FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   147/05 FET
1035/05

CLAIMANT:		Ismail Karauzum

RESPONDENT:		John Menzies (UK) Limited

DECISION ON A PRE HEARING REVIEW

The decision of the Tribunal is that the Tribunal has jurisdiction to consider the claimant’s claims of religious and racial discrimination and unfair dismissal.

Constitution of Tribunal:  

Chairman (sitting alone):	Ms J Knight 

Appearances:
The claimant was represented by Ms S Bradley Barrister–at- Law instructed by The Equality Commission for Northern Ireland.

The respondent was represented by Mr G Donaghy Barrister- at- Law instructed by DLA Piper UK.

The issues for the Tribunal were:-

1.	Was the claim of religious discrimination presented within the specified time limit?

If not, is it just and equitable, in all the circumstances of the case, for a Fair Employment Tribunal to consider this claim despite the fact that it is out of time?

2.	Was the claim of race discrimination presented within the specified time limit?

If not, is it just and equitable, in all the circumstances of the case, for a Fair Employment Tribunal to consider this claim despite the fact that it is out of time?

3.	Was the claimant’s claim for unfair dismissal presented within the specified time limit?

If not was it satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months and was the complaint presented within such further period as the Tribunal considers reasonable?

The Tribunal considered the originating complaint of the claimant, Mr Ismail Karauzum, and his oral evidence, the respondent’s response and the oral evidence of Mr Kevin Whitehead, General Manager of the respondent and an agreed bundle of documentation. 

The tribunal made the following findings of relevant fact on a balance of probabilities:-

1)	The claimant, Mr Ismail Karauzum, lodged his originating claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 14 July 2005.  He is a Turkish Muslim and was employed as a warehouse operative for the respondent, John Menzies Distribution Limited, from March 2002 until his resignation with effect from 19 April 2005.  He was placed in this employment by an employment agency and was employed initially on a temporary contract of employment in the Returns Department as a dayshift worker.  In August 2002, he was offered a full-time contract and in September 2003 he was moved to the nightshift.

2)	The claimant’s complaints are that he was subjected by work colleagues, some of whom were supervisors, to racial and religious harassment throughout his employment and that no effective steps were taken by the respondent to prevent and deal with the treatment and that when the issue of racial harassment was raised with staff, it was not taken seriously.  As a consequence the claimant stated that he had no option but to resign and was entitled in the circumstances to treat himself as unfairly constructively dismissed.

3)	The claimant alleges that two weeks after he commenced his employment with the respondent, he was subjected to harassment of a racial and religious nature by his work colleagues continuing until the end of his employment.  This included calling the claimant names such as “Osama Bin Laden”, “El Quaeda” “Turkish bastard” “El Potato” and “Gilnahirk” (rhyming slang for Turk) and jokes of a sexual nature about his wife.  Early on in his employment he alleges that graffiti was written on the conveyor belt at which the claimant was working which stated that “Ismail’s wife eats pork”.  He claimed that comments were made by his colleagues to the effect that he had taken “their jobs” and “their women” on a daily basis, sometimes more than once a day and that their frequency increased when he moved to the nightshift in September 2003.  He stated that his colleagues made jokes about him which he did not understand, leaving him feeling isolated.

4)	 The claimant alleges that in May 2004 he was called over by colleagues to look at a tabloid photograph, posted on the wall of the warehouse, of a naked Iraqi prisoner being abused by American soldiers. The claimant’s name was written on the photograph with an arrow pointing to the prisoner.  The claimant asserts that members of staff were standing around laughing. He removed the photograph and kept it.  Shortly afterwards another newspaper picture of Kenneth Bigley imprisoned in a cage was displayed with the claimant’s name written on it, along with joke about the claimant. 

5)	The claimant alleges that he told his colleagues involved to stop this treatment and that some did cease making racist comments but that these continued on a daily basis. He claims that he reported the earlier incidents to a supervisor, Mr Rolf. In January 2005 he states that he raised a complaint with another supervisor, a Mr John Gray as he could no longer bear this treatment. 

6)	It is common case that the claimant requested a meeting with Mr Whitehead, which took place on 16 March 2005 when he complained about the offensive comments about him and the graffiti incident on the conveyor belt. The claimant gave Mr Whitehead the photograph which had been posted on the wall of the warehouse in May 2004.  The claimant agreed that he did not identify those of his colleagues who he said had been harassing him. Mr Whitehead instructed Mr Andy Mayne, the Day Distribution Manager, to convene a staff meeting to remind staff of the respondent’s harassment policy. Following his meeting with the claimant, Mr Whitehead spoke to Andy Mayne who confirmed that after the meeting a member of staff had made a joking comment about a Belgian colleague to the effect that they could no longer call him a Dutch man. This was said in the presence of the claimant who stated to the Tribunal that he could not understand the nature of the joke and concluded that the harassment policy had not been taken seriously by supervisors and staff present at the meeting.

7)	On 22 March 2005 the claimant alleges that a Mr Eddie Babbs, a contract driver for the respondent, called him a “suicide bomber” and that he should be beaten and hung from a forklift. The claimant left work after this saying he felt unwell. When Mr Whitehead heard that the claimant had left work early on 22 March, he spoke to Mr John Gray who advised that there had been an “exchange of words” between the claimant and Mr Babbs. Mr Whitehead then ordered Andy Mayne to carry out an investigation and to interview all employees in relation to the incident on 22 March 2005. Later that afternoon Mr Whitehead met with the claimant who asked him to return the newspaper cutting and advised him that after the staff meeting further comments had been made. Mr Whitehead contends that the claimant again would not identify the persons involved. 

8)	The claimant submitted a sick line dated 23 March 2005 for two weeks stating anxiety and depression to be the reason for the absence and a further certificate for two weeks on 6 April 2005.

9)	He handed in a letter of resignation on 13 April 2005, and claims that when he called in to collect his P45 on 19 April 2005 he was called “Osama Bin Laden” by an employee of the respondent called “Patrick”, in the presence of the Saturday night supervisor.

10)	The claimant commenced work with the Belfast Telegraph in May 2005. He alleges that an employee of the respondent making a delivery to the Belfast Telegraph shouted to the claimant “Hey Osama, where is your beard?” 

11)	Following his resignation, the claimant sought advice from the Equality Commission for Northern Ireland and subsequently raised a grievance about these matters under the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. Mr Whitehead responded by letter of 11 July 2005, in which he set out the respondent’s view of the events. He wrote that the matters raised in the claimant’s grievance could not be investigated by the respondent as the claimant had not complained to management at the time of the incidents and the claimant had not divulged the names of the members of staff concerned. Mr Whitehead invited the claimant to contact him to arrange a meeting in accordance with step 2 of the statutory grievance procedures. 

12)	The claimant lodged his complaint with the Fair Employment Tribunal on 14th July 2005 and wrote to Mr Whitehead on 28 July 2005 to advise that he preferred to use the modified grievance procedure as his employment with the respondent had terminated and he had now another job. This was accepted by Mr Whitehead in his letter to the claimant dated 26 August 2005 in which he invited the claimant to provide him with the details of the complaints he was making in order that the respondent could carry out an investigation into the claimant’s allegations and to take any appropriate disciplinary action after completion of the investigation.

13)	The respondent lodged a response denying the claimant’s allegations which was received by the Tribunal Office on 13 August 2005. It was argued at the Pre Hearing Review for the respondent that the incidents of harassment alleged by the claimant formed discrete episodes, which, with the exception of the alleged incident on the 19 April 2005, had occurred more than three months prior to the lodgement of the originating complaint with the Office of Tribunals and were therefore out of time. It was argued that in this case the complaints did not have a similar genus or background in that some of the complaints were of treatment related the claimant’s religion and others were of treatment directed to the claimant’s nationality. On this basis the treatment complained of formed separate and distinct incidents, with time starting to run against the claimant after each incident.

14)	Counsel for the respondent also made the case at the pre hearing review that there was a break in the claimant’s continuity of employment between the end of a temporary contract which had commenced in April 2002 and a further temporary contract which commenced in August 2002 after the claimant had returned fro a holiday in Turkey that summer. This was the first time that this issue had been raised by the respondent and was disputed by the claimant. 

15)	Relying on a decision of the Fair Employment in the Hoy v Northern Ireland Railways (Translink) 458/02 FET, counsel for the respondent contended that the allegations of the claimant were vague and not sufficient to prove that these matters form a continuous course of conduct by the respondent against the claimant. Either the acts were isolated distinct events or if the incidents did form a continuous act over a period, this period ended when the claimant went on sick leave on 22 March 2005. The respondent was not responsible for the acts of Mr Babbs, who as an independent contractor, it was contended, was outside the control of the respondent. The actions of Mr Wright may be regarded as distinct. Further it would not be just and equitable to extend the time as a number of the complaints were very “stale” and some of the employees involved no longer worked for the respondent. The respondent would be prejudiced on this basis and also because no complaint was made by the claimant. The onus is on the claimant to ensure that his complaint was made within the relevant time limits and he could have sought advice at any stage in relation to the incidents. 

16)	For the claimant it was contended that the alleged acts of racial and religious harassment against him by various employees of the respondent and other persons constituted a continuing act of discrimination against the claimant which started in March 2002 and continued even after the termination of his employment. Furthermore the respondent was liable for a continuing failure to take the appropriate action to deal with the harassment and that that was also a continuing act for which the respondent is liable. The Tribunal was referred to the judgment of the Court of Appeal in the case of Hendricks v Metropolitan Police Commissioner 2003 1 All ER 654.

17)	 The Tribunal heard submissions by the parties in relation to how it should exercise its discretion when considering whether it was just and equitable to extend the time for presenting the originating claim, in the event that it found that some or all of the complaints prior to 19th April were out of time.

18)	 At the outset of the hearing counsel for the respondent had conceded, and the Tribunal was satisfied, that the originating claim had been lodged by the claimant within the statutory time limit prescribed by the Employment Rights (Northern Ireland) Order 1996 and that the Tribunal therefore had jurisdiction to hear the claimant’s complaint of unfair dismissal.

The Law

Article 46(1) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO), provides “subject to paragraph (5), the Tribunal should not consider a complaint under Article 38 unless it is brought before, whichever is the earlier of –

a.	The end of the period of three months beginning with the day on which the claimant first had knowledge, or might be expected to first have knowledge, of the act complained of; or

b.	The end of the period of six months beginning with the day on which the act was done.” 

Article 46(5) provides that “a court or a Tribunal may nevertheless consider any such           complaint, claim or application which is out of time, if all the circumstances of the case, it considers that it is just and equitable to do so.”

(6)		For the purposes of this Article - 
(b)	any act extending over a period shall be treated as done at the end of that period; and
(c)	a deliberate omission shall be treated as done when the person in question does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have 	been expected to do the omitted act if it were to be done.

Article 65 of the Race Relations (Northern  Ireland) Order 1997 (RRO)provides – 

(1)	An Industrial Tribunal shall not consider a complaint under Article 52 unless it is presented to the Tribunal before the end of — 

(a)	the period of three months beginning when the act complained of was done; ….

(7)	A court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. 

(8)	For the purposes of this Article — 

(a)	when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and 

(b)	any act extending over a period shall be treated as done at the end of that period; and 

(c)	a deliberate omission shall be treated as done when the person in question decided upon it. 

(9)	In the absence of evidence establishing the contrary a person shall be taken for the purposes of this Article to decide upon an omission — 

(a)	when he does an act inconsistent with doing the omitted act; or 

(b)	if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done. 

Conclusions

1.	After considering the legal authorities referred to above, the Tribunal concluded that there were many factual similarities between the present case and the Hendricks case in which the claimant had made allegations of race and sex discrimination and victimisation arising out of almost one hundred incidents involving over fifty colleagues over a period of five years prior to the lodgement of proceedings with the Industrial Tribunal.  In that case it was held that in considering whether there is a continuing act the question for the tribunal is whether the there is an act extending over a period as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. The Tribunal considered that the present case could be distinguished on its facts from the Hoy case and that the claimant’s allegations could not simply be categorised out of hand as a series of isolated incidents. Rather the Tribunal considered that taken together they had the potential to be regarded as a continuing state of affairs or an ongoing situation for which the respondent could be found to be responsible.

2.	The Tribunal considered that paragraph 48 of the judgment of Mummery LJ in the Hendricks case to be particularly pertinent to the present case and concluded that the claimant ought to be entitled to pursue his claim “beyond this preliminary stage on the basis that the burden is on (him) to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked together and that they are evidence of a continuing discriminatory state of affairs covered by the concept of ‘an act extending over a period’.”

3.	The Tribunal recognises that the claimant ultimately may not succeed in proving that the alleged incidents actually occurred, or if they did, that they amount to more than a series of isolated and unconnected acts of less favourable treatment by different people over a period of time or that there is an act extending over a period for which the respondent can be legally held responsible due to its alleged acts or omissions.

4.	In any event the respondent in this case has conceded that the complaint of unfair dismissal was made within the statutory time limits and that complaint of unlawful discrimination on grounds of his race and/or religion insofar as it relates to the alleged incident on 19 April 2005 was presented within the statutory time limits prescribed by FETO and the RRO.  Even if some of the acts are out of time they are capable of being raised in evidence in order to establish facts from which an inference may be drawn that the later alleged less favourable treatment is on grounds of the claimant’s race, religion or both.

5.	Therefore the Tribunal concludes that as in the Hendricks case, it is “too soon to say that the complaints have been brought too late” and determines that in order to deal with the case justly and in order to ensure a fair hearing that the claimant’s complaints should now proceed to a full hearing before a full panel of the Fair Employment Tribunal.

6.	Therefore it is decided that the Fair Employment Tribunal does have jurisdiction to hear the claimant’s complaints of unlawful discrimination on grounds of race and religion and unfair dismissal.

Chairman:

Date and place of hearing:	18 December 2006, Belfast

Date decision recorded in register and issued to parties: