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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Urbanska- Kopowska v Danny McIlroy and Maggie McIlr... [2010] NIIT 1376_08IT (02 December 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/1376_08IT.html
Cite as: [2010] NIIT 1376_08IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1376/08
CLAIMANT: Marzena Urbanska-Kopowska
RESPONDENTS: Danny McIlroy and Maggie McIlroy, T/A Mac’s Quality Foods
DECISION
It is the unanimous decision of the tribunal that the claimant was discriminated against both on the grounds of her race and on the grounds of her gender. The tribunal also finds that the claimant was constructively dismissed. The respondents are ordered to pay the claimant the sum of £52,382.30 in compensation.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr R Lowden
Mr I Lindsay
Appearances:
The claimant was represented by Mr Brian McKee, Barrister-at-Law, instructed by McCartan Turkington Breen, Solicitors.
The respondents were represented by Mrs Maggie McIlroy.
PRELIMINARY MATTERS
1. By the time the case reached hearing, the claimant had married and was known through the hearing by her married name of Urbanska-Kopowska.
SOURCES OF EVIDENCE
2. The claimant gave evidence on her own behalf and her former work colleague, Mrs Maria Balciewicz also gave evidence on her behalf.
3. Mr Danny McIlroy, Mr Gerard Blaney and Mr Daniel Nalepa gave evidence on behalf of the respondents. There was a bundle of agreed documents before the tribunal.
THE CLAIM AND THE RESPONSE
4. The claimant claimed that she had been discriminated against by the respondents on racial and sexual grounds and had also been sexually and racially harassed during her employment with the respondents. She also claimed to have been constructively dismissed. The respondents denied these claims and said that the claimant had simply resigned.
THE RELEVANT LAW
5. The relevant law in relation to constructive dismissal is to be found in Article 127 of the Employment Rights (Northern Ireland) Order 1996. The relevant law in relation to sex discrimination and sexual harassment is found in Article 6A of the Sex Discrimination (Northern Ireland) Order 1976. The relevant law in relation to racial discrimination is found in the Race Relations (Northern Ireland) Order 1997.
ANALYSIS OF EVIDENCE
6. Generally where there was a conflict in the
evidence, the tribunal preferred the evidence given by and on behalf of the
claimant. It was given in a consistent and measured manner over the nearly
eight days of her cross-examination. However the respondents’ witnesses did
not impress the tribunal at all. The first witness,
Mr Danny McIlroy, admitted on the second day of the hearing that he
had lied in his evidence on the first day concerning a telephone call received
by him from McCartan Turkington Breen Solicitors in connection with
the witnesses to be called for the hearing. Thereafter his evidence was vague
and displayed a lack of understanding concerning matters in connection with
which he might reasonably be expected to have some level of knowledge. For
example, when he was asked about his equality policies, he asked Mr McKee
“what is a policy?”. This witness seemed to have some difficulty in answering
questions. The witness,
Mr Daniel Nalepa, seemed to have very little memory of the events in
question and this cast considerable doubt over his value as a witness to the
tribunal. Mr Gerard Blaney, the Production Manager, displayed a
similarly poor memory and also demonstrated a lack of knowledge of equality
issues, probably as a result of his employers’ failure to give him this type of
training. The tribunal also noted that certain witnesses who might have had
valuable evidence to give to the tribunal, namely Ms Kate Boness, Ms Irene Nelson
and Ms Linda Maxwell - who were workers at the time the
claimant was employed by the respondents, were not called to give evidence.
Whilst various excuses were put forward for this failure, it was noticeable
that there was no actual proof of any medical difficulty stopping for example Ms
Irene Nelson giving evidence.
THE FACTS FOUND
7. The claimant was employed by the respondents as a Production Operative from 1 September 2006 to 5 July 2008. The claimant is of Polish ethnic origin.
8. The respondents run a business preparing raw food for distribution to various retail outlets.
9. At the time in question the respondents employed many workers who were not of Northern Irish or English ethnic origin.
10. The claimant did not experience any
particular difficulty in her work environment until the appointment of a new
production worker called Zbigniew Kaczmarek
(hereinafter referred to as Zigi) in or around April 2007. The claimant’s
work involved working on the assembly line at the place where frozen food was
packed into boxes. She put chicken on a spit. She washed machines with a
Kärcher. She cleaned the toilets and was also required to clean the house of
Mr Danny McIlroy and the factory shop. Occasionally, the claimant
also unpacked boxes of frozen meat and mixed chips which weighed approximately
10 Kilograms each. Her hours of work started around 7.30 or 8.30 am
and ran to 5.00 pm each day. Her hourly rate when she commenced
employment was £5.35 but it rose to £6.08 in October 2007.
11. The nature of the job demanded the use of protective clothing such as boots, overalls and rubber gloves. The claimant contended that workers of Northern Irish ethnic origin were provided with the necessary protective clothing but that she was not. Alternatively, any protective clothing provided for the claimant was old, worn - sometimes into holes and in the cases of boots far too big for the claimant to walk safely in them. This resulted in the claimant buying her own boots and various other items.
12. The claimant contended that she had suffered the following types of sexual harassment from Zigi:-
a. Telling the claimant he would only work because she was his type.
b. Stroking the claimant’s hand.
c. Pressing himself against the claimant.
d. Stripping to his underwear each day in front of the claimant.
e. Using terms of endearment.
f. Taking the claimant’s photograph.
g. Commenting on the claimant’s bottom.
h. Touching the claimant under the table at the Christmas dinner.
i. Telling the claimant he would get her drunk and have sex with her.
13. The claimant also experienced the following types of racial discrimination and harassment from Mr Gerard Blaney:-
a. Swearing at the claimant in Polish.
b. Allocating unpleasant tasks.
c. Refusing time off.
d. Refusing early leaving when work was completed.
e. Not providing a chair.
f. Failing to provide proper or adequate training.
g. Failing to provide protective equipment or uniforms.
14. The claimant suffered the following items of racial and sexual discrimination relating to the grievance that she raised:-
a. Refusal to listen to the claimant’s informal complaint.
b. Delay before grievance meeting.
c. Lack of a Grievance Policy.
d. Lack of an Equal Opportunities or Harassment Policy.
e. Failure to interview a crucial witness.
f. Failure to take any notes about alleged interviews.
g. Delay in issuing decision.
h. Rejection of the claim and refusal to reach any conclusion.
i. Failure to protect the claimant.
j. Refusal of appeal.
15. The claimant described how on Zigi’s first day he told her he disliked the work but would stay because she was his type and he would eventually have her. She also described how he often stroked her hand while she was working on the production line as he passed by her. The claimant complained to Zigi that she did not want this attention and that it was inappropriate. Additionally she told him she was engaged and reminded him that he was married. On many occasions, usually on Tuesdays and Thursdays Zigi would stand behind her when she was working on the production line, put his arms around her and press against her from behind, forcing her forward over the production line with such pressure that she could feel his genitals against her.
16. The claimant and Mrs Maria Balciewicz described how Zigi stripped to his underwear each morning in the changing area in front of them and on one occasion asked them to look at a drawing his child had made on his left buttock. Both women told him that they found his behaviour inappropriate and argued that he could have changed in the toilets as they occasionally did if there was a need to change. The claimant also objected to Zigi using terms of endearment in Polish towards her such as darling, sweetheart and sunshine.
17. Mrs Maria Balciewicz confirmed that all these acts had taken place in her presence and in her evidence told the tribunal that she felt she had a responsibility to support Marzena’s complaints to Zigi about his behaviour.
18. The claimant tried to raise her difficulties with Zigi with Mr Danny McIlroy at a meeting in October 2007. Perhaps unsurprisingly she was upset and told Mr McIlroy that she had a problem with Zigi. The claimant’s upset was evident as she was in tears, distressed and waving her arms around. Mr McIlroy told her that he had no interest in her problem and did not want to hear about it. Mr Gerard Blaney told her that Zigi and she had to sort out the problem as if production was affected Mr Danny McIlroy would be unhappy.
19. Nor was the claimant able to raise this matter with Ms Irene Nelson, the Assistant Supervisor, and Mr Gerard Blaney, the Production Manager. They both laughed at her saying she and Zigi should go upstairs to the packing room to “pack boxes together”. The claimant found this sexual illusion to be highly offensive and left the canteen crying. Mr Blaney in cross-examination admitted that he had made such a comment.
20. After the meeting in October 2007 at which she unsuccessfully tried to explain her difficulties to her employer further unwelcome treatment ensued. Zigi took a photograph of her eating a banana in the canteen in December 2007 leading to the claimant bursting into tears and leaving the canteen. Zigi commented in Polish on her having a nice bottom and walking behind her on the stairs up to the canteen. He touched her leg under the table at the Christmas dinner and winked at her subsequently telling her in Polish that he would like to get her drunk so that he could have sex with her.
21. Mrs Maria Balciewicz was dismissed by the respondents and this had the net effect of the claimant losing her only close friend and support in the workplace.
22. The claimant’s Doctor certified her as unable to work from 17 December 2007.
23. The claimant also contended that she suffered a detriment because of being Polish as compared to local workers. She alleged that she was sworn at in Polish by Mr Gerard Blaney, such language generally occurring on Fridays when she and Mrs Maria Balciewicz alleged that Mr Gerard Blaney was often either drunk or hung over. The claimant and Mrs Maria Balciewicz experienced Mr Gerard Blaney using foul and abusive language to them both. However the tribunal noted that he did not swear at the local workers such as Ms Irene Nelson, Ms Linda Maxwell or Ms Kate Boness. It was not denied that Mr Gerard Blaney had been taught Polish swear words by Zigi and by previous male Polish workers. Mr Blaney admitted under cross-examination that he would go out and drink while playing pool on Thursday nights. Mr Danny McIlroy strongly refuted any suggestion that he would allow Mr Gerard Blaney to work at the premises while he was drunk. However as Mr McIlroy was frequently out of the business premises on Friday due to various sporting commitments, the tribunal considers that it is possible that he may not have noticed Mr Blaney’s condition.
24. The claimant and Mrs Maria Balciewicz were required to clean the toilets every week mostly on Fridays when there was no production. Mr Danny McIlroy contended that the cleaning jobs were allocated equally and alleged that Daniel, Thomas, Zigi, Danny McIlroy and Gerard all cleaned the toilets. Given that Mr McIlroy accepted that he left the factory to go to the gym on Friday for a couple of hours, once again the tribunal considers that it is possible that he may not have known precisely who was carrying out the actual cleaning of the toilets. Additionally, Ms Linda Maxwell and Ms Kate Boness did not work on a Friday so the tribunal does not see how they could be alleged by Mr McIlroy to be involved in toilet cleaning. Furthermore, Mr Daniel Nalepa did give evidence to the tribunal and interestingly he made no reference to toilet cleaning in his witness statement. Despite Mrs McIlroy’s grossly inappropriate contention that Mr Nalepa had in some way been prevented from giving evidence because Mr McKee had failed to cross-examine him, the tribunal considers that if it had really been the case that he was involved in toilet cleaning along with the claimant and Mrs Maria Balciewicz, that this would have been set out in his witness statement. The witness statement is the opportunity for the witness to give his evidence in chief. If he fails to do so, then the tribunal could and did draw the inference that he had in fact no evidence to give on this point. Furthermore, despite the respondents having a document entitled “daily cleaning schedule” which included daily spaces for the washing of both toilets, this was not filled in and the tribunal was left with a net position that there was no documentary evidence of a cleaning schedule or any other sort of document that would corroborate that the cleaning duties were handed out fairly between local and foreign workers.
25. The tribunal also noted that Mr Blaney required the claimant to climb on top of a freezer to clean off the dried carcasses of dead insects. Local workers were not required to do this.
26. The claimant needed time off to attend to a matter concerning her residential lease and was refused it. However Ms Kate Boness, a local worker was granted time off when she requested it. Mr Danny McIlroy refused the claimant permission and in evidence said that he had no recollection of Ms Linda Maxwell asking him about time off for the claimant. Interestingly, Mr Blaney said in evidence that he had always given the claimant any time off she had asked for. The claimant denied this was the case and went on to say that Mr Blaney did not allow her to leave work early if work was finished on Fridays. Local workers were allowed to leave early if work was finished during the week. Mr Blaney denied that he had ever refused the claimant permission to leave early. He said he always let the claimant home early whenever she asked. Interestingly, the version of the respondents through the evidence of Mr Danny McIlroy was inconsistent with this explanation. He said that the claimant did not want to leave early because she would not be paid.
27. The claimant contended that she was not provided with a chair on the line when it was available to other local workers. It was explained to the tribunal that there was a single chair kept in a store and that this was available whenever the claimant wished to use it. Mr Gerard Blaney said that he had brought it out at the start of the day for the claimant on one occasion. The claimant denied this and described how when she had the chair once a local worker took it from her for her own use and that it was Mr Gerard Blaney’s practice to always tell her to give up the seat to Ms Linda Maxwell.
28. The claimant contended that she had not been provided with any adequate training. Induction training for the claimant was carried out without an interpreter. It was undisputed that Mr Gerard Blaney had no training in Equal Opportunities, Health and Safety, Manual Handling and was not aware of grievance procedures, an equality policy or any harassment procedures.
29. Earlier in the decision we have described the state and condition of the overalls given to the claimant for use in the course of her work. Mrs McIlroy contended that she did not buy the overalls singly as that would have been too expensive. However, when she was required to produce the invoices for purchase of the overalls it became clear that new overalls had been purchased singly by the respondents. Prior to the claimant’s starting employment a new overall had been purchased, and while she was still absent during her grievance two new overalls were purchased. This was within a fortnight of the rejection of her grievance. These overalls were available for a new local worker who started on 24 June 2008 six days before Mr Danny McIlroy refused the claimant’s request for an appeal.
30. Further differences in equipment centred
round the provision of body warmers.
Ms Irene Nelson and Zigi had thick body warmers but the claimant, Mrs Maria Balciewicz,
Daniel and Thomas did not. Of the production workers only the local worker Ms Irene Nelson
was provided with a thick body warmer. There was no evidence provided by the
respondents to explain this difference in treatment. It was however argued
that the thicker body warmers were older and this was why Ms Irene Nelson
might have had one. However this does not explain how Zigi was in possession
of one as he started work in April 2007 in the respondents’ premises.
What however is clear is that only a local production worker has a thick body
warmer and Zigi may have received one after he was appointed as Supervisor.
31. In the first week of January 2008 a letter of grievance was sent to Mr Danny McIlroy alleging sexual harassment. However, a grievance meeting did not take place until 8 April 2008 some three months after the letter. There was no reason provided for this inordinate delay at the time in question. There was no timeframe for the grievance before the tribunal and indeed no grievance policy produced to the tribunal. Mr McIlroy contended that it was contained in the statement of terms and conditions of employment. However, when it was pointed out to him that this statement said the grievance procedure was contained in a staff handbook, he was unable to say where the staff handbook was.
32. Mr McIlroy accepted that there was no harassment policy and when a poster was eventually produced to the tribunal he accepted that the respondents had failed to carry out the recommendations contained in the poster. Neither was he sure that the poster had been displayed when the claimant was employed. Like his Manager, Mr Gerard Blaney, he had no Equal Opportunities training. Although he was aware of his responsibility to submit annual returns to the Equality Commission, he had at no time made any attempt to get any advice or help from the Equality Commission, probably because he alleged he was unaware that they did this.
33. The respondents carried out an investigation into the grievance. Near the end of April 2008 Zigi was interviewed and accepted that he stripped to his underwear in front of both the claimant and Mrs Maria Balciewicz and that he had taken a photo which may have included the claimant eating a banana, but denied all other allegations.
34. Mrs Maria Balciewicz who was in contact with the respondents during this period and attended a meeting with them at their premises in May 2008 was a crucial witness to much if not all that the claimant had undergone. She was not interviewed.
35. There were some notes recording a meeting with Zigi but they were not contemporaneous. There were no notes of meeting with other employees.
36. On 7 May 2008 four months after the original letter of grievance and a month after the grievance meeting Mr Danny McIlroy rejected it on the basis that there was a conflict of evidence and it was impossible to make a decision in the circumstances. Even if this really was the case, it would have been open for him to take steps to protect the claimant and monitor the situation. Therefore the claimant was left in a position where as far as she was concerned there could well have been an ongoing campaign of serious sexual harassment. Effectively Mr McIlroy left the claimant with no support or protection at all.
37. The claimant’s Trade Union Representative wrote a letter of appeal on her behalf dated 14 May, 2008 and when no response was received he wrote a reminder dated 19 June 2008. Mr McIlroy replied by letter dated 30 June 2008 stating that the time for appeal had expired and the matter was closed. His failure to allow the appeal was not backed up by any grievance policy setting out a strict timetable. His strict reliance on a tight time limit is in stark contrast to his failure to deal in any sort of expeditious way with investigation of a grievance.
38. The claimant resigned on 5 July 2008 and her claim to the tribunal was lodged on 23 September 2008.
39. During the hearing of this matter Mr McKee abandoned a claim for discrimination based on differential rates of pay between the claimant and local female workers.
40. The claimant very clearly set out her reasons for resigning in her letter of 5 July 2008. Effectively Mr McIlroy’s action in denying her the right to appeal the decision of his flawed investigation process was the “straw which broke the camel’s back”. The claimant contended that there had been a total breakdown in mutual trust and confidence and could not return to work in an environment which is hostile and unsafe.
CONCLUSIONS ON THE UNFAIR DISMISSAL CLAIM
41. To successfully establish a claim for constructive dismissal Lord Denning, Master of the Rolls, set out the contract test in the case of Western Excavating (ECC) Limited v Sharpe [1978] ICR 222. The claimant must show that the employer has committed a fundamental breach of a contract of employment and the claimant must leave in response to the breach and must not delay too long in so doing. The tribunal has no difficulty in considering the course of events in this case as constituting one continuing act. The claimant was menaced by Zigi over a number of months. She tried in October 2007 (without success) to bring this to the attention of Mr McIlroy who was not interested. By this attitude, Mr McIlroy left the claimant effectively at Zigi’s mercy. Nor could she look to her fellow workers for support as Mr Gerard Blaney and Ms Irene Nelson thought Zigi’s pursuit of the claimant a matter of some considerable amusement. They joked about it amongst themselves. When Mrs Maria Balciewicz was dismissed, the claimant’s health broke down and she was absent from in and around 17 December 2007. Effectively she never returned to work. While she was on sickness leave but still an employee of the respondents, she raised a grievance which was inadequately investigated by Mr McIlroy after a very considerable delay. She appealed this decision and Mr McIlroy denied receiving the appeal, therefore denying her the right to appeal the decision. These acts are all part of the same course of conduct and the tribunal considers that the claimant was entitled to look to her employer for protection from the unwanted conduct by Zigi. He failed to do so showing no interest in her distress and eventually alleged that he had never received the appeal. It is the considered opinion of the tribunal that this behaviour by Mr McIlroy constituted a fundamental breach of the claimant’s contract of employment which was ongoing throughout the period of Zigi’s unwanted conduct through the grievance procedure and inadequate investigation, and culminated in Mr McIlroy’s refusal to allow an appeal. We do not consider that the claimant could have realistically continued in employment with these respondents. The claimant did not delay in leaving. She resigned on 5 July 2008 in response to Mr McIlroy’s letter of 30 June 2008. We consider that the claimant has successfully constituted her claim for unfair constructive dismissal.
SEXUAL HARRASSMENT CLAIMS
42. Sexual harassment is described in Article 6A of the Sex Discrimination (Northern Ireland) Order 1976 as follows:-
“6A(1) For the purposes of this Order, a person subjects a woman to harassment if -
…
(a) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect -
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her ….. “.
The tribunal has no difficulty in finding that the various types of conduct by Zigi visited on the claimant caused precisely the feelings of violation, degradation and humiliation contemplated by this section.
THE RACE DISCRIMINATION CLAIM
43. The Race Relations (Northern Ireland) Order 1997 defines discrimination as:-
“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 than he treats or would treat other persons; …
Therefore to show less favourable treatment the claimant must show that she has suffered less favourable treatment on the grounds of her race as opposed to someone who is not of the claimant’s race. What is a detriment? This question is answered by considering whether a reasonable worker would or might take the view that the claimant had been disadvantaged in circumstances in which he had thereafter to work. In this connection it is necessary to consider the burden of proof.
44. Less favourable treatment on its own is not enough to establish unlawful discrimination. The claimant must establish such facts from which the tribunal could conclude in the absence of any explanation by the respondents that discrimination on racial grounds has occurred and in this part of our decision we adopt the guidance set out in the case of Igen Limited v Wong [2005] IRLR 258 which states as follows:-
“(1) Pursuant to (Section 63(A) of the 1975 Act) 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 employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part Two or which by virtue of Section 41 or 42 of the 1975 Act, 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 such cases 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 would therefore usually depend on what inferences is it proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word “could” in Section 63(A)(2). At this stage the tribunal does not have to reach a definitive determination that such facts would it lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see whether 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 Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.
(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 Section 56A (10) of the 1975 Act. 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 employer 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 the tribunal to assess not merely whether the respondent has proved an explanation from the facts from which such inference can be drawn, but further that is adequate to discharge the burden of proof on the balance of probabilities that 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 that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.”
45. In this case the claimant has established that there was a difference in race and a difference in treatment. Both she and her friend Mrs Maria Balciewicz as Polish workers were given the more unpleasant tasks to carry out. These involved cleaning the toilets and, during the deep clean, having to clean the dried husks of insects from the top of the freezer. Both the claimant and Mrs Maria Balciewicz were sworn at in Polish by Mr Gerard Blaney. The local workers were not required to carry out objectionable tasks and neither were they sworn at in Polish or in English.
46. In reaching our decision on whether there was a racial motive behind the less favourable treatment we have taken into account a number of factors. Mr Gerard Blaney swore at the claimant and Mrs Maria Balciewicz in Polish and did not swear at all at the local workers. On one occasion when he was angry Mr Blaney said he did not mind looking for another job if it meant he did not have to work with “f****d up” Polish or Lithuanian workers”. Mrs Maria Balciewicz, another Polish worker, also suffered degrading treatment in that she was made to struggle to climb a ladder with buckets of water to clean the top of the freezer. Ms Linda Maxwell, a local worker, refused to do this work and this was permitted. Mr Gerard Blaney did not give the claimant any assistance in trying to raise her issues of sexual harassment. The claimant was told it was a matter between “yourselves”, that is to say the Polish supervisor and the Polish production operative. Finally and perhaps most importantly the tribunal has noted the complete absence of any knowledge of Equal Opportunities or training. From this point the tribunal draws the inference that it is more likely than not on the balance of probabilities that Mr McIlroy and Mr Blaney were guilty of racial discrimination. If as was manifestly the case here Mr McIlroy and Mr Blaney had no knowledge of or training in equality issues and policies, it is much less likely on the balance of probabilities that they would be capable of recognising a situation of discrimination. Therefore we consider that the claimant has established such facts from which an inference of discrimination can be drawn supported by the points set out in the foregoing paragraph. At this point the burden of proof changes to the employer and he must prove on a 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. Frankly in this case there was no evidence of any explanation being given to the tribunal of any sort whether cogent evidence or non cogent evidence. When this is added to the difference in the equipment provided to the claimant and Mrs Maria Balciewicz, and the difference in the treatment then it is plain that the respondents racially discriminated against the claimant. We also find that Gerard Blaney racially harassed the claimant and Mrs Maria Balciewicz by swearing at them in Polish.
FAILURE TO COMPLY WITH THE GRIEVANCE PROCEDURE
47. The statutory grievance procedure is set out in the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order (Dispute Regulations) Regulations 2004. If the failure of the procedure is the employer’s fault then the tribunal must consider an uplift to the compensatory award. The tribunal considers that the failure of the procedure was the respondents’ fault in this case. The respondents delayed the original grievance considerably taking three months to decide upon it. Then they strictly enforced a deadline for the submission of the appeal for which no documentary evidence was produced in order to block the claimant’s appeal. In these circumstances, the tribunal has no difficulty in awarding an uplift of 30% to the compensatory award.
EXTENSION OF TIME
48. Mrs McIlroy argued the discrimination claim was out-of-time. A tribunal may consider a claim if it is out of time if it is just and equitable to do so under Article 76(5) of the 1976 Order. Article 65(1)(A) of the Race Relations (Northern Ireland) Order 1997 contains a similar restriction with a corresponding discretion under Article 65(7). Both Orders state that “any act extending over a period shall be treated as done at the end of that period”. In this case we have treated the treatment meted out to the claimant as being one continuing ongoing act of discrimination. Therefore such an act shall be treated as being done at the end of that period, ie, in or round 5 July 2008. On this basis the claim is not out-of-time. We have also considered the guidelines in British Coal Corporation v Keeble [1997] IRLR 336 and these are as follows:-
(a) the length and reasons for delay;
(b) the extent to which the accuracy of the evidence is likely to be affected by the delay;
(c) the extent to which the parties have co-operated with any requests for information;
(d) the promptness with which the claimant acted once she knew of the facts giving rise to the cause of action; and
(e) the steps taken by the claimant to take appropriate advice.
Even if we are wrong in considering that the course of conduct in this case cannot be severed into individual incidents of discrimination, we consider that there was no great lengthy delay by the claimant. The claimant put in a letter of grievance very quickly after she went on sick leave. Thereafter the delay in dealing with it was purely caused by the respondents as they took three months from the date of the grievance to the date upon which it was decided upon. As these reasons for the delay are effectively the responsibility of the respondents, we do not consider that they can be used against the claimant. Neither do we consider that the accuracy of the evidence was likely to be affected by the delay. The claimant’s evidence even before the tribunal was clear and consistent. Perhaps this was because most of the incidents of Zigi’s conduct could be clearly characterised as harassment. We do not consider that the extent to which the parties had co-operated with any requests for information is of any relevance in this case but we do consider that the claimant did act promptly once she knew of the act the facts giving rise to the cause of action and that she did take steps to take appropriate advice from Mr Kevin Doherty and Belfast Centre for the Unemployed. Furthermore we have noted the following points:-
1. At no time was it proposed by the respondents that it was impossible to have a fair trial nor was it suggested that the cogency of the evidence had been affected in any way.
2. The respondents were fully aware of the detail of the allegations made by the claimant and had a written record of their detail (by way of the grievance letter).
3. Should the extension not be granted the claimant would be denied a remedy for sexual harassment.
4. A significant proportion of delay between the acts complained of in the outcome of the process was the sole responsibility of the respondents as we have already stated.
5. The extension sought is relatively short.
6. The claimant was a foreign national with limited knowledge of English who was relying on the advice of her Trade Union Representative throughout the grievance process.
7. The subject matter of the discrimination claim is already before the tribunal in the form of the unfair dismissal claim and for all of the foregoing reasons we find that time should be extended in relation to the sexual harassment claim.
RACIAL HARRASSMENT AND DISCRIMINATION BY GERARD BLANEY
49. Mr Gerard Blaney used Polish swear words throughout the time he supervised the claimant and Mrs Maria Balciewicz. This treatment diminished after he moved to packing in or around August 2007.
50. He selected the claimant and Mrs Maria Balciewicz for unpleasant jobs, refused them time off and early leaving and that continued through to in or around 19 December 2007. The failure to provide proper protective clothing was ongoing throughout employment. We accept the contention that these are three facets of the one state of affairs, ie, poor treatment of foreign workers by the respondents and an abject failure to address any issues of equality of opportunity. We have also found the following key indicators underlying this position:-
a. Mr Blaney’s outburst after an argument with Mr Danny McIlroy to the effect he would be glad to leave the job as he would not have to work with “f****d up Polish and Lithuanians”.
b. The respondents’ abject failure to have any equality policy other than a poster or training.
c. The respondents’ admitted ignorance of whether or not they actually possessed a Staff Handbook which was referred to in all terms and conditions of employment as containing details of the grievance procedure.
d. Mr Danny McIlroy’s assertion he was being good to the claimant by paying her a pound per hour extra to clean their house during working hours. The net effect of this was that he was gaining a domestic cleaner for a discount on the private rate (in the claimant’s own new business she charges £7.00 per hour) and by underpaying her for the service she was providing and charging over 80% of the cost to his business Mr McIlroy was guilty of exploiting the claimant.
e. Finally and perhaps most tellingly Mr Blaney’s glib assertion that Zigi was the best person for the job of supervisor closely followed by the revelation that he had in fact offered the job to Ms Irene Nelson, a local worker first who refused it. We consider that these are facets of an attitude which permeated the respondents’ business and that this was a continuous state of affairs. Accordingly the claim is in time.
THE SCHEDULE OF LOSS
Unfair Dismissal Compensation
51. At the time the claimant’s employment was terminated she was 30 years of age and had one complete year of service with the respondent. Her gross weekly wage was agreed at £261.80. These figures attract a multiplier of one, her basic award is calculated as follows:-
£261.80 x 1 x 1 = £261.80
COMPENSATORY AWARD
Immediate Loss
52. The claimant’s net weekly loss was agreed at £221.50. The immediate loss period is from 5 July 2008 (when the claimant resigned) to 27 September 2010, a total of 116 weeks. Therefore her net loss is as follows:-
During this period the claimant has had a child and for 26 weeks of that period if she had remained with the respondents she would have been paid £82.00 per week by way of statutory maternity pay:-
£82.00 x 26 = £2,132.00
Therefore it is only for the balance of the 90 weeks that the claimant would have been able to claim her full net loss and this is calculated as follows:-
90 x £221.50 = £19,935.00
Sub total: £22,067.00.
During this period the claimant earned £4,343.00 leaving a net immediate loss figure £17,724.00.
FUTURE LOSS
53. The tribunal also considers that it will take the claimant in the current working environment 26 weeks to obtain a job of equal value to that which she lost and accordingly awards continuing loss of 26 weeks x £221.50 = £5,759.00.
LOSS OF STATUTORY RIGHTS
54. Bearing in mind that the claimant has only one continuing year of service the tribunal awards £200.00.
TOTAL COMPENSATORY LOSS
55. Before an uplift the figure is £23,683.00. The 30% uplift is added so total compensatory award after uplift is £30,787.90. The basic award of £261.80 is added to make total unfair dismissal award £31,049.70.
INJURY TO FEELINGS
56. In reaching its award for injury to feelings the tribunal has taken into consideration the fact that two types of discrimination were involved in this case:-
RACIAL DISCRIMINATION / HARASSMENT AND SEXUAL HARASSMENT
57. The tribunal has also taken account of the fact that the unwanted physical contact went on for a considerable length of time at a weekly frequency which makes the act of discrimination of considerable significance when considering sexual harassment alone. We have also taken account of the fact that the claimant was left suffering from depression. For all of these reasons we award the figure of £20,000 for injury to feelings.
58. We also award interest on that figure at the
rate of 8% from 1 January 2010 to
31 October 2010.
£20,000.00 x 8% ÷ 365 x 304 days = £1,332.60
59. No question of recoupment arises as the claimant’s application for Job Seekers’ allowance was refused.
60. Summary of Compensation
Unfair Dismissal £31,049.70
Both Discrimination Claims £20,000.00
Interest £ 1,332.60
£52,382.30
61. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7-11 June 2010, 2-6 and 9-10 August 2010, 1 September 2010, 28 September 2010.
Date decision recorded in register and issued to parties: