Boomer vs Northern Ireland Public,Brian Campfield,Alison Millar,Kevin McCabe
| Jurisdiction | Northern Ireland |
| Judgment Date | 28 February 2013 |
| Respondent | Brian Campfield,Alison Millar,Kevin McCabe,Northern Ireland Public |
| Docket Number | 00057/11FET |
| Court | Fair Employment Tribunal (NI) |
FAIR EMPLOYMENT TRIBUNAL
CASE REF: 57/11 FET
CLAIMANT: Philip Boomer
RESPONDENTS: 1. Northern Ireland Public Service Alliance
2. Brian Campfield
3. Alison Millar
4. Kevin McCabe
DECISION
The unanimous decision of the Tribunal is that:-
(i) The Tribunal does not have jurisdiction to determine the claims of the claimant against the first respondent as the claimant failed to set out his grievance in respect of his claims against the first respondent, pursuant to Article 20 of the Employment (Northern Ireland) Order 2003. The claims of the claimant against the first respondent are therefore dismissed.
(ii) The claimant was not discriminated against and/or harassed on the grounds of his political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 and/or was not discriminated against by way of victimisation, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and/or pursuant to the Employment Equality (Age) Regulations (Northern Ireland) 2006 by the second, third and fourth respondents. The claimant’s claims against the second, third and fourth respondents are therefore dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr R Hanna
Mr H Stevenson
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The respondents were represented by Mr B Mulqueen, Barrister-at-Law, instructed by McCartan Turkington Breen, Solicitors.
Reasons
1.1 Insofar as relevant for the determination by the Tribunal of these proceedings, the claimant presented a claim to the Tribunal on 6 May 2011 in which he made a claim against the first, second, third and fourth respondents of unlawful discrimination and/or unlawful harassment on the ground of his political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘FETO’); and/or a claim of discrimination by way of victimisation, contrary to the Sex Discrimination (Northern Ireland) Order 1976 (‘1976 Order’) and/or the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘Age Regulations’). The respondents presented a response to the Tribunal on 21 June 2011, in which they denied liability for the claimant’s claims.
1.2 It was agreed, at the commencement of the hearing, that the claimant was only seeking, by way of remedy, in relation to his said claims, compensation for injury to his feelings.
1.3 It was not disputed by the representatives of the respondents, that the claimant was employed by the first respondent as a Negotiating Official (Higher Executive Officer) from on or about 27 June 2002 and that, if the Tribunal found that the second, third and fourth respondents, or either of them, had unlawfully discriminated against and/or harassed and/or victimised the claimant, in the course of their employment, the first respondent was vicariously liable for any such actions by them or either of them.
1.4 At a Case Management Discussion on 26 January 2012, as set out in the Record of Proceedings dated 26 January 2012, the parties agreed the list of issues attached to the letter of 12 January 2012 from the claimant’s representative, subject to the addition of the words ‘the respondent does not accept this is a relevant factual issue’ at the end of Paragraphs (xvii), (xx) and (xxi).
The issues attached to the said letter were as follows:-
“Legal
(i) Whether on grounds of political opinion the respondents treated the claimant less favourably than a hypothetical comparator contrary to Article 3(2)(a) and 19(1)(b) of FETO 1998 as amended?
(ii) Whether on grounds of political opinion the respondents harassed the claimant contrary to Article 3A of the FETO 1998?
(iii) Whether the claimant was victimised contrary to Article 8(2) as defined by Article 6 of the Sex Discrimination (Northern Ireland) Order 1976, as amended or Article 7(2) as defined by Article 4 of the Employment Equality (Age) Regulations (Northern Ireland) 2006 for having represented colleagues Sinead Gorman and Sally Greene in their respective complaints?
(iv) Whether on the grounds of political opinion or by virtue of the protected acts narrated in (iii) above the respondents have discriminated against the claimant contrary to Article 23 of FETO, Article 15 of the SDO and Article 19 of the ‘Age’ Regulations?
(v) Whether the respondent has complied with their obligations under the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 by failing to deal with the claimant’s grievances of 7 February and 11 February 2011?
(vi) Has the claimant raised a grievance regarding his claim as per the statutory requirements?
Factual
The claimant’s political opinion is that espoused by NIPSA Broad Left.
The claimant’s complaint relates to the decision to suspend, the handling of the suspension and suspension meeting in particular and the continuance of the suspension. Further that the fact that the suspension was allegedly made known to outside parties prior to any complaint having been received by NIPSA or the claimant having been suspended. The claimant contends all of the same are relevant to legal issues (i) – (iii) above and amount to acts of discrimination. Finally, the claimant lodged grievances during the process which remain at this time unanswered.
(i) Did Brian Campfield threaten the claimant with dismissal on 20 September 2010 and if so why?
(ii) What was Brian Campfield’s input to the decision to suspend the claimant?
(iii) Did Alison Millar’s actions in suspending the claimant and instigating disciplinary proceedings against the claimant on foot of the Extern complaint accord with the respondent’s normal and accepted practice for dealing with complaints from employers and if not why not?
(iv) Did Alison Millar personally attack the claimant at the investigation hearing on 7 February 2011 by criticising the quality of representation he provided Kim Kerr during her disciplinary investigation hearings?
(v) Was the imposition of a precautionary suspension on the claimant a neutral act?
(vi) Why was it necessary for the claimant to return all property and be escorted from the building immediately?
(vii) Did Alison Millar and Gerry McCabe conduct the suspension hearing on 7 February 2011 in a humiliating and degrading manner?
(viii) Has NIPSA suspended and subjected any other NIPSA official to disciplinary proceedings on foot of a complaint from an employer and if so who?
(ix) Did Alison Millar review the claimant’s suspension at any time after 7 February 2011?
(x) Did Alison Millar review the claimant’s suspension after his trade union representative provided her with a copy of Kim Kerr’s amended minutes of her disciplinary investigation hearings on 13 September and 21 October 2010?
(xi) Did Alison Millar review and re-consider the claimant’s suspension after Trevor Wright had been interviewed?
(xii) What was the reason for the delay in completing the investigation of Extern’s complaint?
(xiii) Why did Alison Millar not make arrangements to interview Kim Kerr on any of the four occasions she met her in NIPSA Headquarters after the claimant was suspended?
(xiv) Why did Alison Millar not believe and investigate all the allegations made by Lisa Doherty, Trevor Wright and Gerry Crossan?
(xv) Did Alison Millar keep the claimant and his representative fully informed about progress with her investigation and did she seek his agreement to the delay in completing the investigation as required by NIPSA’s disciplinary procedure?
(xvi) Did the respondents afford the claimant a fair and impartial process?
(xvii) What action was taken to investigate and address the claimant’s concern about Alison Millar’s impartiality?
(xviii) What action did Alison Millar take in relation to Extern’s complaint after the claimant’s investigation hearing on 16 March 2011?
(xix) Did the General Secretary act in accordance with NIPSA’s Rule Book...
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