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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fontan v Teletech UK Ltd [2011] NIIT 00950_11IT (14 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00950_11IT.html
Cite as: [2011] NIIT 950_11IT, [2011] NIIT 00950_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 950/11
CLAIMANT: Sofia Patino Fontan
RESPONDENT: Teletech UK Ltd
DECISION
The decision of the tribunal is that the claimant was not wrongfully dismissed by the respondent and her claim fails.
The decision of the tribunal is that the claimant was not discriminated against nor unlawfully harassed by the respondent on the ground of her age and her claim fails.
Constitution of Tribunal:
Chairman: Ms F Oliver
Members: Mrs J Townsley
Mr E Martin
Appearances:
The claimant appeared and represented herself.
The respondent was represented by Ms Karen Moore of EEF Northern Ireland.
REASONS
THE CLAIM AND THE DEFENCE
1. The claimant lodged a claim form on 12 April 2011 claiming that the respondent had discriminated against her on the grounds of her age in their decision to dismiss her for not passing a test.
2. The respondent lodged a response denying that age discrimination had taken place and giving a detailed explanation for the decision to dismiss the claimant.
3. At the Case Management Discussion on 6 July 2011 it was agreed that the issues for the tribunal were as follows:-
(i) Was the claimant wrongfully dismissed and, if so, did the claimant suffer financial loss?
(ii) Did the claimant suffer unlawful discrimination on the ground of age in relation to her training and in relation to the termination of her employment?
(iii) Was the claimant unlawfully harassed on the ground of age during her training?
(iv) Did the claimant satisfy the requirements of the statutory grievance procedure in relation to her complaints other than the complaint of a discriminatory dismissal?
4. The CMD also provided a timetable for the exchange of statements.
5. The claimant provided a written statement on 26 August 2011. For the first time the issue of race discrimination was raised. This had not been raised either during the internal appeal procedures held by the respondent or at the CMD on 6 July 2011.
6. By letter dated 30 September 2011 the respondent asked the tribunal to rule that the part of the witness statement relating to race discrimination should be inadmissable as evidence.
7. Upon notice of this request, the claimant by letter dated 3 October 2011 requested that she be allowed to amend her claim to include a claim for race discrimination.
8. This application to include the claim for race discrimination was considered at the outset of the hearing. The claimant initially indicated that she wished to include the claim of race discrimination. By way of explanation for the lateness of her request, she stated that it took her a while to recognise that race discrimination had taken place. She stated that her reason for applying to include race discrimination was to ensure that her statement could be read in full as she considered it important that the tribunal should be aware of the full background.
9. The respondent objected strongly to the application to amend and indicated that if it was granted, the respondent would have to seek an adjournment to deal adequately with the claim and it would look for costs of the day. The respondent conceded that it would not proceed with the application to strike out that part of the claimant’s statement which related to race difficulties.
10. The claimant then indicated that she did not wish to pursue her application to include a claim for race discrimination and the tribunal proceeded to hearing on the issues raised in the CMD.
THE EVIDENCE
11. In advance of hearing, the parties exchanged witness statements. This constituted the evidence-in-chief of the witnesses who gave evidence.
12. We heard oral testimony from the claimant.
13. We also heard oral testimony from the following, who gave evidence on behalf of the respondent:
(1) Ms Rhonda Griffiths, the Service Delivery Manager for the Nissan Account of the respondent.
(2) Ms Lisa Bray, who is a Human Capital Manager of the respondent.
(3) Ms Amalia McCaughan, who is a trainer employed by the respondent.
(4) Ms Amelia Keenan, a team leader with the respondent.
14. We were provided with a bundle of documents by the respondent’s representative. We were also provided with some separate miscellaneous documents.
THE LAW
15. The issue of age discrimination and harassment in the field of employment is addressed in Northern Ireland by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (“the Regulations”).
16. For the purposes of the Regulations, “discrimination” includes “direct” age discrimination. As Regulation 3 of the Regulations makes clear, for the purposes of the Regulations, a person (“A”) “directly” discriminates against another person (“B”) if, on the ground of B’s age, A treats B less favourably than he treats or would treat other persons, unless A can show that the relevant treatment is a proportionate means of achieving a legitimate aim.
The Comparator
17. As stated above the claimant must establish that he has been treated less favourably than another person was treated or less favourably than another person would have been treated. Therefore a comparator may be a real person or a hypothetical person. The comparison must only be made where the relevant circumstances in the one case are the same or not materially different in the other.
18. The tribunal took note of the guidance in relation to comparators in the sex discrimination case Shamoon v Chief Constable of the Royal Ulster Constabulary (2003)IRLR285, ”relevant circumstances” are those which the alleged discriminator takes into account when deciding to treat “B” as he does or when deciding to treat or would treat A.
19. In the recent case of Chief Constable of West Yorkshire Police and West Yorkshire Police Authority v Homer [2009] ICR 223 the Employment Appeals Tribunal confirmed that the guidance on comparators in the Shamoon case were relevant and to be applied to age discrimination cases.
20. For the purposes of the Regulations a person (“A”) subjects another person (“B”) to harassment where, on the grounds of age, A engages in unwanted conduct which has the purpose or effect of –
(a) violating B’s dignity; or
(b) creating an intimidating, hostile degrading, humiliating or offensive environment for B.
21. Wrongful dismissal occurs where the employee is dismissed in breach of contract.
ANALYSIS OF THE EVIDENCE
22. The issues in this case centre on the training period provided by Ms McCaughan (the trainer).
23. The claimant submits that she was treated less favourably than other employees during this period. As evidence of this she indicates that the trainer did not answer her questions when asked, that the trainer insisted on logging all individual sessions with the claimant whereas she did not do so with other trainees and that the trainer then reacted to all questions as if they had been asked by the claimant.
24. The trainer denies this and says she tried to help the claimant as much as possible. The trainer felt that the claimant was struggling with the content of the training and she raised concerns with her line manager on 17 January 2011.
25. The claimant in her initial statement does confirm that she was having difficulty staying awake during the training. She herself states that she was unable to concentrate properly or memorise anything. This would seem to confirm the trainer’s view that the claimant was having difficulty understanding the training.
26. In so far as there was conflict between the evidence of the claimant and the trainer, we preferred the evidence of the trainer. The trainer responded openly and clearly to any questions put to her by the claimant. Her evidence was consistent and credible. We formed the impression of a person genuinely interested in ensuring that the trainees learnt their job and progressed to the next stage of employment. We found the claimant’s evidence to be inconsistent. It is perfectly understandable that the claimant was upset at failing the assessment. However, we noted that the claimant initially said this was because of ill health, she then said it was due to age discrimination, then race discrimination and finally she submitted that she had not failed the test at all. We also found the claimant to be evasive and contradictory in her evidence regarding other trainees.
27. The claimant also made a number of allegations regarding the fairness of the test including an allegation that one person had seen the test prior to sitting it and that test scores had been changed after the test. We did not accept that these allegations were true. The claimant did not provide any evidence to substantiate her claims.
28. At times we felt the claimant
was clutching at straws. She did not accept that an
e-mail dated 17 January 2011 had actually been sent on that date and
suggested that it had been fabricated after she had failed the test.
29. The claimant also contended during the hearing but not beforehand that she had actually passed the test and suggested that others had failed. To substantiate this she referred solely to one part of the test and completely ignored the remainder of the test where she had scored poorly. This contrasted with the position she had adopted immediately after the test where she acknowledged that she had difficulties and did not suggest that the test result was incorrect.
THE FACTS
30. We now set out findings of fact which are relevant to the issues which we have determined.
31. The claimant applied for a job with the respondent and was interviewed by telephone. On 21 December 2010 the claimant was offered the job of Customer Service Representative.
32. The claimant was provided with a contract of employment on 23 December 2010. The contract included a term that the employment could be terminated by the respondent at any time during the twelve week probationary period on one week’s written notice.
33. The claimant moved from Hampshire to Belfast and took up employment on 10 January 2011.
34. On the first day of employment, the claimant, along with the other new trainees, was informed that there would be an assessment at the end of the training period. She was informed that continued employment was dependent on passing the assessment.
35. The claimant did not perform well throughout the training period and had difficulty with the course content.
36. The relationship between the claimant and the trainer was fraught. The claimant was a difficult student and the trainer found it difficult to teach her. The claimant was unreceptive to assistance. The trainer did her best to assist the claimant and provided equal if not more assistance to the claimant as compared with the other trainees.
37. The claimant sat the assessment test on 18 January 2011 and did not reach the 80% pass mark. The assessment consisted of both a written and a practical assessment. All other trainees were successful and passed the assessment.
38. After the test had been marked, the claimant met with the trainer and Ms Kate Mellon of the Human Capital department and was informed of her failure. For the first time, the claimant then raised the fact that she had been feeling unwell and had been unable to concentrate during her training. She stated that her medication had been making her sleepy.
39. In view of this new information, the claimant was given the option to resit the assessment test the following day or alternatively take up a position on another contract. The claimant opted to sit the test again.
40. The claimant was offered further assistance from the trainer and this took place on the afternoon of 18 January 2011. During this session the claimant confronted the trainer and accused her of not liking her. The trainer responded that this was not true and that the claimant reminded her of her Mum and that she would want someone to help her Mum in similar circumstances. We accept this explanation from the trainer and find that this does not indicate any bias against the claimant. On the contrary we find that it shows that the trainer was willing to help the claimant as much as possible.
41. The claimant resat the assessment test on 19 January 2011 but was unsuccessful again.
42. The claimant was asked to await the results of her assessment. When these were known she was asked to leave the premises and she did so.
43. The respondent then commenced its disciplinary procedures. The claimant was called to a disciplinary meeting on 20 January 2011 and following this meeting a decision was taken to dismiss the claimant. The claimant was informed of this by letter of 21 January 2011.
44. The claimant appealed the decision to terminate her employment and her appeal was heard on 17 March 2011. The decision to dismiss the claimant was upheld.
WRONGFUL DISMISSAL
45. The tribunal finds that the claimant was dismissed in accordance with her contract of employment and the claim of wrongful dismissal is dismissed.
DISCRIMINATION (THE LAW AND OUR CONCLUSIONS)
46. The definition of age discrimination has already been set out above. Such discrimination involves two elements, both of which must be satisfied:
(1) The claimant must have been treated less favourably than the alleged perpetrator treated, or would have treated, an appropriate statutory comparator. (That is “the less favourable treatment” element).
(2) That treatment must have occurred because of the claimant’s age. (That is the “reason why” element).
47. By Notice for Additional Information dated 14 June 2011, the respondent asked the claimant to identify a comparator. The claimant responded in a letter of 29 June 2011 stating that all other trainees who commenced training with her were comparators.
48. The claimant was asked to name her comparators at the hearing. At this stage she stated that the comparator was a trainee called Sophie who had failed the test but had not been dismissed.
49. The tribunal accepted that in relation to the training period, the comparators indicated by the claimant by letter of 29 June 2011 were appropriate. They were younger than the claimant and their relevant circumstances were the same or not materially different from the claimant’s circumstances. However, we did not find any less favourable treatment during the period of training and so did not need to look at any reasons for less favourable treatment where none existed.
50. With regard to the decision to dismiss the claimant, the tribunal concluded that the comparator Sophie, identified by the claimant was not appropriate in that she do not meet the test of her circumstances being the same or not materially different.
51. The tribunal concluded that the comparator should have been a younger employee who had failed the test and had been allowed to remain in employment.
52. We accept that such a person did not exist. The question is then whether the respondent would have treated that comparator differently from the claimant. The tribunal concluded that the claimant did not produce any evidence to show that the respondents would not have treated the person in the same way as they treated the claimant. We accept the respondent’s evidence that all those who failed the assessment would have been dismissed.
53. The tribunal finds that the claimant has not been discriminated against by the respondent on the grounds of her age.
54. The tribunal finds that the claimant has not been harassed on the grounds of her age during her employment.
55. The claimant’s claim are all dismissed.
Chairman:
Date and place of hearing: 10-11 October 2011, Belfast.
Date decision recorded in register and issued to parties: