Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1426/07

CLAIMANT: Gelu Timis

RESPONDENT: Aerospace Metal Finishers Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant's claims in respect of being discriminated on the grounds of his race are not well founded and are hereby dismissed.

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Mr Brewster

Mrs Kelly

Appearances:

The claimant was represented by Miss L Askin, Barrister-at-Law, instructed by Patrick Diamond & Co, Solicitors.

The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by John Boston & Co, Solicitors.

SOURCES OF EVIDENCE

1. The claimant gave evidence on his own behalf. The claimant's wife Monica Timis also gave evidence on behalf of the claimant.
2. Mr Nigel Hicklin, Mr Michael Drain and Mr Chris Carlton gave evidence on behalf of the respondent. Additionally a witness statement of Mr Daniel Codrea was considered in his absence as he was out of the jurisdiction, but little weight was attached thereto.
3. The tribunal had a bundle of agreed documents before it and several other documents were added to it during the course of proceedings.

THE CLAIM AND THE DEFENCE

4. The claimant contended that he had been discriminated against and treated less favourably on racial grounds.
5. The respondent contended that the treatment of the claimant was on fair and genuine grounds and not on the grounds of his race.

THE LEGAL ISSUES

6. The tribunal identified three potential grounds upon which the claimant claimed that he was discriminated against these are as follows:-

(1) that there was a differential in pay between the claimant and others who were of Northern Irish origin.

(2) The claimant was unfairly selected for redundancy.

(3) Two new jobs which became available were not offered to the claimant.

THE RELEVANT LAW

7. The relevant law is found at Article 3(1)(A), Article 6(2) and Article 52A of the Race Relations (Northern Ireland) Order 1997.
8. Additionally there were a number of cases referred to in the submissions of counsel for the respondent and for the claimant which were considered by the tribunal in reaching its decision.

FINDINGS OF FACT

9. (1) The claimant is a person of Romanian decent who is a Portuguese national. He did not allege that there was any climate in the respondent that was anti-Romanian or anti-Portuguese for example there was no overt harassment on racial grounds.

(2) The respondent is a company which finishes parts for the aerospace industry.

(3) The claimant commenced work with the respondent as a masker and he later started working as a sprayer. Initially he was not successful at spraying and was put back to masking for a short time, but later recommenced spraying.

(4) The claimant undertook a very substantial amount of the overtime work in the company (over 50% of the total) and he also worked shift hours. The claimant was prepared to take on any additional hours offered.

(5) The wife of the claimant who also worked for the respondent was of Portuguese nationality.

(6) The claimant worked with the following employees:

Chris Carlton – the shift lead hand;

David McKeown

Colin Browne

Mark Goldsworthy

Mr Michael Drain was the production manager and Mr Nigel Hicklin was managing director and major shareholder.

(7) On 7 March 2007 Mr Michael Drain told the claimant to see Mr Nigel Hicklin in his office. In the presence of Mr Drain, Mr Hicklin told the claimant that the respondent did not have enough work. He said he was laying the claimant off for three weeks and hoped the situation would improve and the claimant would be brought back. Mr Hicklin said if there was available work he would tell the claimant's wife.

(8) To the date of hearing, the claimant was still waiting to hear if there was work for him with the respondent.

(9) The claimant was paid £6 per hour for the first eight months of his employment. This rose to £6.18 in August 2005 and £8 in December 2005 (after his panel test for accreditation with Shorts Bombardier). Upon the claimant's request, he received £8.50 per hour. He had asked to be paid the same as the other painters. In some documentation before the tribunal the increase was described as being to £8.70, but we understand that this is accounted for by a 20p per hour shift allowance.

(10) Mr David McKeown and Mr Chris Carlton started working as painters at the rate of £8 per hour, but both had worked longer with the respondent than the claimant. Mr Chris Carlton was the shift lead hand and both he and Mr McKeown had considerable experience.

(11) There was a practice that when a painter successfully sprayed a panel to Short's standard, he would receive an increment of his pay. Pay depended on performance and ability.

(12) There was a practice of the pay of the painters being increased across the board by a 2.5% or 3% periodically.

(13) The claimant benefited from this type of increase in August 2005 and July 2006 by which time his pay had reached the rate of £8.70 per hour.

(14) The grounds for choosing the claimant for lay-off were that;

(1) the respondent did not wish to get rid of Mr McKeown and Mr Carlton as they had been there longer than the claimant and Mr Chris Carlton additionally was shift lead hand.

(2) Mr Mark Goldsworthy was "cheaper" than the claimant, and Mr Nigel Hicklin thought that he could be a very good sprayer.

(3) The respondent did not regard the claimant's work as being of good quality even though the claimant had passed his Shorts Bombardier and AMF benchmarks. Additionally the respondent had issues with the claimant over his attitude and conduct in work.

(15) Two relatively new employees – Mr Colin Browne and Mr Mark Goldsworthy were kept on when the claimant (who had longer service) was laid off.

(16) Mr Joe McBride, who is perceived to be a Scottish national origin, was also laid off at the same time as the claimant. Mr McBride was a general operative with the respondent.

(17) The employment practice and procedures of the respondent were poor and not documented properly.

(18) In May 2007, Daniel Codrea, a Romanian, was taken on again as a masker. He had previously worked for the respondent from May 2005 to January 2006 as a masker.

(19) In October 2007 there was a vacancy in the respondent company. Some of the responsibilities of this job were taken on by Mr Michael Drain and the rest were taken on by the wife of an employee in a sister company. Neither the position occupied by Daniel Codrea or the position taken on by Mrs Robinson, were offered to the claimant. The reason for the failure to offer this latter position was that Mr Hicklin did not consider the claimant to be qualified for the job and the pay on offer was significantly lower than that which the claimant had previously received. No evidence about what the job entailed was given to the tribunal.

(20) It was alleged on behalf of the claimant that the respondent had new contracts and thus many opportunities to call the claimant back to work. While it was admitted that there had been an increase in workload with some employees carrying out overtime as a consequence, this increase did not result in a need to employ an extra painter.

(21) We have noted that the statutory questionnaire was not served and the reason for this failure lies with the respondent's solicitors. In these circumstances, we did not consider it appropriate to draw any adverse inference against the respondent.

CONCLUSIONS

10. The alleged pay differential

The claimant complained that he was paid less than the four comparators – Mr Colin Browne, Mr Mark Goldsworthy, Mr Chris Carlton and Mr David McKeown.

Was there less favourable treatment?

Initially Mr Timis was taken on as a masker/process operator according to his contract of employment. He started at the rate of £6 per hour while Messrs McKeown and Carlton started on £8 per hour. As Messrs McKeown and Carlton were employed as sprayers and were experienced the tribunal does not consider that they are proper comparators for the claimant during his period as a masker, because of a material difference between the actual jobs that were being carried out. The obvious comparator for the claimant while he was a masker was Trevor Philpot who was employed as a masker and was paid £6 per hour the same rate as the claimant. The claimant was employed as a sprayer from December 2005 to June 2006. After completing his Short's Bombardier panel test, the claimant was moved to £8 per hour. This was the same rate at which both Messrs McKeown and Carlton began painting with the respondent. As all three were paid the same starting rate, the tribunal does not consider that there is any less favourable treatment involved in this stage of the employment of the claimant.

If we take the claimant's case at its height and we do compare the rates of Messrs McKeown and Carlton to that of the claimant between December 2005 and June 2006, then the tribunal considers that it is being invited to compare the situation of the claimant who was much less experienced at this point to that of Messrs McKeown and Carlton who were experienced painters. Mr McKeown achieved an increase in salary by having completed 13 months at a starting rate before being awarded a 50p per hour rise and he had received two annual inflationary increases. Mr Timis has received the same two percentage increases during his employment but had not obtained the 50p rise. Mr Carlton had received two inflationary increases, a 50p award and an increase for becoming charge hand. As a sprayer from July 2006 to March 2007, after seven months the claimant received a 50p increase and this was awarded as recognition of his increased experience. It is note worthy that Mr McKeown received the 50p increase after 14 months – twice the length of time that it took for the claimant to achieve this increase. Therefore we conclude that the claimant was more favourably treated than Mr McKeown. Mr Carlton achieved the 50p increase after 18 months and a further 25p increase after two years. While there was a difference in recollection between Mr Hicklin and Mr Carlton as to the reason for the two awards of increased hourly pay, the fact remains that Mr Carlton received the experienced bonus after a much longer period than the claimant ie either 18 or 24 months as opposed to the seven months it took the claimant to achieve the 50p increase. Therefore the tribunal concludes the claimant was treated more favourably than the comparators.

9. Annual Inflationary Increases

These occurred on August 2004, August 2005 and July 2006 and applied equally to all employees. The claimant received exactly the same increases as all other comparators, and the tribunal does not consider that any question of less favourable treatment arises.

12. The selection of the claimant for lay-off

There is a contractual right to lay-off in the statement of the main terms and conditions of the claimant. Mr Hicklin's evidence was largely unchallenged that despite a reasonable workload pertaining in 2006 which had prompted the need for a new sprayer, there was a dip in 2007. Mrs Monica Timis, the wife of the claimant gave evidence that she thought a lucrative contract with Bombardier was imminent. Mr Hicklin contradicted this evidence saying that to the date of the tribunal no further deal had materialised and there was no increased need for sprayers. This evidence was not controverted.

10. The claimant alleged that the decision to select him was less favourable treatment on racial grounds than the comparators – Mr David McKeown, Mr Chris Carlton, Mr Trevor Philpot, Mr Mark Goldsworthy and Mr Colin Browne. The tribunal does not consider that Trevor Philpot is an appropriate comparator to the claimant at this stage of his employment as they were involved in different jobs. Furthermore, Mr Chris Carlton was the charge hand and had added responsibilities. For this reason the tribunal considers that there was a material difference between the situation of the claimant and that of Mr Carlton and Mr Philpot, making Mr Carlton and Mr Philpot not suitable as comparators.
11. It was agreed by the respondent that Mr Colin Browne, Mr David McKeown and Mr Mark Goldsworthy were proper comparators for the purpose of the selection exercise, and these were considered by the tribunal.
12. The decision as to who was laid off was made by Mr Nigel Hicklin in consultation with Mr Drain, who was at that time working a full seven days a week and involved in day to day supervision and management of the respondent company. He had regular contact with the sprayers and maskers during the dayshift and inspected their work.

It was the considered opinion of Mr Drain that while the claimant was a competent sprayer who reached an acceptable standard after some difficulty in re-training, he was the weakest of the sprayers employed by the respondent. More of the claimant's painting was rejected and re-worked than any of the others.

Mr Drain also considered that the claimant's attitude to work was not good, with extended tea-breaks and frequent long mobile telephone calls during work. The claimant was granted favours, and there was no evidence that these were granted to other employees.

13. Why did the claimant receive so much overtime if he was considered to be the worst of the sprayers?

Surely this would not make financial sense. For most of the claimant's employment there were only three sprayers Messrs McKeown, Carlton and the claimant. It was not controverted that Mr McKeown would not do any overtime. Overtime was carried out by Mr Timis doing as much overtime as he could get, and Mr Carlton doing the balance of the overtime. Once Messrs Browne and Goldsworthy were available and willing to do overtime, the claimant's share reduced significantly.

14. Why were Mr Colin Browne and Mr Mark Goldsworthy, who were recently recruited employees kept when the claimant, who had more service was laid off?

Mr Colin Browne was an experienced sprayer and Mr Drain assessed Mr Goldsworthy as being potentially a very good sprayer. Mr Goldsworthy had an NVQ in spraying. While he may have painted a number of panels which were not good enough for Shorts Bombardier before he was passed, this was also the case for the claimant.

Mr McKeown was the most experienced sprayer and rated by Mr Drain to be the best sprayer.

Another alleged factor in the decision mentioned by Mr Hicklin was flexibility. The tribunal does not accept that doing overtime was the same as flexibility. The claimant was regarded as not having a range of skills and this was the reason why he was not considered to be flexible.

15. In connection with the method for selection of the claimant for lay-off, the tribunal has noted that contrary to accepted industrial practice, there was no audit trail to objectively explain the decision for selection of the claimant. There were no formal rankings, everything was done informally by way of an impression reached by Mr Drain and Mr Hicklin.
16. Another factor used by Mr Hicklin in reaching his decision was the disciplinary record of the claimant. The claimant was the only sprayer with a disciplinary record.
17. While the claimant had received a final written warning, at the time of selection, this had elapsed. The tribunal considers that it is not good industrial practice to consider a warning which has elapsed as a factor in reaching a selection for lay-off. The tribunal was not able to discover any contractual power which allowed the respondent to do this.

The tribunal has considered the "informal" methods of selection used by Mr Hicklin and Mr Drain, and while the tribunal deplores the lack of proper procedure which is very evident in the manner in which Mr Hicklin and Mr Drain went about the selection, the tribunal is not able to consider drawing any adverse inference that this lack of procedure and objective accountability, was on racial grounds.

18. The failure to select for two jobs

(1) Mr Daniel Codrea, a Romanian who had previously worked with the company was given a masking post at the rate of £6.50 per hour. Mr Codrea had the same Romanian national origin and ethnicity as the claimant. Therefore, we do not consider that there is any less favourable treatment on the grounds of Romanian national origin. The tribunal also considered that there was no evidence laid on behalf of the claimant which suggested that his Portuguese nationality was a factor. Given that Mrs Timis, a Portuguese national, remains employed by the respondent, we conclude that in the failure to select the claimant for the masking post the actions of the respondent were not motivated by any consideration of race.

(2) The failure to select the claimant for the post in October 2007

This was a post to which a female employee was appointed. It was contended on behalf of the respondent that this appointment was outside the scope of these proceedings and should not be considered. There was very little information before the tribunal as to what the job eventually constituted and as to the rate of pay. It was suggested in evidence that Mr Hicklin did not think the claimant suitable for the job. The tribunal does not have any evidence before it to reach a conclusion that the failure to select was on racial grounds. By virtue of the case of Anya v University of Oxford [2001] IRLR 377, the tribunal has considered the climate in the workplace before the lay-off, and events occurring after the lay-off. The tribunal has concluded that there was no evidence to support any inference that the failure to select was on grounds of race.

THE BURDEN OF PROOF

19. The first step in considering a case of this nature is for the claimant to lay evidence that suggests on a prima facia level that the less favourable treatment was on racial grounds as required by Article 52A of the 1997 Order. Whilst the tribunal saw much in the actions of the respondent that was worthy of criticism, the tribunal was not able infer that the respondent's behaviour was motivated by considerations of race. As the case of Madarassy v Nomura International PLC [2007] EWCA Civ 33, provides, establishing the facts of a difference in status and a difference in treatment are not sufficient to shift the burden of proof to the respondent. This indicates only a possibility of discrimination. Having considered the facts as found and the background circumstances, which were such that no hint of racial discrimination be gleaned from either the time before the lay-off or after the lay-off, we consider that there are no facts from which we could draw any inference that the behaviour of the respondent was motivated by considerations of race. Thus the burden of proof does not pass to the respondent, and the claim for discrimination on racial grounds is dismissed.

Chairman:

Date and place of hearing: 11-15 February 2008, 18 March 2008 and

23-24 April 2008, Belfast

Date decision recorded in register and issued to parties: