FAIR EMPLOYMENT TRIBUNAL

CASE REF:	 458/02FET

APPLICANT:	Paul Hoy

RESPONDENT:	 Northern Ireland Railways (Translink)

DECISION
The unanimous decision of the Tribunal is that only one of the applicant’s claims of victimisation is within the statutory time limit.  The other claims are separate and the Tribunal has determined that they outside the statutory time limit and they are dismissed.   The claim relating to the incident in October 2002 is also dismissed. 

Appearances:
The applicant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission.  
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Macauley & Ritchie, Solicitors.

1.	 The applicant was employed as a train driver with Northern Ireland Railways and he worked from Portadown station.  He is a Roman Catholic.  It is common case that in November 2000 there was a recruitment exercise for a post of Technical Inspector (Traction).  The applicant applied for this post along with Mr Mercer who was the successful candidate.  The applicant complained to the respondent company about the recruitment process and he also submitted a claim to the Fair Employment Tribunal, case reference 70/01.  As a result of the applicant’s complaint, the respondent investigated the recruitment exercise and was not satisfied that it was properly conducted.  As a result Mr Mercer was not appointed to the post at that time and the recruitment process was started again.  The applicant complained that Mr Mercer and other colleagues victimised him because he had brought the original complaint to the Tribunal.

2.	At the outset of the hearing the respondent stated that they considered a number of the applicant’s complaints were outside the statutory time limit in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 but they were satisfied that the Tribunal should hear all the relevant circumstances before deciding which acts were within the time limit.  The applicant submitted that the acts continued over a period and concluded at the end of the period.  The last incident of treatment about which the applicant was complaining was in October 2002 when pages from a diary were allegedly removed.  The diary was in his kit bag which had been left in the signing on room in Portadown station.  He alleged this was a further act of victimisation against him.

3.	In order to determine the time of these various incidents the Tribunal sets them out as follows.  The applicant had lodged his first claim to the Fair Employment Tribunal on 16 January 2001.  It was subsequently resolved.  The applicant withdrew his claim and received no compensation.  The job was not offered to Gary Mercer at that time and the recruitment exercise was restarted.  It was common case that the applicant’s concern related to the essential criteria of having a valid driving licence which was not the case for the successful candidate, Mr Mercer.  It was also common case that the applicant was not the reserve candidate and was further down the ranking order of candidates so that he would not have been appointed if Mr Mercer’s appointment was rejected.  

4.	When Gary Mercer found out that his appointment was not going ahead he raised a grievance on 26 January 2001 and he named Mr Hoy in his grievance.  As a result Mr Philip O’Neill, who was acting Central Area Operations Manager, held a meeting under the informal harassment process with Mr Mercer and then with Mr Hoy.  As a result he decided to see whether a meeting between both parties would prove beneficial in airing their relative grievances.  The meeting took place on 15 February 2001.  It was common case that at the end of this meeting both parties shook hands and agreed to set aside their differences.  Mr O’Neill followed up this meeting with telephone calls to both parties and although they both retained their feeling of grievance Mr O’Neill was satisfied that the matter was closed.

5.	The next incident did not happen until 29 June 2001.  The applicant telephoned Mr O’Neill.  He stated that he was being victimised by the Company because he had to attend the Company doctor in connection with a period of sick leave.  The Tribunal heard evidence in relation to this and the Company’s attitude to an increased absence level which appeared to be related to industrial action.  The Company had decided that anyone who phoned in sick would be referred immediately to the Occupational Health Doctor.  The Tribunal found, having heard evidence, that this was not less favourable treatment of the applicant and was applied to everyone who went on stress absence at that time.  

6.	Mr O’Neill asked the applicant to come and see him at Portadown station, which he did, on 3 July 2001.  The applicant complained of harassment from Gary Mercer.  The applicant claimed that the actions towards him were based on religion.  He stated that Gary Mercer was blaming the applicant for the break-up of his marriage.  He also told the Tribunal that his car had been damaged in the staff car park the week before this meeting and that was why he had gone off on stress as it was a further incident of harassment towards him.  At this time he told Mr O’Neill that he had applied to the Fair Employment Commission to take a case against the Company.  He stated to Mr O’Neill that he did not feel safe.  The Tribunal noted his evidence at this hearing in which he alleged that Gary Mercer wanted to have him knee-capped.  That was not the evidence that was given to Mr O’Neill at the time.  He did not name Gary Mercer specifically but mentioned a fellow employee who had approached him and told him he would be knee-capped.  The Tribunal preferred Mr O’Neill’s evidence on this point to that of the applicant.  Mr O’Neill was most concerned about these allegations.  He explained to the applicant that he must keep a diary of any comments that were made to him and be diligent in logging date, time and place and who made the comments.  Throughout this process the applicant opted for the informal harassment procedure.  The Tribunal accepted that the Company was becoming more concerned about these incidents and Mr Hamilton, who became involved after Mr O’Neill, wanted the applicant to choose the formal route.  The Tribunal accepted the evidence from the respondent Company that the applicant and his trade union representative at all times wanted to keep the matter informal.  

7.	There was a further incident in October 2001 when two posters had been put up in the station on the wall at Portadown.  One was advertising a day at the races.  The other was for a staff Christmas dinner.  Both notices had writing put on them which was offensive.  The applicant claimed that it was directed to him personally.  The Tribunal saw the notice in relation to the Christmas dinner and accepted that the hotel mentioned would be perceived to be in a Catholic area.  The writing on the notice said “why” beside the hotel name and at the bottom put “PS – no prods”.  The Tribunal accepted that the notice referred to booking with J Griffin or P Hoy.  Both these men were Roman Catholics.  The “Day at the Races” had a statement at the bottom putting “except u no Hue” as separate words.  The applicant stated that this meant him.  He had no other evidence in relation to this.  

8.	Mr A Hamilton, who was the Industrial Relations Manager, met the applicant and his union representative.  It was agreed that they discussed whether a handwriting expert should be called or CCTV installed in other parts of the station.  The Tribunal accepted that the respondent did look into both aspects of this and decided that there was not sufficient writing to call in a handwriting expert.  They did look at the writing of all train drivers.  The Tribunal accepted that as the notices were on a wall in Portadown station the respondent would have had to look at the handwriting of a much bigger group of people than just the train drivers.  The applicant also stated that the tyres on his car had been deflated on a number of occasions and he had reported to Billy Gilpin.  The Tribunal does not accept this as evidence because there is no record contained in the applicant’s diaries of this, despite having been told to do so by Mr O’Neill.  Certainly in terms of a continuing conduct against him the Tribunal does not accept that his assertions are factually proved.  Similarly, with the issue of dust caps being removed from his tyres, the Tribunal does not consider that the applicant has proved this assertion.  What has been proved is that Portadown car park is open to staff and members of the public.  There are CCTV cameras there and the Tribunal accepts that although the CCTV camera did record on the night of 26 June 2001 and there were people seen in the vicinity of the applicant’s car, it is not possible to tie this allegation down to either respondent employees or Gary Mercer in particular.  

9.	Whilst Dominic Valelly, the Station Manager, did look at the tape, the Tribunal accepted that it was a tape which would have taken ten hours to watch and that Mr Valelly told this to the applicant.  The applicant blames the respondent for not doing more in relation to this tape and whilst it may be a separate incident of alleged victimisation, the Tribunal is satisfied that it was a one-off incident in June 2001.  The Tribunal do not find any specific evidence relating to any ongoing incidents from November 2001 until October 2002 with the kit-bag incident.  

10.	The applicant stated he had come into the signing on room at 4.15 a.m.  He opened his bag and set it down while he went outside to get the train started.  He came back to find that his bag had been opened and his black diary, in which he was noting incidents, had been opened and some pages taken out of it.  He reported this to the Area Manager who in turn referred it to Mr Gilpin.  Mr Gilpin asked Stephen Leeman, the drivers’ assessor, to investigate the matter.  The applicant objected to Stephen Leeman investigating the matter because he stated that he was not in management.  He had never undertaken such a task before or since.  There was a conflict of evidence as to whether the applicant said he would only discuss the incident with the Managing Director when he had his solicitor present, as recorded by Mr Leeman, or whether the applicant said that he wanted a manager to deal with it, which was the applicant’s evidence.  He stated that he wrote to the respondent and sent the letter recorded delivery but that the letter came back opened and obviously sellotaped.  The Tribunal questions why the applicant did not produce a certificate for recorded delivery letter, or the letter itself and the envelope which would have been more objective evidence of posting the letter to Mr Gilpin.  This becomes particularly important when the applicant says it is yet another incident of victimisation and he was in possession of evidence that would have substantiated this to some extent.  

11.	The respondent Company wrote to the applicant on 14 November 2001 and Mr Gilpin asked him to reconsider his refusal to co-operate with Mr Leeman and to contact him to arrange a meeting to enable the matter to be fully investigated.  The applicant did not do so.  The originating application in this complaint was lodged with the Fair Employment Tribunal on 5 December 2002.  

Decision of the Tribunal

12.	The applicant has presented evidence in relation to a number of specific complaints and they relate to February 2001, July 2001, October/November 2001 and finally October 2002.  Whilst the Tribunal has heard evidence in relation to an ongoing problem raised by the applicant in relation to Portadown station, the Tribunal has not been satisfied that it was a continuing policy conducted by the Company or individuals in relation to victimising him.  The evidence as produced and accepted by the Tribunal has related to specific one-off incidents, each of which was capable of being the subject of a claim of discrimination.  Each incident was fully investigated and if the applicant had not been satisfied with the outcome of the investigation he could have presented a claim in relation to each incident.  The Tribunal accepted that throughout these proceedings he was being advised by a solicitor and the Fair Employment Commission and there was nothing to stop him presenting claims in relation to those incidents.  He has made allegations that the treatment against him carried on during the intervening periods.  The Tribunal has not found evidence of this.  We say this despite the fact that he had been advised to keep a diary of specific incidents and he was being advised by his union and solicitors.  Vague allegations in relation to a course of treatment are not sufficient to prove that all these matters should be seen as a continuous course of conduct by the respondent against the applicant.  In the decision in Barclays Bank Plc –v- Kapur & Others 1989 ICR 753 CA it states that an act will be regarded as extending over a period, and so treated as done at the end of that period if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant.  In the case of Littlewoods Organisation Plc –v- Traynor 1993 IRLR, an example of a continuing act was where employers failed to implement remedial measures which they had promised to take in response to an employee’s complaint of racial abuse.  

13.	In the present case the respondent did deal with each act complained of by the applicant.  They investigated and although we have some difficulties with the management structure which was somewhat complicated between those in buses, trains and railway stations, the Tribunal accept that they did try and investigate as far as possible.  However, the applicant at all times wanted to keep the process informal, although towards the end Mr Hamilton was asking applicant to formalise his complaints.  The ‘Tribunal also considered the case of Hendricks –v- Metropolitan Police Commissioner 2003 IRLR 96.  Mummery J who gave the decision said “the focus should instead be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably.  The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time had begun to run from the date when each specific act was committed.  The effect of this decision is to make it somewhat easier for an applicant to establish a continuing act in cases where he or she is attempting to show discrimination…. It means that the applicant does not have to prove that the incidents indicate the existence of some sort of general policy or practice but rather that the incidents are interlinking and discriminatory and that the employer is responsible for this continuing state of affairs”.  The Tribunal did consider this case and is satisfied that in the present case, the evidence in relation to interlinking of acts and a continuing practice or policy from July 2001 through to October 2002 apart from the incident in November 2001 in relation to the posters, is by no means proved.  The applicant has made allegations which could have been capable of corroboration but witnesses have not been called, and his diary, which should have been a contemporaneous record, does not corroborate an ongoing pattern of victimisation by persons against him.  In conclusion, the one act which is within the time limit is the kit-bag incident in October 2002.  This in itself does not amount to victimisation by the respondent.  The applicant makes no allegation about a specific individual.  It does seem somewhat strange that if a person was intent in obtaining the applicant’s notebook and evidence, such a person in a hurry would remove three or four pages of this book.  It is a small diary and it would have been a situation where more likely than not, the whole diary would have been taken.  In any event the applicant did not co-operate with the respondent to have the matter fully investigated and the Tribunal is not in a position to make a finding of victimisation in relation to this.  Accordingly the applicant’s claim to this Tribunal is dismissed.

_____________________________________
M P PRICE
Vice President:

Date and place of hearing:   7-10 September 2004, Belfast

Date decision recorded in register and issued to parties: