Sheil (Martin) v Stena Line Irish Sea Ferries Ltd
| Jurisdiction | Northern Ireland |
| Judge | Coghlin LJ |
| Judgment Date | 08 January 2014 |
| Neutral Citation | [2014] NICA 66 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 08 January 2014 |
| Year | 2014 |
1
Neutral Citation No. [2014] NICA 66
Ref:
COG9388
Judgment: approved by the Court for handing down
Delivered:
08/10/2014
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
IN THE MATTER OF AN APPEAL FROM THE DECISION OF AN
INDUSTRIAL TRIBUNAL
________
BETWEEN:
MARTIN SHEIL
Claimant/Respondent
and
STENA LINE IRISH SEA FERRIES LTD
Respondent/Appellant
_________
Before: MORGAN LCJ, COGHLIN LJ and TREACY J
________
COGHLIN LJ (delivering the judgment of the court)
[1] This is an appeal from an Industrial Tribunal sitting in Belfast between 7 and
11 October 2013 which determined that Martin Sheil (“the respondent”) had been
unfairly dismissed from his employment with Stena Line Irish Sea Ferries Ltd (“the
appellant”) and that he had also been subjected to unlawful harassment on the
grounds of sexual orientation. The Tribunal dismissed other claims brought by the
appellant in respect of discrimination and victimisation on the grounds of sexual
orientation and trade union activities. The Tribunal awarded the respondent a total
of £37,513.32 in respect of compensation for unfair dismissal and £7,500 in respect of
unlawful harassment. For the purposes of the appeal the appellant was represented
by Frank O’Donoghue QC and Mr Mulqueen while Mr Lyttle QC and Mr McEvoy
appeared on behalf of the respondent. The court wishes to express its appreciation
of the industry, analysis and eloquence of counsel demonstrated in the preparation
and delivery of their written and oral submissions. For the purpose of the
proceedings the respondent was supported by the Equality Commission.
2
The Factual Background
[2] The respondent is some 51 years of age and, at the time of his dismissal for
gross misconduct on 12 December 2012 he had been employed by the appellant
company for more than 10 years during which period he had never been the subject
of any previous complaint. The incident that led to the respondent’s dismissal
occurred on Friday 2 November 2012 during the morning shift. The respondent and
a number of other port operatives were engaged as “tug” drivers. A “tug” is a lorry
cab which does not have a trailer or load attached. At about 7.15-7.30am the tugs
were engaged in loading the Heysham vessel when it seems that the vehicle driven
by the respondent approached the vehicle driven by a fellow employee, William
Gilmore. It seems that the respondent then left his tug and entered the cab of Mr
Gilmore’s vehicle. According to a third operative Brian English, whose attention
was drawn to the tugs driven, respectively, by the respondent and Mr Gilmore, the
respondent started shouting at Mr Gilmore and then jumped from his tug and ran
up into the back of Mr Gilmore’s vehicle. Mr English approached the vehicle and
said that he saw the respondent punching Mr Gilmore around the head and face.
[3] Mr English said that he climbed into Mr Gilmore’s tug and used physical
force to remove the respondent who shouted “this isn’t the end of this”. According
to Mr English Mr Gilmore’s face was bleeding and his safety glasses were broken.
[4] The respondent claimed that, during the course of a journey in a work’s
minibus on the previous day, 1 November 2012, Mr Gilmore had made a number of
homophobic comments which were directed at the respondent including the
observation that “some people in here should come out of the closet”. The
respondent believed that this remark was aimed at him and he gave evidence before
the Tribunal that, over the previous year, Mr Gilmore had made various similar
remarks about his personal life and sexual orientation. That evidence was
corroborated by Mr Jim Fenton who gave evidence before the Tribunal. Mr Gilmore
denied making any such remarks which were later to become the subject of the
harassment complaint by the respondent but the tribunal preferred the evidence of
Mr Fenton in relation to this topic to that of Mr Gilmore whom they found to be an
“unconvincing witness.” The finding of harassment has not been appealed.
[5] Mr English told the Tribunal that later on the morning of the alleged assault
the respondent had come to him and said:
“I know you don’t want to know but he was laughing at
me and that’s why I done it.”
That evening Mr English reported the matter to the foreman, Mr Gourley. The
respondent told the tribunal that he himself had not reported the matter as he would
have been uncomfortable raising issues in relation to his sexual orientation.
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Mr WX vs North West Regional College
...In addition to the authorities referred to in his written submissions he referred to the case of Sheil v Stena Line Irish Sea Ferries Ltd [2014] NICA 66. FINDINGS OF FACT AND CONCLUSIONS 16. The tribunal considered all the evidence presented to it both oral and documentary together with the......