FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 159/10 FET
CLAIMANT: Tarek Lounis
RESPONDENT: Stranmillis University College
The unanimous decision of the Tribunal is that the claims of unlawful discrimination and unauthorised deductions from wages are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr A Kerr
Mr M Roddy
The claimant appeared in person and was not represented.
The respondent was represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
1. The claimant is of Algerian origin. While pursuing third level studies in Belfast, he has been employed as a catering assistant in Stranmillis University College from October 2009. He remains in that employment. He is a Muslim.
2. During all relevant times, the claimant was engaged on general kitchen duties, including cleaning and washing plates, cleaning cooking utensils and general cleaning. His duties did not include serving food.
3. The claimant alleged that he had been subjected to harassment on the grounds of race and religious belief, that he had been directly discriminated against on grounds of race and religious belief compared to three colleagues, Marie McGrath, Christine Blair and Nora Topping, and that there had been unlawful deductions from his wages.
4. The issues for the Tribunal to determine are:-
(i) Whether the claimant was unlawfully harassed or unlawfully discriminated against as alleged.
(ii) Whether there had been unlawful deductions from wages.
(iii) Whether the claims were within time, and if not, whether time should be extended.
5. The hearing lasted for three days. The claimant gave evidence on his own behalf. The Witness Attendance Order procedure had been explained to the claimant during the case-management process and the respondent had arranged for the attendance of one of its employees at the claimant’s request. However, the claimant called no other witnesses. The respondent called Mrs Joanne Gribbin, the respondent’s assistant hospitality services manager, Mrs Christine Nesbitt, the hospitality services manager, Mrs Christine Blair, catering assistant, Ms Rosemary McQuade, human resources officer and Mrs Ursula Doherty, human resources manager. The Tribunal was referred to a bundle containing 228 pages.
6. The legislation in relation to both discrimination on the grounds of race and discrimination on the ground of religious belief provides for a shifting burden of proof. If the claimant proves facts on which, excluding any explanation from the respondent, a Tribunal could reasonably infer that there has been unlawful discrimination, the burden of proof will shift to the respondent.
7. The correct approach for Tribunals to adopt has been discussed in a series of cases, most recently:-
Nelson v Newry & Mourne District Council  NICA 3 April 2009
At Paragraph 24 of that decision, the court stated:-
“This approach makes clear that the complainant’s allegation of unlawful discrimination can not be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland  NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying [the provisions relating to the shifting burden of proof]. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
Unlawful deductions from earnings
8. The Employment Rights (Northern Ireland) Order 1996 provides a remedy before an industrial tribunal where the claimant can establish that there have been unauthorised deductions from earnings; in effect, an action for breach of contract for failure to pay all monies that are due by the employer to the employee on foot of a contract of employment.
Format of decision
9. The claims brought by the claimant involve a series of alleged incidents. The decision will therefore deal with each alleged incident in turn, recording the relevant findings of fact and the Tribunal’s decision in respect of each matter.
ALLEGED INCIDENT ON 26 NOVEMBER 2009
10. In his claim form, the claimant alleged that he had been assaulted by another employee, Ms Delia Loughran, who ‘punched me on my chest, and insulted me saying fucking bastard foreigner’.
11. In his oral evidence, the claimant stated that he normally worked with Ms Nora Topping and Ms Marie McGrath. Ms McGrath was not there on the relevant evening and Ms Topping had already left when Ms Loughran asked the claimant if the floor had been cleaned and then told him to clean it. After the claimant had cleaned the floor, and he was signing out, the claimant alleged that Ms Loughran had hit him on the chest and said ‘fucking bastard foreigner’ and ‘the worst people I have seen in my life’.
12. It seems to be common case that the claimant complained about this incident and that it was investigated by an internal investigation panel. The only witness to this incident was Mrs Christine Blair. Ms Loughran admitted to having called the claimant ‘a fucking lazy bastard’ after an altercation about who should clean the floor. She denied using the word ‘foreign’ or making any other racist remark. She also denied touching him. This version of events was supported by Mrs Blair and accepted by the investigation panel. The investigation panel also found that the claimant accepted that he had said to Ms Loughran ‘do not even speak to me’ – ‘you are only a woman’. The panel did not recommend disciplinary action against either party but set up a mediation process.
13. Mrs Blair gave evidence to the Tribunal that Ms Loughran had only said ‘fucking lazy bastard’ and that she had not used the word ‘foreign’. Mrs Blair also gave evidence that Ms Loughran had not touched or assaulted the claimant.
14. The Tribunal was therefore presented, in oral evidence, with two different versions of the relevant incident. This is a pattern which was maintained throughout the Tribunal hearing. In relation to this particular incident, there was one version from the claimant and one version from Mrs Blair. There was also documentary evidence relating to the internal investigation panel. The Tribunal noted that both Ms Loughran and the claimant had made allegations about each other’s conduct on 26 November 2009 and that those allegations were considered by the internal investigation panel. Mrs Blair was not directly involved in this dispute between the claimant and Ms Loughran. Her evidence to the Tribunal was clear and was consistent with her earlier evidence to the investigation panel. The claimant did not challenge her evidence in cross-examination; although he did allege, in his final submission, that Mrs Blair was a friend of Ms Loughran and was not telling the truth.
15. Mrs Blair appeared to the Tribunal to be a credible and honest witness. On the balance of probabilities, the Tribunal concludes that Ms Loughran did not use the word ‘foreign’, did not make any racial remark and did not punch or hit the claimant as alleged. The claimant therefore was not unlawfully harassed on this occasion on the ground of either religious belief or political opinion.
ALLEGED MOBILE PHONE INCIDENT IN NOVEMBER 2009
16. The claimant alleged in his claim form that:-
“In November 2009; Delia [Loughran] approached me and asked me to leave my mobile phone at reception when coming to work. But Delia uses her phone in work and other staff as well do.”
17. The claimant in his evidence said that Ms Loughran had approached him during his break at approximately 6.00 pm and had asked him to leave his mobile phone at reception while at work. He alleged that other staff used their mobiles at work and that Ms Loughran just wanted to start an argument. He first mentioned this incident to management in April 2010, some five or six months later.
18. The claimant produced no witnesses to this incident and did not produce any evidence to establish the policy of the respondent in this area or to establish that anyone else was treated differently. However he did allege that other staff were present and had witnessed the discussion. The claimant had been told during the Case Management Discussion procedure of the process for applying for Witness Attendance Orders but failed to seek the attendance of those he alleged had witnessed the incident.
19. The only evidence before the Tribunal in respect of this incident was the claimant’s unsupported assertion that Ms Loughran asked him to leave his mobile at reception while he was working. It is clear from this incident and other incidents to which the decision will shortly turn, that there was a poor working relationship between Ms Loughran and the claimant. However, without more, that is not enough to allow a Tribunal to draw a reasonable inference of unlawful discrimination on the grounds of race or religious belief. At it height, the claimant’s version of events simply indicates that a request was made in neutral terms and with no obvious racial or religious overtones.
20. The Tribunal therefore concludes the claimant has not proven facts from which a reasonable inference of unlawful discrimination could be drawn and therefore that this incident did not amount to unlawful harassment. As with each of the incidents considered in this decision, the Tribunal has considered each incident, both separately and as part of a series of incidents, to determine whether the burden of proof has shifted.
THE ‘EXTRA FISH’ INCIDENT
21. The claimant in his claim form alleged that at the beginning of 2010, Mrs Joanne Gribbin, hospitality services manager, shouted at him during a meal break and told him to return an extra piece of fish that he had on his plate to the kitchen. He stated that he had been humiliated. It had been done ‘in an unfriendly way’.
22. In his evidence to the Tribunal, the claimant stated that Mrs Gribbin had corrected both him and another employee, Erin Jiang, for taking two pieces of fish rather than one piece. He accepted that he had only been allowed to take one piece of fish and that he, and indeed Erin Jiang, had been in the wrong. However, he objected to being spoken to in front of other staff and he alleged that Mrs Gribbin had shouted at him but had spoken to Ms Jiang in a different way. Ms Jiang is of Chinese origin. When asked by the Tribunal why he thought Mrs Gribbin had done this, the claimant said:-
“I don’t know – I don’t know what was in her head.”
23. Mrs Gribbin confirmed in evidence that staff were provided with a free meal after 6.00 pm each evening. She stated that the same portion control and portion sizes applied to both students and staff. She stated that she had spoken normally to both the claimant and Ms Jiang and that she had not shouted during this incident.
24. Mrs Gribbin’s evidence was supported by evidence from Mrs Blair to the Tribunal. She had witnessed the incident. Mrs Blair stated that Mrs Gribbin had spoken to both the claimant and Ms Jiang about taking an extra piece of fish and that she had not shouted at either employee.
25. Again the Tribunal is faced with two slightly different versions of what appears to be an unremarkable and work-a-day incident. As before, the claimant did not call any evidence to support his version of events, even though his evidence to the Tribunal was that he was friendly with Ms Jiang.
26. The Tribunal concludes on the balance of probabilities that Mrs Gribbin did not shout or behave aggressively during this incident. There is absolutely no evidence before the Tribunal from which it could draw a reasonable inference of unlawful discrimination in respect of this incident, whether this incident is viewed in isolation or in conjunction with all the other incidents cited by the claimant.
‘FINGER IN FACE’ INCIDENT
27. In his claim form the claimant stated:-
“In another incident, Delia came to me shouting and she put her finger in my face warning me if I came close to her (Marie, an employee was there watching the incident).”
28. In evidence to the Tribunal, the claimant had to be prompted by the Tribunal to recall this incident and to refer to it. He stated that he and Ms Loughran met in a doorway. She was coming out and he was going in. He alleged Ms Loughran shouted at him:-
“If you come close to me.”
He also alleged that she pointed her finger at him. He stated that this incident had occurred in March 2010.
29. As discussed earlier, there clearly was ill-feeling between Ms Loughran and the claimant, even after the mediation process had taken place. She had admitted to calling him a ‘fucking lazy bastard’. However, the claimant’s evidence, at its height, does no more than confirm this poor working relationship. The fact that Ms Loughran is of one race and that the claimant is of another, is not, without more, a sufficient basis for the Tribunal to reasonably infer that this relatively unremarkable incident amounted to an act of racial harassment or religious harassment, whether this incident is considered separately or as part of a series of alleged incidents.
THE ‘DOOR SLAMMING’ INCIDENT
30. In the claim form the claimant stated:-
“In another incident the same colleague (Delia) shouting at me saying if I have problem with [sic]. Before that I was looking for staff to serve a student who was waiting to be served.”
31. In his evidence to the Tribunal, the claimant stated that Ms Loughran, Mrs Blair and Ms Topping had gone outside for a cigarette break at approximately 6.00 pm when things had started to quieten down. No member of staff was therefore in the serving area. The claimant said that a student arrived in the serving area and was waiting to be served. He stated that he went back to look for someone and that after he had returned, Ms Loughran came in and said ‘do you have a problem with me’? The claimant stated in his evidence-in-chief that:-
“I did not speak to her or even look at her.”
32. In his cross-examination, the claimant did not dispute that he had told the panel investigating his internal grievance that he had banged the external door in ‘a joking way’. He also accepted that he had thought that the three staff, including Ms Loughran, were spending too long on their cigarette break and that he had wanted them to come back into work. He also stated, in contrast to his evidence-in-chief, that he had responded to Ms Loughran by saying that he did not have a problem with her.
33. The claimant’s view of this incident, as expressed to the Tribunal, was that Ms Loughran had not been reacting to his opening and slamming the door as a signal for her to return to work. He told the Tribunal that Ms Loughran was simply trying to provoke him and to create problems for him.
34. Yet again, this appears to the Tribunal to be a minor incident which the claimant has chosen to misinterpret. Ms Loughran and the claimant did not like each other. The claimant was aggrieved at the length of the cigarette break being taken by Ms Loughran and her two colleagues and chose to open and shut the door noisily, or in a ‘joking’ fashion, as a signal to the three members of staff to return to work. The reaction of Ms Loughran, ie to ask him if he had a problem with her, is entirely consistent with the history of bad feeling between the two individuals and has no obvious racist or religious overtones. The incident, on its own, or considered together with all the other incidents, does not provide a basis in which a Tribunal could reasonably infer unlawful discrimination.
THE ‘SMELLY’ INCIDENT
35. In his claim form the claimant alleged:-
“On June 2nd 2010, while I was sitting during a meal break, Delia came next to me insulting me saying ‘smelly’.”
36. In his evidence-in-chief and in cross-examination, the claimant accepted that he had not heard all that Ms Loughran had said on this occasion. He had only heard one word which he thought was ‘smelly’ and that this word had been used twice by Ms Loughran.
37. The claimant alleged that he had been sitting at a table in the dining room when Ms Loughran approached and that he had simply moved to make room for her. The other version put forward by Ms Loughran to the internal investigation panel was that the claimant had moved and had turned his back towards her. Ms Loughran had taken offence at this and had said words to the effect that ‘he must think that I smell’.
38. The claimant, although he accepted that he had heard only one word in this incident, resolutely refused to countenance any possibility that Ms Loughran’s version of events could have been correct.
39. Mrs Blair witnessed the incident and said in evidence to the Tribunal that the exact words used by Ms Loughran were ‘Tarek must think that I smell or something’. Mrs Blair’s evidence in this regard was not challenged in cross-examination.
40. Again, this incident is evidence of a poor working relationship between the claimant and Ms Loughran. On the balance of probabilities, the Tribunal concludes that the version put forward by Ms Loughran and supported by Ms Blair is more likely to have been correct. There does not appear to have been any particular reason why Ms Loughran, at that point in time, would suddenly have decided that the claimant had smelt and would have suddenly decided to announce that conclusion publicly in the canteen in front of witnesses. The much more likely scenario is that he had turned away from her, possibly in an effort to make room or possibly in an effort to turn his back to her; but, that in any event, Ms Loughran had taken offence and had then said that ‘Tarek must think that I smell or something’. There is nothing in this incident, whether taken on its own or taken in conjunction with all the other alleged incidents, which would entitle a Tribunal to draw a reasonable inference of unlawful discrimination.
THE ‘CHAIR’ INCIDENT
41. In his claim form, the claimant alleged that, immediately following the incident dealt with above, Mrs Joanne Gribbin said to him:-
“You’re very rude (twice) also she said to me this is very rude in your culture”.
42. In his evidence, the claimant accepted that it made no sense for Mrs Gribbin to have said, to the claimant, ‘it is very rude in your culture’. There was no suggestion on the part of the claimant or on the part of any other witness that Mrs Gribbin was an expert in Algerian culture or that she was in the habit of pronouncing upon it. The claimant insisted, however, that that is what she said and that this had been a ‘racially aggravated insult’. The claimant refused to accept the possibility that he had misheard this remark even when it was put to him that he had already acknowledged that he had been able to hear most of what Ms Loughran had said slightly earlier in the same meal break.
43. The claimant’s contemporaneous reaction to this incident was extraordinary. He telephoned ‘999’ and tried to report the incident to the police. There is no record of the police having attended the scene.
44. Again, Ms Blair had been present during this incident. Mrs Blair said in evidence that Mrs Gribbin had asked Ms Loughran what had happened in the earlier incident where the chair had been moved. Ms Loughran had said that the claimant had moved his chair. Mrs Gribbin had then asked the claimant why he had moved his chair away from Ms Loughran. The claimant had said:-
“In our culture that is being polite”.
45. Mrs Gribbin had then replied:-
“In our culture, it is being rude.”
Mrs Gribbin’s evidence to the Tribunal was consistent with that given by Mrs Blair.
46. This banal incident was elevated in the claimant’s mind to the status of a hate crime. It is highly improbable that Mrs Gribbin expressed any views on Algerian culture. It is highly probable that the verbal exchange was as described by both Mrs Blair and Mrs Gribbin. The Tribunal therefore concludes, on the balance of probabilities, that Mrs Gribbin did not verbally harass the claimant on grounds of race or religious belief by making remarks about his culture, or in any other way, during this incident.
THE ‘TROUSERS’ INCIDENT
47. In the claim form, the claimant stated:-
“In March-April 2010, while I was cleaning the floor, Joanne Gribbin approached me and asked me to try a pair of trousers. She said to me go now, try them and back to straight back [sic]. She said that in an unfriendly way. Mrs Rosemary Farquhar was a witness of this.”
48. In evidence to the Tribunal, the claimant stated that he had been supplied with a work uniform. He had first been told by Mrs Gribbin to try the uniform on. He did so. He told her that he had and that the trousers did not fit. She told him to try them on again in an unfriendly way. This was an act of provocation and designed to put pressure on him.
49. Mrs Gribbin stated in evidence that the claimant had told that the trousers were fine but that she had then been told by Mrs Farquhar that the claimant had told her that he had not in fact tried them on. She then asked him to do so.
50. The claimant had signed, and therefore approved, a note of the investigation panel’s meeting with him in which he had complained only of Mrs Gribbin asking him to try on the trousers in an unfriendly manner. There had been no mention at that stage of the claimant having already tried on the trousers and therefore being asked to do so twice.
51. Yet again there are two versions of an everyday incident. This is not the type of incident that any rational person would expect to come before an Employment Tribunal. Even on the claimant’s evidence, there was no evidence of a racial or religious motive and no evidence that anyone else in the employer’s workforce was treated differently. The only inference that a Tribunal can legitimately draw from this and from the other incidents relied on by the claimant is that the claimant is an individual who is prepared, and indeed eager, in many cases some time after the incident in question, to attribute a racial or religious motive to entirely unremarkable actions or statements by colleagues or management.
THE ‘NORA TOPPING’ INCIDENTS
52. In the claim form, the claimant stated:-
“In a few incidents; my colleague Nora when she doesn’t want to do her job, she goes to supervisors (Gillian or Rosemary) and ask them to get me to do these tasks. At one incident while I was helping my colleague Marie at the pot sink,, Nora told me to leave that and to go to help another colleague. In another occasions [sic] Nora asks me to do work which she is supposed to do.”
53. In his evidence to the Tribunal, the claimant complained that Ms Topping has asked supervisors to get him to undertake certain tasks and that the supervisors would then ask him to do undertake those tasks. He did not specify the relevant tasks or the relevant dates and did not indicate how this alleged practice was an act of unlawful discrimination.
54. It was put to the claimant in cross-examination that he had signed, and therefore approved, a record of an interview with the investigation panel which included:-
“He has no problem with Nora, she is not rude.”
The claimant’s response to the Tribunal was that Nora’s manners were okay but that she was speaking to the supervisors to get him to do jobs. She was therefore provoking him and putting him under pressure.
55. The nature of this complaint is entirely unclear. The claimant stated in his evidence that he did not know why Ms Topping was ‘provoking’ him. He did not allege that Ms Topping had any unlawful motive. He seemed to accept that it would have been inappropriate for Ms Topping to have asked or to have directed him to undertake particular tasks because they were both at the same grade. It was therefore not inappropriate, necessarily, for Ms Topping to speak to her line supervisor in relation to work allocation. Again, there is no evidence, whether this incident is considered in isolation or in conjunction with all the other incidents cited by the claimant, upon which a reasonable Tribunal could draw an inference of unlawful discrimination.
THE ‘PRAYERS’ INCIDENTS
56. In the claim form, the claimant stated:-
“In another occasion [sic] my supervisor Rosemary, when I asked her for permission to go for pray [sic] she said to me very quickly.
In one occasion when I asked Rosemary to go for pray she said to me would you leave it later because it is busy.”
57. The claimant accepted in evidence to the Tribunal that he had never been told that he could not go to pray. He argued that he had been told on one occasion to go quickly and that on another occasion he had been asked if he could go later because it was busy and that he had agreed to do so.
58. The claimant sought to compare himself with those colleagues who went for a cigarette break; but he accepted in cross-examination that those cigarette breaks were generally taken at less busy times when students had already been served.
59. Mrs Ursula Doherty, the human resources manager, was involved in the preparations for the claimant’s internal appeal against the dismissal of his grievance. At the first stage of that grievance process, the claimant had been interviewed by the investigation panel and had signed and approved a note of his evidence which was consistent with the evidence summarised above, ie that he had not actually been refused permission to pray on any occasion. Mrs Doherty gave evidence to the Tribunal that the claimant had arrived at the respondent’s reception on 22 November 2010 and had stated to her that he had wanted the earlier notes to be amended to say that he had twice been refused permission to pray. This was entirely inconsistent with the fact that he had signed and had therefore approved those notes. That version of events changed further in the course of the internal appeal hearing. According to notes of that appeal hearing, again signed and approved by the claimant, his allegation was now that he had been told once that he could not go to pray and once had been asked to go quickly.
60. The various versions of this allegation which have been put forward by the claimant at the different stages in the internal grievance proceedings are difficult to reconcile. His evidence before the Tribunal, however, was clear. He had never actually been refused permission to pray. He argued that being asked to go quickly on one occasion and being asked on another occasion if he go later, and having agreed to go later, amounted to ‘the same thing’ and were acts of unlawful discrimination. The Tribunal does not agree. It is clear that the respondent accommodated the claimant’s requests to leave work to pray and that the respondent had not unlawfully discriminated against the claimant in this respect.
CLAIMS IN RELATION TO TIMESHEETS AND WORK ALLOCATION
61. The claimant alleged that various timesheets showed that he had suffered unauthorised deductions from earnings and that he had been unlawfully discriminated against in favour of Marie McGrath, Nora Topping and Christine Blair.
62. In his claim form the claimant alleged that he had been deducted money ‘two or three times’. He alleged that his timesheet had been changed by supervisors when he had been late arriving at work but that when others had been late arriving at work their timesheets had not been changed. He claimed that when he raised this with Mrs Gribbin, she had told him to mind his own business. This was disputed by Mrs Gribbin. She said in evidence that she had refused to discuss Mrs McGrath’s pay when the claimant queried how her overtime had been calculated.
63. In relation to that particular allegation it seems clear to the Tribunal that the claimant had raised a comparison between overtime claimed by him and overtime paid to Mrs McGrath, and that Mrs Gribbin had told him that overtime paid to another employee was none of his business. The Tribunal cannot understand how the claimant has elevated this to a status of a complaint on the grounds of race or religious belief.
64. In his evidence to the Tribunal, the claimant referred to various timesheets:-
(i) 14 January 2010
The claimant alleged that the timesheet showed his ‘time in’ had been altered from 4.45 pm to 5.00 pm because he had been late arriving at work. He did not challenge the accuracy of the note on the timesheet which recorded ‘later in’. When he was asked if he had been late in he said ‘maybe yes’. He was unable to say if anyone else had been late in on that date and had been treated differently and, indeed, was unable to point to any other date where an employee had been late but had not had their timesheet amended.
(ii) 25 January 2010
The claimant’s complaint was that he had been sent home for being one hour late arriving for a shift of two hours forty-five minutes duration. He withdrew that complaint only during his final submission.
(iii) 31 January 2010
The claimant complained that he had been given one-quarter hour overtime at the end of his normal shift to finish up dishwashing while others had been given more overtime for different reasons. Those reasons appear to relate to conference work for which the claimant had not been trained.
(iv) 14 February 2010
The claimant complained that two other employees got more overtime than he did on this Sunday. Several other employees were not given any overtime.
(v) 16 April 2010
The claimant complained that he had not worked during the period from 13 to 16 April 2010; although he was a term-time worker and the college was closed during this period. Others had been given work in relation to an ASA Conference held in a different building within the college complex. Again the claimant had not been training in conference work.
(vi) 2 May 2010 – Sunday
The claimant complained that he had only worked in the afternoon on this Sunday. There was a note against his name ‘very quiet – no breakfast shift – not required’.
(vii) 6 June 2010 – Sunday
The claimant complained that he had not been paid for a 45 minute period when he had gone home without permission and had not been present at work.
(viii) 3 February 2010
The claimant complained that a colleague, Marie McGrath, had been paid too much for overtime in that she should have been docked 15 minutes pay. He could give no direct evidence on that point and had not called Marie McGrath to explain what, if anything, lay behind this issue.
(ix) 27 February 2010 – Saturday
The claimant complained that Ms Nora Topping had been given overtime on that day and that it had not been offered to ‘us’. It is however apparent that Ms Jiang and Mrs Blair both worked overtime on that day and had worked more overtime than Ms Topping.
(x) 15 March 2010
The claimant complained that Ms Topping and Ms McGrath were employed for an extra hour to serve tea and coffee. He acknowledged, however, that that had not been his job and that he had not been formally trained in that area.
(xi) 28 March 2010 – Sunday
The claimant complained that Ms Topping and Ms McGrath were called to do overtime in relation to an IFA Conference. Again the claimant had not been trained in conference work.
65. The respondent’s evidence was that the claimant, in common with several other employees, did not have experience or training in setting up or serving at conferences or in serving tea and coffee. His duties were based in the kitchen and he was generally not required until meals had been served out and dishes started to be returned to the kitchen area. He was also a term-time worker. He was offered overtime on occasion but was not considered suitable for conference work due to lack of training and experience. Mrs Christine Nesbitt gave evidence that conference work required experience and skill and gave the example of serving tea and coffee to 250 guests within 15 minutes to accommodate breaks in conference events. Supervisors for the claimant picked staff for overtime who were trained and experienced in the relevant work.
66. There was no evidence that the claimant had been treated differently in relation to work allocation or overtime on the ground of race or religion. Other staff were not trained or experienced in service work and conference work and were treated similarly. The respondent relied on conference work as an important part of its revenue stream and in the view of the Tribunal, the respondent cannot be properly criticised for using experienced and trained staff for that work in preference to inexperienced and untrained staff. The claimant has not sought to make out a case of indirect discrimination and has not produced any evidence which could ground such a claim.
There is therefore no evidence of any unauthorised deductions from earnings or any evidence of racial or religious discrimination in relation to work allocation.
Summary of decision
67. As indicated above, working relationships between the claimant and some of his colleagues were poor. In his submissions to the Tribunal, the claimant complained that he had worked harder than his colleagues who were ‘two old ladies’. He was a ‘younger man’. He was ‘not slower. It did not make sense’.
It is therefore clear to the Tribunal that the ill-feeling between the claimant and his colleagues was reciprocal rather than entirely one-sided.
68. The Tribunal concludes that there was insufficient evidence of any conduct which could have amounted to unlawful discrimination (including harassment), on the ground of either race or religious belief, to allow it to draw an adverse inference of such conduct. The Tribunal also concludes that there was no evidence that the claimant had suffered any unlawful deduction from earnings. Given those findings, it is not necessary for the Tribunal to turn its attention to the issues of time-limitation which were raised by the respondent and which depended on whether or not there had been a continuing series of acts of discrimination throughout the relevant period.
Date and place of hearing: 6 – 8 June 2011, Belfast
Date decision recorded in register and issued to parties: