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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Katakinas v Newtownabbey Auots [2010] NIIT 5701_09IT (27 April 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/5701_09IT.html
Cite as: [2010] NIIT 5701_09IT, [2010] NIIT 5701_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 5701/09
CLAIMANT: Vitalis Katakinas
RESPONDENT: Newtownabbey Autos
DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of his race or on the grounds of his disability. He is however entitled to a sum of £155.25 as under paid wages due to him from the respondent.
Constitution of Tribunal:
Chairman: Mr Cross
Panel Members: Ms F Graham
Mr J Nicholl
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr A Torrens, the owner of the respondent business.
Findings of Fact
1. The claimant is deaf and unable to speak. The tribunal was very appreciative of the services of two British Sign Language interpreters, who worked throughout the two days of the hearing, to insure that the tribunal and the parties were provided with an instantaneous translation of the evidence. This was not easy, as the claimant’s first language was Lithuanian, although he had a good understanding of English.
2. The claimant who
was from Lithuania started his employment in the respondent’s garage on 15
January 2009. The respondent business is an unincorporated business and is
wholly owned and operated by Alan Torrens. The expression “the respondent,” is
intended to mean both the business and Mr Torrens. The claimant was taken on on
a trial basis, to see if he was able to do the work. He had been introduced to
the respondent by a friend Raimundas Jankus, who was also from Lithuania and was also deaf and unable to speak.
3. For the first month the claimant did odd jobs for the respondent including some painting and decorating. However he then went on to do the various tasks required in the garage.
4. The system of working in the garage was for the mechanics to keep their own time records of what work they did on which vehicles. These time sheets were collected at the end of the day and kept for the wages department. Wages were calculated with reference to these sheets which indicated the times that the employee was working.
5. The respondent and other people in his employment were able to communicate with the deaf members of staff by means of written notes and the deaf employees were able to do a certain amount of lip reading, if the person speaking moved his lips and didn’t speak too quickly.
6. The mechanics all had their own tool boxes and sets of hand tools. The larger tools were owned by the respondent and were available for all. The claimant did not understand at first that he needed to have his own tools. He was therefore in the habit of borrowing tools from other workers. Most workers kept their tools in boxes which could be locked. One of the contentious matters in this case, was whether the placing of notices on tool boxes, stating that the contents were the property of a certain mechanic and warning against unauthorised use, was aimed at the claimant who had no tools and was known to be a foreign national. Another foreign national was Sebastian, who was Polish. He had his own tools and told the claimant that he could borrow them if he made a monthly payment to do so. Other mechanics, however, allowed the claimant to use their tools free of charge.
7. The claimant told the tribunal that the respondent would shout at him if something went wrong. Although the claimant was known to be deaf, the respondent would come up close to him and shout loudly into his face. Other witnesses told the tribunal that the respondent was quick tempered and was in the habit of shouting at most of his employees from time to time.
8. On 12 March 2009 the
respondent asked the claimant to sign a document that the respondent had
prepared in English with a Lithuanian translation also typed on it, stating:-
“I Vitalis Katikinas agree to Newtownabbey Auto’s deducting any money owed to them by me from my wages.
Signed
Date”
The claimant alleged
that he was forced to sign this document by Mr Torrens. The tribunal find as a
fact that the claimant did not sign the document and that it was not an unusual
document to be asked to sign, as the claimant was in receipt of advances of
salary from time to time and was having work done on his car by the respondent.
9. The claimant worked for
three months with the respondent. When he came to the business he was at first
taken on as a handy man doing painting. Later in that month of January he was
given work in the garage. His payment at the end of that month was in cash. The
respondent paid him out of his own money as some of the work carried out by the
claimant was for the respondent personally. There was also a delay in the
claimant getting a National Insurance number.
10. In February the claimant was paid through the garage in the normal way with a pay slip. There was a discrepancy in the hours worked that month. The tribunal find as a fact that the claimant worked 160 hours less, a half day of 5 hours, a total of 155 hours. He was paid for only 128 hours. This was a shortfall of 27 hours. His rate of pay was £5.75 per hour. The tribunal find that the deductions of £108.48, made from his pay in February are correct, being in respect of a cash advance of £100.00 made to him during the month and £8.48 for items for his car.
11. In March the tribunal find that the deduction of £294.00 from the claimant’s pay is correct. This sum comprised various items such as MOT fee and items required by the claimant for his car. Indeed the total amount should have been higher but the respondent did not charge the full amount due. Furthermore the claimant worked 145 hours that month but was paid for 148.5 hours. The respondent did not seek a refund in respect of the over payment.
The Law
12. The meaning of disability
discrimination is set out in Section 3A of the Disability Discrimination Act 1995
as amended (hereinafter called “the 1995 Act”).
“(1) For the purposes of this Part, a person
discriminates against a disabled person if-
(a) for a reason which relates to the disabled person’s
disability,
he treats him less favourably than he treats or would treat others to whom that
reason does not or would not apply, and
(b) he cannot show that the treatment in
question is justified
(2) For the purposes of this Part, a person also discriminates against a
disabled person if he fails to comply with a duty to make reasonable
adjustments imposed on him in relation to the disabled person.”
13. Section 4(2) of
the1995 Act states that it is:
“unlawful for an employer to discriminate against a disabled person whom he
employs”, inter alia, “(d) by dismissing him, or subjecting him to any other
detriment”.
14. Section 4A of the 1995 Act states:
“(1) Where (a) a provision, criterion or practice applied by or on behalf of an employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as are reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice,……….having that effect.”
15. Under the provisions of Section 17A (1c) of the 1995 Act the following:
“(1C) Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.
(2) Where an [employment tribunal] finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps as it considers just and equitable—
(a) making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates;
(b) ordering the respondent to pay compensation to the complainant;
(c) recommending that the respondent take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates”.
16. The Race Relations (Northern Ireland) Order 1997, (hereinafter called “the 1997 Order”), defines racial discrimination in Article 3 (1) 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; or
(b) [this sub clause is not relevant to this case.]
Article 5 defines racial grounds as “any of the following grounds, namely colour, race, nationality or ethnic or national origins”.
17. Article 6(2) refers to discrimination in the employment field 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 the employee-
(a)
in the terms of the employment
which he affords him; or
(b)
in the way he affords him access
to opportunities for promotion, transfer or training, or any other benefits,
facilities or services, or by refusing or deliberately omitting to afford him
access to them; or
(c) by dismissing him, or subjecting him to any other detriment”
18. In order to establish whether an act of racial discrimination has been committed against an employee, Article 52A of the 1997 Order provides:-
“52A
(2) 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 complainant
(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, that act”.
Thus, as in the Disability Discrimination code, the tribunal, in deciding whether there has been an act of discrimination on the part of a respondent, must first decide whether the claimant has proved a prima facia factual situation which could suggest discrimination. Only if the claimant does so prove, does the burden of proof then move to the respondent to show to the tribunal that he did not so discriminate against the claimant.
Decision of the tribunal
19. The tribunal considered all the incidents that had occurred in the garage, that had been described to it by the claimant and which he stated, showed a course of conduct which should lead this tribunal to find a prima facia case of Disability Discrimination and Race Discrimination against the respondent. The tribunal will take these incidents and examine them individually.
20. The incident of the claimant not
having his own tools and being put in the position of having to borrow from
work colleagues was considered. It is a practice in the garage and vehicle
repair business that mechanics have their own hand tools and rely on the garage
to provide the larger items of equipment. There seemed at first no problem in
the claimant borrowing tools as required and indeed every one seemed to be
borrowing each others tools. The respondent himself was in the habit of taking
tools and sometimes not returning them. Hence the note on one of the tool boxes
which said that tools could only be used with permission of the owner. In that
case Nathan Cook gave evidence that he had lent tools to the claimant and put
the notice on the box to make sure that the tools were returned. He stated that
this notice was intended for all the mechanics, including the respondent
himself, and was not aimed at the foreign or disabled men. The other tool box
which had a label attached to it was the one that belonged to Sebastian one of
the other foreign mechanics. It was he who suggested that the claimant might
like to pay to use the tools.
21. The tribunal find that there was some argument and annoyance concerning the tools but that all the mechanics were borrowing each others tools and sometimes not replacing them. This practice was a source of concern to the work force and led to the notices being put on the boxes. The tribunal hold that this was not an action on the part of the box owners, or the respondent, to antagonise the claimant but was a reaction to tools being misplaced.
22. The incidents when the respondent shouted at the claimant. The tribunal heard from other employees of the respondent that the respondent was quick tempered and indeed the tribunal noticed, on one or two occasions during the hearing, that the respondent was quickly riled. Other witnesses in the respondent’s employment recounted that the respondent had shouted at them. The tribunal is satisfied that the shouting and displays of temper were not directed at either the disabled or the foreign workers.
23. Another cause of complaint on the part of the claimant was that he was not directed properly on what he was to do. The tribunal have heard from various witnesses as to the methods used to explain things to the claimant, from writing notes on paper, marking diagrams on the dirt of a car, to signals by a mechanic helping the claimant, such as hand signals from under a vehicle. The claimant was introduced to all his fellow workers and received assistance from his colleagues. Some of them also helped him repair his car after hours and took it to the MOT for him. The tribunal find no evidence of discrimination on the ground of race or disability which would lead it to reverse the burden of proof.
24. The tribunal considered the incident of the claimant being pressed to sign the authorisation, to allow the respondent to deduct money from his wages. The tribunal had heard evidence of advances on salary having been paid to the claimant and of work done to and parts supplied for his car. The tribunal are of the view, that the document which the claimant was asked to sign was not imposed on him as a result of his being a foreign national, or because he was disabled, but because he owed his employer money. The same form would have been requested from any employee who was in debt to the respondent.
25. The tribunal heard that the respondent had employed two mechanics from Eastern Europe one of whom was also deaf and unable to speak. The respondent had assisted the Polish worker, Sebastian, to get further training and the tribunal saw a certificate that had been awarded to Sebastian as a result of his attending the training. The whole tenor of the evidence was of a family run business that tried to assist foreign and disabled workers.
26. The tribunal found that there were no facts which could be relied upon by the claimant, as showing a prima facia case of discrimination on the part of the respondent, which would have the effect of reversing the burden of proof on the claimant in either of his discrimination claims. For these reasons the claimant’s claims for compensation for disability and race discrimination are dismissed. The tribunal is satisfied that the respondent did not discriminate against the claimant or fail to make provision for the needs of the claimant.
27. So far as the claim for wrongful deduction from wages and incorrect calculation of hours is concerned the tribunal do award a sum of £155.25 to the claimant. This in respect of 27 hours worked in February and not paid, at £5.75 per hour.
28. The tribunal was asked to consider awarding to the respondent a sum of compensation for his preparation time, under Rule 42 of the Industrial Tribunal Rules of Procedure. The tribunal having considered this request decides against making such an award. In arriving at this decision the tribunal took into account the difficulties that the claimant was experiencing in a foreign country and being unable to hear or speak about his problems. The tribunal does however find that the respondent and his employees did try as best they could to integrate the claimant into the work place and the failure, to set up a more permanent relationship, was not as a result of lack of effort on their part.
29. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 18 and 19 March 2010, Belfast.
Date decision recorded in register and issued to parties: