THE INDUSTRIAL TRIBUNALS

CASE REF:	138/09

CLAIMANT:			Jim (James) Joseph Connolly

RESPONDENT:		Child Maintenance & Enforcement Division, 
Department for Social Development 

DECISION
The unanimous decision of the tribunal is that the claimant’s claim he was less favourably treated than the respondent treated a comparable full-time worker, pursuant to the        Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, is not well-founded; and the claim is therefore dismissed.

Constitution of Tribunal:
Chairman:		Mr N Drennan QC
Members:		Mr P Killen
			Mr E Miller

Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Reasons 

1.1	The claimant presented a claim to the tribunal on 12 December 2008, in which he made a claim pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 (‘the 2000 Regulations’) that the respondent had infringed a right conferred on him by Regulation 5 of the 2000 Regulations; and, in particular, that as a part-time worker he had been subjected to less favourable treatment in relation to his training and development by the respondent in the period 18 August 2008 – 22 September 2008.

The respondent presented to the tribunal a response to the claimant’s claim on 21 March 2009, in which the respondent denied the claimant’s claim, pursuant to the 2000 Regulations and, inter alia, denied that he had been less favourably treated by the respondent on account of his part-time working status in relation to such matters.

1.2	At a Case Management Discussion on 29 April 2009, as set out in the Record of Proceedings, dated 5 May 2009, the following agreed issues were identified:-

Preliminary issues :

(i)	Did the claimant satisfy the grievance requirements of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004?

Legal issues :

(i)	Was the claimant less favourably treated as regards the terms of his contract on the ground of his part-time working status contrary to Regulation 5(1) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000?

(ii)	Whether the claimant was subjected to any other detriment on the ground that he was a part-time worker?

(iii)	If the answer to (i) or (ii) is yes, was the treatment objectively justified?

(iv)	Is the claimant a part-time worker according to Regulation 2 of the 2000 Regulations?

1.3	At the outset of the hearing, Mr Sands confirmed that the preliminary issue, referred to above, was not required to be determined by the tribunal as he accepted the statutory grievance procedures contained in the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’) did not apply to a claim pursuant to the 2000 Regulations; and, even if the said procedures did apply to such a claim, the respondent accepted the claimant had presented, on 17 September 2008, a grievance to the respondent, for the purposes of the said 2003 Order and 2004 Regulations.

1.4	At the outset of the hearing, the claimant confirmed that the only remedy he was seeking from the tribunal was declaratory relief, pursuant to Regulation 8 of the 2000 Regulations, and he was not making any claim for financial loss.  It was further accepted by the parties that, pursuant to Regulation 8(11) of the 2000 Regulations, there is no entitlement to any compensation for injury to feelings for any infringement of any right conferred under Regulation 5 of the 2000 Regulations.  

1.5	It was agreed by the parties that any acts, relevant to the claimant’s claim, were done by persons who were employees of the respondent and were done in the course of any such employee’s employment with the respondent; and that the respondent was therefore vicariously liable for any such acts (see further Regulation 11 of the 2000 Regulations).

1.6	Although the claimant had not raised, at the Case Management Discussion on 29 April 2009, the issue of an alleged failure of the respondent, pursuant to Regulation 6 of the 2000 Regulations, to provide to him a written statement of reasons for the alleged less favourable treatment, the tribunal granted the claimant’s application, at the outset of the proceedings, that he should be entitled to raise the said issue, during the course of the proceedings.  The respondent’s representative objected to the claimant raising this issue at this late stage.  In granting the application the tribunal took into account that the claimant, at all material times, was unrepresented and it decided he should be permitted to do so, having regard to the terms of the overriding objective, in circumstances where the respondent, who was legally represented, had sufficient opportunity to obtain instructions to deal with any such issue raised by the claimant during the course of the proceedings, and no issue of prejudice therefore arose.

2.1	Insofar as it is relevant and material to the claimant’s claim, it is provided under the 2000 Regulations as follows:-

“Regulation 2

(1)	A worker is a full-time worker for the purposes of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is identifiable as a full-time worker.

(2)	A worker is a part-time worker for the purposes of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker’s employer under the same type of contract, is not identifiable as a full-time worker.

…

(4)	A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place –

(a)	both workers are –

(i)	employed by the same employer under the same type of contract, and

(ii)	engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and

(b)	the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.  

Regulation 5

(1)	A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –

(a)	as regards the terms of his contract; or

(b)	by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.

(2)	The right conferred by paragraph (1) applies only if –

(a)	the treatment is on the ground that the worker is a part-time worker, and

(b)	the treatment is not justified on objective grounds.

(3)	In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle should be applied unless it is inappropriate.

…

Regulation 6

(1)	If a worker who considers that his employer may have treated him in a manner which infringes a right conferred on him by Regulation 5 requests in writing from his employer a written statement giving particulars of the reasons for the treatment, the worker is entitled to be provided with such a statement within twenty-one days of his request.

(2)	A written statement under this Regulation is admissible as evidence in any proceedings under these Regulations.

(3)	If it appears to the tribunal in any proceedings under these Regulations –

(a)	that the employer deliberately, and without reasonable excuse, omitted to provide a written statement, or

(b)	that the written statement is evasive or equivocal,

it may draw an inference which it considers it just and equitable to draw, including an inference that the employer has infringed the right in question.  

…

Regulation 8

(1)	… a worker may present a complaint to an industrial tribunal that his employer has infringed a right conferred on him by Regulation 5, or

…
(6)	If a worker presents a complaint under this Regulation it is for the employer to identify the ground for the less favourable treatment or detriment.

(7)	Where an industrial tribunal finds that a complaint presented to it under this Regulation is well-founded, it shall take such of the following steps as it considers just and equitable –

(a)	making a declaration as to the rights of the complainant and the employer in relation to the matters to which the complaint relates;

…
		Regulation 11

(1)	Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as also done by his employer, whether or not it was done with the employer’s knowledge or approval.

… .”

3.1	Having heard oral evidence from the claimant and Ms N Connor, the claimant’s EOI, and after consideration of the documents referred to in the course of the proceedings by the parties, and the oral submissions of the claimant and Mr Sands, the tribunal made the following findings of fact, insofar as relevant and material to the issues to be determined in this matter by the tribunal.  

At the outset of the hearing, Mr Sands, on behalf of the respondent, accepted that, for the purposes of these proceedings, the claimant was a part-time worker for the purposes of Regulation 2 of the 2000 Regulations.

3.2	The claimant, at all material times, worked in the Child Maintenance & Enforcement Division of the respondent (previously known as the CSA).  The said Division is composed of various sections including, inter alia, the Employed Section, the Benefits Section, Complex Case Section, National Helpline Section, and Complaints and Old Scheme Section (referred to as CSCS).  The claimant, like all employees of the respondent, was required, under his contract of employment, to work in any of the above Sections and, at all material times, he remained at the same grade, with the same rate of pay and with the same opportunities for advancement.  Employees were frequently required by the respondent to transfer between the different Sections, depending on the nature of the work to be carried out at the relevant time.  

3.3	At all material times, the claimant, as a part-time worker, worked 36 hours over a three day period and, in particular, he was contracted each week to work from Monday to Wednesday between 8.00 am and 8.00 pm.  Very occasionally, if the claimant could make alternative arrangements, by agreement with the respondent, he worked different hours/days to those set out above.  However, the claimant generally was unable to change his normal work pattern, due to his family responsibilities and his other casual work he carried out with the Electoral Office.  

3.4	In or about 2007, the claimant worked in the Employed Section in Client Services – this Section dealt with non-resident parents who were employed.  At that time the team in the Section were using the CS2 computer system; but a major computer system upgrade (PR1 – Productivity Release 1) was due to commence in or about September 2008.  

3.5	During the period in or about December 2007 – February 2008, arrangements were made for the claimant to be given desk-based training by the respondent, along with two other part-time workers.  This desk-based training was arranged to accommodate their part-time working patterns.  They were asked, if possible, not to take leave during the period of the desk-based training in order to be able to complete the training.  However, the claimant, during the above period, had considerable absence, because he took flexi leave/sick absence/union facility time – with the result, that, unlike the other two part-time workers, the claimant did not complete his desk-based training.  As a consequence, in or about February 2008, the claimant’s work in the Section was restricted, for the most part, to       ‘one-to-one’ work.  Such work related to the allocation of money recovered unexpectedly.  Prior to the introduction of the new computer system, PR1, in or about September 2008, there was a considerable amount of work to be done in the Section involving ‘one-to-one’ work; but following the introduction of the new computer system, it was realised this work would be considerably reduced.  This was because, under the new system, such work would normally be able to be automatically completed by the new system.  In anticipation of this change, following the introduction of the new system, the respondent was aware that, if the claimant was going to be able to continue to work in the Employed Section, following the implementation of PR1, the nature of the work in the Employed Section, following that change, would require him to have classroom-based training.  This would enable him to be trained in the new PR1 system.  So, in or about July 2008, the claimant was asked by Ms Connor (the EOI in his team) whether he would be available to attend any of the upcoming classroom-based training courses relating to the new PR1 computer system.  These courses had to be organised on a full-time basis, in contrast to the desk-based training courses, and were due to take place for five days a week for approximately three months.  The claimant, when he was told that these PR1 training courses would be over such a period, said he was unable to do so, given his said normal work pattern – and he confirmed this was the position whether the hours each day were from 9.00 am to 5.00 pm or, as was suggested as a possible alternative, from midday to 8.00 pm.  He was not in a position, for reasons set out previously, to consent to a five day working over such a period in order to carry out such classroom-based training.  This training was organised and given by the Training & Development Unit of the respondent to groups of relevant employees.  It was neither practicable nor possible, in the circumstances, to arrange separate classroom-based training for the claimant over his normal three day working pattern, as set out above.  Indeed, the claimant fairly and frankly accepted that such classroom-based training could never have been arranged just for him, having regard, not least, to the cost involved.  

3.6	In light of his inability to make himself available for such training, the claimant was also told by Ms Connor, during the course of this conversation, his likely destination, following the introduction of the PR1 system, would be that he would be transferred from the Employed Section to the National Helpline Section.  This was because, for the reasons set out above, there would not be sufficient work for him to do on    ‘one-to-one’ work in the Employed Section, following the introduction of the new computer system.  This conversation between Ms Connor and the claimant, in or about July 2008, took place as she was preparing to go on annual leave.  Unfortunately, as a consequence, the conversation with the claimant was somewhat rushed and informal and she did not go into any detail in relation to precisely what work the claimant would be doing in future; and, in particular, if, as seemed likely to her at the time, in the National Helpline Section.  It seems, at the time of this conversation, no formal decision had been taken by the respondent to transfer the claimant to the National Helpline Section.  It was unfortunate that there was no such detailed discussion, as it might have avoided some of the problems that subsequently arose.  In particular, it might have become apparent, at that time, that the claimant would be unwilling, if the transfer was confirmed, to move to the National Helpline Section for the reasons that subsequently emerged.  In particular, Ms Connor did not, in the course of this informal discussion, go into the detail of the background why she considered the National Helpline Section would be the likely destination for the claimant, as part of the respondent’s pre-planning, in relation to where the claimant would be working following the upgrade of the computer system in September 2008; and in the context of his inability to take on the classroom-based training, as set out above.  However, the tribunal is satisfied that she had good reason at that time for informing the claimant that the National Helpline Section would be the claimant’s likely destination.  This was because she knew there were vacancies in that Section at that time and, in particular, she was aware that the National Helpline Section would be able to give the claimant access to desk-based training.  In addition, she knew the National Helpline Section was managed from 8.00 am to 8.00 pm and such management structure would have then been available to better support the normal hours that the claimant worked on the three days each week.  The tribunal was satisfied that the Benefits Section was not under consideration by the respondent as a possible destination for the claimant, because at that time it was over-resourced and had no vacancies.  During the course of this meeting, Ms Connor did not go into any detail about such a potential move to the National Helpline Section, as the matter had not been finalised at the time of her conversation.  She told him she would let him know more definite details, when she returned from her leave.  The tribunal is satisfied that the claimant indicated to  her he was ‘happy enough’ to go the National Helpline Section, but did ask Ms Connor to let him know the details closer to the time.  Given the informal nature of the meeting, and the absence of any detail, it could not be said that the claimant had agreed to such a transfer, albeit it was understandable that Ms Connor, in light of the above initial reaction, had assumed that there would be no problem in reaching such an agreement at a later stage, following her return from leave.  

3.7	In light of the foregoing, the respondent planned to transfer the claimant in or about August 2008 to the National Helpline Section; but due to a direction relating to a temporary freezing of staff within the National Helpline Section, the transfer to the National Helpline Section, for the period of the freeze, ceased to be an option for the respondent at that time.  In or about August 2008, at a time when it had been envisaged the claimant would have been transferred to the National Helpline Section, but was not able to be due to the freeze, there came a need for the respondent to set up a team to work in CSCS Section at Oyster House, commencing on or about 18 August 2008.  The necessity for this work to be carried out and a team of staff to be transferred to do it had nothing to do with the changes arising from the introduction of PR1.  This was urgent work which the respondent required to be carried out, at that time.  It was decided therefore to transfer the claimant to this work.  Others who were transferred to this team were full-time workers.  It was work which the claimant was able to do.  At the time, it was not known how long this work would last – although initially the claimant was told it might have a possible timescale of six/seven months.  In the event, the work only lasted for a matter of weeks until on or about 18 September 2008.  It was recognised by the respondent the Oyster House transfer of the claimant was not a long-term solution, given its temporary nature and the fact that the claimant could no longer remain in the Employed Section, because of his inability to do the classroom-based training which was required for the introduction of the PR1 system in September 2008.  Despite the Oyster House team transfer, there therefore still remained the necessity to find a place for the claimant where he would be able to do desk-based training on a permanent basis.  In relation to his transfer, on the temporary basis, to the Oyster House team, the tribunal has no doubt that the respondent’s management, who were responsible for that transfer, could have communicated in a better way to the claimant and, in particular,  the circumstances in which it had arisen.  Following the conclusion of the work at Oyster House, the claimant was unable to return to his previous Employed Section as there was now not sufficient work for him to do, following the introduction of the PR1 system .  However, by September 2008, the temporary freeze of staffing in the National Helpline Section had ended and the respondent reverted to its original intention to transfer the claimant to the National Helpline Section.  

3.8	On or about 9 September 2008, the claimant was informed that he was to be moved to the National Helpline Section, following the ending of the work at Oyster House.  Unlike the previous informal conversation with Ms Connor about such a potential move, the claimant was now told that such a move was to take place.  In light of her previous discussion in July 2008 with the claimant, prior to her holiday, Ms Connor did not expect there to be any problem in relation to such a transfer.  However, during conversations between the claimant and Ms Connor and Ms Bryce, the EOI at National Helpline Section, on 15 September 2008 the claimant made it clear that he was not prepared to transfer to the National Helpline Section, as he made it clear he would not do any work which involved him using a telephone headset.  If there had been a detailed discussion between Ms Connor and the claimant, at the end of July 2008, about the precise work that he might be required to do at the National Helpline Section, this difficulty might have emerged earlier.  A large proportion of the work in the National Helpline Section, as Ms Bryce confirmed to the claimant, involved the use of such headsets.  The claimant made it clear that he would not wear a headset, as he said he had not joined the respondent ‘to work in a call centre’.  It was not possible for the claimant to do work in the National Helpline Section by use of a handheld telephone.  Following advice from the respondent’s Personnel Section, it was decided that in view of the claimant’s objection to use a headset, the proposed move of the claimant to the National Helpline Section could not therefore proceed.  Personnel Section of the respondent advised that the claimant could not be required, under the terms of his contract of employment to wear such a headset.  In the circumstances, the respondent had no alternative but to accept this advice.

3.9	The respondent therefore, in the circumstances, had to consider in which Section the claimant could then be placed.  It was decided to move him to the Benefits Section from on or about 22 September 2008.  In this Section the respondent knew it was possible to give him access to desk-based training, which he would be able to undertake under his said work pattern.  For the reasons set out before, the claimant was unable to be returned to the Employed Section, following the introduction of PR1.  

3.10	Since his transfer to the Benefits Section, the claimant has continued to successfully carry out his work, with desk-based training provided by the respondent.  There was no evidence that the claimant’s career progression/ development has been affected by the said transfer and/or the fact that he has only been able to make use of desk-based training.  At all material times, the claimant’s appraisal/performance reviews have resulted in a Box 2 marking (performance significantly above requirements) and that his reviews/markings have been affected by any of the said transfers.  Also, there was no evidence that the absence of access to desk-based training, during the three week period from in or about 18 August 2008 – 22 September 2008, when the claimant was at Oyster House affected the claimant’s career progression and/or development in any way.

3.11	As indicated previously, the respondent’s initial intention had been to transfer the claimant to the National Helpline Section, for the reasons set out above.  It had vacancies in that Section and the tribunal accepted it was clearly appropriate for the respondent to decide to place an employee where there were vacancies, rather than in a Section, such as the Benefits Section, which was over-resourced and with no vacancies.  However, since the respondent was unable to return the claimant to the Employed Section, for the reasons set out before, after his period at Oyster House, the respondent had to find the claimant an appropriate Section in which to work.  The claimant was willing to transfer to the Benefits Section and, in particular, the respondent knew it was a Section where he could be given access to desk-based training.  In light of the foregoing, and despite the fact that the Benefits Section remained over-resourced and with no vacancies, the respondent, in the circumstances, decided to transfer the claimant to the Benefits Section from on or about 22 September 2008, following the ending of his work at Oyster House.  

3.12	During a series of e-mails in or about September 2008, the claimant wrote to Ms Connor seeking an explanations/reasons for the various transfers set out above.  Her detailed replies, which the tribunal found consistent with her oral evidence to the tribunal, were clearly not accepted by the claimant; and in his e-mail of 12 November 2008, the claimant made it clear, inter alia, that he believed that he had been the subject of discrimination.  Ms Connor did not reply to this e-mail, as she considered she had already, in her earlier detailed replies, explained what had happened and the reasons for same and she had nothing further to add.  As indicated previously, the tribunal considers that, if these detailed reasons/  explanations, as set out in the said e-mails, had been communicated to the claimant at an earlier stage, much of the difficulty that arose between the claimant and the respondent might have been avoided.

3.13	By an e-mail on 10 December 2008, the claimant made a request to Mr Donnelly, a Senior Manager of the respondent, for a written statement of the reasons for his less favourable treatment, pursuant to Regulation 6 of the 2000 Regulations.  His   e-mail was acknowledged by Mr Donnelly and he was told the situation would be investigated by Mr Donnelly, who would come back to the claimant, following his investigation.  The claimant then issued his tribunal proceedings on 12 December 2008, to which the respondent presented a detailed response on 21 March 2009, setting out the reason for the claimant’s treatment and denying liability for his claim.  There was thus no reply to the claimant’s request for a written statement of reasons for his treatment, pursuant to Regulation 6 of the 2000 Regulations.  No explanation was provided to the tribunal, in the oral evidence given to it – although, in the course of submissions by Mr Sands, he acknowledged that the request should have been replied to by the respondent.  He suggested that proceedings had been issued shortly after the request which may have played a part in the absence of any reply; but also stated that, in any event, by reason of the said previous series of e-mails between the claimant and Ms Connor, the claimant was fully aware, at the time of his request, of the respondent’s reasons for his treatment in connection with the said transfers.  

4.1	There was no evidence that the claimant was treated less favourably than the respondent treated a comparable full-time worker as regards the terms of his contract.  At all material times the claimant’s terms of contract were not changed; in particular, his pay and grade remain the same and under the terms of his contract he could be transferred by the respondent, like a comparable full-time worker, to a different Section of the business.  

The main focus of the claimant’s claim therefore related to whether, pursuant to Regulation 5(1)(b) of the 2000 Regulations, he had been treated less favourably than the employer treated a comparable full-time worker by being subjected to any other detriment by any act or deliberate failure to act by the respondent; and, if so, had the treatment been justified on objective grounds by the respondent.  

4.2	It was not disputed by Mr Sands, that to qualify as a detriment, as defined in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, the tribunal must find that, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.  He acknowledged that this was a low threshold to achieve but submitted that, in the circumstances of this case the principle of ‘de minimis’ could apply.

4.3	The claimant, as he was entitled to do, under the 2000 Regulations, made an application for a written statement of reasons for his less favourable treatment, pursuant to Regulation 6 of the 2000 Regulations, in his e-mail to Mr Donnelly on 10 December 2008.  This was not replied to, other than to provide to the claimant an acknowledgement.  Such an acknowledgement is not in compliance with Regulation 6 of the 2000 Regulations.  Mr Donnelly did not give any evidence to the tribunal, why he had not provided the necessary written statement to the claimant.  In the absence of any evidence, relating to the omission to provide the written statement, the tribunal considered that the failure to do so was deliberate.  The fact that the claimant had, on or about 12 December 2008, issued proceedings, and a response was subsequently required to be given by the respondent, did not provide a reasonable excuse for the said failure.  However, the tribunal accepts, the reasons, for the treatment, had already been set out in a series of detailed e-mails passing between the claimant and Ms Connor, prior to the claimant’s said application, and these reasons were consistent with those set out in the response subsequently provided by the respondent.  The tribunal therefore did not consider that it was just and equitable to draw any inference from the said omission.

4.4	The claimant, in order to stay in the Employed Section, following the introduction of PR1 in September 2008 required to do classroom-based training five days a week for approximately three months.  Following PR1, there was not sufficient ‘one-to-one’ work for him to do and therefore a transfer to another Section, which the respondent was entitled to do under the claimant’s contract of employment, was inevitable.  Classroom-based training was offered to the claimant by the respondent but, due to his part-time working hours of three days, from 8.00 am to 8.00 pm, he was not able to agree to do such classroom-based training.  Indeed, he fairly and frankly accepted it would not have been possible for the respondent to offer such training to him, to suit his working pattern on an individual basis.  Prior to the necessity to arrange such classroom-based training, due to the introduction of PR1, the claimant had at all times been offered access to desk-based training, to which his part-time working pattern suited; albeit he had not in fact completed the        desk-based training offered to him.   

4.5	The tribunal is satisfied that, in or about July 2008, there were no relevant vacancies for the claimant in the Benefits Section, where access to desk-based training was available to be given to him.  It was also over-resourced.  However, there were at that time vacancies in the National Helpline Section, which Section could also offer the claimant access to desk-based training.  The tribunal accepts that the respondent, in such circumstances was justified from a practical and economic point of view to choose the National Helpline Section option rather than the Benefits Section option, as a suitable place to transfer the claimant – to ensure that he still continued to have access to desk-based training.  The tribunal could fully understand that, in the conversation between the claimant and Ms Connor in July 2008, prior to her going on holiday, he was given notice of the likelihood of his transfer to the National Helpline Section.  His subsequent objection to go to the National Helpline Section, because of his unwillingness to wear a headset, was in no way related to his part-time status.  The claimant accepted, in evidence, to the tribunal, if he had agreed during the course of this conversation with Ms Connor to go to the National Helpline Section, he would have had no grounds for any complaint to the tribunal under the 2000 Regulations.  There was no agreement between the claimant and Ms Connor about such a transfer, at the time of the conversation, because no formal decision to transfer him to the National Helpline Section had in fact been taken at that time.  His subsequent objection was not therefore voiced, albeit he led Ms Connor to believe such a transfer would be acceptable to him.  In the event, due to the staff freeze in the National Helpline Section, the proposed transfer to the National Helpline Section could not take place in or about August 2008.  No doubt, if the respondent had sought to transfer the claimant to the National Helpline Section at that time, his objection to wearing headsets would have emerged, as it subsequently did in September 2008.

The claimant, together with other full-time employees, was then transferred on or about 18 August 2008, as the respondent was entitled to do, to the Oyster House team.  At all times this was recognised to be a temporary move to deal with an urgent business requirement and the nature of the work was the type of work which the claimant was able and trained to do.  When the temporary move ended on 22 September 2008, the respondent clearly decided to transfer the claimant, as originally it had intended to do, to the National Helpline Section, whose staff freeze had ended.  It was then that his objection to wearing a headset, which was nothing to do with his part-time status, became clear and the transfer to the National Helpline Section was not able to proceed.  The respondent clearly required to find a suitable position for the claimant to work, as he could not return to the Employed Section, following the introduction of PR1.  Despite the fact that there still were no vacancies in the Benefits Section, but with the National Helpline Section no longer an option, the respondent, justifiably in the tribunal’s view, decided to transfer him to the Benefits Section.  This was a Section, which could offer him access to         desk-based training.  

4.6	The claimant therefore, for a short period, from on or about 18 August 2008 to 22 September 2008, did not have access to desk-based training.  Mr Sands accepted failure to obtain access to such training could amount to less favourable treatment, pursuant to the 2000 Regulations; but he submitted it did not give rise to any detriment; and, if it did, the treatment was objectively justified.  At all times the claimant remained at the same pay and grade and there was no evidence, including from his appraisal documents, that the absence of access desk-based training for the short period, when he was working at Oyster House, in any way affected the claimant’s career progression and/or development.

In the circumstances, the tribunal does not consider that the claimant has suffered any detriment, as defined in Shamoon.  The tribunal could find no evidence of any disadvantage to the claimant in the circumstances in which he had to work.  As the dicta in the case of Shamoon makes clear an unjustified sense of grievance cannot amount to detriment.  If it had been necessary to do so, the tribunal further considered that the principle of ‘de minimis’, was applicable in the circumstances of this case (see Ministry of Defence  v  Jeremiah [1980] ICR 13) and therefore it had not been established by the claimant that he had suffered any detriment.

4.7	Even if the tribunal is wrong, the tribunal was satisfied the claimant’s treatment was justified on objective grounds by the respondent, in the circumstances and for the reasons set out previously, which led him to be transferred from the Employed Section, then for the short period to the Oyster House team and finally to the Benefits Section.  

5.	The claimant’s claim, pursuant to Regulation 5 of the 2000 Regulations was therefore not well-founded and must be dismissed.

Chairman:

Date and place of hearing:	26 – 27 October 2009, Belfast

Date decision recorded in register and issued to parties: