FAIR EMPLOYMENT TRIBUNAL

CASE REF:  00629/97FET

APPLICANT:	Kenneth Beck

RESPONDENT:	H & P Campbell Limited

DECISION
The unanimous decision of the tribunal is that the respondent unlawfully discriminated against the applicant on the grounds of his religious belief/political opinion and the tribunal order the respondent to pay to the applicant the sum of £5,479 by way of compensation including interest.

With the agreement of both representatives the respondent’s title was amended to that shown above.

Appearances:
The applicant was represented by Mr J Wells MLA.
The respondent was represented by Ms Rosemary Connolly of Rosemary Connolly Solicitors.

1.	The applicant had been employed by the respondent as a labourer for twelve years when he left the respondent’s employment.  He had worked on a variety of building sites for the respondent and it was accepted by all that he was a good worker.  He was a Protestant and the only Protestant in his regular squad of five or six workers and he would frequently be the only Protestant on a particular site.  He got on well with his fellow workers and travelled in a van with them to the various building sites on which they worked.  

2.	The respondent company are building contractors based in Newry.  Their workforce was comprised of between eighty per cent and eight six per cent perceived Roman Catholics.  The company have worked in collaboration with the Fair Employment Commission with a view to redressing this situation and would seek to place advertisements for workers and sub-contractors in places such as Banbridge, Tandragee and Portadown as well as Newry.  The respondent had a general policy with regard to equal opportunities in the workplace in place from 1995.  

3.	In July 1997 the applicant was working on a house building site in Ardoyne.  During tea breaks on site he would have been in a hut referred to as the canteen which was used by the respondent’s employees and the sub-contractors who were working on the site.  During the course of the tea breaks there were comments of a sectarian nature from time to time mainly from the sub-contractors including references to particular snooker players being “orange bs” and the applicant felt uncomfortable about these sectarian type remarks.  At a fellow worker’s suggestion he stopped taking his tea in the canteen and instead sat in a van with the other worker during tea breaks.  At least one of the respondent’s other workers spoke to the sub-contractors on one occasion and warned them about the use of such sectarian comment and pointed out that these comments could be particularly offensive to the applicant.  The applicant told the tribunal that he believed these sectarian comments were directed at him. 

4.	The applicant alleged that a further incident took place in mid August 1997 when Sinn Fein representatives came on site looking for a bicycle which had been stolen.  While the applicant was in no way involved in the incident or with the Sinn Fein representatives, he asked Mr L who was a trainee foreman about what had happened and Mr L had told him that he had asked the Sinn Fein representatives what the problem was as the bike had come from an “orangey area” and been taken from an “orange b”.

5.	As additional proof of continual sectarian harassment the applicant referred to an incident which took place about two years prior to leaving his employment with the respondent when a young apprentice who was the son of the applicant’s foreman whistled the Soldiers Song in a room beside where the applicant was working in Mount Vernon.  The applicant also referred to an incident around 1995 where the same foreman although attending the applicant’s mother’s funeral failed to notify the respondent’s office that he would be absent on bereavement leave.  As a result of this the applicant was initially not paid for the two days bereavement leave to which he was entitled.  This matter was rectified as soon as the applicant brought it to the attention of the respondent’s wages office.  

6.	Early in July 1997 the applicant approached Mr Harry Campbell with a view to having the amount of his wages altered to enable him to claim Working Families’ Tax Credit.  Mr Campbell having considered this request indicated to the applicant that this was not possible.  The applicant sustained an injury to his back sometime at the beginning of August 1997.  He worked on for around four weeks but went on sick leave at the end of August and he received statutory sick pay.  He obtained the Working Families’ Tax Credit from 1 October 1997.

7.	On 20 September 1997 the applicant telephoned Mr Sean Campbell the respondent’s senior director and informed him that he did not intend to return to work.  On being pressed the applicant told Mr Campbell that it was due to the atmosphere on site and comments being made particularly by the sub-contracted bricklayers which he found offensive.  Advice was immediately sought from the Fair Employment Commission by the respondent company about the applicant’s complaints and both Mr Sean Campbell and Mr Harry Campbell, the other director went to the applicant’s home on Wednesday 24 September.  The Campbells told him that they did not want any such behaviour as he had complained about to occur on their sites and indicated that it was intended that a company policy statement should be issued to bring the attention of all the employees to proper behaviour.  They suggested it could either be issued immediately or held until the applicant had the opportunity to consider whether he would be prepared to return to work and he was offered a choice of sites.  The applicant insisted that he really did not wish to return to work but was asked to defer his decision until the Friday.  The applicant telephoned Mr Campbell and said that he wasn’t going to come back to work.  Mr Campbell offered him the opportunity to go to a site at Seapatrick which was close to his home but the applicant declined.  Mr Campbell asked the applicant if he objected to the respondent investigating his complaint and the applicant indicated that he had no objection.

8.	The investigation commenced and statements were taken from all the respondent’s employees who had been mentioned by the applicant.  The applicant had been unable to give names of any of the sub-contractors whom he alleged had made comments.  Mr McG who was related to the applicant by marriage and who travelled with him in the van everyday was also interviewed.  Having conducted the investigation the respondent accepted that there had been comments of a sectarian nature made in the applicant’s presence.

9.	As a result of this investigation the respondent caused a letter to be sent to each sub-contractor about the undesirability of sectarian harassment and advising them of their obligations of providing a neutral working environment.  The company also introduced a specific policy with regard to sectarian harassment in the workplace and this was promulgated to all employees and sub-contractors and a training programme was set up to deal specifically with harassment training.  All these steps were taken in the early part of October 1997 as a result of the applicant’s information about the reason for his leaving.

10.	The applicant maintained that identification of him to the subcontractors was done for the purpose of identifying him as a Protestant on a site where the vast majority of the workers including the sub-contractors were Roman Catholic.  The applicant also maintained that the incident where the apprentice whistled the Soldiers Song was also for the purpose of identifying him to persons unknown as a Protestant and that the initial failure to pay him bereavement leave was also because he was a Protestant.  The applicant also maintained that the interviewing of his wife’s brother-in-law Mr McG once the applicant had made his complaint to his employers was for the purpose of putting pressure on him to withdraw his complaint.  The tribunal found some of these allegations to be far fetched and introduced for the purpose of bolstering the applicant’s case.

11.	While working for the respondent the applicant had for some time had a part-time job working two to three evenings per week loading and unloading lorries.  Sometime in September while he was off work due to sickness the foreman on his evening job offered him a full-time position and he commenced this employment as soon as his sick certificate expired around the end of September or beginning of October.  There was effectively no difference between the pay which the applicant received in this new job and the pay which he had been receiving with the respondent company.  He did not however have the benefit of the extra eight to twelve hours which he had earned as a part-time worker.  The applicant claimed that he had lost contact with the people whom he had worked and travelled with at the respondent company and that as a result of working only at nights in his new employment he had no social life.  The applicant has now progressed to being the Assistant Depot Manager in his new job.  

12.	Both representatives provided the tribunal with written submissions which are attached to this decision and are intended to form part of it.  

13.	The tribunal having heard the evidence was satisfied that unacceptable sectarian comments were made within the applicant’s hearing including a comment about “shooting orange bs” and the tribunal considered that knowledge of the prevalence of such sectarian remarks would certainly have been known at foreman level if not at Director level.  In the circumstances while the Tribunal would commend the swift and proper action taken by the respondent company in the immediate aftermath of the applicant’s complaint, nevertheless there was an obligation to provide a neutral working environment on the respondent prior to this and steps should have been taken before these incidents to make both the respondent’s employees and its sub-contractors aware of their obligations.  The tribunal therefore concluded that the respondent had failed to provide a neutral working environment and in exposing the applicant to indirect sectarian comment had unlawfully discriminated against the applicant on the grounds of his religious belief/political opinion.  

14.	In considering the amount of compensation to be awarded the tribunal took into account the applicant’s admission that his wages were not appreciably different in his new job as opposed to the job with the respondent and that he was not looking for compensation for wages lost.  

15.	The Tribunal went on to consider an award for injury to the applicant’s feelings.  The tribunal accepted that the applicant found the sectarian comments made offensive and that they made him feel apprehensive.  However the Tribunal found that some of the incidents introduced by the applicant such as the whistling of the soldiers’ song and the failure to pay bereavement leave immediately were simply introduced to bolster the applicant’s case.  The Tribunal also found his allegation of a total lack of social life and missing socialising with his fellow workers in Campbells somewhat difficult to believe particularly as his new job did not involve working on Saturday nights.  The Tribunal also found the allegation of the unnecessary involvement of his wife’s brother-in-law and the suggested rift between the two families as not being capable of being attributed to the respondent’s actions.  In these circumstances and bearing in mind that the applicant knew that he had a full-time job to go to immediately on leaving the respondent’s employment, the tribunal considered that this was a case where a modest sum should be awarded for injury to feelings.  The Tribunal therefore award the sum of £4,000 in this respect.  

16.	The Tribunal considered whether to award interest under the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995 and concluded that it should include interest on the sum so awarded.

17.	The Tribunal found that the last act of discrimination occurred when Mr L recounted the comments made about the “orangey area” and “orangey bicycle owner” which the Tribunal believe occurred sometime in mid August say 18th August 1997.  The applicant is therefore entitled to a sum of £1,479 for interest covering the period from 18th August 1997 to 12 March 2002 (the date of calculation).

18.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992. 

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Date and place of hearing:   21 and 22 January 2002, Belfast

Date decision recorded in register and issued to parties: 27 March 2002