NI Court of Appeal: Extern employee loses appeal against employment tribunal

An employee of Extern Organisation Limited has lost his appeal against a decision by a Fair Employment Tribunal, which had dismissed his claim for discrimination on the grounds of political opinion.

Giving the judgment of the Court, Lord Chief Justice Declan Morgan found that the Tribunal had properly directed itself in the law and its findings were well within the band of reasonableness.


Mr Thomas McCann MBE appealed against a decision by a Fair Employment Tribunal dismissing his claim for discrimination on the grounds of political opinion under the Fair Employment and Treatment (NI) Order 1998 (FETO).

Mr McCann had commenced employment with Extern on 1 November 1978. He was a Programme Manager and one of his responsibilities included the Ormeau Centre. His work focussed on providing services to the adult homeless.

In 2000, Mr McCann had been awarded an MBE for his services to disadvantaged homeless people in Belfast.

Justice Morgan stated that he had an exemplary disciplinary record.

The alleged discriminatory behaviour complained of by Mr McCann began in December 2006, after an incident led eventually to Mr McCann bringing a claim for sexual discrimination when he was suspended by Extern’s Chief Executive.

Setting out the background to the case, Justice Morgan noted the numerous grievances and disciplinary procedures which developed in the years after this incident; and Mr McCann was ultimately dismissed.

Justice Morgan explained that this was the second occasion on which this case had come before the Court of Appeal, an earlier appeal against a dismissal of the claim for discrimination on the grounds of political opinion having been allowed and the matter remitted to a fresh Tribunal.

The original Tribunal

The Tribunal concluded that Mr McCann had been unfairly dismissed because of flaws in the disciplinary process which were not cured by the appeal procedure; and “only made matters worse”.

The Tribunal was satisfied that neither “the findings of gross misconduct against Mr McCann nor the sanction applied of dismissal were reasonable in all the circumstances of the case”.

However, the Tribunal also concluded that the claim of victimisation arising from the initiation of industrial tribunal proceedings in 2007 was not made out – there was no causative link between the “protected act” and the detriment claimed and the appeal against that finding was dismissed.

Further, in determining the claim for discrimination because of his political opinion, the Tribunal concluded that it had heard “no credible evidence” of discrimination of Mr McCann because of his political opinion.

This Court concluded in relation to the latter finding that it was not clear what facts were found by the Tribunal and what were rejected as not being credible and if such facts were rejected as being not credible the basis for the Tribunal so concluding.

The approach of the new Tribunal

The focus of the case was on whether Mr McCann suffered detriment and whether an effective cause of any detrimental treatment was Mr McCann’s trade union beliefs.

The alleged acts of detriment were that:

  1. Dismissal which was unfair and substantive ground;
  2. Dismissal which was procedurally unfair as he was not given the opportunity to appear and make submissions on the second day of the disciplinary hearing or at the appeal notwithstanding his being unfit to attend and seeking an adjournment;
  3. He was not afforded the opportunity to attend this grievance hearing and make submissions as it had been rolled up into the disciplinary hearing;
  4. He was subjected to discrimination due to the decision not to interview his trade union representative because she was not likely to be objective. This act disadvantaged him and was not trivial because she might have said that Mr McCann was not involved in contributing to the leaflet and this might have had an impact on whether the claimant was charged with his fifth disciplinary charge.

Court of Appeal

Mr McCann submitted that there was a fundamental problem with the decision of the Tribunal in that it left out of account the original Tribunal’s findings that spoke to the lack of integrity and credibility of a member of senior management – Mr Crossan – in relation to the comments about senior management at Extern.

The Court of Appeal accepted that the new Tribunal had made an error in identifying the misconduct which the original Tribunal found Extern could properly consider.

However, this error did not go to the issue which the Tribunal had to address which was the state of mind of members of senior management at Extern in relation to the disciplinary and grievance hearings.

Since the tribunals were examining different issues, the Court did not accept that the conclusions of the new Tribunal contradicted of the findings of the original Tribunal.

Dismissing Mr McCann’s appeal, the Court of Appeal found that the new Tribunal properly recognised that it had to examine whether trade union activities and political opinion were an effective cause of Mr McCann’s treatment.

That was a different task from that of the original Tribunal in examining the issue of unfair dismissal.

Accordingly, the Court found that the new Tribunal properly directed itself in the law and its findings were well within the band of reasonableness.

  • by Seosamh Gráinséir for Irish Legal News