THE INDUSTRIAL TRIBUNALS

CASE REF:	446/11

CLAIMANT:			Martin Poots

RESPONDENT:		Business Services Organisation

DECISION
The unanimous decision of the tribunal is as follows:-

(i)	the claimant’s claims of sex discrimination, discrimination under the Fixed Term Employees (Northern Ireland) Regulations (Northern Ireland) Regulations 2002, dismissal for asserting a statutory right and unfair dismissal are dismissed;

(ii)	the respondent is in breach of the claimant’s contract of employment; and it is ordered that the respondent do pay to the claimant the sum of £392.00 in respect of the said breach of contract;

(iii)	the claim for unlawful deductions from wages is dismissed; and

(iv)	the claimant is entitled to a redundancy payment from the respondent as set out at Paragraph 18(ii) below.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Mr J Boyd
			Ms M Galloway

Appearances:
The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Directorate of Legal Services, Business Services Organisation.

1.	(i)	By a claim form presented to the tribunal on 28 January 2011 the claimant, Mr Martin Poots, alleged that the respondent had discriminated against him on the ground of his fixed-term status contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002, as amended, and on the ground of his sex.  He also brought claims in respect of unfair dismissal, failure to make a redundancy payment, unlawful deductions from wages, breach of contract, and in respect of assertion of a statutory right.	
			
	(ii)	The issues for determination by the tribunal were agreed at a Case Management Discussion on 13 June 2011, as attached at Annex A.	
			
	(iii)	In order to determine this matter the tribunal heard evidence from the claimant and from the following persons on behalf of the respondent organisation:-	

Mrs Catherine McKeown, Head of Internal Audit, Business Services Organisation (‘BSO’); 

Mrs Jacqueline Kennedy, Assistant Director of Human Resources, Business Services Organisation; 

Mr John Murray, Internal Audit Manager, Armagh BSO; and

Mr Gerard O’Kane, Human Resources Adviser, BSO.

		The tribunal also had regard to documentary evidence to which it was referred by the parties.	
			
	(iv)	We find the facts set out in the following paragraphs.	
			
2.	(i)	The BSO Internal Audit Unit delivers an internal audit service to all 13 Health & Social Care organisations in the province and to three               non-departmental public bodies which are the responsibility of the Department of Health, Social Services and Public Safety (‘DHSSPS’).  It was created in 2009 and brought together four former internal audit services into one regional service for the province.  When the claimant’s employment ended, he was working in the service’s Armagh Office as an Internal Auditor Band 5.

It is necessary, first of all, to set out his previous employment history.	
			
	(ii)	From 22 November 2004 – 29 October 2006, the claimant worked under a fixed-term contract with the Central Services Agency (‘CSA’) as a Data Quality Improvement Implementer (A and C Grade 4).  He was employed on a project funded by the DHSSPS.  	
			
	(iii)	He then went to work on a further fixed-term contract from 30 October 2006 with the Southern Health & Social Services Board (‘SHSSB’) as an Internal Audit Assistant (A and C Grade 4).  This fixed-term contract was due to expire on 31 October 2008, but was extended on more than one occasion with the claimant’s employment ultimately terminating on 19 November 2010 (according to him) or 29 October 2010 (according to the respondent).	
			
	(iv)	When the claimant moved from the CSA to the SHSSB he did this following a job trawl operated by the former in which he was successful.  Health Service job trawls were operated by the CSA, and the post with the SHSSB was a job with a different organisation.  

It was not a secondment, because the claimant resigned from the CSA to go to the SHSSB.

The claimant’s employment with the SHSSB was stated to be “subject to the terms and conditions of Section 14 of the NHS Terms and Conditions Handbook”.

As we shall see, it is the claimant’s case that all the bodies for which he worked, including the CSA, were all associated NHS employers, subject to the Handbook, whereas the respondent argues that the SHSSB was part of a wider group of employers in the Health & Social Services sphere, separate from the CSA, and that any employment with the latter did not count for the purposes of continuity.	
			
	(v)	As a result of the Review of Public Administrative in the province, which was ongoing, the claimant’s employer became the Craigavon Area Hospital Group Trust on 1 March 2007, changing to the Southern Health & Social Care Trust (‘SHSCT’) on 1 April 2008.  The post which the claimant held was subsequently banded as a Band 5 Senior Auditor on 19 June 2008.  Ultimately, with the creation of a Regional Audit Service, the BSO became the claimant’s employer with effect from 1 April 2009.	

3.	The overall effect of the Review of Public Administration was that employees of various health service bodies transferred to new bodies depending on their functions and roles.  The associated Human Resources document did not deal specifically with fixed-term staff.  It did, however, describe recruitment arrangements to be put in place by employers to ensure consistency and fairness for all staff and to mitigate the potential for compulsory redundancies.  Arrangements were agreed as to how posts should be filled at each level in the new organisations which had been created.  The number of staff and posts and the type and functions each post were factors taken into account.  These factors would determine whether or not staff would simply be ‘slotted in’ to posts in their new organisations or whether they would have to go through a recruitment exercise to secure a role. 

	The Regional Audit Service was clearly going to be affected by these changes, which form the background to the difficulties which arose for the claimant.

4.	(i)	On 27 October 2009, Mrs McKeown, the Head of Internal Audit, who was based in Belfast, met informally with the claimant.  This was to honour a commitment she had made to him in July of that year when she had been asked about the position of staff in the Regional Internal Audit structure.  At that meeting she did not know the position but had promised to keep staff informed.

At this meeting she told him that it was likely his fixed-term contract would expire on 31 March 2010.  She also told him that although he would have the opportunity to apply for posts in the new regional structure there were unlikely to be posts at Band 5 level apart from one vacant post in Ballymena at that time.  That was an accurate reflexion of the position on that date, albeit that, subsequently, the picture changed.  	
			
	(ii)	The following day, at a meeting of the Internal Audit staff in Ballymena, details were given about the posts in the new structure including details of how many of these posts would be based in Armagh.  There were to be two Band 5 posts and two Band 4 posts in Armagh.  This contrasted with the existing position where there were four Band 5 posts in Armagh, three of which were occupied by employees on permanent contracts and one of which was held by the claimant, on a fixed-term contract.

The claimant and Mr John Murray, the Internal Audit Manager in Armagh, were sitting next to each other at this meeting, and had a general discussion about the implications for Armagh.  Mr Murray said that he thought there was unlikely to be a further Band 5 post for the claimant in Armagh by the time his fixed-term contract expired.  He said the claimant would be potentially up against candidates with more experience at interview, and asked him if he would be interested in a Band 4 post in Armagh, or a Band 5 post in one of the other regional offices.  According to the claimant, Mr Murray said to him “I take it you would be happy with a Band 4 post”, and he alleged that this remark was indicative of the respondent’s prejudice towards him because of his fixed-term status.  However, we accept the evidence of Mr Murray when he says that the claimant has chosen to quote a limited part of what was a general discussion.	
			
	(iii)	Following these meetings, the claimant went off on sickness absence with work-related stress until 6 April 2010.	
			
5.	(i)	On 15 December 2009, the claimant raised a grievance in relation to his fixed-term contract.  In it he contended that he had continuing reckonable service in respect of his sick pay, salary increments, and pension.  He further contended that his contract was permanent and requested the respondent to treat it as such in accordance with current legislation, as he had accumulated more than four years’ continuous service.

Significantly, he did not request permanent status in 2008 (when on his calculation he would have satisfied the four year requirement).  He explained this by saying he had no reason to do so, as his job was not then under threat.  However, at that stage the Review of Public Administration was underway, and the implications of that review for those potentially affected by it would have been clear.	
			
	(ii)	The claimant’s grievance meeting was held on 4 February 2010.  He alleged that this meeting had been unreasonably delayed – normally grievance meetings should be held within 15 days of receipt of the grievance.  He also alleged that one of the panel members, Mrs Jennifer McCaw, the Assistant Head of Internal Audit, was not impartial because she worked closely with Mrs McKeown and was clearly a management representative.  The other member of the grievance panel was Mr Gerard O’Kane, a Human Resources Adviser, to whom no objection was taken at that stage.  We do not accept that the claimant’s complaints about the grievance hearing are well-founded.

As far as the delay was concerned, the claimant was on sick leave and the usual practice was to wait until an employee had returned to work before inviting him or her to a grievance meeting.  At this time of year there was also the intervening holiday period to take into account.

As far as Mrs McCaw was concerned, although she was in the management structure above him, the claimant did not report to her and she had not previously been involved in any decision relating specifically to him.	
			
	(iii)	On 8 February 2010 the claimant received a letter from Human Resources informing him that his fixed-term contract would end on 31 March 2010.  The letter made clear that this was ‘without prejudice’ to the ongoing grievance.  He was also told that at this time there were no suitable alternative opportunities available to him within BSO.  He did not accept that, and believed that one of the Band 5 posts offered to his comparators (Catherine Thompson, Louise Boyle or Rachel Thompson) should have been offered to him, or alternatively, when no such action was taken, he should have received a redundancy payment.	
			
	(iv)	On 10 February 2010 the claimant was informed that his grievance had not been upheld.  He was told that his period of continuous service for contractual purposes would only be counted from 30 October 2006 until the present – in other words his service with the CSA, which the claimant contended was an associated health service, was not counted by the respondent for the purposes of continuity.  The letter denying the claimant his grievance referred to Section 12 of the NHS Terms and Conditions of Service Handbook.  It referred to ‘reckonable service in respect of NHS agreements on redundancy, maternity, sick pay and annual leave’.  It contained no provision for reckonable service to be used in respect of contractual continuity of service.  In a request for discovery of the claimant’s personnel file the respondent had stated in reply:-	

“The claimant had two periods of employment with the respondent – one with the Central Services Agency and the other with the Southern Health and Social Care Board which ultimately transferred to the respondent organisation.”

		However, the reply continued:-	

“While it is not considered that the period of employment with the Central Services Agency is relevant to this claim, copies of both files are enclosed.”

		The latter part of this reply is more consistent with the respondent’s position than the former.	
			
	(v)	However, when the CSA was ultimately wound up as a result of the Review of Public Administration, the vast majority of its staff were absorbed by, and transferred to, the BSO with continuity of employment.

When as part of the Review of Public Administration, an HPSS Human Resources Framework document was issued on 13 February 2007 it set out, at Appendix 12A, a list of HPSS and related organisations covered by it, who had ‘at risk’ staff, the CSA was listed under ‘Agencies and NDPBs’.	
			
	(vi)	On 19 February 2010 the claimant received a cheque from the respondent, BSO, in respect of certain arrears of pay owing to him from the CSA under Agenda for Change.  However, we are satisfied that this does not take the continuity issue any further, for the BSO, as the claimant’s employer at that time, was the only appropriate organisation to pay the money to him.	

6.	On 15 March 2010, the claimant appealed the outcome of his grievance hearing.  This was held on 24 March 2010.  He had also appealed against his dismissal, and that was heard on the same date.  On 29 March 2010 he was informed that his grievance appeal had not been upheld.  In relation to his dismissal, he was told that “as the restructuring process [under RPA] had not been finalised, it would be reasonable to extend [his] fixed-term contract for a further period of time” until 31 August 2010.

This extension of the claimant’s fixed-term contract, which was not the first, does not seem to us to be consistent with any desire on the part of the respondent to get rid of him because of his fixed-term status.  Rather it shows that this was a period of uncertainty and flux for all staff, whether permanent or fixed-term.

7.	The claimant was interviewed on 7 September 2010 for a Band 5 Internal Audit post in Belfast.  He was unsuccessful in his application.  This recruitment exercise had arisen because of the re-organisation of the audit function throughout Northern Ireland.  Around the same time a Band 4 post was advertised in Belfast, and a Band 5 post in Ballymena.  The claimant did not apply for either of these posts.  The Band 4 post was not filled.  Subsequently, another Band 4 post was advertised in October 2010.  Again, the claimant did not apply.

8.	(i)	In September 2010, interviews also took place for Band 5 posts in Armagh.  The claimant lodged an expression of interest for these posts and his interview was to take place on 27 September 2010.	
			
	(ii)	As stated previously, there were four Band 5 posts in Armagh, but this was to be reduced to two such posts following the restructuring of the Internal Audit Service.  There was also a Band 4 post to be filled in Armagh.

In accordance with the RPA process, this recruitment exercise was to be restricted to the existing Band 5 staff in Armagh, of which there were four, including the claimant.  	
			
	(iii)	The original plan had been that the appointments to the Armagh Band 5 posts would take place in March 2010, but the process had become somewhat elongated.  Two of the existing Band 5s were on maternity leave and a third was due to go on maternity leave in June 2010.  Management therefore agreed with NIPSA, the appropriate trade union, that the interviews for the two Armagh Band 5 posts would take place in September 2010 to take account of staff on maternity leave.	
			
	(iv)	The situation therefore was all four existing Band 5 post holders in Armagh had to take part in the restricted recruitment competition if they wanted to be considered for one of the two Band 5 posts.  

In this respect the position was the same for permanent members of staff as it was for the claimant, who was on a fixed-term contract.  The candidates were the claimant, Catherine Thompson, Louise Boyle, and Rachel Thompson – the last three having permanent contracts.	
			
	(v)	On the morning of the interview, the claimant withdrew from the process.  In his statement he said that he “felt compelled to withdraw as despite repeated requests … the respondent refused to confirm the number of posts which were available and which should have been quoted on the recruitment documentation”.  He continued:-	

“I believe that this was unreasonable because it prevented me from making an informed decision as to whether I submitted an application.  It also implied that management were purposely concealing the number of posts on offer … .”

	(vi)	It is accepted by the respondent that, because of an administrative error, the trawl notice did not state the number of posts.  We are satisfied that it was an error, and that the omission was not deliberate or intended to deceive.

In any event, all the potential candidates had been aware since the regional staff meeting on 29 October 2009 that there would be two Band 5 posts in Armagh.  When the error came to light Mr Murray informed each candidate there were two posts, and Mrs McKeown, who chaired the interview panel, confirmed this fact at the outset of the claimant’s interview.	
			
	(vii)	Mrs McKeown attempted to persuade the claimant not to withdraw from the interview process and even offered to re-schedule it later in the day when he had had time to think the matter over.

In the course of a conversation with the claimant she provided written confirmation of the number of posts on a sheet of paper, because he seemed ‘fixated’’ on obtaining this information in writing.  

However, he did withdraw from the process, telling Mrs McKeown he would prefer to wait for a post in Belfast.  In a written signed statement of withdrawal, he said that he was doing so for personal reasons.  He does not now deny that he said this.	
			
	(viii)	At sub-paragraph (v) above we have recorded that the claimant accused the respondent of being ‘unreasonable’.  It seems to us that word could more appropriately be used to described his conduct on the occasion in question.  The omission from the job trawl was unfortunate, but it impacted equally on all the candidates presenting for interview, whether on permanent or            fixed-term contracts, and irrespective of sex.	
			
9.	(i)	The result of this restricted recruitment process was that Catherine Loughran and Louise Boyd, two females on permanent contracts, were appointed to the two Band 5 Auditor posts in Armagh.

Rachel Thompson, the other permanent Band 5 post holder in Armagh, was deemed appointable.

As a result of further consultation with Human Resources, on 4 October 2010, she was then offered a Band 5 post in Belfast, which she accepted and took up in January 2011 when her period of maternity leave came to an end.  Had this not happened, she would presumably have been offered the Band 4 post on a protected salary.	
			
	(ii)	It is the claimant’s case that the Belfast post was deliberately not disclosed to him, that in any event he had only withdrawn from the competition for the Armagh posts and that the Belfast post should have been trawled or advertised.	
			
	(iii)	We accept that an argument can be made that it would have been preferable to advertise the Belfast post.  The consequence of not doing so, which the respondent recognised, was that the claimant would be left displaced.  However, we do not consider that the fact that it was not advertised is something from which we can draw an inference of discrimination against the claimant on the grounds of his sex or fixed-term status.  

Firstly, no jobs were created for the permanent members of staff in Armagh.  They had to go through a competition for the two posts in Armagh.  Mrs Thompson was unsuccessful in the Armagh competition and she became a ‘displaced’ member of staff.  She was offered the post in Belfast in accordance with agreed procedures.

She was the only remaining candidate from the Armagh competition at that stage (the claimant having withdrawn from it), and she had been deemed appointable having gone through it.

We are satisfied that if the claimant had been in the same position as Mrs Thompson (ie deemed appointable and the only remaining candidate) the Belfast post would have been offered to him.  If he had submitted to interview, and both he and Mrs Thompson had been deemed appointable then the offer would not have been made to Mrs Thompson, and it is accepted by the respondent that a recruitment process and interview would have to have been held.	
			
	(iv)	It seems to us that the claimant’s difficulties arose because he withdrew from the Armagh competition.  He had no good reason for doing so.  We accept the evidence of Mrs McKeown, who stated that had the claimant stayed in the competition, he would have had as good a chance of getting one of the Armagh posts as anyone else.  By withdrawing from the Armagh competition, the claimant effectively put Mrs Thompson into the Belfast post.	
			
10.	(i)	In the interim, the claimant’s fixed-term contract had been further extended to 30 September 2010.

On 7 October 2010, Mrs Kennedy wrote to him inviting him to a meeting on 13 October 2010 to discuss the fixed-term contract.  He was told that he could be accompanied at the meeting by his trade union official.  He was told that his contract, which had been due to expire on 30 September 2010, had been further extended until 29 October 2010, but that it was likely, given the current financial climate, that it would not be further extended and that it would end on the latter date.  We accept the evidence of Mrs Kennedy that, in writing to the claimant in these terms, she wanted to be as ‘straight’ with him as possible in the circumstances.  	
			
	(ii)	On 13 October 2010, the claimant was accompanied to the meeting by Mr Brownlee, his trade union representative.  Mr Brownlee told Mrs Kennedy that the claimant was in a agitated state; and suggested that it would not be beneficial to proceed.  Mrs Kennedy told Mr Brownlee that she and Mrs McKeown (who was with her at the meeting) would have to take a decision on the claimant’s fixed-term contract.  Mr Brownlee did not object or ask for the meeting to be postponed.  The claimant had previously expressed an interest in posts in Belfast, and Mrs Kennedy told Mr Brownlee that these would be advertised shortly and the claimant would be eligible to apply, and would be interviewed.  Should he be successful and should, as appeared likely, his fixed-term contract have expired in the meantime, he would nonetheless be treated as having continuity of service.

On 15 October 2010 Mrs Kennedy wrote to the claimant confirming that his fixed-term contract would end on 29 October 2010 and informing him of what she had already told Mr Brownlee of the posts in Belfast – which were at the lower Band 4 level – and that, if successful, he would have continuity.

The claimant had indicated by e-mail of 13 October 2010 that he wished to appeal the decision to terminate his fixed-term contract, and Mrs Kennedy also indicated that she would make the necessary arrangements for his appeal hearing.	
			
	(iii)	The claimant alleges the meeting on 13 October 2010 was a ‘farce’, with a preordained conclusion.  He claims that the respondent was attempting to coerce him into applying for Band 4 posts, and purposely did not offer him Band 5 posts.  The outcome was that the three permanent Band 5 employees in Armagh, who were all female, ultimately achieved, in retaining Band 5 status under the re-organisation where he did not.  (This hypothesis completely ignores his withdrawal from the Armagh competition.)

By October 2010 there were no longer any Band 5 posts available.  However, the Band 4 posts attracted pay protection under the Review of Public Administration.  It is unclear if the claimant was specifically told this, but it would have been surprising if this were not common knowledge among staff who were under threat.  It would also be surprising if the claimant had not enquired about this.

It is also difficult to accept his claim that the meeting was a ‘farce’.  It was held to discuss the future of his fixed-term contract.  The claimant had been successful before in appealing against the termination of his fixed-term contract and had he attended the meeting with his trade union official and made representations, it cannot be said with certainty that they would have been unsuccessful.  Mrs Kennedy was not ill-disposed to him, as is shown by the fact that she gave an assurance he would be given continuity if successful in a job application.	
			
	(iv)	The claimant chose not to apply for the Band 4 posts in Belfast.  This was despite his previous expressions of interest in a Belfast post, the fact that there would be salary protection and the fact that, if successful, he would have continuity.  The expectation of the respondent’s witnesses was that the claimant would apply, and they were also of the view that if he had done so, there would have been every chance that he would have been successful.	
			
	(v)	On 28 October 2010 the claimant appealed against the decision to terminate his fixed-term contract.  He received a letter that day to inform him he had been unsuccessful.  One of the persons hearing the grievance was Mr O’Kane, the HR Adviser, who had sat on the initial grievance hearing in February of that year.  The claimant now complains of this, but he did not raise any objection at the time.	
			
	(vi)	The claimant’s employment ended on 29 October 2010.  He was paid two weeks’ notice pay.  He believed he should have been paid for five weeks.  Mrs Kennedy, in evidence for the respondent, suggested he appropriate period was for three weeks.	
			
	(vii)	Subsequent to the termination of the claimant’s employment, he raised a grievance under the respondent’s modified grievance procedure by way of letter dated 14 December 2010.  This largely set out what has become the substance of his complaints before the tribunal.

This was rejected by the Director of Human Resources and Corporate Services on 8 August 2011.	
			
11.	(i)	We now turn to consider the relevant law.

In relation to fixed-term employees, this is set out in the Fixed Term Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002, as amended.  No issue is taken by the respondent that the claimant satisfied the definition of a fixed-term worker, or that the permanent employees named as his comparators are proper comparators.  The 2002 Regulations implement the Provisions of a Directive promulgated by the European Council (99/70 EC), and have the dual purpose of seeking to prevent discrimination against fixed-term workers and stopping the potential abuses associated with fixed-term contracts.	
			
	(ii)	Regulation 3(1) provides that:-	

“[a] fixed-term employee has the right not to be treated by his employer less favourably than the employer treats a comparable favourable employee –

	(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.”

		The right confirmed by Regulation 1 includes the right not to be treated less favourably than a comparable full-time employee in relation to the opportunity to secure permanent work at the relevant establishment.

The employer is provided with a defence of objective justification (Regulation 3(b) and 4).  As with other areas of employment law where this defence applies, it should be construed narrowly.

Regulation 6 provides that a fixed-term employee will be automatically dismissed if the dismissal is on specific grounds, and also has the right not to be subjected to any detriment by any act, or any deliberate failure to act, of his employer done on one of these specific grounds.  These include such matters as subjecting the employee to a detriment because he has requested a written statement under Regulations 5 or 9 or for making an allegation that the respondent has infringed the Regulations.

However, being put on a fixed-term contract which expires is not a detriment (Department for Work and Pensions  v  Webley [2005] IRLR 288 CA).

It is not possible for an employee under a fixed-term contract to waive his right to a statutory redundancy payment (Regulation 11 and Schedule 2).

Regulation 8 limits the use of successive fixed-term contracts.  Where an employee has been continually employed under fixed-term contracts for four years or more is re-engaged without continuity being broken, any new contract has effect as a permanent contract unless renewal on a fixed-term basis is objectively justified.	
			
	(iii)	Articles 3, 4 and 8 of the Sex Discrimination (Northern Ireland) Order 1976, as amended, make it unlawful to discriminate against a man in the context of employment by treating him less favourably than one would treat a woman in the same circumstances.

Article 63A(2) sets out the now familiar provisions found in                       anti-discrimination legislation providing that where a claimant proves facts from which a tribunal could conclude, in the absence of adequate explanation, that the respondent has committed an unlawful act of discrimination, the tribunal must uphold the complaint unless the respondent proves that he did not commit that act.	
			
12.	(i)	In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlain Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination.  This guidance is now set out at an Annex to the judgment in the Igen case, op.cit 269,270.

We therefore do not set it out again, but we have taken it fully into account.	
			
	(ii)	In short, the claimant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on one or more of the proscribed grounds.  The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found.  By way of example, such inferences can include inferences that are just and equitable to draw from the provisions relating to statutory questionnaires, failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent.  To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground.  The tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that religious belief was not a ground for the treatment in question.  Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will expect cogent evidence to discharge that burden of proof.	
			
	(iii)	Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer.

(See : Laing  v  Manchester City Council [2006] IRLR 748 EAT; Madarassy  v  Nomura International PLC [2007] IRLR 247; and Arthur  v  Northern Ireland Housing Executive and Another [2007] NICA25.)	
			
	(iv)	These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley  v  Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 and Nelson  v  Newry & Mourne District Council [2009] NICA 24.

In the former Coughlin LJ, at Paragraph 16 of the judgment, emphasised the need for Tribunals hearing cases of this nature to keep firmly in mind the fact that such claims are founded upon an allegation of religious discrimination.  This was re-emphasised by Girvan LJ, at Paragraph 24 of the judgment in the latter case.	

13.	The law relating to unfair dismissal, including dismissal for assertion of a statutory right, is contained in Part XI of the Employment Rights (Northern Ireland) Order 1996, and the law relating to redundancy payments, etc is set out in Part XII of the same Order.

14.	It is convenient to set out, firstly, our finding that we are satisfied that the claimant’s continuity of employment dates only from 30 October 2006, the date he commenced work with the Southern Health & Social Services Board.  We find that his employment with the CSA, from which he resigned to take up the post with the SHSSB does not count for the purposes of continuity of employment.  We think that this follows from Section 12 of the NHS Terms and Conditions of Service Handbook to which we have made reference at paragraph 5(iv) above.  While overall the position is not without its incongruities (for example, CSA staff were ultimately transferred to BSO with continuity) we are fortified in our conclusion by the judgment of His Honour Judge McMullen QC, in the case of Winchester and Eastleigh NHS Trust  v  Mrs J M Walker [UKEAT/0048/11/LA] particularly at paragraph 22 thereof when it is stated:-

“Frequently, for example, in local government service and here in the NHS credit is given for the purposes of certain benefits, but these are expressly itemised in the contract (annual leave, sick pay, maternity and so on; and it may be said pensions).  There is a world of difference between recognising certain benefits based on service to be continued with a new employer and injecting years into the statutory contract of continuous service.”

	We also note that the claimant never sought a declaration of permanency in 2008 (when on his view he became a full-time employee), though we attach little weight to that.

15.	As far as the allegations of breach of the Fixed Term Employees Regulations and sex discrimination are concerned, we deal with these together.  The claimant’s named comparators were both permanent employees and female.

	There is no evidence from which we can infer discrimination on either of these proscribed grounds.  The claimant was treated in exactly the same way as his female, permanent, comparators.  Their jobs were at risk just as much as his and they had to compete, on the same terms as him, in any restricted recruitment process which took place.  It is hard not to conclude that the claimant, by withdrawing on seemingly spurious grounds from the Armagh competition, was the architect of his own misfortune.

Indeed had we found that there was a breach of the Fixed Term Employees Regulations, we would have had to consider reducing any compensation on the ground that the claimant had failed in his duty to mitigate his loss (see Regulation 7(11) of the 2002 Regulations which applies the common law rule).

16.	As far as unfair dismissal is concerned, there is no evidence to show that the claimant was dismissed for asserting a statutory right, or automatically unfairly dismissed under Regulation 6 of the 2004 Regulations, ie by reason of a failure to follow the statutory dismissal procedures.

	The organisation for which he worked, in common with other health service bodies, was clearly undergoing a period of substantial re-organisation under the Review of Public Administration.  There was no essential unfairness in his treatment and it seems to us that in the circumstances prevailing the employer has established that the claimant was dismissed for some other substantial reason (ie the                          re-organisation of its business) justifying his dismissal.  In this regard we refer to Article 130(1)(b) of the 1996 Order.

	If we are wrong in this conclusion and he was unfairly dismissed, he clearly contributed substantially to his dismissal by withdrawing from the Armagh competition.  We remind ourselves that Mrs McKeown, the Head of Internal Audit, was of the view that had he stayed in the competition, he had as good a chance as the other candidates of getting a post.

17.	(i)	The claimant claims five weeks’ notice pay.  His original contract provided for notice pay, albeit that he was in effect on notice when told his fixed-term contract would terminate on its end day.  The respondent did pay him two weeks’ notice pay.  We find he was entitled to three weeks’ notice (we discount his employment with the CSA).	
			
	(ii)	We therefore order that the respondent to pay to the claimant one week’s notice pay, amounting to £392.00 net.	
			
	(iii)	In these circumstances we dismiss any claim for unlawful deductions from wages.	
			
18.	(i)	We are also satisfied that, notwithstanding the claimant’s withdrawal from the Armagh process, the reason his employment was terminated was because of redundancy.  As a result of re-organisation, the number of posts at Band 5 level had diminished.  He was never actually offered any suitable alternative employment, as opposed to the opportunity to apply for other posts.	
			
	(ii)	We are therefore further satisfied that the claimant is entitled to a redundancy payment from the respondent, in accordance with the NHS Terms and Conditions of Service, amounting to £7,840.00.	

19.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	3 – 6 October 2011, Belfast

Date decision recorded in register and issued to parties:

ANNEX A

CASE REF NO. 446/11lT 
INDUSTRIAL TRIBUNALS (CONSTITUTION AND RULES OF 
PROCEDURE) REGULATIONS (NORTHERN IRELAND) 2005

BETWEEN: 
Martin Poots
CLAIMANT
AND
Business Services Organisation
RESPONDENT 
AGREED List of Legal & Factual Issues
Legal Issues
1. 	Whether the Claimant was employed under a contract purporting to be a fixed term contract for a period of four years or more, resulting in the Claimant being a permanent Employee in accordance with Article 8 (2) (a) of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 (as amended).
2. 	Whether the Claimant was unfairly dismissed: 
a.	 contrary to Article 126 of the Employment Rights (NI) Order 1996 (as amended);
b. 	contrary to Article 3 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 (as amended); and 
c. 	contrary to Art 8(2)(b) of the Sex Discrimination (NI) Order 1976 (as amended).
3.	 Whether the Respondent, in dismissing the Claimant, failed to adhere to the Statutory Disciplinary and Dismissal Procedures contrary to the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004. 
4. 	Whether the Claimant’s post was redundant as defined by Article 
174 of the Employment Rights (NI) Order 1996 (As amended)? 

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a.	whether the Claimant was entitled to redundancy pay in accordance with Article 170 of the Employment Rights (NI) Order 1996 (As amended); 
b.	whether the Respondent’s failure to pay the Claimant redundancy pay was a breach of the Claimant’s Contract of Employment and/or a breach of Article 170 of the Employment Rights (NI) Order 1996 (as amended); and 
c.	whether the Respondent unlawfully deducted monies from the Claimants wages contrary to Article 45 of the Employment Rights (NI) Order 1996 (as amended) and breached the Claimant’s Contract of Employment in failing to pay the redundancy pay?
5. 	Whether the Claimant was less favourably treated on the grounds of his “fixed term status”, contrary to the Fixed Term Employees (Prevention of Less favourable Treatment) Regulations (NI) 2002 (as amended) in respect of numbers 4, 5(b), 9, 11, 14, 15, 16, 17, 18, 19, 21, 22, 23 and 24 of the factual issues below. 
Claimant confirms that the comparators upon which he intends to rely are Ms Catherine Loughran and Ms Louise Boyle, who were appointed to the available Band 5 Senior Auditor Roles, and Ms Rachel Thompson, who was appointed to the available Band S Senior Auditor Role in Belfast. 
6. 	Whether the Claimant was less favourably treated on the grounds of his gender/sex contrary to the Sex Discrimination (NI) Order 1976 (as amended) in respect of numbers 4, 5(a), 14, 15, 16, 17,18, 19, 21, 22, 23 and 24 of the factual issues below? 
The Claimant confirms that the comparators upon which he intends to rely are Ms Catherine Loughran and Ms Louise Boyle, who were appointed to the available Band 5 Senior Auditor Roles, and Ms Rachel Thompson, who was appointed to the available Band 4 Senior Auditor Role in Belfast. 
7. 	Whether the Claimant was subjected to a detriment, contrary to Article 6 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (NI) 2002 (as amended) for requesting permanency in his grievance of 15 December 2009, in respect of the following: 

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i. 	The Respondent’s failure to uphold the Claimant’s grievance raised on 15 December 2009; 
ii. 	The Respondent’s failure to offer the Claimant suitable alternative employment; 
iii. 	The Respondent’s failure to pay the Claimant redundancy pay; 
iv. 	The Respondent’s failure to pay the Claimant full notice pay; 
v. 	The Respondent’s failure to advise the Claimant of the 
number of Band 5 posts which were available in the 
Armagh Office until the start of the interview held on 27 September 2010; and 
vi. 	The Respondent’s failure to advise the Claimant of the 
Band 5 Senior Auditor pest available in the Belfast Office. 
Factual Issues 
Fixed Term/Permanent Employee 
1. 	Whether the Claimant’s Contract of Employment was: 
a) Fixed term; or 
b) Permanent 
2. 	Whether the Claimant was continuously employed by the Respondent for a period of five years i.e. from 22 November 2004 to 19 November 2010?
3. 	Whether the cheque received by the Claimant from the 
Respondent on 19th February 2010 for “Agenda for Change” arrears during his employment with the Central Services Agency is indicative that his previous length of service could have been contributed to his post with the Business Services Organisation? 
Unfair dismissal 
4. 	Whether the decision to terminate the Claimants contract of employment was made prior to the meeting of the 13th October 2010? If so: 
a) whether the meeting arranged to take place on the 13th October was a “farce”?; and
b) whether the Claimant was unfairly dismissed in this regard? 
5. 	Whether the Claimant was unfairly dismissed: 

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a) On the grounds of his sex/gender; and/or 
b) On the grounds of his fixed term status, 
Discrimination/Less Favourable Treatment 
6.	 Whether the Claimant was less favourably treated on the grounds of his “fixed term status”. 
7. 	Whether the Claimant was discriminated against on the grounds of his gender/sex. 
Statutory Procedure
8. 	Whether there was an unreasonable delay on the part of the Respondent in arranging a Grievance meeting in respect of the Claimant’s grievance raised on 15th December 2009, contrary to the Employment (NI) Order 2003 (as amended)? 
9.	 Whether Mrs Jennifer McCaw, Deputy Head of Internal Audit, and chair of the Grievance Meeting which took place on 4th February 2010, was bias in reaching the decision with regards to the Claimants Grievance? 
10.	 Whether the Respondent failed to follow the statutory dismissal procedures in relation to the Claimant’s dismissal? 
11. 	Whether Mr Gerard O’Kane, HR Representative and chair of appeal meeting which took place on 28 October 2010, was bias in reaching the decision with regards to the Claimant’s appeal to the Respondent’s decision to terminate his “fixed term contract”?
12. 	Whether there has been an unreasonable delay on the part of the Respondent in dealing with the Claimant’s grievance raised on 14 December 2010, contrary to the Employment (NI) Order 2003 (as amended)? 
13. 	What did the Claimant’s grievances, raised on 15 December 
2009 and 14 December 2010, relate to? 
Redundancy
14.	Whether the Claimant’s role was redundant? If so, 
a) 	Whether the Respondent considered the availability of suitable alternative    employment? 
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b) 	Whether the Respondent acted fairly in failing to offer the Claimant suitable   alternative employment?
c) 	Whether the Claimant was entitled to redundancy pay? 
d) 	Whether the Respondent’s failure to pay redundancy pay constitutes a
breach of contract and/or is contrary to Article 45 of the Employment Rights (NI) Order 1996 (As amended). 
Failure to Appoint
15. 	Whether Ms Catherine Mckeown advised the Claimant that opportunities for him at Band 5 would be “unlikely”? If so, what was the reason for this?
16. 	Whether Mr John Murray, Audit Manager, said to the Claimant 
28th October 2009, “I take it you would be happy with a Band 
4”? If so, what was the reason for this? 
17. 	Why was the Claimant unsuccessful at interview for Band 5 Internal Audit post in Belfast on 7th September 2010? 
18. 	Did the Respondent refuse to confirm, prior to the interview of 
27th September 2010, the number of post available at Band 5 Senior auditor level in Armagh? If so: 
i. what was the reason for this; 
ii. whether the refusal to do so can be considered unreasonable; and
iii. Why did the Claimant withdraw from the interview process as a result? 
19. 	Why was the Claimant not offered the opportunity to cover the duties of two permanent employees, namely Ms Catherine Loughran and Ms Rachel Thompson, both at Band 5 and Band 4 Level, whilst both were on Maternity Leave?
20. 	Was Ms Rachel Thompson appointed to the post of Band 5 Senior Auditor in the Belfast Office as a result of a “competitive recruitment exercise”? If not, why not? 
21. 	What were the reasons for the Respondent’s failure to advise the Claimant of the available Band 5 Senior Auditor post in the Belfast office? 
22. 	Whether the Respondent considered the availability of suitable alternative employment which could have been offered to the Claimant? If so, whether the Respondent acted fairly in failing to offer the Claimant suitable alternative employment? 

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Unlawful deduction from wages 
23.	Whether the Claimant was legally and contractually entitled to 5 weeks notice? If so, whether the Respondent’s failure to pay same constitutes unlawful deduction from wages and/or breach of contract? 
24.	Whether the Claimant was legally and contractually entitled to redundancy pay? If so, whether the Respondent’s failure to pay same constitutes unlawful deduction from wages and/or breach of contract? 
Miscellaneous 
25.	Whether the Claimant attended the meeting of 13th October 
2010 with his Trade Union representative Mr Tommy Brownlee?
26.	Whether the Claimant was in an “agitated state” on the 13th 
October 2010? If so, whether Mr Brownlee, advised Ms Jackie 
Kennedy, Assistant Director of Human Resources and Ms 
McKeown that “it would not be of any benefit for the meeting” to 
go ahead? 
27. 	Whether the Claimant had sought “a declaration of permanency” by way of the grievance dated 15 December 2009? 

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