Rice vs Texthelp Limited,Ryan Trainor,Joanne Kee
| Jurisdiction | Northern Ireland |
| Judgment Date | 24 July 2020 |
| Docket Number | 09243/17IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Texthelp Limited,Ryan Trainor,Joanne Kee |
THE INDUSTRIAL TRIBUNALS
CASE REF: 9243/17
CLAIMANT: Robert Rice
RESPONDENTS: 1. Texthelp Limited
2. Ryan Trainor
3. Joanne Kee
JUDGMENT
The Tribunal unanimously concludes that:
- The claimant was not unfairly constructively dismissed;
- The claimant was not less favourably treated on the grounds of sex;
- The claimant was not less favourably treated on the grounds of sexual orientation;
- The claimant was not harassed on the grounds of sexual orientation;
- The claimant was not subjected to victimization;
- The claimant was not subjected to a detriment on the grounds of health and safety;
- The claimant was not subjected to a detriment on the grounds of making a protected disclosure;
- The claimant’s claims of discrimination were not presented in time, but it is just and equitable to extend time in all the circumstances of the case;
- The claimant’s claims are dismissed in their entirety against each respondent.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Browne
Members: W McCreight
E Gilmartin
APPEARANCES:
The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Peter Bowles and Co Ltd, Solicitors.
The respondents were represented by Mr M Potter, Barrister-at-Law, instructed by Kennedys Law, Solicitors.
ISSUES
The agreed legal issues in this case were the claimant’s complaints of:
- Ordinary constructive unfair dismissal;
- Direct sexual orientation discrimination;
- Harassment on grounds of sexual orientation;
- Direct sex discrimination;
- Victimisation;
- Detriment on grounds of having made a protected disclosure.
EVIDENCE
- The claimant was employed by the respondent from October 2002 until 24 November 2017, on which date he resigned. His complaints include a claim of unfair constructive unfair dismissal, in that he claims the conduct of the respondents towards him was such that he had no option but to resign.
- The claimant was employed from the outset as a quality assurance tester in the first respondent’s business, producing computer packages to assist people with literacy difficulties to operate existing computerised document and word processing programmes.
- The claimant’s job was in a team, to test the first respondent’s proposed new products, to identify and address any defects, before they were released on to the commercial market. The claimant’s university degree was in computing, and there was a sustained high level of satisfaction expressed by the first respondent in his annual reviews as to his ability and his thoroughness.
- The first respondent in around 2014 decided to update from the more traditional manual testing, in which the claimant had a solid track record, to automated testing. Such automated testing was to become required in most of the first respondent’s products.
- To enable its staff to become proficient and achieve that aim, the first respondent provided training in April 2015 to the claimant and the other staff on his team, in preparation for the introduction of automated testing in October 2015.
- A recurring issue thereafter was the claimant’s repeated failure to become proficient in the new form of testing; it was not in dispute that all of the other staff had become proficient, requiring only one set of training to do so. The claimant repeatedly made the case that the Read and Write programme on which he then was working, was a manual programme, and he, as the sole tester for the majority of certain additional key tests, was so heavily preoccupied with them, and with ancillary responsibilities, that he did not have time to focus on his automation proficiency.
- The first respondent’s case was that it was concerned that the claimant’s position might be in difficulties if he did not acquire the appropriate skills, because all of its products would be automated in future. There was never a question mark from the first respondent over the claimant’s capacity to adapt to automation after the training already provided, it being its view that the automation work was well within his abilities.
- Whilst the claimant’s initial work appraisal after the automation training and its adoption as a work practice mentioned the ongoing delay in the claimant achieving proficiency, without criticism of his quality of work, there was in late 2016 a change of tone in the recorded comments.
- There demonstrably was a move to greater emphasis being placed upon mutually agreed future objectives for the claimant, with a clear expectation of him ensuring that he became proficient.
- It was the claimant’s repeated assertion when the lack of progress was discussed at his annual review in November 2016, that he wanted to become proficient in automation; and he perceived that to do so, he required (further) automation training.
- It was recorded in his line manager Mark Wheeler’s comments section however that he considered that the claimant had “not shown any interest in the department’s move towards test automation, he appears to want to remain as a 100% manual tester, unfortunately this is not a sustainable approach…this has been pointed out to [the claimant] on several occasions but he still seems unwilling to embrace test automation principles.”
- It was noted in Mr Wheeler’s comments that the claimant had failed to meet the objective set at the previous annual review, despite then having been asked to set aside time on Friday afternoons; in the manager’s words “he decided not to do it”. Mr Wheeler also commented that the claimant was “now well behind the rest of the team in terms of test automation knowledge. I would find it difficult to have Robert on any other project other than Read and Write as nearly all other products have an element of test automation that he would find difficult to undertake.”
- It was notable from the marks awarded by Mr Wheeler in his November 2016 appraisal that, whilst the standard of the work actually undertaken by the claimant was of a very high standard, there was a considerable gulf between that and his attitude to innovation introduced by the first respondent.
- Whilst (unspecified) training and help would be provided, the onus was very clearly left with the claimant to achieve proficiency, and “he will not be coaxed through it”, which was indicative of a loss of acceptance of the claimant’s failure to progress.
- There also was a growing concern expressed in the November appraisal as to the claimant’s interaction with his colleagues, noting the view that he was “at times short and abrupt in his communications. He often points out the failures in others, but never the positives. Although communication has never been a strong point for Robert, I feel things have started to get a bit worse this year.”
- The action proposed to address this aspect of the claimant’s interaction with colleagues was training, for which an Emotional Intelligence course in January 2017 was arranged for the claimant by the first respondent, at a cost to the first respondent of £750. Whilst the claimant disputed at the time that there was anything untoward about his manner or the way in which he spoke to colleagues, he attended...
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