Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 183/04FET;

786/04

CLAIMANT: Brian Morgan

RESPONDENT: Alan Carmichael

DECISION

The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and suffered discrimination as a result of his religion or political opinion. He was also entitled to unpaid holiday pay:-

Constitution of Tribunal:

Chairman: Mr Cross

Panel Members: Ms Callaghan

Mr Collins

Appearances:

The claimant was represented by Mr Shields Barrister-at-Law, instructed by Gordon Bell & Son Solicitors

The respondent was not represented and did not appear at the Tribunal. He had been debarred from responding to the claim by order of the tribunal dated 27 April 2007.

1. The Issues

The claimant who was employed by the respondent as a lorry driver, was dismissed without notice. The surrounding circumstances suggested that he had been discriminated against as a Roman Catholic, in a work place at that time entirely Protestant. The claimant was the only witness at the hearing.

2. Findings of fact

1. .1 The claimant who was a Roman Catholic was born on 1 October 1971 and commenced employment as a long distance lorry driver with the respondent on 12 June 2002. The claimant had been working for another haulage business and was approached by the respondent to leave and work for him.
2. .2 At first everything proceeded well, as there were only two drivers and the respondent who did the office work and drove on some occasions if things were busy. However later in 2003 the business grew and larger premises were found in Ballybogey near Ballymoney. At the same time the workforce grew and there were about ten employees, including seven drivers, as well as the respondent. The claimant lived in Kilcoo, County Down.
3. .3 During the summer of 2003 the claimant noticed that things were being made difficult for him at his work. On a number of occasions he would be booked on a daytime ferry to Great Britain, which necessitated an early start, made even worse by the respondent's insistence that the claimant collected his lorry from Ballybogey in the morning and did not take it home with him the night before. The reason always given was that the lorry was needed by the respondent during the evening before the claimant's trip, for some local job in the Ballymoney area. When the next morning the claimant looked at the milometer there was no extra mileage shown, over and above that that had been shown the night before. In the meantime the claimant had had to drive home to Kilcoo and then return very early the next morning, a round trip of 160 miles or so. The other drivers who worked for the respondent were not subjected to this treatment. They were invariably booked on overnight ferries and allowed to take their vehicles home if that was more convenient for them the next day.
4. .4 On other occasions the claimant picked up a load from areas where it would be more convenient to ship the lorry from Dublin or Warrenpoint, than drive all the way back to the North to get a ferry from Larne or Belfast. However the respondent insisted on this route as he said it was cheaper. Again the other drivers who were employed by the respondent were not treated in this way. The additional time spent by the claimant on these journeys, both in driving and sitting on day time crossings, had a serious adverse effect on the time that the claimant could spend with his family.
5. .5 During this period of the summer and autumn 2003, the claimant was the only Roman Catholic in the respondent's workforce. When the claimant complained to the respondent about these serious concerns of unfair treatment and futile restrictions on ferries that he was allowed to use, he was answered with the argument that the day time crossings were cheaper and that the ferries chosen were the best value. However the other drivers, who were all Protestant, received different and more considerate treatment. The claimant spoke to the yard manager and was told, and the tribunal accept that the manager said, words to the effect that the respondent was trying to sicken the claimant so that he would resign from his employment, but that the claimant wouldn't leave.
6. .6 Also during this period the claimant noticed that his cab was being interfered with when left overnight at the yard. He had a group of flags on the windscreen. These were flags of various European nations. Often when he arrived to take his lorry out he found that the Irish flag had been removed and he would find it in some strange place, such as the fridge, or in the cab sleeping area. It had been hidden in a foolish way so that he would find it quickly and yet know that it had been removed.
7. .7 On the 12 January 2004, after the Christmas holiday, the claimant, who had not heard from the respondent as to when to expect his next load, telephoned the respondent and asked when he might expect his next trip. The respondent said that he was not needed any more as the respondent had started a new driver. When the claimant tried to find out what was wrong, he was told, "you will not do the work that I want you to do". The claimant could get no further explanation despite asking. The claimant had a clean driving licence and had never failed to deliver a load or caused any concerns to the respondent, that the claimant knew about. He had never been disciplined in his employment with the respondent. He had no knowledge, and still does not know what the respondent meant by that remark.

3. The Law

8. .1 Under the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996 the employer must show that the reason for the dismissal is one of the statutory reasons which render a dismissal not unfair. In this case no reason has been shown for the dismissal and the tribunal, in the absence of any explanation from the respondent, cannot see any reason as to why the claimant was dismissed. In such circumstances the tribunal must find that the dismissal is unfair as the respondent has failed to discharge the onus of proof placed upon him.
9. .2 In order to succeed in his claim for religious discrimination, under The Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order"), the claimant must show that his employer has treated him less favourably than the employer treated other employees holding different religious and political beliefs and opinions. Article 38A of the Order states that if the claimant proves facts, from which a tribunal could draw a conclusion, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination, then unless the respondent can prove that he did not commit the act, the tribunal shall uphold the complaint of discrimination.

4. Decision

10. 1 The tribunal's decision on all aspects of this case were unanimous.
11. .2 The tribunal hold that the claimant was unfairly dismissed by the respondent. He was simply told that he no longer had a job. There was no attempt made by the respondent to give any notice to the claimant or to allow him to have a reason that he could understand, as to why he was being summarily dismissed.
12. .3 The tribunal hold that the reason for this dismissal was the fact that the claimant was a Roman Catholic in a work place that was entirely Protestant. The incidents with the flags were merely a way of telling the claimant that he was not welcome in that business. There is no evidence that the incidents with the flags were carried out by the respondent and the tribunal makes no finding with regard to those incidents as they were not drawn to the attention of the respondent. However the unfair allotment of duties amongst the drivers was the responsibility of the respondent. He was told by the claimant, that the difficulties and disruption of the claimant's home life were problems that stemmed from the requirement to bring the lorry back to the yard at night and not keep it at the claimant's home. Furthermore the insistence on day time crossings was also a problem. The tribunal find as a fact that the other drivers were not subject to these instructions but had a much freer hand with the vehicles at home overnight and had more evening crossings. These other drivers were Protestants. These incidents are facts, that in the absence of an adequate explanation, allow the tribunal to uphold the claimants assertion of discrimination. The tribunal hold that this treatment of the claimant was carried out to try and make him resign. The reason for this attempt to push him into resignation being because he was a Roman Catholic.
13. .4 The tribunal hold that the ultimate dismissal of the claimant was because he was a Roman Catholic, in a business which at the time of the claimant's dismissal only employed Protestants.
14. .5 The tribunal hold that the claimant was at the termination of his employment owed six weeks holiday pay and certain expenses amounting to £109.00 being toll bridge fees and other outlays that he had accrued. The claimant did not at any stage after his dismissal receive Job Seekers' Allowance.
15. .6 The tribunal award compensation for the unfair dismissal claim as set out in the Schedule hereto. After his dismissal the claimant had difficulty in getting new employment, although the tribunal hold that he made reasonable efforts to get work. On 24 May 2004 he obtained a driving job with a business called McClintons. He subsequently gave up this job for his own reasons on 25 May 2005. The tribunal thus award the claimant his net wage, from when he was dismissed, to the 24 May 2004. From 24 May 2004 to 25 May 2005, the claimant is awarded the difference between what he would have earned from the respondent and what he did earn with McClintons. From 25 May 2005, to the anniversary of two years from his dismissal (12 January 2006), the tribunal award the compensation at the same differential as if the claimant was still in the employ of McClintons.
16. .7 Compensation having been awarded for the unfair dismissal of the claimant, the only compensation that falls to be paid to him under the 1998 Order is under the head of injury to feelings. The tribunal was guided by the decision in the case of Vento v Chief Constable of West Yorkshire Police No2 [2003] IRLR 102 CA. The guidance, given in the judgment of Lord Justice Mummery, suggests that the tribunal should consider damages under this head in three separate bands of seriousness. The highest band for the most serious type of case would be in the region of £15,000 to £25,000. This tribunal does not consider that this case falls into that band. The lowest band in the guidance is for less serious cases, or cases of an isolated nature. This band would attract damages of between £500 and £5,000. Again this tribunal does not consider that this case falls within this band. The middle band suggested by Mummery LJ is for serious cases, that do not merit the most serious band of compensation. These would attract damages of between £5,000 and £15,000.
17. .8 The tribunal, in putting the injury to feelings damages into this middle band, was influenced by the straight forward approach that the claimant demonstrated in his evidence. He made no attempt to exaggerate the effect on him of this appalling treatment, which was completely unmerited and unexpected. The claimant had been approached by the respondent and as a result had left another job to come and work for him. For no reason, that the claimant could gauge, the respondent took against him. He was the only Roman Catholic in a totally Protestant firm. Instead of receiving support from the respondent, who had recruited him, when the respondent was on the way up in developing his business, the respondent took away his livelihood. The claimant told the tribunal that he was disgusted and left with a feeling of having been let down.
18. .9 The tribunal is aware that it must not treat these damages as a way to penalise the respondent or to punish him for his conduct. The award is to compensate the claimant for the serious damage to his feelings in loosing his good job as a result of discrimination because of his religion, when he had performed the job to the best of his ability and without complaint from his employer. In these circumstances the claimant is awarded a sum of £10,000.00 compensation for injury to feelings.
19. .10 Under the Fair Employment Tribunal (Remedies) Order (Northern Ireland) 1995, as amended by the Fair Employment Tribunal (Remedies) (Amendment) Order (Northern Ireland) 2007, the tribunal must consider whether or not to make an award of interest on any sums awarded to the claimant. In this case having considered this matter, the tribunal has decided not to award interest on the sums awarded. The tribunal is of the view that the respondent is not a large employer and the sums payable are already large. Although the conduct of the respondent was grave the tribunal hold that the compensation is sufficient, without the added burden of interest.
SCHEDULE

The claimant's gross pay per week from the respondent, before overtime, was £482.74. He was usually required to do two weeks overtime each month, so that his usual net pay of £420.00 would become about £600.00 every other week. The tribunal has taken an average over each month and then converted it to a weekly net sum of £476.00.

The Unfair Dismissal Compensation

Basic award, completed years of service is one year therefore the multiplier is one. The basic award is limited to the Maximum weeks pay

at the date of dismissal £260.00

Compensatory award: Loss of earnings

12January 2004 to 24 May 2004 (18 weeks at £476.00) £8,568.00

24 May 2004 to25 May 2005 (52 weeks at £246.00, the difference

Between £476.00 and earnings of £230.00 at McClintons) £12,792.00

On 25 May 2005 the claimant left McClintons and took a lesser paid

Job thus from 25 May 2005 to 12 January 2006 the compensation is

The same weekly sum of £246.00 for 34 weeks £8,364.00

Total for unfair dismissal £29,984.00

Other compensation

Loss of holiday pay (6 weeks at £420.00 per week) £2,520.00

Unpaid expenses £109.00

Compensation for injury to feelings £10,000.00

Grand Total £42,613.00

This is a relevant decision for the purpose of the Fair Employment Tribunal (Interest) Order (NI) 1995.

Chairman:

Date and place of hearing: 4 July 2007, Belfast

Date decision recorded in register and issued to parties: