have already referred to above as “the FET Decision”).

7. In case 232/09, Mr O’Doherty complains that each of the acts complained of, in each of the nine Allegations which are set out in the FET Decision, constitutes trade union detriment contrary to Article 73 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

8. In case 231/09, Mr Logan asserts that the act complained of in Allegation 2 (as set out in the FET Decision) constitutes “trade union detriment” within the meaning of Article 73 of the 1996 Order.

9. For the purpose of adjudicating in respect of the two cases which are the subject of the present proceedings, we sat as an industrial tribunal. For the purpose of considering the acts which are the subject-matter of the FET Decision, we sat as a Fair Employment Tribunal.

10. It was agreed between all of the parties that we should conduct a single hearing, which would be the main hearing in respect of the subject-matter of the FET Decision, while simultaneously constituting the main hearing in respect of the present proceedings.

11. It was agreed by all of those parties that all of the cases of Mr Logan, Mr O’Doherty and Mr O’Neill should be heard together and that, accordingly:

(1) evidence in either of the Logan cases should constitute evidence in all of the other associated cases;

(2) evidence in either of the O’Doherty cases should constitute evidence in all of the other associated cases; and

(3) evidence in the O’Neill case should constitute evidence in all of the other associated cases.

12. At all material times, Mr Jim Ferguson, who is a respondent to the present proceedings, has been the Operations Manager for Street Cleansing of the Council. In that capacity, he reported directly to Mr Sam Skimin, who is also a respondent to these proceedings.

13. At all material times, Mr Skimin has been the Head of Cleansing Services of the Council, reporting directly to its Director of Health and Environmental Services.

Article 73

14. Article 73(1) of the 1996 Order provides that a worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer, if the act or failure takes place for the sole or main purpose of:

(1) penalising him for taking part in the activities of an independent trade union at an appropriate time; or

(2) penalising him for making use of trade union services at an appropriate time.

15. In the context of Article 73, references to taking part in the activities of a trade union, or to services made available by a trade union by virtue of membership of the union, include references to being or becoming a member of a particular branch or section of that union.

The claims and the defences

16. NIPSA is a trade union recognised for collective bargaining purposes by the Council. At all material times, nearly all of the workers in the Springfield Avenue Cleansing Depot were members of NIPSA.

17. By the start of the period which is material for the purposes of the present proceedings, Mr Logan and Mr O’Doherty had been in positions of leadership within the branch of NIPSA which was recognised for collective bargaining purposes, by the Council, in respect of workers at the Springfield Avenue Cleansing Depot.

18. In the present proceedings, Mr O’Doherty asserts that, by carrying out the acts which are the subject-matter of all of the nine Allegations which are set out in the FET Decision, the Council was penalising him for taking part in the activities of an independent trade union at an appropriate time and was penalising him for making use of trade union services at an appropriate time.

19. In the present proceedings, Mr Logan says that, by carrying out the act complained of in Allegation 2 (as set out in the FET Decision), the Council was penalising him for taking part in the activities of an independent trade union at an appropriate time, and was penalising him for making use of trade union services at an appropriate time.

20. Allegation 2 was referred to in the FET Decision in the following terms:

“15. Each of the three claimants was subjected to disciplinary proceedings arising out of their membership of the Squad. In each instance, the outcome of those disciplinary proceedings was that each claimant was found to have finished work early without permission, and to have neglected his duty,

16. In each instance, one of the disciplinary sanctions was that the relevant claimant was permanently removed from the Entry Squad. Each claimant asserts that the permanence of their removal constituted discriminatory treatment. In each instance, each claimant asserts that Mr Skimin was responsible for that mistreatment.”

21. In relation to each Allegation, on behalf of the Council, Mr Ferrity, presented the following defences:

(1) It was asserted that the relevant treatment did not constitute mistreatment or detrimental treatment.

(2) It was asserted that the claimants’ trade union roles were not a reason for the relevant treatment.

The sources of evidence

22. The sources of evidence in the present proceedings were the same as those which were listed in the FET Decision.

23. We told the parties that we would have regard, for evidential purposes, to any document within the bundle only if our attention was specifically drawn (by one or more of the parties) to that document.

The facts

24. For an account of the general factual context of this case, please see our Decision in McCurdy v Belfast City Council and Others (case references 24/09FET, 81/09FET and 3188/09, decision issued on 27 July 2010).

The law

25. In the context of Article 73, a relevant instance of mistreatment only constitutes a breach of that article if a relevant prohibited ground was the “sole or main purpose” of that treatment.

Conclusions: Allegation 1

26. Allegation 1 alleges mistreatment in relation to the more intensive monitoring, which was carried out in respect of operatives within the Springfield Avenue Depot, from early 2008 onwards. According to Mr O’Doherty, Mr Ferguson was responsible for that inappropriate monitoring, and the relevant mistreatment constituted a breach of Article 73 of the 1996 Order.

27. We are satisfied that the relevant treatment did not constitute prohibited detrimental treatment contrary to Article 73, against the following background, and for the following reasons.

28. We note that, when the decision was made to intensively monitor the work and activities of staff at the Springfield Avenue Depot, that decision was made against a background of a significant number of allegations, in relation to a substantial number of staff, at that Depot, relating to the question of whether or not those staff were at work at all times when they claimed to be at work. We are satisfied that the number of relevant allegations was unprecedented, and that the number of such allegations was much greater in respect of the Springfield Avenue Depot than it had ever been in relation to any other part of the Cleansing workforce.

29. We note that all of the staff who were based at the Springfield Avenue Depot were the subject of the more intensive monitoring, and that Mr O’Doherty was not singled out for special attention. The “victims” of the relevant treatment included both people who were trade union representatives and those who were not trade union representatives.

Our conclusions on Allegation 2

30. This is the allegation relating to the permanent removal of all of the members of the Entry Squad, from Entry Squad duties. This was one of the disciplinary sanctions which was imposed against Mr Logan and Mr O’Doherty, and against
Mr Sean O’Neill and Mr Gerard McCurdy.

31. In the present proceedings, Mr O’Doherty and Mr Logan assert that their permanent removal from the Entry Squad constituted a breach of Article 73.

32. We have decided that the permanence of their removal did not constitute mistreatment. We are also satisfied that this act, in each instance, did not take place for the sole or main purpose of penalising either Mr O’Doherty or Mr Logan in connection with their trade union roles or activities. We have arrived at those conclusions against the following background, and for the following reasons.

33. First, the relevant disciplinary offences, of which these two claimants were found guilty, were serious offences. Indeed, they were of such seriousness that dismissal, as a sanction for that misconduct, would not have been a sanction which was outside the range of reasonable responses for an employer. Accordingly, the permanent removal of these two claimants from the Entry Squad cannot be regarded as being a disproportionate sanction. Secondly, we are satisfied that permanent removal is a sanction which is allowed for by the Council’s written disciplinary procedure (and we reject the argument, on behalf of the claimants, that the Disciplinary Procedure required that any removal had to be time-bounded).

34. The general thrust of the disciplinary allegations which were found to be proven, against all four members of the Entry Squad, was that they had colluded together in order to finish work early, even though their shift had not yet finished, and that they had regularly done so. Against that background, we consider that many reasonable employers would consider it appropriate to take action, with a view to ensuring that those whom the employer had found to be guilty of those offences would not be working together again within the same small team.

35. Thirdly, we note that all of the members of the Entry Squad, who had been found guilty of the relevant disciplinary offences, were removed from the Entry Squad, and that no differences were made, among the relevant four workers, between the treatment meted out to those who were not trade union representatives, on the one hand, and the two claimants in the present proceedings (who were trade union representatives) on the other hand.

Our conclusions in relation to Allegation 3

36. Allegation 3 is to the following effect. Mr O’Doherty asserts that the disciplinary process to which he was subjected was unduly protracted and that this was the fault of Mr Skimin. He complains that this alleged mistreatment constituted trade union “detriment” in the sense in which that term is used in the context of Article 73 of the 1996 Order.

37. We are satisfied that this act did not constitute a breach of Mr O’Doherty’s Article 73 rights. We have arrived at that conclusion against the following background, and for the following reasons.

38. We are not convinced that the prolongation of the proceedings was the entire work of one man, Mr Skimin. Instead, it seems likely that the undue prolongation of the proceedings was the fault of more than one individual; Human Resources must have responsibility in that connection.

39. We think that the most likely explanation, and the sole explanation, for the prolongation of the disciplinary proceedings is that there were many disciplinary cases being processed at the relevant time, and the human resources administration of those various cases was not as efficient as it could have been.

40. We note that disciplinary processes relating to many workers, including all of the members of the Entry Squad, were all unduly protracted. Mr O’Doherty was not treated any differently from those other workers (who were also the “victims” of unduly prolonged disciplinary proceedings). That circumstance is a powerful indicator that a relevant prohibited ground, within the context of Article 73, was not the sole or main reason for the prolongation of the disciplinary process in Mr O’Doherty’s case.

Our conclusions in respect of Allegations 4, 5, 6 and 7

41. These are allegations that, during the course of an investigatory interview (regarding disciplinary action which was, at that time, being contemplated against Mr Joe McGuigan), Mr Ferguson made observations, in relation to the activities of the workforce at the Springfield Avenue Depot, which were inaccurate, hurtful and inappropriate. According to Mr O’Doherty, the making of those allegations constituted penalisation of himself, in the sense in which the term “penalisation” is used in the context of Article 73.

42. According to all of the claimants in all of these associated cases, those observations included the following:

(1) a false allegation of financial gain (this is Allegation 4);

(2) a false allegation of dishonesty (Allegation 5);

(3) a false allegation of financial gain on behalf of a paramilitary organisation (Allegation 6); and

(4) a false allegation of membership of a paramilitary organisation (Allegation 7).

43. We have been shown a copy of the record of that interview. The copy which we have received is incomplete: some of its content has been obliterated. In that part of the record which has not been obliterated, there is no reference to the subject-matter of Allegation 6 or Allegation 7. Obviously, we can only take account of such evidence as is made available to us.

44. We have decided that the relevant treatment (the observations which constitute the subject-matter of Allegations 4-7) did not constitute penalisation in the Article 73 sense. We have so concluded, against the following background and for the following reasons.

45. We have no doubt about the following matters. First, Mr Ferguson has never been in a position to prove the truth, or otherwise, of some of the assertions which constitute the subject-matter of Allegations 4-7; and we have no doubt that some members of the workforce in the Springfield Avenue Depot found those assertions to be hurtful. Secondly, we note that Mr Ferguson made those assertions in response to an invitation, by Management, which had invited him to express his own views, on matters connected with the subject-matter of Allegations 4-7, at a time when he had reason to believe that his personal safety might have been adversely affected by reactions to his industrial relations role (his role within the context of the industrial relations unrest which was then ongoing within the Springfield Avenue Depot).

46. We think that it is a pity that Mr Ferguson was ever invited to talk about his own personal feelings, or his own personal views, or his own apprehensions. But he was invited to do so. He was making the relevant observations at a time when he had good reason to believe that he might be under personal threat. Having seen and heard Mr Ferguson provide oral testimony in these proceedings about those matters, we are satisfied that, at the time when he made the relevant assertions, he did believe in the truth of those assertions.

47. Those assertions related to many staff within the Springfield Avenue Depot, not just to those who were trade union representatives.

48. In his oral testimony to us, Mr Ferguson stated that he was in no way affected by anti-trade union bias, in making the relevant assertions. We believed that part of his evidence.

Our conclusions in respect of Allegation 8

49. This allegation is that the Council failed to carry out an appropriate investigation into relevant collective grievances which had been launched on behalf of various workers, including these two claimants. Mr O’Doherty claims that this failure constituted a breach of Article 73. He blamed Mr Skimin for that failure.

50. We are satisfied that this Allegation is not well-founded, against the following background and for the following reasons.

51. There were two relevant collective grievance processes. We are satisfied that the Council made a reasonable request for clarification of the basis for the first such grievance, and that no response to that request was ever forthcoming. Accordingly, the Council and Mr Skimin cannot properly be held to be at fault in respect of failure to effectively process the first grievance.

52. The second relevant collective grievance had to be aborted because the workers, on advice from their representatives, declined to further participate in the relevant process.

53. Accordingly, Allegation 8 fails because it is not factually well-founded.

Our conclusions in respect of Allegation 9

54. The background to Allegation 9 is that Mr Ferguson initiated an internal grievance about the behaviour of Mr O’Doherty, asserting that Mr O’Doherty had made false allegations of religious discrimination against himself (those allegations being similar to, or the same as, the allegations of religious discrimination against Mr Ferguson which were within the scope of the Fair Employment Tribunal Decision).

55. In these proceedings, Mr O’Doherty asserts that, by initiating that grievance,
Mr Ferguson carried out an act of penalisation which is prohibited by Article 73.

56. In his oral testimony in these proceedings, Mr Ferguson told us that he was advised by a GMB trade union representative to put in that grievance. We believed that testimony. Having listened carefully to relevant aspects of the testimony of Mr Ferguson, we were satisfied about two matters. First we are satisfied that Mr Ferguson was worried and frustrated because, as he saw it, allegations of religious discrimination were being made dishonestly against him by Mr O’Doherty. (Incidentally, we ourselves have arrived at no conclusion whatsoever on the question of whether or not Mr O’Doherty’s allegations were made honestly or dishonestly). Secondly, we are satisfied that Mr Ferguson would have done exactly the same (would have commenced an internal grievance against the person who he saw as the “perpetrator” if he thought that any individual was making false allegations of religious discrimination against him).

57. For that reason, and because we believed Mr Ferguson’s testimony, that he was not in any way affected by Mr O’Doherty’s past and present trade union activities, we are satisfied that this Allegation is not legally well-founded.

58. However, we consider that it is generally not appropriate conduct for a senior officer of a public authority to launch a grievance on the basis that a particular individual has made an allegation of religious discrimination against that senior officer, unless he (the relevant senior officer) has at that time got clear evidence that the allegations against himself had been made both falsely and in bad faith.

Chairman:

Date and place of hearing: 5 and 7 January 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Logan v Belfast City Council [2010] NIIT 00231_09IT (14 March 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00231_09IT.html Cite as: [2010] NIIT 00231_09IT, [2010] NIIT 231_9IT

Industrial Tribunals Northern Ireland Decisions