Anakaa v FirstSource Solutions Ltd [2013] NIIT 1152

THE INDUSTRIAL TRIBUNALS

CASE REF: 1152/12

CLAIMANT: Julius Ember Anakaa

RESPONDENT: FirstSource Solutions Ltd

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant was not discriminated against on racial grounds by the respondent, contrary to Article 3(1)(a) of the Race Relations (Northern Ireland) Order 1997, as amended; and his said claim of race discrimination is therefore dismissed.

(2) The claimant was not harassed on grounds of his race by the respondent, contrary to Article 4(A) of the Race Relations (Northern Ireland) Order 1997, as amended; and his said claim of racial harassment is therefore dismissed.

(3) The claimant did not have a disability, and was therefore not a disabled person for the purposes of the Disability Discrimination Act 1995, as amended; and his claim of direct disability discrimination by the respondent and/or his claim of failure by the respondent to comply with the duty to make reasonable adjustments are therefore dismissed.

(4) The claimant’s claim of unauthorised deduction from wages by the respondent, pursuant to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and/or his claim of breach of the claimant’s contract of employment by the respondent in relation to unpaid wages and/or bonus and/or holiday pay and/or notice pay are dismissed.

(5) The claimant’s claim of failure by the respondent to give to the claimant itemised pay statements, contrary to Article 40 of the Employment Rights (Northern Ireland) Order 1996 is dismissed.

(6) The tribunal refused the claimant’s application for a Permanent Anonymity/ Register Deletion Order/Extended Restricted Reporting Order.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr B Collins

Mr D Walls

Appearances:

The claimant appeared in person and was not represented.

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

Reasons

1.1 The claimant presented a claim form to the tribunal on 21 June 2012, to which the respondent responded in a response form dated 30 July 2012, in which it denied liability for all of the claimant’s claims.

1.2 In a decision recorded in the Register and issued to the parties on 30 October 2012, the claimant’s claim of unfair dismissal was dismissed, following oral withdrawal, by consent, by the claimant at a Case Management Discussion on 24 October 2012.

1.3 At a Case Management Discussion on 8 May 2013, as set out in the Record of Proceedings, dated 9 May 2013, the following issues to be determined by the tribunal were identified, insofar as relevant and material to this decision, namely:-

“Race discrimination

(1) Whether the claimant was less favourably treated on the grounds of his race contrary to Article 3(1)(a) of the Race Relations (NI) Order 1997, as amended?

(2) Whether the claimant was harassed in relation to his race contrary to Article 4(A) of the Race Relations (NI) Order 1997, as amended?

…

Disability discrimination

(4) Whether the claimant is disabled as specified under the Disability Discrimination Act 1995, as amended?

(5) Subject to (4) above, whether the claimant was treated less favourably on the grounds of his disability, than others who do not have that particular disability were treated or would have been treated, contrary to Section 5 of the Disability Discrimination Act 1995, as amended?

(6) Whether or not the respondent was under a duty to make reasonable adjustments and if so, whether it discriminated against the claimant on the grounds of his disability in its alleged failure to make reasonable adjustments, contrary to Section 5 of the Disability Discrimination Act 1995, as amended?

…

Breach of contract, unlawful deduction of wages and failure to provide itemised pay-slips

(8) Whether the claimant suffered an unlawful deduction of wages contrary to Article 45 of the Employment Rights (NI) Order 1996, as amended, in respect of wages and accrued, but untaken holiday pay?

(9) Whether the respondent failed to pay the claimant his notice pay and breached his contract of employment?

(10) Whether the respondent failed to provide the claimant with itemised pay-slips contrary to Article 40 of the Employment Rights (NI) Order 1996, as amended?”

1.4 It was not disputed by the respondent’s representative that, at all material times, the respondent was vicariously liable for the acts of the employees of the respondent which were done in the course of their employment.

2.1 Following application by the claimant, on 20 May 2013, a Chairman of the Industrial Tribunals, without holding a hearing, made a temporary Restricted Reporting Order on 11 June 2013, pursuant to Rule 50(1)(b) of the Industrial Tribunals Rules of Procedure 2005 (‘the Rules of Procedure’), which Rule provides such an Order may be made in proceedings:-

“Involving a complaint under Section 17A or 25(8) of the Disability Discrimination Act 1995 in which evidence of a personal nature is likely to be heard by the tribunal or Chairman.”

In his application, dated 20 May 2013, the claimant stated, inter alia:-

“ … I wish to request for this Order for the fact that I am a father to a 14 year old minor who is now able to read and access news on the internet and other. As a father I’m concerned how this could affect my child, in school, friends and impact on my child as a stigma on mental health still hold, that the reason I wish to request a Restricted Reporting Order, as applied to the Disability Discrimination Act 1995 … that the claimant … be protected by this Order accordingly and also and indirectly protecting my child also in the ongoing proceeding of [the] case as we me and my child share the same name … .”

By letter dated 28 May 2013, the respondent’s representative confirmed the respondent - “has no objection to the Restricted Reporting Order being placed on these proceedings in light of the fact that one legal issue is whether the claimant is disabled within the statutory definition; which may involve the disclosure of evidence of a medical and/or intimate nature that may cause the claimant embarrassment if reported by the media … ”.

In an e-mail, dated 28 May 2013, the claimant referred, inter alia, to his wish that his name is not mentioned “as it will impact negatively on my child’s life. I appreciate the respondent does not object to that but my application was certainly just for me and especially my child. If my child did not share the same name as me I would not have applied [sic] for the Order. The Order is purely for the protection of my child indirectly … ”

2.2 The temporary Restricted Reporting Order made by the Chairman on 11 June 2013 prohibited publication, in particular, of any matter likely to lead to identification of the claimant and the respondent and the name of any person likely to lead to identifying the parties in this matter.

The parties were informed, pursuant to Rule 50(4)(b) of the Rules of Procedure, by the Secretary of the Tribunals that the said temporary Restricted Reporting Order of the Tribunal had been made and the parties had the right to apply to have the said Order revoked or converted to a full Restricted Reporting Order within 14 days of the temporary Order having been made.

2.3 At the outset of the hearing of this matter, it was necessary for the tribunal to consider, on the application of the claimant, whether to make the temporary Restricted Reporting Order a full Restricted Reporting Order. The respondent’s representative again confirmed that it had no objection to the making of a full Restricted Reporting Order, for the reasons set out previously, if the tribunal still considered it appropriate to do so in the circumstances. The tribunal was satisfied that, although there was no objection to the making of the full Restricted Reporting Order, that fact alone was not determinative of the application, albeit it was a relevant factor; but the tribunal had still to be satisfied, in the exercise of its discretion, it was appropriate to make the said Order.

2.4 Under the Rules of Procedure it is provided, insofar as relevant and material:-

“49 In any proceedings involving allegations of the commission of a sexual offence the tribunal, the Chairman or the Secretary shall omit from the Register, or delete from the Register or any decision, document or Record of Proceedings, which is available to the public any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.

50(1) A restricted reporting order may be made in any proceedings –

(a) involving allegations of sexual misconduct;

(b) involving a complaint under Section 17A or 25(8) of the Disability Discrimination Act 1995 in which evidence of a personal nature is likely to be heard by the tribunal or Chairman;

…

(e) where, in the opinion of the tribunal or Chairman, the interests of justice otherwise require such an Order to be made.

(2) A party may apply for a restricting reporting order, (either temporary or full) in writing to the Office of the Tribunals, or orally at a hearing, or the tribunal or Chairman may make the Order on its or his own initiative without any application having been made.

(3) A Chairman or tribunal may make a temporary restricted reporting order without holding a hearing or sending a copy of the application to the other parties.

(4) Where a temporary restricted reporting order has been made, the Secretary shall inform all parties to the proceedings in writing as soon as possible if –

(a) the fact the Order has been made; and

(b) their right to apply to have the temporary restricted order revoked or converted into a full restricted reporting order within 14 days of the temporary Order have been made.

…

(8) Where a tribunal or Chairman makes a restricted reporting order –

…

(b) a full order shall remain in force until both liability and remedy have been determined in the proceedings unless it is revoked earlier.

(9) Where a restricted reporting order has been made under Paragraph 1(b) and the proceedings to which it relates are being dealt with together with any other proceedings, the tribunal or Chairman may order that the restricted reporting order applies also to those proceedings or a part of them.

(10) A tribunal or Chairman may revoke a restricted reporting order at any time.”

‘Evidence of a personal nature’ as set out in Rule 50(1)(b) of the Rules of Procedure, is defined in Article 14(5) of the Industrial Relations (Northern Ireland) Order 1996 (‘1996 ITO’) as:-

“Any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant, if reported.”

At the commencement of the hearing, the tribunal was fully aware, from the issues identified at the Case Management Discussion on 8 May 2013, that an issue to be determined by the tribunal related to whether the claimant had a disability for the purposes of the Disability Discrimination Act 1995, as amended (‘the 1995 Act’); but, at that stage, it had heard no detailed evidence of a medical nature and/or the extent of same, which was to be the subject-matter of the said claim, save that it was aware, in general terms, depression/stress/high blood pressure/mental health issues might require to be the subject of detailed evidence before the tribunal.

In essence, the claimant was concerned that, if these medical issues, the subject-matter of his claim, were reported in the media this would cause him significant upset and embarrassment as his daughter, who is a 14 year old teenager, who shares his surname and who lives with her mother, the claimant’s former partner, and from whom the claimant has been separated for some time, was not aware of any such health issues relating to her father and who could read/hear of such matters, if the proceedings were reported in the media. He believed, if she did so, she would also be very upset and embarrassed. It will be necessary to consider these matters in further detail at a later stage in this decision. However, in light of the foregoing, the tribunal, albeit not without some misgiving, since the claimant, as he admitted, had not been in any direct contact, or indeed any other meaningful contact, with his daughter for some considerable time, decided to make a full Restricted Reporting Order, and which related, in the circumstances, to all the proceedings the subject-matter of the claimant’s claims; and not just his claim under the 1995 Act. It did so, having carried out the necessary balancing exercise, whether to make such an Order (see further X v Z Ltd [1998] ICR 43 and Paragraph 797 of Section P1 of Harvey on Industrial Relations and Employment Law). Subject to the foregoing and in view of its limited knowledge of the actual medical issues, the subject-matter of the claim pursuant to the Disability Discrimination Act 1995, it could not rule out the risk of such embarrassment to the claimant if the proceedings were to be the subject of publication in the press/media. However, in making the said Order, the tribunal made it clear to the claimant it had power (see Rule 50(10) of the Rules of Procedure), which it would exercise if it considered it appropriate to do so during the course of the hearing, to revoke the said Order, on foot of any appropriate application made to it and/or at its own initiative, after further evidence had been given to the tribunal in relation to the said medical issues. In the event, there was no such application; and, in the circumstances, the tribunal decided that it was not necessary to revoke the said full Restricted Reporting Order, prior to the conclusion of the proceedings. No member of the press/media attended the proceedings, which were held in public.

2.5 However, during the course of the submissions by the parties in relation to the making of the full Restricted Reporting Order, it became clear the claimant was unaware that, pursuant to Rule 50(8)(b) of the Rules of Procedure, a full Restricted Reporting Order, if it is made by the tribunal, only remains in force until both liability and remedy have been determined in the proceedings, unless it is revoked earlier. The claimant was a litigant-in-person and, in the circumstances, the tribunal allowed him, without objection by the respondent’s representative, to make an alternative application for another Order, namely a ‘Permanent Anonymity Order/Register Deletion Order/Extended Restricted Reporting Order’. In a written application, dated 19 June 2013, the claimant asked for the Restricted Reporting Order to be converted into a permanent Anonymity Order – “to protect the claimant in this case of disability discrimination and indirectly the claimant’s child who will be affected indirectly as a result of the risk of stigma mental health still holds in our society generally ….”. It was agreed, and the tribunal so directed, that the parties would have time to consider the submissions, which each wished to make in relation to this further application; and the submissions would be able to be made to the tribunal, at an appropriate time before the conclusion of the hearing. Written and oral submissions were subsequently made by both the claimant and the respondent’s representative on foot of this further application at the conclusion of the hearing. Further, it was agreed the tribunal’s decision on the claimant’s said applications, as referred to above, would form part of this decision.

2.6 Under Rule 50(1)(b) of the Rules of Procedure, as set out previously, a tribunal has a discretion to make a Restricted Reporting Order (full or temporary) in a disability discrimination case. Further, under 50(1)(a) of the Rules of Procedure, the tribunal also has discretion to make a Restricted Reporting Order in any proceedings involving allegations of sexual misconduct.

However, by way of contrast, under Rule 49 of the Rules of Procedure it is provided:-

“In any proceedings involving allegations of the commission of a sexual offence the tribunal, the Chairman or Secretary shall omit the Register, or delete from the Register or any decision, document or Record of Proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.” [Tribunal’s emphasis]

Such an Order, under Rule 49 of the Rules of Procedure, is sometimes called a ‘Permanent Anonymity Order’ or a ‘Register Deletion Order’.

2.7 The scope of the protection from identification that is afforded by the Rules of Procedure is therefore limited, save in a case covered by Rule 49 of the Rules of Procedure. However, these limitations resulted, after decisions of the Employment Appeal Tribunals, in Great Britain (where the Rules of Procedure, at the relevant time were in similar terms to the Rules of Procedure in Northern Ireland) making Orders in appropriate cases giving extended protection; that is protection in excess of that provided for by the Rules, not only in cases involving allegations of sexual misconduct and/or involving a complaint under Section 17A of the Disability Discrimination Act 1995 in which evidence of a personal nature is likely to be heard by a tribunal or Chairman but also in cases, for example sex discrimination cases, where no allegations of sexual misconduct have been made but where the tribunal is satisfied the claimant would be inhibited from making a complaint in the absence of such an Order (see X v Stevens [2003] IRLR 411 but also, in this jurisdiction, JR5 v Department of Agriculture and Rural Development [2007] NICA 19. In JR5, for example, the Court of Appeal in Northern Ireland made such an Order where it was established there was risk to the claimant’s physical safety.)

2.8 The protection available to those seeking Anonymity Orders in situations not covered by the Rules of Procedure, was further extended by the Employment Appeal Tribunal in A v B [2010] IRLR 844. The Employment Appeal Tribunal had been asked to provide anonymity to a claimant in an unfair dismissal case where unsubstantiated allegations had been made against him that he had been involved in paedophile activity abroad and he represented a risk to children. The Employment Tribunal had previously made Orders under Rules 49 and 50 but the Employment Appeal Tribunal felt constrained by the Employment Appeal Tribunals Act 1996, Section 131, from making similar Orders in the Employment Appeal Tribunal. It considered, as the case did not involve rights deriving from EU legislation, it could not adopt the approach of the Employment Appeal Tribunal in X v Stevens [2003] IRLR 411 and Chief Constable of West Yorkshire Police v A [2000] IRLR 465 by making an Order on the basis of the principle of effectiveness. The Employment Appeal Tribunal did, however, anonymise the names of the parties during the hearing of the appeal and made a Permanent Anonymity Order, by way of analogy to Rule 23(2) of the EAT Rules. It did so on the basis of Section 6 of the Human Rights Act and, through it Article 8 of the Human Rights Convention (the right to respect for private and family life). Underhill J, as he then was, held that, if the loss of the claimant’s anonymity involved a breach of the claimant’s convention rights, it was the duty of the Employment Appeal Tribunal, under Section 6 of the Human Rights Act, to interpret its powers, so far as possible, to protect that anonymity. On the facts of the case, it was held publication of the claimant’s identity would have had ‘a devastating effect’ on the claimant’s Article 8 rights (his honour and reputation). However, Underhill J emphasised that those rights needed to be balanced against the competing rights of the Press to publish his identity under Article 10 (the right to freedom of expression). After carrying out that balancing exercise the Employment Appeal Tribunal concluded there was no public interest that would outweigh the likely damage he would suffer if the allegations of paedophilia were put into the public domain. Interestingly, in the context of the present proceedings, in a later case of F v G [2012] ICR 246, to which further reference is made below, Underhill J stated, at Paragraph 21 of his judgment, that the reasoning in A v B would also apply to cases where the Article 8 rights of persons, other than [tribunal’s emphasis] the claimant or indeed the parties, were potentially infringed.

In F v G the Employment Judge had in fact made the Order under Rule 49 but this was held to be wrong by the Employment Appeal Tribunal, as the case did not involve allegations of a commission of a sexual offence. However, Underhill J held that the Order was substantively justified under the wider powers recognised in A v B, in light of Article 8 of the Human Rights Convention. During the course of his judgment in F v G, Underhill J acknowledged that tribunals may be able to make extended Restricted Reporting Orders, so that publication is restrained ‘beyond the life of the proceeding’. Such an Order would only seem to be possible where there are grounds for proceeding on the basis of the wider powers referred to; if not, the tribunal would be constrained by the wording of Rule 50(8)(b) (see previously) and the tribunal would have no power to extend the protection beyond the date when liability and remedy have been determined (see further Paragraphs 798.08 – 798.10 of Harvey on Industrial Relations and Employment Law, Section P1). In recognising the complications and difficulties which had arisen in the various cases referred to above, Underhill J, in F v G gave the following guidance to tribunals, although he recognised in doing so that this was still a developing area. Other than the case of JR5, referred to previously, there have been no other decisions of the Court of Appeal in Northern Ireland in relation to the issue of Permanent Anonymity Order/Register Deletion Order/Extended Restricted Reporting Order pursuant to the Rules of Procedure in the Industrial Tribunals and the Fair Employment Tribunal in Northern Ireland. In the absence of same, the tribunal was satisfied that the guidance provided by Underhill J in F v G was relevant and of persuasive authority to the decision required to be made by the tribunal in the present proceedings, on foot of the application of the claimant for a Permanent Anonymity Order/Register Deletion Order and would allow the tribunal, if appropriate, to make such an Order.

In F v G, Underhill J, at Paragraph 24 of his judgment stated as follows:-

“(a) As a preliminary, consideration needs to be given to whether Rule 49 applies. If it does anonymisation is mandatory.

(b) Subject to that, the best starting point is to consider whether restrictions on reporting and/or anonymisation of the record are required in order to protect the rights of a party or other affected person under Article 8, paying full regard to the importance of open justice (see Para 23 above); and if so, to consider the extent of the necessary measures. It will be necessary to consider not only what restrictions are proportionate but for how long they need remain in place : permanent protection may or may not be appropriate.

(c) If such protection is indeed required :

(i) If the necessary measures can be taken in the exercise of the powers under Rule 49 or 50, they should be. (Indeed, as regards Rule 49, this stage will already have been passed – see (a) above.)

(ii) If, however, one or both of those Rules is no application – say because there is no allegation of the commission of a sexual offence or a sexual misconduct nor any (in short) disability issue – the necessary measures, whether by way of an RRO or by way of anonymisation, it should be taken in the exercise of the general powers of the tribunal under (now) Rule 10, in accordance with the reasoning in X and A v B (in the case of an RRO the fact that the Order is being made under these wide powers may not make much difference to the actual format of the Order, since, as pointed out above, the standard format of an Order under Rule 50 can still usefully be taken as a template).

(iii) There may be cases which fall within the scope of Rule 50 but whether relief available under that Rule is too limited – eg if restriction of reporting is required beyond the end of the proceedings. In such a case the tribunal should, in case any tricky issues arise subsequently, make clear what it is doing under Rule 50 and what extra it is doing under the wider powers recognised in X and A v B.

(d) If there no entitlement to protection under Convention Rights, then of course the issue falls to be dealt with purely under Rules 49 or 50 as the case may be.

(e) Accepting cases where Rule 49 applies in accordance with its terms, the question whether the record of a tribunal needs to be anonymised need not necessary be decided once and for all at the start of the proceedings. There is no reason why, in an appropriate case, a Judge may not direct interim anonymisation, with a final decision being taken only at the point when the judgment is delivered and when the tribunal will be well placed to assess all relevant factors.”

2.9 Although, as stated above, there are no decisions in the Court of Appeal in Northern Ireland directly relevant to the jurisdiction of these tribunals and their Rules of Procedure, other than JR5, referred to previously, there have been a considerable number of decisions by the High Court in Northern Ireland in relation to Orders for anonymity, including A (a minor) and Others v A Health & Social Services Trust [2010] NIQB 108, XY x Facebook (Ireland) Ltd [2012] NIQB 96 and Re: A Police Officer’s Application for leave to apply for Judicial Review [2012] NIQB 3. Although these judgments relate to very different factual situations to those which arise in the present proceedings, I am satisfied that the principles set out in these judgments add further weight and support to the guidance of Underhill J in F v G, referred to previously, and the ongoing developing nature of this law, as referred to by Underhill J.

2.10 In particular, in Re: A Police Officer’s Application for leave to apply for Judicial Review [2012] NIQB 3, McCloskey J, in the course of his judgment stated:-

“ ...

(4) In my opinion, the anonymisation of any litigant in any jurisdictional forum engaged the principle of open justice. The leading authorities on this topic, Scott v Scott [1913] AC 417 and Attorney General v Leveller Magazine [1979] AC 440 are well-known. These authorities clearly establish a strong general rule that court proceedings should be conducted in public.

...

(14) While it may be foreseeable that Convention Rights will progressively dominate an application for anonymity of the present kind, the assertion of a Convention right is a not a pre-requisite to the discretionary conferral by the Court of this protected measure. In cases where a litigant seeks the protection of anonymity other than under the guise of one of the Convention rights, it is clear from the opinion of Lord Diplock in Leveller that where the High Court permits any encroachment upon the principle of open justice it is drawing from the repository of powers belonging to its inherent jurisdiction to control the conduct of proceedings.

...

(15) In my opinion, the advent of Convention rights in domestic law during the past decade, through the vehicle of the Human Rights Act 1998, served to place a sharper focus on issues relating to hearings in camera, hearings in chambers, protection of the identities of litigants and witnesses and the promulgation of judgments. I consider that if the Court adopts as its starting point the principle of open justice and, having done so, then explores rigorously – without resort to burden or standard of proof – the question of whether sufficient justification for any encroachment on this principle has been demonstrated and, if so, in what manner and to what extent, the Court is unlikely to fall into error. Adherence to this approach has the additional merit of minimising the risk of misuse of the Court process.

... .”

2.11 The tribunal, having carefully considered the above matters and the legal authorities set out in the previous sub-paragraphs, reaching the following conclusions in relation to the claimant’s application for a Permanent Anonymity Order/Register Deletion Order/Extended Restricted Reporting Order.

It was not disputed that Rule 49 of the Rules of Procedure did not apply to these proceedings as they did not involve any allegations of sexual offence. Therefore anonymisation was not mandatory.

In light of the findings of fact made by the tribunal, as set out later in this decision, concerning the claimant’s medical/health issues, upon which he relied in his claims pursuant to the Disability Discrimination Act 1995, as amended, the tribunal was not satisfied these medical/health issues by their nature raised anything unusual or of any particular sensitivity or embarrassment to the claimant. Such issues are frequently referred to in decisions of this tribunal, or indeed to the Courts, in relation in particular to claims of Disability Discrimination, without the benefit of any ‘Permanent Anonymity Order/Register Deletion Order/Extended Restricted Reporting Order’. The tribunal was very aware that to grant such an Order in these proceedings, on the facts as found by it, could mean, without more, that such an Order could and/or should be made in any case, where such medical/health issues arise in the course of tribunal proceedings, and, in particular, where claims are made under the Disability Discrimination Act 1995 and/or where personal injuries compensation is claimed in discrimination claims. Further, the tribunal took into account that the claimant has not been in direct contact, or indeed any other meaningful contact, with his daughter for some considerable time. Also she is a 14 year old teenager who, in the absence of any other relevant evidence, is not likely, in the judgment of the tribunal, to be so upset or embarrassed by knowledge of the claimant’s medical/health issues, in comparison with a younger child. The tribunal acknowledges that the claimant’s daughter has the same surname as the claimant, which would not be a name in common usage in Northern Ireland. The tribunal further accepts that, on the basis of the guidance set out in F v G, the tribunal can have regard to the potential infringement of the Article 8 rights of not only the claimant but also, if appropriate, other persons, which could include the claimant’s daughter. However, in the absence of any other evidence and given the absence of any recent direct contact or other meaningful contact, between the claimant and his daughter, the tribunal concluded the claimant had not shown, in the circumstances, any real risk of potential infringement of the Article 8 rights of the claimant or his daughter. Further, all of this is required to be considered in the context of the importance of open justice as confirmed by Underhill J in F v G and, as seen also in this jurisdiction, in the judgment of McCloskey J in Re: A Police Officer’s Application.

In light of the foregoing, the tribunal was not persuaded that there was sufficient justification, if any , established by the claimant that the tribunal should allow, in the particular circumstances of this case, any encroachment on the principle of open justice. The tribunal therefore refused the claimant’s application for a ‘Permanent Anonymity Order/Register Deletion Order/Extended Restricted Reporting Order’.

3.1 Having considered the evidence given to the tribunal by the parties and witnesses, the documents contained in the ‘trial’ bundles, as amended, during the course of the hearing, together with the oral and written submissions of the claimant and the representative of the respondent, the tribunal made the following findings of fact, as set out in the following sub paragraphs, in so far as necessary and relevant for the determination of the claimant’s claims. In particular, the tribunal heard oral evidence from the claimant and Mr D Cairns, Ms S McAteer, Mr E Musonza, Ms P McGleenan, Ms A Ball, who hold various positions with the respondent.

3.2 The claimant, who is black, and originally from Nigeria, was employed by the respondent from 30 January 2012 as a customer service adviser. The respondent employs customer service advisers in what is commonly known as a call centre, working for a number of companies, including national companies such as O2. He was employed until 4 May 2012, after he resigned following a letter of resignation dated 20 April 2012.

3.3 In his application form to the respondent for the said employment, dated 18 October 2011, the claimant, in answer to specific questions under the heading of the Disability Discrimination Act 1995, replied as follows, insofar as relevant and material to these proceedings:-

“Do you consider yourself to be disabled under the Disability Discrimination Act? No.”

The claimant was also asked to fill out a pre-employment health questionnaire and he answered, insofar as relevant and material to these proceedings:-

“Are you currently in good health? Yes.

Do you consider yourself disabled? No.

Have you any disabilities which affect your ability to stand, walk, lift, see, hear, speak, drive, climb stairs or use your hands? No.

Are you attending an outpatients clinic or are you on a hospital waiting list for an operation? No.

Are you receiving any treatment from you GP? If so, describe below. No.

High blood pressure? Yes [tribunal’s emphasis]

Mental health (including stress, anxiety)? No [tribunal’s emphasis].”

3.4 In medical evidence produced by the claimant for the purposes of these proceedings, but not during the period of his employment, it became apparent that the claimant, when responding to the above pre-employment questionnaire had not replied fully and accurately. The tribunal does not accept that the inaccuracies could be explained by pressure and/or the rush to fill out the said forms during the pre-employment process but rather is satisfied the omissions were deliberate.

In particular, insofar as relevant to these proceedings, it became apparent from these said records produced by the claimant, the claimant was diagnosed in or about 2011 to be suffering from chronic kidney disease, Stage 3, hypertension, gout, obesity and impaired glucose intolerance and was attending an outpatient clinic on review every six months in or about 2011/2012, which was during the period of his application for employment with the respondent and his subsequent employment with the respondent. However, no such reference to same was made in response to the questionnaire. It is of interest to note that on 20 April 2012, the date of his letter of resignation, there is a referral note from his General Practitioner, stating, inter alia:-

“This gentleman has been suffering work-related stress. He has had an increase in his blood pressure levels previously controlled and is now requiring more medication.”

In a further referral note by his General Practitioner dated 13 November 2012, it is stated:-

“The above patient has a history of hypertension, decreased renal function and remains under regular review at the surgery and the BCH Nephrology Outpatients. He remains on medication.”

In a further report, dated 16 January 2013, which the claimant also produced in evidence, clearly for the purposes of these proceedings, it is stated:-

“This gentleman has been seeing Dr Monaghan, my colleague in general practice and myself since October 2011 with low mood, sense of hopelessness and sleep disturbance. Dr Monaghan has referred him to the CPN, Mary Daly [Community Psychiatric Nurse] and she is going to review him over the next few weeks. We’ve also started an anti-depressant and I will see him in three weeks.

Addendum 6 of February 2013

I now enclose a synopsis of Ms Mary Daly’s findings (8-01-2013)

Ember is a 41 year old man presenting with a history of depression which dates back over several years [tribunal’s emphasis], which appears to be triggered by a multiple situation of a family-related stressors. His symptoms include anhedonia and he has thoughts that life is not worth living but denies any suicidal intent or plan. Reports feelings of hopelessness, stated that he has been avoiding his friends. On assessment he was kempt and well-presented but informed me he had lost interest in his appearance and hygiene and also that his concentration and memory have deteriorated.

I review Mr Anakaa on 5^th of February at the surgery and he reported that he anti-depressants were helpful and he was feeling a bit better.

Ms Daly will also continue to review.

… .”

Again, it is necessary to note that this history of depression or indeed of the said symptoms recorded by Ms Daly was not contained in any of the previous records produced by the claimant. The General Practitioner himself did not refer to depression.

In the course of his evidence, the claimant confirmed that he was relying on ‘depression’ as his disability for the purposes of the Disability Discrimination Act 1995. In particular, there was no reference, as acknowledged by the claimant, in the application form or the pre-employment health questionnaire to depression and/or mental health issues, despite the reference in the above report to a history of depression which dated back several years. He suggested he had not done so because, when he filled out the forms, he had not been professionally diagnosed with depression. Regardless of the position of diagnosis, there was no reference to any such matters by the claimant or even a hint of same, when he specifically answered the questions in the above documents provided to him by the respondent as part of the pre-employment process. In evidence, he also sought to suggest that the reference in his application form to high blood pressure was an underlining factor of his said depression and was one of a number of symptoms for depression. He did not call, as a witness, either his General Practitioner or Ms Daly, in support of any of these matters and relied solely on the said records; but he did acknowledge that depression is not the same as high pressure or vice versa. He accepted that, prior to his suspension from employment, to which further reference will be made later in this decision, he had no sick absence from his employment. Indeed, there was no evidence that, prior to the period of suspension, the claimant had any difficulty in working and performing his role as customer service adviser or indeed in carrying out any of the normal day-to-day activities which somebody in his position might be expected to be able to carry out. Indeed, as set out in his replies to the pre-employment health questionnaire, he had specifically stated that he had no difficulties in relation to standing, walking, lifting, seeing, hearing, speaking, driving, climbing stairs or using his hands.

3.5 After commencing his employment on 30 January 2012, the claimant undertook a three week period of ‘classroom-based training’ in order to enable him to be a customer service adviser with the respondent, which was then followed by three weeks of practical training in an area known as the ‘graduation day’ ‘grad day’ from 20 February 2012 to 8 March 2012.

3.6 During the period of his training, the claimant was given the relevant log-in passwords for the respondent’s computer systems and the computer programmes. In addition, during training, the claimant was given access online to his pay data. Indeed, the tribunal is satisfied that, during his period of induction training, the claimant attended the presentation given by Mr David Cairns, then the payroll administrator, on how to access ‘online’ an employee’s written itemised pay-slips. This involved a specific password system to enable an employee to gain access to his own pay-slips. The respondent does not issue individual written pay-slips; but rather these are placed online to which the employee has access, using the said password system. During the presentation by Mr Cairns, it was explained that, if an employee, for example, had forgotten his password, there was an option on the screen to obtain a new password but he made it clear that this temporary password only lasted for a 24 hour period and an e-mail informs the employee he/she must use the temporary password within 24 hours, which then instructs him on creating a new password. In addition, in such a situation, Mr Cairns explained that it was possible for an employee to contact the payroll department, either directly or through a team leader and again, as a consequence, a temporary password was able to be given to the employee, which again had to be activated within the said 24 hour period, as set out above. The tribunal is satisfied the above system for accessing online itemised pay-slips was the same for all customer service advisers. It would appear the claimant had difficulty in accessing his pay-slip using the online pay system, despite the presentation given by Mr Cairns. His first pay day was on 20 February 2012 and the claimant came into the payroll office, which was on the same floor of the building, where his training was taking place, and explained to Mr Cairns that he could not access his pay-slip. Mr Cairns, whom the tribunal found an impressive witness, who was clearly conscientious and helpful to employees faced with such an issue, fully explained to the claimant, after he had re-set the password to a temporary password, that this required to be used within the 24 hour period and changed to a new password by him. He was told by Mr Cairns of various options to ensure he used the password before it expired – use the computer on Mr Cairn’s desk, the computer in the cafeteria/canteen on the fifth floor, or he could use the computer of his trainer and/or team leader or, if available, he could use his own computer at home. It was accepted, for security reasons, he could not use his own work computer at his desk to access his online pay-slip and, if he required to do so at work, he either used the computer in the cafeteria/canteen or the computer of the team leader/trainer or waited until he went home and accessed it on any computer there. In response, the claimant decided not to try it out on Mr Cairns’ desk and said he would try it out later. The tribunal does not accept the claimant’s denial that he had never met Mr Cairns or did not know who he was, although he had made the presentation at the induction training and was the person whom the tribunal was satisfied he had met in his office, as referred to above.

Further, by an e-mail on 6 March 2012, from Brian Hicks, the graduation day team manager, requested from Mr Cairns re-sets for a number of employees, including the claimant, to enable them to view their online pay-slips. Mr Cairns did not do this on 8 March 2012, as the employees listed were not due to be at work on 7 March 2012. For him to have re-set the password on 6 March 2012 would have meant the 24 hour period for use would have expired before the return to work of the said employees. He re-set the password on 8 March 2012 for the listed employees and informed Mr Hicks he had done so. There was no evidence to suggest that he did not inform the employees that this had been done. In particular, no further difficulties were reported to Mr Cairns by any of these employees or Mr Hicks of difficulties any of them had in accessing their pay-slips online. Records showed all the other employees used their temporary password facilities successfully within the 24 hour period. However, the relevant record showed the claimant had made no attempt to use the temporary password facility as carried out by Mr Cairns on 8 March 2012 and the relevant records showed the last change made to the claimant’s online password was 8 March 2012. It was noted that one of the employees was MO, who was also black, but there was no evidence he was unable to access his online pay-slips, following the above re-set by Mr Cairns, following the request to do so by the team leader, Mr Hicks. The tribunal is satisfied the failure of the claimant to access his online pay-slip was because of his repeated failure to use the temporary password given to him within the said 24 hour period, despite the instruction to do so, which was given not only at the induction training by Mr Cairns but also individually in Mr Cairns’ office on 20 February 2012 and again following the further re-set carried out on 8 March 2012 by Mr Cairns, following the request made by Mr Hicks on behalf of the claimant and other employees. The tribunal is satisfied any difficulty the claimant had with the use of the pay-slip password was not because of his race but because he failed to carry out the instructions he had been given. The claimant is clearly an intelligent person. Indeed, he lists in his educational qualifications, a Certificate in Computing and is also a University Graduate. It was also apparent from his previous employment, including at another call centre, that he would have been required, inevitably, to use computers and password systems. Further, the tribunal notes that MO, another black employee, had no difficulty following the re-set on 8 March 2012.

The tribunal accepts the claimant did not have a computer in his home, at the relevant time; but he had access to the computer in the cafeteria/canteen and also could have used the computer of his trainer and/or team leader, to gain access if he had wanted or needed to do so. He also could again have gone to the office of Mr Cairns. The tribunal accepts that it would have been helpful if there had been more than one computer terminal in the cafeteria/canteen, as, at times, there may have been pressure on the use by employees of that one computer; albeit he acknowledged any such difficulties would have been the same for all employees.

3.7 Further, the tribunal found no evidence that the claimant had difficulties in his ability to log into his work at any time, which used a separate password system. Indeed, Ms McAteer, his team leader, gave evidence she had no recollection of any specific issues raised by the claimant in relation to the use of passwords in connection with his ability to do his work. Indeed, the relevant records and statistics produced in evidence by the respondent illustrated his ability to access relevant programs, suing his relevant passwords, such as Vision Sales Program 02 and/or logging program re-calls (PQMT) used by him on a regular basis for use in his work as a customer service adviser. Again, even if there were issues relating to his password to access his pay-slips online, there was no evidence it was because of the claimant’s race.

3.8 The tribunal are satisfied, having seen copies of the claimant’s pay-slips, including his final pay-slip, that he was paid all sums due to him up to and including 4 May 2012, although in his letter of resignation on 20 April 2012 he had resigned with immediate effect and that the sums paid to him in the final pay statement included all sums due to him in respect of accrued holiday pay and/or statutory sick pay. It was apparent from the said itemised pay statements, at all times, all relevant deductions etc were made and set out on the said pay-slips by the respondent, which as seen previously, the claimant was able to gain access to online by use of the said password system. The claimant was not entitled to notice pay as he resigned on 20 April 2012, with immediate effect; but, in any event, he was paid by the respondent until 4 May 2012.

3.9 The tribunal was satisfied that there was no contractual entitlement for the claimant, as a customer service adviser, to receive from the respondent a bonus through the payroll. O2, one of the respondent’s clients, and which is not the claimant’s employer, operated an awards scheme, whereby it, not the respondent, gave customer service advisers of the respondent shopping vouchers for use in High Street stores, where they had sold a sufficient number of products under the Vision System. The claimant was not eligible for any vouchers from O2, as he did not reach the necessary level of sales under the Vision Sales programme. Issuing of such vouchers was a matter for O2 and not the respondent under the claimant’s contract of employment.

3.10 The claimant, during the period of his classroom training, was required to sit a written assessment. In the relevant records for the said written assessment, the claimant, as well as MO, to whom previous reference has been made and who also was black, failed this written assessment. MO subsequently passed the re-sit assessment on 8 March 2012 but the claimant again failed. To enable the claimant to move from the classroom training to the practical training, he had to complete the re-sit examination, which, unfortunately, as seen above, he failed. There was no evidence whatsoever that the failure of the claimant on both occasions, or indeed of MO, on the first occasion had anything to do with their race or the assessments were marked incorrectly. The tribunal has no doubt that the claimant’s failure to pass the said assessments was totally unrelated to his race.

In any event, despite the failure of the claimant to pass his said written assessments he was given, in error, a graduate certificate on the last day of training and was permitted to commence working from 12 March 2012 as a customer service adviser under the team leader, Ms S McAteer. At this time, Ms McAteer was unaware that the claimant had failed his said written assessments, when he joined her team. In any event, by allowing the claimant to graduate, despite his said failures, he suffered, in the judgment of the tribunal, no detriment in the circumstances.

3.11 On 22 March 2012, the claimant was sent a letter by the Human Resources Officer, Ms Gibson, requiring him to attend a formal meeting to discuss his current level of performance with the Human Resources Officer and Ms L Feeney, the Operations Manager. It stated, inter alia:-

“The purpose of this review is to set out serious concerns about your current level of performance.”

3.12 The areas for discussion were stated to include the failed assessments referred to earlier in this decision. The letter also stated that:-

“It should be noted that the first four months of your employment is a probationary period and during this period your performance is regularly reviewed by FirstSource Solutions. We would like to advise you that the possible outcome of the meeting could lead to termination of your contract.”

The claimant, understandably in the circumstances, having been given a Certificate of Graduation, was concerned to receive such a letter to attend the performance review meeting and its reference to the failed written assessments. Indeed, this was the first time he had been made aware he had failed the said assessments. He went and spoke to Ms McAteer on or about 22 March 2012 about the contents of the letter. This was the first time, from the contents of the letter, Ms McAteer became aware that the claimant, although he had graduated into her team, had not passed his written assessments. She said she would investigate and report back to the claimant. The tribunal is satisfied Ms McAteer did so and spoke to Human Resources and relevant senior personnel and, on her recommendation, it was agreed that the performance and review meeting would not go ahead, as the error to allow the claimant to graduate by passing the said assessments, was the responsibility of the respondent and not the claimant. It was agreed, on her recommendation, the claimant would continue as part of Ms McAteer’s team, with her providing appropriate support and coaching to the claimant, as she carried out his said role. The tribunal is further satisfied that Ms McAteer informed him, on or about 22/23 March 2012, of the above decision, including that the performance review meeting was not to take place and that he should not worry about the letter in the circumstances. The meeting on 27 March 2012 did not therefore take place and, because of the above discussion with Ms McAteer, this would not have been a surprise to the claimant, despite his suggestion to the contrary in evidence to the tribunal. During the course of her discussion about what was to take place, Ms McAteer apologised to the claimant for what had happened in relation to his receipt of the letter of 22 March 2012, which had arisen due to the error previously described on the part of the respondent.

3.13 During the week 26 – 30 March 2012, there was a Health & Well-being Week at the respondent’s premises. As part of this exercise, food was made available by the respondent to be issued to employees to eat at their desk. This fruit is very popular amongst the employees during such weeks and Ms McAteer was aware that, in previous years, the fruit had soon run out. So, she decided to collect a variety of fruit from the boxes of fruit at the collection point in the cafeteria/canteen and brought it back to where her team were working. The claimant, along with two other members of the team, were given bananas. Ms McAteer said she gave out the fruit of various types, randomly, which the tribunal accepts. However, the claimant is of the opinion that, by giving the claimant, who is black, a banana, Ms McAteer was doing this as a racially motivated act. Ms McAteer, in evidence, strongly denied this allegation and stated, in evidence, she was not aware of the significance of the banana, in the context of racism, at that time.

It is correct that, following a subsequent grievance made by the claimant that she had dropped bananas on the claimant’s desk, at an interview on 19 June 2012, with a Human Resources Officer, Ms A Ball, in relation to the matter, Ms McAteer did say she had not put a banana on the desk and it was a lie and she would never discriminate against anyone and to say so was verging on slander. At the time of the interview, which was sometime after the incident, Ms McAteer further maintained she had no recollection of any such incident; but sometime later on 13 August 2012, she went back to Ms Ball after she realised that the allegation by the claimant had arisen when she was giving out fruit, as referred to previously, during the Health & Well-being Week and, in particular, she said she was not aware she gave him a banana and, in particular, she denied that she had dropped a bunch on his desk. She concluded:-

“To be honest, I didn’t even get the point that he was making in terms of it being a racial act.”

It clearly would have been better if Ms McAteer had recalled the incident from the outset. However, the tribunal having closely observed Ms McAteer giving her evidence, is satisfied that her earlier denial was because of a lack of recollection and, in particular, because she was not aware at the time that anything untoward had occurred or that she had offended the claimant in any way. The tribunal has no doubt that she had gone and got the fruit from the cafeteria/canteen as a goodwill/teambuilding gesture, so the members of her team would get the fruit before it ran out and that it was distributed by her on a random basis. Although the tribunal is aware that the use of a banana, unfortunately, can be a racially motivated issue, especially in the context of football and black footballers, it was satisfied that Ms McAteer, whom the tribunal concluded was somewhat naïve and lacking in any sporting knowledge, was genuinely at the time not aware of the potential racial issues which have arisen, as set out above, in other contexts such as football. The tribunal noted that there were no other such incidents. It also noted, as set out above, it was Ms McAteer who persuaded Human Resources not to go ahead with the performance review meeting and to retain the claimant on her team with appropriate support from her, despite the fact he had failed his written assessments. The tribunal, in the circumstances, was satisfied the above banana incident had nothing to do with the claimant’s race and has been used by the claimant for the purposes of trying to persuade the tribunal of a racial context to his subsequent suspension for gross misconduct.

3.14 To show that Ms McAteer must have intended the giving of the banana to be a racially motivated incident, the claimant, in the course of his evidence, albeit this had not been previously pleaded, also relied on the fact that, on a previously occasion, Ms McAteer had sworn at Mr E Musonza, who is also black and at the relevant time was a resource planner for the respondent. He alleged she had used a phrase such as ‘F**k u’. He said that she had done this in his hearing and the claimant relied on this in order to support his allegation of racial motivation in respect of the banana incident referred to previously. Ms McAteer, when challenged for the first time, in the course of cross-examination by the claimant, about this allegation that she had sworn at Mr E Musonza said, in response, she would never have reason to do so. In light of the foregoing, Mr E Musonza was called to give evidence about the above allegation. It was apparent that Mr E Musonza was most uncomfortable in having to give evidence to the tribunal. However, the tribunal was impressed by him as a witness and concluded that at some date during the period of the claimant’s employment, after he had joined Ms McAteer’s team, there had been some disagreement between Ms McAteer and Mr E Musonza. It was believed that it had arisen when Mr E Musonza, during one of his daily contacts with Ms McAteer in his role as resource planner, had not agreed to Ms McAteer’s request that her team be allowed to have some time away from calls for some form of team briefing. While Mr E Musonza was not prepared to admit, in evidence, that Ms McAteer swore at him and/or used foul language, he admitted he was certainly not happy with her reaction to his decision not to allow her team to have time away from calls. Significantly, Mr E Musonza accepted that his role, as resource planner, and Ms McAteer as team leader, could lead to tensions and stresses; and he confirmed that, whatever was said by her on this one occasion there was no repetition and a few days later they discussed it and moved on, accepting such disputes can arise in such a pressurised environment. Subsequently, Ms McAteer despite her earlier denial, conceded in evidence she may have, and with hindsight, acted inappropriately; but she denied she swore saying it would have been unprofessional to do so. Mr E Musonza was adamant that, whatever was said in the heat of the moment, he was satisfied that it was not racially motivated. He confirmed that he and Ms McAteer have continued to work well together, albeit he has subsequently been promoted by the respondent to the role of payroll executive. The tribunal came to the conclusion, despite the hesitancy of Mr E Musonza to admit that Ms McAteer had sworn at him and her denial, that, in fact, on this occasion, she had done so, in the hearing of the claimant, as he had alleged. Equally, the tribunal concluded it had not racial connotations but was a one-off lack of control by Ms McAteer, when she clearly lost her temper on a work-related issue when Mr E Musonza refused what she believed what was a legitimate request. To have done so, was clearly regrettable but sensibly both resolved the situation and moved on. Importantly, Mr E Musonza did not consider that her swearing at him had anything to do with the fact he was black. The tribunal was satisfied the work environment was stressful and because of their roles of team leader and resource planner there was often a healthy tension between them because of their opposing roles and business interests and that such disagreements were not unusual; albeit on this occasion, went much further than was normal or could be appropriate in such a work setting.

The fact that the tribunal found Ms McAteer had sworn at Mr E Musonza, despite her denial, was not a relevant fact for the tribunal in accepting Ms McAteer’s evidence in relation to the banana incident as set out above. As Underhill P in his judgment in the case of Matt McDonald v Rivkin [2011] UKEAT/0448, an age discrimination case, emphasised that it does not automatically follow from the fact a witness had lied on one point that his evidence is untruthful at all points. (See further Breslin & Others v McKevitt & Others [2011] NICA 38 – Paragraph 34.)

3.15 The tribunal has no doubt that Ms McAteer, as team leader, had to keep a tight control on the members of her team to ensure calls were dealt with in accordance with relevant procedures and, in particular, to ensure calls were ended and recorded promptly. To do this, the tribunal was satisfied Ms McAteer would, on occasion, have called out ‘call wrap’ to the claimant but also, when required, to all other members of the team. The tribunal did not accept the claimant was singled out to be shouted at by Ms McAteer, as he alleged.

3.16 The claimant continued to work in Ms McAteer’s team until 2 April 2012. On that date, he was suspended by the respondent on the basis that he had sworn on a telephone call with an O2 agent in Glasgow. He was asked by Ms McAteer, at the end of the call, to log off quickly and to attend a meeting with Ms L Feeney, Operations Manager, and Ms A Ball, the Human Resources Officer. It was alleged the returns and repairs adviser, ‘Mac’, an O2 employee in Glasgow, had alleged that, during a call between him and the claimant, the claimant had sworn at Mac and as a result the quality team had received a complaint from Mac about the claimant’s swearing during the said conversation. O2 was one of the respondent’s clients and the tribunal is satisfied the respondent, in the circumstances, on foot of such an allegation, had no alternative but to investigate it. In addition, during the course of this investigation, the respondent became aware that a customer had alleged that the claimant had laughed during a phone call and had subsequently lodged a complaint. At the meeting on 2 April 2012, the claimant denied the allegations and made counter-allegations and in the circumstances, Ms Ball decided it was necessary to suspend the claimant on full pay. He was given a suspension letter, dated 2 April 2012 and a copy of the respondent’s disciplinary procedures. In the letter it was stated, inter alia:-

“Re: Conduct likely to bring company into disrepute – any activity that would or could jeopardise FirstSource client relationship.

I am writing to inform you of your suspension from work involving allegations of gross misconduct reported to the company. An investigation into these allegations, which comprise of the above, will commence as soon as possible. Suspension is a mutual act and you should not view it as an indication that the matter will progress beyond our investigating the allegations mentioned above.”

The claimant signed the notes of the suspension meeting, which the tribunal is satisfied included two pages of notes, which related to both allegations. Ms Ball then wrote a further letter to the claimant on 4 April 2012 which stated, inter alia:-

“Dear Julius

Gross Misconduct – conduct likely to bring company into disrepute – any activity which would or could jeopardise FirstSource client relationship

‘Section 7 (Disciplinary Rules and Procedures)

Conduct likely to bring the company into disrepute

An activity that would or could jeopardise FirstSource client relationship’

Following the company’s investigation into the allegations raised against you, I refer to the above, an act which the company considers constitutes gross misconduct, I am writing to request your attendance at a disciplinary hearing on Friday the 6^th of April 2012 …

The purpose of the disciplinary hearing is to discuss with you the allegations which have been made in order to determine whether your actions amounted to gross misconduct. At the hearing you will be given a full opportunity to state your case and respond to the allegations. Enclosed are the copies of the documentation which the company intends to rely on at the hearing.

…

The disciplinary hearing will be attended by Paul Ryan, Operations Manager, and Ashley Ball, HR Officer, whose role will be to conduct the hearing and make a decision as a result of the disciplinary hearing. We would like to advise you that the possible outcome of the meeting could lead to termination of your contract … .”

The tribunal is satisfied that there was included in this letter copies of the documents to be relied upon by the respondent, including a statement from a fellow employee, Gavin Mandrill, relating to the call with Mac, where he was alleged to have sworn, which was dated 4 April 2012, together with an e-mail from Ryan Ritchie relating to the contents of the call with the customer who had complained the claimant was laughing, and a detailed investigation report by Ms L Feeney, Operations Manager, referring, in particular, to the said allegations, namely the call with Mac in Glasgow on 29 March 2012 and the call with the customer on 1 April 2012. This report noted that the claimant denied the allegations and said that Mac had sworn at him. It also stated that, in addition to the statements of Mr Mandrill and Mr Ritchie, there were call recordings, which were stated to be retained on the relevant system if they were required. It would appear that the recording of the actual calls was not retained, albeit they were listened to by the quality team of the respondent, but were retained in a form of summary of the calls, a copy of which was enclosed in the said letter. The claimant suggested, in evidence to the tribunal, that there were no documents enclosed with the letter of 4 April 2012 and he only subsequently obtained them on discovery during the course of these proceedings. The tribunal does not accept his evidence on this issue, having heard the evidence of Ms Ball, who also confirmed the above documents were enclosed, and by the further reference to same in subsequent correspondence, referred to below. However, the tribunal does accept that the claimant was not given a full transcript of the said calls but rather the summaries referred to above. The tribunal does not underestimate the failure to retain the actual recordings might have been of relevance and significance for the purposes of the disciplinary hearing, if it had in fact taken place (see later) or indeed if the claimant had been employed for a sufficient period to allow him to bring a claim for unfair dismissal. As indicated previously, the claimant withdrew his claim for unfair dismissal, as he recognised that he did not have a sufficient period of employment with the respondent to enable him to make such a claim.

3.17 The claimant did not attend the disciplinary hearing arranged for 6 April 2012, as he had sent to the respondent a statement of fitness for work from his General Practitioner dated 6 April 2012 for the period 6 April 2012 – 20 April 2012, which referred to ‘hypertension, work-related stress’. This, as stated previously, had never been referred to previously by the claimant. Indeed, until the date of his suspension and this statement, from his General Practitioner, the claimant had not required any sick absence from his work. As a consequence, the respondent re-scheduled the disciplinary hearing for 23 April 2012 in a letter dated 16 April 2012 (in error referred to as 2011). It was in similar terms to the letter of 4 April 2012 and referred, inter alia, to the letter of 4 April 2012 and that the documents, relating to the allegations to be relied upon by the claimant, were enclosed therein.

Because of the sick line and the statement from the General Practitioner and its reference to work-related stress and hypertension, and the necessity to arrange the disciplinary hearing, the letter from the respondent stated that, if the claimant did not wish to attend the meeting, as set out in the letter, there were a number of alternatives he might wish to avail of and set out various options, namely:-

“- Conducting the meeting at your own property or in a location which is convenient for you.

- Conducting the meeting via telephone conference.

- Provision of a written statement by you in response to the allegations raised against you and the supporting evidence provided to you dated 4^th of April 2012.

- Assigning a representative to answer questions on your behalf, ie a trade union representative or work colleague.”

The letter also stated:-

“I would ask you to advise me of your intentions to use one of the options outlined above no later than Friday the 20^th of April. Please note if you do not attend the meeting, fail to avail of any of the reasonable options or provide a medical statement from your GP to support you being unfit to avail of any of the above, note a sick line is not adequately supporting evidence, the panel may have no other alternative but to hold a hearing and make a decision in your absence.”

3.18 In any event, before any decision could be taken in relation to how to proceed with the disciplinary process, the claimant sent a letter dated 20 April 2012 resigning his position with immediate effect ‘due to health reasons, loss of confidence in employer and unsatisfactory working conditions’. In the letter, he enclosed a further statement of unfitness for work, dated, in error, 18 May 2012, for a week’s sick line from 20 April 2012 to 3 May 2012, again referring to hypertension/work-related stress and also enclosed the referral letter, dated 20 April 2012, to which earlier reference has been made, in which the claimant’s General Practitioner had sought a referral for emergency admission/normal/urgent/semi-urgent appointment for OP Department and stating that the reason for the referral was that ‘this gentleman has been suffering from work-related stress. He has had an increase in his blood pressure levels, previously controlled and is now requiring more medication’. This letter or statement did not deal with the various options referred to in the respondent’s letter. The letter of 16 April 2012 did not state, as alleged by the claimant, that a sick line was not valid; but rather it stated that the respondent wanted a medical statement from the General Practitioner to show the claimant was unfit to avail of any of the options referred to in the said letter and that a sick line was not considered to be adequate supporting evidence. It has to be noted that a sick line from a General Practitioner refers to a person being not fit for work. This does not necessarily mean the same as being unable to avail of any of the above options; albeit this may not have been readily understood by the claimant at the time. With hindsight, the tribunal believes that this distinction could have been better explained in the said letter.

The claimant also raised a grievance by letter dated 20 April 2012.

3.19 Upon receipt of the resignation letter, Ms P McGleenan, Senior Human Resources Officer, immediately telephoned the claimant to arrange a meeting to discuss further the detail in his letter and to offer the claimant the company grievance policy. The claimant said he was not able to attend the meeting but would be in touch if he wanted a meeting at a later date. Ms McGleenan followed this up with a letter dated 7 May 2012 which stated, inter alia, as follows:-

“ … I write to acknowledge your resignation letter on 20^th of April 2012 report. In summary, the resignation letter states loss of confidence in the company, unsatisfactory working conditions, lack of support and frustration with company systems as a contributory factor to your stress.”

In the letter, Ms McGleenan also again confirmed her willingness to arrange a meeting to discuss further the detail in the claimant’s resignation letter at a convenient time and offered him the company grievance policy; but she acknowledged the claimant had said he wanted any such meeting to take place at a later time due to his continuing illness.

3.20 By letter dated 11 May 2012, the respondent acknowledged the claimant’s resignation and confirmed what would be contained in his final payment from the respondent and also confirmed that the termination of his employment was 4 May 2012 (see previously). There then followed further correspondence between the claimant and the respondent to arrange a meeting which was ultimately unsuccessful. The claimant, in a letter dated 2 June 2012, confirmed he would not attend any meeting unless his condition of work-related stress and hypertension improved, which he stated had not occurred, as was confirmed in further sick lines from his General Practitioner. However, he stated he did not believe that this should prevent his grievance being addressed by the respondent and again confirmed he was not an employee of the respondent, following his resignation.

3.21 The grievance which was made by the claimant was then determined by Michael Breene, Operations Manager, who in a detailed letter dated 13 June 2012 did not uphold the various grievances made by the claimant. The claimant was offered the right to appeal, which he did not exercise. In a detailed response, Mr Breene stated in his letter dated 13 June 2012, as follows, insofar as relevant and material to these proceedings:-

“You state in your letter that the operational manager and HR officer are incompetent to sit and make decisions about a disciplinary. Both members of staff have great experience in carrying out investigations into disciplinary issues and conducting disciplinary hearings. I feel this comment was unjustified. You were suspended on 2^nd of April 2012 and invited to attend a disciplinary hearing on 6^th of April 2012. You failed to attend this hearing and submitted a sick line for ‘work-related stress and hypertension’. The hearing was scheduled for 23^rd of April 2012, you handed in your resignation on 20^th of April 2012 so this hearing did not go ahead. Your hearing was organised due to gross misconduct : conduct likely to bring the company into disrepute – any activity that would or could jeopardy FirstSource client relationship.

Within the Grad bay structure there is team leader and two development coaches present. The employer is responsible for requesting passwords for the systems if they cannot log on. If you didn’t receive these passwords, it would have been likely that all of the Grad bay team wouldn’t have either; this doesn’t seem to be the case.

…

It is company policy to suspend an employee if we feel they may be at risk to the business. We felt that the incident that occurred with yourself constitute this; therefore we suspended you in order to carry out further investigation into the alleged gross misconduct.

…

Our Quality Department listened to the call in question, where you can be heard swearing at an R&R member of staff. It can be clearly heard in the call and this is the reason why the formal disciplinary process was started with you. During the investigation issues with some of your other calls also came to light (you would have received this information in your disciplinary hearing pack).

… .”

3.22 The tribunal noted the claimant, at the conclusion of his evidence, stated to the tribunal that the main reason he was bringing the proceedings was to clear his name and, in particular, what he believed to be the unfounded allegations of gross misconduct for which he contended there was no proof or evidence and which he believed to be a complete stain on his character, in circumstances where he had a good work record with other employees where he would have worked much longer than with the respondent. Significantly, in the tribunal’s judgment, when the claimant stated the above, he made no reference to any alleged racial or disability discrimination which might have been expected in the circumstances. Ultimately, by resigning, the allegation of gross misconduct made against the claimant by the respondent was not able to be determined by the respondent, as it had wished at a disciplinary hearing and he had only been able to be suspended, on full pay, pending the outcome of such a hearing. The claimant seemed unable to understand or indeed accept that, when such allegations are made, a disciplinary process takes place and until the conclusion of that process no finding is or can be made and the fact of suspension is, as stated in the respondent’s letter dated 2 April 2012, a neutral act and does not mean ultimately, at the conclusion of the process, such a finding would be made. By resigning, the claimant prevented the said disciplinary process reaching its final conclusion.

4.1 Relevant legislation

(A) The Race Relations (Northern Ireland) Order 1997

Article 3(1) –

“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

(a) On racial grounds he treats that other less favourably than he treats or would treat other persons.”

Article 4A –

“(1) A person (‘A’) subjects another person (‘B’) to harassment in any circumstances relevant for the purpose of any provisions referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, 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.”

Article 5(1) –

Subject to Paragraphs (2) and (3), in this Order –

“’Racial grounds’ means any of the following grounds, namely colour, race, nationality or ethnic or national origins;

… .”

Article 6 –

“…

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee –

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunity for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

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

2A It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to subject to harassment a person whom he employs … .”

Article 52A –

“(1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent –

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f) … or

(b) has committed an act of harassment.

(2) Where, on the hearing of the complaint, 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 such an act of discrimination or harassment against the complainant;

(b) is by virtue of Article 32 or 33 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.”

(B) Disability Discrimination Act 1995, as amended

Section 1 –

“(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-days activities.

(2) In this Act ‘disabled person’ means a person who had a disability.”

Schedule 1 –

Paragraph 2 –

“(1) The effect of an impairment is long-term if –

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected.

(2) Where an impairment ceases to have the substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

… .”

Paragraph 4 –

“(1) An impairment is taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following –

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.”

Paragraph 6 –

“(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2) In sub-paragraph (1) ‘measures’ includes, in particular, medical treatment and the use of prosthesis or other aid … .”

Section 3A – Meaning of Discrimination

“(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”

Section 4A – Employers : Duty to make adjustments

“(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature or premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In sub-section (1), ‘the disabled person concerned’ means –

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is –

(i) an applicant for the employment concerned, or

(ii) an employee of the employer concerned.

(3) Nothing in this Section imposes any duty on an employer in relation to a disabled person if the employer does not know and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case that that person has a disability and is likely to be affected in the way mentioned in sub-section (1).”

Section 18B –

“(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard should be had, in particular, to –

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) where a step would be taken in relation to a private household the extent to which taking would –

(i) disrupt the household; or

(ii) disturb any person residing there.

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –

(a) making adjustments to premises;

(b) allocating some of the disabled person’s duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) requiring of modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support.

… .”

Section 17A –

“(1) A complaint by any person that another person –

(a) has discriminated against him … in a way which is unlawful under this Part;

… may be presented to an [Industrial] Tribunal.

…

(1C) Where, on the hearing of a complaint under sub-section (1) the complainant proves facts from which the tribunal could, apart from this sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.

Article 40 –

“(1) An employee has the right to be given [tribunal’s emphasis] by his employer, at or before the time at which any payment of wages or salary is made to him, a written [tribunal’s emphasis] itemised pay statement.

(2) The statement shall contain particulars of –

(a) the gross amount of the wages or salary;

(b) the amounts of any variable, and (subject to Article (1) any fixed deductions from that gross amount and the purposes for which they are made;

(c) the net amount of wages or salary payable; and

(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.”

Article 43(1) –

“Where an employer does not give an employee a statement as required by … 40 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an industrial tribunal to determine what particulars ought to have been included or referred to in the statement so as to comply with the requirements of the Article concerned.

… .”

Article 44 –

“…

(3) Where on a reference under Article 43 an industrial tribunal finds –

(a) that an employer has failed to give an employee any pay statement in accordance with Article 40, or

(b) that a pay statement or standing statement of fixed deductions does not, in relation to a deduction, contain the particulars required to be included in that statement by that Article or Article 41,

the tribunal shall make a declaration to that effect.

(4) Where on a reference in the case of which Paragraph (3) applies the tribunal further finds that any unnotified deductions are being made from the pay of an employee during the period of 13 weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the tribunal may order the employer to pay the employee a sum not exceeding the aggregate of the unnotified deductions so made.

… .”

Article 45(1) –

“An employer shall not make a deduction from wages of a worker employed by him unless –

(a) the deduction is required or authorised to be made by virtue of a statutory provision or relevant provision of the worker’s contract,

(b) the worker has previously signified in writing its agreement or consent to the making of the deduction.

(2) In this Article ‘relevant provision’, in relation to a worker’s contract, means a provision of the contract comprised –

(a) in one or more written terms of the contract to which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied, and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the work of the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Paragraph (3) does not apply insofar as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this Article a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, where any other event occurring, before the variation took effect.

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction of account of any conduct of the worker, or any other event occurring, before the agreement or consent will signify it.

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to worker by his employer but not constituting ‘wages’ within the meaning of this Part is not to be subject to a deduction at the insistence of the employer.”

Article 55(1) –

“A worker may present a complaint to an industrial tribunal –

(a) that his employer has made a deduction from his wages in contravention of Article 45 … .”

Article 56 –

“Where a tribunal finds a complaint under Article 55 well-founded, it shall make a declaration to that effect and shall order the employer –

(a) in the case of a complaint under Article 55(1)(a) to pay to the worker the amount of any deduction made in contravention of Article 45;

… .”

Article 59(1) –

“In this part ‘wages’, in relation to a worker means any sums payable to the worker in connection with his employment including –

(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise;

… .”

Article 118(1) –

“A notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –

(a) is not less than one week’s notice if his period of continuous employment is less than two years;

(b) is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than 12 years.

… .”

(D) Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994

Article 3 –

“Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if –

…

(c) the claim arises or is outstanding on the termination of the employee’s employment.”

Article 10

“An Industrial Tribunal shall not in proceedings in respect of a contract claim, or in respect of a number of contract claims relating to the same contract, order the payment of an amount exceeding £25,000.”

5.1 Substantial disadvantage, under the Disability Discrimination Act 1995, means ‘more than minor or trivial’ (see Goodwin v Patent Office [1999] IRLR 4; and also further the Code of Practice). The correct comparator in a reasonable adjustment case was held by the Court of Appeal in the case of Smith v Churchill Stair Lifts PLc [2006] IRLR 41 to be readily identified by reference to the particular disadvantage caused by the relevant arrangements, and the comparison is not made with the entire non-disabled population. Thus, the comparison is required to be made between the disabled person concerned and persons who are not disabled. This case also made clear, as indicated above, the test of reasonableness (for the purposes of the duty to make reasonable adjustments) is objective and not subjective.

5.2 In relation to the burden of proof provisions set out in the relevant legislation, as referred to above, the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, applicable under the legislation applying in Great Britain and, approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].) It did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other.

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

“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 material 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 allegation 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 contesting the complaint. Subject 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 to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”

Mummery LJ in the course of his judgment stated at paragraph 58:-

“…. The absence of an adequate explanation for differential treatment for the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the Tribunal then moves to the second stage. The burden is on the respondent to prove he has not committed an act of unlawful discrimination. He may prove this by an adequate non discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim. ….”.

In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue”.

Lord Nicholl’s opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion). Indeed, Lord Nicholls’ opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

5.3 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’. He said “the facts must lead to the inference of discrimination”. He also stated:-

“24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used 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 probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [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 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 63 A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

5.4 Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the tribunal to look at the matter, in the light of all the facts as found:-

“3. Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts.”

Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the tribunal, to determination of claims of discrimination pursuant to the Race Relations (Northern Ireland) Order 1997 and the Disability Discrimination Act 1995, as amended and the interpretation of the relevant provisions relating to the burden of proof provisions.

5.5 In Goodwin v Patent Office [1999] IRLR 4, the Employment Appeal Tribunal held that, in assessing the issue of disability, four separate conditions/matters require to be satisfied, namely:-

“(1) The impairment condition (ie there must be a physical or mental impairment)

(2) The adverse effect condition (ie that impairment must have an adverse effect on normal day-to-day activities)

(3) The substantial condition (ie the adverse effect must be substantial)

(4) The long-term condition (ie the adverse effect upon the claimant’s ability must be long-term)”

In F v Cleveland Police Authority [2012] UKEAT/0538/11 the Employment Appeal Tribunal agreed with Note 8 to the judgment of Underhill P, as he then was, in J v DLA Piper UK LLP [2010] ICR 1052, 1082D, that the construction of ‘likely’ adopted by the House of Lords in Boyle v SCA Packaging Ltd [2009] ICR 1056 in relation to Schedule 1, Paragraph 1(6) – that is ‘could well happen’ – would apply equally to Paragraph 2(2) (the long-term condition).

In relation to consideration of a mental impairment in particular, guidance was given by the Employment Appeal Tribunal in J v DLA Piper UK LLP [2010] ICR 1052, where Underhill P held that the correct approach for a tribunal is as follows:-

“(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of the adverse effect (and, in the case of adverse effect, the question of substantiality and long-term effect arising under it) as recommended in Goodwin.

(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in Paragraph 38 above, to start by making findings about whether the claimant’s ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.

(3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the guidance or to the authorities referred to above. In particular, we do not regard the Ripon College and McNicholl cases as having been undermined by their appeal at Paragraph 1(1) of Schedule 1 and they remain authorative save insofar as they specifically refer to the appeal provisions (ie clinically well-recognised illness, which was one that was recognised by a respective body of medical opinion, now repealed).”

The Employment Appeal Tribunal in J v DLA Piper also noted that the distinction between the mental illness known as clinical depression, which would normally be found to be an impairment within the 1995 Act, and depression as a reaction to adverse circumstances such as problems at work or adverse life events. It is a distinction which is routinely made by clinicians and should in principle be recognised for the purposes of the DDA. The EAT noted that it may be a difficult distinction to apply in a particular case, and the difficulty can be exacerbated by the looseness with which some medical professionals and most lay people use terms as ‘depression’ (clinical or otherwise) ‘anxiety’ and ‘stress’. However, the Employment Appeal Tribunal considered these difficulties would not be likely to be a real problem in the context of a claim under the 1995 Act because of the long term effect and the guidance seen above. “If, as we recommend … a tribunal starts by considering the adverse effect issue and finds that the claimant’s ability to carry out normal day-to-day activities has been substantially impaired by symptoms of depression characteristic of depression for twelve months or more it would in most case be likely to conclude that he or she was indeed suffering ‘clinical depression’ rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long lived.”

In the case of Royal Bank of Scotland v Morris [2011] UKEAT/0436, Underhill P emphasised that there is no rule of law that the burden of showing that a claimant has a disability for the purposes of the 1995 Act, can only be discharged by adducing first-hand expert medical evidence. He acknowledged that, for example, contemporary medical notes may be sufficient. However, he emphasised that it may be difficult to do so, in particular, in relation to questions about whether there is a relevant mental impairment, where there is no expert medical evidence and contemporary medical notes are not sufficient for conclusions to be drawn on the essential elements and the definition of disability under the 1995 Act. He suggested that, where the disability alleged takes the form of depression or a cognate mental impairment, the issues were often to be two subtle to allow a tribunal to make proper findings, without expert assistance.

In Morgan v Staffordshire University [2002] IRLR 190, it was held that medical notes which refer to ‘anxiety’, ‘stress’ and ‘depression’ do not amount to proof of a mental impairment.

In Spence v Intype Libra Ltd [UKEAT/0617/06], Mr Justice Elias gave the judgment of the Employment Appeal Tribunal to the effect that the tribunal should assess the ‘long-term’ issue without regards to events occurring after the relevant date (ie the date of the alleged discrimination). They observed that, as a matter of logic, subsequent events could not be material, for example, if an employer dismissed someone who had a disability likely to last 12 months, the legal position could not be altered if the employee made an unexpected recovery shortly thereafter. Conversely, if an employee was not disabled when the alleged discriminatory act occurred, the claimant could not be found retrospectively to be disabled because he takes an unexpected turn for the worse. However, in a different division of the Employment Appeal Tribunal, a different approach was taken in McDougall v Richmond Adult Community College [UKEAT/0589/6], where His Honour Judge McMullan QC held that the approach in the earlier case of Greenwood v British Airways (1999) IRLR 600, which had been rejected in Spence, was to be preferred, so that when considering the period the effect in question was likely to last, the Employment Tribunal should have regard to not only the matters extant at the date of the act of discrimination but also those matters occurring between the date of the alleged discrimination and the date of the hearing. He commented that it was unattractive for the Employment Tribunal to speculate and to ignore reality. But the Court of Appeal in McDougall (2008) IRLR 227 confirmed that the assessment of the likelihood of an effect likely to last 12 months or more must be made at the date of the discriminatory act.

It has long been established the relevant time, under the DDA, at which the assessment must be made in relation to whether an individual is disabled is the day on which the alleged discriminatory act took place (see further Cruickshank v VAW Motorcast Ltd [2002] IRLR 24.

As Brian Doyle in his leading text book ‘Disability Discrimination Law and Practice’ stated at Paragraph 2.4.3:-

“Expert evidence of what the claimant can and cannot do (and the circumstances of that capacity) will be important. Often this will be in the form of a report or evidence from a medical specialist (such as a consultant or an occupational health professional). However, the tribunal must not delegate the decision as to what are normal day-to-day activities to the expert witness. That is a judicial decision, to be arrived at using basic common sense, in the light of the evidence, the statute and the revised guidance. But there is a Catch 22 for many claimants in arguing that they are sufficient disabled to be covered by the DDA 1995, but not so disabled as to be prevented from carrying out, for example, the duties of employment. Yet, as a matter of principle, evidence of the nature of the claimant’s duties of work and the way in which they are performed can be relevant to the assessment of whether the claimant is a disabled person. (Law Hospital NHS Trust v Rush [2001] IRLR 611; Cruickshank v VAW Motorcast Ltd [2002] IRLR 24 duties while at work will often encompass normal day-to-day activities. At the very least, evidence of ability or inability to carry out normal day-to-day activities while at work goes to the credibility of any evidence that those activities cannot be carried on outside work (or can only be done so with difficulty).” The Equality Commission for Northern Ireland Disability Code of Practice Employment and Occupation indicated day to day activities, which is not defined, are activities which are carried out by most people on a fairly regular and frequent basis and was not intended to include activities which are normal only for a particular person. In Patterson v Commissioner of Police of the Metropolis (2007) IRLR 763, it was held if the impairment is of the kind described in Paragraph 4 of schedule 1 that it is almost inevitable it will have an adverse effect on normal day to day activities. In the 2010 guidance, in GB, reference is made, in so far as may be of interest for these proceedings:-

“In general, day to day activities are things people do on a regular or daily basis and examples, include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities.”

Following Patterson it is apparent that evidence about what an individual could or could not do at work can be particularly relevant if some of his or her activities constitute what most would regard as ‘normal day to day activities’. In Patterson, it was held that in order to give full effect to European law the term normal day to day activities had to be read so as to encompass the activities which are relevant to participation in professional life. Generally, therefore, normal day to day activities do not include work of any particular kind because no particular form of work is ‘normal’ for most people.

This issue of disability is for the tribunal to determine on the basis of the available evidence and experts cannot usurp the tribunal’s role. The tribunal, in light of the foregoing, first requires to assess whether, as a general proposition, the activities in question are normal day to day activities and, if so, the tribunal should then assess whether, in the particular case, the claimant’s ability to undertake these activities is substantially adversely affected by the relevant impairment.

5.6 As stated previously, the duty to make reasonable adjustments set out in Section 4A(1) of the 1995 Act.

In relation to the issue of knowledge and the application of the duty, pursuant to Section 4A(3)(b) there is no doubt an employer’s duty to make as for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage. The leading authoritative decision is to be found in the case of Wilcox v Birmingham CAB Services Ltd [2011] EQLR 810, when Underhill P reviewed all the relevant authorities and said this under the heading of ‘Knowledge’ (Paragraph 37):-

“ - With all respect to Ms Andrews, that submission makes no sense. The disadvantage referred to in Section 4A(1) is, necessarily, a disadvantage arising from the employee’s disability (because that is, the ‘PCP' or physical feature in question creates a disadvantage for someone with that disability) – yet if the respondent did not know that the appellant was disabled how could it know that she was disadvantaged by the disability. The submission depends on divorcing the passage quoted from (Eastern & Coastal Kent Primary Care Trust v Grey [2009] IRLR 429) from the context of the issue in that case. The point being made there was that even if the employer knew (actually or constructively) of the disability he was still not liable unless he knew (actually or constructively) that the employee was disabled by it. This was clearly explained by Lady Smith in the more recent judgment of this tribunal in Secretary of State for Work and Pensions v Alam [2010] ICR 665; see at Paras 14 – 20 (PP. 670-2). The commentators seem to have got it into a rather a [sic] pother about these cases. Alam is described in Harvey on Industrial Relation and Employment Law as having ‘disapproved’ Grey (see Paras. L(405) and Q(953.02); and Ms Andrews in her skeleton argument invited us to ‘give guidance as to which competing EAT decision is correct. In our view there is no conflict between the two cases, properly understood. It seems to us perfectly clear, in context, what was meant in Grey, and we can see no room for any real doubt about the effect of Section 4A(3)(b). However, to spell it out, an employer is under no duty under Section 4A unless he knows (actually or constructively) both (1) that the employee is disabled and (2) that he or she is disadvantaged by the disability in the ways set out in Section 4A(1). As Lady Smith points out, Element (2) will not come into play if the employer does not know about Element (1)’.”

(See further Peregrine (Deceased) v Amazon.co.uk Ltd (2013) UKEAT/0075 – 13, Cox v Essex County Fire & Rescue Service [UKEAT/0162/13 and Gallop v Newport City Council [2013] EWCA Civ 1583.)

Although the knowledge requirement is prescribed by Section 4A(3), as seen above, it must be remembered the issue of knowledge is also relevant to a claim of direct disability discrimination, pursuant to Section 3A(5), because the alleged discrimination must be ‘on the ground’ of an employee’s disability. (See further Paragraph F4.027 in Discrimination in Employment and the judgment of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 and the opinion of Lord Bingham at Paragraph 18.)

In Royal Bank of Scotland v Ashton [2011] ICR 632, Langstaff P stated in relation to the issue of reasonable adjustments:-

“ …

12. Mr Linden QC, who appears for the employer, submits that these provisions show clearly that the steps which are required of an employer are practical steps. They are intended to help the disabled person concerned to overcome the adverse effects of the relevant disabilities, at least to the greatest extent possible, so that he or she may fulfil a useful role as an employee. We accept that, as both he and Mr Morton for the claimant submits, the focus of the provisions as to adjustment requires a tribunal to have a view of the potential effect of the adjustment contended for. The approach is an objective one.

13. It follows, says Mr Linden, and we accept, that it is irrelevant to the questions whether there has been or whether there could be a reasonable adjustment or not what an employer may or may not have thought in the process of coming to a decision as to whatever adjustment might or might not be made. It does not matter what process the employer may have adopted to reach that conclusion. What does matter is the practical effect of the measures concerned.

…

24. Thus, so far as reasonable adjustment is concerned, the focus of the Tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons.”

Further, in Environment Agency v Rogan [2008] ICR 218, it was held:-

“ … an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify:

(a) the provision, criterion or practice applied by or on behalf of the employer, or

(b) the physical features of premises occupied by the employer (that of course is not relevant to the present case),

(c) the identity of non-disabled comparators (where appropriate); and

(d) the nature and extent of the substantial disadvantage suffered by the claimant.”

5.7 In the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336, Underhill P, in a case brought under Section 3A of the Race Relations Act 1976, which is in similar terms to the 1997 Order in Northern Ireland, made observations concerning the approach to be taken by tribunals when considering claims of harassment under the 1976 Act and the equivalent provisions in the legislation relevant to other forms of discrimination:-

“10. As a matter of formal analysis, it is not difficult to breakdown the necessary elements of liability under Section 3A. They can be expressed as threefold:-

(1) The unwanted conduct

Did the respondent engage in unwanted conduct?

(2) The purpose or effect of that conduct

Did the conduct in question either:-

(a) have the purpose; or

(b) have the effect of either –

(i) violating the claimant’s dignity; or

(ii) creating an adverse environment for her?

(We were referred to (i) and (ii) as ‘the proscribed consequences’.)

(3) The grounds for the conduct.

Was that conduct on the grounds of the claimant’s race (or ethnic or national origins)?

11. But that formal breakdown conceals the fact that there are – or will at least in some cases be – substantial overlaps between the questions that arise in relation to each element. To take one obvious example, the question of whether the conduct complained of was ‘unwanted’ will overlap with the question of whether it creates an adverse environment for the claimant. There is also evidently a considerable overlap between the two defined proscribed consequences, notwithstanding that they are expressed as alternatives : many or most acts which are found to create an adverse environment for an employee will also violate her dignity (though it might be less general for the reverse to apply). The tribunal’s eventual decision may often depend on what are, in practice, undifferentiated factual issues which cover more than one element in the analysis. Nevertheless, it would be a healthy discipline for a tribunal in any case brought under this Section (or its equivalent in the other discrimination legislation) specifically to address it in its reasons each of the elements which we have identified, in order to establish whether any issue arises in relation to it and to ensure that clear factual findings are made on each element in relation to which issue arises.

12. We make four other points which we hope may be of assistance to tribunals seeking to apply Section 3A.

13. First, such case law as there was in relation to ‘harassment’ as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful. We did not say there may not be some general observations to be found in that case law which are equally applicable to claims under the new legislation. But the old law was constructed somewhat uncomfortably out of the general statutory definitions of discrimination. The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps. Still less is assistance likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated cases …

14. Secondly, it is important the formal breakdown of ‘Element (2)’ in to two alternative basis of liability – ‘purpose’ and ‘effect’. That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not to have been shown to have done so). It might be thought that successful claims of the latter kind will be rare since in a case where the respondent has intended to bring about the proscribed consequences, and his conduct had a significant impact on the claimant for her to bring proceedings, it will be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent’s purpose (though that does not necessarily exclude consideration of the respondent’s mental processes because of ‘Element (3)’, as discussed below.

15. Thirdly, although the proviso in Sub-section (2) is rather clumsily expressed, its core thrust seems to us to be clear. The respondent should not be held liable merely because his conduct has the effect of producing a proscribed consequence : it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that that being so the phrase ‘having regard to … the perception of that other person’ was liable to cause confusion and to lead tribunals to apply a ‘subjective’ test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the punitive victim : that is, the victim must have felt or perceived, her dignity was being violated or an adverse environment to have been created. That can, if you like, be described as introducing a ‘subjective’ objective; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then if she did genuinely feel her dignity to have been violated, there would have been no harassment within the meaning of the Section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially, a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or precisely to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. See also our observations at Paragraph 22 below.

16. Fourthly, ‘Element (3)’ involves an enquiry which will be very familiar to tribunals for other types of discrimination claims. There is ample case law in the nature of the enquiry required by the ‘interchangeable’ statutory phrases (‘on the grounds of’ or ‘by reason that’ – see classically the speeches of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501 at Pages 510 – 513, … and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at Paragraph 29 (Page 1072) …) … the inquiry into the perpetrators grounds for acting as he did – or to use Lord Nicholls’ phrase ‘the reason why he acted’ – is logically distinct from any issue which may arise for the purpose of ‘element (2)’ about whether he intended to produce the proscribed consequences : a perpetrator may intend to violate a claimant’s dignity for reasons other than her race (or indeed any of the other reasons proscribed by discrimination legislation).

…

In some cases the ‘ground’ of the action complained of is inherently racial. The best known example in the case law … is the decision of the House of Lords in James v Eastleigh BC [1990] 2 AC 751) … Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes.”

It is also relevant to have regard to the observations of Underhill P at Paragraph 22 of his judgment in the above Richmond Pharmacology case, when he stated:-

“Dignity is not necessary violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the Cognate Legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity where the imposition of legal liability in respect of every unfortunate phrase … .”

In this context, in particular, of racial harassment the guidance in the case of Law Society and Others v Bahl [2003] IRLR 640 is relevant when Elias J (as he then was) emphasised that unreasonable treatment is not itself a reason for drawing an inference of unlawful discrimination when he stated:-

“94. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination it is necessary to show that the particular employer’s reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.”

However at Paragraph 101 of his judgment, Elias J explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added the following words of caution:-

“ … But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provides another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nevertheless give a false reason for the behaviour. They may rightly, for example, consider that the true reason casts them in a less favourable light, perhaps because is discloses incompetence or insensitivity. If the findings of the tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself … .”

5.8 In relation to the claimant’s claim, pursuant to Article 40 of the Employment Rights (Northern Ireland) Order 1996, referred to previously, for failure to be given by the respondent written itemised pay statements, neither the claimant nor the respondent’s representative were able to point to any legal authority in relation to the interpretation of that Article, and, in particular, the proper interpretation of ‘give’. The tribunal has been unable to find any relevant authorities. However, in the case of Cambiero v Aldo Zilli & Others [1997] UKEAT/273, HH Judge Peter Clark emphasised that the relevant breach lies in not notifying [tribunal’s emphasis] the employee of the deductions when they are made. It is different from a claim for unauthorised deductions from wages which was a concept first introduced by the relevant wages legislation and is now found in Article 45 of the 1996 Order. Further, where, pursuant to Article 44(3) of the 1996 Order, an employer has failed to give an employee any itemised pay statement in accordance with Article 40, not only is the tribunal required to make a declaration to that effect, but, pursuant to Article 44(4) where there is such a failure and the tribunal finds notified deductions, then the tribunal is entitled to award certain compensation, as set out in the said Article. Thus, there is an emphasis on unnotified deductions, which has to be contrasted with unauthorised deductions from wages pursuant to Article 45 of the 1996 Order. Although the express wording of Article 40 and 43 of the 1996 Order refers to a failure by an employer to give [tribunal’s emphasis] to the employee a written itemised pay statement, the IDS brief on Wages refers to a failure to provide [tribunal’s emphasis] rather than give (see further Page 181 – 184). However, this difference seems to be of little or no difference, especially where the ordinary meaning of ‘give’, as seen in the Oxford English dictionary definition includes ‘provide’ but also ‘communicate or impart a message’ and clearly has a very wide meaning.

6.1 The tribunal reached the following conclusions, in light of the findings of fact made by it and the legislative provisions and case law referred to in the previous paragraphs of this decision.

6.2 The claimant was paid all sums due to him at the termination of his employment including, in particular, all sums due to him in respect of accrued holiday pay and/or statutory sick pay. The claimant was not entitled to notice pay, as he resigned on 20 April 2012 with immediate effect. Even if he was entitled to such notice pay, the respondent paid him until 4 May 2012, which would have covered the period of notice to which he was entitled, given his period of employment. Further, he was not entitled to any bonus from the respondent. The claimant therefore did not establish any claim for unauthorised deduction from wages and/or breach of contract.

6.3 In relation to the claimant’s claim of failure by the respondent to give to the claimant itemised pay statements, the tribunal was satisfied the pay statements were available online which set out all relevant deductions etc pursuant to the 1996 Order. For the reasons set out in Paragraph 5.8 of this decision, the tribunal is not satisfied that by allowing the claimant to access his pay statements online by use of a computer password, the respondent had failed to give the claimant an itemised pay statement, pursuant to Article 40 of the 1996 Order.

6.4 The tribunal, on the facts as found by it, concluded that there was no evidence the claimant had been discriminated on racial grounds in relation to his failure to pass his initial classroom assessments. In any event, despite his said failure he was allowed to graduate and join Ms McAteer’s team and he therefore suffered no detriment. It is correct the claimant, following his graduation, was required in a letter to attend a performance review meeting, following his failure to pass the written assessments of which he had not been previously aware. However, the meeting never took place, following the intervention of Ms McAteer, who recommended he remained working for her team with appropriate support and coaching. The tribunal was also satisfied he had been informed by Ms McAteer, in light of the foregoing, that the said meeting was not taking place.

Further, the claimant, like all other relevant employees, was required to access his itemised pay statement online by use of a computer password. He was not singled out because of his race. Indeed the reason why he failed to access his online pay statement was because of his repeated failure to follow instructions, despite training and a meeting with Mr Cairns, the payroll administrator; and, in particular, by reason of his failure to reset his password within the relevant 24 hour period, as instructed. No other employee, including other black employees employed by the respondent, had any similar difficulties. Further, the reason why the claimant was suspended and the disciplinary process was invoked against him was because of the initial complaint by ‘Mac’ the 02 employee, that the claimant had sworn at him during a call and the further complaint that he had laughed during the call with the customer. It had nothing to do with the claimant’s race and was a disciplinary process which would have been invoked against all employees in similar or same circumstances. It is correct the claimant strongly denied the allegations and indeed made counter-allegations against ‘Mac’, the 02 employee, who had made the initial complaint against him.

All these matters required to be investigated and the tribunal is satisfied they would have been ultimately determined at a disciplinary hearing, which did not take place given the claimant’s resignation. In the circumstances, given the said ‘reason why’ the tribunal could not conclude the respondent had committed an act of unlawful discrimination on racial grounds (see further Madarassy and the legal authorities referred to in Paragraph 5.2 and 5.3 of this decision).

6.5 In relation to the claimant’s claim of racial harassment, which focused on the ‘banana incident’, the claimant clearly felt it was unwanted conduct. Although the tribunal accepts Ms McAteer did not intend, by her actions, in distributing the fruit and, in particular, the banana to the claimant, to have the purpose or effect of violating his dignity or creating an adverse environment for him. However, it would appear that it had such an effect on him, given his subsequent complaint. However, the tribunal is not satisfied it was reasonable for him to do so, when one considers the context in which the distribution of fruit was made by Ms McAteer to all members of the team, as part of the Health & Well-being Week. She had gone to get the fruit herself to ensure, as a goodwill gesture, the team received some, given her experiences of previous years when it ran out. The claimant appears to have been hypersensitive, given the context, and has sought to use what happened on this one occasion for the purposes of these proceedings. It must have been clear to the claimant, Ms McAteer did not intend to violate his dignity and that the fruit had been distributed randomly to the members of the team.

Even if the tribunal is wrong, the tribunal has no doubt that what occurred was not done on the grounds of the claimant’s race. It was, as set out above, a distribution of fruit, on a random basis, as a gesture on Ms McAteer’s part to her team to ensure each member of the team got some fruit as part of the Health & Well-being Week. The tribunal accepts, for the reasons set out previously, that Ms McAteer, at the relevant time, had not realised the potential racial issues arising from her distribution of the banana to the claimant; and indeed, it was only later she realised the incident to which the claimant had been referring and that, in the circumstances, her initial denial about the incident was incorrect. This was a one-off incident and Ms McAteer, it must be noted, was the person who had supported the claimant and retained him on her team and had ensured that the performance review meeting had not proceeded, despite the claimant’s failure to pass his written assessments. The tribunal did not consider the incident involving Mr Musonza, a fellow black employee, when she swore at him, had any relevance, in the circumstances, to the tribunal’s conclusion that what occurred in relation to the ‘banana incident’ was on the grounds of the claimant’s race. There was no evidence, in the circumstances, for the tribunal to so conclude.

6.6 In relation to the claims made by the claimant, pursuant to the 1995 Act, the claimant contended, for the purposes of these proceedings, he was a disabled person, as he was suffering from depression. It was necessary for the tribunal to determine this issue at the relevant time, namely the period of the claimant’s employment, and not at some later date and, in particular, the date of the hearing of this matter (see McDougall v Richmond Adult Community College [2008] IRLR 227).

In considering this issue, it must be noted that, prior to his suspension, the claimant at no time had any sick absence and there was no relevant or any evidence that the claimant, during his said employment, was unable to carry out day-to-day activities. Indeed, in the pre-employment questionnaire the claimant expressly denied he had any disability. In his response to the questionnaire, the only reference was to high blood pressure, which as the claimant accepted is not the same as depression. He specifically denied he had any disabilities, in relation to mental health, including stress and anxiety. Indeed, it became apparent from medical records relied upon by the claimant for the purposes of these proceedings, but not at the time of his employment, the claimant had a history of a number of other health issues, including hypertension, gout, chronic kidney disease, none of which he had revealed to the respondent at the relevant time and, in particular, in response to the medical questionnaire. He also had been attending his General Practitioner, receiving medication in relation to these other health issues; but again failed to reveal same in his response to the said questionnaire.

Significantly, for the purposes of these proceedings, the claimant never revealed to the respondent, until the report dated 16 January 2013 from his General Practitioner, and it would seem prepared for the purposes of these proceedings, that the claimant “had a history of depression which dates back over several years”. This was based on the findings of the Community Psychiatric Nurse, Ms Mary Daly. It was not clear, as neither she or the claimant’s General Practitioner gave evidence to the tribunal, whether this was based on a history given by the claimant or other relevant records, which were at no time produced in evidence. In the General Practitioner’s part of the report he suggests the claimant had been seeing his colleague sine October 2012 (ie long after his resignation) “with low mood, sense of hopelessness and sleep disturbance”. Curiously despite the history set out in Ms Daly’s findings on 8 January 2013, which appears to have been her first examination of the claimant, it was only on 16 January 2013 that the General Practitioner had started the claimant on antidepressants and not at any time previously and, in particular, when he was issuing sick lines to the claimant at the time of his resignation for hypertension and work-related stress. It was also not clear, in the absence of evidence from Ms Daly, whether any of the symptoms referred to by her related to the time of her examination in January 2013 or earlier . The respondent did not call any medical evidence and did not have him examined, for the purposes of these proceedings, following receipt of the said report dated 16 January 2013.

As set out previously, see Paragraph 5.5 of this decision and the authorities referred to therein, including J v DLA Piper UK LLP [2010] UKEAT/0436; it can be difficult for a tribunal to determine whether a person is disabled and, in particular, has a mental impairment, such as depression. Much can depend on the medical evidence before the tribunal. In this case, the tribunal had little medical evidence, other than the medical report dated 16 January 2013; and, in particular, Ms Daly’s findings, which, as seen above, were uncertain and did not appear to be based on any earlier medical records but rather a history given by the claimant, which had not been recorded by his General Practitioner or any of the referral records. Indeed, his General Practitioner only referred to a history of low mood etc from October 2012 which was long after the termination of the claimant’s employment. The tribunal, in light of the foregoing, was not able to conclude that, at the relevant time, the claimant had a mental impairment, namely depression and this impairment satisfied the substantial condition and the long-term condition (see further Goodwin). Further, the tribunal had, in the absence of other detailed evidence, considerable doubts whether the adverse effect condition had been satisfied given the claimant’s lack of sick absence, any evidence of any adverse effect on normal day-to-day activities prior to his suspension and whether any of the symptoms, set out by Ms Daly in her findings, related to the relevant period of his employment or were a list of symptoms relevant to the date of the examination. Most, if not all, appeared to relate to the date of her assessment in January 2013, in the judgment of the tribunal. Her finding relating to symptoms of deterioration in his memory and concentration (which would be of particular relevance to normal day-to-day activities – Paragraph 4 of Schedule 1 of the 1995 Act) is based on what he told her at the date of her said assessment. In the circumstances, the tribunal, in the absence of other relevant evidence, in particular from Ms Daly or the General Practitioner, was not satisfied the necessary condition had been satisfied. As was made clear in Ross v Precision Industrial Services [2005] NICA 25 the onus to establish the claimant is disabled remains with the claimant. In the circumstances, the tribunal was not satisfied the claimant had established he was a disabled person for the purposes of the 1995 Act.

6.7 Even if the tribunal is wrong and the claimant was a disabled person, this tribunal is not satisfied the respondent knew (either actually or constructively) at the relevant time the claimant was a disabled person by reason of his failure to produce, prior to the report of 16 January 2013, the relevant details of same. Indeed, as set out previously, his failure to disclose any relevant medical details in the medical questionnaire was a deliberate act by the claimant. As seen above, it was not only the depression the claimant failed to refer to but also numerous other medical issues affecting the claimant at the relevant time. In these circumstances, at the relevant time, the respondent, in the judgment of the tribunal, did not know the claimant was disabled and that his disability was likely to affect him in the relevant manner. For similar reasons, the tribunal is satisfied the claimant has not established the respondent ought to have known (see Wilcox v Birmingham CAB). In the absence of such knowledge, the claimant’s claim for direct discrimination on the grounds of disability and/or his claim relating to the failure of the duty to make reasonable adjustments must fail. As stated previously, both claims require the respondent to have such knowledge in order for the claimant to be able to establish each said claim.

7.1 The claimant’s claims are therefore dismissed.

Chairman:

Date and place of hearing: 18 – 21 June 2013; and

28 June 2013, 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 >> Anakaa v FirstSource Solutions Ltd [2013] NIIT 1152_12IT (31 December 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1152_12IT.html Cite as: [2013] NIIT 1152_12IT

Industrial Tribunals Northern Ireland Decisions