THE INDUSTRIAL TRIBUNALS

CASE REF:	261/08

CLAIMANT:			Nenad Zubin

RESPONDENT:		Brett Martin Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was discriminated against on grounds of race and was unfairly dismissed.  The tribunal awards £53,596     compensation.

Constitution of Tribunal:

Chairman:	Mrs Ó Murray	

Members:	Ms McReynolds
		Mr McAuley

Appearances:

The claimant was represented by Mr D Sharp, Barrister-at-Law, instructed by John Ross & Son Solicitors. 

The respondent was represented by Mr P Bloch, Barrister-at-Law, of EEF Northern Ireland.

CLAIMS

1.	The claimant’s claims were for:

	(1)	Unfair dismissal

(2)	Racial discrimination, victimisation and harassment.

ISSUES

2.	The issues for the tribunal were as follows:

(1)	What was the reason for the claimant’s dismissal?  Was that reason one of the potentially fair reasons outlined in the legislation; was dismissal fair in all the circumstances of the case and in particular was the dismissal fair when compared to the treatment of Mr McC?

(2)	Was the claimant’s dismissal an act of race discrimination and/or victimisation when compared to the treatment of a comparator whether real or hypothetical?

(3)	Was the claimant subjected to racial harassment by an employee of the respondent?

(4)	If the claimant was subjected to racial harassment by an employee of the respondent, could the respondent successfully raise the employer’s defence namely that it had done all that was reasonably practicable to prevent the discriminatory treatment?

(5)	Were the statutory grievance procedures and statutory disciplinary and dismissal procedures complied with by both parties? 

(6)	Did the claimant contribute to his dismissal?

(7)	How much compensation is the claimant entitled to and is an award of aggravated damages warranted in this case?

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and his witnesses namely: Ms T McKinney the claimant’s former team leader; Mr C Close, Mr D Kidd and Mr O Brandt Technical Operators who worked along side the claimant; Mr Jamison the claimant’s trade union representative.  For the respondent the tribunal heard evidence from Ms M Irwin, Ms A Purvis, Ms L Patterson and Ms D Mooney of the Human Resources Department; Mr McMurtry alleged harasser and trainee team leader at the time of dismissal, Mr O’Neill, the claimant’s Production Manager, Mr Reid Production Manager who dealt with the claimant’s appeal against grievance; Mr McGrath Production Director; Mr Steele Production Manager successor to Mr O’Neill and the claimant’s manager; Mr Phil Ruddock Commercial Director who heard the claimant’s appeal against dismissal.  The tribunal also had medical reports and heard evidence from Dr G Loughrey Consultant Psychiatrist on behalf of the claimant and Dr McCrea Occupational Health Physician on behalf of the respondent.  The tribunal also had the claimant’s GP notes and records.  The tribunal had the engineer’s report of Mr Magill together with photographs.  The parties referred to three agreed bundles of documents running to 685 pages.

FINDINGS OF FACT

4.	The claimant was born in Croatia on 21 June 1968 but has resided in Northern Ireland for over 20 years.  The claimant worked for the respondent from 5 October 
1995 until he was dismissed on 8 November 2007 for gross misconduct.

5.	For the first short period of his employment the claimant worked as a process operator and was then promoted to technical operator (“TO”).  The claimant’s work involved operating a large extruder machine which produced plastic sheeting.

6.	The incident which ultimately led to the claimant’s dismissal occurred on 30 October 2007 on the night shift when the claimant was discovered by his supervisor, a trainee team leader named Mr McMurtry, lying on the floor near his machine in the bay in which he worked.

GENERAL

7.	At the heart of this case is the direct conflict in evidence between the respondent’s witnesses and the claimant and his witnesses.  The claimant alleges that he had problems with racial and verbal abuse and racially-motivated incidents by Mr McMurtry throughout his time in the respondent’s employ.  The claimant’s three witnesses corroborate his allegations of verbal abuse and a “vendetta” by Mr McMurtry.  Mr Close corroborates the claimant’s allegation that he was picked on by Mr O’Neill because the claimant was Croatian.  The respondent’s witnesses, without exception, gave evidence that they had no idea that there were any problems between the claimant and Mr McMurtry, never mind problems of a racist nature, and denied that any complaints were made by the claimant about such behaviour and further denied that any treatment of the claimant by his managers was in relation to his Croatian nationality. 

8.	The respondent’s case was that the claimant was sacked for sleeping and for a breach of health and safety whereas the claimant exhorted the tribunal to look at the wider picture and the pattern from the commencement of his employment stating that all the adverse dealings he had with his employer should be seen in the context of the racist behaviour he had suffered and the complaints he had made in that regard.

9.	The tribunal assessed carefully the demeanour of the witnesses, their answers under cross-examination, their statements and the detail of the supporting documentation and, following that analysis, preferred the evidence of the claimant and his witnesses.  In summary the claimant and his witnesses were on the whole consistent, clear and specific about matters whereas the respondent’s witnesses, in the main, chose their words carefully, in some instances were evasive in the answers they gave and in other instances relied on their records to assert that matters had not been raised despite the claimant and his witnesses’ clear recollection to the contrary.  Two of the respondent’s witnesses in particular, who still work for the respondent, appeared to the tribunal to be fearful to the point of being terrified to say anything that might be detrimental to the respondent’s case.  The tribunal in assessing the demeanour of these witnesses took into account the natural nervousness and anxiety felt by most witnesses in giving evidence at hearing and found that these witnesses appeared more anxious and fearful than is usual.

10.	Mr Close was a particularly impressive witness for the claimant.  He gave his evidence in a very measured way.  He still works for the respondent and it took some courage for him to give evidence to support the claimant in some of the claimant’s allegations.  Mr Close was consistent in his evidence throughout.  It was not in his interests to give evidence against the Company and this lent weight to his credibility.  In addition Mr Kidd impressed us with his straightforward account.  He was made redundant by the respondent but now works on a temporary contract for them.  In our view it was not in his own interests for him to give evidence on behalf of the claimant and it took courage for him to do so.  We accept both men’s evidence and their corroboration of some of the comments made by Mr McMurtry.

11.	Ms McKinney gave supportive evidence for the claimant corroborating his allegation that Mr McMurtry made racist comments to him.  Ms McKinney worked between 2000 and 2004 and reported, essentially, a culture of fear in the respondent company in relation to complaints.  She also gave clear detailed evidence about a meeting she had with her boss Mr Simmons and Ms Irwin of HR on 12 June 2003 referred to below in detail.  Notes of this meeting were not produced by the respondent until after Ms McKinney gave evidence and yet her evidence accords with the notes.  Given this accuracy we accept her evidence that the notes were actually incomplete and did not record that she had told Mr Simmons that Mr McMurtry had “a vendetta” against the claimant.  At that meeting Ms McKinney believed that Mr McMurtry was behind the allegation that the claimant’s clocking record was inaccurate and she believed this because of her previous experience of comments by Mr McMurtry.  Her memory of the meeting without notes was very good and this enhances her credibility.  We believe her that she raised the issue of a vendetta by Mr McMurtry with Mr Simmons and he did nothing.  Ms McKinney did not want to raise her head above the parapet because the respondent’s culture was that you should not complain because if you did say something nothing would be done.  Ms McKinney felt she had a compelling reason not to pass on the complaints about Mr McMurtry and whether or not she was justified in that is not for us to determine.  She was a worker in a position of authority and she did not, or felt she could not, bring such racist behaviour to the attention of higher management or HR. In our opinion she should have done something more about the claimant’s complaints and the fact that she felt that she could not is an indictment of the respondent company.  

12.	Mr Jamison mentioned in evidence “the fear factor in the respondent is shocking in this day and age”.  This from the only trade union representative in the company is a further indictment of the respondent company.  We utterly reject the respondent’s argument that, as the trade union official, it was for Mr Jamison to push specific complaints before management.  Mr Jamison gave evidence that he came up against the same problem all the time which was that people were afraid to come forward and that he could not push things without witnesses.  We accept Mr Jamison’s evidence that workers were afraid to speak up about the racist behaviour going on.

13.	As regards the graffiti in the company we believe Mr Jamison’s evidence which was that graffiti of all types including racist comments are widespread in the toilets in the respondent’s premises.  Mr Steele, when asked about this matter, did not directly contradict Mr Jamison but simply said that he does not use the toilets referred to by Mr Jamison.

14.	On several occasions Mr McMurtry scrapped the claimant’s work if he was on the shift after the claimant.  Mr Close supports the claimant’s allegation in this regard and we accept his evidence.  

15.	The claimant alleged that his overtime sheets were changed by Mr McMurtry who stroked out his name.  This allegation was supported by the evidence of Mr Close and Mr Kidd.  Mr McMurtry said that he did stroke the claimant’s name out but that everyone stroked everyone else’s names out though maintained that there was enough work for everyone.  Mr McMurtry’s evidence on this lacks any credibility as we find it an incredible suggestion that workers accepted that, if they put their names on an overtime sheet, anyone could stroke them out.  We therefore accept the claimant and his two witnesses’ evidence on this and regard this action by Mr McMurtry on more than one occasion as being motivated by his animus against the claimant because of the claimant’s Croatian nationality.

Medical

16.	The claimant referred to stress in his grievance about Mr O’Neill on 27 July 2006 stating that he was “totally stressed out” to the extent that he could not sleep properly.  At the grievance meeting on 1 August 2006 the claimant stated that Mr O’Neill’s behaviour was affecting him at home and he was not sleeping properly because he was worried about what he was going to come into the next day.  Ms Patterson of HR was at this meeting.  It was Ms Patterson, (née Blakely) who received a letter from the company doctor Dr Campbell following her referral.  Dr Campbell’s report of 4 October 2006 said that the claimant was suffering from a stress disorder.  He stated that the claimant alleged that he was suffering from stress “secondary to pressure from his manager” and states that the claimant saw his GP two weeks previously and was diagnosed with a stress disorder and was prescribed a drug used in the treatment of stress.

17.	The claimant’s own GP provided a medical report in relation to the alleged vertigo on 10 October 2007 stating that he was; “under a considerable amount of stress in relation to work which may be of significance as regards to his current symptoms.”

18.	We therefore find as a fact that HR therefore were aware that the claimant suffered from stress on an ongoing basis and had been diagnosed with a stress disorder in October 2006.

Comments by Mr McMurtry  

19.	On 12 June 2003 Ms McKinney was called to a meeting with Mr Simmons the then Production Director.  Ms Irwin of HR was also in attendance.  The meeting was about graffiti which had been discovered which related to Ms McKinney. During the meeting Mr Simmons brought up an issue regarding the claimant’s apparent irregularities in his clocking records.  Ms McKinney clarified the position which was that there was no irregularity but she queried who had raised this matter as it was apparent to her that someone had gone out of their way to report an apparent irregularity on the part of the claimant and she suspected that it was Mr McMurtry because she knew that he had a problem with the claimant.  Ms McKinney told Mr Simmons that she believed Mr McMurtry had a vendetta against the claimant and told Mr Simmons that he was aware of the vendetta and that it had to stop.  Ms McKinney gave very clear and detailed evidence on this meeting.  It was only during cross-examination of Ms McKinney when points were being put to her about the record of the meeting that it became apparent that a documentary record of the meeting existed but had not been shared with the claimant nor had it been put in the bundle of documents.  When the document was produced it largely accorded with Ms McKinney’s evidence except for the fact that it did not record her stating that Mr McMurtry had a vendetta against the claimant and telling Mr Simmons that he knew about it and it had to stop.  Mr Simmons did not give evidence to us.  Ms Irwin gave evidence that if such a matter had been raised she would have recorded it because it was an important matter.  We prefer Ms McKinney’s clear and consistent evidence on this matter.  We also accept her evidence that people were reluctant to come forward as witnesses for people who made complaints.  We accept Ms McKinney’s evidence that she was reluctant to pursue matters on behalf of the claimant even though she was in a position of authority.

20.	The claimant reported an incident to Mr Simmons involving Mr McMurtry.  Mr McMurtry had come to the door of the portacabin on an unnamed date and said to the claimant “Get out ta fuck you Croatian bastard and brush the floor”.  

21.	In 2004 to 2005 the claimant complained to Mr O’Neill about Mr McMurtry saying to him on a dozen occasions that he was “a greedy Croatian bastard”.  Mr O’Neill’s response to this was that he could have Mr McMurtry removed from the shift but it would take about three or four months for the investigation to be completed and he wanted the claimant to see if he could get anyone else to come forward to support him at that stage.  No one was prepared to come forward to confirm what Mr McMurtry was saying at the time so nothing further happened in that regard.

22.	Ms McKinney corroborated the claimant’s account of Mr McMurtry saying in the canteen on more than one occasion that the claimant had arrived in Brett Martin on the back of a lorry and that people felt sorry for him and that he was allowed to stay here.  She understood this to mean that the claimant was a stowaway, (i.e. a foreign national), and the only way he could get into the country was to hide in the back of a van and when he was found people felt sorry for him and allowed him to stay.  Ms McKinney as team leader had more than once told Mr McMurtry to stop the comments and said that this behaviour was not acceptable.  For whatever reason Ms McKinney did not or felt she could not pursue the matter more formally or further up the line despite the fact that she recognised that such comments were racist.

23.	Mr Close and Mr Kidd corroborated the claimant’s evidence that Mr McMurtry constantly made derogatory comments about the claimant related to his nationality.  Examples were: “That Croatian fucker is taking all the overtime” “See that Croatian fella he left his wife and 17 kids and came here on the back of a lorry” “I see you are working with the fuckin illegal alien Zubin.  Did you know he came over here on the back of a Brett Martin lorry him and his 18 Kids”; “A fuckin lazy Croat”.  The most serious comment made to the claimant in front of others on more than one occasion was: “The Serbs were just right to rape your women and children”.  The claimant complained to John Gilmore his team leader and then to his successor Ms McKinney about the comments.  

24.	In summary managers in the form of Ms McKinney, Mr Simmons, Mr O’Neill, Mr Gilmore did nothing to deal with this behaviour which was ongoing and well known. Ms McKinney did on a couple of occasions speak to Mr McMurtry to tell him to stop but it was never made more formal, passed up the line or made into a disciplinary matter at any stage.  Mr O’Neill put the onus on the claimant to find witnesses in order to pursue the matter.

25.	In 2004 the claimant made an allegation against Mr C whom he suspected of sabotaging his machine to make the product defective.  An investigation was started and Mr C went off sick having verbally racially abused the claimant before he went off.  The claimant suspected that Mr McMurtry took exception to this complaint against Mr C and this added to the reason for the abuse against the claimant.

Grievance against Mr O’Neill

26.	On 27 July 2006 the claimant raised a formal grievance of bullying and harassment by his Production Manager Mr O’Neill.  Mr O’Neill had taken over as Production Manager in June 2004 until July 2007 when he was transferred.  Mr Steele took over Production Manager of that area in October 2007.

27.	The grievance against Mr O’Neill essentially claimed that Mr O’Neill was picking on the claimant.  Mr O’Neill picked on the claimant to the extent of bullying him from August 2005 culminating with Mr O’Neill threatening the claimant with a warning for poor work.  This prompted the claimant to lodge his grievance on 27 July 2006.  Mr O’Neill denied that he threatened the claimant with a warning but the records are clear that he said that giving the claimant a warning then was unfair but that he told him that similar action might result in the situation being resolved differently.  We regard it as reasonable for the claimant to have taken from that that he could be given a warning if his work was not up to the quality standard.  Specifically the claimant alleged that a few days before the grievance was raised Mr Steele had come to his machine, looked at the temporary workers who were all Polish, and said “Get them to work harder”.  A little while later Mr O’Neill came to the claimant and said; “Get those Poles to work harder”.  The claimant also alleged that Mr O’Neill had threatened him with a warning for poor work.  The grievance letter ended with the words; “I have witnesses but most people are afraid of what is going to happen to them afterwards.  I don’t want to have to go to tribunal but it has to be sorted.  PLEASE HELP!”

28.	Mr McGrath Production Director dealt with the claimant’s grievance against Mr O’Neill by having a meeting with the claimant and his trade union representative which was attended by Ms Patterson of HR.  Mr McGrath had investigatory meetings with Mr O’Neill and with Mr Steele (the assistant manager at the time) both of whom denied bullying.  The claimant did not specifically mention to Mr McGrath that the bullying and being picked on was because he was Croatian.  However in evidence to us the claimant stated that he did not think it was necessary to say that he felt the bullying was because he was Croatian because he thought that it was “pretty obvious” that the reason was because he was Croatian and, as it became clear that Mr McGrath did not regard the treatment as bullying in any form, it would have made no difference if the claimant mentioned the reason for the bullying.  

29.	It was clear from the initial meeting with Mr McGrath that Mr McGrath felt that the matter centred on the narrow issue of a manager trying to get staff to comply with production procedures.  The claimant at this meeting mentioned previous bullying, albeit by a Technical Operator, and this reference was ignored by Mr McGrath.  The claimant also mentioned witnesses being afraid to come forward because of what might happen to them but stated that one witness was willing to come forward to back him up.  However the claimant’s witness, Mr Close, was never spoken to as part of Mr McGrath’s investigation despite the fact that he had returned from a short period of absence before the outcome meeting with the claimant on 29 August 2006.  

30.	At that outcome meeting on 26 August 2006 Mr McGrath confirmed that he did not regard the complaint as bullying.  Mr McGrath essentially pressed the claimant to deal with the matter informally with his manager without investigating it properly.  Mr McGrath’s evidence was that he expected the claimant to pursue the recommendation of the meeting informally with his manager and as the claimant refused to do so the matter could not progress further.  In our view to all intents and purposes the letter of 29 August 2006 completed the investigation done by McGrath particularly as it tells the claimant that he has the right to appeal against the recommendations.

31.	The claimant did appeal against the investigation into the grievance and the appeal proceeded to Mr Ruddock Commercial Director of the company.  The three grounds of appeal stated in the letter of appeal of 5 September 2006 were as follows:

“(1)     failure to record the minutes of meetings properly;

(2)	failure to question a witness mentioned at interview after stating that the  investigation is complete;

(3)	this investigation was conducted without any real depth of purpose other than to discredit my accusations of bullying”.

32.	As part of the appeal against grievance in September 2006 Mr Ruddock and Ms Walsh of HR met Mr Steele, Mr O’Neill and Mr McGrath and met the claimant twice in relation to the appeal.  Mr Ruddock interviewed Mr Close twice and Mr Close was very clear that he had witnessed Mr O’Neill picking on the claimant and gave examples of the claimant being picked on by Mr O’Neill.  While Mr Close did not volunteer a reason for this he stated seven times over the two meetings that Mr O’Neill was singling the claimant out and stated “If you are going to the same person every time you are singling out.  Whether bullying or not you decide.”  At no stage was Mr Close asked why he felt Mr O’Neill was singling the claimant out.  In evidence before us however Mr Close was quite clear as to why Mr O’Neill singled out the claimant stating: “It was quite obvious the claimant had had his troubles ongoing for years with Matt [Mr McMurtry] of a racist nature.  The claimant was seen to be causing trouble for the company.  Mr O’Neill was adding to that by picking on the claimant because he was Croatian and that was quite obvious in my opinion.  He was adding fuel to the fire.”  

33.	The problem for us with Mr Ruddock’s investigation on appeal was that he effectively discounted the clear evidence of Mr Close without having any reason to disbelieve him and he did not probe Mr Close’s answers.  He asked Mr McGrath why Mr Close had not been questioned first time round and accepted, without question, Mr McGrath’s explanation that speaking to Mr Close would not have altered his decision that he expected the claimant and Mr O’Neill to sit down and discuss things.  

34.	Mr O’Neill’s credibility was damaged in our view because the claimant made a clear statement that in 04/05 he went to Mr O’Neill to complain about Mr McMurtry making comments and specifically that he called the claimant a “Greedy Croatian bastard” a dozen times.  This was a clear racist comment.  No one has disputed that the claimant made this complaint to Mr O’Neill yet Mr O’Neill denied in answer to a question from the Tribunal that he knew of any problems between the claimant and Mr McMurtry before.

35.	It is noteworthy that, whilst there was a group of temporary Polish workers employed by the respondent at that time, the claimant was the only permanent foreign national employee in the company at the time of the grievance against Mr O’Neill.  

Complaint to Ms D Mooney

36.	In 2007 the claimant made a complaint to Ms Mooney of HR.  The claimant gave vivid evidence of the circumstances surrounding this meeting with Ms Mooney.  He stated that he rang her from the factory floor crying because he could not take any more because of the following matters: a co-worker referred to a Polish employee as “a chimp” in front of the Team Leader and the Team Leader laughed; Polish workers were referred to as “white niggers”; some Polish workers were given the work that previously three men would have done and when this was raised with the Team Leader Mr McKenna, he said that the Poles had to work twice as hard or they wouldn’t be there at all.  The claimant met with Ms Mooney in the old boardroom asking for a transfer out of the department  because of this behaviour and she advised him to write to the owner of the company marked “private and confidential” in the hope that it would get to him.  The claimant left her office and 20 minutes after he had spoken to her she rang him to the shop floor to tell him that he had to sort it out with his manager as the owner of the company was a busy man.  The claimant assumed that, after he had spoken to her, she had spoken to her boss and this caused the change of advice.  

37.	Despite the fact that Ms Mooney gave a statement denying emphatically that the meeting had taken place and it was put to the claimant in cross-examination by the respondent’s representative that Ms Mooney was “100% sure” that there was no such meeting, Ms Mooney submitted an amended witness statement during the claimant’s evidence stating: “I may have met him at some time.  It most likely would have been in the old boardroom.  However it was 100% not about race”.  In evidence before us Ms Mooney advised that she had a vague recollection of a meeting in the old boardroom with the claimant but was emphatic that it was not about race as such a serious matter would have been noted and actioned by her.  However she could give absolutely no indication as to what the meeting might have been about.  

38.	Given the claimant’s clear recollection of the contents of the meeting and Ms Mooney’s change in her evidence, we accept entirely the claimant’s account of events.  It could not have been a common occurrence for a shop-floor worker to meet someone from HR in the old boardroom and we fail to understand why Ms Mooney could not give us any indication of the contents of that meeting whilst at the same time being emphatic in her recollection that it was not about race.  Her evidence lacked credibility.  It clearly was more than an informal meeting and we cannot understand why there were no notes of it.  We assessed carefully the demeanour of Ms Mooney and concluded that she was afraid, if not terrified, in giving her evidence. 

Quality incident

39.	In May 2007 the claimant complained that he was working three lines which was too much for one operator.  This is when the “quality incident” occurred.  On 2 May 2007, a defect in the sheet of plastic was not spotted by the claimant nor was it spotted by Mr McKenna the Team Leader.  The operator on the next shift reported a defect in the sheet and it was passed to Mr Steele who had taken over from Mr O’Neill as Production Manager.  As Mr Steele could see the defect in the sheet he passed the matter to the team leader Mr McKenna to administer a recorded verbal warning to the claimant for poor work.  The recorded verbal warning was given on 11 May 2007.

40.	The recorded verbal warning was appealed by the claimant and the appeal was heard by Mr Steele.  The tribunal note that Mr Steele was the one who saw the defect and caused the recorded verbal warning to be given to the claimant and he also heard the appeal. 

41.	The meeting on 28 May 2007 in relation to the appeal was before Mr Steele and Ms Purvis of HR.  The claimant was there with his trade union representative, and the claimant stated that Team Leader Mr McKenna had said there was nothing wrong with the sheet, that he [Mr McKenna] could not see anything and that he was under pressure from Mr Steele and Mr O’Neill to issue the warning.  As regards the quality incident the claimant alleged that he was working three machines at once and that this caused him to be under pressure.  Mr Steele did not check the claimant’s point on this by looking at the number of machines that the claimant was working on.

42.	At the appeal outcome hearing on 31 May 2007 Mr Steele met the claimant, his trade union representative and Ms Purvis of HR was in attendance.  The claimant highlighted that neither he, his team leader nor the Company’s quality expert Mr Gilliland picked up the defect and the claimant stated that “this is just harassment. A continuation of the harassment.  This is nothing but harassment”.  

43.	Despite the claimant relating the issuing of the warning to pressure from Mr Steele and Mr O’Neill (against whom he had raised a previous grievance) and despite the claimant mentioning three times in the outcome meeting that this was a continuation of harassment, Ms Purvis did not feel that there was more to be looked at other than the narrow issue of quality.  

44.	This involved a borderline defect according to the claimant and Mr Steele in evidence to us admitted that it could be more difficult to see that particular defect.  We regard it as a very harsh penalty to have given to the claimant especially when the team leader did not pick up the defect.  The quality expert Mr Gilliland, did not see the defect but according to Mr Steele it was “not his call” to decide whether it was a defect serious enough to warrant scrappage as this was Mr Steele’s decision.  As a result of this incident the strong impression we have is of managers building a case against the claimant.  HR were not making a link between the claimant’s complaints and this performance allegation against him.

45.	Shortly after the incident with the claimant, a Northern Ireland worker SR asked the claimant about a defect in a sample sheet.  It was difficult to see but the claimant knew how to look for it after his previous experience and he spotted a defect.  This was as serious a defect as the one that led to the claimant receiving a warning.  In contrast SR had not received a warning and had had that defect passed as an acceptable one by Mr McKenna and SR was not disciplined.

Transfer request

46.	The claimant claimed that he made a transfer request because he had problems with his team leader Mr McKenna, his production manager Mr O’Neill and with Mr McMurtry.  This request was made around October 2007 as it is referred to in an email from Mr Steele in relation to another matter.  The clear inference from the email is that the claimant asked to go on to another shift working with Mr Cully and that the claimant was moved previously to another shift at his request.  The claimant’s evidence to us was that people could be moved at their request and that he had asked to go on Mr Cully’s shift.  Mr Cully’s evidence was very vague on this point.  What is beyond contention is that the claimant asked for a transfer and heard nothing in response to his request.

Medical evidence regarding wife’s condition

47.	In July 2007 team leader Mr McKenna requested evidence of the claimant’s wife’s medical condition.  The claimant was coming in late to work and his excuse was that his wife had a medical problem which could flare up without notice requiring him to deal with matters relating to her.  The claimant was asked to produce medical proof of his wife’s condition.

48.	After the claimant had been asked for proof of his wife’s medical condition he discovered that PM, JG and AM (three local men) had time off and late starts due to their wives’ or partners’ health and other problems and were never asked for evidence to prove their conditions.  None of the men was asked for evidence of their partner’s illnesses even though two of them had conditions that could unexpectedly cause problems.  The respondent’s explanation was that all three flagged up the problems in advance and this was the reason for the difference in treatment.

Suspected Vertigo

49.	On 4 October 2007 the claimant suffered from dizziness.  It was perfectly in order for the company to check the position in this regard because the claimant worked beside a machine with moving parts.  The claimant’s case was that he should have been given light work if he could not work at his normal job.  The claimant’s case was that he should have been given taping work offline as this was light work.  This was work that temporary workers did at the relevant time and it was the claimant’s case that he could have been put onto that work on Mr Cully’s shift.  Mr Cully gave evidence for the company on this point.  In our view Mr Cully was clearly a very reluctant witness and appeared for some reason to be terrified to give any evidence which might contradict the case being made by the respondent.  In the event however, Mr Cully’s evidence did not directly deny that taping sheets could be light work.  Having assessed the evidence from the witnesses on this point our conclusion is that taping sheets offline could be light work as a worker could control the rate at which he did his work and was not working at a machine which dictated the speed at which he had to work.

50.	Instead of the claimant being offered light work Mr Steele and Ms Purvis met him on 4 October 2007 and told him that he had to go on sick leave pending a doctor’s report.  A GP report dated 10 October 2007 stated that the claimant was fit for work but should avoid operating dangerous equipment.    The company doctor’s report of 16 October 2007 stated that the claimant had been advised to stay off work until passed fully fit by his GP or other alternative employment could be arranged enabling him to avoid moving machinery.  Instead of finding alternative work for the claimant to do Ms Purvis wrote to the claimant on 18 October 2007 stating that another role could not be found due to his condition and that he could only return to work once certified fully fit to work by the GP for his normal role.  The GP letter of 19 October 2007 certified the claimant fit for work and stated that he had been fit for work since 10 October 2007.  At the return to work interview with Mr McKenna on 23 October 2007 the claimant was told that his level of absence would be monitored and that further periods could result in disciplinary action.  In that interview no account appears to have been taken of the fact that the claimant had been ordered to stay off by his managers.  

51.	The claimant compared his treatment to those of other local men and specifically Mr B who got light duties because he had a leg problem.  It was clear therefore that a person from Northern Ireland had previously been given different duties because of a medical problem.  

Incident on 31 October 2007

52.	Mr McMurtry alleged that the claimant had been in the canteen at 1.30am and, as he discovered the claimant lying down at 2.45am, he said the claimant was simply lying down and sleeping on the job and he was not on a second break as alleged as he had not clocked out on his second break.  There is no evidence to corroborate Mr McMurtry’s version of events whereas Mr Brandt supports the claimant’s version namely that he went off on his first break and came back and took his second break immediately.  When Mr Brandt was initially interviewed by Mr McKenna on 1 November 2007 as part of the investigatory process he stated that the claimant had said that he would take his two half-hour breaks together, went on his break at 2am came back at 2.30am and lay down on the cardboard.  The accounts given at the time to the respondent by Mr Brandt and Mr Murphy supported the claimant’s account of the circumstances leading to him lying on the floor that evening and are at odds with the times given by Mr McMurtry.

53.	In summary therefore we accept the claimant’s account of his movements.  The claimant went to the canteen on his first break at 2am having clocked out.  He felt unwell when he returned to his machine.  He looked for Mr McMurtry and could not find him so he told his two colleagues in the vicinity namely Mr Brandt and Mr Murphy that he was going on his second break immediately and lying down because of his headache.  At roughly 2.30am he was lying down on cardboard and held a piece of cardboard over his head.  His face therefore could not be seen and he was lying down and not sleeping.  At 2.45am Mr McMurtry came along looking for the claimant, saw him lying on the ground and then kicked him and swore at him saying “Get up to fuck”.

54.	The machine that the claimant operated and beside which he was lying, produces plastic sheeting from heated molten plastic.   The machine operates on its own and requires someone to operate it further to move a platform and to move a calibrator if a problem needed to be fixed with the product.

55.	We accept that the claimant was lying on the floor out of range of the platform which was unlikely to move because it required an operator to operate it and, as the claimant was the operator of that machine, it was highly unlikely that someone else would come along and operate his machine in his absence.  The claimant’s account of this was supported by Mr Brandt.

56.	As it was apparent at the time, that the claimant alleged that he was on a break, Mr McMurtry spoke immediately to the other men on the shift to remind them of their breaks allocation and alleged in evidence to us that it was coincidental that he spoke to the men immediately after the incident with the claimant.  We do not accept that evidence from Mr McMurtry and believe that it was an attempt by Mr McMurtry to emphasise to the men what their proper break allocation was so that it would undermine the claimant’s story that people often took longer breaks and could take them together rather than separately.  If someone other than Mr McMurtry had found the claimant we do not believe that the claimant would have been reported to management in a disciplinary way. 

57.	It is certainly not good practice for an employee to lie on the floor in a factory for whatever reason.  Indeed the claimant’s own engineer stated “it must be accepted however that lying on a factory floor is not good practice and an employee should be reprimanded for doing so.  It would appear to be the appellant’s case however that his action did not deserve dismissal.”  

58.	Following the initial investigatory statements, the claimant was suspended on 5 November 2007 pending the disciplinary process.  The investigatory process was dealt with by Mr Steele the Production Manager, and Ms Purvis of HR was present throughout the meetings and hearing in the disciplinary process. The process involved Mr Steele meeting with Mr McMurtry, the claimant and Mr Malone.  Mr Steele then spoke to Mr Brandt and Mr Murphy on 7 November 2007.

59.	Mr Steele’s wife is Chinese and he had experience of adverse racial treatment of his wife and children.

60.	On 8 November 2007 a disciplinary hearing took place involving Mr Steele, Ms Purvis the claimant and his trade union representative.  On the same day the disciplinary outcome was communicated to the claimant in a meeting when the claimant was sacked.  The claimant was therefore dismissed 8 days after the incident.

61.	During the disciplinary process the claimant mentioned the stress he was under.  The respondent did not get medical evidence to assess that aspect of the matter.

62.	The two disciplinary offences for which the claimant was sacked were sleeping and endangering his own and others’ health and safety.

63.	In contrast to the treatment of the claimant who was dealt with in disciplinary mode from the outset, Mr McC who was caught sleeping on pallets on a raised platform in a different part of the factory on 30 October 2007 (the day before the claimant was caught lying on the floor beside his machine), was not dealt with on a disciplinary footing.  The manager, Mr Davison stated at the time that his belief was that Mr McC was “in the process of going to sleep or having a nap”.  He was sufficiently concerned about the matter that he reported it as a possible disciplinary matter.  When Mr McC mentioned that the reason for him lying down was because of a panic attack the matter was dealt with as a possible disability issue and doctors became involved immediately.

64.	Mr Davison gave evidence which in our view was evasive and unsatisfactory in several respects.  He was at pains in evidence before the tribunal to insist that Mr McC was not sleeping and was not in a dangerous part of the factory in contrast with the claimant.  This was at odds with the statements made at the time by Mr Davidson who was concerned enough to regard it as a possible disciplinary offence that he believed the man was going to sleep or was sleeping.  For some reason the claimant’s engineer was not allowed to see the area where Mr McC was caught sleeping so the only evidence we had of the configuration in that area was unsatisfactory evidence from Mr Davidson.  For example when the panel questioned Mr Davidson to give a rough estimate of the height of the platform he was extremely evasive to the extent that this coloured the remainder of his evidence and it was apparent to us that he was at pains to support the respondent’s case no matter what.  

65.	The claimant’s engineer states in his report as follows; “It is further his case that a fellow employee was caught asleep on a pallet but was not dismissed.  As already stated no inspection of this other area was possible however if a pallet was involved one would reasonably expect a forklift had access to this area whereas the area in which the claimant was discovered was not accessible by forklift.  Certainly lying sleeping in an area where forklift trucks operate could result in serious injury or death and therefore a more serious breach of health and safety requirements”.

66.	Mr Davidson’s evidence was that there was no difficulty about forklift trucks in the area where Mr McC was found because he was the only forklift truck operator in that area.  In contrast the claimant’s argument that his machine would not have moved because no one would have operated it other than him, was ignored and account was taken of the fact that an operator might have come along, might have started the machine and it might have moved.  It seems to us that the same argument could have been levelled at Mr McC namely that a forklift truck could have operated in the area and this could have had serious health and safety implications along the lines of the statement made by the engineer.  

67.	Mr Jamison was the trade union representative who dealt with Mr McC during the investigation by his managers, and according to Mr Jamison’s contemporaneous note, managers told Mr McC that if he had a panic attack in the future he should take himself to a safe area when an attack happened.  The implication from this according to Mr Jamison and which we accept is that Mr McC was regarded as having lain down in an unsafe area.  There was clearly a risk involved when Mr McC would take an anxiety attack and this was emphasised by the doctor, Doctor Campbell, who examined Mr McC at the company’s request and stated in his report “I informed him in my opinion it was unacceptable and possibly dangerous to act in this manner on the shop floor…”  The clear dangers involved were that Mr McC was at some height and forklift trucks could operate in the area.  We therefore view Mr Davidson’s evidence as unreliable and accept the evidence of Mr Jamison.
 
68.	The key point was that Mr McC was not dealt with under a disciplinary process.  Mr O’Neill’s immediate reaction was a non-judgemental one and this is clear from the note of the investigatory meeting he held with Mr McC on 20 November 2007 in the presence of Ms Purvis of HR.  For example when Mr Davidson gave his account of finding Mr McC lying stretched out on material on a pallet on a raised platform in the process of trying to get to sleep and that another operator was there playing solitaire on the mixer control panel, Mr O’Neill’s reaction was “so the two guys were relaxed”.

69.	The fact that Mr McC was prone to panic attacks were extenuating circumstances for him.  The claimant stated from the outset that he took his two breaks together because he was tired and had a headache.  When he was suspended by Mr Steele he stated that he was stressed out.  HR were aware at this time of the claimant’s medical history and his ongoing complaints of stress.

70.	The claimant was dismissed on 8 November 2007 at a meeting with Mr Steele and Ms Purvis.  Mr Steele accepted that the points mentioned by the claimant about Mr McKenna and Mr McMurtry needed to be investigated but denied that they played a role in the incident that was before him.  It transpired that neither matter was investigated.  The claimant reiterated the treatment of Mr McC and stated again that if things had been dealt with in the past he would not be in the position.  He again stated that he had been discriminated against, bullied and racially abused over the years.

71.	It is important to note that the disciplinary outcome meeting took place at 2.15pm on 8 November 2007 that is 20 minutes after the end of the disciplinary hearing.   In the intervening 20 minutes Mr Steele alleged that he and Ms Purvis considered the matter and checked the position about Mr McC.  As the Mr McC matter had not concluded, due to the ill-health of Mr McC, it was decided that it had no bearing on the matter involving the claimant.  Ms Purvis was the person from HR who ultimately dealt with Mr McC.  She was in a position to know, or find out, that Mr McC had not been suspended or dealt with in a disciplinary manner and HR must have known something about the circumstances of Mr McC’s incident.  The first investigatory meeting shown to us in relation to Mr McC took place on 20 November 2007 that is 21 days after the incident took place.  In contrast the claimant’s investigatory procedure started the day after the incident culminating in the claimant’s dismissal eight days after the incident.

72.	The claimant’s termination letter was dated 8 November 2007.  The claimant appealed and the appeal concluded by letter of 20 November 2007 confirming the dismissal.   

73.	Mr Reid dealt with the appeal against dismissal in conjunction with Ms Purvis and met with the claimant on 14 November 2007.  Mr Reid set the tone by stating that he would not listen to anything that was not directly related to the incident.  

74.	The claimant made mention of the continuous problems he had had with Mr McMurtry; stated that Mr Simmons, Mr O’Neill, Mr Steele and his team leader and Mrs Blakely of HR knew; stated that Mr McMurtry was racist and that matters had not been investigated by HR; stated that his Team Leader Mr McKenna was against him and that he had asked to be moved to Mr Cully’s shift.  The claimant also stated that he had lain down on the night in question because he had a headache and referred to the letter on file that HR had from his own doctor which said that it might be due to work-related stress and stated that the reason he could not sleep was to do with that.  Mr Reid’s response was that he could not listen to all the issues and focused on the night he was lying down beside the machine.  The claimant persisted by saying he was trying to explain what led to it and made reference to the previous warnings.  

75.	In summary the effort by Mr Reid was to focus the enquiry on the specific act on the night in question and he rebutted the claimant’s attempts to widen the matter to put it in a context.  The claimant also tried to compare himself to Mr McC but was told that it was nothing to do with his situation.  Ms Purvis of HR was the link between all the strands of this situation.  She was well aware of the matters that the claimant was trying to open up before Mr Reid and even if Mr Reid knew nothing about the background it was incumbent on Ms Purvis to ensure the matter was probed.

76.	Ms Purvis’s credibility was severely damaged by her insistence that it was in order for her to have stated in a form to the SSA relating to the claimant’s claim for benefits, that the claimant was sacked for behaviour about which he had been warned before.  When challenged to point to the warning about this behaviour she referred to the letter arranging for the claimant to attend the disciplinary hearing.  In our view it is incredible for a HR professional to assert, and to stand by that assertion, that a letter inviting an employee to a disciplinary meeting of itself constitutes a warning for behaviour.  In our view this dented severely Ms Purvis’s credibility and also indicated HR’s adverse attitude toward the claimant.  

77.	Ms Purvis insisted that it was for the claimant to raise a grievance under the company procedure and as he did not do so his allegations could not be looked at.  When it was put to her that the claimant did raise a grievance after his dismissal by letter of 20 December 2007 to the HR department, Ms Purvis stated that that grievance was dealt with under the modified procedure.  The only document referred to us in relation to this modified procedure were two very short letters dated 8 January 2008 which dealt with the grievance relating to dismissal and in relation to a grievance relating to unlawful deduction from wages.  There was no mention whatsoever of the grievance relating to discrimination and harassment.

78.	We found Ms Purvis’s evidence unconvincing and lacking in credibility.  She defended the failure to look at the complaints made by the claimant of bullying, harassment and racism stating that they could have been investigated at a later stage but when pressed by questioning admitted that she did not act on the complaints at all.  She stated that she was completely unaware of any problems between the claimant and Mr McMurtry before and we simply do not believe that that was the case.  The problems with Mr McMurtry were so long standing and had been complained of to HR so we do not believe that HR were unaware of them.   Ms Purvis’ failure to act on the complaints raised by the claimant in the disciplinary hearing was sadly typical of the respondent’s response to the claimant over the years.

SGP and DDP issues

79.	The claimant sent two letters to HR dated the 20 December 2007 which stated:  “This is grievance regarding what I believe to be unlawful (breach of contract) deduction of my wages by manager Alvin Steele for early part of October 2007 and continuous discrimination and harassment by ‘ST’ management.” ;  “This is grievance regarding my dismissal on 8 November 2007 which I believe was unfair and yet again feel I was discriminated against.”  

80.	The claimant raised a grievance of discrimination at his dismissal.  The respondent’s response was that the grievance about his dismissal was dealt with under the appeals procedure.  As outlined above the appeals procedure did not deal with the wider allegations of discrimination which were referred to in the claimant’s other grievance letter of 20 December 2007 alleging “continuous discrimination and harassment by ST management”.

Medical evidence before tribunal

81.	The tribunal heard medical evidence for both sides which was in agreement that the claimant suffered from a psychiatric disorder namely a mild adjustment disorder.  The claimant’s consultant psychiatrist’s evidence was: “The claimant had significant symptoms of stress for at least a year from the autumn of 2006 until the autumn of 2007 when they settled fairly promptly once he left the respondent’s employ and [that] the symptoms have come back to him in waves since the imminence of the tribunal proceeding”.  The prognosis as at 25 September 2009 was that the claimant was likely to be able to come off his medication within another year i.e. by September 2010.

82.	The respondent’s representative cross examined the claimant in relation to a personal matter which took place in the claimant’s life in 2006 over a period of weeks.  The claimant did not mention this to his consultant psychiatrist but did mention it to the respondent’s occupational health physician who identified this personal matter as a well-recognised significant life-stressor.  Despite the claimant’s clear evidence when questioned, that this personal matter had a very short-lived, minor impact on him and, despite the fact that this accorded with the account he had given the respondent’s doctor, the respondent’s representative pursued this aspect of the matter in an effort to minimise the effect of the allegations of discrimination and dismissal on the claimant’s mental state.  When the respondent’s representative put these points to the consultant psychiatrist he gave evidence that the personal matter appeared to have had little impact on the claimant.  Despite this evidence that this personal matter had had minimal impact on the claimant, the respondent’s representative persisted in asserting that it was a significant matter to be weighed in a balance by the tribunal in assessing compensation for psychiatric injury.

THE LAW

83.	Discrimination on racial grounds is covered by the Race Relations (NI) Order 1997 as amended (referred to below as the RRO).

84.	Direct discrimination is defined at Article 3(1)(a) of RRO.  At Article 6(2)(c) it is stipulated to be unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment. It is for the employee to prove facts from which the tribunal could conclude that the employer’s treatment was on grounds of the claimant’s race, and that the treatment was less favourable in the way that the employer treated or would have treated someone not of the claimant’s race”.

85.	Victimisation is defined at Article 4 of RRO and the so called protected acts are listed at Article 4(2)(a) and (b).

86.	Harassment is defined at Article 4(A) which states as follows:

“4A.—(1)  A person (“A”) subjects another person (“B”) to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, A engages in unwanted conduct which has the purpose or effect of –

1.	violating B’s dignity, or

2.	creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)  Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.”. 
	
87.	The burden is on the claimant to prove facts from which the tribunal could conclude that he suffered such unwanted conduct on grounds of his race, which had the required purpose or effect.  If the claimant proves such facts that burden shifts to the respondent to prove that the treatment was not related to race or that it did not have the alleged purpose or effect.

88.	Racial grounds is defined at Article 5 as meaning colour, race, nationality or ethnic or national origins.

89.	Article 32 of RRO deals with the liability of an employer for acts done by the employee and states as follows at Article 32(1):

“Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”

90.	The employer’s defence is outlined at Article 32(5) which states:

“In proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as where reasonably practicable to prevent the employee from –

(i)	doing that act, or

(ii)	doing, in the course of his employment, acts of that description.”

91.	Aiding unlawful acts is set out at Article 33 the relevant part of which states:

“33.  - (1) A person who knowingly aids another person to do an act made unlawful by this Order shall be treated for the purposes of this Order as himself doing the same kind of unlawful act.”
Statutory disciplinary and dismissal procedures

92.	The statutory Disciplinary and Dismissal Procedures (DDP) are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations 2004 and in the Employment (NI) Order 2003.  Essentially there are three steps in the minimum disciplinary and dismissal procedure.  Step one involves the employer writing to the employee setting out the grounds for the proposed action and inviting the employee to a disciplinary meeting to discuss the matter.  Step two involves holding a meeting and notifying the employee of the decision and the right of appeal.  Step three involves inviting the employee to an appeal meeting if the employee avails of the appeal process and notifying the employee of the appeal decision.  

Statutory Grievance Procedure

93.	The Statutory Grievance Procedure (SGP) is set out in the Employment (NI) Order 2003 and the Employment (NI) Order (Dispute Regulations) Regulations 2004.  This procedure does not apply where an employer has dismissed or is contemplating dismissal of an employee.  It therefore applies in this case to the claimant’s complaint of harassment and discrimination relating to the period before the disciplinary process which led to his dismissal.  If the non-completion of the SGP is the employer’s fault any compensatory award must be uplifted by 10% and may be uplifted by up to 50%.  

94.	Step 1 of the standard grievance procedure requires the employee to set out the grievance in writing and send it to the employer.  Step two involves the employer inviting the employee to a meeting to discuss the grievance.  The employer must inform the employee of his decision and notify him of his right of appeal against the decision.  Step three requires the employer to arrange an appeal hearing, if the employee avails of the right of appeal, and the employer must inform the employee of his final decision.  

95.	The modified procedure applies firstly if the employee’s employment has terminated; secondly the employer was either unaware of the grievance at the termination date or was aware of it but the standard grievance procedure had not been commenced or completed, and thirdly both parties agree in writing to use the modified grievance procedure.  As there was no agreement in writing to use the modified grievance procedure the standard grievance procedure applied in this case.

96.	Unless using the modified grievance procedure the grievance does not need to set out the basis of the grievance as this need only be provided before the step two meeting.  The grievance letter need not be looked at on its own but it can be looked at in light of all the circumstances

97.	The principal cases in this case are as follows:

(1)	Hendricks v Commissioner of Police for Metropolis [2003] IRLR 96, is a Court of Appeal decision on whether an act extended over a period or comprised unconnected, discrete acts which would lead to issues of time-limits being argued.

(2)	Nagarajan v London Regional Transport [1999] IRLR 572 HL
	In relation to victimisation the Chairman invited the parties to make representation if they wished on the Nagarajan House of Lords decision.   Neither representative made specific representations on that case which the Chairman indicated would be taken into account when reaching the decision.

(3)	Vento v Chief Constable of West Yorkshire Police [2003] ICR 318
	relates to compensation for injury to feelings.

(4)	Anyanwu v South Bank Students Union [2001] IRLR 305 relates to aiding a discriminatory act.

98.	The claimant’s representative referred to alleged breach of the Labour Relations Agency Code of Practice at paragraph 34 which states:

	“In the course of a disciplinary process, an employee might raise a grievance about an issue which is related to the case and which, for example, could possibly and unfairly influence the conduct or outcome of the process to his/her detriment if left unresolved.  If this happens, the employer should consider suspending the disciplinary procedure for a short period while the grievance is dealt with.  Depending on the nature of the grievance, the employer may need to consider bringing in another manager to deal with the disciplinary process.  In small organisations this may not be possible, and the existing manager should deal with the case as impartially as possible.”							
99.	The claimant claimed aggravated damages.  Aggravated damages may be warranted in a discrimination case where there is a link between exceptional or insulting conduct or motive on the employer’s part and the claimant’s injury to feelings.  In exceptional cases an award of aggravated damages may be made where the respondent has conducted proceedings in such a way as to aggravate the harm caused by the original act of discrimination.

100.	The claimant claimed personal injury relying on valuation in the Green Book (Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland) and relied on paragraph 3A(d) which states:

	“(d)	Minor Psychiatric Damage

The level of the award will take into consideration the length of the period of disability and the extent to which daily activities and sleep are affected.	 

Considerations as to the level of the award will include the length of the period of disability and the extent to which daily activities were affected, 
									        To £9000”

Ongoing acts

101.	The Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 CA case involved a race discrimination case where the claimant alleged approximately 100 allegations of discrimination over a period of five years involving 50 or more of her fellow police officers.  The issue for the tribunal was whether the acts constituted a continuing act whereby the relevant three month time-limit would not begin to run until the date of the last act.  The principle established by the Court of Appeal in the Hendricks case is outlined in Harvey Division L paragraph 562 which states as follows:

“In deciding whether a particular situation gives rise to an act extending over time it will also be appropriate to have regard to:  (a) the nature and conduct of the discriminatory conduct of which the complaint is made, and (b) the status or position of the person responsible for it.  Certain types of discriminatory insults, for example, will by their nature indicate that they have a continuing effect and are properly seen as part of a general regime of discrimination; so too discriminatory acts by a person of authority may be more likely to create a regime of discrimination than similar conduct by a person of lower authority within an organisation.  Where there is evidence of numerous instances of discriminatory acts by different people over time the focus of the enquiry should not be on whether there is something that can be characterised as policy, rule, scheme, regime or practice-instead what is important is whether there is an ongoing situation or a continuing state of affairs in which the group discriminated against (be it defined by sex or race) and including the claimant was treated less favourably: Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 CA… 
The claimant was held entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged instances of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.
 
Victimisation

102.	The case of Nagarajan v London Regional Transport [1999] IRLR 572 HL is the principal House of Lords decision on victimisation.  The claimant in that case alleged racial discrimination when the respondent failed to appoint him to a post.  The claimant alleged that this was an act of victimisation related to his previous complaints of race discrimination and victimisation against different managers.  The tribunal had held that the interviewers for the post, in marking down the claimant on some of the criteria, were consciously or subconsciously influenced by the fact that the claimant had previously brought Industrial Tribunal proceedings against the respondent.  The case was appealed on the basis of whether or not a conscious motivation was required for victimisation and the House of Lords ultimately held that conscious motivation was not required for victimisation just as it was not required for direct discrimination.  As Lord Nicholls stated; “Discrimination may be on racial grounds even though it is not the sole ground for the decision.  If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”  

103.	He further stated at paragraph 17; “After careful and thorough investigation of a claim, members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. …Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.”

104.	At paragraph 18 he continued “Although victimisation has a ring of conscious targeting, this is an insufficient basis for excluding cases of unrecognised prejudice from the scope of section 2.  Such an exclusion would partially undermine the protection section 2 seeks to give those who have sought to rely on the Act or been involved in the operation of the Act in other ways.”

105.	The equivalent of section 2 in the Race Relations Act is section 4 of RRO set out above.

Injury to feelings

106.	In the Vento case the Court of Appeal gave guidance on the assessment of damages for injury to feelings.  In the decision the Court of Appeal cited with approval the summary of the general principles on compensation for non pecuniary loss which were outlined in the case of Prison Service v Johnson [1997] ICR 275 by the EAT.

107.	The guidance by the Court of Appeal on valuation states as follows:

“Employment tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury.  

(1)	The top band should normally be between £15,000 and £25,000.  Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race…Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(2)	The middle band between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.

(3)	Awards of between £500 and £5,000 are appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence.  In general, awards of less than £500 are to be avoided altogether as the risk being regarded as so low as not to be a proper recognition of injury to feelings.  

There is of course within each band considerable flexibility allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.  The decision whether or not to award aggravated damages and if so what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.

Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for no pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage.  In particular double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage.  The extent of overlap will depend on the facts of each case.”

108.	The Vento bands were reconsidered by the EAT in Da’Bell v National Society for the Prevention of Cruelty to Children EAT 0227/09.  The current middle and upper bands are £6,000 to £18,000 and £18,000 to £30,000.  

Aiding Discrimination

109.	The leading case in this area is the House of Lords decision in Anyanwu v South Bank Students Union [2001] 2 All England Reports 353 HL.  The House of Lords held that the word “aids” should be given its plain and ordinary meaning.  That case involved a third party being accused of aiding the employer to discriminate.

CONCLUSIONS

General

110.	Both representatives provided written submissions and the tribunal took account of the written and oral submissions in reaching its decision.

111.	Having looked very carefully at the evidence and having assessed the demeanour of the witnesses and having found the facts outlined above we have concluded that a culture prevailed in this company whereby racist bullying continued on an ongoing basis to such an extent that it must have been known of by management and HR generally. When complaints were made managers did nothing and when a complaint was made to HR the onus was put on the claimant to do something about it.  The claimant was perceived to be a thorn in the side of the managers because he complained about racist treatment, he was therefore perceived to be a troublemaker, and managers in the form of Mr O’Neill and Mr Steele dealt with him very strictly compared to other local workers because of this.  Our conclusions on the specific examples of this are set out below.

112.	Offensive graffiti including racist graffiti, racist comments and complaints not being followed up by management formed the backdrop for the claimant in the respondent’s employment.

113.	Serious racist bullying of the claimant by Mr McMurtry went on on a continuing basis and this was not only tolerated by management it was effectively condoned by the respondent’s management receiving complaints and doing nothing about it.  The onus was put on the claimant to obtain witnesses despite the culture of fear which prevailed which must have been known to management.  Our view is that managers and HR tried to close their eyes and ears to what was going on and this led to a disconnection between managers and HR and the workers and the managers on the shop floor.  Essentially the respondent allowed this situation to prevail and for this reason the racism perpetrated on the claimant tainted all the dealings the claimant had with his managers in the last few years of his employment.  

114.	Mr O’Neill and Mr Steele regarded the claimant as a trouble maker because he had made complaints.   The claimant’s complaints centred on bullying.  We regard it as reasonable for the claimant to have connected the racist harassment by Mr McMurtry, the inaction by managers when the complaints were made, and the bullying by Mr O’Neill to the fact that he was Croatian without him having to specifically flag that up.  It had become such a background to his working life where nothing was done despite complaints and the obvious stress that the claimant was under, and this led to the claimant being perceived as a trouble-maker even though it was well known that he was suffering racist treatment.

115.	In summary between 2003 and 2005 five managers were made aware by the claimant of racist issues:  Mr Simmons, who did not give evidence to the tribunal, was told and did nothing;  Ms Irwin, who relied on her notes to say that there were no such issues; Mr Gilmore who did not give evidence to the tribunal but received complaints from the claimant; Ms McKinney who did give evidence to the tribunal and confirmed the claimant’s account, and Mr O’Neill who gave evidence to the tribunal and did not deny the claimant’s specific allegation that he complained to him. 

116.	HR were in a position to have an overview of the relationship the claimant had with his managers at all levels.  In was incumbent on HR and managers to be proactive in ensuring that the claimant did not have to endure working conditions where he faced serious racist harassment on a continuing basis quite openly in the company.  When the claimant complained to his managers they did not, or felt they could not, take the matter further or do things on a formal basis.  When the claimant complained to HR the matter was thrown back at him for him to sort things out on the shop floor.  

117.	HR were aware of the claimant’s ongoing stress problem and that he had been diagnosed with a stress disorder.   When problems arose between the claimant and his managers relating to his work performance and specifically relating to the incident in October 2007 which led to dismissal, it was for HR to see the connections.  The duty of HR is not necessarily to share details with managers but to tell managers “There’s more to this than meets the eye”.  It was up to HR to steer the process and they failed to connect the matters and see the wider picture.   This in our view is an indictment of the respondent company.

118.	We find that racism permeated all dealings the claimant had with his managers in the grievance process relating to Mr O’Neill and in the disciplinary process given that the link between all of these processes was HR.  We heard evidence that HR worked very closely together and we simply do not believe that the witnesses from HR, who we heard from, knew nothing about problems between the claimant and Mr McMurtry.  We also find it reprehensible that HR did not ensure that it was taken into account that the claimant suffered from ongoing stress and had a history of a stress disorder particularly as Mr McC’s medical condition was taken into account in his favour.

119.	The respondents throughout dealt with the claimant in a very narrow way actively shutting their eyes and ears to the context in which the apparent problems with the claimant arose.

120.	Given our findings that managers and HR knew of the claimant’s ongoing problems with racial harassment and given our finding that there was a culture of fear and a culture of management refusing to do anything about such complaints we find that the adverse treatment described by the claimant over a lengthy period, which involved several managers and co-workers, amounted to an ongoing situation where the racial harassment suffered by the claimant was not only ignored but condoned and further adverse treatment occurred as a result of his complaints.  We therefore have no hesitation in finding that the Hendricks test is satisfied in that all incidents of adverse treatment complained of by the claimant were linked together constituting an ongoing state of affairs whereby racial harassment discrimination and victimisation occurred and were tolerated by management.  Time therefore begins to run from the date of the last act which was the date of dismissal.  The claimant’s claim is therefore not outside the requisite time-limit and no issue of extending time arises.

Comments by Mr McMurtry

121.	The tribunal has absolutely no hesitation in concluding that the behaviour set out in the facts above of Mr McMurtry toward the claimant constituted gross harassment on grounds of race.  It is shocking that Mr McMurtry and others got away with making such racist comments and nothing was done about it despite the claimant’s complaints to Mr Simmons, Mr Gilmore, Ms McKinney and Ms Mooney.  We heard no evidence whatsoever in relation to attempts made by the respondents to ensure that such treatment did not occur.  We heard no evidence of any training given to workers or managers in this regard and we therefore find that the employer’s defence is not made out.    The respondent was vicariously liable for Mr McMurtry’s acts and is therefore liable for the discrimination perpetrated by him.

Grievance against Mr O’Neill

122.	We regard the investigation and appeal into the grievance as inadequate in relation to a grievance against a manager where there was a background of complaints and problems about serious racist bullying which had been reported to managers on several occasions and nothing had been done previously.  HR were aware of this background and neither Ms Patterson at the first level of the grievance nor Ms Walsh at the appeal appeared to have ensured that the investigation probed into the cause of the claimant’s complaints.

123.	The claimant’s grievance where he referred to “Get those Poles to work harder” was a protected act.  The complaint was about Mr O’Neill picking on the claimant in the context of his complaints to managers before including Mr O’Neill in regards to racist comments when nothing was done.  The fact that the grievance specifically complained that Mr O’Neill said “Get those Poles to work harder” related it to race and connected it to the previous complaints regarding racist comments.

124.	Mr Close’s evidence would have backed up the claimant but he was not interviewed until appeal and even then the matters raised by him were not probed. The managers in general did not encourage people to be forthcoming.  While Mr Close did not volunteer a reason for the adverse treatment he stated seven times over the two meetings that Mr O’Neill was singling the claimant out and stated “If you are going to the same person every time you are singling out.  Whether bullying or not you decide.”  At no stage was Mr Close asked why he felt Mr O’Neill was singling the claimant out.  In evidence before us however Mr Close was quite clear as to why Mr O’Neill singled out the claimant stating: “It was quite obvious the claimant had had his troubles ongoing for years with Matt [Mr McMurtry] of a racist nature.  The claimant was seen to be causing trouble for the company.  Mr O’Neill was adding to that by picking on the claimant because he was Croatian and that was quite obvious in my opinion.  He was adding fuel to the fire.”

125.	The grievance investigation had an unwarranted narrow focus.  The narrow focus of the questions was apparent from the record of the grievance before Mr McGrath.  There were no questions about the comment “Get those Poles to work harder”.  The context of the grievance against Mr O’Neill therefore was that the claimant had made several complaints namely four complaints against two out of his five managers.  It was clear from those complaints that the comments were racist in nature.  

126.	In our view there was enough evidence for management to follow up the reasons behind the poor relationship between the claimant and Mr O’Neill.  It was for management to follow that up and probe the matter rather than dealing with it superficially the way they did at both grievance and appeal level.  

127.	It was up to HR to ensure that the investigation and appeal did not have a narrow focus given their knowledge of the previous incidents and given their knowledge of the claimant’s medical position.

128.	We conclude that Mr O’Neill started picking on the claimant because he was perceived as a trouble-maker as he had complained about adverse treatment of himself as he was Croatian, and he had complained about the treatment of the Polish workers.  The fact that the claimant was Croatian tainted the dealings he had with his managers including Mr O’Neill and Mr Steele.  The grievance against Mr O’Neill is therefore a protected act as, taken in context and given that he refers to Mr O’Neill having told him to “Get those Poles to work harder”, the complaint related to the fact that the claimant was Croatian, a foreign national and was therefore regarded as connected to the Polish workers.  

129.	The fact that the claimant complained that Mr O’Neill had said “Get those Poles to work harder” should have raised alarm bells with the respondent.  The Polish workers were all temporary workers so Mr O’Neill could have just as easily said “Get those temporary workers to work harder” so the fact he focused on their nationality should have led to a probing investigation of the claimant’s grievance and this did not happen.  The presumption was that the managers should be supported and the matter related to processes and procedures being implemented by managers and this led to a very narrow investigation where it must have been clear to the claimant that wider issues would not be looked at.  This accorded with his previous experience of raising issues and we can fully understand why the claimant did not specifically say that he felt that the treatment accorded to him by Mr O’Neill related to the fact that he was Croatian.  He had not been listened to before when he had raised matters of this nature and we believe that at this stage he was browbeaten by the treatment he had received by the respondent.  Nevertheless the respondent’s HR department and other managers knew the claimant had suffered a bullying campaign of racist harassment, had complained and nothing had been done.

130.	We find the grievance against Mr O’Neill to be a protected act.  The claimant’s fate was sealed in our view when the grievance was raised against Mr O’Neill as there then proceeded a pattern of incidents where it was clear that the company, through its managers, were carefully monitoring the claimant to see if they could catch him out.  Any transgression, as set out below, was jumped on in contrast to Northern Ireland workers. 

Complaint to Ms Mooney

131.	The claimant’s encounter with Ms Mooney in 2007 and its aftermath is very telling in our view.  It must have taken a lot for the claimant to take the step to make a complaint direct to HR after his previous complaints had been ignored by his immediate managers.  Something happened to make Ms Mooney change her advice to the claimant and this is a serious indictment of the respondent’s approach to complaints.  The claimant said that this was a protected act and we so find as it related to racist comments.  We also find that one of the reasons for the subsequent adverse treatment suffered by the claimant was because he had raised such issues with HR.

Quality incident

132.	On 2 May 2007 the claimant received a recorded verbal warning.  The comparator here was SR who did not receive a warning nor was his work scrapped for a defect of similar gravity to that for which the claimant received a recorded verbal warning.  From the facts we have found above it is clear to us that Mr Steele was determined that the claimant should be admonished for a defect that was very difficult to spot.  There was a clear difference in treatment between the claimant and his comparator.  Even if the comparator situation was not exactly the same as the claimant’s the treatment of that comparator was evidence in our view that someone from Northern Ireland who had not complained of racist comments would have been treated more favourably than the claimant.  

133.	As the claimant was disciplined for a comparably serious defect this constituted less favourable treatment than SR who was a local worker.  Our conclusion is that the claimant was disciplined because he had previously made complaints of racial harassment and therefore this amounted to victimisation because of the protected act.  This was less favourable treatment than the comparator.

Wife’s medical condition

134.	In July 2007 the claimant was treated less favourably than Northern Ireland workers in relation to obtaining medical information on his wife’s condition.  The difference in treatment was that the claimant was required to produce such information when the Northern Ireland workers were not. This treatment was detrimental to the claimant because it was intrusive and embarrassing.  The claimant has proved facts from which we could conclude that there was an act of victimisation linked to the grievance against Mr O’Neill and the complaint to Mr Mooney and the burden shifts to the respondent.  The respondent’s explanation was that the other men flagged up the problems in advance.  This explanation has not satisfied us given the similarity between the claimant’s position and those of his comparators in that it was unpredictable as to when time off would be required.  The same unpredictability applied to two of the local workers referred to.

135.	In our view it would have been unusual at that time for a worker to be asked for medical evidence to prove a medical condition on the part of his wife or partner.  This treatment was detrimental to the claimant because it was embarrassing for him to have to seek medical evidence about his wife who suffered from a chronic medical condition which could have serious flare ups which were unpredictable.  Whilst two of the other men were able to flag up in advance that they had problems in that regard, both problems were unpredictable and would have necessitated time off or late attendance at short notice.  

136.	There was a difference in race between the claimant and the comparators and it is our view that this treatment of the claimant where he was treated more strictly than others, was part of the pattern of managers treating the claimant very strictly and that this was related to the complaints which he had raised which were related to race.  It therefore constituted an act of victimisation on grounds of race as the adverse treatment stemmed from the claimant’s complaints and the grievance raised about Mr O’Neill.

Vertigo incident

137.	On 4 October 2007 the claimant was forced to take sick leave when he raised the issue of suspected vertigo.  The claimant asked for light duties as an alternative to being put off work but was told that this was not possible.  The claimant compared his situation to that of Mr B who was given light duties when he had a leg injury.  As we have found that light duties were actually available and that there was a difference in treatment between the claimant and a Northern Ireland worker we are satisfied that the claimant has proved facts from which we could conclude that an act of victimisation occurred.  There was no problem giving light duties to Mr B because of his medical condition, yet the claimant was refused the light duties which were available.  We are satisfied that if the claimant had not been regarded as a troublemaker because of the complaints which he had raised, he would have been offered light duties.  

138.	It is our conclusion that the claimant therefore suffered detrimental treatment due to his having raised a complaint involving racist comments.  It is our view that light duties could have been given to the claimant and were not and, that forcing the claimant to take sick leave constituted less favourable treatment, particularly in circumstances where he was told that that absence, added to previous absences, could result in disciplinary procedures if he took another absence.

139.	As the claimant has shifted the burden to the respondent we must look at the explanation given by the respondent.  We have rejected the respondent’s explanation that no light work was available and therefore find for the claimant that this constituted an act of victimisation on grounds of race related to the protected acts.

Transfer request October 2007

140.	The claimant asked for a transfer to Mr Cully’s shift in October 2007 because of problems with Mr McMurtry and Mr O’Neill and Mr McKenna relating to racist treatment.  This typifies, in our view, managers’ and HR’s attitude to him as management were quick to jump on anything that could be a criticism of the claimant but failed to deal with anything he raised.  He heard nothing in response from his management or HR.

Dismissal incident

141.	It was entirely proper for the respondent to look very carefully at this incident due to the health and safety implications.

142.	Mr McMurtry was the trigger for the disciplinary process. He kicked the claimant and this was absolutely unacceptable.  Despite this there was no question of Mr McMurtry being admonished or sanctioned for dealing with a subordinate worker in that way.  The respondents should have paused before disciplining the claimant because Mr McMurtry was someone the claimant had complained about and HR knew about it.  We believe that management also knew about the problems between the claimant and Mr McMurtry and specifically we believe that Mr O’Neill, Mr Steele and several members of HR knew about the problems with Mr McMurtry.  

143.	The incident occurred on 31 October 2007 (one day after the incident with Mr McC) and the investigatory interviews took place in November 2007.  At the disciplinary meeting on 8 November 2007 the claimant immediately compared himself to Mr McC who had been found sleeping the day before the claimant’s incident.  There was no evidence that the claimant was actually sleeping and the claimant emphatically denied he was sleeping.  Despite the claimant making 17 separate references to bullying, discrimination, being singled out, being picked on and allegations of racial abuse and bullying, Mr Steele and Ms Purvis ignored those references and dealt with the matter simply as a disciplinary issue related to health and safety.  There was no excuse for failing to look at the wider points made by the claimant.  There was a lengthy background of incidents of bullying harassment, being picked on and of complaints that were made and not followed up on and of a recent pattern of the claimant being warned or admonished for work. The link between all these matters was the HR department.   There were extenuating circumstances known to the respondent in the form of its HR department and these circumstances namely the medical background should have given the respondent pause to consider how to deal with the claimant.  The respondents’ managers were too hasty to dismiss the claimant.  Our view is that they saw an opportunity and were anxious to grasp it to get rid of the claimant because he was perceived as a trouble maker because of complaints of racism.

144.	The claimant was dealt with less favourably than Mr McC in that, despite the respondent’s knowledge of his medical condition, he was dealt with less sympathetically.  They failed to get the doctor to comment on the claimant as they did with Mr McC.  HR should have got the claimant assessed by the company doctor again or at the very least should have factored the claimant’s known history of a stress condition into their deliberations.

145.	Ms Purvis of HR was involved in the disciplinary process relating to the claimant’s dismissal.  Mr Steele was not an experienced manager and whilst the decision was his HR had a very important function to play in ensuring that the wider picture could be looked at if there were other matters which could be of relevance.  Ms Purvis insisted that the issues were very narrow.  

146.	Mr Steele gave evidence that, as he had first hand experience of adverse racial treatment of his wife and children, he could not have been motivated by race in his dealings with the claimant in general and specifically regarding the disciplinary process.  We have considered carefully this argument and reject the contention that, in this case, this precluded Mr Steele from having discriminated against the claimant on racial grounds.  We conclude from the whole of the evidence that Mr Steele regarded the claimant as a problem because he had made complaints about racism and had raised a grievance against Mr O’Neill.  As these were protected acts we find that the test in Nagarajan has been satisfied in that Mr Steele was consciously motivated by his perception of the claimant as a problem and by the subconscious motivation of race because the issue of race tainted all of the claimant’s dealings with him following the grievance raised against Mr Steele’s co-manager Mr O’Neill.

147.	The behaviour of Mr Steele was part of a pattern which involved managers jumping immediately on any perceived transgression by the claimant.  The reason for this in our view was that the claimant was regarded as a problem for the respondent because of the complaints he had made about racism and about being picked on by Mr O’Neill.   The claimant was damned from the time that he took the grievance against Mr O’Neill.  In our view the claimant probably would not have been sacked but for the fact that he had raised that grievance.

148.	Mr McMurtry reporting the claimant for sleeping.  It is our view that the report was motivated by race and was part of the pattern whereby Mr McMurtry had it in for the claimant.  The aggressive treatment of the claimant is contrasted with Mr McMurtry’s behaviour following a previous incident. Mr McMurtry found a local man on another shift sleeping.  He did not curse or kick him but left him.  He threw blue dust over the man and went back to his own bay and told his own boss Ms McKinney.  

149.	It is clear to us that Mr McMurtry regarded the other man sleeping as a joke whereas he regarded the claimant lying down as a disciplinary matter.  

150.	In summary in view of the facts found and our conclusions and having applied the law to the facts we find that the claimant’s dismissal amounted to an act of victimisation on grounds of race and was therefore discriminatory and unfair.  We find no evidence of contributory conduct given our findings on the difference in treatment afforded to the claimant in relation to his dismissal when compared to that afforded to Mr McC.

Aiding Discrimination Acts

151.	The Anyanwu case appears to envisage a situation where a third party aids the employer to act in a discriminatory way.  The claimant’s representative alleged that aiding discriminatory acts took place when Mr Simmons and Ms Mooney did nothing about complaints.   We are not convinced that the concept of aiding a discriminatory act is appropriate in this case where we have found that the employer was vicariously liable for the harassment perpetrated by its employees and is liable for the discrimination and victimisation perpetrated by its managers.   We therefore decline to find that the respondent aided a discrimination act within the meaning of the legislation.

SGP AND DDP

152.	No issues were raised by either party as regards the compliance with the statutory dismissal procedure.  The tribunal therefore finds that both sides complied with the
statutory dismissal procedure.

153.	There was an issue between the parties in relation to compliance with the statutory grievance procedure.  This procedure does not apply to dismissal.  However, it does apply to the allegations of discrimination, harassment and victimisation prior to the dismissal.  The claimant raised a written grievance after his dismissal by letter of 
20 December 2007 alleging continuous discrimination and harassment by management.  In the context of this case this clearly refers to discrimination and harassment on grounds of race namely the fact that the claimant was Croatian and therefore amounts to a valid grievance letter. 

154.	As the claimant had left when he raised the grievance it was open to the parties to agree to use the modified procedure.  The claimant did not agree in writing to a modified procedure and therefore the full grievance procedure applied.  It is absolutely clear from the evidence that no grievance procedure was followed by the respondents and we were given no evidence as to why this was the case.  Indeed the evidence of Ms Purvis was that the claimant did not raise any grievance but she then changed her evidence to say that the grievance raised was dealt with under the modified procedure even though this was not the case.  Given this complete lack of response to the grievance and a complete lack of explanation as to why this was the case we find that the SGP was not complied with and this was wholly the respondent’s fault.  We have therefore decided to award the maximum uplift of 50% to the compensatory award related to the discriminatory acts other than dismissal.  The reason we award the maximum uplift is that the respondent’s explanation to us for not dealing with the claimant’s complaints during the disciplinary process was that they could be dealt with after the process if the claimant raised a grievance.  When the claimant raised a grievance it was ignored.  At hearing the respondent alleged the modified procedure was used when this was not the case.  The respondent therefore appeared to us to have known of its obligations but chose to ignore them.  Such disregard merits the maximum penalty of 50%.

COMPENSATION

155.	In this case we have found that there was a lengthy campaign of harassment of the claimant which was ignored or condoned by management who failed to act on complaints made.  The claimant was regarded as a trouble-maker because he had made the complaints and he suffered a pattern of adverse treatment by his managers over a period of approximately 18 months culminating in his dismissal.  In these circumstances we regard this case as falling within the top band of Vento.  It was clear to us at hearing that the claimant was severely distressed by the behaviour of the respondent and his continuing distress was apparent at several points during the hearing.  

156.	The claimant outlined the distressing effect of his treatment during his time at the respondent and following his dismissal, to his psychiatrist.  The psychiatrist’s opinion was that the claimant suffered a mild adjustment disorder and states in the report; “He had significant symptoms of stress for at least a year from the autumn of 2006 until the autumn of 2007, these would have settled fairly promptly once he left Brett Martin and got a new job and they have come back to him in waves with the imminence of the tribunal and of talk about it.”  The prognosis at the time of the report on 25 September 2009 was that the claimant would have no further psychiatric symptoms of clinical significance and was likely to be able to come off his medication within another year that is until September 2010.

157.	We therefore award the sum of £20,000 comprising £10,000 for the discriminatory dismissal and £10,000 for all other acts of discrimination.  In relation to injury to feelings we have taken the broad brush approach in awarding one figure of £10,000 for injury to feelings to cover all the discriminatory acts and omissions other than dismissal, and a second figure of £10,000 for the discriminatory dismissal.  We have also taken account of the aggravating features in this case, namely the inaccurate information given in relation to benefits and the complete lack of action on the claimant’s complaints, in awarding the sum for injury to feelings.  

Psychiatric injury

158.	The psychiatrist’s opinion and prognosis are outlined above.  The claimant’s representative invited the tribunal to award damages for psychiatric damage in the minor category outlined in the guidelines for the assessment of general damages in personal injury cases in Northern Ireland Third Edition 2008.  This states that minor psychiatric damage can attract damages up to £9,000.  The respondent invited the tribunal to take account of the personal matter to reduce any compensation for psychiatric injury.

159.	On the evidence before us the personal matter had very little if any impact on the course of the claimant’s psychiatric injury.  We are very mindful of the danger of double recovery given that we have awarded a substantial sum for injury to feelings.  There is substantial overlap in this case between the injury to feelings and the psychiatric injury.  In these circumstances we regard the sum of £1,500 as a reasonable reflection of the psychiatric injury suffered by the claimant over and above the injury to feelings.  We attribute this compensation to the discriminatory acts other than dismissal for ease of calculation because an element of the damages for psychiatric injury are covered by the injury to feelings compensation above.

Aggravated damages

160.	The claimant claimed aggravated damages but his representative conceded that the practice in Northern Ireland is that aggravated damages are rolled up into injury to feelings award.  This is the principle established by the Northern Ireland Court of Appeal in the case of McConnell v the Police Authority for Northern Ireland.  The claimant alleged that aggravated damages are warranted in this case however because of the way the respondent dealt with the claimant’s grievance disciplinary hearing and appeal, the fact that they failed to provide accurate information to the SSA in relation to benefits and the reference to the personal matter and pursuing that point in the case.  Mr Sharp did however concede that it was not improper for the personal matter to have been pursued as it could have been of relevance.

161.	We do not regard this as a case where aggravated damages are warranted.  We have incorporated in the award for injury to feeling the aggravating features of this case.  We do not regard it as inappropriate for the respondent to have raised the issue of the personal matter but in light of the evidence before us from the doctors we have rejected the respondent’s submission that it was a major factor in the psychiatric injury and have largely discounted it in that regard.  The raising of the personal matter is therefore not an aggravating feature in this case.  The failure to deal with the grievance is dealt with by the 50% uplift referred to above.

Interest

162.	We consider that interest should be awarded on compensation in the usual way and that interest calculation is set out below. Interest is payable on injury to feelings compensation from the date of dismissal (8 November 2007) to the date of calculation (8 February 2010). Interest is payable on the remainder of the compensatory award and is calculated from the mid point-date between the date of dismissal and the date of calculation (8 January 2009).  The 50% uplift on the compensatory award is applied before the interest is calculated.

COMPENSATION CALCULATION

1.  Basic Award

Age at date of dismissal – 39

Number of years worked – 12

Gross weekly wage - £330

12 X 1 X 330 =  £3960

Total basic award = £3960

2.  Compensatory Award

Date of dismissal:   8 November 2007

Date started new job:  6 December 2007

Agreed net loss for this period=   £1188.75

Agreed net loss from 6 December 2007 to 8 February 2008=   £1617.49

Agreed diminution in earnings 8 February 2008 to date of hearing 30 November 2009  = £8300

Total wages loss to date of hearing = £11,106.24  

     Agreed pension loss = £   100
Agreed future loss of wage from date of hearing :  52 weeks X £100 per week average loss  = £5200

Total future loss = £5300
Total Financial loss (rounded down) = £16,406

Agreed figure for Loss of Statutory Employment Rights = £330

Injury to Feelings = £20,000  

Damages for Psychiatric Injury = £1,500

50% uplift on total compensatory award relating to discrimination other than dismissal i.e. half injury to feelings and all psychiatric injury £11,500 = £5,750

3.  Interest

The date of calculation is 8 Feb 2010
The date of dismissal 8 November 2007 is taken as the date of discrimination for ease of calculation.

Interest is therefore payable from the date of dismissal to the date of calculation at the rate of 8% per annum on injury to feelings compensation of £20,000
Ie  27 months  =  £3,600

Interest is payable at the rate of 8% per annum in relation remaining compensatory award of £23,656 from the mid point date between the date of dismissal and the date of calculation ie from 8 January 2009 to 8 February 2010 
13 months @ £157.71 per month = £2050 (Rounded down).
 
Total interest = £5650

Compensation Summary:

Total basic award = £3960

Total Financial loss = £16,406

Agreed figure for Loss of Statutory Employment Rights = £330

Injury to Feelings = £20,000 

Damages for Psychiatric Injury = £1,500

Total interest = £5650

50% uplift on total compensatory award relating to discrimination other than dismissal i.e. half injury to feelings and all psychiatric injury £11,500 = £5,750

Total =  £53,596

This is a relevant decision for the purposes of the Industrial Tribunals (Interest Order) (Northern Ireland) 1990.  

Chairman:

Date and place of hearing:	30 November – 11 December 2009, Belfast.	

Date decision recorded in register and issued to parties: