Northern Ireland Case Review 2017 and Key Next StepsPosted in : Supplementary Articles NI on 7 December 2017
Northern Ireland has a very active tribunal system and our own employment judges that issue detailed and reasoned decisions. Our Court of Appeal has had to contend with a spate of employment-related cases this year.
Maxine Orr, Partner, Worthingtons, analyses case law and offers practical advice on what you should now do in order to comply with developing case law in NI at our recent Annual Review of Employment Law conference. In the session (video and transcription below), Maxine covers the following cases:
- Court of Appeal - Lindsay Knox v Henderson Retail Ltd (WEI10237) and Caroline Connolly v Western Health & Social Care Trust (1258/13IT)
- Unfair Dismissal - Eamonn McGrath v Southern Health & Social Care Trust (583/16IT)
- Victimisation – Race Discrimination - Shane Hynds v South Eastern Regional College & Mr Tim McAlister (1607/16IT)
- Religious Discrimination - Colin Robert Houston v Swissport GB Ltd & Colin Morrow (93/16FET & 2247/16IT)
- Costs - Andrew Bell v Primark Stores Ltd (76/15FET & 2517/15IT)
- Damages - Marie-Claire McLaughlin v Charles Hurst Ltd (83/15IT)
Chris Lillie: Welcome on stage Maxine Orr, who if you don't know, is a partner with Worthingtons. She heads up the employment law team there. Maxine's going to take us through some of the recent cases here in NI. I hope you don't mention too many people in the room, Maxine. We have some nervous faces in the room. So, please, give a big round of applause for Maxine.
Maxine: Thank you, Chris, for your introduction. As Chris said, I head up the employment law department in Worthingtons. We have six employment lawyers who specialise and practise exclusively in employment law, which is great in that they are a wealth of knowledge when it comes to me having to get cases to speak about and do my research for today.
I have to say to you this year has been a prolific year in terms of cases in the tribunal. In fact, if you're speaking to the employment law judges or looking at the statistics, we have all been really busy this year. The number of cases that are live in the tribunal now before the end of the year is 8,435. Last year, for the entire year, it was 6,181. And the year before that, it was 4,102 claims. So, one of the trends we have noticed is there are more tribunal claims being brought in the tribunals at the moment.
Now, another trend, which for those of you who are in the profession or indeed those of you who have been in tribunal in the last year will notice there is an increased use of part-time judges. Due to the increased amount of claims, some of the full-time judges have actually retired, and as a result, there has been increased use of part-timers.
That has an impact in that they are, for us practitioners, an unknown commodity because we haven't been appearing in front of them for a considerable period of time. They certainly deal with tribunals differently than the full-timers just because they're not there all the time. So, that is another trend that I've noticed in the last year.
In addition, there are fewer court of appeal applications. There are fewer cases going to the Court of Appeal. I'm sure you're all aware that if you wish to appeal a tribunal decision in Northern Ireland, you've got to appeal to our Court of Appeal on a point of law. That is not what everybody thinks is the Holy Grail because one of the difficulties of going to the Court of Appeal is costs. If you go to the Court of Appeal, you will be responsible not only for your cost, but if you lose, you're responsible for the other side's cost.
The difficulty with going to the Court of Appeal on a case is you've gone to the tribunal, you've run your case, perhaps you've lost it, you go to the Court of Appeal, and you run another set of costs. The outcome of the appeal is that you will be remitted back down to another tribunal, a freshly constituted tribunal, and your case will be heard for a third time.
So, going to the Court of Appeal is a bit of a lock trade on some occasions, but I have two Court of Appeal decisions I'm going to talk to you about today and hopefully that will highlight some of that as well. So, the issue of costs and the lack of certainty are issues which certainly influence people's minds when they're going to the Court of Appeal.
Now, I have, as is my norm, chosen cases which are of interest to those in the legal profession. In other words, the ones that we are gossiping about down at the tribunal or the ones that have hit the papers and are of media interest, and for good reason. Now, I've chosen seven cases. I am on a 50-minute time limit. I'll be frank with you. I could have chosen 14 cases and be here until 5 o'clock, albeit, we would probably need wine on the table rather than water.
So, there are numerous cases that can be chosen. These are just personal preferences and speaking to other practitioners. I am not here to name and shame anybody. Some of these cases we are on the wrong side of, certainly our practice. So, it is not a situation where we all want to be, but it does happen. We're only using these cases to give us an example of what not to do or when things go wrong, or indeed some of the things I would say would be when I think tribunal judges, Court of Appeal judges have got it wrong.
Now, there are a number of cases, I will be racing through them. Some of them I'll spend longer than others because I think there are more important points to be made for them. I will be about afterwards and you can ask me questions over the lunch. Okay. I will get going.
The Lindsay Knox case and the Caroline Connolly case... And the reason I've chosen those are they are two cases which have gone to the Court of Appeal this year. The first one, the Lindsay Knox one, the reason I've brought it to your attention is not only did it go to the Court of Appeal, but because it was constructive dismissal case.
Now, you've heard me say this on numerous occasions and indeed practitioners will tell you that constructive dismissals are one of these hardest cases to win for a claimant because the burden of proof is on you as the employee to show that the employer has breached their contract of employment. So, they are difficult enough cases to win.
The facts of this particular case are that Ms Knox was a manager in Henderson Group. She was a manager in their Abbey Hills store. She had apprehended one of the delivery drivers who she believed, and brought it to the attention of her manager, had stolen stock. This was a delivery driver from a bread company of a particular brand, and it's in the notes.
What she did was she immediately emailed her line manager and said, "Last night I apprehended this gentleman, Peter, and he's stolen bread. I've got it all sorted, but I'm not about to have him continue to deliver bread". Her immediate line area manager, Ian Mullan, he didn't respond. Because he didn't respond, she then went to the fresh fruit manager and she said, "I raised this with Mr Mullan and nothing has been done and I'm not a bit happy after my apprehending him that he continues to deliver bread to this store".
This happened in August. Then her line manager came down and said to her . . . he was situated at a different store and said, "I'll make sure that he does not deliver bread to this store for the next couple of days while we sort out what's going on here". And at that stage, she was going off on seven days annual leave. So, he didn't deliver bread on the 30th of August and he didn't deliver bread on the 1st of September and she went off on annual leave and returned on the 9th.
On the 10th, the very next day, lo and behold, Peter drives up and delivers bread again. She was not happy with this and, in fact, went out on work-related stress sick leave from the 16th of September 2014, and she raised a grievance on the 1st of October. The grievance said, "I felt sick at the fact that a person I had caught and had to deal with personally for stealing from the company was still delivering to our store. When I informed Mr Ian Mullan of my feelings, he suggested that I swap shifts to avoid this particular individual".
Her grievance went on to say that she felt that from the data she raised that grievance, her area manager, Mr Mullan, was putting pressure on her to either move to another store or indeed to do longer or different hours, and that she felt that he was putting the interests of this bread company above the interests of her as an employee.
She was sent to Occupational Health because she was off at the stage out sick. Occupational Health reports, and there are a number of them referred to in the notes . . . Everything I'm saying is in the notes today, so you don't really need to take notes at all. There were three occasions, the 2nd of October, 3rd of October, and the 27th of November, where she was sent to Occupational Health and they kept saying, "Listen, if you sort out the workplace difficulties for her and this area manager, I believe this girl can return to the workplace".
They went through her grievance procedure and they did not uphold her grievance and she appealed to the second stage. The second stage of the grievance said, "You can have two options. We can give you mediation with the immediate line manager, Mr Mullan, or indeed, we can go through the LRA and they can go through some formal mediation at that stage".
She was not happy about this at all. She wrote in February of 2015 and said, "I believe that you are trying to move me out of the workplace. I believe that you are not looking after me and creating a harmonious workplace. I think I may well have to resign". She said this in February, which the Tribunal took note of.
She then turned up at a workplace meeting on the 31st of March to discuss her on-going absence and the issues and how to deal with the mediation, etc. And she found out the very next day that the area manager, Mr Ian Mullan, had been moved to her place of work. So, he was now in her building. She said that was the final straw.
As a result of that, she resigned and claimed constructive dismissal. She won in the tribunal. It was Judge Caruthers who dealt with this case. She represented herself. She had no legal team in this particular claim. He said that the finding of the tribunal was that the internal grievance procedure was not properly conducted. There was not a sufficient investigation into her concerns as an employee.
In fact, the tribunal held that the company had put the interests of this bread brand before their employee and that ought to have been sorted. Indeed, they hadn't provided her with a harmonious workplace.
Now, the company appealed to the Court of Appeal. They appealed to the Court of Appeal on the decision was perverse and there were material findings unsupported with the evidence and that there was a misapplication of the law.
The finding was that there was a breach of the implied duty of trust and confidence. You've heard that on numerous occasions. One issue which came before the court of appeal, and there was a bit of controversy over this, was if you're involved in tribunal proceedings, you will know that those case management discussion stake place. The claims are lodged in the tribunal, you're all invited, both sides, and you have to set out your legal and factual issues. It could be whether or not Maxine was constructively dismissed and all the facts that go with it.
They actually agreed prior to the hearing so that the panel hearing the case knows what's to be considered. What happened in this particular case, and I do believe we got there simply because the claim was unrepresented, the judge allowed matters outside the legal and factual issues to be included, evidential matters to be included at the hearing and in also tribunal.
I think the difficulty for the respondent is they had chosen not to bring Mr Mullan as a witness because based on the legal and factual issues as agreed, there were no issues to him in requiring him as a particular witness and had not brought him to the tribunal as a witness.
However, the tribunal judge or the Court of Appeal judge said, "Listen, legal and factual issues are there to help set out the parameters of a case, but they are not to limit the parameters of a case". They specifically said that courts and tribunals should not stick slavishly to the list of issues which were agreed, because to do so would impair their ability to deal with the law and the evidence in front of it.
They basically said to the employer, "No, you don't have an argument even if they went outside those legal and factual issues, because you don't have to stick slavishly to those". And their Court of Appeal was not successful.
That case has now been sent back to the tribunal on remedy. It was heard in August of this year, but at today's date, there is no decision on how much money this girl got in a relation to her constructive dismissal case.
So, at that stage, the employers already ate the costs of going to the tribunal. They also ate the cost of the Court of Appeal, their costs and indeed the other side's costs, because at that stage, the claimant got representation, although I understand that has not been resolved at the moment in relation to costs, but now they're going back to deal with a further hearing on remedy. But had they been successful, they would have been back on a brand new tribunal rehearing the case all over again.
Court of Appeal - Caroline Connolly v Western Health & Social Care Trust (1258/13IT)
The second case is, again, on unfair dismissal. It's another Court of Appeal decision. Those discerning attendees will remember that I spoke about the Caroline Connolly case last year. It was an unfair dismissal case, which went to the Court of Appeal.
Here's what happened. I have to say I've been doing this for 20 years and this is my first recollection of this happening. This girl was dismissed on the 21st of June 2013. She went to the tribunal and her tribunal hearing was heard in June, 2014, and the decision was issued in October, 2014, and her dismissal was held to be fair. It was an unfair dismissal case.
She appealed to the Court of Appeal and the Court of Appeal, which I spoke about last year, overturned the decisions and said, "No, it wasn't fair". The reason they overturned the decision related to an investigation process . . . As we all know, if the disciplinary process and the disciplinary hearing has some procedural defects, those can be fixed at appeal stage.
On the particular facts of this case, the court held that the investigation process prior to the disciplinary was fundamentally flawed, and the tribunal at first instance said it was flawed and that left the disciplinary hearing flawed. The reason it was flawed was it held prejudicial information. She was dismissed for the use of a Ventolin inhaler in the workplace. This was a nurse who had felt an asthma attack come on and went and made use of a medicine, an inhaler, that belonged to the hospital. You're not allowed to do that. You're not allowed to misuse medicines that belong to the trust.
However, in the investigation report, it was 11 pages. One and a half pages were devoted to the Ventolin inhaler incident. The rest of it was to deal with workplace difficulties. I think there were difficulties between her and her fellow colleagues. In this particular case, what the Court of Appeal had said was, "If you had a defective investigation process and all of that prejudicial information about the difficulties that Caroline Connolly had with her fellow employees was placed before the disciplinary panel, then if it was wrong at that stage of the investigation, it was also going to be wrong at the appeal stage, because the appeal panel would also have access to this information and it ought to have been redacted".
So, whereas the tribunal held when it got to appeal stage, it had fixed the procedural defects of the disciplinary. However, it went to the Court of Appeal. The Court of Appeal said, "No, an unsatisfactory investigation had polluted the entire process". In fact, the appeal panel also saw some of the unredacted information, so it was unfair.
So, it went back to the tribunal and it was heard by part-time Judge Blair. The panel heard it all over again and they made a decision and said, "No, we believe it was fair dismissal. The reason we believe it was fair was the appeal panel was very clear in their evidence that they did not take into account the unredacted information".
They dealt with the Ventolin inhaler and whether it had been used and which particular concern and evidence was given by Mrs Young to say, "The difficulties we had with this individual and why we chose to discipline and to dismiss was because her evidence to this hearing was that she was going to go and get her own medicine and replace it", which is something you cannot do. That's totally contrary to the issue of medicine's un-governance within a hospital. They held that the dismissal was fair.
So, of course, the employee appealed it again to the Court of Appeal. This is why I'm bringing it to your attention today. The Court of Appeal said, "No, we believe it was unfair". Instead of remitting it back to a third tribunal hearing, they said, "We're going to substitute the finding of a fair dismissal with an unfair dismissal".
Now, by the time it reached the Court of Appeal, the Court of Appeal's decision, and that was issued just in October of this year . . . There are three Court of Appeal judges. One dissented and two, the majority, held that it was an unfair dismissal and one said it was totally fair. I'll be frank with you. I agree with the dissenting Lord Chief Judge.
One of the messages from this case is just to show you, and it was quoted in the particular case, that this case has gone before two panels within the hospital, it has gone to two industrial tribunal panels separately, and it has gone before two courts of appeal. It goes to show you how all these learned people do not necessarily agree on the law in relation to the unfair dismissal.
Now, the judgement . . . I'm just going to read from one of the Court of Appeal judgements. They said, "To dismiss on a first offence is a really difficult thing to do, and unless it was a wilful and intentional repudiation of the contract, you could not dismiss on a first offence. However, the judgement on the . . ." They found it absolutely went outside the reasonable responses of anybody to dismiss.
However, the dissenting judge at the Court of Appeal was fully robust and he said, "I consider there is no basis upon which this court could consider that this conclusion was wrong or could not have been reached by a tribunal. Taking a prescription drug under lock and key for your own use is an extremely serious matter, which no hospital can or should tolerate. She could easily have sought assistance from A&E or gone to the duty doctor". He specifically said, "I see no reason why this conduct could not have amounted to repudiation of the contract, to have constituted wilful conduct".
The point he was making was that he couldn't believe that this would not be a fair dismissal, because he was saying that when you considered all of the circumstances, it was within a reason for these people to make the decision.
He also made the point, the dissenting judge, that the panel at the appeal within the hospital was represented at senior level within this respondent trust and, in my view, were the experts in dealing with the importance of pharmacy issues in the workplace. And it was important that tribunal judges should afford some measure of deference to their expertise that we should know.
So, on that particular case . . . It did hit the papers. I'm sure you read it in the Belfast Telegraph how horrified the judges were that this girl ought not to have been dismissed. There was a really weird paragraph in the majority judgement. I'm going to read it to you. It's within your notes. It refers to the fact that this girl, they took on considerations for this girl, which were outside what was considered in the tribunal specifically. Bear with me two seconds until I pull it up.
The Court of Appeal judge said he was troubled by a number of incidents. But here's what he said, and I do find this bizarre because I could find no reference to this in any of the judgements. This conclusion was . . . I'm trying to make sure I get the right one. He basically turned around and said that there were issues that were taken. "I acknowledge . . ." This is what the judge who held the majority decision said. "I acknowledge as Lord Justice Gillen", who was the dissenting judge, "reminds us that this appellant has now been before two employer panels, two industrial panels, and failed to find favour with any of them.
"It may be that her previous employment as a soldier and indeed the qualities necessary to become an Irish boxing champion have not made her an ideal supplicant before the panels on the tribunals, but the determination in accordance with equity and the substantial merits of the case as to whether her summary dismissal was one within the band of reasonable responses, must be decided on the facts and not on the subjective impression she engendered before those with whom she appeared".
I could find nothing in any of the tribunal decisions which made reference to the fact of her previously being a soldier or an Irish boxing champion had played on anybody's mind, but bizarrely so, the Court of Appeal judge made this point that she must have presented herself in a particular way that the panels didn't like her.
Actually, I'll be frank with you. I think often judges make the point of "Why let the facts of the cases stand in the place of a good decision?" I don't agree with the outcome of that. I think it's perfectly within the band of reasonable responses to dismiss a nurse who misused medicine within the workplace.
There's a reference to both of the judgements in your notes and it's certainly would be something you should read on. It does concern me that anybody would say that on a first offence, unless it's wilful, intentional, with the view to repudiate a contract, that you could not dismiss.
Now staying with unfair dismissal, the reason I have picked this case is this relates to the use or the misuse of alcohol in the workplace. I do know certainly in our practice these are issues which do continue to raise their head on how you deal with employees who misuse alcohol.
Eamonn McGrath was a senior support worker in this particular trust. He had a clear disciplinary record and he had 24 years' service with a clear disciplinary record. He appeared for a work on a particular day in June 2015 under the influence of alcohol, and he was subject to that disciplinary process, as is proper and had no difficulty with.
He said that on the particular occasion, his mother in law was terminally ill at the time and indeed, his wife was ill and the mother in law, they were helping look after her. He admitted the offence and he apologised for it. This happened in June. There was a disciplinary hearing arranged and it took them until September until the disciplinary hearing was to be dealt with, the 7th of December. These dates are important. They're important as to why the tribunal held the dismissal was unfair.
He was put on precautionary suspension and he was sent to Occupational Health. Occupational Health through Dr Black said, "Listen, I have spoken to this individual. He is agreeing to take part in the alcohol-monitoring programme and we will take his bloods. I've arranged to re-see him again on the 30th of July". At the moment, in the letter that came from Occupational Health it stated, "He has reported remaining abstemious since the 18th of June".
Now, that was a really important fact because what happened . . . He then had another Occupational Health appointment for the 9th of September. He didn't turn up at the disciplinary hearing because he sent his union rep along. The union rep phoned him when the disciplinary hearing was over and said, "The decision is that we can't have you being a lone worker during the issue of alcohol. They're going to downgrade you from a band five to a band three, and you're going to have a final written warning on your record for two years". The claimant wasn't happy, but he didn't have much opportunity to agree or disagree with it. He did not appeal it. That was the position.
The hearing was heard on the 7th of September. The disciplinary outcome letter was sent on the 9th. That was the date on it. The tribunal said it was probably received by him either on the 10th or 11th of September. He had an appointment with Occupational Health on the 9th before he received the outcome of this letter.
He phoned up Occupational Health on the 8th of September to say, "Can I cancel my appointment for today?" They said, "Listen, you can't cancel it with us. It was your employer who organised the Occupational Health appointment. You need to go to your employer".
He went to his immediate line manager and she said, "Why do you want it to come to that?" He said, "Listen, my mother in law is not well. We are sitting with her", were the lines that she said he used. She said, "That's fine. You don't have to turn up". That was for the appointment for the next day.
The next day, the union rep phoned him and said, "You have to turn up at this appointment. If you don't turn up, you're going to be dismissed".
He then turned up, but at that stage, Occupational Health or maintenance as we know had gone, he'd lost a slot because it had been cancelled, but they took his bloods. He had been taking alcohol and he admitted that he had been taking alcohol on the 8th of September. So, when they took his bloods the next day, his bloods clearly showed that he had been on alcohol.
Now, he hadn't received the outcome of the first disciplinary hearing, but he was subject then to a further disciplinary hearing, and that further disciplinary hearing related to offences. The allegations were, one, that you failed to demonstrate committed to addressing your alcohol problem despite previous assurances that you would, and that you attempted to misrepresent the true level of your alcohol consumption to your employer contrary to the alcohol-monitoring programme, and in doing so, have called into question your honesty and integrity. He was put through a disciplinary process and he was dismissed for gross misconduct on foot of that.
Now, criticisms of the process the tribunal held and indeed his union rep argued were there were two people in the disciplinary panel, the second disciplinary hearing, who were in the first. The tribunal said an organisation of this size and with these resources should have kept a certain degree of distance. There should have been somebody else dealing with that disciplinary the second time around.
Secondly, you were dismissing him for dishonesty. Where was he being dishonest? He phoned up to cancel the appointment. He was told by his line manager he would cancel it. The Occupational Health provided on-going reports that he was monitoring his alcohol intake. Nobody said that he was anything but abstemious.
In other words, there was an issue as to whether or not he was abstinent or abstentious and the issue here that arose... And this is of news to me. This particular trust says they don't take minutes of their disciplinary hearing, but I know if you come into my office with an unfair dismissal case and you didn't have minutes of your disciplinary hearing, I know what I'll be saying to you and possibly throwing something at you.
We all know you have to take minutes. Here's the problem or issue in this case. They could confirm whether he was abstinent or abstemious. The difference is, one, you're not taking alcohol, the other one is you're cutting down on your alcohol intake.
Because there are no minutes at the disciplinary hearing and because he wasn't aware whether he was abstinent or otherwise because he hadn't received the outcome of the disciplinary hearing, the tribunal said this was a totally unfair dismissal.
This man had 24 years' service. He should not have been dismissed. We have no notes of a disciplinary hearing to explain what was told to him or what you understood was going to be.
Now their policy was for the reason that we don't take notes of a disciplinary hearing is because everything that's said is usually held in the outcome. However, that was no use because when it came to tribunal, nobody could confirm whether or not there was an undertaking by his union rep that he was to be abstinent or not. In fact, he said, "When I spoke to my union rep, he didn't say I was to be abstinent. All I did was take part in an alcohol programme".
I was very open about that because all the Occupational Health reports referred to he only takes work . . . He had alcohol whilst he was on holiday. There was alcohol at a family barbecue, but he is dealing with the issues on an on-going basis.
That particular case was dealt with and the remedy has not come through because of subject to the remedies hearing. Though I was speaking to one of the representatives acting for the claimant, and I do think they're going to try to go for reinstatement in that particular case because I suppose it would be difficult after 24 years of service and with all the benefits that particular role would have.
So, the lesson with that one would be, and the tribunal talks about it, you have to have your notes of the disciplinary hearing. I would have thought that would he been obvious. Secondly, these two incidents happened so closely together. Make sure you know you're disciplining them for. They were trying to discipline him for dishonesty. There was no evidence he was actually being dishonest anywhere. He was very open with Occupational Health about his alcohol intake. And that the same panel ought not to have been dealing with it or two people from the panel ought not to have sat on the second one.
Victimisation – Race Discrimination - Shane Hynds v South Eastern Regional College & Mr Tim McAlister (1607/16IT)
The Shane Hynds case, the reason I'm bringing this case to your attention is this is victimisation and also a race relations case. The particular case, you'll note it was against a Mr Tim McAllister and the South Eastern Regional College. This guy believed he was being victimised. Mr Tim McAllister was his line manager. The claimant, Mr Hynds, was a full-time lecturer in the college. Mr McAllister had a grievance raised against him by Mr [Nyman Tanner 00:29:12]. This grievance from Mr Nyman Tanner was a race complaint with 14 different allegations. And a Ms Gamble within the organisation investigated Mr Nyman Tanner's grievance and only upheld four of them.
Now, the report expressly stated that the incidents that were upheld were not related to Mr Nyman Tanner's race despite this being his allegation. It related to the fact that he was mistreated at a meeting and there was interference with the investigation, etc.
Now, Mr McAllister was then subject to disciplinary on foot of his treatment of Mr Nyman Tanner. What he did, he went with his union rep and they went to see their lawyer. Their lawyer said, "Is there anybody within SERC who could help me or give evidence in relation to this as part of your defence for the disciplinary?"
So, what Mr McAllister did was he went and approached Shane Hynds, who was his subordinate, and he sent him an email and said to him . . . Mr Hynds, by the way, had given evidence in the investigation, the Gamble investigation with Mr Nyman Tanner.
He sent him an email to say, "Listen, could I meet you tomorrow for a wee chat?" But Mr Hynds was dubious and concerned, phoned HR, and said, "Listen, I've just been asked by Mr McAllister could he meet me for a chat. He didn't tell me what it was about. I'm a bit worried. I never gave authority for you to release my notes of my investigation to him. I'm worried that's what it's about". HR advised him, "You don't have to speak to anybody. If you don't want to give evidence about anything, you can feel free to say no and don't go".
So, he was teaching down in, I think Ballynahinch, at the time. Mr McAllister came in, asked him if he could have a word and he took him into what they called a wee suite. My understanding from the evidence given in the tribunal, this was a very small room. When they were in, the deputy head of department was there taking notes.
So, Mr Hynds went in, and this is the basis of his victimisation complaint. He went in, he turned around and said . . . his evidence to the tribunal was that he went in and said, "Listen, I'm very nervous and I'm concerned about this". He saw that Mr McAllister had a report in front of him. He was worried that that was some information about him. He said Mr McAllister said to him, "How do you think I feel? I've had this for 15 months and my neck's on the line".
He said that he was not aware that that the claimant, Mr McAllister... He didn't look uncomfortable. He was free to go. In fact, the meeting lasted no more than two minutes and Mr Hynds went. Forty-five minutes later, Mr McAllister went and said, "I'm very sorry for making you feel uncomfortable this morning. It won't happen again", and he asked him about work-related matters about curriculum issues.
Now, Mr Hynds immediately went to HR, raised a grievance, and went on the sick and remained on the sick until he was in the tribunal. Mr McAllister was then suspended until investigation of his treatment of Mr Hynds. What then happened was an internal investigation. That internal investigation said, "We don't believe this was victimisation because he believed he was being victimised for having given evidence to a race relations complaint, which is a protected act".
So, his grievance was not upheld. In fact, he took it to the tribunal and the tribunal agreed. They said, "This was not victimisation". The whole motivation of Mr McAllister was . . . The tribunal said, "The best interpretation the tribunal can place upon the timing coming as it did is that Mr McAllister was motivated most probably by discussions which he had with his legal advisor and his union, and that he was there to try to get information to see if he could defend himself at a disciplinary".
Now, after Mr Hynds had raised a complaint, HR did speak to Mr McAllister and said, "Listen, don't email potential witnesses and speak to them like that. What you should do is, if you want to find out if they can assist or give evidence to support you in any way, you need to tell them in advance and put it in an email to them. Do not be 'ambushing' anybody".
Now, that went to the tribunal and the tribunal said, "No, a very short meeting and we don't believe it amounted to victimisation". In fact, the Occupational Health reporter, Phillip McCrea, stated that he had on-going issues, which seemed to culminate in this. So, the fact that he was upset and distressed not only related to this incident, but to the previous on-going incidents, i.e. the fact that he had probably been a witness to the main investigation.
This case has been appealed to Court of Appeal and has been listed for the 1st of February 2018. So, we'll wait and see whether it goes anywhere. Victimising complaints are difficult and that's certainly a difficult thing for an HR manager to manage in the workplace. They considered the fact of what was the intention or the reason for speaking to the individual when you're considering victimisation.
Religious Discrimination - Colin Robert Houston v Swissport GB Ltd & Colin Morrow (93/16FET & 2247/16IT)
The Colin Robert Houston matter, this is the one... I'm sure you've heard of this. This was in the papers. The judge did not like this claimant. This is a religious discrimination case. It was supported by the Equality Commission. The individual had less than one year's service.
I'll be honest, the tribunal, when I read this, it was the classic case of somebody with less than a year's service waving a flag of discrimination for the purposes of getting a claim. That's the best way I can describe it. The tribunal didn't necessarily go as far as to say that, although Mr Kelly, as the Vice President, can be quite blunt. He didn't say that, but I'll read to you what he did say in a moment.
This guy worked in the baggage up at Swissport up at the airport. He was a Christian pastor. He does not approve of same-sex relationships or same-sex marriages and he's heterosexual. He was on a fixed-term contract and it was brought to an end and it was brought to an end due to his conduct. But what they did and what we often do as employers is we write, "Dear Maxine, further to your fixed-term contract, we are no longer extending this and your contract will end", and you give them notice.
You don't normally, for less than a year's service, give reasons for the termination. You don't legally have to because you have to be in employment for one year to get the right to get written reasons for dismissal anyway.
What the judge said in this case is what you should have told them. If you told them what it was, it might have saved some of the issues that arose. Two people did not have their contract extended. He was one of them. The other one was to do with the lateness.
One of the reasons was this guy's conduct. He removed a steering pin in relation to a piece of equipment. He was aggressive and he refused to undertake a task. He was asked to go to training and refused and he said, "I've really done my training. I'm doing no more".
The tribunal did not like him. You'll read in the documentation, he gave evidence on his own behalf without calling a single supporting witness. He seemed to be of the view that if he said something, that automatically made it the truth and it was incomprehensible to anything he would say might be challenged, is how the judge found him.
He had no hesitation in saying had the claimant not been dismissed, he would not have raised a grievance. He raised a grievance saying, "You don't want me there because I'm a Christian pastor. There has been offensive graffiti in the toilets of the airport", and on one occasion, he had actually said to a team leader who was openly gay that there is a cure for gayness. That was one of the reasons why he was dismissed.
The tribunal judge said, "I understand why that individual didn't raise a grievance, but you as an employer ought to still have investigated those". The respondents can be criticised and the complainant was not given the full opportunity to respond to the complaints and the reason his contract has not been extended.
However, the employer was not obliged to use the three-step procedure, the claimant does not have a right to claim unfair dismissal, and the reason was his conduct. At that stage, the tribunal said, "The respondents can be criticised for failing to make it clear the determination letter was what the real reason for it was". Instead of this, the tribunal said the employer took the easy way out.
They did not like this claimant at all, and I think the evidence he gave to the tribunal was entertaining to say the least, because he kept saying that he was this Christian pastor and was well known and well known for his strong views and the tribunal panel said, "I've never heard from you, and neither have any of the panel members heard from you, so we have no idea who you are, never mind somebody working up at Belfast International Airport".
Another case that's very similar to that in that the tribunal judge really hated Mr Bell as well. Andrew Bell was not loved, put it that way. The reason I bring this case to your attention is this is about costs. I'll be frank with you. You still don't get costs in the tribunal. They are really hard to get unless the tribunal really hates the individual or they're a complete liar or they misbehave really badly in the witness box.
Now, in this case, they did get costs. They got £7,500 for costs. When I say they got costs, they made an application for costs and were successful on their application. Whether or not he ever paid them is probably a different matter entirely.
Andrew Bell worked in Primark. He was hit by a fellow employee. He brought a County Court action for assault. He got £1,000 for his injury and £1,500 for general damages and he never returned to work. He was off for a whole three years. They kept writing to him to say, "Come in for capability determination. If you're disabled, we'll make the following reasonable adjustments". The letters were held for three years. I have to say Primark were very, very patient. Had I been advising them, I think he would have been out after the first six or nine months.
They brought him into a meeting and he was dismissed for capability. He lodged a claim with the tribunal. His claims were unfair dismissal, sex discrimination, religious discrimination, disability discrimination, and failure to make reasonable adjustments.
The tribunal had no hesitation in saying, "You're not disabled at all, so you have no disability claim". One of the reasons they said he wasn't disabled, the reason he wouldn't come back to the workplace and capability was "your man, he's still here, the one that hit me. Because he's still here, that's the reason I can't return", rather than a physical or mental impairment that has an impact on his ability to carry out day-to-day activities.
So, the tribunal held that he wasn't disabled. But they also said that even if he wasn't disabled, you offered him every adjustment under the sun and the moon, so even if it was, I wouldn't have held you liable for that.
He ran to tribunal. His case was totally dismissed, and if you read the judgement, as I say, the court did not like him. An application for cost was made. I would always say that to every... I say that to the Solicitors in the department. Send your cost warning letter. Your cost warning letter is a basis to get costs in the tribunal.
Nearly every single case that we've gotten costs, certainly against personal litigants, tends to be ones where we have the four-page letter setting out you don't have a case and you don't have a case for the following reasons and because you don't have a case, it's going to cost us X amount of money to go to tribunal and we're going to hold you responsible.
Within the body of your notes, I've set out effectively the Calder Bank cost warning letter that was used in this. It was very detailed.
The legal costs for running this case for three days was £22,500. They had sent a number of cost warning letters to this individual and had also asked for a pre-hearing review, a deposit hearing, to try and get this individual to withdraw his case.
The tribunal judges did not give them the deposit where you have to pay £500 to bring your case. This particular judge just didn't award it. The tribunal judge said this guy was fully aware of the evidential difficulties and the problems with this case, because there have been a number of case management discussions.
In this particular case, the tribunal judge took the opportunity to say, and I noticed Mark referred to earlier, that the £10,000 limit that we have on tribunal is not sufficient when dealing with these cases. It said, "In previous decisions with this tribunal, there is a lacuna in the rose, but unfortunately, no action has been taken by legislators and he's appealing again to the legislators to say, 'Could you please change... because £10,000 is not enough whenever you're defending these cases, especially entirely unmeritorious claims'".
In this case, the tribunal said they had no doubt that this guy's claims were misconceived. It was clearly sent out in two cost warning letters. He acted frivolously, vexatiously, and abusively in continuing to bring this to the tribunal.
Now, when you're looking at costs, you've also got to say not only do you aware costs, but you have to look at the claimant's inability to pay. He did not turn up at the hearing on costs, funny enough. So, there wasn't a lot of evidence before the tribunal. He was aware that he owned his house, albeit that his mortgage was in arrears, and they said he has equity in the house, which may well be realisable on some occasion.
Although £22,000 is the legal bill, the maximum I can award is £10,000 and I'm going to award £7,500 as a contribution. Now, whether Primark will ever see a pound of that is a different matter, but it may well be that their approach is to fight these cases robustly and with large numbers of staff to be going for costs and maybe to send out a message to other employees, so although they may not get the money, there's often a good deterrent approach. Certainly, employers will say, "Maxine, if there's a chance of getting costs, we do that, send out a message because we don't want floodgate arguments of people thinking they can come to tribunal, run up costs, and there are no consequences for you". But I would taper all of that with the fact that this is the exception rather than the rule.
Finally, I always do one on damages as well. This case, in relation to damages, I'll just say this girl got £11,500 for injury to feelings only, £340.28 for interest on that. So, effectively, she got £12,000 for injury to feelings for failing to make reasonable adjustments. That is a high level of some of the issues on injury to feelings. Injury to feelings levels are going higher. They're going higher due to caseload in England, but also because they're either within the vento bands. Inflation is hitting them, so the bands have changed and they're getting higher.
Not only that, tribunal judges are giving higher awards because for failure to make reasonable adjustments for somebody who remains an employee, £12,000 is a lot of money. Certainly, if I negotiate on behalf of the employer, I would say, "No, 12 grand in the tribunal, they're not that generous here in Northern Ireland". You tend to pitch it much lower at the 5 to 10.
Now, the particular facts of this case... I do have sympathy for the employer. I know employers get it wrong. We all do. In this particular case, this was a girl who was a sales advisor with Charles Hurst and she'd been in their Portadown and Lisburn branches before, and she was in Belfast. But she was disabled because she had clinical depression and they were aware of this. They were aware of it through absence management with her. You see the period November 2013 until February 2014, she had been absent 45% of the working days and had been late 25% of the days that she'd come in.
The tribunal accepted she was a very difficult employee, and hard to manage due to the very high levels of absenteeism. She was being managed and sent to Occupational Health very regularly. It was obvious that the manager was frustrated and the tribunal said they clearly where frustrated.
But what happened and how they fell into getting it wrong in this particular case was she was brought in to these meetings. One of the absence review meetings, she said, "Could I go part-time? Could I make a flexible working request?"
One thing that struck me and certainly struck some other lawyers in my department was this girl's working hours was 47.8 hours. That was your weekly working week. Occupational Health said this was exceptionally high and this is there any way this woman could do less hours? She was given a flexible work request. Probably, like all workplaces, your flexible work requests may well be modelled on the flexible working regime.
In other words, you can put an application in and if you don't get it, it's refused and there are set grounds under flexible working regulations that you can refuse flexible working, and you have to wait a whole year before you lodge another one. They gave her this for when in actual fact what this woman was asking for reasonable adjustments on the DDA because she was disabled.
So, the form didn't fit terribly well because you've got to say in the flexible working request form the reason that you're off, usually to look after the family, and the employer comes back to you and writes out "inability to meet customer demand", etc. There are a number of reasons under the legislation that you can refuse that. It's the use of that form and it was the failure to grant her that flexible working under a reasonable adjustment is what the employer fell foul of in the tribunal.
She had brought a number of claims in the tribunal. She brought a claim for victimisation. She brought a claim for disability discrimination. Because she was moved, she also brought... Because they gave her work elsewhere, at one stage, they took the company car off her on one occasion, and the reason she lost the company car. There had been a disability awareness in the workplace, at which she took ill, and because they were worried about her taking ill and she had a use of a company car, clearly at Charles Hurst, they phoned up insurance and took her off it because they were worried and she would not be fit to drive a car.
She was also suspended because fellow employees said, "I'd like to raise a grievance. Working with her is very difficult. She is very temperamental. I really would like to leave the organisation rather than continue to work with her". So, they suspended her in foot of that investigation. There was a whole litany of things that went wrong.
When you're suspended, by the way, in Charles Hurst and you're a certified sick, you only get SSP. So, she brought a number of claims to the tribunal and those claims were her suspension was disability discrimination, the removal of the company car was disability discrimination, placing her in SSP was victimisation, harassing her as to where they held the meetings was a form a discrimination, and failure to make reasonable adjustments.
Now she failed in four out of the five claims before the tribunal. However, like the Court of Appeal, this was a majority decision. I have to say I think it was the union guy who went and upheld that loss of SSP, loss of company car, etc., did amount to victimisation, whereas the two other members of the panel said, "No, we don't believe any of those amounted to discrimination under the contract of employment. They're perfectly entitled to take SSP off her. The removal of the car was a health and safety thing. It would happen to any employee who was not fit to drive".
When she took not well, she numbed down her leg and had difficult walking, and the places for the meetings of themselves were not of self-discrimination, but they held failure to make reasonable adjustments.
I think there must have been a degree of sympathy with this woman, and albeit there was some degree of sympathy with the tribunal, but that award of £12,000 was particularly high in that case. Certainly, if you're acting for claimants, you're now arguing for 12 grand for entry to fillings plus interest in some of these cases.
Just a recap with some of the points, take notes and records of minutes. The difficulty is, if you heard some of the cases, Caroline Connolly was dismissed in 2013. We're set to run tribunal case or a Court of Appeal case in 2017, four years later. If you don't make notes at the time, how are you ever going to remember what your thought process was and what you did? Make sure the notes are as accurate as possible. Notes are notes. They are not a verbatim record of what has happened.
Back to my point, if you need advice, take it. Dealing with DDA matters . . . A criticism in the Charles Hurst case was that the people who were dealing with her suspension meetings and the people who were dealing with her absence management meetings did not know what the DDA was. So, they had no training on disability. They never said, "Have you ever looked up . . . Do you know what being disabled means? Do you know what having depression means?" You're conducting meetings with a disabled employee not understanding your obligations under the act.
That is something which was in a lot of disability cases. You'll see barristers are very good at cross-examining, saying, "Do you want to refer us to the DDA or guidance book and explain to us what part of that you left out when you decided whether or not to grant flexible working, etc.?"
And the use of the flexible working was wrong. Don't use a form that's to deal with flexible working under flexible working regulations to deal with disability matters.
I made the point earlier, entry to fillings awards are increasing, so it's going to be more costly. And investigate serious complaints even if the employee has not raised a grievance. That was raised by the judge in the Colin Morrow case.
And the role of HR, be sure HR is clear as to the role they have. If the note taker is the note taker, tell them that. If they're there as a note taker and an HR advisor, make that clear also.
Thank you very much, everyone.This article is correct at 07/12/2017
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.