THE INDUSTRIAL TRIBUNALS

CASE REF:  260/06

CLAIMANT:		Stephen William Nelson

RESPONDENT:	Newry & Mourne District Council

DECISION

The unanimous decision of the tribunal is that the claimant was treated less favourably on the grounds of his gender by the respondent who is ordered to pay £30,715.86 to the claimant in compensation.

Constitution of Tribunal:

Chairman:		Ms Crooke

Panel Members:	Mr Williamson
			Mr McReynolds

Appearances:
The claimant was represented by Mr B Rea, Barrister-at-Law, instructed by M L White Solicitors. 
The respondent was represented by Mrs M Lewis, Barrister-at-Law, instructed by McShane Solicitors.

SOURCES OF EVIDENCE

The Tribunal heard evidence from the claimant on his own behalf, Joseph Gerard Larkin, and Frank McCardle.  Mr Phelim Anthony Jennings the SIPTU convener of Newry and Mourne District Council also gave evidence on behalf of the claimant, on behalf of the respondent the following gave evidence:-

Catherine Sweeney
Conor Haughey
Robert Fulton Somerville
Paula Smith
Councillor Michael Carr
Robert Dowey

In addition, the Tribunal had a bundle of agreed documents before it.

THE CLAIM AND THE DEFENCE

The claimant believed that he had been discriminated against by the respondent on the basis of his gender.  The respondent denied this claim.

FINDINGS OF FACT

1.	The claimant was in the employment of the respondent Council as a Caretaker at its Monaghan Row premises in Newry.  

2.	Grainne O’Donnell was at the time in question an acting ganger employed by the Council in the Parks and Grounds Department at its Greenbank Offices in Newry.

3.	On 23 June 2005, the respondent Council received an anonymous letter from an “angry rate payer.”  This alleged that the person witnessed on Monday 21 June 2005 a Council vehicle which was towing a trailer full of bedding plants in Warrenpoint Square.  This anonymous rate payer stated that he/she had witnessed:-

“A small Council vehicle (registration number UBZ 7235) pulled up alongside.  The driver of this vehicle along with a female driver of the vehicle (FJZ 7763) proceeded to transfer quite a few of the plants to the back of the small van.”

This letter asked the Council to look into this matter.  

4.	Catherine Sweeney who was the Assistant Director of the Administration (Personnel) Department was asked to look into the matter and she sent a memo and a copy of the letter to Mr Daly the Fleet Manager to ask if he could identify the drivers of the vehicles.  He was able fairly quickly to identify the vehicle with the trailer as being driven by Grainne O’Donnell.  As Catherine Sweeney is based at Monaghan Row she was aware that normally caretakers have access to the other vehicle in the incident being registration number UBZ 7235 and could identify that it was Stephen Nelson who was on shift when it was used.  She held an investigatory meeting with Stephen Nelson on 7 July 2005.  Miss Sweeney did not give Mr Nelson any prior notice of the investigation and he was not offered the right of accompaniment by his trade union representative.  

5.	At the fact finding meeting, Mr Nelson did not admit that he was the driver of the vehicle on the day in question.  He identified a range of other employees who had access to the vehicle and who might have been driving it on the day in question.  Miss Sweeney had previously made inquiries with Paula Smith in the personnel office to find out if she had sent the Caretakers to Warrenpoint for anything on the day in question.  Ms Smith was not able to remember whether she had done so or not.  Miss Sweeney checked with the other departments in accordance with the information given by the claimant and drew a blank.  

6.	On 8 July 2007 the claimant took advice from his union about the situation.

7.	On 7 July 2005 Conor Haughey a member of the Parks and Grounds staff interviewed Grainne O’Donnell.  He was her immediate line manager.  Grainne O’Donnell was given 24 hours notice of the interview and was offered the right of representation which in the event she refused.  

8.	On 8 July 2007 Conor Haughey interviewed the 2 Council agency workers Mr Larkin and Mr McArdle.  On 8 July Mr Conor Haughey put together a report of the incident on 20 June 2005 indicating that Grainne O’Donnell allowed the claimant to take a small selection of the Council’s summer bedding plants.  He had taken statements from Mr McArdle and Mr Larkin and indicated that after formally speaking with Grainne O’Donnell and telling her not to allow any similar event to occur he did not think any further action needed to be taken against her on this incident, but he recommended that Mr Nelson be formally interviewed and disciplinary action be taken against him with Ms O’Donnell’s, Mr Larkin’s and Mr McArdle’s statements being submitted to the investigating officer.  

9.	In evidence before the Tribunal, Mr Larkin and Mr McArdle both refuted the content of the statements and denied that the signatures on the statements were in fact their signatures.  The Council accepted that the signatures on the statements were not those of Mr Larkin and Mr McArdle.  This being the case, the Tribunal is not able to attach any weight at all to the witness statements of Mr Larkin and Mr McArdle.

10.	On 25 July 2005 Ms O’Donnell was formally interviewed as part of the formal disciplinary process accompanied by John Dawson and she confirmed again the incident as described by the anonymous letter.  She said she did not know the plants were for Mr Nelson’s personal use but admitted that she did not question him when he pulled up beside her in Warrenpoint Square and asked for plants.  As a result of this formal interview, Conor Haughey recommended that Ms O’Donnell be formally disciplined with her conduct being viewed as gross misconduct.  On 26 July 2005, the claimant was interviewed by Mr Earl Smith.  The claimant was accompanied by Mr Phelim Jennings.  The claimant confirmed that he had been sent to Warrenpoint on 20 June 2007 and he had asked Grainne O’Donnell whether she had any spare plants.  She had handed him a tray of plants and he had taken them away in his van to his own home. 

11.	After completion of the formal investigatory interviews Catherine Sweeney produced a “Report of investigation into the reported conduct of Stephen Nelson, Caretaker, Monaghan Row, Newry dated 4 August 2005.  This report contains some inconsistencies.  For example in the second paragraph of the report it makes reference twice to the anonymous letter alleging “that the spectacled driver of a small Council vehicle”.  The letter did not in fact make any reference to the driver wearing spectacles or glasses.  The Tribunal had noted that the heading of the investigation report was into conduct of Stephen Nelson rather than Stephen Nelson and Grainne O’Donnell.

12.	On 12 August 2005 Catherine Sweeney wrote to the claimant giving him the date of 25 August 2005 for his disciplinary hearing.  The Tribunal noted that at this stage, the claimant had still not received a copy of the anonymous angry rate payer letter and Mr Phelim Jennings had to write to Mr Eddie Curtis, the Director of Administration to request a copy of this letter.  In contrast, Grainne O’Donnell had been in possession of this letter from in or around 7 July 2005.  

13.	By letter dated 31 August 2005 the Director of Administration, Mr Eddie Curtis wrote to the claimant giving him a new date of 7 September 2005 for the disciplinary hearing.  The Tribunal also noted that Mr Curtis was of the opinion in the final paragraph of his letter that Mr Phelim Jennings had accompanied the claimant at the investigatory meeting of 7 July 2005.  In actual fact Mr Jennings did not accompany the claimant to this meeting, but accompanied him to the meeting of 26 July 2005.  

14.	The disciplinary hearing duly took place on 7 September 2005 and Mr Robert Dowey decided as follows:-

(a)	Plants were removed from a Council park van to a van driven by Stephen Nelson which should not have had the plants.

	(b)	These plants ended up at the home of Stephen Nelson.

	(c)	A theft did take place.

(d)	Mr Nelson is a caretaker and has a position of handling valuable goods and items on a regular basis.

	Therefore the penalty that was imposed by Mr Dowey was as follows:

	Mr Dowey considered Mr Nelson to be guilty of gross misconduct and after taking into account mitigation he ruled:

(a)	That Mr Nelson be given a final written warning lasting 24 months.  In the event of another incident happening within these 24 months he was likely to be dismissed.

(b)	He would be redeployed to a suitable post at the rate for that post immediately where he will not be responsible for Council property or material.  In the event Mr Nelson does not accept a suitable post at the post rate as identified by the Council, then he will have no option but to leave Council employment.  Mr Nelson is to meet with Mr Curtis after this meeting.

15.	On 8 September 2005 Mr Eddie Curtis wrote to the claimant to confirm the results of the disciplinary hearing and in this letter he offered a right of appeal.  

16.	By second letter of 8 September 2005 Mr Eddie Curtis wrote to the claimant indicating that major misconduct was not found on the allegation of unauthorised use of the Council van registration number UBZ 7325 to take the plants to his home which should be considered as major misconduct.  However he confirmed that obtaining plants from Council vehicle registration FJZ 7763 on Monday 20 June 2005 was theft and should be considered as gross misconduct.  The penalty previously noted remained the same.  The claimant was given a right of appeal and he took up this right of appeal by letter dated 13 September 2005.  

	The claimant appealed on the ground that he had permission from the gardening squad ganger (Ms O’Donnell) to have the plants and that he was punished 3 times for his offence in that he was given a final written warning for 2 years, he was demoted and suffered a loss of income.

17.	By letter dated 28 October 2005 Mr Eddie Curtis convened an appeal hearing for Wednesday 14 December 2005 on the basis of the grounds set out in the letter of the claimant of 13 September 2005.  Mr Fulton Somerville the Director of Building Control for the Council upheld the findings of the disciplinary hearing.  This result was confirmed in writing by letter dated 14 December 2005.  A further right of appeal was given and this was taken up by the claimant by letter dated 23 December 2005.  

18.	By letter dated 14 February 2006 Mr Eddie Curtis informed the claimant that an appeal hearing had been arranged for Tuesday 20 February 2006.  By letter dated 27 March 2006 this date was moved, at the request of the claimant, to Monday 3 April 2006.  By letter dated 3 April 2006 Mr Eddie Curtis informed the claimant that the appeal hearing had to be postponed and the meeting was now to be held on 10 April 2006.  The appeal took place on Monday 10 April 2006 in the presence of Councillor Michael Carr, the Chairman, Councillor William Burns, Councillor John Feehan, Councillor Geraldine Donnelly and Councillor Danny Kennedy.  When the claimant and his representatives Mr John King and Mr Phelim Jennings arrived at the venue for the appeal they found Mr Robert Dowey, Mrs Catherine Sweeney, Mr Fulton Somerville and Mr Martin Mooney in the room with the group of Councillors.  The claimant and his representatives were asked to leave.

19.	The appeal hearing in the presence of the Councillors took place on Monday 10 April 2006 and the decision of the appeal panel was confirmed by Mr Eddie Curtis’ letter to the claimant of 13 April 2006.  The relevant extract of the letter is as follows:-

“1.	The penalty of gross misconduct be reduced to that of major misconduct and that this record should be held on file for a period of 12 months as opposed to 24 months with effect from 7 September 2006, ie date of disciplinary hearing.

2.	To uphold the decision to remove you permanently from your post of caretaker at the Monaghan Row District Council Offices but to relocate you to a position of the same grade you were on at the time of the incident ie Grade 4.”

	The Tribunal considers that the relevant date in paragraph 1 is in fact 7 September 2005 and not 7 September 2006 as stated in the letter of 13 April 2006.

20.	An undated memorandum was issued by Mr Daley, the Technical and Fleet Management Officer, to all Grounds Team Leaders regarding summer bedding plants.  This instructed the team leaders to destroy the summer bedding plants either by taking them to the nearest amenity site or to Maguire’s yard for compost recycling.  The plants were not to be taken back to Greenbank or handed out to the public or fellow employees.  

21.	By letter dated 20 September 2005, Ms O’Donnell was informed by Ms Catherine Sweeney that the disciplinary hearing was to take place on 17 October 2005.  

22.	The disciplinary hearing actually took place on 29 November 2005 due to the unavailability of Mr John Dawson her union representative.  On 29 November 2005 the disciplinary authority considered that Ms O’Donnell had acted in a naive manner and was caught out by another employee.  She was found guilty of major misconduct not gross misconduct with a final written warning to remain on her file for 6 months only.  She chose not to appeal this determination of the Council.

THE RELEVANT LAW

In reaching its decision the Tribunal had regard to the Sex Discrimination (Northern Ireland) Order 1976 and in particular Articles 3, 7, 8 and 63a.

Additionally the Tribunal considered the cases of Barton v Investec Henderson Cross Weight Securities Limited 2003 [IRLR] 332 EAT, Igen v Wong 2005 [IRLR] 258 and Shamoon v Chief Constable of RUC 2003 [IRLR] 285.

CONCLUSIONS

Was there less favourable treatment?

The Tribunal is satisfied that the claimant was less favourably treated than Grainne O’Donnell and will deal with the issue of the use of Miss O’Donnell as a comparator under a separate heading.  There were a number of inconsistencies in treatment some of which the Tribunal treated as minor and others which they treated as major inconsistencies and these were as follows:-

1.	The letter from the “angry rate payer” was not provided to the claimant and it was necessary for Mr Phelim Jennings by letter dated 15 August 2005 to Mr Eddie Curtis to write to him to request that it be provided.  Ms O’Donnell was provided with this letter at a very early stage.

2.	Ms O’Donnell was given 24 hour’s notice of the initial investigatory meeting.  The Tribunal infers from that that this gave her time to compose herself.  Whereas the claimant was not given notice of the meeting and he was caught as the respondent admitted “flat footed”.  As a result, he did not immediately admit to being in Warrenpoint on the day in question and this omission was used against him right to the very end of the disciplinary process.

3.	In her report of the investigation of Stephen Nelson, Miss Catherine Sweeney referred to the driver of the van as being a person wearing spectacles or glasses.  This was not terminology used in the angry rate payer’s letter and the Tribunal considers that it is possible to infer that Miss Sweeney had prejudged the issue in her own mind and considered Mr Nelson to be the driver of the vehicle.  We are supported in drawing this inference by the heading on her report which stated that it was a report into the conduct of Stephen Nelson.  Stephen Nelson was not the only person involved in the incident and we conclude that this is early evidence of difference in treatment by the respondent between the 2 participants in the incident.  By contrast, the investigatory reports concerning Grainne O’Donnell were headed “incident involving Grainne O’Donnell and Stephen Nelson…”.  

	In correspondence, Mr Curtis said that the claimant was accompanied on his meeting on 7 July 2005.  In actual fact he was not.  Stephen Nelson was not offered the right of accompaniment.

4.	The Tribunal has noted that Mr Larkin and Mr McArdle, the agency workers with Grainne O’Donnell, repudiated their statements as to content and as to their signatures.  Yet the respondent, while admitting that the signatures were not those of Mr Larkin and Mr McArdle, still put forward these highly suspect statements in evidence on behalf of the respondent.  The Tribunal has noted that Mr Larkin and Mr McArdle have nothing to gain and perhaps something to lose by making it clear that these statements did not fairly represent their evidence.  Both were agency workers, both were happy working in the Council and wished to continue working with the Council.  

5.	The Tribunal has noted that the respondent took an early view that the incident constituted theft on the part of Mr Nelson.  The respondent in its disciplinary process even looked up the dictionary definition of theft.  

6.	The Tribunal has noted that there was a difference in formulation of the charge between the disciplinary process of Ms O’Donnell and that of the claimant.  Ms O’Donnell was accused of providing plants without authorisation whereas the claimant was accused of theft.  Much was made in evidence of the fact that Ms O’Donnell did not obtain any benefits from her actions.    The Tribunal has some difficulty in regarding the conduct of the claimant as being dishonest.  This is not a case in which he removed the plants from the trailer without Ms O’Donnell’s knowledge.  He in fact asked her for spare plants.  She gave them to him.  It is hard to avoid the inference being drawn that the Council was very keen to accuse the claimant of theft.  It was denied that there was a practice of giving plants to members of staff.  Mr Jennings gave evidence that there was a definite practice that even included members of the public being able to obtain these plants.  

	There was certainly a memo provided in evidence from Mr Daly indicating what was to be done with the plants.  However, this memo was undated and Mr Daly was not produced by the respondent to give evidence that it predated the events of this case.  As late as 10 April 2006 in the disciplinary process concerning Mr Nelson, Miss Sweeney was unable to get confirmation of the date of the memorandum from Mr Daly.  In these circumstances, we draw the inference that it was likely that the memo did not predate the event of this case.  That being the case, we consider that there is a strong likelihood that the practice in question existed.  It would have been open to Ms O’Donnell to refuse to hand over the plants.  Much was made of the contention that Ms O’Donnell did not know and did not seek to find out to what use the plants were being put.  The Tribunal has noted that Ms O’Donnell was an experienced Council employee carrying responsibility for Council property.  We found it difficult to see that such an employee would suddenly start handing out Council property for no reason.  We consider that we are supported in the view that a practice existed by the fact that Ms O’Donnell was not a close friend of the claimant and had no reason to accommodate him.  

7.	Furthermore there was a difference in sanction.  Consistent with the Council’s view that Ms O’Donnell had been “naïve”, she was given the sanction of a final written warning to be held on her personal file for 6 months.  The Tribunal has noted that the disciplinary procedure says that if a person is guilty of major misconduct, the penalty is that a final written warning will be placed on the person’s personal file for 2 years.  The claimant in contrast was given a final written warning with it staying on it record for 2 years; he was demoted and relocated.  We have noted that the demotion was reversed on the appeal to the Councillors, and gross misconduct was reduced to major misconduct as the offence.  In contrast, while Miss O’Donnell was accused initially of gross misconduct, Mr Dowey reduced this accusation to major misconduct at her disciplinary interview.  

8.	Comparator.  The claim of the claimant was based upon Ms O’Donnell being the comparator for the purpose of the statute.  In accordance with the authority of the Shamoon case in which Lord Nichol said that in making the comparison it is necessary to compare like with like so that the situation being compared must be such that the gender apart, that the situation of man and woman are in all material respects the same and this applies whether a Tribunal looks at an actually comparator or a hypothetical comparator.  In the Shamoon case the important difference found was that the 2 male inspector comparators had no complaints against them, whereas the claimant in that case did have complaints as to her operation of the appraisal system.  

	In this case, whilst the respondent contended that in law Ms O’Donnell would not be an appropriate actual comparator, the respondent did not say why this was the case.  This being the case, the Tribunal finds that as both employees were Grade 4’s in the Council hierarchy and were both classed as ancillary and general staff, that the situation of Ms O’Donnell would not be materially different to the situation in working terms of the claimant.  They were both regarded as persons carrying responsibility.  Mr Nelson was responsible for his buildings and Ms O’Donnell was responsible for her vehicles, tools and plants.  We are further supported in this conclusion by the view of Mr Fulton Somerville in the appeals hearing transcript for 10 April 2006.  Mr Fulton Somerville said “it is our view that Stephen himself is in a position similar to Grainne in that he has certain authorities but he knows where his authorities and permissions start and stop”.  Both were prosecuted under the disciplinary procedure for manual employees.

9.	These conclusions having been reached, we consider that the burden of proof in this case in the absence of an adequate explanation for the behaviour of the respondent, now shifts to the respondent to prove that the respondent did not do the act complained off.  If for example, the Council had said that they were taking a strong view of the appropriation of Council property because this was an ongoing major problem in the Council, it would have been the view of the Tribunal that this would have been an adequate explanation for their behaviour.  However, this evidence was not given and this contention was not put forward.  There was no adequate explanation argued even in the alternative.  

	As the respondent has not proved that it did not commit the act of discrimination on the grounds of sex then we find that the respondent has treated the claimant less favourably on the grounds of his sex and order the Council to pay compensation as set out.

ECONOMIC LOSS

1.	The parties were able to agree the quantum of the economic loss as follows:-

LOSS OF BENEFITS
  
1 year’s conditional overtime			-				  £1,424.80
Casual overtime 					-				£15,999.33
Less overtime received by the claimant		-				    -£271.26
Shift allowance					-				  £6,017.76
Telephone allowance				-				     £170.48

Total											£21,341.21

There was no pension loss

FUTURE LOSS

Future loss is agreed at the sum of		-				       £3,750

The total economic loss is 				-				£25,091.21

ECONOMIC LOSS AND INJURY TO FEELINGS

The Tribunal does not consider that an award in the highest bracket is appropriate as this is not a case in which there was a lengthy campaign of discriminatory harassment on prohibited grounds.  However the Tribunal does not consider that this is a minor issue.  Being accused of theft is a severe blow.  The penalty involved a very public and humiliating loss of standing in the Council.  The process itself was flawed by unexplained inconsistencies in treatment and no proper reason for this was given.  It is hard to avoid the conclusion voiced by Mr Phelim Jennings that “someone was out to get this man”.  Taking these factors into account, we find that the compensation for injury to feelings lies at the lower end of the middle band of the Vento case and we award £5,000 for injury to feelings.  

Total award to the claimant is £30,091.21

2.	The respondent applied for costs against the claimant on the grounds that this was a vexatious claim.  The Tribunal does not consider and by its award of compensation to the claimant has demonstrated that it does not consider that this claim was in anyway vexatious or even unreasonable.

3.	The Tribunal awards interest on the figure for injury to feelings at the rate of 8% from 10 April 2006 to date.  We have chosen the date of 10 April 2006 as being the date of completion of the discrimination against the claimant.

4.	This is a relevant decision for the purposes of the Industrial Tribunal (Interest) (NI) Order 1990.

5000 x 8% x 570 days from 10 April 2006 – 31 October 2007  =  £624.65.

Total Award and interest  =  £30,715.86.

Chairman:

Date and place of hearing:	21- 25 May 2007, 3- 4 Sep 2007, 2- 3 October 2007, Belfast

Date decision recorded in register and issued to parties: