Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 00073/08

00077/08

CLAIMANTS: Jacek Bialczyk

Joanna Gwiazda

RESPONDENTS: Imelda McGrady and Monica Byrne T/A Provincial Care Service Agency

CERTIFICATE OF CORRECTION
1. In the decision in these matters recorded in the register and issued to the parties on 16 March 2009, the computation of compensation did not include the uplift for the purposes of Article 17 of the Employment (Northern Ireland) Order 2003, provided for in paragraph 40 of the decision. This omission being inadvertent, a Certificate of Correction is hereby issued.
2. Accordingly, the summary of compensation should be amended and read as follows:

Summary of Compensation

Economic Loss First Claimant

Loss of earnings from 4 February 2005 – 25 May 2007

7106.88 hours x 75p = £5,330.16

Loss of earnings from 28 May 2007 – 27 July 2007

537.25 hours x 50p = £268.63

Interest on Loss of Earnings

5498.79 x 8% x 691 days = £832.80

Injury to Feelings – First Claimant = £5,800.00

Interest on Injury to Feelings

£5,800 x 8% x 1447 = £1,839.47

365

(28 February 2005 – 14 January 2009 – the month in which the differential first appeared for the First Claimant).

Sub-total = £14,071.06

Article 17 uplift of 10% = £1,407.10

Total Compensation = £15,478.16

Economic Loss – Second Claimant

Loss of earnings from 15 December 2005 to 31 March 2007

1,906.50 hours x 50p = £953.25

337.25 hours x 50p = £168.63

Loss of earnings from 1 April 2007 to 25 May 2007

108.25 hours x 70p = £75.78

Loss of earnings from 26 May 2007 to 4 January 2008

647.75 x 20p = £129.55

Interest on Loss of Earnings

1327.21 x 8% x 534 days = £155.33

Injury to Feelings – Second Claimant = £5,800.00

Interest on Injury to Feelings – Second Claimant

Interest on Injury to Feelings

£5,800 x 8% x 1184 days = £1,505.14

365

Sub-total = £8,787.68

Article 17 uplift of 10% = £878.77

Total Compensation = £9,666.45

Chairman:

Date:

THE INDUSTRIAL TRIBUNALS

CASE REFS: 73/08; 77/08

CLAIMANTS: Jacek Bialczyk

Joanna Gwiazda

RESPONDENTS: Imelda McGrady and Monica Byrne

t/a Provincial Care Service Agency

DECISION

It is the unanimous decision of the tribunal that the claimants were discriminated against on the grounds of their race and/or on the grounds of their national origin and the respondents are ordered to pay the first claimant the sum of £14,086.26 and to the second claimant the sum of £8787.68 as compensation.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr D Hampton

Mr M Grant

Appearances:

Mrs Caroline Maguire of the Law Centre (NI) appeared on behalf of both claimants.

Ian Randall of Peninsula Business Services Ltd represented the respondents.

Sources of evidence

The claimants gave evidence on their own behalf. Julie-Ann Donaghy also gave evidence for them. The tribunal read the witness statement of Jerzy Gwiazda, who was not able to proceed with his own case at this time.

His absence was due to health reasons and the Tribunal has admitted his statement on that basis, but in reaching its decision has regarded witness statement as being of less value in weighing the evidence than the evidence of the other claimants who came to the Tribunal and submitted themselves to cross examination.

The Tribunal heard evidence from Miss Aisling Byrne, Mrs Monica Byrne, Mrs Gillian Fitzpatrick, Ms Marian Orr and Mr Michael Shiels on behalf of the respondents.

The Tribunal also had an agreed bundle before it.

Correction to the Title of the Respondent

With the reading of Mrs Monica Byrne's witness statement it became apparent that the respondent was incorrectly described as it was in fact a partnership between Mrs Imelda McGrady and Mrs Monica Byrne. Accordingly with the agreement of the parties the Tribunal altered the title of the respondent to read as is set out at the head of this decision.

The Claim and the Defence

The claimants claim that they have been less favourably treated on the grounds of their race in that they were paid a lower hourly rate than some colleagues of Northern Irish origin.

The respondents denied that the claimants were less favourably treated than the respondents' Northern Ireland employees would have been treated in similar circumstances and also denied the allegation that this alleged less favourable treatment was on the grounds of the claimants' race, ethnic or national origin.

The Legal and Factual Issues Before the Tribunal

At a Case Management Discussion on 25 June 2008, the legal and factual issues to be dealt with by the Tribunal were identified and set out in the notes of the discussion dated 3 July 2008.

However, at the outset of the hearing, Mr Randal on behalf of the respondents conceded that there was a difference in the rates of pay between those received by the claimants and those received by employees of Northern Irish or British origin. This being the case, and because of Mr Gwiazda not being able to proceed with his case at this time due to health reasons, the parties by agreement amended the legal and factual issues to be placed before the Tribunal and these were considered as follows:-

Legal Issues

(1) Has the respondent breached Article 6(2)(a) and (c) of the Race Relations (Northern Ireland) Order ("The 1997 Order") in relation to the rates of pay afforded to the first and second claimants.

(2) Was any such direct discrimination contrary to Article 3(1)(a) of the 1997 Order specifically:

(a) During the course of their employment were the claimants treated less favourably in relation to their rates of pay and/or in comparison as to how (i) other care assistants/health workers employed by the respondents at that time in the Ulster Community Trust Area (UCTA workers") were treated.

(b) Was such less favourable treatment of the first and second claimants on grounds that they were not of British nationality and/or of Northern Irish national origin?

(3) In the alternative, was any such discrimination, indirect discrimination, contrary to Article 3(1A) of the 1997 Order?

(4) Specifically:

(a) Did the respondent apply to the first and second claimants certain provisions, criteria or practices which it applied to all UCTA workers or would have applied to a hypothetical comparator in relation to (i) Rates of Pay;

(b) Did and/or do such provisions, criteria or practices put UCTA workers of non-British nationality and/or non-Northern Irish national origin at a particular disadvantage when compared to British and/or Northern Irish UCTA workers or to a hypothetical comparator?

(c) Did and/or do such provisions, criteria of practices put the claimants at a disadvantage compared to British and/or Northern Ireland UCTA workers?

(d) Were and/or such provisions, criteria or practices a proportionate means of achieving a legitimate aim?

(e) Has the claimant suffered detriment under Article 6(2) (c) of the 1997 Order in relation to the manner in which the respondent dealt with their grievances about alleged discriminatory treatment?

Factual Issues

(1) During their employment, were the claimants paid a lower hourly rate than (i) other UCTA workers of British nationality and/or Northern Irish national origin; or

(ii) a comparable care assistant would have been paid?

(2) What was/is the disparity in pay between the first and second claimants' rates of pay and that of other UCTA workers of British nationality and/or Northern Irish national origin?

(3) How long did/has any such disparity of pay rates last/lasted?

(4) What was/is the reason for any disparity in pay between the first and second claimants and other UCTA workers of British nationality and/or Northern Irish origin?

(5) Did the respondents investigate and address the claimants' complaint about pay in the same manner in which it investigated and addressed a similar complaint from a British or Northern Irish UCTA worker or would have investigated and addressed a complaint from a hypothetical comparator? If not, was any difference in treatment due to the nationality and/or national origin of the claimants?

(6) What impact (including financial loss and injury to feeling) has any discriminatory treatment by the respondents had on the claimants?

Matters Agreed

Within the agreed bundle the parties had specifically agreed the economic element on the schedule of loss prepared for each claimant.

The Relevant Law

In reaching its decision the Tribunal considered the following article of the 1997 Order:-

Article 3(1) and this states as follows:

"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 than he treats or would treat other persons; …"

Article 6(2)(a) of the 1997 Order which states as follows:-

"It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee –

(a) In the terms of employment which he affords him;"

Article 52(A) of the 1997 Order which states as follows;

(1) This article applies where a complaint is presented under Article 52 and the complaint is that the respondent –

(2)(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3 (1B)(a),(e), or (f)"

Article 52A (2) provides:-

"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 an adequate explanation that the respondent –

(a) has committed such an act of discrimination or harassment against the claimant, (b) …

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 the Act."

Article 3(3) states as follows:-

"A comparison of the case of a person of a particular racial group with that of a person not of that group under paragraph (1) or (1)A such that the relevant circumstances in the one case are the same, or not materially different in the other."

In reaching the decision the Tribunal also had regard to the following case law-

3. Alexander -v- the Home Office [1988] IRLR 190
4. King -v- the Great Britain - China Centre [1991] IRLR 513
5. Armitage and Others -v- Johnston [1997] IRLR 162
6. Wakeman and Others -v- Quick Corporation and another [1999] IRLR 424
7. HM Prison Service -v- Salmon [2001] IRLR 425
8. Zaiwalla and Co and others -v- Walia [2002] IRLR 697
9. Barton -v- Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332
10. Vento -v- the Chief Constable of West Yorkshire Police (2) [2003] IRLR 1002
11. Anya -v- University of Oxford [2003] [2001] IRLR 377
12. Scott -v- the Commissioners of the Inland Revenue [2004]IRLR 713 CIB 400
13. Senyonjo -v- Trident Safeguards Limited [2004] UKEAT/0316/04/TM
14. Wong -v- Igen Limited (Equal Opportunities Commission intervening) and conjoined cases [2005] IRLR 258
15. Gilbank -v- Miles [2006] IRLR 538
16. Corus Hotels Plc -v- Woodward [2006] UK EAT 536 05 1703
17. Pauline Girvin -v- Carrickfergus Borough Council Support Services 1696/07
18. Mehmet t/a Rose Hotel Group -v- Aduma [2007] UKEAT 0573/06/CEA
19. Okonu -v- G45 New World Enterprises Corporation [2008] RER (d) 133 (Feb)
20. Chagger -v- Abbey National Plc [2008] RER (d) 157 (Oc).

Findings of Fact

21. The first claimant was employed by the respondents as a personal care assistant from 1 October 2004 to 27 July 2007.
22. The second claimant was employed by the respondents as a personal care assistant from 15 December 2005 and she is still employed by the respondents.
23. Both claimants are of Polish national origin.
24. Both claimants started work with the respondent at an hourly rate of £5.50 and had reduced rent accommodation. Mr Bialczyk was supplied with a company car at "full expense". Although Mrs Gwiazda was recruited as a driver, she subsequently told the respondents that she is not confident at driving as she only had her licence recently and in particular was nervous about driving on the left hand side of the road. The respondents did not require her to drive accordingly.
25. The reduced rent accommodation was a house close to the offices of the respondents which the respondents had had for use by its employees who were not of Northern Irish or British origin. There was a divergence in the evidence between that given by the claimants and that given by the respondents concerning the state and condition of the house. The Tribunal is not making any findings upon this issue as it does not consider that it is relevant to the issue of the reason for the differential in pay rate.
26. Both claimants signed a statement that they were prepared to work more than 48 hours per week.
27. In February 2005 the first claimant found out that his pay had been increased to £5.75 per hour (a pay rise of 25p per hour). However fellow workers told him that they had received pay rises of 50p per hour. The second claimant also found out after she had been employed for some time with the respondents that people who had been recruited after her and who had "work shadowed" her when they started employment were also being paid at varying rates in excess of her pay but on average in and around 50p more per hour. A table setting out the rates of pay from the work start date together with increases was agreed between the parties and the Tribunal finds that differential in pay between employees of Northern Irish/ British national origin and employees who were not of Northern Irish/British national origin is as set out in the tables hereinafter appearing.
PAY RATES APRIL-SEPTEMBER 2007

REF.	EMPLOYEE NAME (BRITISH NATIONALS)	PAY AT JANUARY 2007
997	ALLEN-TYRIE, CARRIE	£6.00/h
1117	BOYLE, DARREN T	£6.00/h
933	BOYD, WILLIAM	£6.50/h
1050	BROWN, LESLEY ANN	£6.00/h
1136	BROWN, LYNDSEY	£6.00/h
738	BROWN, PAULINE	£6.00/h
891	CAMPBELL, ANNE	£6.00/h
975	CARLISLE, ESTHER	£6.00/h
1030	CLIFFTION, ELAINE	£6.00/h
1079	CONN, JANE	£6.00/h
837	CROMIE, CLARE	£6.00/h
1102	CROTHERS, ANNA	£6.00/h
1157	DONAGHY, JULIE, ANNE	£5.50/h
1154	FISHER, AUDREY	£6.00/h
914	FISHER, BRENDA	£6.00/h
1172	FRASER, SARAH	£6.00/h
1171	GIBSON, ALICE	£6.00/h
1133	GILLESPIE, DERMOT	£6.00/h
772	GRAY, TANYA	£6.00/h
1113	GREEN, TRACEY	Sick Pay
1097	HAMMOND MORROW, DEIRDRE L	£6.00/h
674	HARVEY, VALERIE	£6.00/h
1062	HAYWARD, TINA	£6.00/h
1103	HERRON, DOREEN	£6.00/h
1036	JOHNSTON, ROSEMARY	£6.00/h
976	KLEIN, KATHLEEN	£6.00/h
1100	LEWIS, MANDY	£6.00/h
244	MCCULLOUGH, SANDRA	£6.00/h
625	MCVEIGH, CATHERINE (DIRICAN)	£6.00/h
60	MCVEIGH, JACQUELINE	£6.00/h
739	MCVEIGH, MAGDALENE	£6.00/h
826	MILLAR, KATHY	£6.00/h
1023	MILLAR, VICTORIA	£6.00/h
700	ORR, MARian	£1416.00
1143	ROBINSON, CATHY	£6.00/h
985	ROBINSON, LAURA	£6.00/h
996	ROBINSON, MOIRA	£6.00/h
1159	SAUNDERS, LINDA	£6.00/h 5.50
755	SHEALS, M	£6.00/h 6.50
234	SHIELDS, MICHAEL	£6.00/h £1416.00
1144	SHIELDS, NEAL PETER	£6.00/h
1175	SHIELDS, NEAL PETER	£6.50/h
1132	SLOAN, AMANDA	£6.00/h
1115	TOWNLEY, SARAH ANN	£6.00/h
1046	WILSON, FIONA SUZANNE	£6.00/h

PAY RATES APRIL – SEPTEMBER 2007

REF.	EMPLOYEE NAME (BRITISH/NI NATIONALS)	PAY AT APRIL 2007	PAY AT SEPTEMBER 2007
997	ALLEN-TYRIE, CARRIE	£6.00/h
1213	BARRIE, DONNA	£6.00/h
1117	BOYLE, DARREN T	£6.00/h
933	BOYD, WILLIAM	£6.50/h
1050	BROWN, LESLEY ANN	£6.00/h
1136	BROWN, LYNDSEY	£6.00/h
738	BROWN , PAULINE	£6.00/h
891	CAMPBELL, ANNE	£6.00/h
1191	CAMPBELL, ALEXANDRIA	£5.50/h	£6.00/h
975	CARLISLE, ESTER	£6.00/h
1030	CLIFTON, ELAINE	£6.00/h
1079	CONN, JANE	£6.00/h
1186	CRANSTONE, EMMA	£5.50/h	Left May '07
1203	CROCKET, CHERIE	£6.00/h
837	CROMIE, CLARE	£6.00/h
1098	DJALILI, SIMIN	£6.00/h
1185	DONNELLY, DANIELLE	£5.50/h	Left June '07
1157	DONAGHY, JULIE-ANNE	£6.00/h
1154	FISHER, AUDREY	£6.00/h
914	FISHER, BRENDA	£6.00/h
1081	FRASER, SARAH	£6.00/h
718	GIBSON, ANGELA	£6.00/h
772	TANYA, GRAY	£6.00/h
674	HARVEY, VALERIE	£6.00/h
1062	HAYWARD, TINA	£6.00/h
1103	HERRON, DOREEN	£6.00/h
1106	HETHERINGTON, SUSANNA	£6.00/h
976	KLEIN, KATHLEEN	£6.00/h
1100	LEWIS, MANDY	£6.00/h
1198	LOGAN, AMANDA	£6.20/h
1190	MCVEIGH, ADELE	£6.00/h
60	MCVEIGH, JACQUELINE	£6.00/h
739	MCVEIGH, MADELENE	£6.00/h
1181	MAYBERRY, LYNN	£6.00/h
826	MILLAR, KATHY	£6.00/h
1023	MILLAR, VICTORIA	£6.00/h
1211	MONTGOMERY, MARK	£5.50/h	Left Sept '07
1143	ROBINSON, CATHY	£6.00/h
1196	ROBINSON, JULIE	£6.00/h
985	ROBINSON, LAURA	£6.00/h
996	ROBINSON, MOIRA	£6.00/h
1159	SAUNDERS, LINDA	£6.00/h	£7.00/h
755	SHEALS, M	£6.50/h
1132	SLOAN, AMANDA	£6.00/h
1197	TAYLOR, EMMA	£5.50/h	Left June '07
1115	TOWNLEY, SARAH ANN	£6.00/h
1033	BIALCZYK, JACEK	£5.75	£6.00/h
1114	DAMBRAUSKE, DANIELA	£5.50	(no more payslips)
1048	GWIAZDA, JERZY	£5.50	£6.00/h
1108	GWIAZDA, JOANNA	£5.50	£6.00/h
1134	VAICIULIENE, NIJOLE	£5.50	£6.00/h
1174	VAICIULIS, VLADAS	£5.35	£6.00/h
1161	VAICIULYTE, AURELIA	£5.35	£6.00/h
1212	VAICIULYTE, RUTA	£5.50	(no more payslips)

28. The claimants were working a very great number of hours. They were also were required to cover shift absences. The claimants' accommodation was in a house close to the respondents' office and as a consequence it became a frequent occurrence that the claimants were asked to cover sickness absences and additional shifts. No objective evidence was produced to counter this allegation on behalf of the respondents.
29. The claimants made various unsuccessful attempts to resolve the matter of the pay differential. The claimants felt angry and hurt about the pay differential. They felt that they were treated like second class citizens and in general not valued.
30. The first claimant received a company car transferred to him outright with one year's insurance paid by the respondents. The first claimant received mileage as and from 23 April 2007.
31. The claimants, with others, consulted the Law Centre and on 25 January 2007 their then representative Mr Murphy wrote to the respondents raising a statement of grievance for the purposes of the statutory dispute resolution procedure. He also included a 4 point statement of grievance from the claimants and others directed to the respondents on the same date.
32. Rather than setting up a meeting as is required by schedule 1 part 2 step2 of the Employment (Northern Ireland) Order 2003, the respondents' then representative (Employment and Safety Associates) responded in some detail to Mr Murphy. It is note worthy that in this letter of 6 February 2007, ESA set out the basis upon which employees were recruited as being based on age and experience. However, when the respondents issued their witness statement in this case, the defence contained therein stated that the rates of pay of the claimants were affected by the fact that they had a "package" of benefits. This was put forward as being the reason why the claimants received a lower rate of pay. This letter also included a pay slip for an employee of Northern Ireland/Irish/British national origin who earned the same rate of £5.50 per hour as Mrs Gwiazda.
33. Mr Murphy wrote back to ESA on 3 May 2007. He reiterated that the claimants had followed the formal statutory grievance procedure by launching a written grievance. Being dissatisfied with only receiving the pay slip of one employee, Mr Murphy asked for "payslips for all employees doing the same or equivalent work (doing the same or equivalent "runs") and with the same or similar length of service as my various clients". Mr Murphy classified the pay slip enclosed as irrelevant.
34. Mr Murphy wrote again to ESA on 6 July 2007 saying that he would issue a statutory questionnaire and lodge industrial tribunal proceedings if there was no engagement to resolve the matter. By letter dated 16 July 2007. ESA responded to Mr Murphy enclosing a copy of their letter of 3 May 2007 which the Tribunal presumes, but did not hear any actual explanation about this, had gone astray. This letter offered to meet with Mr Murphy and the claimants to try to resolve the matter.
35. By letter dated 17 September 2007 Mr Murphy sent a renewed statement of grievance pursuance to the statutory dispute resolution procedure to the respondents and asked if the respondents or their representatives could contact him to discuss reaching an agreement.
36. By letter dated 11 October 2007 ESA restated that they would like to meet with Mr Murphy and the claimants and asked him to suggest several dates.
37. A meeting did take place between Mr Murphy and the claimants (present in the kitchen of the respondents' building) and Ms Byrne and Mr Bolger of ESA in November 2007. However nothing was resolved, as Mr Murphy contended that he was affected by a conflict of interest in that he knew Miss Gillian Fitzpatrick of the respondents, who was also in attendance, and as such, could not take the matter forward.
38. By an e-mail of 16 November 2007 directed to Mr Murphy, the respondents purported to answer the grievance letter and it is noteworthy that in the response to the first grievance, the respondents advance a new basis for the differential in pay – that of qualifications either as a nurse or NVQ qualifications within the industry together with previous experience. By letter dated 8 January 2008, Mrs Caroline Maguire for the Law Centre confirmed that she had taken over the claimants' cases, that she had submitted claim forms to the Industrial Tribunal on 20 December 2007 and enclosed statutory questionnaires.
39. By letter dated 21 January 2008 ESA responded to Mrs Maguire asking for an extension of time within which to respond as the correspondence from Mrs Maguire had not been received quickly.
40. By letter dated 24 January 2008 Mrs Maguire agreed to the extension.
41. By letter dated 11 February 2008 Peninsula Business Services Limited came on record with the Tribunal on behalf of the respondents.
42. Throughout the rest of 2008 and indeed until a few days before the hearing date there were ongoing discussions between the representatives in this case concerning discovery and requests for further information.

Analysis of Evidence

43. In general, the Tribunal preferred the accounts given by the claimants where there was a divergence in the evidence between the parties. The Tribunal noted a number of significant inconsistencies and contradictions within the evidence given by the respondents' witnesses. A particularly noteworthy inconsistency concerned the command of English of the first claimant. In reply to the questionnaire of the first claimant at paragraph 8 the respondent said:

"The respondent accepts that the claimant used to perform the same work as the named comparators except that the claimant's lack of communication skills with the clients he was employed to cared for compelled the respondent to place the claimant as one of a team of two, rather than allowing him to work alone, as some of his comparators do."

However, yet at paragraph 57 of the witness statement of Miss Aisling Byrne she considered that:-

"Jacek did not exactly fit the criteria. His English was excellent and he has indicated that he was a paramedic".

Conclusions

44. At the outset of the hearing Mr Randall on behalf of the respondents accepted that there was a differential in the hourly pay of the claimants as opposed to employees of Northern Irish/British National origin. However he contended that this was not a detriment to the claimants because they had the benefit of what he described as a "package". This package included;

(1) the provision of fully expensed cars;

(2) allegedly subsidised accommodation;

(3) in the first claimant's case the use of the internet and telephones;

(4) after the car was transferred to Mr Bialczyk a claim that he had the use of the business' fuel account;

(5) upon his repeated requests he was given a mileage allowance in lieu of the fuel account from in or around May 2006;

(6) when the car was transferred to the first claimant one year's insurance and road tax together with some other repairs;

(7) Visa and Home Office costs of bringing foreign workers to Northern Ireland;

(8) flights;

(9) cash advances;

(10) payment of utility bills;

(11) groceries;

(12) English courses.

45. Mrs Maguire contended and the Tribunal accepts that there were a number of flaws in this argument.

(a) It was contended that the first claimant was affected by this package from the outset of his employment. If this was the case, why did the first claimant start on the same pay rate as the Northern Irish/British workers at the outset of his employment. It was only in February 2005 that the differential appeared.

(b) Although there was reference in the contracts of employment to the provision of reduced rent accommodation and company cars, it was not set out in the contract that this would or did affect the hourly rate of the claimants.

(c) If it was really the case that the provision of reduced rent accommodation affected the pay package of the claimants, why did they not receive an increase in their pay rate when they left the accommodation?

(d) There was another worker of Polish national origin but recruited in Northern Ireland who started at a lower rate than the Northern Irish workers, did not avail of the package and this person was paid at the same rate as the foreign workers and not as on the same rate as the Northern Irish/British workers to whom the respondents admitted she should be compared.

46. Although cases can evolve, the Tribunal has noted that the explanation for the pay differential changed twice. Initially it was based on age and experience. Then it was based on qualifications and experience. Finally by the time of provision of the witness statements on behalf of the respondents, it was based on a package of benefits for foreign workers.
47. The Tribunal noted that the effect of the package on the pay differential was not arrived at in any logical fashion. It simply was the case that because these alleged "benefits" were provided, that justified a lesser pay rate for the foreign workers. If there had been a calculation at or near the start of the claimants' employment, the Tribunal would have had some sympathy for the argument that the package existed and affected the pay rate. As it was, the only calculation that existed was a very rough "after the event" calculation by Mrs Fitzpatrick, the Quality manager in an attempt to show that the claimants were better off than Northern Ireland/British workers.
48. Although there was no date on the page of calculations, the Tribunal finds from the evidence that this calculation was done in around November 2007 for the abortive meeting.
49. The Tribunal does consider that the claimants have proved on the balance of probabilities facts from which we could conclude in the absence of an adequate explanation that the respondent has committed a prohibited act of discrimination. Those facts are:-

(1) There was a difference in racial or national origin;

(2) It was agreed that there was a difference in pay;

(3) There was no credible evidence produced to counter the claimants' evidence they worked a very large number of hours and occasionally were threatened into working to cover absences, and so we conclude the claimant were forced into working excessive hours, probably due to the proximity of their accommodation to the office of the respondent.

(4) The Tribunal has noted that at the very least there was an evasive or equivocal reply to the questionnaires served on behalf of the claimants in that the central question, open answers to which would have undoubtedly advanced the claimants' cases at an earlier stage, was simply avoided.

The tables of pay rates and pay differentials set out in this decision make it clear that the vast bulk of Northern Irish/British workers were paid more than the people who were not of Northern Irish/British origin. From all of the foregoing, the Tribunal considers that it could draw an inference that this treatment was on the grounds of race or national origin of the claimants.

At this point in our deliberations we have assumed that there is no adequate explanation for the facts. We consider in these circumstances that the burden of proof passes to the respondent to prove that the treatment of the claimants was in no sense whatsoever on the grounds of race. This requires us to assess not merely whether the respondent has proved an explanation from the facts from which such an inference can be drawn but further that it is adequate to discharge the burden of proof on the balance of probabilities. The explanation advanced on behalf of the respondents at hearing was that the claimants benefited from a package. We do not accept that this was a cogent explanation for the treatment, especially for the disparity in pay meted out to the claimants, for the all the reasons set out above in the section dealing with flaws in this argument.

Comparators

50. The claimants regarded themselves as being comparable to a range of their Northern Irish/British co-workers. These comparators were not always individually examined to see whether they were in the same or not materially different situation. The Tribunal considers that a more reliable form of comparator is a hypothetical comparator who in all respects is in the same position as the claimants except that they are not of Polish origin and in fact do not have this package. We find that evidence of the tables suggests that the over-whelming reason is the difference in race.
51. Mr Randal sought to persuade the Tribunal that the situation in this case was directly comparable to that which pertained in the case of Wakeman and Others –v- Quick Corporation and Other [1999] IRLR 424. The Tribunal was not persuaded by this argument as the governing factor in the Wakeman case was the position of the "secondees". These people were part of the Japanese employment structure who were sent on temporary secondment to London. This case was materially different in that the claimants were not seconded from a different part of the respondent organisation in another country. They were recruited as new employees of the respondent business in Northern Ireland. Therefore we do not regard the Wakeman case as in anyway providing us with guidance suitable for use in the case before us.

Evidence of Past Discriminatory Conduct

52. Mrs Maguire sought to persuade us that it was legitimate to refer to past matters outside the time frame of the claim made by the claimant if it is adduced as evidence from which discrimination can be inferred. For example she referred to the cases of Jolanta Szrajber and Agata Krolikowska and she alleged that they were workers who returned to Poland and had monies for Home Office and visa costs deducted from their final salaries. The Tribunal does not consider that this evidence is sufficiently useful as we did not have full details of the basis upon which these claimants were employed or the circumstances in which they left employment with the respondents. Certainly it appeared to the Tribunal that these ladies were refunded the money deducted from salary. The basis upon which the deduction was refunded was that it was an unlawful deductions in that no written consent had been obtained. We do not have enough information from which we can infer discrimination in these cases.
53. Mrs Maguire also urged the Tribunal to disaggregate the package in this case, contrary to the line taken in the Wakeman case in which this was held not to be necessary. This case was decided before the approval of the new burden of proof test in the case of Wong –v- Igen Limited the tribunal finds this case to be of no assistance in reaching this decision. On examining the elements of the package of the alleged package separately, it is clear to the Tribunal that the greater benefit in having this "package" lay with the respondents. They needed the employees to have cars to drive and it was convenient for the respondents to have a pool of workers close to their office upon whom they could call to cover absences at short notice. The other parts of the alleged package did appear to be trivial. These claimants did not get involved with any advances from the company. The unlimited use of the internet was taken away from Mr Bialczyk. It is irrelevant for the Tribunal to be required to put a value of the use of English course for the claimants which turned out to be free. Certainly they may have granted them access to these courses, but there was no evidence to suggest that this was a major benefit to Mrs Gwiazda, but rather that it would have been a benefit to the respondents by improving the communication with their clients.

Indirect Discrimination

54. A subsidiary question before the Tribunal is did the respondents apply to the claimants certain, provisions, the criteria or practices which were applied to all UCTA workers or would have applied to the hypothetical comparator in relation to rate of pay? The Tribunal does not consider that any indirect discrimination arises in this case because the "package" was not applied to all UCTA workers or to a hypothetical comparator. Therefore it does not consider it necessary to make any findings in relation to the other legal issues arising under this head of claim.
55. The remaining factual issues to be dealt with are:

(1) Did the respondents investigate and address the claimants' complaint about pay in the same manner in which it investigated or addressed a similar complaint from a British or Northern Irish UCTA worker or would have investigated and addressed a complaint from a hypothetical comparator? If not, was there any difference in treatment due to the nationality and or national origin of the claimants.

The Tribunal is not able to make any findings upon this factual issue. Whilst it was provided with evidence of the manner in which the respondents investigated and addressed the claimants' complaints or rather, to be more correct, failed to address the claimants' complaints there was no information provided to the Tribunal concerning how complaints from Northern Irish/British workers had been or would have been dealt with.

(2) What impact including financial loss and injury to feeling has any discriminatory treatment by the respondent had on the claimants?

56. We answered this by dealing first with the question of economic loss. In the event of the Tribunal making a finding in favour of the claimants, the parties had agreed the economic loss element in respect of each claimant and the Tribunal sets down the agreed figures –

(a) First claimant Jacek Bialczyk

Economic Loss for Jacek Bialczyk

Number	Item	Calculation	Total	Comment
1	Loss of earnings from 4 Feb 2005 to 25 May 2007. Loss of earnings from 28 May 2007 to 27 July 2007	7106.88 hours x £0.75 = £5,330.16 537.25 x 50p = £268.63	£5,598.79
2	Interest on Loss of earnings.	5598.79 x 8% per annum over 691 days = £848	£848	Calculated from the mid point between 4 July 2005 and the date of hearing.

(b) Second claimant Joanna Gwiazda

Economic Loss for Joanna Gwiazda

Number	Item	Calculation	Total	Comment
1	Loss of earnings from 15 December 2005 to 31 March 2007. Loss of earnings from 1 April 2007 to 25 May 2007. Loss of earnings from 26 May 2007 to 4 January 2008	1906.50 hours x 50p = £953.25 337.25 x 50p = £168.63p 108.25 x 70p = £75.78 647.75 x 20p = £129.55	£1327.21
2	Interest on Loss of earnings.	1327.21 x 8% over 534 days	£155.33	Calculated from the mid point between 5 Dec 2005 to the date of hearing.

Injury to feelings

57. The Tribunal also accepts the claimants' evidence that they suffered significant injury to their feelings. They felt angry and humiliated and like second class citizens. They felt they were treated with less respect and were not valued. As this was not a one off incident but stretched over a period in excess of 2 years for the first claimant and a period of just over two years in respect of the second claimant, the Tribunal does not consider it suitable to assess this discrimination as meriting an award in the lowest of the "Vento" bands. However, as this is not a case of discriminatory harassment, the Tribunal considers that the appropriate point on the "Vento" scale is the lower end of the mid band. Given that the "Vento" bands after inflation would now look as follows:

Top band of between	£16,610 to £27,690
Middle band of between	£5540 - £16610
Lower Band of between	£5500 - £5540

We award the sum of £5,800 to each claimant.

We confirm that in reaching this award we have considered only the injury to feelings suffered by the claimants and have excluded from consideration the arguments made on behalf of the claimants concerning the way in which the respondents failed to carry out their responsibilities under the 1997 Order.

We also award interest on the injury to feelings calculated as follows:

In the case of the first claimant from 28 February 2005 being the end of the month in which the pay differential first affected the first claimant

28 February 2005 – 14 March 2009 = 1447 days

5800 x 8% x 1447 = 1839.47

In the case of the second claimant from 15 December 2005 – 14 March 2009, 15 December 2005 – 14 March 2009 = 1184 days

5800 x 8% x 1184 days = £1505.14.

Aggravated Damages

58. Mrs Maguire submitted strongly that there was a case for awarding aggravated damages of £7,000 - £8,000 in the fact situation before the Tribunal. She said that there was ample evidence of high handed, insulting and offensive conduct. In our view, it can be difficult to divide a proper defence of a respondent's position from the point at which it becomes high handed, insulting and offensive in how it deals with any complaint under the 1997 Order. Certainly there were answers to questions raised on behalf of the claimants during the pre-litigation stage which would have been capable of being misleading. Certainly in the hearing, each side to tried to blacken the character of the other. There was also a complaint about how the respondents' representative (ESA) sought to deal with the case, including delays in providing discovery amongst other complaints. In the evidence we have not seen anything to suggest that this was due to anything other than ineptitude and confusion about the process. A meeting was offered. In the view of this Tribunal, it was only when Mrs Maguire for the claimants and Peninsula for the respondents came on record in January 2008 and February 2008 respectively, that there seemed to be any progress in this case. Furthermore, taken in the round, we do consider that these respondents did occasionally act with some tolerance and kindness to the claimants. Mrs Gwiazda was recruited as a driver. For whatever reason she refused to act as a driver. The respondents did not dismiss her but kept her on as a non-driving member of personnel. The Polish workers were allowed time off for their special festival on Christmas Eve and the respondents did send a gift of fish to the claimants for their first Christmas. These matters were not disputed by the claimants. When Mrs Gwiazda wanted a change of hours and shifts, albeit supported by a doctor's letter, she was accommodated.
59. Mrs Maguire tried to argue that these claimants were vulnerable people in that as migrant workers they do not have access to social security until they have worked for one year. The Tribunal does not accept this by itself as a reason for awarding aggravated damages. Certainly by the time the claimants raised their formal grievance they were both in employment for excess of one year with the respondents.

The Employment (Northern Ireland) Order 2003

60. By Article 17 of this Order a Tribunal can increase an award by an uplift of between 10 and 50% if it considers just and equitable in all the circumstances to do so, to reflect the fact that the statutory grievance procedure had not been completed as a result of failure by the respondents. Here, the statutory grievance procedures were not completed and this was certainly not the responsibility of the claimants who complied with their requirement to submit a written grievance. In this case we do not find that the reason for failure to complete the procedure is necessarily malicious. We attribute this failure to the inept conduct of the proceedings by the respondents' previous representative, who instead of recommending his clients to hold a meeting, simply replied himself to the grievance letter. Nonetheless the responsibility lies at the door of the respondents for the failure to complete the procedure and in all the circumstances of the case, the tribunal considers it just and equitable to award an uplift of the entire award by 10%.
61. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Summary of Compensation

Economic Loss First Claimant.

Loss of earnings from 4 February 2005 -

25 May 2007 – 7106.88 hours x 75p = £5330.16

Loss of earning from 28 May 2007-

27 July 2007 – 537.25 hours x 50p = £268.63

Interest on Loss of Earnings

5498.79 x 8% x 691 days = £848.00

Injury to feelings – First Claimant = £5800.00

Interest on Injury to Feelings – £5800 x 8% x 1447 = £1839.47

________________

Total 365 £14086.26

28 February 2005 – 14 January 2009 (the month in which the differential first appeared for the first claimant).

Economic Loss Second Claimant.

Loss of earnings from 15 December 2005 to

31 March 2007 – 1906.50 hours x 50p = £953.25

_ 337.25 hours x 50p = £168.63

Loss of earning from 1 April 2007 to

25 May 2007 _ 108.25 hours X 70p = £75.78

-

Loss of earnings from 26 May 2007 to

4 January 2008 – 647.75 x 20p = £129.55

Interest on Loss of Earnings £155.33

1327.21 x 8% x 534 days = £155.33

Injury to feelings – Second Claimant = £5800.00

Interest on Injury to Feelings – £5800 x 8% x 1184 days = £1505.14

________________

365 = £8787.68

Total Compensation = £8787.68

Chairman:

Date and place of hearing: 24-26 November 2008, 28 November 2008

and 1-3 December 2008, Belfast

Date decision recorded in register and issued to parties: