Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/738_08IT.html
Cite as: [2009] NIIT 738_08IT, [2009] NIIT 738_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF 738/08 & 858/08

CLAIMANT: Egle Valiukiene

RESPONDENTS: 1. Walsh’s Hotel

2. Michael McLaughlin

3. Adrian Bradley

4. Kieran Bradley

DECISION

The decision of the tribunal is as follows:-

1. With the consent of the parties, the Tribunal orders the title of the first named respondent shall be amended to read Kieran Bradley, Adrian Bradley and Michael McLaughlin trading as Walsh’s Hotel.

2. With the consent of the parties, the Tribunal orders that the title of the fourth-named defendant is to be amended to read Kieran Bradley trading as Harley’s American Steak House.

3. The first-named respondent conceded that the claimant was owed amounts in respect of holiday pay of £126.37 due to her by the first- named respondent and the sum of £57.96 due to her by the first named respondent. The first-named respondent is therefore ordered to pay the claimant the sum of £184.33 in respect of these amounts.

4. The respondent conceded that the claimant was entitled to notice pay of £128.20 and payment of £38.64 due to her for time worked at Harley’s American Steak House. The tribunal therefore orders the fourth-named respondent to pay to the claimant the sum of £166.84 in respect of these amounts.

5. The tribunal finds that the fourth named respondent failed to provide the claimant with itemised pay statements as required by Article 40 of the Employment Rights (Northern Ireland) Order 1996. However, it was accepted by the claimant that there was no evidence that the respondent had not made the appropriate deductions in respect of tax and national insurance from her wages and therefore the Tribunal makes no award in relation to this matter.

6. In relation to the claimant’s claim of unlawful race discrimination by the fourth named respondent, the tribunal’s finding is that the claimant has failed to satisfy the tribunal that there are facts from which the tribunal could find that there has been unlawful discrimination contrary to Article 52A of the Race Relations (Northern Ireland) Order 1997 as amended and the claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Ms Gail Ferguson

Mr Michael Grant

Appearances:

The claimant was represented by her husband, Mr Valiukas

The respondent was represented by Mr M Evoy BL, instructed by Harrrisons, Solicitors

The Interpreter was Ms Asta Kochiene.

DECISION

1. The Issues

1.1 As a preliminary issue, the Tribunal had to consider whether the respondents had been correctly identified. It was noted that the second, third and fourth named respondents were all directors of a company called Glencarn Property Limited but the respondents’ representative indicated that the correct title of the first respondent should be Adrian Bradley, Kieran Bradley and Michael McLaughlin trading as Walsh’s Hotel. It was also confirmed that the fourth respondent’s title should be amended to read Kieran Bradley trading as Harley’s American Steak House and the tribunal orders that the titles of the first and fourth named respondents shall be amended accordingly.

1.2 There were several issues before the tribunal at the outset of the case. These related to claims of unpaid holiday pay, notice pay, non-payment of wages an authorised deduction from wages, an alleged breach of the right to receive an itemised pay statement and a claim of unlawful race discrimination. After some hours of hearing, it was conceded by the respondents that the claimant was entitled to holiday pay from the first named respondent of £126.37 which had not been paid to her, together with unauthorised deductions in the sum of £57.96. It was also conceded by the respondent that the claimant was entitled to notice pay of £128.20 net and £38.64 in respect of unpaid hours while working for the fourth named respondent. It was also conceded that the claimant had not received itemised pay statements during some of the weeks when she had worked for the fourth named respondent, but there was no evidence to indicate that the appropriate deductions for tax and national insurance had not been made.

1.3 Accordingly the outstanding issue for the tribunal to consider was the claim of unlawful discrimination on grounds of race. The question for us to consider was whether the failure of the respondent to provide the claimant with itemised pay statements while working for the fourth respondent at Harley’s American Steak House and the respondent’s failure to provide her with additional help on her last day at work, on 26April 2008 constituted unlawful race discrimination within the meaning of Article 3 of the Race Relations (Northern Ireland) Order 1997.

2. The Facts

2.1 The tribunal heard evidence from the claimant, from her colleague Ms. Kraracieyute, Mr Anton Trutor, the respondents’ General Manager, and also from Ms Olga Linkevic, a translator working in the Magherafelt area. The tribunal was also referred to a number of documents and heard submissions from representatives for both parties. On the basis of the evidence, we make the following findings of relevant fact in relation to the race discrimination issues.

2.2 The claimant commenced work for the first named respondent at Walsh’s Hotel, Maghera on 20 May 2007. She worked as a glass collector and her duties involved collecting glasses from the bar area and washing them. While she worked at Walsh’s Hotel, she had no difficulty in relation to the payment of her wages or receipt of pay slips which she received on a regular basis. However, she believed that she had been underpaid on 18 October 2007 and indeed this was conceded by the respondent.

2.3 Difficulties started when the claimant started to work at Harley’s American Steak House which was another business run by Glencarn Property Limited, a company of which all of the respondents are Directors. It was conceded by the respondents that the two businesses were associated employers, although actually run by different people.

2.4 The claimant was interested in working additional hours and she was contacted by telephone by a colleague named Akvile Kraracieyute, who was aware that she was looking for additional hours. Having attended an interview with Mr Mark Bevan, the Manager of Harley’s American Steak House, and the claimant started work there on 15 February 2008. She was employed as a dish washer, her job was to stack the dishes into the dish washer and clear them. She was working approximately 37 ½ hours per week and initially was pleased with the job.

2.5 However she became concerned that she was not receiving pay slips for her work while at Harley’s American Steak House. While working at Harley’s Steak House the claimant received pay slips only for the week commencing 10 April 2008 and the week commencing 17 April 2008. The respondents’ pay records for the claimant show that her pay from 15 February 2008 until the end of the tax year (week commencing 3 April 2008) was still shown on the pay records for Walsh’s Hotel. The claimant agreed that she had received her pay during this period, except for the week of 3 April 2008 to which reference is made below.

2.6 The claimant was perturbed that she had not received her pay slips. As she did not speak English, she asked the other Lithuanian person who worked with her, Akvile Kraracieyute to come with her and to enquire about her pay slips. Initially she spoke to Mark Bevan the Manager of Harley’s Steak House but he told her that she had to ask Anton Trutor, the General Manager, for them. The claimant’s evidence was that initially she had asked Akvile to go with her to Mr Trutor, and Mr Trutor’s response was, “Tomorrow.” But he did not give her the pay slips and her impression was that he did not care. When she did not receive pay slips for 4 weeks, she asked Akvile to phone Mr Trutor from her home. Mr Trutor said that she should enquire at Harley’s Steak House and there the claimant spoke to Declan, one of her colleagues. She had learned to ask for her pay slip in English, but was then told although he had a pile of pay slips, he did not have hers. She said that on this occasion Anton Trutor had a conversation with Declan and she was told to enquire at Walsh’s Hotel. However the pay slip was not there. The claimant also enquired with another member of staff named Aine, she seemed to be uncomfortable when the claimant asked for the pay slips, and in turn the claimant felt uncomfortable that she had to ask for them.

2.7 On another occasion the claimant’s wages were not paid to her bank by BACS transfer on the day that they were due. From the wages records which the respondent provided, this appears to have been the week of 3 April 2008, and this was not disputed by the respondent. The claimant had to go and ask for her wages to be provided and these were paid to her immediately. The respondent pointed out that they did not ask the claimant to produce a bank statement to show that her wages had not been received.

2.8 The claimant was upset and distressed about these matters. She gave evidence that “everyone else” working for the respondents received their pay slips and wages on time. She agreed that she had received her pay slips and her wages promptly while working for Walsh’s Hotel. The respondent appears to have adopted a procedure where they maintained the claimant’s pay records under Walsh’s Hotel for some weeks after she transferred to work at Harley’s Steak House. Their explanation for this was that on occasion employees who transferred between one location and another asked to move back and this saved on administration from their point of view.

2.9 The evidence given by the respondents was that in the seven businesses run by Glencarn Property Limited, there where approximately 350 staff, including permanent and temporary staff. Of the permanent staff, 63% were non nationals. The claimant agreed that both in Walsh’s Hotel, where she started work, and at Harley’s there were staff from other countries. At Harley’s American Steakhouse, there were in total 3 dishwashers: the claimant, a Romanian and a Czech. The two chefs were from Northern Ireland and Akvile Kraracieyute, who made desserts and starters, was also from Lithuania. The claimant was not familiar with the nationalities of all the waitresses and barmen who worked at Harley’s American Steakhouse, but believed they were mostly local people from Northern Ireland. She was however of the view that everyone else received their pay slips and their pay on time and this was confirmed by Ms Kraracieyute’s evidence to the tribunal.

2.10 On Sunday 26 April 2008 the claimant came to work as a dishwasher. She expected to have a colleague working with her as Sundays were normally busy. On that particular day the claimant was left alone to deal with the dishwashing. She was aware that a Romanian colleague named Veronica had not come to work. The claimant’s evidence was that she had not been given any explanation as to why she was left to work on her own. The evidence of Ms Kraracieyute was that Veronica had received a message to say that her mother had died in Romania and she had to leave to go back there. Ms Kraracieyute’s evidence on this point was contradictory. In her evidence in chief, she said that the claimant would have been aware of this at about 12 o’clock but that Ms Kraracieyute herself had not told the claimant. Later on however, Ms Kraracieyute said that she had actually told the claimant why Veronica was not there.

2.11 At around 2 o’clock the claimant was so frustrated at the amount of work she had to do, that she asked Ms Kraracieyute to speak to the chef on her behalf and to ask why she couldn’t have some help. The claimant thought that other people, who didn’t have so much to do, should be able to help her. Ms Kraracieyute translated for the claimant. Her evidence to the tribunal was that the claimant had been upset and had been complaining about the lack of help. The chef told her that if she didn’t like it, she could go home, and the claimant left. Ms Kraracieyute was able to say to the tribunal that about half an hour later another woman came from Walsh’s hotel to help with the dishwashing. No evidence was given however that this had been explained to the claimant or that she had been told that help was on its way.

2.12 The claimant phoned her husband to come and collect her. The following day, through an interpreter, she contacted Mark Bevan, her manager, about her job and he said he thought the claimant was no longer working there. The claimant believed that she had been treated in this way because of her lack of English and because of her racial background.

3. The Law

3.1 The relevant law is to be found in Article 3 of the Race Discrimination (Northern Ireland) Order 1997 and in Article 52A of the Race Relations (Northern Ireland) Order 1997 as amended by Article 40 of the Race Relations Order (Amendment) Regulations (Northern Ireland) 2003. The relevant provisions read as follows:-

“3 - (1) – A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

(a) on racial grounds he treats that other less favourably then he treats or would treat any other persons;

(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of person not of that racial group who can comply with it; and

which he cannot show to be justifiable irrespective of the colour, race, nationally or ethnic or national origins unto the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it.”

The law in relation to the burden of proof in race discrimination cases is set out at Article 52A(2) of the Race Relations (Northern Ireland) Order (as amended) and provides as follows:-

“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of inadequate explanation that the respondent –

(a) has committed such an act or discrimination or harassment against the complainant…………… the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”

The tribunal has also been conscious of the case law in relation to the burden of proof in discrimination cases and in particular the decision in IGEN v Wong [2005] IRLR 258 as clarified in subsequent case law, such as Madarassy v Nomura International plc [2007] IRLR 246 and Laing v Manchester City Council [2006] IRLR 748 The caselaw makes it clear that the tribunal must look not only at the allegations made by the claimant in her evidence but also at any evidence adduced by the respondent which tends to support the claimant’s case. They must look at all the evidence adduced in the case to consider whether, in the absence of adequate explanation from the respondent, that the respondent has committed an act of unlawful discrimination against the complainant. However the case law also makes it clear that it is for the claimant to prove facts from which the tribunal could make a finding of discrimination in the first instance.

4. Decision

4.1 In this case the claimant bases her claim of unlawful race discrimination on two main issues. First she said that the failure to provide her with an itemised pay statement was on the grounds of her race because everyone else working for the fourth respondent received their payslips. Secondly, she says that the failure of the respondent to provide her with help on 26 April 2008 was also on grounds of her race as she does not believe this would have happened to anyone else.

4.2 We have considered carefully the evidence adduced by the claimant. She is clear that when she started working for the first named respondent she had no difficulty in receiving itemised pay statements. She seems to have been content in her work, received her pay and her pay statements on time and the only reason for her moving to work for the fourth named respondent was that she wanted to work more hours and was content to work those additional hours. The only issue which arose early in her employment at the fourth named respondent’s Steak House was that her itemised pay statements were not provided. The respondent provided no explanation in relation to this. Mr Trutor’s evidence to the tribunal was that if they had made a mistake, then he was sorry for that. Perhaps surprisingly, he did not give any evidence of having investigated this in any way or having checked out exactly what had happened in relation to the pay statements. The tribunal found his demeanour arrogant and he was dismissive of the claimant’s concerns. His only comment was that the claimant knew the procedure; that she could have gone to the office and asked for copies of the pay statements. This ignores the obligation of the employer to provide an employee with an itemised pay statement under the Employment Rights (Northern Ireland) Order 1996.

4.3 Both Mr Trutor and Ms Kraracieyute gave evidence of the opportunities afforded to foreign workers by the first and fourth respondents, but this is not really relevant to the issue of the treatment afforded to the claimant.

4.4 The tribunal recognises that it is the claimant’s responsibility to prove facts from which the tribunal could conclude there has been unlawful discrimination. The facts in this case are that the claimant worked for the first named respondent for some ten months and received her pay statements on time with the appropriate deductions made while working there. When she moved to work at Harley’s American Steak House, the pay records show that the appropriate deductions continued to be made for tax and national insurance. The problem was that the claimant did not receive her pay slips. She pointed out that everyone else received their pay slips, including other foreign nationals who worked for the fourth named respondent. Given that other foreign employees received their pay slips and that the claimant had received her own pay slips while at Walsh’s Hotel, this tends to indicate that the claimant’s treatment was not on grounds of race. It also tends to support the respondents’ explanation that they made an administrative mistake, rather than that there was discrimination on grounds of race against the claimant. The tribunal is satisfied that the claimant has failed to prove facts from which the tribunal could make a finding of discrimination in relation to the issue of the pay statements.

4.5 The second complaint raised by the claimant was that she was discriminated on grounds of race in not being provided with adequate help on 26 April 2008. The situation here appears to have been brought about by the unexpected absence of another dishwasher named Veronica who had to go home to Romania at short notice because of the unfortunate death of her mother. It was put to the claimant that issues sometimes arose in relation to staff shortages or similar matters and she agreed that that was the case. The claimant’s unhappiness appears to have arisen because she was not given a proper explanation as to why she was not receiving help and had to work under pressure. Ms Kraracieyute gave conflicting evidence on this point. In her evidence in chief, she said that although she had been aware of why Veronica had not come to work, that she had to go home to Romania because of her mother’s death, she had not told the claimant of this. Later on, however, she said that she had told the claimant that Veronica had had to go to Romania. On balance we are satisfied that the claimant did not know the reason why the restaurant was short staffed on that day and this lack of communication is certainly not satisfactory. However, it is for the claimant to prove facts from which the tribunal could conclude that there has been unlawful discrimination on grounds of her race. The tribunal is not satisfied that the claimant has proven such facts. The restaurant was busy on that day, which she concedes and they were short staffed. It was unfortunate that the claimant was put under additional pressure as regards her work, but there is nothing to show that the claimant was being discriminated against on grounds of her race.

4.6 In conclusion the tribunal is not satisfied that the claimant has not proven facts from which we could infer that unlawful discrimination on grounds of race has occurred. Accordingly the claimant’s claim of Race Discrimination is dismissed.

4.7 In relation to the claims in relation to holiday pay and unlawful deductions from wages against the first named respondent, these claims have been conceded by the respondents and accordingly we order the first named respondent to pay to the claimant the sum of £184.33. The respondents have also conceded that the claimant was entitled to notice pay and pay in respect of hours worked while employed at the fourth named respondent and accordingly we order the fourth named respondent to pay to the claimant the sum of £166.84 in respect of these amounts.

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

Chairman:

Date and place of hearing: 26, 27 and 28 January 2009. Belfast

Date Decision entered in the register and issued to the parties: