THE INDUSTRIAL TRIBUNALS
   
CASE REF:    548/13 

CLAIMANT:	Gerard Doherty

RESPONDENT:	The Edinburgh Woollen Mill Ltd

DECISION

The unanimous decision of the tribunal is that the claimant’s respective claims of discrimination on grounds of sexual orientation and for unfair dismissal are withdrawn by the claimant and these respective claims are dismissed, without further order.  In respect of the claimant’s claim for sex discrimination, the unanimous decision of the tribunal is that this claim is not made out and the claim is dismissed by the tribunal, without further order.

Constitution of Tribunal:

Chairman:	Mr J V Leonard

Members:	Mr A White
	Mrs D Adams

Appearances:

The claimant appeared and represented himself.

Ms Rachel Best, Barrister-at-Law, instructed by Gateley LLP, Solicitors, appeared for the respondent.

REASONS

1.	By claim dated 14 March 2013 and received by the Office of Industrial Tribunals on that date, the claimant claimed against the respondent, sex discrimination, sexual orientation discrimination and unfair dismissal.  By response dated and received by the Office of Industrial Tribunals on 15 April 2013, the respondent conceded that the claimant had been employed by the respondent and asserted that he had been dismissed on grounds of gross misconduct.  The respondent’s response specifically asserted that the tribunal lacked jurisdiction to hear an unfair dismissal complaint on account of the claimant not having the requisite length of service and it was also contended that the claimant had failed to particularise a claim of sexual orientation discrimination.  At the commencement of the hearing the claimant clarified to the tribunal that he was not pursuing claims of unfair dismissal nor of sexual orientation discrimination; rather, his sole claim was confined to a claim for sex discrimination made against the respondent.  In the light of that, without objection from the respondent, the claimant’s respective claims for discrimination on grounds of sexual orientation and for unfair dismissal, as withdrawn by the claimant, were dismissed by the tribunal, without further order.  Accordingly, the tribunal had to determine whether or not the single remaining claim for sex discrimination was well-founded upon the basis of evidence, material findings of fact and the proper application of the law and had to deal with the matter of remedy, if applicable.

2.	The claimant heard evidence orally from the claimant, and on behalf of the respondent from Ms Jane Griffiths, Human Resources Adviser to the respondent and from Ms Theresa McGonigle (now Mrs Theresa Glenn), Store Manager.  Witnesses were subject to cross-examination and the tribunal asked questions in clarification of the issues.  The tribunal also had before it a bundle of documents, that being agreed, running to some 83 pages.

THE TRIBUNAL’S FINDINGS OF FACT

3.	In consequence of the oral and documentary evidence before it, upon the balance of probabilities the tribunal made material findings of fact as follows:-

	3.1	The claimant commenced employment with the respondent company as a part-time sales assistant on 24 September 2012.  The respondent operates a number of retail business outlets or stores throughout the UK and Ireland, being some 400 retail outlets in all.  The store where the claimant was employed as a part-time sales assistant is located in Foyleside Shopping Centre, Orchard Street, Londonderry.  The claimant’s employment contract provided for 20 hours work per week, to be worked over 7 days on a shift rota basis.  Prior to this employment the claimant was employed in the “O2” shop located at 64a Spencer Road, Londonderry.  The general details of that previous employment are not material to this case save in respect of one specific issue, mentioned below.  Upon taking up employment with the respondent, the claimant was provided with written terms and conditions of employment; he signed acceptance of such terms on 24 September 2012.  In his written application for employment to the respondent, in reference to his previous employment the claimant specified that he was employed with “O2”.  He provided the dates of the “O2” employment as being “01/10-04/11”.

	3.2	The respondent’s witness, Jane Griffiths, who was Human Resources Adviser, gave evidence to the tribunal, uncontroverted by the claimant, that the respondent as an organisation attached very considerable importance to the accuracy of any information provided in employment references sought at the time of engagement of any employees.  Accordingly the respondent sought confirmation of the previous employment from “O2”.  By a letter dated 16 October 2012 from “Fone Zone Trading Limited” (which company appears to have been the franchisee for the “O2” store where the claimant had worked), Mr Gerard Doherty of that latter company confirmed to the respondent that the claimant had been employed as a sales advisor.  The dates of that employment were stated as being from 25 March 2010 to 10 March 2011.  That discrepancy in dates, in comparison to the dates stated by the claimant, was picked up by the respondent’s Human Resources Department and the respondent’s Foyleside Shopping Centre Store Manager, Ms Theresa McGonigle, was tasked with seeking clarification from the claimant regarding the discrepancy in dates.

	3.3	Ms McGonigle gave evidence to the tribunal, which was largely uncontroverted by the claimant and which was accepted as being factually accurate by the tribunal, that she endeavoured to resolve this discrepancy in the stated dates on a number of occasions with the claimant, but without any success, over a period of some weeks.  This was causing administrative difficulty.  She felt, subjectively, that when she raised this issue with the claimant he became increasingly more difficult to deal with.  Indeed her perception, as stated to the tribunal, was that the claimant was obstructive in regard to her enquiry to an extent which she indeed found somewhat intimidating.  She described the claimant as being “aggressive” in his reaction to her questioning about this.

	3.4	The claimant’s written contract contained a performance review clause which indicated that the claimant could expect to have a performance review after six months, at the end of an expressly-provided probationary period.  The claimant was still within that six months probationary period when the events which are now recounted took place.  On 4 February 2013 Ms McGonigle asked the claimant to arrange for a replacement reference to be provided.  A period of two weeks was afforded to him to provide this, ending 19 February 2013.  This was clearly explained to the claimant.  The claimant denied in his evidence to the tribunal that this deadline had ever been imposed but, notwithstanding that, the tribunal did accept the respondent's evidence in that regard.  It was also indicated to the claimant that, as an alternative, he could provide a P45 or appropriate wages documentation verifying that he had worked for “O2” during the dates which he had stated in his application to the respondent.  The latter suggestion appears to have been made to the claimant both by Ms McGonigle and also by an employee called “Cara” in the respondent’s HR Department.  Notwithstanding this, the claimant did not provide the evidence requested within the timescale provided.  Ms McGonigle, as Store Manager, referred the matter to the respondent’s HR Department, with an express request that the employment of the claimant should be terminated.

	3.5	The tribunal found Ms McGonigle’s evidence, to an extent, to be vague and imprecise regarding the dates upon which this termination referral to the respondent’s HR Department took place and whether or not there had been one or two referrals.  Ms McGonigle could not remember when questioned whether there had been one of two referrals but she did state that referral had been made by telephone to the respondent's HR Department.  The tribunal’s considered assessment was that Ms McGonigle was not deliberately intending to be evasive or to mis-state any relevant facts.  Considering the evidence, the tribunal believes that Ms McGonigle’s referral (on the basis of either one or more of telephone calls) to HR with the contract termination request was effected most probably in or about 21 February 2013 or maybe slightly earlier than that date.  The matter was thereafter dealt with internally by the respondent’s HR Personnel, including by Ms Griffiths and also, ultimately, by Ms Carol Kershaw who was the respondent’s Human Resources Director.

	3.6	Going back a little in time, on Friday, 15 February 2013, the claimant had been absent on a week’s authorised leave.  The claimant informed Ms McGonigle by telephone text message sent that day that he could not work until Monday, 25 February as he was required to attend Court as a witness.  He stated to Ms McGonigle that a character reference was required from the respondent concerning his role within the company.  In making that request the claimant mentioned that he was a male sales assistant working within an otherwise female workforce, with the typical clientele being elderly ladies.  The request was to be referenced to his interaction and working with everyone.  Ms McGonigle’s evidence was that she found this request on the claimant’s part to be somewhat unusual and she wondered why the claimant might wish for such a reference if he were to be merely appearing in Court as a witness.  Also on that day, 15 February 2013, the claimant delivered a letter from a Solicitor to the store confirming that the claimant was required to attend Londonderry Crown Court on Monday, 18 February, Tuesday, 19 February and possibly Wednesday, 20 February 2013.  The letter apparently did not state the reason why this attendance at court by the claimant was required.

	3.7	Ms McGonigle confirmed in her evidence to the tribunal that authorisation of leave was not specifically afforded to the claimant for these requested dates of absence.  Meanwhile, Ms McGonigle explained to the claimant in a conversation which took place on Saturday, 16 February, that it was not the respondent’s company policy to provide character references and that this would not be done in his case.  She clarified that any absence the following week would be unpaid, but it appears she did not expressly state that such absence was denied.  Ms McGonigle then also informed the claimant that she had arranged for him to work shifts at the end of the following week, these being arranged for Friday 22 February and Saturday 23 February.

	3.8	At that point in the conversation on Saturday, 16 February, the claimant volunteered the information to Ms McGonigle (who indeed had not specifically requested from the claimant details of the reason for his court attendance) that he was required to attend court as a witness concerning an assault on a relative.  The claimant did not deny in his evidence to the tribunal that this had been stated by him.  That information was not truthful.

	3.9	The claimant then, on Wednesday 20 February, sent to Ms McGonigle a text message informing Ms McGonigle that he would be required to be in court until at least Friday (the 22 February).  The claimant then, the following day, Thursday 21 February, telephoned Ms McGonigle and stated that the court proceedings had concluded but that he did not wish to attend work the following day, Friday 22 February.  Whilst stating to Ms McGonigle that he wanted to “sort himself out” after the court case, he did not inform Ms McGonigle that he had been the accused in criminal proceedings. Ms McGonigle’s further evidence to the tribunal was that on a date which she could not precisely remember her mother telephoned her to state that a person of the same name as the claimant had been reported on the radio as having been involved in a rape case at Londonderry Crown Court.  Her evidence was that this telephone conversation might have occurred late on the afternoon of 21 February.  The tribunal believes that it is more probable than not that this was indeed the date that Ms McGonigle was informed by her mother of this information concerning the court case and the identity of the accused and that this occurred quite late on that day.  The tribunal does not believe that this information was imparted to Ms McGonigle by any other means or before that date and that time of the day, notwithstanding the suggestion on the claimant's part that this was common knowledge throughout the City and that Ms McGonigle would have been certainly aware of this specific information prior to this date and time.

	3.10	The tribunal inspected documentary evidence concerning a series of e-mails internally within the respondent company.  The first of these was sent from Ms Alannah Nicholson, HR Administrator, to Jane Griffiths on 21 February 2013 (10:52) stating:  “I have received another termination request, this time from Theresa at Londonderry”.  The email from Ms Nicholson to Ms Griffiths continued with a reference made to the issues of the previous employment dates disparity, the deadline to obtain alternative information afforded to the claimant expiring on 19 February, and also to the claimant stating that as he was due in court he would not be at work on Friday, 22 February.

	3.11	On 21 February 2013 (11.56), approximately one hour later, Ms Griffiths sent an e-mail to Ms Kershaw.  This relayed the information concerning the termination request and the issues of the disparity in previous employment dates, the deadline to obtain alternative information afforded to the claimant which had expired two days before and stated, “Therefore we could terminate him for not providing satisfactory references”.  The email continued, “He was on holiday last week and was due to work on Monday (18th) and Friday (22nd) and he has text (sic) the manager to say that he cant (sic) come in as he is due in court.  Therefore we can terminate due to unauthorised absence.  When I asked him what he was in court for he told the manager his aunty had been assaulted and he was a witness but SM didn’t believe him.  Alannah just googled it and there is an article on BBC news from 16th Jan 2013.”  The email went on to quote from an apparent extract from the BBC news report from 16 January 2013 that a 25 year old man had gone on trial in Londonderry Crown Court charged with raping his boss and that a person of the same name and street address as the claimant had denied that charge.  The email concluded, “If he comes back to work are you happy for us to terminate him on the basis of satisfactory references not provided and also unauthorised absences?”

	3.12	Ms Kershaw then took on management of the matter and appears to have made a decision fairly swiftly in the matter, very probably on that date, 21 February, and shortly after the matter had been referred to her.  On instructions from the respondent’s HR Department Ms McGonigle had a meeting with the claimant on Saturday, 23 February 2013.  She conducted that meeting in accordance with a written document or “script” that had been furnished to her by HR.  This script, to which she adhered strictly, stated that she had called the claimant to a meeting on 23 February 2013 to inform him that he had been unsuccessful in his time with the respondent company as he had committed an act of gross misconduct, namely dishonesty in that he was dishonest about why he was absent from work without authorisation on Friday, 22 February 2013 and the company had made the decision to terminate his employment with immediate effect during the first year of employment as his conduct amounted to gross misconduct.  There would be no appeal from that determination.  Accordingly the claimant’s employment was summarily terminated on that basis.  The respondent’s HR Department had composed a letter.  That letter purported to come from Ms McGonigle.  Curiously, the letter as far as Ms McGonigle’s evidence went, was never seen or personally signed by Ms McGonigle.  It purported to be signed “per pro” Ms McGonigle but that was done internally in the respondent’s HR Department, without further reference to the stated author of the letter, Ms McGonigle.  The letter was dated Monday, 25 February 2013 and was dispatched to the claimant by post.  It stated that the reason for the termination of the contract was that the claimant had committed an act of gross misconduct in that he had been absent from work without authorisation on Friday, 22 February 2013.  There was no mention made of any other cause and no allegation of dishonesty was expressly alluded to in reference to the reason for the absence from work on 22 February 2013.

	3.13	A specific issue emerged in the hearing in regard to which the tribunal is required to make relevant findings of fact.  In his evidence the claimant contended that a niece of Ms McGonigle called Ms Amy Nelis had been employed as a casual worker and that she had been afforded very favourable treatment over the Christmas period 2012/2013 and indeed that she had been retained as an employee of the store, whereas he had been dismissed.  The tribunal heard some brief evidence from Ms McGonigle regarding that matter.  On the basis of this evidence, the facts seem to be that Ms Nelis was employed to cover for an employee (named “Georgina”) who was off on long-term illness.  No specific dates were provided in the oral evidence and there was no documentary evidence.  Ms Nelis was it seems given a temporary contract for eight hours work per week to cover for this absent employee.  Ms Nelis then seems to have been engaged to work over the Christmas period of 2012.  The available evidence did not indicate whether or not that was before or after the absent employee Georgina had returned to work.  The tribunal's understanding is that the temporary contract for Ms Nelis continued in respect of eight hours per week, but perhaps with some additional hours afforded, ad hoc, over the busy Christmas period.  Thereafter Ms Nelis appears to have applied for and to have secured a permanent post as a manager of another of the respondent’s stores.  Again, no specific evidence was provided to the tribunal in respect of that latter contract.  That was after the dismissal of the claimant it seems.  Insofar as this is relevant, there was no evidence to suggest that at any time did Ms Nelis ever face any criminal charges of any nature or kind and certainly nothing comparable to those charges that were faced by the claimant at the material time.  This latter would, of course, only be material and relevant in respect of which it may be brought into focus for the purposes of the comparison asserted by the claimant for the purposes of identification of a comparator for the unlawful discrimination alleged.

	3.14	The tribunal does not need to determine any other material findings of fact for the purposes of reaching a decision in the case.

THE APPLICABLE LAW

4.	The Sex Discrimination (NI) Order 1976 Order (as amended, which amendments are to be taken to apply to any further references in this decision) (“the 1976 Order”) applies.  In relation to sex discrimination in employment, the relevant provision is Article 8 of the 1976 Order which provides as follows:-

		“(1)	It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman –

			(a)	in the arrangements he makes for the purpose of determining who should be offered that employment, or

			(b)	in the terms in which he offers her that employment, or

			(c)	by refusing or deliberately omitting to offer her that employment.

		(2)	It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her -

			(a)	in the way he affords her access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

			(b)	by dismissing her, or subjecting her to any other detriment.” 

BURDEN OF PROOF

	Article 63A of the 1976 Order provides:-

		“(1) 	This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.

		(2)	Where, on the hearing of the complaint the complainant proves facts from which the tribunal could, apart from this Article conclude in the absence of an adequate explanation that the respondent - 

			(a)	has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

			(b)	is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

		the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”

	Article 4 of the 1976 Order provides that the Order’s provisions relating to sex discrimination against women are construed as applying equally to the treatment of men.  Article 7 of the 1976 Order makes clear that the comparison of the cases of different sexes under Article 3 must be such that the relevant circumstances in one case are the same or not materially different in the other.  Thus, a comparison of the claimant’s case with that of another person must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.  It is provided thus that direct discrimination occurs if the claimant is treated less favourably than the employer (in this case) treats or 'would treat' another person.  The comparator may be real or hypothetical.

	The guidance concerning the use of comparators in sex discrimination claims which was given by the House of Lords in Shamoon  v  Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 applies to comparisons under the 1976 Order.

	The burden of proof relating to the claimant’s claim of sex discrimination is set out in Article 63A of the 1976 Order in similar terms to that found in other anti-discrimination legislation.  The Court of Appeal in England in Igen  v  Wong [2005] IRLR 258 considered the equivalent provisions to the Northern Ireland statutory provisions in a sex discrimination case; and approved, with minor amendment, the guidelines set out in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.  The Northern Ireland Court of Appeal has approved Igen  v  Wong and the two-stage process in the case of Bridget McDonnell & Others  v  Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3.  There, the Court of Appeal, in reference to this two-stage process stated:-

		“ ... the first stage required the claimant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant.  The second stage (which only came into effect if the claimant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld ... .”

	Igen  v  Wong has been the subject of a number of further decisions, including Madarassy  v  Normura International PLC [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing  v  Manchester City Council [2006] IRLR 748, both expressly approved by the Northern Ireland Court of Appeal in the Arthur  v  Northern Ireland Housing Executive and SHL (UK) Ltd NICA 25.

	In Madarassy, the Court of Appeal held, inter alia, that:-

		“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.  ‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could probably conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.

		Subject only to the statutory ‘absence of an adequate explanation’ at this stage the tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence as to the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparison being made by the claimant were of like with like as required by Section 5(3), and available evidence of the reasons for the differential treatment. ... .”

	This involves a two-stage analysis of the evidence but does not prevent the tribunal at the first stage from drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination.

THE SUBMISSIONS 

5.	Having withdrawn his other complaints, the claimant’s sole contention is that he had been subjected to unlawful sex discrimination by the respondent.  The tribunal took some care to explain to the claimant, in furtherance of the overriding objective and without objection on the part of the respondent, certain aspects of the tests which would require to be satisfied in order successfully to establish unlawful discrimination, in this case specifically sex discrimination.  The claimant has not raised the matter of specific comparators in his claim form.  However at hearing he contended that he sought both to compare himself to an actual comparator and also to a hypothetical comparator.  The actual comparator identified by him was a niece of the Store Manager, Ms McGonigle, Ms Amy Nelis.  The claimant contended that Ms Nelis had been employed by the respondent and that she had been afforded very favourable treatment over the Christmas period 2012/2013 and indeed that she had been retained as an employee of the store, whereas he had been dismissed.  He also submitted comparison with a hypothetical comparator.  The claimant did not provide much in further submission in that regard but, as the tribunal understands it, the submission was to the effect that this hypothetical comparator would be female but otherwise in the same situation as himself, including in regard to the matter of the criminal charge that he had faced and that he had successfully defended and from which he had been acquitted.  He contended that this female hypothetical comparator would have been treated more favourably than he was.  The basis of the claimant’s submissions related to his assertion that the customers of the store and the staff were predominately female. The claimant expressed concern to the tribunal that he did not want, as he put it, “mud to stick” to his name.  The claimant made a robust submission to the effect that he had been entirely falsely accused in the circumstances of the matter and that he had been acquitted of the criminal charge which he had faced.  His contention was that the true reason for his dismissal and for the termination of the contract and for the unfavourable treatment accorded to him was on account of his gender, as a male, and concerning the specific nature of the criminal charge faced by him, a charge in respect of which he had been proven to be totally innocent.  He contended that a comparable female, facing an analogous criminal charge, would not have been treated in the unfavourable way that he had been treated.  Such a person would thus not have been accorded the unfavourable treatment that was accorded to him.

6.	For the respondent it was contended that the treatment accorded had nothing whatsoever to do either with the criminal charge or with the claimant’s gender.  The relevant decision to terminate the contract had already been taken by the time the information about the precise nature of the criminal charge facing the claimant came to the respondent's attention.  The process had been set in motion which would have inevitably resulted in the claimant’s dismissal.  That was for the reason that the claimant had been dishonest in his declaration to his employer concerning the true reason why he was in attendance at Court.  It was submitted that a very high degree of honesty was expected in retail employment such as in regard to the job in which the claimant was engaged by the respondent.  The claimant was a keyholder and total honesty and reliability was fundamentally required in such a business.  The respondent in submissions sought to direct the tribunal’s attention to the sequence of events preceding the dismissal.  It was contended that the ultimate decision-maker, Ms Carol Kershaw, was not influenced in any manner in the decision-making by the claimant’s gender.  It was contended that the claimant's case, in reality, was an unfair dismissal case “dressed up” as a sex discrimination case, but without any basis whatsoever for such a case of unlawful discrimination to be sustained.

THE TRIBUNALS’ DETERMINATION

7.	Any person who seeks to contend that unlawful discrimination has occurred is required at the first stage of things to prove facts from which the tribunal could conclude that there is a real possibility of unlawful discrimination.  This is provided by Article 63A of the 1976 Order and the guidance given to assist the tribunal derives from the Court of Appeal in England in Igen  v  Wong [2005] IRLR 258 and from the Northern Ireland Court of Appeal in Bridget McDonnell & Others  v  Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3 (the latter being an authority binding upon the tribunal) and from many other legal authorities.  Only if such facts are proved, to the necessary degree, shall the burden of proof then shift to the respondent to provide an explanation which does not admit to any possibility of unlawful discrimination.  The tribunal thus had to determine if such facts had been effectively established and to the necessary extent to cause the burden of proof to shift to the respondent in this case, thus requiring the respondent to provide an explanation that there had occurred no unlawful sex discrimination whatsoever, to escape liability.

8.	In this case it is clear to the tribunal that the respondent has harboured a measure of potentially confused or shifting thinking concerning the precise basis upon which the contract might properly be terminated, until a final decision was made by Ms Kershaw.  Even then, the “script” followed by Ms McGonigle at the behest of the respondent’s HR Department appears to diverge a little from the reason for termination stated in the letter of dismissal, also prepared by the HR Department.  The potential reasons considered for the termination emerging from the evidence varied from the (no doubt very real) concern about the accuracy of the dates of employment with O2, to the matter of the claimed unauthorised absence, to the stated dishonesty on the claimant’s part in his explanation to the employer concerning the true reason for his absence from work and his attendance at Court.  As it transpired, the dismissal letter stated that the reason for the termination of the contract was that the claimant had committed an act of gross misconduct in that he had been absent from work without authorisation on Friday, 22 February 2013.  There was no mention made of any other cause and no allegation of dishonesty was expressly alluded to in reference to the reason for the absence from work on 22 February 2013.

9.	Be that as it may, the tribunal is acutely conscious of the fact that this is not an unfair dismissal case.  The tribunal is tasked with the specific application of the relevant law in respect of unlawful discrimination only.  In this case sex discrimination is alleged.  Looking at such facts as have been established from the evidence, the tribunal does note the claimant’s genuine sense of grievance and evident frustration at the manner in which his employment was terminated in these circumstances.  Nonetheless the law in this specific area is circumscribed and does not focus upon unreasonable behaviour on the part of the employer, if that behaviour might be properly characterised as that in this case.  That, one way or another, is irrelevant.  The law in a matter of alleged sex discrimination directs attention to the first stage, to the proof of such facts from which, in the absence of any explanation from the respondent, the tribunal could conclude the occurrence of sex discrimination.

10.	In Madarassy  v  Normura International PLC [2007] IRLR 246 the Court of Appeal in England held that the burden of proof did not shift to the employer simply on the claimant establishing a difference in sex and a difference in treatment.  These bare facts were not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.  ‘Could conclude’ must mean that the tribunal could conclude on the basis of the evidence, including any evidence of a difference in status, treatment and the reason for any differential treatment concerning any actual or hypothetical comparator or comparators relied upon by the claimant to prove less favourable treatment.

11.	The tribunal considered the evidence pertaining to the real and the hypothetical comparators chosen by the claimant.  The claimant’s hypothetical comparator was not, in his submissions, fully developed or described.  He had indicated that a comparable hypothetical female would not have been treated as he had been. Although the construction was not fully made by the claimant, the tribunal's best understanding of the claimant's case is that this would be a hypothetical female comparator, facing an analogous criminal charge (presumably one of some manner of alleged violent or non-consensual sexual offence) upon which there had been an acquittal.  The claimant's assertion was that this hypothetical comparator would not have been treated in the unfavourable way in which the claimant had been treated.  The claimant did not adduce clear and compelling evidence of any sort to support that assertion, save to contend that, as the workforce and the clientele were predominantly female, a comparable female, facing an analogous criminal charge, would have been treated differently and more favourably.  There were no proven facts upon which an evidential base might be formed and upon which the tribunal could conclude that that would indeed have been, or would have been likely to have been, the case and that the respondent might or would, in analogous circumstances, have treated a female employee more favourably. 

12.	That leaves then to be examined the actual or real comparator selected by the claimant.  This was a niece of the Store Manager, Ms McGonigle, who was called Ms Amy Nelis.  The claimant had contended that Ms Nelis had been employed by the respondent and that she had been afforded favourable treatment over the Christmas period 2012/2013 and indeed that she had been retained as an employee of the store, whereas he had been dismissed.  Article 7 of the 1976 Order makes clear that the comparison of the claimant’s case with that of another person must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.  The evidence provided by the claimant and by the respondent’s witnesses did not lead the tribunal to a conclusion of the possibility of unlawful discrimination in comparative terms.  This is so for the following reasons.  Examining the specific evidence regarding the comparator selected by the claimant, Ms Nelis, firstly, any evidence concerning Ms Nelis suggested that she had been employed on a temporary contract basis for eight hours per week to cover for an absent employee (Georgina) in a manner entirely unconnected with the claimant's contract.  She then was engaged over the Christmas period of 2012 (as what was believed to be the same number of weekly hours but with some additional hours afforded, ad hoc, over the busy Christmas period).  Again, this phase of engagement would seem to be conducted by the respondent in a manner entirely unconnected with the claimant's contract.  After this, at some unspecified time, Ms Nelis appears to have secured a post as a store manager in another of the respondent's stores.  There was no evidence adduced linking these contracts afforded to Ms Nelis in any manner to the claimant's contractual post.  The claimant’s assertion, put simply, was that Ms Nelis had been brought in by the respondent to take over his job when he was dismissed.  There was absolutely no evidence of any substance or weight to support the assertion.  The selected comparator, Ms Nelis, was not placed in the same or similar relevant circumstances of the claimant.  Apart from the difference in the contractual hours, the tribunal notes that in this case the claimant has placed much reliance upon particular circumstances, which he asserts to be the true reason for the alleged discrimination visited upon him by the respondent.  These specific circumstances, the claimant states, were directly connected to the fact that he faced criminal charges of a particular kind, of which he was acquitted.  He submits that this was directly connected to the real reason for his treatment, the alleged unlawful discrimination and his dismissal.  These latter circumstances, of course, do not in any manner whatsoever apply to the claimant’s identified comparator, Ms Nelis.  The comparison proposed by the claimant, taking all of these matters into account, is not a valid one and is not sustainable as a basis for the claimant's case of unlawful discrimination.

13.	Considering all of the facts established and taking fully into account all submissions made, the tribunal’s finding is that the relevant test has not been satisfied to the necessary degree.  Facts have not been proven from which the tribunal could conclude that unlawful discrimination occurred in the matter.  Accordingly, the case can proceed no further and the claimant’s claim of unlawful discrimination is determined by the tribunal not to be made out.  The claim is accordingly dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing:  11 September 2013, Belfast.

Date decision recorded in register and issued to parties: