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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> De Wet v Network Neighbourhood Ltd (Breach of Contract/Sex Discrimination/Unlawful Deductions/Race Discrimination/Unfair Dismissal) [2002] NIIT 1738_01 (14 August 2002) URL: http://www.bailii.org/nie/cases/NIIT/2002/100.html Cite as: [2002] NIIT 1738_01, [2002] NIIT 1738_1

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De Wet v Network Neighbourhood Ltd (Breach of Contract/Sex Discrimination/Unlawful Deductions/Race Discrimination/Unfair Dismissal) [2002] NIIT 1738_01 (14 August 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1738/01

APPLICANT: Alex De Wet

RESPONDENT: Network Neighbourhood Limited

DECISION

The unanimous decision of the Tribunal is that the application, insofar as it relates to the claims of breach of contract, sex discrimination, unlawful deduction from wages and race discrimination, is dismissed. However the Tribunal was of the unanimous opinion that the applicant had been unfairly dismissed and makes an award in the sum of £4,182.00.

Appearances:

The applicant was represented Mr Dunlop, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

The respondent was represented by Ms M Anderson, Peninsula Business Services Limited.

1. The applicant was employed by the respondent as Customer Services Manager and after three months was promoted to Operations Manager and was given a salary increase.
2. The applicant is of South African origin and is homosexual in his sexual orientation.
3. The applicant was dismissed on 19 February 2001 and the respondent stated that the reasons for his dismissal related to his capability, in that since he had been promoted he was not capable of doing the job.
4. The applicant contended that Mr Gregg Warner's attitude to him changed when he became aware the applicant was homosexual.
5. The applicant entered hospital at the end of June 2000 and it was agreed that his partner, Mr William Mooney, would cover for him during his two weeks absence. It is accepted that during this period Mr Warner and Mr Mooney had a very heated argument over a report that Mr Mooney was preparing for Mr Warner and Mr Mooney indicated he did not want to remain and left. In Mr Mooney's evidence he stated that he left on very bad terms. However the Tribunal do not accept that the issues arising from that incident had any relevance to the issues before the Tribunal.

SEX DISCRIMINATION

6. The applicant contends that Mr Warner's attitude to him changed following the row with Mr Mooney and there were comments made to him about his 'wee friend' and 'flatmate'. The applicant also referred to a recruitment process for a member of the sales team. He had placed the advertisement in the local press and contended that he was involved in the consideration of the appropriate applicant to be put forward for Mr Warner's approval. Mr Warner disputed the applicant's involvement other than his being involved in the procedures to be followed. The only person who recruited was Mr Warner.

The applicant stated that Mr Warner had recruited Laura Murray who had not been one of the applicants from the advertisement. Mr Warner had said to him he had employed her because she had 'blonde hair and big boobs', but I wouldn't notice that. The applicant contended that this comment related to his sexuality. Mr Warner's evidence was that the applicant at times attended interviews as a second person, but that he had no input into the selection. He said Laura Murray had been an applicant and that he had previously met her when she was in a temporary position with another employee in the same building. He denied ever using the words 'blonde hair and big boobs' and contended there had been a lot of fabrication by the applicant in his evidence.

The Tribunal were referred to a document dated 26 October 2000 which was headed 'Alex, October Review'. From the papers before the Tribunal it would appear that such reviews were conducted on a monthly basis. The notes of these meetings were short and at times scrappy and difficult to interpret. In this particular document there is a reference to 'sex discrimination' which the applicant's submitted was a reference by him to the fact that at this stage he was being discriminated against. Mr Warner's evidence was that it was his note and he recalled that it was him who had raised the matter when he had overheard banter in the front office between the applicant and staff and he recalled it was Laura Murray that used the term that is sex discrimination. He did not consider it appropriate banter and that is the reason for the matter being raised at that meeting, at no time had the applicant ever raised an issue of sex discrimination with him.

The Tribunal were told about an incident following the Christmas party when the applicant alleges that Laura Murray complained to him that one of Mr Warner's friends had been involved in an incident at the ladies toilet. The Tribunal could not accept that this incident could have any weight attached to it to support a contention that Mr Warner discriminated against him.

The applicant's claim is that following his return to work from hospital in June 2000, Mr Warner treated him differently. The reasons were that following the employment of Mr Mooney, Mr Warner became aware that the applicant was a homosexual or alternatively it was because Mr Mooney had had a row with Mr Warner.

Mr Warner's evidence was that he had no problem with the applicant's sexual orientation, however it had never been discussed with him or by him. Following the appointment of William Mooney in July he would have been aware of the applicant's sexual orientation as Mr Mooney was open in disclosing his orientation.

The Tribunal had the evidence of Mr Fearon, who was no longer an employee of Mr Warner's and was presently working in Liverpool. Mr Fearon's evidence was that following the interview of the applicant for the post, Tracey, who accompanied him at the interview, stated to him, do you think he is gay? Mr Fearon had no problems over this as his brother had declared similar orientation and he was also aware that the applicant had discussed the matter with Mr Fearon's wife at one of the office outings. He had a conversation with the applicant and reassured him that his sexual orientation would have no effect on the status in the company.

7. SUBMISSION BY MR DUNLOP ON SEX DISCRIMINATION CLAIM

Mr Dunlop recognised that there was a problem as regards the present law in the protection afforded to homosexual employees and referred the Tribunal to the decision in Secretary of State for Defence v McDonald (2001) IRLR 431.

Mr Dunlop also sought to rely on Article 6(1) of the Human Rights Act (Northern Ireland) 1998, Sub-Section 1 which provides:

'It is unlawful for a public authority to act in a way which is incompatible with a convention right"

Sub-Section 3 provides that public authority includes a Court or Tribunal.

He further referred to Article 14 and in particular to the words 'or other status' and submitted that this could be interpreted to include the applicant's sexual orientation.

He further submitted that Section 75 of the Northern Ireland Act 1998 should be applied.

"(1) A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the needs to promote equality of opportunity.

(a) Between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation".

He submitted that if the Tribunal were to find discrimination on grounds of sex orientation then the Tribunal must carry out its function to promote equality of opportunity and ensure the applicant's right to chose his own sexual orientation is protected and preserved.

The Tribunal acknowledges the very helpful submission by Mr Dunlop, however the Tribunal does not need to respond in detail to the legal submissions as the Tribunal was of the unanimous opinion that the applicant had failed to establish that the respondent had discriminated against him because of his sexual orientation. By the applicant's own case the catalyst responsible for the change in attitude in Mr Warner was the argument which he had with the applicant's partner, Mr Mooney. This argument was not in relation to the sexual orientation of the applicant or Mr Mooney. The Tribunal were unanimous in concluding that the applicant had failed to establish that any of the actions of Mr Warner were related to the applicant's sexual orientation.

Nevertheless the Tribunal should respond to the legal submissions of Mr Dunlop in some manner. The Tribunal accept the arguments of Ms Anderson that following the decision of the European Court in the case Grant v South West Trains (1998) IRLR 206 it is clear that at present the law does not provide for sexual discrimination to include sexual orientation.

The Tribunal were also of the opinion that neither the Human Rights Act nor the Northern Ireland Act would have assisted the applicant if it had been necessary for the Tribunal to consider the legal position further. A Tribunal should not attempt to make new law but only follow existing legislation and decisions.

8. RACE DISCRIMINATION

The applicant claimed to have been discriminated against on the grounds of his nationality.

The Tribunal was presented with conflicting evidence regarding elocution lessons. The applicant's evidence was that Mr Warner did not like his accent and asked him to go to a Speech Therapist and the company would pay his fees. He had agreed to do this but whilst at the first session he had received a phone call from Mr Warner telling him to get back to the office. Following that phone call he did not go back to the Speech Therapist. The Tribunal were referred to an e-mail sent to the applicant from Mr Warner, 'postponing these until we see what progress you make on the issues discussed at your review'.

Mr Warner's version of these events is somewhat different. He stated that he did not suggest the applicant go to elocution lessons. He thought it bizarre that the applicant should go to a Speech Therapist. Mr Warner had asked the applicant to look for an Elocution Teacher for his daughter and it was the applicant who said he could go as he always wanted to speak with an Oxford accent. Mr Warner found nothing wrong with his accent although he did consider the applicant's spoke quietly at times. His response to the applicant's suggestion was that he supposed it would help the applicant on the telephone and agreed to pay the costs. However when he realised the applicant was going to the elocution class during his working hours he considered this was an abuse of the company time and resources and suspended the agreement. The Tribunal were told that Mr Warner was an Australian, the applicant was South African and Mr Fearon was from Liverpool and they considered that they had a very cosmopolitan office.

The Tribunal were of the unanimous opinion that the applicant had failed to show that any of the actions of Mr Warner would entitle the applicant to claim that he had been discriminated against on racial grounds.

9. UNFAIR DISMISSAL

The respondent's reasons for dismissing the applicant were on the grounds of his capability. The applicant was originally appointed as a Customer Services Manager. He was not presented with written terms and conditions of appointment nor was there a job description for the post at that time. However Tracey who had been handling the Sage Accounts left in June and he was promoted to Operations Manager and was given the responsibility for Sage Accounting. He said the Sage Accounting was in utter chaos, the problem with Sage was that it had not been set up properly and he reported this to Michael Hunter the Accountant. The applicant did attend a two-day training course in August.

As regards the terms and conditions of employment, the applicant stated that he drew them up following his attendance at a course at the Labour Relations Office.

The Tribunal were referred to handwritten notes by Mr Warner of Performance Reviews. The September Review contained a reference to 'cash flow/payment error' and 'Alex will focus primarily on accounts/money errors'. The October Review contained notes relating to customers liking the applicant but references to "defensive/cover-up, absenteeism, poor/too high and a footnote 'Alex accounts and problems resolution'".

At this stage Mr Warner said he was getting concerned, the system was not operating properly in November and December and at the meeting on 9 January, Mr Warner asked the applicant to draw up an action plan by Friday as there was pressure from the Accountants to resolve current problems. The Tribunal were supplied with typed notes of this meeting which the respondent contended amounted to a final written warning.

The Tribunal accepted that the meeting of 9 January was a Performance Review and could not be construed as a disciplinary hearing. The notes of the meeting indicate a form of warning was given 'limited time to turn around/jeopardise employment', but this did not constitute a formal warning.

Mr Warner stated that by now he had lost confidence and on 19 January 2001 he sent an e-mail to the applicant referring to the areas of his under-performance and expressing disappointment that he had presented his action plan as requested.

10. It is clear from the notes of meetings recorded by Mr Warner, an e-mail sent by him to the applicant that Mr Warner had formed the opinion that the applicant's performance was not up to standard. He had given the applicant a pay rise at the time that he took over responsibility for Sage Accounting but in his opinion the applicant at no time accepted the responsibility and blamed everyone else for the fact that it was not performing. At the meeting on 16 February, Mr Warner said he advised the applicant that the meeting was to discuss his under-performance and the serious nature of the matter could lead to his dismissal but he would be giving further consideration to the matter over the weekend. The applicant attended work on Monday 19 February and was informed at 5 pm that evening that he was being dismissed. The reasons for the dismissal were related to the capability of the employee for performing work of the kind which he was employed to do. A letter dated 28 February 2001 was sent to the applicant setting out the matters which had given concern to Mr Warner and the reasons for his decision to dismiss.
11. It is now well established that when the capability of an employee is at issue that certain procedural steps should be followed:-

(i) The employer should carry out a careful appraisal of the employee's performance and discuss his criticisms with the employee.

(ii) He should warn the employee of the consequences of there being no improvement.

(iii) He should give him a reasonable opportunity to improve.

It is recognised that it would be extremely difficult for an employer to claim he had acted fairly if he fails to carry out a proper appraisal of the employee's performance. Apart from the appraisal on 26 April 2000 for which typed notes were available all other appraisals were in the form of cryptic notes of what was required to be done over the next period. Although some of these notes did contain criticism of the applicant's performance he at no time was given copies of these appraisals and they were not typed up, except for the notes of the meeting on 9 January 2001 which the applicant stated he only received when discovery was granted and they had never been given to him during his time of employment.

12. The Tribunal were of the unanimous opinion that the respondents had failed to carry out adequate appraisals of the applicant's performance or to place criticism in a written form to the applicant.

Apart from the note by Mr Warner of the meeting on 9 January regarding 'jeopardise employment' the applicant's evidence was that he did not think his job was in jeopardy as he had not received any form of warning. Furthermore Mr Warner gave no consideration as to how the applicant's performance could be improved. The applicant had always contended that the reason for the failure of the Sage System to perform was that it had not been set up correctly and that this was a matter for the Accountants.

The Tribunal concluded that the applicant had been unfairly dismissed and makes an award as set out in the following paragraph.

13. Since the applicant's employment was terminated he had been employed in Talk for All from 8 April 2001 to 28 January 2002 at a nett monthly salary of £750. Since that date he had been employed in the Halifax at a nett monthly salary of £835. The applicant did not go to the Job Centre following his dismissal nor did he receive any State Benefits.

Basic Award	1 week at £240.00	£ 240.00
Compensatory Award Loss of Earnings	19 February to 8 April 2001 6 weeks @ £227.50 per week	£1,365.00
Future Loss	9 months @ £236.00 per month* 3 months @ £151.00 per month**	£2,124.00 £ 453.00
		£4,182.00

* Difference of net pay Talk for All

** Difference of net pay Halifax

14. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 12 and 13 June 2002 and 14 August 2002, Belfast

Date decision recorded in register and issued to parties: