Employee’s claim of Victimisation dismissed

19 September 2017

In the recent decision of Shane Hynds v The South Eastern Regional College and Tim McAlister [2017], the College, represented by Worthingtons Solicitors, successfully defended the Claimant’s claims that he had been victimised. The second respondent, Mr. McAllister, Deputy Head of School, was also successful in defending his position. Mr McAlister was represented by his own legal team.

Employee’s claim of Victimisation dismissed

The Claimant was a lecturer at the first named Respondent’s College, South Eastern Regional College.  

The Claimant, along with other witnesses, had given evidence in 2015 as part of a separate investigation concerning a grievance; such evidence which could be construed as being detrimentalto Mr. McAlister. Mr. McAlister was invited to a disciplinary meeting as a consequence of the grievance outcome. Mr. McAlister attempted to discuss the evidence provided by the Claimant in the investigation. The motive for why Mr. McAlister did so was in dispute, and was central to the Claimant’s claim of victimisation.  

Mr. McAlister invited the Claimant to a meeting which took place on 06.04.2016. The Claimant felt the lack of notice of the meeting, the positioning of the room and the people present, were designed to intimidate and make him change his evidence.  

The College pleaded the Statutory Defence and in doing so, did not accept vicarious liability for Mr. McAllister’s actions. The College believed that they had carried out all reasonable steps so that all employees, including Tim McAlister, knew not to act in a manner that would be discriminatory or unlawful. The College stated it trained Mr. McAllister in discrimination and bullying and harassment policies and procedures.

Mr. McAllister’s actions were not deemed to be unlawful, therefore the Tribunal did not need to make a declaration on whether the College were vicariously liable for those actions.

The Tribunal dismissed the Claimants claim for, amongst other reasons, two main grounds. It determined the meeting was not an attack on the Claimant in any way but undertaken as part of sound legal advice to build up a disciplinary defence for allegations against Mr. McAlister. One of the key problems with the Claimants case was timing, Mr. McAlister received the grievance outcome report, that contained some of the Claimants evidence, some five months before this meeting was scheduled, and so the Tribunal declaredthere is no motive of revenge. The Tribunal held there was no evidence to show; “delayed retribution.”

The other issue was the secretive nature of the meeting which led to the Claimant feeling ambushed and pressurised. The Tribunal held that to be; “based upon a quite understandable and reasonable desire to maintain confidentiality” in light of the current circumstances within that Department at the time.

The Tribunal held that the meeting was a legitimate reason to build up a defence to pending disciplinary charges and not to pressurise the Claimant to; “change his evidence.” The claim was dismissed.

This Decision has now been appealed to the Northern Ireland Court of Appeal.

Niall McMullan is an Associate Partner in the Employment Law department of Worthingtons solicitors and can be contacted on 02890434015

 

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