THE INDUSTRIAL TRIBUNALS 

CASE REF: 805/13

CLAIMANT:	George Ussher	

RESPONDENT:	Ulster Carpet Mills Ltd

DECISION

The tribunal unanimously dismisses the claim.

Constitution of Tribunal:

Chairman:		Mr H Travers

Members:		Ms M McReynolds
			Mr P Sidebottom

Appearances:

The claimant was represented by Mr Caher, Solicitor, of Campbell & Caher Solicitors.

The respondent was represented by Mr Hopkins, Barrister, instructed by Jones Cassidy Jones, Solicitors.

REASONS

Issues

1.	The tribunal must determine whether the claimant has been subjected to direct discrimination on the grounds of age.  Following a case management discussion on 14 August 2013, the legal issues in this case were agreed as follows:-

(i)	Whether the claimant was treated less favourably than any other employee.

(ii)	If the answer to (i) is yes, whether this was on the ground of his age contrary to regulations 3(1) and 7(2) of the Employment Equality (Age) Regulations (Northern Ireland) 2006.

(iii)	Whether the claimant has suffered any loss. 

Preliminary issue

2.	At the outset of the hearing two points arose for determination on an application by the claimant which was opposed by the respondent:-

(a)	Whether the claimant should be permitted during the hearing to make a claim for harassment on the grounds of age within the terms of regulation 6 of The Employment Equality (Age) (Northern Ireland) 2006 [‘the Regulations’].

(b)	Whether the claimant should be permitted to submit a brief written schedule of loss.

Harassment

3.	The claim form raises a complaint of continuing discrimination on the grounds of age.  Following submission of a response which denied that there had been such discrimination, a case management discussion [‘CMD’] took place on 14 August 2013. 

4.	Paragraph 1(1) of the record of the CMD notes that one of the purposes of the CMD was to, ‘identify the precise issues in dispute which the tribunal will have to determine’.

5.	Paragraph 2 of the record of the CMD notes that, ‘The agreed issues are attached to this record of proceedings.’  The agreed issues document itself goes on to set out issues under the respective headings of ‘Factual issues’ and ‘Legal issues’.  There are three legal issues recorded:-

‘1. 	Whether the claimant was treated less favourably than any other employee.

2. 	If the answer to 1 is yes, whether this was on the ground of his age contrary to regulations 3(1) and 7(2) of the Employment Equality (Age) Regulations (Northern Ireland) 2006.

3. 	Whether the claimant has suffered any loss.’

6.	When the claimant’s representative addressed the tribunal at the outset of the hearing, a dispute arose between the advocates as to the use of the word harassment in the course of proceedings.  The respondent did not object to the use of the word in a non-technical sense but sought reassurance that the claimant would not seek to expand his claim to include a claim under regulation 6 of the Regulations in respect of harassment on the grounds of age.  After some discussion the claimant indicated that he did seek to raise a claim under regulation 6. 

7.	At that point it fell to the tribunal to determine whether the claimant should be permitted to pursue at this hearing a claim in respect of regulation 6 harassment.  Having heard submissions on behalf of each party, the tribunal determined that the claimant should not be permitted to do so and gave brief reasons for its decision.

8.	Pursuant to the overriding objective contained in paragraph 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, each party was given an equal opportunity at the CMD to set out the precise legal issues which they asserted arose in the case.  This was the point in time at which there should have been resolved any ambiguity or lack of clarity as to whether or not a claim was to be made in respect of harassment under regulation 6 of the Regulations.  If a claim of harassment pursuant to regulation 6 was to have been pursued the basis of it and the actions of the respondent specifically relied on in respect of that aspect of the claim should have been set out and identified with clarity. 

9.	In the circumstances, the tribunal determined that the claimant would be restricted to the legal basis which had been identified at the CMD.  The tribunal made clear however, that this would not restrict the claimant from raising in support of his existing regulation 3 and regulation 7 claims, any relevant evidence regardless of whether or not he chose to describe and characterise that in ordinary language as harassment.

Schedule of loss

10.	At the outset of the hearing, the claimant sought to provide the tribunal with a short written schedule of loss.  The respondent objected on the basis that the issue of a schedule of loss had been raised with the claimant’s solicitors by the respondent’s solicitors prior to the CMD in August 2013.  At that time no schedule was forthcoming.  Consequently, the respondent had proceeded with the litigation under the understanding that the claim was for injury to feelings only. 

11.	The schedule of loss itself consisted of a claim for 3½ months loss of earnings.  The facts giving rise to that alleged loss were well known to the respondent.  The tribunal determined that, insofar as it was necessary, the respondent would be able to challenge the schedule on the basis of the documentary and oral evidence which would be adduced during the hearing.  Balancing the relative prejudice which would be caused to each party if the schedule of loss was admitted, the tribunal was satisfied that admission of the schedule would not cause undue prejudice to the respondent and consequently permitted the claimant to adduce the schedule of loss.

Facts

Sources of evidence

12.	The tribunal heard evidence from the claimant in support of his claim.  The respondent called as witnesses Mr Colin Hyndes (production director), and Caroline Whiteside (personnel director).

13.	In reaching the findings of fact outlined below, the tribunal considered all the information, evidence, and submissions presented by or on behalf of the parties.

The claimant

14.	The claimant was born on 02/07/48 and he attained the age of 65 in July 2013.  The claimant commenced employment with the respondent as a maintenance engineering manager in or around January 2000.  The claimant had retired from his previous employment three years earlier only to find that retirement did not agree with him, consequently he was pleased to find employment with respondent. 

15.	Over the course of his employment with the respondent, the claimant has had various job titles.  By January 2013 the claimant was working as a departmental manager as part of the operations management team.  He reported to Colin Hyndes, the Production Director who is a member of the board of the respondent.  The claimant states that his job title in January 2013 was Technical Services and Environmental Manager.  The respondent maintains that the proper title for his position was Facilities and Environmental Manager. 

16.	Until a conversation with a friend in around ‘late 2012 … August 2012’, the claimant had believed that there was a compulsory retirement age of 65 which would be enforced unless the respondent invited him to stay on.  The tribunal finds that, as a consequence of this belief, when the claimant on a number of occasions casually discussed the issue of retirement with fellow staff in the factory prior to the conversation with this friend, he left his colleagues with the impression that he was to retire in July 2013. 

17.	The claimant states that the only occasion when he attempted to raise the issue of the projected date of his retirement with Mr Hyndes was in April 2012 when Mr Hyndes came to his office to discuss another member of staff’s pay rise.  At that time the claimant raised the question of retirement in July 2013, referring to what he believed was the statutory retirement age of 65.  The claimant acknowledged in evidence that he did not say that he wanted to stay beyond July 2013 because he wasn’t aware that he could stay beyond that date.

18.	In his witness statement the claimant recalled that Mr Hyndes did not have time to discuss retirement that morning but Mr Hyndes said that he would have a meeting with the claimant later to discuss an exit strategy.  It is clear from the reference to an ‘exit strategy’ that Mr Hyndes was left under the impression that the claimant was going to retire in or around July 2013.  Subsequently neither the claimant nor Mr Hyndes pursued the matter.  This is consistent with a mutual understanding that the claimant would retire in July 2013.  If it had been otherwise, the tribunal finds that the claimant would have been proactive in pursuing the matter with Mr Hyndes given the claimant’s mistaken belief at the time that he could only stay on after July 2013 if the respondent agreed that he should do so.

19.	Two events occurred to which the claimant attaches significance.  The first happened in 2011 when the respondent initiated work on a major project, the purpose of which was to build a new dyehouse facility.  The claimant was a member of the six man planning team for the project.  At the outset of the claimant’s involvement with the project Mr Hyndes held a meeting with the planning team at which he indicated that the project would last approximately two years.  Mr Hyndes told the team that he expected all present to be willing to give total commitment and that if anyone could not do so he or she should leave the room immediately.  The claimant states that the remarks at the meeting caused him to assume that if he was being asked to work on a project which was going beyond what he erroneously believed was a mandatory retirement date then he assumed that the respondent was going to keep him on beyond the age of 65. 

20.	The second event occurred in the Autumn of 2012 when the claimant had an informal conversation with the respondent’s Chairman concerning the dyehouse project.  In evidence the claimant stated that he was unable to remember the detail of the conversation or who brought up the subject of his retirement date, but he remembered that the Chairman was very pleasant and said that it would be nice if the claimant stayed on to the end of the project. 

21.	Despite the assumption engendered by his involvement with the dyehouse project, and the encouragement received from his informal chat with the Chairman, the claimant took no steps to clarify formally with the respondent whether he could work beyond what he then wrongly believed was a mandatory retirement age of 65. 

The Respondent’s Retirement Policy and Practice

22.	Prior to April 2011 the respondent’s policy was that employees wishing to remain in employment beyond the age of 65 should put their request in writing and it would be considered.  Since April 2011 the respondent has not had a mandatory retirement age and retirements are now treated in the same manner as resignations.  Ten employees have attained the age of 65 since April 2011, and of those employees five have retired and five have continued to work beyond the age of 65. 

23.	If it is understood that an employee wishes to retire, the personnel director Ms Whiteside will hold a meeting with the employee about six months before their proposed retirement simply to confirm the employee’s intention.  At such meetings no pressure is placed on the employee to alter their intention one way or another.

The meeting on 24 January 2013

24.	Due to his earlier dealings with the claimant, at the time that Mr Hyndes invited the claimant to a meeting on 24 January 2013, he was under the impression that the claimant proposed to retire in July 2013. 

Also invited to the meeting was the personnel director, Ms Whiteside.  The purpose of the meeting was that Mr Hyndes wished to ask the claimant to stay on for a short period beyond July 2013 in order to complete work on a particular project. 

Mr Hyndes invited Ms Whiteside to the meeting because it touched upon a personnel matter. 

Ms Whiteside had previously been informed by Mr Hyndes of his understanding that the claimant was to retire in July 2013.  Ms Whiteside had also heard that the claimant was to retire in July 2013 from what she described as ‘chat around the factory’.

25.	By 24 January 2013, the claimant had become aware that there was no longer a default retirement age, and he did not propose to retire in July 2013.  Mr Hyndes at the time of the meeting was labouring under an honest misapprehension that the claimant still proposed to retire in July 2013.  Due to this misunderstanding, the meeting on 24 January got off to a bad start as it became clear to the claimant that Mr Hyndes still believed that the claimant was to retire in July 2013.  The claimant explained that he didn’t see his 65th birthday as a ‘dead end stop’.  He explained that he was not keen to retire and he raised the prospect that if he didn’t work full-time, he might work part-time after July 2013.

26.	At the meeting Mr Hyndes and the claimant were surprised in equal measure at each other’s understanding of the claimant’s retirement plans.  Mr Hyndes was taken aback.  He referred to a conversation between himself and the claimant during 2012 when he said that the claimant had made clear that he was to retire in July 2013.  The claimant did not deny that this conversation had taken place but he said that he thought differently now.

27.	The claimant was unclear about what precise working arrangements he would wish to have in place after July 2013.  The meeting only lasted ten minutes and concluded with Mr Hyndes suggesting that the claimant should give some further thought as to what he intended to do prior to another meeting to discuss the matter.

Email correspondence after 24 January 2013

28.	Following the 24 January meeting, the claimant reflected on matters.  On 30 January 2013 he sent an email to Mr Hyndes.  In that email he stated that he had never declared a wish to retire in July 2013.  The claimant did however accept that there may have been a misunderstanding about his plans when he had discussed the matter with Mr Hyndes previously due to the claimant’s then mistaken belief that there was a mandatory retirement age of 65.  The claimant referred to Mr Hyndes initial meeting with the planning team for the dyehouse project before concluding  his email, ‘… irrespective of the project continuing I would confirm my wish would be to stay in my full-time employment with the company.  I hope this is acceptable and look forward to hearing from you.’

29.	On 31 January Mr Hyndes replied to the claimant’s email.  Mr Hyndes began his email by commenting, ‘It comes as a complete surprise that you now wish to continue your employment with the company, but I accept that everyone has a right to have a change of heart.’ Mr Hyndes drew his email to a close with a reference to the meeting on 24 January, ‘You stated that you would like to stay on, possibly in a part-time capacity.  Your note now indicates that you wish to remain in full-time employment.  I would like to explore how you see the Technical and Environmental areas developing under your leadership.  I would like to meet with you this afternoon at 4pm to discuss.’ The claimant was not working on 31 January so no meeting took place that day.  A meeting subsequently took place on 6 February 2013. 

The claimant’s performance

30.	The claimant has a clear disciplinary record.  In the past Ms Whiteside has raised two matters with him informally.  One concerned an aspect of his personal conduct within the working environment, the other concerned a performance issue relating to a lack of progress on environmental training.

31.	Mr Hyndes did however have ongoing concerns about aspects of the claimant’s performance.  Prior to the meeting on 6 February he made Ms Whiteside aware that there was an element of frustration with the claimant’s day to day performance.  In evidence Ms Whiteside described it as a concern that the claimant was ‘coasting’.  Mr Hyndes explained that these performance issues had not been addressed because it was believed that the claimant would be retiring in July 2013 in any event. 

Mr Coburn’s criticism of the claimant

32.	Mr Hyndes addressed the performance issues in his witness statement dated 22 October 2012.  One of the matters he referred to were concerns about how the claimant had dealt with problems relating to what was described as, ‘the finishing line camera’.  In referring to these issues at paragraph 6 of his statement, Mr Hyndes said the following: ‘On 5 October 2012 Nick Coburn expressed concern about delay in addressing the finishing line camera stating, “his lack of responsiveness to my reasonable request says a lot about his attitude”.’ 

33.	Mr Coburn is the respondent’s managing director.  Mr Hyndes’ account in his witness statement of Mr Coburn’s concerns about the claimant’s performance in respect of the finishing line camera raises serious issues about the claimant’s performance of his contractual duties.  It transpired in evidence however, that Mr Hyndes’ account in his witness statement concerning this matter was utterly misleading. 

34.	In evidence, Mr Hyndes explained that the respondent is a family run business.  When a member of the family wanted work done on their private residence they would call the claimant to obtain assistance in arranging the work.  According to Mr Hyndes, often fitters or electricians working at the respondent are called out to work at the residences of family members. 

35.	The quotation from Mr Coburn given in Mr Hyndes’ witness statement does not relate to the finishing line camera at all.  It is derived from an email from Mr Coburn to Mr Hyndes where Mr Coburn complains about the performance of the claimant in arranging work at a family residence.  Mr Hyndes accepted responsibility for the content of this element of his witness statement but he was unable to offer any adequate explanation as to why it had been drafted in such a fundamentally misleading way.  

Meeting on 6 February

36.	Following the 24 January meeting, a further meeting took place between Mr Hyndes, Ms Whiteside, and the claimant on 6 February 2013.

37.	So far as Ms Whiteside was concerned, there were two issues to be addressed at the meeting.  The key issue for her was to close off the retirement issue by ascertaining the claimant’s precise wishes in respect of the matter, to find out whether he wanted to work full-time or part-time after July 2013.  Ms Whiteside’s approach to this issue was entirely open minded and she simply wished to have clarification of the claimant’s intentions so that his employment could move forward in accordance with those intentions.  Ms Whiteside understood that the second, less-important issue to be dealt with was to hear the claimant’s future plans for the technical and environmental areas. 

38.	Although Mr Hyndes had previously spoken with Ms Whiteside about his concerns relating to the claimant’s day to day performance, Ms Whiteside had no notice or expectation that performance issues would be raised at the meeting on 6 February.  So far as she was concerned the core matter for the meeting was clarification of the claimant’s intentions as to his employment arrangements after July 2013. 

39.	In the event, Mr Hyndes effectively hijacked a meeting which should have been focussed on the personnel aspects of ascertaining how the claimant wanted to work after July 2013.  

40.	At the outset of the meeting Mr Hyndes returned to his earlier theme of how he had been shocked to hear that the claimant was not planning to retire in July 2013.  In turn the claimant described how he had been shocked that Mr Hyndes had thought that he was going to retire in July.  The claimant was invited to explain his plans for the leadership of his area going forward.  He did so, but not to the satisfaction of Mr Hyndes who proceeded to raise with the claimant a series of performance related issues. 

41.	Perhaps unsurprisingly, at one point during the meeting the claimant commented that it felt more like a disciplinary interview.  Towards the end of the meeting the claimant said that he felt that it might be better if he took his retirement because he did not like the way that certain issues were being raised. 

42.	In the light of the claimant’s comment about it being better if he took retirement, Ms Whiteside advised him to give the matter further consideration and that a further meeting would be held in one week.  Ms Whiteside advised the claimant that the issue of retirement was a matter for him, but if he wished to retire it would have to be put in writing.  In the absence of a letter stating that the claimant did wish to retire it would be assumed that he would be continuing in a full-time capacity in his current position undertaking his full range of duties. 

Events after the 6 February meeting

43.	The claimant was upset by the outcome of the meeting on 6 February.  On 12 February he contacted the respondent and left a message saying, ‘Just to let you know I got an appointment with the doctor yesterday.  The chest problems I’ve had and the bladder problems are related to stress.  They signed me off for a month and put me on medication, so I’ll get the line into personnel as quick as possible.’ 

44.	The claimant has been absent from work and subject to the respondent’s attendance management policy since 12 February.  Consequently no further meeting has taken place to discuss his plans for working post July 2013.  The claimant has not written to the respondent to indicate whether he wishes to work full-time or part-time in the future.

45.	In accordance with his contract of employment, the claimant was paid by the respondent in respect of the first six months of his absence.  This came to an end in August 2013.  He remains employed by the respondent and subject to the attendance management policy.  Since February 2013, Ms Whiteside’s attempts to implement that policy and to speak to the claimant on the telephone have been entirely proper.

46.	The only medical evidence presented to the tribunal by the claimant consists of limited GP records indicating that the claimant was originally diagnosed as suffering a ‘stress related problem’.  The records do not refer to the stress as work related stress.  The claimant has not adduced any medical evidence which is sufficient for the tribunal to make a positive finding on the balance of probabilities that any diagnosable medical condition he has suffered is work related. 

47.	On the evidence it has heard, the tribunal is unable to find on the balance of probabilities that the claimant’s treatment by the respondent has been motivated by any desire to promote the claimant’s subordinate Gail Ritchie at the claimant’s expense. 

Law

Age Discrimination

48.	The case advanced on behalf of the claimant is one of direct discrimination.  Pursuant to regulations 3(1) and 7(2) of the Employment Equality (Age) Regulations (NI) 2006 [‘the Regulations’] it is unlawful for an employer on the grounds of an employee’s age to treat that employee less favourably than it would treat another employee.  Regulation 3(2) provides that the relevant circumstances of any comparator employee must be the same or not materially different.

49.	The Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 removed the default retirement age of 65 with effect from 6 April 2011. 

50.	The Employment Appeal Tribunal in Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT determined that whether there has been less favourable treatment of the claimant is a matter for the tribunal to decide.  The fact that the claimant might honestly believe that he has suffered less favourable treatment does not of itself establish such less favourable treatment. 

51.	If there has been less favourable treatment of the claimant, the tribunal must determine whether it has been on the grounds of age or for some other reason – see Nagarajan v London Regional Transport [1999] IRLR 572 HL.

52.	Unreasonable conduct does not necessarily equate to evidence of direct discrimination – see Singh v Biotechnology and Biological Sciences Research [2011] EqLR 1248 CS.

53.	The burden of proof can shift to the respondent where the claimant establishes facts from which the tribunal could conclude that there has been direct discrimination (see Igen v Wong [2005] IRLR 258 CA).  The facts so established must be more than simply a difference in age and a difference in treatment, there must be further evidence from which the tribunal could conclude that there has been discrimination (see Madarassy v Nomura International PLC [2007] IRLR 246 CA.)

Conclusion

54.	This is not a case where there is an actual comparator available to assist in judging whether or not the claimant has suffered less favourable treatment on the grounds of age.  The tribunal accepts the submissions made on behalf of the respondent that an appropriate hypothetical comparator is an employee who is considerably younger than 65 and who says that they may want to resign and then resiles from that position.

55.	At the heart of the claim is whether or not the claimant has suffered less favourable treatment on the grounds of his age.  On the evidence, the tribunal is not satisfied that the claimant suffered such treatment.  

56.	The origins of this claim lie in a misunderstanding as to the claimant’s future intentions concerning retirement.  Due to the claimant’s own words and conduct at a time when he mistakenly believed that he was subject to a default retirement age of 65, by January 2013 both Mr Hyndes and Ms Whiteside held an honest and genuine belief that the claimant had formed an intention to retire in July 2013.

57.	It is deeply unfortunate that once the misunderstanding as to the claimant’s future intentions came to light at the meeting on 24 January 2013, that Mr Hyndes was unable to contain his expressions of surprise at the claimant’s apparent change of heart.  It was inappropriate for him to return to this theme both in his subsequent email and at the meeting on 6 February.  Quite simply Mr Hyndes’ personal feelings of surprise at the claimant’s change of heart are irrelevant and have no impact on the claimant’s right, if he so wishes, to continue in the respondent’s employment subject only to compliance with the terms and conditions of his contract of employment. 

58.	The tribunal finds that, in contrast to Mr Hyndes, Ms Whiteside has conducted herself entirely appropriately in respect of the issue of the claimant’s retirement.  Once it became clear that there had been a misunderstanding as to the claimant’s intentions she approached the issue openly, seeking only to clarify the claimant’s position and whether or not he wished to work on a part-time or full-time basis. 

59.	Ms Whiteside understood that the principal reason for the meeting on 6 February was to deal with the personnel issue as to whether the claimant was going to work part-time or full-time post July 2013.  She did not anticipate that performance issues would be raised by Mr Hyndes.

60.	Unfortunately, in hijacking a meeting which should have been driven by the personnel director Ms Whiteside, Mr Hyndes conflated two entirely separate issues, namely retirement and performance.  Any concerns which Mr Hyndes had about the claimant’s performance should have been raised in a separate process.  If he had done so, there would have been no scope for confusion between performance related issues and the claimant’s legal right to continue in the respondent’s employment post 65 if so wishes. 

61.	The fact that Mr Hyndes’ conduct was ill-judged, does not however establish that the claimant has suffered less favourable treatment on the grounds of age.

62.	In his closing submissions, Mr Caher who represents the claimant states, ‘The conduct of the Production Director in threatening the claimant with a difficult future in the company and treating him with such hostility, and demeaning him, due to the claimant expressing a desire to work beyond 65 years, amounts to direct discrimination as a result of age.’ 

63.	The tribunal is not satisfied that the younger hypothetical comparator would have been treated any more favourably than the claimant.  The respondent has a clear and established non-discriminatory policy in respect of employees who are 65 and older.  This policy has also been applied by the respondent to the claimant who remains employed despite having passed his 65th birthday. 

64.	The question of the claimant’s retirement was not raised by the respondent as a matter of course in January 2013.  The subject arose as a result of genuine misunderstanding to which the claimant had contributed.  Once the misunderstanding became clear, the respondent’s personnel director sought to clarify the claimant’s position.  The ill-judged comments of Mr Hyndes at the meeting on 6 February must be balanced against the appropriate position adopted by Ms Whiteside in that meeting.  

65.	Mr Hyndes’ treatment of the claimant at that meeting was not motivated by the claimant’s age but by concerns about his performance.  Where these concerns existed they would have been raised in respect of any employee regardless of age.

66.	In all the circumstances the claim is dismissed.

Chairman

Date and place of hearing:  18, 19, 20 November 2013, Belfast.

Date decision recorded in register and issued to parties: