Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06747_09IT.html
Cite as: [2010] NIIT 6747_9IT, [2010] NIIT 06747_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6747/09

CLAIMANT: Evija Ramule

RESPONDENT: Sonah (NI) Ltd T/A The Highways Hotel

DECISION

The unanimous decision of the tribunal is that the claimant suffered discrimination on the grounds of sex and race and it awards her compensation of £9,751.76.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Ms N Wright

Mr J Magennis

Appearances:

The claimant was represented by Mr Robinson, Barrister-at-Law, instructed by Peter Murphy, Solicitors.

The respondent was neither represented nor in attendance.

Sources of evidence

1. The tribunal heard evidence from the claimant and her witness, Christine McAuley. The tribunal also received two bundles of documents amounting to 62 pages from the claimant.

The claim and defence

2. The claimant claimed discrimination on the grounds of her sex and her race. Her claim for discrimination on the grounds of sex related to the fact that she had become pregnant. The respondent denied the claimant’s claims in their entirety.

3. The respondent did not attend nor was it represented. The tribunal was satisfied that the respondent had been notified of the hearing on 5 – 6 July 2010 by letter of 16 June 2010. In the absence of any objection from the claimant, the tribunal decided to hear this matter in the absence of the respondent. In dealing with this claim the tribunal had regard to the respondent’s response.

The issues

4. The following legal issues arise:-

(i) Whether the claimant was discriminated against on the ground of race.

(ii) Whether the claimant was discriminated against on the ground of sex.

(iii) If the claimant suffered discrimination on the ground of race what is the appropriate remedy.

(iv) If the claimant suffered discrimination on the ground of sex what is the appropriate remedy.

Findings of fact

5(i) The claimant was employed by the respondent from 10 May 2008 as a waitress and continues to be an employee of the respondent. She was a permanent full-time employee and worked, on average, 48 hours per week. She earned per hour £6.00 gross and £4.93 net.

(ii) The claimant is a Latvian national.

(iii) The respondent carries on the business of a hotel and employs a number of employees in connection with the provision of services and facilities therein.

(iv) When the claimant joined the respondent’s employment there were seven or eight waiters and waitresses. All but two were foreign nationals including people from the Philippines, Germany, Poland, Italy and Latvia.

(v) The manager and general manager were both Italian. All the kitchen staff were from Italy and France, including the claimant’s partner, Claudio, an Italian national.

(vi) Prior to March 2009 there had been changes to staff in the hotel. The general manager left and the manager was sacked. Both of them were Italian. They were replaced by Adrian and Greg from Northern Ireland who left after a few weeks. In turn they were succeeded by David McMillan and Alastair Mairs as managers. Both are from Northern Ireland.

(vii) In February 2009 the claimant became pregnant. She notified her employer in the second week of March 2009 prior to two weeks planned holiday leave.

(viii) On return from her holiday the claimant experienced a number of changes:-

(1) The claimant and her partner, Claudio, who lived in staff accommodation, were given 21 days notice to leave that accommodation. That notice was subsequently extended by a further seven days.

(2) Claudio was sacked after he and the claimant moved home in the week commencing 18 May 2009.

(3) The claimant’s hours were reduced from 11 May 2009.

(ix) Each week from 11 May 2009 until 26 July 2009 the number of hours worked by the claimant were as follows:-

39, 35, 25, 24, 15, 22, 16, 21, 12¹/₂, 18¹/₂ and 10

The reduced hours were those hours given to the claimant and did not arise by reason of holiday, leave, sickness, unauthorised absence or at the claimant’s request.

(x) By March 2009 all the waiters and waitresses, apart from the claimant, were from Northern Ireland.

(xi) The claimant spoke to Alastair Mairs on several occasions about why her hours were being cut. He said he was cutting the hours for all staff. Initially the claimant accepted that.

(xii) The following week the claimant again approached Alastair Mairs when her hours had been reduced further and those of others had not. Again he said all hours were reduced.

(xiii) The following week when the claimant’s hours were again reduced she spoke to Alastair Mairs again and he said he was cutting her hours because she was pregnant. The claimant informed Alastair Mairs that she had not requested a reduction in hours because of her pregnancy. He replied that as she did not have a contract she could not ask for full-time hours.

(xiv) There was only one full-time waiter, Scott Weatherup, from Northern Ireland.

(xv) The claimant presented the hours worked by waiters and waitresses full-time and part-time for three weeks; the week commencing 8 June 2009; the week commencing 22 June 2009; and the last week of her employment, before she went off on pregnancy leave, commencing 29 July 2009.

(xvi) For the week commencing 8 June 2009, Scott Weatherup worked 67 hours and the claimant worked 15 hours. For the week commencing 22 June 2009, Scott Weatherup worked 37 hours and the claimant worked 16 hours. For the week commencing 20 July 2009, Scott Weatherup worked 43 hours and the claimant worked 10 hours.

(xvii) The hours given to the part-time waiters/waitresses for the same three weeks did not show a reduction in hours worked. In fact for a number of employees the hours worked increased from week commencing 8 June 2009 to the week commencing 26 June 2009. Only one of the eight part-time employees for whom figures are available had a reduction in hours between those two weeks.

(xviii) There does not appear to be a pattern of reduction in hours for the part-time staff over the three weeks for which figures were available.

(xix) Mr Adrian Nicholls, the owner of the respondent hotel, made a comment in the presence of Christine McAuley, a German national, that he had to get rid of the Italian mafia as they were lying and stealing from him.

(xx) David McMillan, a manager, stated he wanted to get rid of all gays and people from other countries.

(xxi) On 28 July 2009 the claimant went off on maternity leave. She remains an employee although she has not yet agreed a date for her return to work and she stated to the tribunal that she does not want to return to work.

(xxii) The claimant believes that the reduction in her hours, in particular, was related to the fact of her pregnancy and that she was a foreign national.

(xxiii) The claimant explained to the tribunal that the discrimination that she believes she has suffered affected her in a number of ways:-

(1) She does not want to return to work.

(2) She has been caused to suffer headaches and blood pressure problems arising from these events.

(3) She has experienced periods of crying.

(4) She felt she was despised as she was from another country.

(5) She felt that they did not trust her in the hotel.

(6) She felt they did not have respect for her.

The law

6(i) It is unlawful to discriminate against another on racial grounds (Article 6 The Race Relations (Northern Ireland) Order 1997).

(ii) It is unlawful to discriminate against another on the grounds of sex (Article 8 Sex Discrimination (Northern Ireland) Order 1976).

(iii) Discrimination on the grounds of sex is to treat a woman less favourably than a man on the ground of her sex (Article 3 Sex Discrimination (Northern Ireland) Order 1976).

(iv) Discrimination on the grounds of race is to treat someone less favourably than another on racial grounds (Article 3(1)(a) The Race Relations (Northern Ireland) Order 1997).

(v) It is for the claimant who complains of discrimination on racial grounds to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of Article 32 or 33 of The Race Relations (Northern Ireland) Order 1997 is to be treated as having committed such an act of discrimination against the claimant (Article 52A The Race Relations (Northern Ireland) Order 1997).

(vi) It is for the claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 is to be treated as having committed such an act of discrimination against the claimant (Article 63A Sex Discrimination (Northern Ireland) Order 1976).

(vii) In order to find direct discrimination … the complainant must show that he has been treated less favourably by the discriminator than the discriminator treats or would treat other persons in the same circumstances. However, in certain cases the comparison need not be demonstrated by evidence as to how a comparator was or would be treated, because the very action complained of is in itself less favourable treatment on sexual … grounds … (Sidhu v Aerospace Composite Technology Ltd [2000] IRLR 602.)

(viii) The Northern Ireland Court of Appeal in McDonagh & Others v Samuel John Hamilton Thom T/A The Royal Hotel Dungannon [2007] NICA 3 stated that, when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812. In the McDonagh case the Northern Ireland Court of Appeal recommended the tribunals adhere closely to the guidance in Igen.

(ix) The guidance set out in the annex to the Igen case is:-

“(1) Pursuant to S63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue S41 or S42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word ‘could’ in S63A(2). At this stage the tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with S74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within S74(2) of the SDA.

(8) Likewise, the tribunal must decide whether any provision of any relevant Code of Practice is relevant and if so, take it into account in determining, such facts pursuant to S56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it has adequately discharged the burden of proof on the balance of probabilities and sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge the burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the question or procedure and/or Code of Practice.”

(x) In the McDonagh case, Kerr LCJ stated that the first question to be addressed is has the claimant proved on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. The Lord Chief Justice went onto say:-

“In addressing this question, it would be necessary for the judge to bear a number of ancillary issues in mind. First, that it is unusual to find direct evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the preliminary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally, it must be assumed at this stage that no adequate explanation for the discrimination exists.”

(xi) The application of the burden of proof was also considered in Madarassy v Nomura International PLC [2007] EWCA Civ 33. In that case, Mummery LJ, who gave the decision of the English Court of Appeal, stated at paragraph 52:-

“She [Madarassy] only has to prove facts from which the tribunal “could” conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a “prima facie” case.”

At paragraph 54 the learned Lord Justice went onto say:-

“I am unable to agree with Mr Allen’s [counsel for the appellant] contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing facts of a difference in status and a difference in treatment of her.”

At paragraph 56 he stated:-

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination. The bare fact of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

The learned Lord Justice elaborated on ‘could conclude’ at paragraph 57 and 58:-

“ “Could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This will include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It will also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage …, the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove the less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.

The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”

Further clarification was given by Mummery LJ at paragraph 71:-

“Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which the comparison are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it was not on the grounds of her sex or pregnancy.”

(xii) In Nagarajan v London Regional Transport [1999] ICR 877, 884, Lord Nicholls said:-

“ … Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

(xiii) The less favourable treatment element may be established by reliance on an actual comparator or a hypothetical comparator.

(xiv) In Shamoon v Chief Constable of the Royal Ulster Constabulary (HL) [2003] ICR 337, in discussing the evidential value of comparators, Lord Scott stated at page 373, paragraph 109:-

“ … comparators have a quite separate evidential role to play. Article 7 has nothing to do with this role. It is neither proscribing nor limiting the evidential comparators that may be adduced by either party. The victim who complains of discrimination must satisfy the fact-finding tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential matter from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class. Comparators which for this purpose are bound to be actual comparators, may of course constitute such evidential material. But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground, eg sex. The usefulness of the tool will, in any particular case, depend on the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant difference or differences the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator, eg under Article 7, by no means disqualifies it from an evidential role. It may, in conjunction with other material, justify the tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if it had been the Article 7 comparator.”

Lord Scott continued at page 373, paragraph 116:-

“ … But in the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination. Discriminatory comments made by the alleged discriminator about the victim might in some cases, suffice. Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in other cases suffice … .”

(xv) Lord Rodger, when discussing the same issue, stated at page 383 paragraph 140:-

“ … In a contested claim before a tribunal the applicant has to prove how her employer would have treated a male employee in the circumstances which ex hypothesi, have not actually occurred. That male employee is often referred to as a, ‘hypothetical comparator’. In some cases the applicant’s case may be relatively easy. For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances. By proving the existence of the policy or practice the applicant may hope to satisfy the tribunal that, in the (unique) situation which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him. In many cases, however, the applicant needs more general evidence and invites the tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances.”

He continued at paragraph 143:-

“ … Discrimination is rarely open and may not even be conscious. It will usually be proved only as a matter of inference … The important point is that there are no restrictions on the type of evidence on which a tribunal can be asked to find the facts from which to draw the necessary inference.”

(xvi) In his judgment, Lord Hutton stated:-

“Article 3(1)(a) of the 1976 Order and Section 1(1) of the 1976 Act are somewhat different in their practical application, because if an employer treats a female employee less favourably than he treats or would treat a male employee, it is often implicit in such treatment that it takes place on the ground of her sex, whereas an employer may well treat an employee less favourably than he treats or would treat other employees, for reasons other than race … .” (paragraph 69)

(xvii) In Chief Constable of West Yorkshire v Vento [2001] IRLR 142 the Employment Appeal Tribunal considered the issue of comparators. Having found that an actual comparator did not exist Lindsay J said:-

“ … It followed that the tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases have been treated in relation to other individual cases.” (paragraph 7)

(xviii) In analysing the decision of the Employment Tribunal, Lindsay J observed:-

“ … it is all too easy to become nitpicking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found. If that were to be the case, then isolated cases of discrimination would almost invariably go uncompensated. It is thus the case that inferences will very frequently need to be drawn. They are not, of course, to be drawn from thin air. But, equally, the facts from which they are drawn do not have to be such that the inference found is the only possible conclusion which those facts could lead to. It is properly to be left to the good sense of the tribunal that also has the advantage of seeing and hearing the witnesses giving such explanations as they may of those surrounding circumstances.” (paragraph 12)

(xix) In the Vento case, as appears from the head note, the Employment Tribunal, in the absence of an actual comparator, concluded that a hypothetical male probationer in the same position as the claimant would have been offered a permanent position as a police officer.

In arriving at that conclusion the tribunal looked at how four other police constables had been treated in various circumstances which it considered relevant. The Employment Tribunal had stated, “there are elements in the treatment of the comparators that lead us to conclude that the applicant was less favourably treated than a hypothetical male officer would have been in the same circumstances”.

On appeal to the Employment Appeal Tribunal the appellant had contended that the tribunal had erred by relying on the treatment of the four comparators because none of them was a true comparator whose circumstances were the same or not materially different.

In dealing with this matter, Lindsay J stated on behalf of the Employment Appeal Tribunal:-

“The tribunal used the four actual cases as if building blocks in the construction of the neighbourhood in which the hypothetical male officer was to be found. For the tribunal to have relied on the four actual comparator cases in that way was not only not an error of law, it was, as it seems to us, the only proper way for it to proceed on the evidence put before it.” (paragraph 15)

(xx) In referring to Vento, Lord Rodger in Shamoon commented in relation to the four actual comparator cases:-

“Despite the differences, the tribunal may be able to use the evidence as a sound basis for inferring how the employer would have treated a male employee in the same circumstances as the applicant.” (paragraph 143)

(xxi) Where a tribunal finds a complaint of sex discrimination well-founded and it considers it just and equitable it shall require the respondent to pay to the complainant such compensation as a county court would order to be paid had the claim been brought in the county court (Article 65 Sex Discrimination (Northern Ireland) Order 1976).

(xxii) Compensation for sex discrimination may include damages for injury to feelings (Article 66(4) Sex Discrimination (Northern Ireland) Order 1976).

(xxiii) Where a tribunal finds a complaint of race discrimination well-founded and it considers it just and equitable it shall require the respondent to pay to the complainant such compensation as a county court would order to be paid had the claim been brought in the county court (Article 53 The Race Relations (Northern Ireland) Order 1997).

(xxiv) Compensation for race discrimination may include damages for injury to feelings (Article 54(4) The Race Relations (Northern Ireland) Order 1997).

(xxv) Compensation for injury to feelings falls into three broad bands; the top band ranges between £15,000 - £25,000 and is for the more serious cases such as where there has been a lengthy campaign of discriminatory harassment; the middle band between £5,000 - £15,000 for serious cases that do not merit an award in the highest band; and the lower band between £500 - £5,000 for less serious cases such as where the act of discrimination is an isolated or one-off occurrence (Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 CA.)

(xxvi) In Miles v Gilbank [2006] ICR 12 EAT at paragraph 12, Judge Pugsley stated:-

“We make the point, if we may, that actually the Vento case is now three years old and that is a point which is of relevance because, whilst we do not have raging inflation which has been known in various stages of the country’s history, we nevertheless do have quiet inflation which devalues monetary values.”

(xxvii) In Northern Ireland an industrial tribunal has followed the approach set out in Miles v Gilbank in the case of Pauline Girvan v Carrickfergus Borough Council – Support Services – Case Reference No: 1696/07. The tribunal stated at paragraph 48:-

“During the five years since the determination in Vento the retail price index has increased by approximately 9% on that basis, the middle band should now be from £5,500 to £16,000 approximately.”

(xxviii) Where more than one form of discrimination arises out of the same facts a composite award may be appropriate (Harvey on Industrial Relations and Employment Law L[516] and the case of Al Jumard v Clwyd Leisure Ltd [2008] IRLR 345 EAT.)

(xxix) Under Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 No 581 a tribunal may include simple interest on an award and shall consider whether to do so without the need for any application from the parties.

(xxx) Under Article 6(1) of The Race Relations (Interests on Awards) Order (Northern Ireland) 1997 a tribunal may include simple interest on an award made and shall consider whether to do so without the need for any application from the parties.

(xxxi) Any interest awarded under the discrimination legislation shall be awarded for injury to feelings from the date on which the discrimination began. In relation to other sums of damages or compensation, interest shall be awarded from the midpoint between the date on which the discrimination began and the calculation date (Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 No 581 and Article 6(1) The Race Relations (Interests on Awards) Order (Northern Ireland) 1997).

Application of the law on findings of fact to the issues

7(i) For the purposes of the claimant’s claims for race discrimination and sex discrimination the statutory comparator is Scott Weatherup, a male of Northern Ireland origin.

(ii) The claimant’s hours were undoubtedly reduced from 11 May 2009 until she went on maternity leave on 27 July 2009.

(iii) The evidence before the tribunal, on the hours worked by the part-time workers, does not establish a pattern of hours having been reduced. In fact a number of the part-time workers had their hours increased between week commencing 8 June and week commencing 22 June 2009.

(iv) Scott Weatherup’s hours decreased from 8 June to 26 June but both were significantly higher than those hours awarded to the claimant and on the last week for which figures were available to the tribunal his hours increased again whereas the claimant’s hours continued to be reduced.

(v) Apart from the reason set out in the response, there was no other explanation before the tribunal as to why the claimant’s hours were reduced.

(vi) The respondent in its response stated that the reduction in the claimant’s hours was due to a downturn in business. Beyond that statement there was no evidence before the tribunal to support that contention. Indeed, such evidence as was before the tribunal suggested that even if there were a downturn in business that this did not necessarily lead to a reduction in hours across the full-time and part-time staff.

Race discrimination

8. The tribunal is persuaded that the claimant has proved, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of race discrimination. Accordingly the burden of proof should be shifted to the respondent in relation to the race discrimination claim. In so concluding the tribunal was influenced by the following matters:-

(a) The claimant is a foreign national whereas all the other waiters and waitresses, including her actual comparator, and the part-time staff with whom evidential comparisons were made were all indigenous to Northern Ireland.

(b) In relation to the claimant’s statutory comparator the claimant’s hours were significantly reduced. His hours were reduced between week commencing 8 June and week commencing 26 June from 67 hours to 37 hours but increased again on the week commencing 20 July 2009 to 43 hours. During the same weeks the claimant’s hours were 15, 16 and 10.

(c) The owner of the hotel had made a statement describing Italians as being ‘mafia types’ and accusing them of lying and stealing from him.

(d) The manager, David McMillan, stated that he wanted to get rid of all ‘gays and people from other countries’.

(e) Between 2008 and 2009 the nationality of the waiters and waitresses had changed from being almost exclusively foreign in 2008 to being, apart from the claimant, of Northern Ireland origin in 2009.

Sex discrimination

9. The tribunal is persuaded that the claimant has proved, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of sex discrimination. Accordingly the burden of proof should be shifted in relation to the claimant’s claim of sex discrimination on the grounds of her pregnancy. In so concluding, the tribunal had regard to the following matters:-

(a) The claimant became pregnant in February 2009.

(b) Her statutory comparator is Scott Weatherup.

(c) The treatment of which the claimant complains began on her return to work after her period of holiday leave and after she had notified the respondent of her pregnancy. The treatment included a reduction in her hours of work.

(d) In relation to the claimant’s statutory comparator the claimant’s hours were significantly reduced. His hours were reduced between week commencing 8 June and week commencing 26 June from 67 hours to 37 hours but increased again on the week commencing 20 July 2009 to 43 hours. During the same weeks the claimant’s hours were 15, 16 and 10.

(e) Alastair Mairs, the manager, indicated that he had reduced the claimant’s hours because she was pregnant. This did not arise by reason of any request from the claimant. In fact, she specifically said she did not want her hours reduced. Nor was there any evidence that there was any other reason or compulsion to require Mr Mairs to make that reduction.

10. In relation to both the claims for sex discrimination and race discrimination the respondent did not attend to present any evidence to explain why it took the actions that it did in relation to the claimant. The only reason advanced in its response, apart from the denial of the claimant’s claims, was to link it to a downturn in business. There was not any evidence to support such a contention. Indeed, the evidence before the tribunal in relation to hours, did not show a pattern of reduction in hours across full-time and part-time staff.

11. Accordingly, the respondent has failed to provide an explanation which is free from any taint of discrimination on the grounds of sex and race and accordingly the tribunal finds the claimant’s claims of discrimination on the grounds of sex and race to be well-founded.

Compensation

12. The tribunal awards the claimant compensation as follows:-

The claimant’s lost 290 hours between 11 May and 26 July 2009. Her net hourly rate of pay was £4.93 per hour. Her loss of earnings by reason of the reduction in hours amounts to £1,429.70.

13. The tribunal is satisfied that the claimant’s feelings were injured as she explained and as is recorded above. The tribunal decided to make a composite award for injury to feelings arising from both forms of discrimination as both arise from the same factual basis.

14. The tribunal concludes that the middle Vento band is the appropriate band and it awards compensation for injury to feelings of £7,500.

15. Bearing in mind that the discrimination began on 11 May 2009, this is an appropriate case where interest of 8% per annum should be added to the award for injury to feelings pursuant to Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex Discrimination Cases) Regulations (Northern Ireland) 1996 No 581 and Regulation 6(1) The Race Relations (Interest on Awards) Order (Northern Ireland) 1997 No 320. Interest should be payable from 11 May 2009 until the calculation date, which is 9 August 2010. The interest amounts to £750. The award for injury to feelings, including interest, amounts to £8,250.

16. The loss of earnings also should attract interest. That interest is calculated from the midpoint between the day when the discrimination began, 11 May 2009, and the calculation dated 9 August 2010 at 8% per annum. The interest amounts to £72.06. The quantum of compensation of the loss sustained by the claimant, including the interest, amounts to £1,501.76.

17. Accordingly, the claimant is entitled to compensation of £9,751.76.

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

Chairman:

Date and place of hearing: 5 – 6 July 2010, Belfast

Date decision recorded in register and issued to parties: