McCann vs Extern Organisation Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 10 December 2015 |
| Docket Number | 00097/11FET |
| Court | Fair Employment Tribunal (NI) |
| Respondent | Extern Organisation Limited |
FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 97/11FET
1827/11
CLAIMANT: Thomas McCann
RESPONDENT: Extern Organisation Limited
DECISION
The decision of the Tribunal is that the claimant's claim is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Murray
Members: Mr J McKeown
Mr R McKnight
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by O’Reilly Stewart Solicitors.
The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.
THE CLAIM
- The claimant’s claim was for discrimination on grounds of political opinion under the Fair Employment and Treatment (NI) Order (referred to below as FETO)
THE ISSUES
2. The claimant’s claims were heard and determined by a tribunal (hereinafter referred to below as the first tribunal). In those proceedings the claimant was successful in his unfair dismissal claim. The claims for detriment on grounds of trade union activities failed, the claim for discrimination under FETO failed and the claim for sex discrimination victimisation also failed.
3. The claimant appealed the dismissal of the FETO claim to the Court of Appeal and was successful in that appeal. The FETO case was therefore referred back to a different Tribunal for determination.
4. The Court of Appeal outlines the claim at paragraph 20 of its decision as follows:
“It is alleged that the appellant was treated less favourably because of his perceived involvement in the trade union lunchtime protest. In essence it is claimed that his perceived involvement caused or contributed to his unfair dismissal”.
- The Court of Appeal at paragraph 28 of the decision outlined the task for the Tribunal
“In all the circumstances we consider that the proper course is to send this issue back to a differently constituted Tribunal for determination. We offer, and of this there should be no doubt, no view whatsoever as to whether the claim of discrimination should or will succeed. It will only be possible to reach a conclusion after the Tribunal has made findings in respect of those matters that are alleged to constitute discrimination and secondly, if the burden does shift, whether the respondent can provide a satisfactory explanation for its actions.”
- The Court stated at paragraph 26 as follows:
“This court, despite the further response from the Tribunal, can still not be sure of the basis upon which the Tribunal concluded that there was no credible evidence that the appellant was discriminated against because of his political opinion. The following facts relied upon by the appellant do not appear to be contested:-
(i) Mr Keenan, who took part in the lunchtime protest and was the Project Manager for the Ormeau Centre was found by another Tribunal to have suffered “detriment” for taking part in the lunchtime protest by the respondent bringing forward the date of his departure from the original agreed date of 14 October 2010 to 13 August 2010. The Tribunal’s explanation for ignoring this decision is not entirely satisfactory although blame appears to rest to some extent with the appellant and his advisors for not specifically drawing it to the Tribunal’s attention.
(ii) Mr Crossan had found the appellant was involved in contributing to the lunchtime protest leaflet (as did Ms Brown) despite the absence of any evidence.
(iii) The advice of Ms Stevenson was not to speak to Ms Kerr, the trade union representative, because her input was “not likely to be objective”, when investigating the appellant. Ms Kerr was particularly well placed to advise whether or not the appellant did contribute to the leaflet as was alleged by the respondent.”
- The parties identified in the first tribunal’s decision the findings of facts which were agreed by them to be relevant to the case before us. Using the numbering of the first tribunal’s decision those findings of fact are found in paragraphs 2-21 (apart from paragraph 7); and paragraphs 36-46. Both sides agreed that paragraph 34 was a finding of fact but only the respondent submitted that it was relevant to the case before us.
8. The Tribunal’s task in essence therefore was to deal with the task set by the Court of Appeal in light of the agreed facts and in light of the oral and documentary evidence adduced by the parties during our hearing. As the claimant has already succeeded in his unfair dismissal claim the issue for the Tribunal was whether that dismissal and the other alleged detrimental act involving Ms Stevenson’s comment to Ms Brown were tainted by political discrimination thus constituting discrimination on grounds of political opinion.
- The parties produced a list of issues to which findings of fact were required to be made by the new Tribunal. An agreed document was presented to the Tribunal which narrowed further at a CMD on the first morning. Under the heading “Legal Issues” the parties agreed that issue 2 was no longer for the Tribunal and parties agreed that the following factual issues were no longer before the Tribunal: 2, 3, 4, 18 and 20.
10. The claimant alleges that the discrimination was because of the perception that he was involved in perceived trade union activities namely the lunchtime protest, the leaflet and the Facebook campaign related to the protest. On behalf of the claimant Mr Potter accepted that adverse treatment was suffered by the claimant before 22 July 2011 and the claimant therefore accepts that trade union activities could not be the only factor in the adverse treatment.
- If the claimant succeeds in his claim for discrimination issues on quantum relate to future loss, injury to feelings and the valuation of a personal injury claim.
- Mr Potter submitted that we do not have to have recourse to the burden of proof given the findings of the previous tribunal. We reject that contention, firstly, due to the comments of the Court of Appeal set out at para 5 above and, secondly, we agree with Mr Phillips’ contention that it is for the claimant to prove facts from which we could conclude that an act of discrimination occurred. It is therefore for the claimant to prove less favourable treatment meaning a difference in status and a difference in treatment as compared with the hypothetical comparator. The claimant must also prove “something more”, ie facts from which we could conclude that discrimination occurred on grounds of his political opinion.
SOURCES OF EVIDENCE
- The Tribunal heard evidence from the claimant on his own behalf together with evidence from Mrs Millar of NIPSA.
- For the respondent the Tribunal heard evidence from Ms Stevenson of HR, Ms Brown the independent investigator and Mr Crossan who dealt with the disciplinary hearing and took the decision to dismiss.
- The Tribunal also heard evidence from the claimant’s Psychiatrist Doctor Mangan together with evidence from Dr Bell, a Consultant Psychiatrist retained by the respondent.
THE LAW
- The parties presented us with numerous authorities but in the event the following authorities were the only ones relied upon by both sides:
(1) McConkey & Others v The Simon Community [2009] UKHL 24
(2) John William Emerson v Northern Ireland Ambulance Service - Fair Employment Tribunal (184/03FET 1168/03)
(3) Shane O’Hare v South Eastern Health & Social Care Trust (113/13FET 2097/13)
(4) Extract from Harvey – Burden of Proof and Drawing of Inferences
(5) Yvonne McEvoy v Joseph Rice (6564/09IT)
(6) O’Neill v Governors of St Thomas More Roman Catholic School & Another [1996] IRLR 372 EAT
(7) Nagarajan v London Regional Transport – House of Lords [1999] IRLR 572
(8) English v Thomas Sanderson Blinds Ltd (2008) EWCA Civ 1421
(9) Anya (Appellant) v University of Oxford and Another (Respondent) [2001] EWCA Civ 405
(10) Derbyshire and Others v St Helens Metropolitan Borough Council...
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