McKinstry vs Moy Park Limited,Gary Maxwell,Brian Johnstone

JurisdictionNorthern Ireland
Judgment Date08 June 2016
Docket Number01725/13IT
CourtIndustrial Tribunal (NI)
RespondentMoy Park Limited,Gary Maxwell,Brian Johnstone
FAIR EMPLOYMENT TRIBUNAL

THE INDUSTRIAL TRIBUNALS

CASE REF: 1725/13

CLAIMANT: Philip McKinstry

RESPONDENTS: 1. Moy Park Limited

2. Gary Maxwell

3. Brian Johnstone

DECISION

The unanimous decision of the tribunal is that:-

(i) The claimant’s claims of disability discrimination (direct discrimination, harassment and disability-related discrimination) and a claim that he suffered a detriment for asserting a statutory right under the Working Time Regulations (Northern Ireland) 1998 are dismissed.

(ii) Claims in respect of a breach of the Working Time Regulations (Northern Ireland) 1998 and a claim in respect of an alleged failure to provide him with a written statement of particulars of employment are also dismissed, having been withdrawn by his counsel in open tribunal, without objection from the respondents.

Constitution of Tribunal:

Employment Judge: D Buchanan

Members: Mr R McKnight

Mr I Atcheson

Appearances:

The claimant was represented by Ms M-C Campbell, Barrister-at-Law, instructed by Patrick Park, Solicitors.

The respondents were represented by Ms R Best, Barrister-at-Law, instructed by the respondent company’s in-house solicitor.

1(i) The claimant, Mr McKinstry, who at the time of the hearing was still employed by the respondent company, had worked for them for over 27 years. He started working as a shop floor production operative and had gradually worked his way up to the position of production planner in the Production Planning Team at the time of the events giving rise to this litigation occurred.

By a claim form presented to the tribunal on 24 September 2013, he alleged that his employers had discriminated against him on the ground of disability – he made allegations of direct discrimination, disability-related discrimination and harassment; that there had been a failure to provide him with a written statement of particulars of his employment; and that the hours that he had been required to work breached the provisions of the Working Time Regulations (Northern Ireland) 1998.

(ii) At the commencement of the hearing of the case the claimant withdrew his claims in relation to the alleged failure to provide him with a written statement of particulars of his employment and breach of the Working Time Regulations.

(iii) The claimant also, in cross-examination by the respondents’ counsel, confined his case to events from 25 June 2013 onwards. Although his counsel, in re-examination, attempted to re-open events occurring before that date, we are satisfied, having seen and heard the claimant give his evidence, that he was someone who knew exactly the claims that he was making, and that he did not, in effect, withdraw any claim under any mistake or misapprehension, or that it was a case of him merely focussing on what he saw as the main grounds of his complaint.

(iv) Specifically, in relation to a meeting with management on 25 June 2013, the claimant alleges that the actions taken were because of his disability and no other reason.

2(i) In order to determine this matter, we heard evidence from the claimant, Mr McKinstry, and from his wife, Mrs Fiona McKinstry, Mr Raymond Gribben, a former employee of the respondent company, and Dr Stephen Best, a consultant psychiatrist, on his behalf. For the respondent company we heard evidence from Mr Gary Maxwell, the managing director at its Moy site, Mr John Cromie, its Head of Engagement and Resourcing, Mr Raymond McCrory, Site Supply Chain Manager, and Mr Alan Magowan, a private investigator. We also viewed a DVD compiled by Mr Magowan based on surveillance and observations of the claimant by him and his employees, and we had regard to documentary evidence to which we were referred by the parties.

(ii) While we were not overly impressed by some of the evidence from the respondent company’s witnesses and how they dealt with some of the issues and matters which confronted them, we nonetheless have no hesitation in preferring their evidence to that of the claimant where there was any conflict.

(iii) We found the claimant to be evasive and disingenuous in his own evidence and in his replies during cross-examination when questions touching his honesty and credibility were put to him. It has to be said that there was extensive documentary evidence relating to his interaction with, and notes of, his contact with his own medical professionals which seriously undermined his credibility as a witness. In brief, although his claim is based on disability discrimination he did not mention discrimination on that ground to any of the doctors and other health professionals whom he saw, while he did state at various times to them that he loved his job and that his work had been very supportive of him. Generally, he did not raise work-related issues with his own GP and where he did, he did not account for any of management’s actions by reference to his disability. He has also made inaccurate statements on his private health insurance claim form.

(iv) His credibility was further seriously undermined by DVD footage taken by the private investigator, which we were shown. This was taken after the events which gave rise to the claim, but before the hearing. We do not intend to rehearse this evidence, but suffice to say it showed that the claimant had given blatantly untrue accounts of his level of mobility and the degree of interaction which he had with others. Again, when challenged about those discrepancies he either stonewalled or gave completely unconvincing explanations for them.

3(i) At the outset we feel we also must say something about the history of these proceedings, which has made this case something of a blot on the industrial tribunal landscape.

From the time the claimant presented his claim on 25 September 2013 until we commenced hearing it on 2 November 2015, it had generated 11 Case Management Discussions (including a pre-hearing review listing which converted into a Case Management Discussion), a pre-hearing review which went to the Court of Appeal, which remitted the matter to a different tribunal, and substantial post-Court of Appeal expenditure by the respondent company on the services of a private investigator (to whose work we have referred above).

(ii) The irony, or possibly absurdity, is that after all of this and two years after the claimant last set foot in his place of employment, he still remains employed by the respondent company albeit with the status of someone on long-term sickness absence. The relations between the protagonists are clearly so bad – in some respects this case now resembles a grudge match rather than genuine litigation – that we see no prospect of the claimant actually returning to work.

(iii) Faced with this thoroughly depressing state of affairs in a case where the expenditure on costs must greatly exceed any monetary value the claim may have, we enjoined the parties to attempt to settle this matter, but to no avail. This should perhaps, not have surprised us in view of everything that has gone before. However, having made these remarks, it is only right that we should record that we are making no criticisms of Ms Best BL and Ms Campbell BL and their respective instructing solicitors, and are grateful to them for their admirable efforts on their clients’ behalf and their helpful and able submissions to the tribunal.

4(i) The pre-hearing review, the decision in which was appealed to the Court of Appeal, was held on 9 June 2014. The decision issued on 30 June 2014.

(ii) The issue for determination at that hearing was:-

“Whether details of the discussions which took place at the meeting between the parties on 25 June 2013 should be admitted in evidence as part of his claim, as contended by the claimant, or whether that evidence should be excluded on the basis that these discussions were ‘without prejudice’, as contended by the respondent company.”

(iii) The hearing before the tribunal at the pre-hearing review proceeded on the basis of an agreed statement of facts, though unfortunately issues appear to have subsequently arisen as to whether the facts had actually been agreed. The tribunal held that the discussion of 25 June 2013 had been conducted on a ‘without prejudice’ basis, and excluded the details of those discussions from evidence.

(iv) This decision was appealed to HM Court of Appeal which by an Order made on 5 March 2015 decided that...

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