The claimant is a Roman Catholic and of ‘no set political opinion’.  However, the claimant contended that as a result of her forename she would be perceived as a nationalist.   The claimant was not an employee for the respondent but rather an agency worker through her employer, Grafton Recruitment. The claimant worked as a receptionist at the Castlereagh Hills Golf Course which was owned by the respondent. The issue arising relates to two allegations against a member of the respondent’s golf course and how those allegations were dealt with by the respondent when they were brought to their attention.

The first incident was from October 2018 where Mr A (a member of the golf club) made remarks about the claimant’s religion and asked her why the Union flag had been taken down from the flag pole.  A complaint was made by the claimant to her line manager.  Mr A stated that he did not know the claimant’s religion but he was advised that his behaviour could be regarded as sectarian.  As a result, Mr A apologised to the line manager as well as agreeing to apologise to the claimant. The Tribunal found that this was a swift and seemingly effective response yet it failed to apply the internal procedure of the respondent, failed to maintain records and did not take any steps to follow-up if the remedial action had taken place.

In September 2019 a second incident occurred where Mr A was alleged, by the claimant, of swearing at her and that he stated she had accused him of being sectarian when he was not.  Just before the claimant’s next shift, the line manager (who had been on leave) said Mr A could attend.  He also asked for a write-up of the matter.   The claimant stated that she felt physically shaken by Mr A’s outburst.  Claims were brought in relation to Harassment under Fair Employment and Treatment (NI) Order 1998 (‘FETO’), Victimisation and Direct Discrimination.

On the issue of harassment, it was held that there could be no claim as Article 36 of FETO does not extend liability to third parties and it only applies to employees or workers.  The issue of direct discrimination arose from her line manager making a comment assuming the religion of a work colleague.  This took place in November 2018 and the claimant was party to it, if it had happened.  As it was in 2018 and the claimant was party to it was clearly out of time.  The Tribunal found that it was not just and equitable to extend time. Notwithstanding that, the claimant did not demonstrate an appropriate comparator so did not show a prima facie case.  The claim of victimisation related to not being asked to take on work when another was called for jury service.  It was held that no victimisation arose because the individual seeking the cover was not aware that the claimant had made a protected act.  The decision not to include the claimant was based upon an assessment of who would be most likely to fill the shifts at short notice. Accordingly, the case was dismissed.

Practical Lessons

This case cuts across many aspects of non-discrimination.  The primary issue for the claimant was that the alleged act relating to discriminatory treatment on the grounds of political opinion and religious belief was a third party rather than an employee of the respondent.  Despite the fact that the proper procedure was not followed by the respondent, FETO makes it clear that liability does not extend when it is an act of a third party.  This restriction on when liability can arise should be borne in mind by claimants and legal representatives alike and this case highlights that employers will not be liable for the actions of third parties but caution is still required.  Employers can be liable for how they respond to such situations as it may then fall into the category of discrimination or harassment.  It is also important to note that employers can be liable for the actions of third parties when it comes to sexual harassment.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/