McClean vs Simon Community,Jim Dennison

CourtIndustrial Tribunal (NI)
Judgment Date17 June 2020
Docket Number07350/17it
RespondentSimon Community,Jim Dennison

THE INDUSTRIAL TRIBUNALS

CASE REF: 7350/17

CLAIMANT: Gary McClean

RESPONDENTS: 1. Simon Community NI

2. Jim Dennison

JUDGMENT

  1. The tribunal finds that the claimant was a disabled person for the purposes of the 1995 Act and that the respondents had or ought to have had knowledge of that fact, but that he was not directly discriminated against on grounds of his disability or harassed. The claimant did not prove that the respondents were under a duty to make reasonable adjustments for him. The tribunal dismisses the claimant’s claims of disability discrimination for the reasons set out at paragraphs 10 to 13 of this judgment

  1. The tribunal finds that the claimant was subjected to unlawful detriment on grounds of his trade union activities and on health and safety grounds. However, the tribunal dismisses the claimant’s complaints of having been subjected to unlawful detriment because the claimant’s claims were presented outside the statutory time limit and the tribunal is not satisfied that it was not reasonably practicable for the claimant to have presented his claims of having been subjected to unlawful detriment within the requisite time limit. The tribunal dismisses the claimant’s claims of unlawful detriment for the reasons set out at paragraphs 21 to 26 of this judgment

  1. The tribunal finds that the claimant was unfairly dismissed. However, the tribunal finds that the claimant was not automatically unfairly dismissed for the sole or main purposes of his trade union activities. The reasons are set out at paragraphs 28 to 30 of this judgment

  1. The tribunal dismisses the claimant’s claims of breach of contract/unauthorised deduction of wages for the reasons set out at paragraph 32 of this judgment.

  1. The tribunal dismisses the claimant’s claims in relation to having been unable to take scheduled rest breaks, whether considered under the Working Time Regulations (Northern Ireland) 2016 or as an alleged unauthorised deduction from wages contrary to the Employment Rights (Northern Ireland) Order 1996, because the claimant’s claims were presented outside the statutory time limit and the tribunal is not satisfied that it was not reasonably practicable for the claimant to have presented his claims within the requisite time limit. The tribunal’s reasons for this finding are set out at paragraph 34 of this judgment.

  1. In the absence of a resolution between the parties a separate hearing will be convened to consider the question of remedies in relation to the question of unfair dismissal.


Constitution of Tribunal:

Employment Judge: Employment Judge Gamble

Members: Mrs G Clarke

Mr I Foster

Appearances:

The claimant represented himself.

The respondents were represented by Mr S Doherty, Barrister-at-Law instructed by Worthingtons Solicitors.

THE CLAIMANT’S CLAIMS

  1. The claimant presented a claim to the industrial tribunal on 24 October 2017 claiming detriment for trade union activities and for raising concerns which he had identified in his role as a Shop Steward, compensation/wages for failure to provide rest breaks, unfair dismissal, automatic unfair dismissal and breach of contract. The claimant also claimed that he had been subjected to unlawful disability discrimination by both Simon Community NI and Mr Dennison.

THE RESPONDENTS’ RESPONSE

  1. In a response dated 5 January 2018, which stated that it was presented on behalf of Simon Community NI only, Simon Community NI denied that the claimant’s claims in their entirety. Simon Community NI asserted that the claimant’s dismissal was for a fair reason, namely the claimant’s conduct. By consent, the response was amended to state “This ET3 response is submitted on behalf of both respondents” and was accepted on behalf of Mr Dennison, as well as Simon Community NI, at the Case Management Discussion on 1 July 2019. The claimant’s claims were resisted at the hearings by both respondents.

  1. RELEVANT BACKGROUND FACTS

3.1 The following background is not disputed between the parties and is relied upon by the claimant in support of his claims. The tribunal has, where necessary, set out in full the content of the relevant correspondence which passed between the parties.

3.2 The tribunal has referred to the first respondent as Simon Community NI and the second respondent as Mr Dennison in this judgment, for ease of reference.

3.3 Simon Community, NI is a charity which works to support the homeless, and those who are at risk of becoming homeless, in Northern Ireland. Mr Dennison, is the Chief Executive of Simon Community NI.

3.4 The claimant was employed as an Accommodation and Community Support Worker with Simon Community NI with effect from 17 August 2015, until his dismissal on 27 July 2017. The claimant worked within Mount Street Mews, Coleraine, which is a residential facility operated by Simon Community NI for homeless young people aged between 16 and 21 years old, some of whom have complex needs.

3.5 On 9 December 2015, the claimant emailed his acting Line Manager, Hazel Deeney formalising his account of an incident regarding an alleged assault on a user of the service by PSNI. Ms Deeney confirmed in an email dated 10 December 2015 that CCTV had been checked and it did not support the claimant’s account.

3.6 The claimant joined UNISON in March 2016 and was elected as a trade union shop steward in or around June 2016. UNISON is a recognised trade union for the purposes of collective bargaining with Simon Community NI. The relationship between Simon Community NI and UNISON is governed by a Recognition and Procedural Agreement between Simon Community NI and UNISON, which was not produced to the tribunal until the reconvened hearing. The fact of the...

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