FAIR EMPLOYMENT TRIBUNAL

CASE REF:	56/04FET
355/04

CLAIMANT:			James Neil Rogers		

RESPONDENTS:		1.	Dunnes Stores (Bangor) Limited
2.	Gerry McLornon
                                                          		3.	Paul Loughran 
	                                                      	4.	Stephen Kennedy 
                                 	5.	Claire McPeake	

DECISION

The unanimous decision of the Tribunal is that the claimant’s claim of unlawful discrimination on the grounds of his religious belief contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 is dismissed.

The second, third, fourth and fifth respondents were dismissed as parties from the proceedings.

Constitution of Tribunal:

Chairman:			Ms J Knight

Panel Members:		Mr J Barbour
			           Mr J McCormick

Appearances:

The claimant was represented by Mr Brian McMurray (Advocate Belfast Citizen’s Advice Bureau).

The respondents were represented by Mr Connor Hamill, Barrister-at-Law, instructed by Tughans Solicitors.	

Issues

The issues for the Tribunal were whether the claimant suffered unlawful discrimination by reason of his religious belief when he was dismissed from his employment by the respondent company, and; whether the ground of the claimant’s dismissal was a sham and whether he was dismissed as a result of publicity which arose as a result of a previous incident following from an instruction given to staff about the wearing of poppies on Remembrance Day. 

Evidence

The Tribunal considered the originating claim of the claimant, the respondents’ responses, the witness statements and oral evidence of the claimant, Mr James Neil Rogers, and the witness statements and the oral evidence of the respondents’ witnesses, Mr Stephen Kennedy, Ms Avril Stevenson, Mr Paul Loughran and Ms Claire McPeake.  The Tribunal considered the agreed bundle of documentation and CCTV camera footage.

The Tribunal heard evidence from the parties in relation to both liability and remedy.  The claimant had prepared a schedule of loss. It became apparent however that the claimant’s documentary proof of loss of earnings was incomplete and that it would not be possible for this to be obtained before the end of the time allocated for the hearing.  Therefore it was agreed at the end of the hearing and the Tribunal directed that the claimant should obtain the necessary documentation from his present employer and that the parties should endeavour to agree a Schedule of Loss to be sent to the Tribunal. The Tribunal would issue a decision in relation to the liability issues, after which a further hearing would be convened, if necessary, to address the issue of remedy.

Findings of Fact

After considering the evidence the Tribunal made the following findings of relevant fact:
	
1.	The correct respondent is Dunnes Stores (Bangor) Limited as the claimant’s former 
 employer. 

2.	The claimant, James Neil Rogers, a Protestant, was employed as security manager of the respondent’s Crumlin Road store in Belfast from in or about August 2003 until 10 January 2004 when he was dismissed for gross misconduct.  He was interviewed for his post by Paul Loughran, the respondent’s regional security manager for Northern Ireland, a Catholic, and Claire McPeake, a Human Resources manager, also a Catholic, in June or July 2003.  The claimant was duly appointed and took up his post in August 2003.  The claimant was employed as a police officer and subsequently held other security positions before taking up the post with Dunnes Stores.

3.	The Crumlin Road store was a new outlet of the respondent situated in an interface area and its staff and customers comprised members of both the Protestant and Catholic sections of the community.  The store opened for business in late August/early September 2003.The grocery manager, Stephen Kennedy, a Catholic, was the claimant’s direct line manager and the most senior manager in the Crumlin Road store.  The claimant was regarded as a key member of the store management team, which included Avril Stevenson, the Human Resources Manager of the Crumlin Road store, a Protestant, and Sheila Proctor, the Drapery Manager. 

4.	The claimant’s role was to manage security in the Crumlin Road store and his duties included ensuring the effective operation of in store security and safety equipment and the adequate supervision of movement of cash and carrying out any other duties and responsibilities as directed by the security or general/store manager.  He was responsible for supervising other security staff in the Crumlin Road store, one of whom was Mr James Couchman, a security officer.  Mr Couchman was employed by the respondent on a part time basis and had another security job with Lodge Security Services, a company which provided security services to the respondent. His line manager in Lodge Security Service was Mr Chris Williams.

5.	The claimant had regular contact with Mr Loughran who visited the store several times a week both before and after the opening of the store to the public in September 2003.  During these visits Mr Loughran liaised with the claimant about matters such as security equipment, tagging systems and employee training.  The claimant and Mr Loughran had a friendly and professional working relationship.  The respondent had added an ATM machine to the Crumlin Road store. A concern for the claimant and Mr Loughran was that this could increase the possibility of criminal gangs targeting the store. There were a number of security incidents after the opening of the store including an attempted robbery at knifepoint.

6.	Mr Kennedy wished to keep the Crumlin Road store free from sectarian tensions in the locality for the benefit of both staff and customers.  To this end he banned the wearing of football shirts by customers in the store and he decided that staff uniforms should be free from badges or emblems with the aim of avoiding causing offence to any section of the community.  

7.	One Friday morning in early November 2003 between 9am and 10am, Mr Kennedy asked two female members of staff if they would remove the poppies from the uniform as he did not wish any emblems on the uniform apart from a name badge.  Mr Kennedy telephoned his regional manager, Gerry McLornon, to advise him that the decision had been taken.  When the claimant learned of this, he followed Mr Kennedy to his office and asked him who had made the directive.  The claimant stated that some one could get hurt or killed as a result of the directive but that Mr Kennedy simply brushed him off.  The claimant gave evidence to the Tribunal that Mr Kennedy directed him to instruct members of security staff about the wearing of poppies.  He said that he found this offensive because his own grandfathers and father had fought in the Great Wars and attended Remembrance services.  He did not communicate the basis of his objection to Mr Kennedy. The Tribunal found the claimant’s evidence to be contradictory on this point and accepted Mr Kennedy’s evidence that he did not direct the claimant to instruct staff that they could not wear poppies. 

8.	Later that day Mr Kennedy received telephone calls from local politicians who advised him that they considered his decision infringed the right of staff to wear poppies at work.  Mr Kennedy left for a week’s holiday on Saturday afternoon.  While he was on leave a newspaper article appeared on the Tuesday about the wearing of poppies in the Crumlin Road store.  The claimant was shown a copy of this report and told the Tribunal that he inferred from this that other managers, including Mr Kennedy, were suggesting that he had contacted the media.  These events were referred to as “the poppy incident”, during the hearing.

9.	In his absence, the respondent’s head office overruled Mr Kennedy and allowed staff members to wear poppies if they wished.  When Mr Kennedy returned to work the following Monday the poppy incident was not mentioned again.  The Tribunal was satisfied that the claimant would probably have discussed the poppy incident with Mr Loughran, given the nature of their working relationship with the claimant and the fact that this was such a major issue in the store at the time.  The claimant wore a poppy in work after the decision was reversed.  

10.	On Sunday 4 January 2004 at approximately 6pm, the claimant was on duty when an incident occurred between him and Mr Couchman.  The claimant told the Tribunal that he had asked Mr Couchman several times to close the void (a stock room space) and the shutters at the front of the shop.  The ATM machine had to be refilled with cash and the claimant wished to secure the store.  The claimant told the Tribunal that Mr Couchman repeatedly ignored this instruction and instead stood near the kiosk talking to Diane Montgomery, a part time general sales assistant. The claimant who walked towards Mr Couchman with both arms outstretched and saying “talking, talking always talking”, at the same time making talking gestures by opening and closing his hands. 

11.	The incident was captured by a CCTV camera and the Tribunal viewed this footage.  It was not possible for the Tribunal to discern whether the claimant actually head-butted Mr Couchman due to the camera angle and the speed of the footage, even when slowed down.  However the claimant can be seen approaching Mr Couchman in an aggressive manner and there is undoubtedly physical contact between the two men.  Contrary to the evidence of the claimant Mr Couchman cannot be seen squaring up to the claimant and clenching his fists as if about to strike the claimant. Diane Montgomery was present but was turned away from the two men.  Mr Couchman then went to a telephone beside the kiosk and said he was phoning the police as he had been assaulted by the claimant.

12.	As he was making the telephone call, he called to Avril Stevenson who was leaving the store.  He then told her that the claimant had head butted him and that he had reported the matter to the police.  Both the claimant and Mr Couchman were shouting at one another.  She asked them both to go with her to her office to discuss the matter but Mr Couchman refused to do so and said that he would talk to her in the morning.  Ms Stevenson observed that James Couchman had a red mark on his forehead.  Avril Stevenson informed Sheila Proctor, the other senior manager on duty that day, of the incident between the claimant and James Couchman.  They both went to speak with James Couchman and he advised them that he had been assaulted by the claimant.  Later that evening Mr Couchman went accompanied by Chris Williams, to Grosvenor Road Police Station to make a formal statement of complaint.  He stated that he had did not sustain injury as a result of the assault.  The claimant has not been prosecuted as a result of this incident. 

13.	The following day Mr Couchman complained to Stephen Kennedy that he had been assaulted by the claimant.  The claimant was not on duty that day.  Mr Kennedy informed Gerry McLornan and Paul Loughran about this complaint.  Mr Loughran was tasked to investigate the complaint.  He discussed the complaint with Mr Kennedy and viewed the CCTV footage.  He formed the view that the CCTV footage supported Mr Couchman’s version of events.  He telephoned Mr Williams and discussed the incident with Avril Stevenson and Sheila Proctor.  Later that day he interviewed James Couchman in the presence of Stephen Kennedy.  Mr Couchman confirmed his allegation that the claimant had head butted him and advised that he had made a complaint of assault against the claimant to the police.  He said he would never trust the claimant again.  He gave Mr Loughran the names of people who may have witnessed the incident and a copy of the statement he had made to the police.  

14.	When the claimant returned to work on 6 January 2004, he was asked by Mr Loughran to attend an investigatory meeting.  Avril Stevenson was also present and took notes.  Mr Loughran explained to the claimant that the purpose of the meeting was to investigate Mr Couchman’s complaint and to obtain the claimant’s explanation of what had happened.  Mr Loughran informed the claimant of the nature of Mr Couchman’s complaint.  The claimant denied the allegation and informed Mr Loughran that he had received no contact from the police.  Mr Loughran took a statement from the claimant.  He decided that he would require more time to complete the investigation and informed the claimant that he intended to speak to Diane Montgomery as she may have witnessed the incident.  

15.	Mr Loughran and Ms Stevenson discussed Mr Loughran’s need for more time to complete his investigation.  She formed the view that to enable Mr Loughran to complete his investigation and due to the seriousness of the allegation it would be appropriate to suspend the claimant.  Mr Loughran was in agreement as from the information that he had at that point including CCTV footage, Mr Couchman appeared to be the innocent party and therefore it would be better if the claimant was “off site”.  Mr Loughran stated that the allegation was very serious and had to be investigated.  The claimant indicated that he understood that the allegation had to be investigated.  He was issued with a suspension notice confirming that he was to be suspended on full pay pending an investigation into an alleged incident of “gross misconduct threatening and intimidating behaviour, use of physical violence against another employee”.  The notice required the claimant to return to the store on Saturday 10 January 2004 at 10am for a further meeting with management. 

16.	The claimant was not provided with a copy of the respondent’s disciplinary policy. He was not referred to the policy which The Tribunal was told was displayed in perspex holders in the staff room or the staff handbook which contains the respondent’s disciplinary and dismissal procedures are contained in the staff handbook.  This sets out “a procedure for the purpose of Section 14 of the unfair dismissal Act 1977”. (sic). It does not provide examples of minor, major and gross misconduct and there is no reference to the relevant legislation which applies in Northern Ireland.

17.	Mr Loughran interviewed Diane Montgomery on 7 January 2004.  She confirmed that she seen the claimant approaching Mr Couchman and gesturing into his face.  She did not witness any physical assault but she heard James Couchman say “Don’t do that, please don’t do that” and a “commotion” as if someone had been hit.  She confirmed that she had seen a red mark across James Couchman’s forehead and that he had lifted the telephone and said that he was going to call the police and make a complaint of the assault.  Mr Loughran asked other managers to retain their own notes and accounts of the incident.

18.	Around lunchtime that day, Mr Loughran received a telephone call from the claimant’s wife, Mrs Tracey Rogers.  She told him that her husband was unaware that she was making the telephone call and that there was no proof that the incident had occurred.  Mr Loughran told Mrs Rogers that it was not appropriate for him to comment as the matter was still under investigation but that he had considered that she had made a number of incorrect assumptions.  Mrs Rogers asked him not to disclose their telephone conversation to her husband but that she felt that it was important that he knew that her husband was devastated to be accused in this way and that the accusation had ruined their life.

19.	The disciplinary meeting took place on 10 January 2004 as previously arranged.  The claimant was accompanied by his wife.  Mr Paul Loughran, Stephen Kennedy and Avril Stevenson were present on behalf of the company.  Ms Stevenson’s role at the meeting was to provide advice and to take notes.  Ms Stevenson explained to the claimant that Mr Loughran had completed the investigation and that the claimant was entitled to representation at that meeting.  She was not part of the decision making process.  The claimant asked if his wife could be present and she was brought into the training room.  Mr Loughran informed the claimant that he had spoken to James Couchman and that statements had been taken from Diane Montgomery, Avril Stevenson and Sheila Proctor.  The claimant was advised as to the content of the statements but was not provided with copies of them.  Mr Loughran advised the claimant that he had a copy of the statement made by James Couchman to the police but he did not provide a copy of this to the claimant.  Mr Loughran then asked the claimant a number of questions and the meeting was adjourned for a short break.  

20.	During the break, Mr Loughran prepared a summary of his conclusions which were that an incident did occur between a member of staff and a manager in a senior position and that the claimant had made a verbal attack on Mr Couchman causing him embarrassment, belittling and threatening him.  He further concluded that the use of threatening behaviour did result in physical contact whether intentional or otherwise which resulted in that employee reporting a violent assault to the police.  He considered that Mr Couchman’s account had been corroborated by the evidence of Diane Montgomery and Avril Stevenson.  Accordingly, he advised Steven Kennedy that he was of the view the incident did occur as described by James Couchman.  The meeting was then reconvened and Mr Kennedy informed the claimant that due to the evidence he was left with no alternative but to terminate the claimant’s employment with immediate effect.  Mr Loughran then asked the claimant if he would like to see the CCTV recording.  The claimant, Mr Loughran and Stephen Kennedy went into the security room and viewed the video.  When they returned, the claimant’s wife asked if she could see the recording and she was taken the security room where she viewed the tape.  The meeting then ended. 

21.	After this meeting the claimant sought advice from a Mr Ken Steenson and on his advice, he wrote to Gerard McLornan on 12 January 2004 requesting an appeal against the decision to dismiss him.  Mr McLornan responded by letter dated 21 January 2004 asking him to attend a meeting on the 29 January 2004.  The claimant attended this meeting accompanied by Mr Steenson. Mr McLornan and Ms McPeake were present on behalf of the company.  At the outset, Mr McLornan asked Mr Steenson to explain who he was.  Mr Steenson said that he was from a “concerned group” and was an ex-colleague of the claimant. He said that he knew the claimant in private capacity and that he was only here to help him.  Ms McPeake advised Mr Steenson that the claimant was entitled to have a companion to accompany him to the meeting but that person must be either a fellow worker or a member of a trade union.  Mr Steenson disagreed and stated that the claimant was entitled to have any person of his choice with him at the meeting. A discussion ensued between Mr Steenson and Ms McPeake as to who the claimant was entitled to have at the present at the meeting to represent him.  

22.	The claimant was looking unwell.  When Mr McLornan asked the claimant how he was feeling, Mr Steenson replied that the claimant was incapable of putting forward his case and that Mr Steenson would be putting his case forward for him.  Mr McLornan suggested it would be best to adjourn the meeting to a more suitable time when the claimant was capable of speaking for himself.  The claimant then produced a packet tablets out of his pocket, saying that he was on diazepam and that he was not feeling himself.  Mr Steenson pushed a file pad over the claimant and said “OK James, I will instruct you on what to say.”  A discussion then ensued between Mr McLornan and Mr Steenson as to whether the claimant was fit to proceed with the appeal meeting.  At 2.45pm Mr McLornan adjourned the meeting for a few minutes so that he could liaise with Ms McPeake.  

23.	When the meeting reconvened, Mr Steenson advised Mr McLornan and Ms McPeake that the claimant intended to lodge a complaint with the Equality Commission for Northern Ireland and that the Labour Relations Agency had advised him earlier that the claimant could have anyone of his choice to attend the meeting with him.  He stated that this was the third time that the claimant had been refused representation and that he was surprised that Dunnes Stores were not taking an opportunity to deal with the issue of discrimination.  He then said “Come on, James, we are going” and both Mr Steenson and the claimant stood up to leave. Mr McLornan stated that he hoped to see the claimant soon when he was feeling better.  The meeting closed at 3pm.  

24.	On 3 February 2004, Mr McLornan sent a letter to the claimant asking him to make contact to re-arrange a further meeting at a time and date that suited him.  The claimant replied by a letter dated 6 February 2004 advising that he awaiting advice from the Equality Commission for Northern Ireland as to how he should proceed.  He did not suggest another date. He raised an objection to Mr McLornan and Ms McPeake hearing the appeal.  Mr McLornan wrote again to the claimant on 25 February 2004 asking him to make contact to arrange an appeal meeting and the date and time of his choosing and that Ms McPeake would be in attendance.  He confirmed that as regional manager for Dunnes Stores Northern Ireland, he was the most suitable person to hear the claimant’s appeal.  A further appeal meeting was subsequently arranged for Friday 26 March 2004 at 10.30am.  The claimant attended accompanied by Mr Steenson.  Mr McLornan asked the claimant to tell him about the incident on 4 January 2004 and events leading up to the incident.  He said that he wanted to hear the claimant’s side to the story to help him make an informed decision.

25.	The claimant gave his version of the incident and stated that there was no physical contact between him and James Couchman.  He said that CCTV footage would prove that.  Mr McLornan asked the claimant whether there was any prior disagreement between the claimant and Mr Couchman.  The claimant responded that Mr Couchman seemed to have a particular problem with him a couple of weeks before the incident and that the claimant felt that Mr Couchman was over worked as he was working over seventy hours per week.  The claimant told Mr McLornan that he had had a meeting with Sheila Procter and Stephen Kennedy who had told him to keep and eye on Mr Couchman, as they were not sure about his honesty.  He described the particular difficulties facing him as security manager in the Crumlin Road store and that he felt that Mr Couchman had a problem with anyone in authority.  The claimant then again disputed that he had used physical violence towards Mr Couchman as he had not sustained injuries and also that no one had actually seen the alleged head butt.  The claimant pointed out that he has not seen the statement of Avril Stevenson.  Mr McLornan stated that he would now look at all the statements and speak to individuals and then he would make an informed decision.  The meeting ended at 11.20am. 

26.	The claimant lodged an originating claim with the Fair Employment Tribunal on 10 February 2004 alleging unlawful discrimination on the grounds of religious belief and at the same time served a statutory questionnaire on the respondent pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998.  His complaint was that the respondent had not followed company disciplinary procedures and that he had not been permitted representation during the investigation and the disciplinary and appeal hearings. He did not mention the poppy incident in either document. In both its response to the originating complaint and its response to the claimant’s questionnaire the respondent’s denied that the claimant was subjected to less favourable treatment on grounds of his religious belief and stated that he was dismissed on the ground of gross misconduct.  

27.	Mr McLornan carried out interviews on 31 March 2004 with Mr James Couchman with Avril Stevenson in attendance, Diane Montgomery, Ciara Murphy, Ciara Dillon and Nicola Mulvenna all of whom were on duty on the day of the incident.

28.	On 12 May 2004 Mr McLornan wrote to Mr Steenson enclosing copies of the statements taken by him and inviting the claimant to a further meeting on 21 May 2004.  The claimant declined this invitation and by letter dated 17 May 2004, Mr Steenson wrote to the respondent’s solicitor saying that he had nothing more to add and that the result of the appeal should be sent to him in writing.  His appeal was not upheld.
	
29.	At a Case Management Discussion of this case which took place on 15 September 2005, one of the issues identified was that the ground of the claimant’s dismissal is a sham and that he was dismissed as a result of publicity which arose as a result of a previous incident following from an instruction given to staff about the wearing of poppies on Remembrance Day. 

30.	The claimant told the Tribunal that after he was dismissed he tried to think of a reason why he had been dismissed.  The claimant told the Tribunal that he enjoyed his work with Dunnes Stores and it came as a complete shock to him when he was dismissed on 6 January 2004.  On the other hand he said that he felt shunned by other members of management after the poppy incident in November 2003 and 6 January 2004 and he felt that he had been dismissed because he had objected to the wearing of poppies in the store. In retrospect he considered that his views particularly in relation to security matters were not taken seriously by Mr Loughran and Mr Kennedy, even before the poppy incident. These matters were addressed by the parties in both their written and oral evidence to the Tribunal. 

31.	During the course of his oral evidence, the claimant withdrew his evidence in relation to his named comparators and said that he was not seeking to compare himself with anyone else.

	The Law

Direct Discrimination

Article 3(2) of the Fair Employment and Treatment Order 1998 provides that “a person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order, if –
(a) on either of those grounds, he treats that other less favourably than he treats or would treat other persons”.

Article 3(3) states “A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Article 19(1) provides “It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, - 
 (b) where that person is employed by him – 
(iii) by dismissing him or by subjecting him to any other detriment.”

	The Burden of Proof

	Section 38A of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) provides that:
 
“Where, on the hearing of a complaint under Article 38, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent ----
 
a.	has committed an act of unlawful discrimination or unlawful harassment against the claimant, or
 
b.	is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the claimant,
 
c.	the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act”.

The burden of proof regulations apply in relation to complaints presented to (but not determined by the Tribunal by) the Tribunal before 1 October 2004 as well as those presented on or after that date and therefore apply to the instant case. The Tribunal considered and applied the guidance of the Court of Appeal in the case of IGEN Limited and others v Wong, Chamberlin Solicitors and another v Emokpae, Brunel University v Webster 2005 IRLR 258.   This guidance, which is set out in full, applies equally to cases of religious discrimination:

“(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as "such facts". 
(2) If the claimant does not prove such facts he or she will fail. 
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in". 
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. 
(5) It is important to note the word "could" in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. 
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. 
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act. 
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. 
(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer. 
(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. 
(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. 
(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. 
(13) 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 discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.” 
  
The Tribunal was referred to the cases of Shamoon v Chief Constable of the RUC 2003 IRLR 285 and Laing v Manchester City Council 2006 IRLR 748.

Conclusions 

1.	The Tribunal could not conclude from the facts found that the claimant’s dismissal was connected either directly or indirectly to the poppy incident and the surrounding publicity. The Tribunal did not consider that there was any basis for the claimant’s suspicion that the respondent blamed him for the adverse publicity which ensued. The Tribunal was satisfied that it was perceived by Mr Kennedy that the claimant had raised his concerns about the decision to ban the wearing of poppies, solely in the security context, rather than an objection to the decision on grounds of his personal and religious belief.  It is clear to the Tribunal that the poppy incident was only raised as an issue by the claimant in retrospect and not until some time after he had lodged his originating complaint with the Tribunal and the subsequent appeal hearing. The Tribunal concluded that the claimant’s contention that he was stunned at being dismissed as he felt that he had been doing a good job contradicted his evidence that he felt shunned as a result of the poppy incident. If he had felt shunned, the Tribunal would have expected a reference to the poppy incident to have been included in the originating claim to the Fair Employment Tribunal. 

2.	The Tribunal was satisfied that the reason for the claimant’s dismissal was gross misconduct. From its own viewing of the CCTV footage the Tribunal did not accept the claimant’s version of events of 4th January 2004.  The Tribunal considered that the CCTV footage provided objective evidence of the unreliability of the claimant’s evidence. The tribunal was further satisfied that the claimant understood the nature of the allegations which had been made against him and that if proven, the allegations of Mr Couchman would amount to gross misconduct. The respondent did have reasonable grounds for deciding that the claimant was guilty of gross misconduct and had assaulted another employee. 

3.	The tribunal was satisfied that claimant was not denied representation at the disciplinary and appeal hearings. The respondent informed him that he was entitled to be represented by a colleague or a trade union representative. This is in accordance with the LRA Code of Practice in force at the time. The claimant chose to be accompanied by his wife at the disciplinary hearing and by Mr Steenson at the appeal hearing. The respondent allowed them to be present even though neither were work colleagues of the claimant nor his trade union representative. The LRA Code of Practice is silent as to an employee’s right to be accompanied at the investigation stage. The Tribunal did consider that the respondent’s disciplinary policy and procedures did not comply with the Labour Relations Agency Code of Practice for disciplinary procedures, for example, no reference at all is made to the Employment Rights (Northern Ireland) Order 1996. The Tribunal was also of the view that there were shortcomings in the manner in which the investigation and disciplinary hearings were conducted by the respondent, notably the failure of the respondent to provide the claimant with the CCTV footage and copies of the witness statements until after he had been dismissed. However the tribunal was mindful that at the appeal stage of the disciplinary procedure, the claimant did have all the relevant material prior to the appeal hearing and that it was the claimant who withdrew prior to the conclusion of the process. 

4.	The issue for the Tribunal was not whether the claimant had been treated unfairly by the respondent in dismissing him but whether he had been treated less favourably on the grounds of his religious belief. The Tribunal was not satisfied that the claimant had, on a balance of probabilities, proved facts from which it could conclude, in the absence of an explanation from the respondent, that he had been subjected to religious discrimination. The onus is on the claimant to show on a balance of probabilities that the respondent treated him less favourably than another employee of a different religion from him in the same or not materially different circumstances. The claimant did not do this as during the hearing he withdrew his evidence of more favourable treatment by the respondent of two other of its employees, identified by the claimant as actual comparators and stated that he did not seek to compare himself with anyone else. 

5.	The Tribunal then considered whether there was any evidence to prove on a balance of probabilities that the claimant had been treated less favourably than a hypothetical comparator.  The Tribunal accepted Mr Hamill’s submission that the correct hypothetical comparator in this case was a Catholic or non-Protestant security manager against whom there was an allegation of assault by a co worker. There was no such evidence before the Tribunal from which it could conclude that such a hypothetical comparator would have been more favourably treated. 

Accordingly the claimant’s claim of religious discrimination is dismissed in its entirety.

Chairman:

Date and place of hearing:	16-18 October 2006, Belfast.

Date decision recorded in register and issued to parties: