Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2725/17

 

 

CLAIMANT:                          Mark Warmington

 

RESPONDENTS:               1.   Interpress (NI) Limited

                                                2.   The Irish News Limited

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant’s claims of direct discrimination, unlawful harassment on grounds of disability and discrimination by way of victimisation are dismissed in their entirety.

 

The second named respondent was dismissed as a party to these proceedings by the agreement of the parties at the Hearing.

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Knight        

 

Members:                Mr A Barron

                                           Mr I Foster

 

 

Appearances:

 

The claimant appeared and was represented by Ms Sharon McArdle of Mark Mason Employment Law.

 

The respondent was represented by Ms Michelle McGinley of EEF Northern Ireland.

 

 

LEGAL ISSUES

 

1.            The issues to be determined by the tribunal were:

 

(1)          Did the respondent directly discriminate against the claimant on grounds of disability contrary to sections 3A(5) and 4(2)(d) of the Disability Discrimination Act 1995 (“the Act”)?

 

(2)          Did the respondent unlawfully harass the claimant on grounds of disability contrary to sections 3B and 4(3)(a) of the Act?

 

(3)          Was the claimant victimised contrary to section 55 of the Act on grounds of having a grievance on 19 and 28 September 2016?

 

(4)          The claimant’s comparator is Bryan Beggs.

 

(5)          Are the circumstances of the claimant’s comparator the same or not materially different to those of the claimant?

 

2.            At the Hearing the claimant specifically asserted that he was subjected directly to discrimination and/or harassment by reason of the conduct of the respondent:

 

(a)          In extending his probationary period.

 

(b)          The conduct of the meeting on 6 September 2016.

 

(c)          The content of the letter dated 14 September 2016.

 

(d)          The presence and conduct of Yvonne O’Rourke at the grievance appeal meeting described by the claimant as the Stage 2 Grievance Meeting.

 

(e)          The conduct of the review of the conduct of the grievance process by Valerie Gourley, described by the claimant as the Stage 3 grievance appeal.

 

(f)           The termination of his employment.

 

(g)          The conduct of the claimant’s appeal against dismissal.

 

3.            He alleged that he had been victimised on the grounds of having raised a grievance by reason of the conduct of the respondent as follows:

 

(a)          The presence and conduct of Yvonne O’Rourke at the grievance appeal meeting described by the claimant as the Stage 2 Grievance Meeting.

 

(b)          The conduct of the review of the conduct of the grievance process by Valerie Gourley, described by the claimant as the Stage 3 grievance appeal.

 

(c)          The termination of his employment.

 

(d)          The conduct of the claimant’s appeal against dismissal.

 

 EVIDENCE

 

4.            The tribunal considered the evidence of the following witnesses:

 

(1)          Mr Mark Warmington, the claimant

 

(2)          Mrs Valerie Gourley, Head of Group Development

 

(3)          Mr Thomas Carey, Press Hall Manager

 

(4)          Mr David Wilson, Production Manager

 

(5)          Mrs Yvonne O’Rourke, Group HR Manager

 

(6)          Mr Liam McMullen, IT Systems and Resources Manager

 

(7)          Mr John Brolly, Marketing Manager, Irish News

 

(8)          Ms Sinead Cavanagh, Sales Operation Manager

 

(9)          Mr Noel Doran, Editor Irish News

 

Where there was a dispute, the tribunal preferred the evidence of the respondent’s witnesses which it found was generally more credible than the evidence of the claimant.  The tribunal also considered the originating claim form and response form and all documentation contained within the agreed Hearing Bundle to which it was referred by the parties during the hearing.

 

FINDINGS OF FACT

 

5.            Having considered the written and oral evidence of both the claimant and the respondent and considered documentation to which it was referred, the tribunal found the following relevant facts to be proven on a balance of probabilities:

 

(1)          The claimant was employed by Interpress (NI) Limited (“Interpress”) from 7 February 2016 until his dismissal which took effect on 27 January 2017.  He had a previous period of employment as a Press Assistant with Interpress between December 2004 and June 2006.  Between June 2006 and February 2016, he was employed by another newspaper as an SLS operator working nightshifts only.  It was common case that the claimant himself is not disabled but he has a disabled son, for whom he shares care with his wife.  The respondent accepts that the claimant has a child who is disabled within the meaning of the Act.

 

(2)          Interpress is a contract print company and part of a group which includes the Irish News Limited (“the Irish News”).  Interpress and the Irish News are separate legal entities.  When Interpress won a new contract to print a national newspaper commencing in January 2016, Interpress decided to establish a dayshift in addition to the existing nightshift operation.  Flexibility and the ability to work nightshift were key requirements for the new Press Assistants to accommodate any changes in shift arrangements according to business needs.

 

(3)          The recruitment exercise was conducted by Yvonne O’Rourke, Group HR Manager, David Wilson, Production Manager and Thomas Carey, the Press Hall Manager.  The job advertisement stated that applicants should have “a flexible approach to shift work” and one of the essential criteria on the person specification was: “Flexible- ability to work shift work”.  The claimant applied, was shortlisted and interviewed.  At interview the claimant stated that he had worked various shifts, was prepared to be flexible and could adjust and adapt when required and was prepared to work extra shifts.  The respondent offered and the claimant accepted the position of Press Assistant/Mailroom Operator on 23 December 2015 with a planned start date of 3 January 2016.  In the event the claimant delayed his start date for six weeks due to medical reasons.  This caused some disruption and Mr Wilson suspected that the claimant also wished to have a break before starting in his new post.

 

(4)          On 2 February 2016, Mrs O’Rourke, Mr Wilson and Mr Carey met with the claimant to discuss his new start date, shift pattern and induction arrangements.  The claimant was content to start on the day shift and understood that he could be asked to work nights in addition to his normal hours.  The claimant commenced employment in the Mailroom area at 8pm on Sunday 7 February 2016 on the day shift.  His normal hours were Sunday 8pm-4.30am, Monday 3pm-8pm, Tuesday 10am-8pm, Wednesday 2pm-8pm, Thursday 8am-4pm with Fridays and Saturdays off.

 

(5)          The claimant’s statement of terms and conditions of employment provided at Clause 5 for a probationary period during the first six months.  This clause specified that “your performance and suitability in this post will be reviewed throughout your probationary period and a formal developmental review will be carried out at the end of this period.  Provided these are satisfactory in all aspects, including general conduct and attendance, your appointment will be confirmed.  The Company further reserves the right to extend your probationary period should this be considered necessary.”  This clause also provided that the disciplinary procedure does not apply to staff on probation and that employment could be terminated at any time during the probationary period with one week’s notice or payment in lieu of notice.  The claimant’s expectation was that his probationary period would end on 7 August 2016.  In practice, Mr Wilson did not keep a check on how long a “new start” had been in post but waited to receive a reminder from HR concerning the end of the probationary period.  Mr Wilson has extended the probationary periods for a number of employees after the initial six months have expired.  These included Lee Smith, Billy Johnston, Michael Parker and Chris Tolmie.

 

(6)          Mr Carey is the Press Hall Manager, and at the relevant times supervised the Dayshift and Nightshift Teams in the Pressroom and Mail Room Operations.  He is line managed by Mr Wilson who in turn reports to Mrs O’Rourke.  It was common knowledge within Interpress that Mr Carey had caring responsibilities for his father who was seriously ill in hospital.

 

(7)          There were four printers, including Frank Russell and Martin Weir and four press assistants, namely Mr Bryan Beggs, Mr Paddy Gibson, Mr David Blair and the claimant, employed on the Dayshift.  Apart from Mr Beggs, all of the staff named in this paragraph were “new starts”.  Mr Beggs was the only member of staff who was fully conversant with all operations within the Mail Room Area.  He was not asked to cover nightshifts because he was considered to be vital to the smooth operation and development of the dayshift as he had extensive knowledge of working practices and customer requirements.   The claimant was started in the Mailroom Area as he had experience from his previous employment in operating the SLS 3000 inserting machine.

 

(8)          Mr Carey’s view was that the mail room area was the weakest area for staff cover.  This view was reinforced when Mr Beggs took a week’s holiday from 20 March 2016.  As part of the cover arrangements, on 20/21 March 2016 the claimant printed two small inserts for two regional newspapers with the assistance of a press assistant from the Nightshift.  When Mr Beggs returned from holiday, Mr Carey obtained his agreement to postpone his second quarter week’s holiday to later in the year.  This suited Mr Beggs as the birth of his first child was due in October 2016.

 

(9)          On 30 May 2016 a press assistant from the Nightshift fell ill and did not return to work.  Mr Carey was initially able to arrange for cover by calling in two members of the Nightshift from their holidays but he decided due to the peak holiday period in July and August 2016 to rotate a Press Assistant from the Dayshift to Nightshift until some stability returned to staffing levels.  Mr Carey himself provided additional cover for the day shift, juggling his own duties on the press.  The claimant agreed, without demur, to Mr Carey’s request that he cover four nightshifts over the period from 24-28 June 2016.  This meant that he was off work on 22, 23 and 26 June and he had no shifts from 29 June 2016 until 2 July 2016, immediately followed by one week’s holiday leave on 3 July 2016 until 10 July 2016.  Mr Beggs covered the nightshift on 14 July 2016 and Mr Blair and Mr Gibson between them provided cover for the nightshifts for the following six weeks.

 

(10)       On 11 August 2016 Mr Carey asked the claimant to cover the nightshift from Monday 29 August 2016.  The claimant refused this request.  There was a conflict of evidence as to the conversation between the claimant and Mr Carey.  The tribunal found Mr Carey to be a credible and truthful witness.  The tribunal accepted that the claimant had replied “Naa” and when Mr Carey pointed out that he had said at interview that he would be flexible and could work shifts at short notice, the claimant responded that “It causes too much disruption at home and my wife couldn’t handle it”.  The claimant then turned away from Mr Carey returned to his duties and the conversation ended.  The tribunal specifically rejects the claimant’s assertion that Mr Carey stormed off when he mentioned his family circumstances.  The tribunal is satisfied that the claimant did not in fact mention his family circumstances on this occasion or that the notes made by him were an accurate record.  Similarly, the tribunal did not accept that the claimant had had a conversation with Mr Carey on a previous occasion in July 2016 in which he allegedly told Mr Carey that he had a disabled son.  Thereafter nightshifts were covered by Paddy Gibson and David Blair except for 30 September 2016 which was covered by the claimant.

 

(11)       Mr Wilson was away on holiday in Spain from 5 until 19 August 2016.  Mr Carey had to telephone Mr Wilson on 16 August 2016 for advice about how to deal with a system failure which caused loss of production on the national newspapers.  The tribunal accepted that their conversation was limited to this “event of dire emergency” and that the claimant was not discussed at all.  On 17 August 2016, Mr Wilson received an email from Ms Geraldine O’Reilly, Human Resources officer reminding him of the end dates of the probationary periods of claimant, (7 August 2016), Paddy Gibson and Frank Russell (both 6 July 2016).  Mr Wilson replied on the same date: “I am happy enough with Paddy and Frankie, I have concerns about Mark and will discuss with you and Yvonne on my return”.  Mr Russell and Mr Gibson were therefore both confirmed in their posts albeit after the expiry of their respective probationary periods and the claimant was not. 

 

(12)       Mr Wilson planned upon his return to extend the claimant’s probationary period due to concerns about his performance.  These concerns included two occasions around the end of March/beginning of April 2016 when the claimant pushed moveable steps into heavy metal bollards which were suspended by steel wire from the ceiling in a height restricted area.  Mr Wilson was concerned that this presented a risk of injury and damage to property.  He spoke to the claimant after the second occasion and asked him to refrain from doing this again.  The claimant told Mr Wilson that no-one had showed him where he could find stepladders.  Mr Wilson informed Mr Carey about these incidents who then mentioned to Mr Wilson that he had seen the claimant operating an electric pallet truck with one hand whilst holding a cup of coffee, which contravened acceptable operating and health and safety practices.  The claimant was not spoken to about this at the time.  On 18 July 2018 the claimant was assigned to run the SLS machine to insert an adjustmatic beds insert (“NIAGRA leaflet”) into two newspapers.  He was unable to get the insert to feed but did not report the difficulties to the Overseer.  Consequently, the production was delayed until 4am which was unprecedented.  Mr Wilson spoke to the claimant the next day who blamed the quality of the paper and said that this was a “bad ticket” and that he had been told that this had always caused bother.  Mr Wilson checked the next production of these inserts which ran on time with no production issues.  Mr Wilson subsequently informed the claimant that he disagreed that this was a bad ticket and that his view was that the problem was an operator error, in other words the claimant was to blame.  Mr Wilson was disappointed with the claimant’s performance and the failure to communicate the problems and his reaction when the issue was raised with him.  The tribunal accepted that these were genuinely held concerns about the claimant’s performance at this time.

 

(13)       When Mr Wilson returned from holiday on 21 August 2016 he learned from Mr Carey that the claimant had refused to cover the nightshift because it caused too much disruption at home and his wife could not handle it.  He expressed disappointment at the manner of the claimant’s refusal.  The claimant had a holiday week from 21 until 28 August 2016.  Mr Wilson met with Dominic Fitzpatrick, Managing Director and Mrs O’Rourke on 31 August 2016 and informed them of his intention to speak to the claimant about his performance and refusal to work the nightshift.  After this meeting Mrs O’Rourke emailed an extract from the claimant’s employment contract detailing his hours of work and shift information to Mr Wilson.

 

(14)       On 6 September 2016, Mr Wilson and Mr Carey radioed the claimant to come up to the meeting room to speak with them.  The claimant was not given advance warning of the purpose of the meeting nor that it was intended to be a formal probationary review.  Neither Mr Wilson or Mr Carey made a record of the discussion.  The claimant made an audio recording of this meeting without the knowledge or consent of his managers.  He said that he did this because Mr Wilson had the reputation of treating employees harshly and he wanted to keep himself right.  Mr Wilson asked the claimant why he had refused to work the nightshift.  He reminded him that at interview he had said he would be flexible and read out the extract from the claimant’s contract.  The claimant advised that his circumstances had changed and that working the nightshift would be extremely disruptive for his family due to the present situation at home.  He explained that he has two disabled sons, one of whom has rare form of epilepsy and requires monitoring at night.  He stated that at the time of the interview his son’s medical condition was under control but he had started to have more frequent seizures and required constant supervision.  He advised that he could not work a nightshift operation at the present time.  When asked when would he be available for the nightshift he responded, “How long is a piece of string?” The tribunal accepted that this was the first time that Mr Wilson and Mr Carey were made aware that the claimant has a disabled son and they simply sought clarification from the claimant about the reason given by him for not being available for the nightshift and asked further questions about his son’s disability and the care arrangements made by the claimant and his wife, including whether his wife worked.  Mr Wilson told the claimant that his probationary period would be extended because he could not offer the flexibility he had promised at interview.  The claimant indicated that at this point he could not say whether he would be available by mid October 2016 which was when he was next scheduled to cover the nightshift.  Mr Wilson indicated that he would consult with HR and get back to the claimant.

 

(15)       The claimant then asked Mr Wilson if he was happy with his work.  Mr Wilson responded that he was happy “to a degree” and said that the claimant was aware that he had concerns about the NIAGRA insert and “hammering the steps through the sealed off area”.  The claimant was clearly annoyed by this response and the meeting terminated shortly afterwards as the claimant said he was feeling stressed and felt that this meeting was “adding pressure to his existing circumstances”.  The tribunal listened to the recording of this meeting as well as reading the transcript.  It does not consider either that the claimant sounded stressed or upset during the meeting or that Mr Carey or Mr Wilson raised their voices or spoke to the claimant in an inappropriate manner or that they asked him inappropriate questions.

 

(16)       The claimant returned to his shift after the meeting.  He was angry and upset at the criticism of his performance and he made three mistakes during the production that day.  The tribunal concluded that the claimant had not expected the response given by Mr Wilson when asked if he was happy with the claimant’s performance because he had assumed his probationary period had already ended on 7 August 2016.

 

(17)       Afterwards Mr Wilson reported to Mrs O’Rourke what the claimant had told him during the meeting and that he had extended the claimant’s probationary period as he was not able to provide flexibility and due to ongoing performance issues.  He asked Mrs O’Rourke to send a letter to the claimant confirming this.  The tribunal did not consider that Mr Wilson’s use of an exclamation mark in email correspondence to HR, signified contempt and mockery for the claimant and his wife as carers for their son.  It was evident documentation that Mr Wilson routinely uses exclamation marks in other contexts not involving the claimant.

 

(18)       Mrs O’Rourke then sought advice about Interpress’ legal obligations towards the claimant given that he had told Mr Wilson that he was not currently available to provide nightshift cover because he had a disabled son.  From this she understood that there was no duty to make reasonable adjustments for the claimant as he was not himself disabled.  The tribunal accepted that Mrs O’Rourke herself only learned that the claimant’s son was disabled after being so informed by Mr Wilson.  Although Mrs O’Rourke had signed a form relating to the claimant’s claim for Carer’s Allowance in April 2016, the tribunal was satisfied that the information in the body of the form did not alert her to the fact that the claimant had a disabled son.  

 

(19)          Mrs O’Rourke wrote to the claimant on 14 September 2016 advising that his probationary period had been extended for a period of six months as his performance was “not of the standard required by the company” and that there was an expectation that his performance should improve.  She said that for example he should focus on the safe use of steps in height restricted areas, the safe use of the electric pallet truck and a general emphasis on good working practices.  She informed him that continued refusal to work the night shift may result in him not being confirmed in his post and asked him to confirm by 21 September 2016 that he was available to work nightshift.  A further meeting was arranged for 6 October 2016 to review his progress.  The claimant was informed that if he did not attain the required standard within the required timescale, Interpress may move to the next stage which could result in the termination of his employment.

 

(20)       On 15 September 2016 Mrs O’Rourke received a letter from Ms Lucy Donnelly, a social worker in the Children’s Disability Team dated 9 September 2016 which outlined the nature of the disability of the claimant’s son and its impact on his parents and family members, as carers, which she hoped would assist Interpress to understand why the claimant was “not always able to change his shift pattern”.

 

(21)       On 19 September 2016, the claimant wrote to Mrs O’Rourke objecting to extension of his probationary period on performance grounds and denying that he had refused to do nightshift, citing that he regularly worked his normal Sunday night shift.  He referred to the letter from Ms Donnelly which he said explained why he was not always able to change his shift patterns.  He requested a response before 6 October 2016.

 

(22)       Mrs O’Rourke and Mr Wilson met again with the claimant on 27 September 2016 to discuss his availability to work nightshifts.  Mrs O’Rourke explained that as the mother of a disabled son she was sympathetic to his situation and that Interpress could provide short term flexibility but that there was a need to meet business demands.  The claimant said he was unable to work nightshift except for the odd day.  Mrs O’Rourke asked him to think about his ability to be flexible and that they would discuss this with him further.  Mrs O’Rourke emailed a Carecall leaflet to claimant after the meeting.  The tribunal accepted that she did this out of genuine concern for the claimant and did not intend to cause the offence which the claimant said that this had caused him.

 

(23)       On 28 September 2016 the claimant wrote to Mrs O’Rourke.  He suggested it was “unreasonable that one refusal of shift change had resulted in the extension of my probationary period”.  He requested written information about the procedure for requesting shift change and record of response as he said this would clarify that he was “not being discriminated against”.  He also requested a copy of the grievance procedure and carers’ policy.  On 30 September 2016 the claimant worked the night shift having agreed to swap his normal Sunday night shift for the Friday night shift.  This was the claimant’s birthday and he arrived at 7pm, two hours early for the shift.  He contended that he was not informed that the nightshift started at 9pm deliberately to belittle and harass him.  The tribunal accepted that Mr Carey did not know off hand that it was the claimant’s birthday and that he had assumed the claimant was aware that the nightshift started at 9pm, as he had previously worked this shift on 24 June 2016.

 

(24)       The claimant, accompanied by Mr David Blair, met again with Mr Wilson and Mrs O’Rourke on 6 October 2016.  The need for flexibility and performance issues were discussed again.  Mrs O’Rourke informed the claimant that, although Interpress could accommodate the claimant on an emergency basis, if he was not able to work nightshifts outside of his normal working pattern when required, that consideration would have to be given to the termination of his employment.  It was agreed that the claimant would be provided with a list of nightshifts he would asked to work up until the end of the year and that that they would meet again in November/December to review the position.  Mr Blair indicated that he and Mr Paddy Gibson were prepared to cover the claimant, but they were not SLS operators at that time.  The claimant requested additional training on the mechanical trucks which Mrs O’Rourke agreed to organise.  Mr Wilson informed the claimant that he would be given the opportunity, in the absence of Mr Beggs, to run the inserter for the NIAGRA leaflet inserts again on 9 October 2016.

 

(25)       The claimant went on sick leave on 7 October 2016.  He submitted a fit note which certified him unfit for work for three weeks due to “severe anxiety”.  On 8 October 2016 Mrs O’Rourke sent the claimant a copy of the grievance policy.  She informed him there was no carers’ policy.  The claimant then requested a copy of the harassment policy.

 

(26)       The claimant raised a formal grievance by letter dated 12 October 2016.  He asked that this should be read in conjunction with his earlier letters of 19 and 28 September 2016.  A copy of the harassment policy was sent to the claimant on 13 October 2016.  The claimant sent a further fit note on 25 October 2016 certifying his absence for four further weeks, again for “severe anxiety”.

 

(27)       Mr O’Rourke, in her HR capacity, arranged for Mr Liam McMullan, IT Systems Manager of the Irish News to conduct the initial grievance hearing.  The grievance procedure provides: “Where a complaint relates to your immediate manager, the Grievance Procedure can be commenced either at the stage above that in which the manager would be involved or by approaching the HR department”.  The claimant’s grievance concerned his line managers, Mr Carey and Mr Wilson.   The Grievance Hearing took place on 8 November 2016.  The claimant agreed with Mr McMullen that his grievance involved three issues:

 

1.            That the meeting on held on 6 September 2016 was not a probationary performance review but had been called to discuss why he had refused to work the nightshift in August 2016.

 

2.            That the claimant did not believe that there was a valid reason to extend his probationary period and he disputed the examples given of unsatisfactory performance, namely the use of ladders and forklift trucks.

 

3.            That at the progress review meeting, an additional example of unsatisfactory performance was raised, namely the NIAGRA insert, which the claimant disputed was an operator error but was rather a mechanical issue and therefore not a valid reason to extend the probationary period.

 

Mr McMullan discussed these issues in detail with the claimant.  The claimant refuted that the examples given were evidence of poor performance and objected strongly that his probationary period should have been extended, ostensibly outside the six-month period specified in his contract.  The claimant complained that his name had been “blackened”.  He alleged that Mr Wilson had asked personal and intrusive questions about his wife’s employment status and about his son’s medical condition and his care.  The claimant did not inform Mr McMullen that he had recorded the meeting or offer him a transcript.  The claimant also informed Mr McMullan that his son’s condition had improved and that he would be available for nightshifts “going forward”.  During this meeting the claimant made no allegation that he was being discriminated against on the grounds of having a disabled son.  The claimant confirmed to the tribunal that he felt that Mr McMullan had dealt with him fairly and heard what he had to say.

 

(28)       Mr McMullan then carried our further investigations.  He interviewed Mr Wilson and Mr Carey, inspected the batch of inserts, checked the machine activity reports and reviewed documents.  He found that the performance issues relating to the ladders, pallet truck and the NIAGRA insert did occur.  He therefore concluded that the extension of the claimant’s probationary period was justified on grounds of failure to work the nightshift and instances of unsatisfactory performance, particularly regarding health and safety.  He acknowledged that the claimant did not receive written notification of the meeting and that it was convened to discuss why he had refused to work nightshifts in August 2016, but this then led to discussions about the claimant’s performance.  He therefore decided it was appropriate to reduce the probationary extension period from six to three months.  He pointed out that as the claimant had already completed three weeks, he only had another nine weeks of the extended probationary period to complete upon his return to work.  His view was also that the practice regarding probationary periods was “ad hoc”.  Therefore, as part of the outcome, he recommended that there should be a review carried out of the processes followed by Interpress when a probationary period was coming to an end.

 

(29)       Mr McMullen wanted to meet the claimant again to discuss this outcome and hopefully to resolve any outstanding issues to get the claimant back to work given he had indicated his ability to work nightshifts.  The claimant said he was happy to meet but wished to see the outcome letter first.  This was emailed to the claimant on 1 December 2016.  The claimant responded that he not in a position to meet the next day as he wished to study the outcome letter in detail.  No such meeting took place as the claimant appealed by letter of 2 December 2016.  His grounds of appeal were that no performance review meetings had been held with him and therefore that his probationary period had ended on 7 August 2016 as nothing to the contrary had been indicated to him prior to this date.  He disagreed with Mr McMullan’s conclusions that there had been shortcomings with his performance in relation to the ladders, forklift truck and the NIAGRA insert.

 

(30)       Mrs O’Rourke was informed about the claimant’s grievance appeal.  She arranged for the grievance appeal to be heard by Mr John Brolly, Marketing Manager in the Irish News.  The grievance appeal meeting was arranged for 12 December 2016. 

 

(31)       Mrs O’Rourke was also monitoring the claimant’s attendance as he remained on sick leave.  On 5 December the claimant lodged a further fit note certifying him as unfit for a further six weeks due to severe anxiety.  Documentation later obtained by the claimant through a Freedom of Information request shows that on 7 December 2016 Mrs O’Rourke cancelled an appointment which had previously been provisionally booked for the claimant to be seen by Dr McCrea, an Occupational Health consultant.  She now felt this was unnecessary as Interpress was not trying to establish if the claimant had a disability.  The claimant’s case was that the appointment was cancelled because Mrs O’Rourke believed that the time it would take to obtain the OH report might take him past one year’s service when he would acquire unfair dismissal rights.  Mrs O’Rourke had also requested details of the claimant’s gross and net salary on 30 November 2016.  As the claimant had by then been absent for ten weeks, she invited him to an Absence Review Meeting on 7 December 2016 which was rescheduled to 14 December 2016 as the claimant said he was not fit to attend on the earlier date as his health had deteriorated due to the ongoing grievance process.

 

(32)       The claimant attended the grievance appeal meeting on 12 December 2016.  He chose to be unaccompanied.  Mr Brolly was accompanied by Mrs O’Rourke as Notetaker and in an HR capacity.  The claimant did not object at the time to Mrs O’Rourke being present.  The claimant initially told Mr Brolly that he did not have anything to add to his letter of appeal, but after prompting, engaged in a lengthy discussion about the performance issues and the probationary period extension.  The tribunal did not accept the claimant’s evidence that Mr Brolly questioned him in a “bullying and harassing” style.  Again, the claimant did not disclose his recording of the meeting of 6 September 2016.  He confirmed that he could cover nightshifts “as and when required” and agreed that flexibility was required in a production environment.  At this point Mrs O’Rourke became an active participant in the meeting and told the claimant there was good news about a new contract secured by Interpress and that there would be a new shift pattern which she explained to him.  The claimant initially confirmed his availability to work the shift pattern but then asked if he could get back to her about it.  The tribunal did not accept that Mrs O’Rourke insisted that the claimant give an immediate answer there and then.  She told him to take his time.  Mrs O’Rourke also asked the claimant how he saw his grievance being resolved.  He responded that he felt his name had been blackened and that he wanted his probationary period to be over.  She then asked him what was preventing him from returning to work? The claimant responded the process was making him ill, he was not sleeping and had severe anxiety.  He said he would consult his GP about returning to work on the expiry of his current fit note in January 2017.  After the grievance appeal meeting Mr Brolly reviewed file notes, carried out a site visit at Interpress, examined insert reports and interviewed both Mr Wilson and Mr Carey.

 

(33)       On 13 December 2016, the claimant emailed Mrs O’Rourke to advise he would not be attending the absence review meeting.  He was annoyed that Mrs O’Rourke had asked him questions the previous day and told her that he had given all the required information about his attendance at the grievance appeal meeting.  He confirmed that would be able to facilitate changes to his shift patterns when certified fit for work by his GP.  Mrs O’Rourke attempted to rearrange the absence review meeting for 15 December 2015 but the claimant said he could not attend due to ill health caused by the issues raised in his grievance.  He stated that a satisfactory outcome of his grievance procedure would allow him to return to work.

 

(34)       On 16 December 2016, Mr Brolly wrote to the claimant to advise that the outcome of the grievance appeal was that the decision to extend the claimant’s probationary period for further 3 months has been upheld as reasonable and warranted in the circumstances.  He advised the claimant that there was no further right of appeal.

 

(35)       On 20 December 2016 the claimant wrote to Mrs O’Rourke challenging Mr Brolly’s assertion that there was no further right to appeal.  The grievance policy states that the third stage of appeal should be conducted by the Managing Director who should hold a meeting with the appellant.  There is no express provision for the Managing Director to delegate this task.  The decision of the Managing Director is final.

 

(36)       Mrs O’Rourke emailed the claimant to clarify that the meeting with Mr McMullen on 8 November 2016 had been initiated at Stage 2 of the Procedure due to the complaint being about his line manager and the meeting with Mr Brolly was therefore the third and final stage of the procedure.  She asked him to contact her on 5 January 2017 to advise if he anticipated returning to work when his current fit note ended on 13 January 2017.  The claimant then wrote on 23 December 2016 to Mr Dominic Fitzpatrick, the Managing Director, as he disagreed with Mrs O’Rourke’s interpretation of the grievance process.  He alleged that he could provide further evidence to prove the suggestions of unsatisfactory performance levelled against him were inaccurate.  He did not specify the nature of this further evidence in his letter.  Mr Fitzpatrick, who had been away on business, asked Mrs Valerie Gourley, Head of Group Development, on 11 January 2017 to review the outcome of the grievance and sent her a copy of the claimant’s email setting out his concerns.  It was not clear to the tribunal why Mr Fitzpatrick could not have conducted an appeal himself in accordance with the stated grievance procedure, thus avoiding any unfairness to the claimant.  On 10 January 2017 the claimant submitted a further fit note for a further 42 days with an expiry date of 17 February 2017.

 

(37)       Mrs Gourley, who no longer works for the Irish News, reviewed a file of papers provided by HR but told the tribunal that she could not recall this with any detail due to the lapse of time and also because she had not had an opportunity to review the documentation.  She did not meet with the claimant.  She wrote to the claimant on 18 January 2017 that the grievance procedure had been “correctly implemented” and that outcome was fair.  She also recommended that the claimant might benefit from training should he complete the extended probationary period and that he should be encouraged to avail of support services which had been offered to him.  The claimant subsequently emailed Mrs Gourley and Mr Fitzpatrick objecting to the outcome of the review.  He was critical of Mrs Gourley for not contacting him to request the additional information referred to in what he referred to as his Stage 3 referral letter.  He now identified that information as being a transcript of the meeting of 6 September 2016 and a screen report of the production run on 19 September 2016 showing all the stops and jams caused by the inserts.  No further response was sent to the claimant in this regard.  It was clearly regarded by Interpress that the grievance process had now come to an end.

 

(38)       Following receipt of the claimant’s latest fit note, Mrs O’Rourke appointed Ms Sinead Cavanagh, Sales Operations Manager, to conduct a probationary review meeting with the claimant to investigate an allegation of unsatisfactory attendance.  It appears to the tribunal that from in or about December 2016, Mrs O’Rourke had anticipated that a process would be initiated at the conclusion of the grievance, to deal with the claimant’s absence, if continuing at that stage.  Mr Doran confirmed that he had been approached by Mrs O’Rourke in December 2016 to be on the appeal panel.

 

(39)       Ms Cavanagh wrote to the claimant on 20 January 2016 to invite him to a probationary review meeting on 24 January 2017.  Prior to this she read the claimant’s personnel file which contained his contract and fit notes.  She knew that he had raised a grievance, which she understood had been completed, but she did not have a copy of the documents relating to the grievance. She informed him that a possible outcome could be the termination of his employment and of his right to be accompanied by a work colleague or trade union representative.  She advised that the meeting may proceed in his absence and that he could submit written representations if he did not attend.

 

(40)       On 23 January 2017 the claimant emailed Ms Cavanagh that he was unable to attend the Probationary Review meeting.  He followed this up the same day with a letter in which he complained to Ms Cavanagh about lack of notice and that he is unwell and certified as unfit to work.  He informed her that he had initiated a Data Protection Subject Access Request and hoped to receive a response before the end of his current fit note “allowing me to resolve the outstanding issues and be fit to return to work”.  Mrs Cavanagh copied this to Mrs O’Rourke who referred her to the company’s legal advisers.  The claimant did not attend the performance review meeting on 24 January 2017 and Mrs Cavanagh decided to proceed in his absence rather than reschedule the meeting.  She did not consider it necessary to obtain a medical report to assess whether his attendance was unsatisfactory.  At this point she ascertained that he had been in work for 35 weeks and absent for 16 weeks.  She considered that there were three possible outcomes of her review – (a) confirming him in his employment, (b) extending the probationary period or (c) terminating his employment on notice.  She decided that his level of absence during his probationary period was unsatisfactory and to terminate his employment on notice.  She then wrote to the claimant on 27 January 2017 advising him that his employment was terminated with effect from 26 January 2017 with payment of in lieu of one week’s notice.  The claimant was advised of this right to appeal.

 

(41)       The claimant appealed against his dismissal by letter dated 30 January 2017.  He contended that his dismissal constituted victimisation for having raised a grievance and complained about his treatment.  He stated that his inability to work the nightshift in August 2016 was due to having a disabled child and he suggested that the timing of the probation review meeting and his dismissal was to ensure he did not have the one year qualifying period necessary for a claim of unfair dismissal.  The appeal was duly referred to Mr Doran who said he read Ms Cavanagh’s notes and the documents relating to the recruitment and grievance process before dealing with the appeal.

 

(42)       Mr Doran wrote to the claimant on 2 February 2017 inviting him to an appeal hearing on 8 February 2017.  The claimant replied on 6 February 2017 that he could not attend the appeal hearing due to medical advice and because the short notice did not give him enough time to arrange to be accompanied.  He said he would send written representations to Mr Doran.  The claimant alleged that he had been discriminated against by his employer on the grounds of disability by association and that the termination of his employment was rushed through to ensure that he had less than one year’s service.  Mr Doran wrote to the claimant on 15 February 2017 rearranging the appeal hearing for 22 February 2017 after his sick line had expired

 

(43)       The claimant again replied that he would not be attending on 22 February 2017 on medical advice, that he had already provided reasons for his appeal and his view that the termination of employment was inextricably linked to the grievance process.  He invited Mr Doran to email him specific questions and that he would provide a written answer.

 

(44)       On 23 February 2017 Mr Doran wrote to the claimant posing questions and the claimant gave his answers (shown in bold below) in a letter dated 25 February 2017 as follows:

 

“1.       Do you believe that no other employee, with similar absence during their first year of employment would have been dismissed if they were not the carer of a disabled child?”

 

            Answer: I have no knowledge of other employees and their first year of employment.

 

2.         If so, what makes you think that being the carer of a disabled child had any bearing on the decision to dismiss you?

 

            Answer: Not applicable.

 

3.         Can you identify who you believe was treated more favourably than you in relation to the decision to dismiss you?

 

            Answer: The decision to terminate my contract was unsatisfactory attendance.  I do not have any information on other employee attendance records.

 

4.         Do you believe that your probationary review period was extended on the grounds that you are a carer of a disabled child?

 

            Answer: Yes

 

5.         If so, what makes you think that being the carer of a disabled child had any bearing on the decision to extend your probation period?

 

            Answer: I was unable to facilitate one shift change due to having a child with a disability.  I raised that point at the stressful and unpleasant meeting of 7 September 2016.  This resulted in a decision to extend my probationary period, subsequent grievance and ultimate dismissal.

 

6.         Can you identify who you say was treated more favourably than you in relation to the extension of your probationary period?

 

            Answer: Yes.”

 

In his letter the claimant also objected to what he alleged were the “unreasonable” timescales imposed by Mr Doran for him to respond.

 

(45)       Mr Doran wrote to the claimant on 7 April 2017 advising him of the appeal outcome.  He said the delay was caused because of political developments in Northern Ireland.  The tribunal accepted that although Ms O’Reilly “pp’d” the letter, the appeal decision was made by Mr Doran.  He considered that the claimant’s absence from 7 October 2016 until 27 January 2017 was at an “unacceptable” level.  Having considered the relevant documentation, including the claimant’s answers to his questions, he decided that the claimant’s dismissal was “fair reasonable and non discriminatory given his significant level of absence.”

 

(46)       Interpress did not pay the claimant his notice pay until 9 June 2017.  The tribunal accepted Mrs O’Rourke’s evidence that this was due to an administrative oversight.  The claimant did not contact Interpress directly and Mrs O’Rourke only became aware of the issue when she received a copy of his claim form from the tribunal office.  The payment was then made promptly.  The claimant was sent his payslips on 3 April 2017.  It appears that there was a delay by the DSS in processing the claimant’s benefit claim.  The tribunal did not accept the claimant’s suggestion that the actions of his former employer caused delay in the payment of his benefits.  It was apparent that on 12 April 2017, Ms O’Reilly telephoned Castlecourt DSS because they were sending repeated requests for same information.  The claimant’s personal belongings were returned during April and May 2017.

 

(47)       The claimant lodged his originating claim with the Industrial Tribunal on 24 April 2017.  He claimed that from 11 August 2016 onwards he was directly discriminated against on grounds of his association with his disabled son, and was victimised, bullied and harassed contrary to the Disability Discrimination Act and European Law.

 

(48)       Interpress contended that claimant’s probationary period was extended because of issues of poor performance and that he was dismissed because of his protracted absence on sick leave and that it did not treat the claimant less favourably or subject him to harassment because he has a disabled son and that it did not treat him less favourably because he had lodged a grievance.

 

THE LAW

 

6.         The relevant statutory provisions are found within the Disability Discrimination Act 1995 as amended (“the Act”).

 

Meaning of Direct Discrimination

 

(1)          Section 3A(5) provides:

 

“A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”

 

Meaning of Harassment

 

(2)           Section 3B(1) of the Act provides:

 

“(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of —

 

(a)       violating the disabled person’s dignity, or

 

(b)       creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

 

(2)  Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”

 

(3)       Section 4(3)(a) of the Act provides:

 

“It is also unlawful for an employer, in relation to employment by him, to subject to harassment –

 

(a)          a disabled person whom he employs…”

 

Meaning of Victimisation

 

(4)          Section 55 of the Act provides:

 

“… a person (“A”) discriminates against another person (“B”) if —

 

(a)       he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and

 

(b)       he does so for a reason mentioned in subsection (2).

 

(2)     The reasons are that—

 

(a)       B has—

 

…

 

 (iii)     otherwise done anything under , or by reference to,this Act or Part III of the 2005 Order in relation to A or any other person; or …

 

(iv)      lleged that A or any other person has (whether or not the allegation so states) contravened this Act or Part III of the 2005 Order ; …”

 

Associative Discrimination

 

(5)            The European Court of Justice in the case of Coleman v Attridge Law LLP: C-303/06, [2008] IRLR 722, [2008] ICR 1128  held that 'associative discrimination' on the grounds of disability is unlawful.  In that case, Ms Coleman complained that she had suffered direct discrimination and harassment on the ground that she was the mother and carer of a disabled child.  In Coleman v Attridge Law LLP(No. 2), [2010] IRLR 10 the EAT held that the Act would be interpolated so as to give effect to the reasoning of the ECJ by adding a new subsection in the following terms:

 

“A person also discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person”. (direct discrimination);

 

and similarly in the case of harassment the following subsection:

 

“A person also subjects a person (A) to harassment where, for a reason which relates to the disability of another person (B) he engages in unwanted conduct which has the purpose or effect of:

 

(a)       violating the disabled person’s dignity, or

 

(b)       creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

 

Sub section (2) applies to this sub-section, save that the relevant perception is that of A.”

 

(6)          There is however no duty under the Act to make reasonable adjustments for non-disabled carers. 

 

 

(7)          Burden of Proof

 

Section 17A(1C) of the Act sets out the burden of proof in disability discrimination cases and provides:

 

“Where, on the hearing of a complaint, under sub-section (1), the complainant proves facts from which the tribunal could, apart from this           sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves he did not so act.”

 

(8)          The Court of Appeal in the case of Nelson  v  Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof.   The court stated:

 

“22      The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23       In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

 

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

 

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.

 

24        This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

(9)          In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case.  It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof.  At Paragraph 19, Lord Justice Sedley stated:-

 

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal.  In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire.  In other instances it may be furnished by the context in which the act has allegedly occurred.”

 

(10)       In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

“(71)    There still seems to be much confusion created by the decision in Igen v Wong.  What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

…

 

(73)     No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages.   But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

…

 

(75)     The focus of the Tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a Tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

 

(76)     Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling tribunals in every case to go through each stage.”

 

The Comparator

 

(11)     The comparator in cases of direct discrimination is someone whose circumstances are the same or not materially different from those of the claimant but who does not share the protected characteristic.  The comparator may be actual or hypothetical and in direct disability discrimination cases is someone who is not disabled, or who did not have the same disability as the claimant.  (London Borough of Lewisham v Malcolm [2006] IRLR 701.   Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator.

 

(12)     However it is open to the tribunal to focus on the reason for the claimant’s treatment; “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was.  Was it on the proscribed ground which is the foundation of the application?  Or was it for some other reason?  If the latter the application fails.  If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”  Per Lord Nicholls at Paragraph 11 Shamoon -v- Chief Constable of the RUC [2003] IRLR 285.

 

 

CONCLUSIONS

 

7.         The tribunal applied the legal principles to the facts found and reached the following conclusions:

 

Direct Discrimination

 

(1)          The tribunal does not consider, on the facts found above, that the claimant has discharged the burden of establishing such facts from which it could infer that the claimant has been treated less favourably by reason of the disability of his child.  The tribunal does not consider that Mr Beggs is the correct comparator.  His circumstances were not materially the same as those of the claimant.  The tribunal considers that the correct comparator is a hypothetical comparator who like the claimant had indicated that he was unable to provide cover for the nightshift and about whom there were performance concerns, who had gone on protracted sickness absence after raising a grievance.  The hypothetical comparator does not have a disabled child.  The facts found do not suggest that the hypothetical comparator would have been treated more favourably.

 

(2)          In any event it is evident from the facts found that the reason why the claimant’s probationary period was extended was due to genuinely held concerns about his performance, which included his refusal to work the nightshift in August 2016, and his subsequent representation to his employer that he was unable to work the nightshift for an unspecified period.  At the time of the decision to extend his probationary period Mr Wilson was unaware that the claimant had a disabled child.  At the grievance appeal stages, the extension of the probationary period (for a reduced period) was clearly linked to performance issues, by which time the claimant had indicated to his employer that he was now able to provide cover for the nightshift, subject to his own ability to return to work.  The tribunal does not consider that there is any basis for the claimant’s contentions that the conduct of the meeting on 6 September 2016 and the subsequent grievance and attendance management processes were directly discriminatory in the sense that the hypothetical comparator would have been treated more favourably.  Furthermore, the reason why the claimant was ultimately dismissed was solely down to his lengthy absence due to sickness and for no other reason.

 

(3)          Interpress may well have been motivated to dismiss the claimant before he completed one year’s service and acquired unfair dismissal rights.  However this and any other procedural shortcomings by Interpress in the handling of the claimant’s probationary period and in dealing with his grievance and the processes leading to his dismissal are considered by the tribunal to be matters of unfairness rather than evidence of discriminatory behaviour.

 

Harassment

 

(4)          The tribunal cannot conclude from the facts found that the claimant was subjected to harassment by various servants or agents of Interpress.  The transcript and recording of the meeting of 6 September 2016 do not support the claimant’s contention that Mr Wilson or Mr Carey asked inappropriate questions either in tone or content.  They were entitled to seek clarification of the reason that had been offered by the claimant as to why he was unable to work the nightshift and performance matters.  The tribunal is satisfied that the reason for Mr Wilson’s decision to extend his probationary period was accurately communicated to the claimant in the letter of 14 September 2016 and that this did not constitute an attempt to intimidate or harass the claimant.

 

(5)          He was treated with dignity and respect by Mr McMullan and Mr Brolly during the grievance process and by Mrs O’Rourke during the course of meetings she attended with the claimant.   The tribunal accepted that at the grievance appeal meeting held on 12 December 2016, Mrs O’Rourke’s intention was simply to clarify when the claimant thought he would be able to return to work given his indication that he could now do additional nightshifts and to assist him back to work.  The tribunal does not accept that there was any intention by Mrs O’Rourke in raising these matters nor in giving him the Carecall leaflet, to intimidate or harass the claimant.  At the dismissal appeal stage, the tribunal considers that Mr Doran was entitled to seek clarification of the claimant’s assertion at that point that he had been subjected to associative discrimination.  Mr Doran was acting upon the claimant’s own suggestion when he sent him the written questions to which the claimant responded voluntarily.

 

(6)          If there were procedural shortcomings by Interpress in implementing its own probationary policy and three step grievance procedure, the tribunal is of the view that these were matters of unfairness but did not satisfy the statutory definition of harassment.

 

(7)          The tribunal concludes that insofar as the claimant’s own view is that these matters had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, that view is not reasonable.  The Tribunal therefore dismisses the claimant’s claim of harassment by reason of the disability of his son.

 

Victimisation

 

(8)          The tribunal has already found that the reason for the claimant’s dismissal was because of his sickness absence.  This decision was not connected in any way to the fact that he that he had raised a grievance against Interpress.  The tribunal considers, in relation to the other treatment both prior to and subsequent to his dismissal, and which was alleged by the claimant to be victimisation, that it has not been established that the hypothetical comparator who had not raised a grievance would have been treated any differently.  The tribunal’s conclusions as to the reasons for this other treatment has been set out already in the foregoing paragraphs.

 

(9)          The claimant has therefore not established facts from which the tribunal could infer that he has been subjected to direct discrimination or that he was harassed or victimised and the Tribunal dismisses his claims in their entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing:       13 – 17 August 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: