Industrial Tribunals Northern Ireland Decisions

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Cite as: [2011] NIIT 1070_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1070/10IT

CLAIMANT: Anupam Raj

RESPONDENT: Midhill Ltd Trading As Subway Botanic

DECISION

The unanimous decision of the tribunal is that it does not have jurisdiction to deal with the claimant’s complaints of unfair constructive dismissal and sex discrimination and that the claimant was not subjected to unlawful racial discrimination.

The first named respondent is dismissed as a party from the proceedings as she was not the claimant’s employer.

Constitution of Tribunal:

Chairman: Ms Julie Knight

Members: Mr Pat Killen

Mr Damian Walls

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Bryan Flanagan, Managing Director of Midhill Limited.

Issues

1. The issues to be determined by the tribunal were:

i. Whether the claimant had complied with the requirements of the statutory grievance procedure, and if so and the tribunal held that it had jurisdiction to entertain all or some of the claimant’s complaints;

ii. Whether the claimant was unfairly constructively dismissed; and

iii. Whether the claimant was treated less favourably on the grounds of his race and/or sex.

The tribunal decided that it was in the interests of dealing with the case justly, that it should hear the evidence in relation to all issues rather than deal with the jurisdictional issue as a preliminary point.

Sources of Evidence

2. The tribunal heard the evidence of the claimant, Mr Anupam Raj and his witnesses Ms Princess Pearl Guinito, Ms Rimante Pribusavskaite, Mr Yasser Matloob and Mr Suratha Meher and from the respondent’s witnesses, Mr Paul Fitzgerald, Mrs Lorena Guido, Ms Astrid Xueting and Mrs Charle Baxter. The tribunal also took into account documentation to which it was referred by the parties during the course of the hearing contained in an agreed bundle of documentation.

Findings of Fact

3. Having considered all the evidence the tribunal made the following relevant findings of fact:

4. The claimant lodged his originating claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 2 April 2010. At a Case Management Discussion on 28 October 2010 the claimant confirmed that the substance of his claim concerned allegations that following a row between the claimant and Mrs Charle Baxter during 2008, there was a reduction in the claimant’s working hours and that an incident occurred on 2 October 2009 in which the claimant alleged that his refusal to follow an instruction to clean the toilets led to a reduction in work allocation and the termination of the employment relationship.

5. The claimant’s employer was Midhill Limited, a company incorporated in the Republic of Ireland which owns and trades as the Subway in Botanic Avenue, Belfast and another in Finaghy. Mr Paul Fitzgerald, who is Irish, was appointed General Area Manager in January 2009 and works from home in Ennis, County Clare. Mrs Charle Baxter, who is of Filipino origin, was appointed in April 2007 as Manager of Subway Botanic and reports to Mr Fitzgerald. She is responsible for the recruitment and training of staff and arranges the staff rotas, which run from Wednesday to Thursday, two weeks in advance. Members of staff are generally recruited by “word of mouth” through existing staff members and vacancies are not advertised. Mrs Baxter recruited Ms Guinito (“Pearl”) in May 2007 and Mrs Rufina Zufello (“Pinay”), as a supervisor in September 2007. Pinay, a Filipina, had previously worked with Mrs Baxter in KFC. Mrs Baxter recruited a number of other Filipinos throughout 2007, 2008 and 2009. She recruited Ms Pribusavskaite (“Rimante”), who is Lithuanian, in the summer of 2007 and gave her sister Monika a job in January 2008. Pinay’s son, Jeric was given a job in May 2008. It appears that many of the staff members were students working shifts to fit in with their studies. The amount of hours worked by individual staff members appears from the rotas provided to vary from week to week, without a fixed pattern of allocation.

6. The claimant, who is of Indian nationality, commenced employment as a Sandwich Artist in Botanic Subway on 1 October 2007. The claimant’s CV had been passed to Mrs Baxter by an existing Indian staff member and she rang the claimant to offer him work. At that time the claimant had a student visa which only permitted him to work 20 hours per week. He was generally on the rota for evening shifts and his main role was to make sandwiches for sale to the public. In addition to this the claimant was expected to clean the fridge, retarder and freezer as detailed on the rota. When the claimant joined Botanic Subway, staff were from a variety of national origins, including Northern Irish, Filipino, Indian, including the claimant, Mr Matloob (“Yasser”) and Mr Meher (“Suratha”), Chinese, including Ms Xueting (“Astrid”), North American, Lithuanian and Polish. The tribunal accepted the evidence of the claimant and his witnesses that the respondent did not provide written job descriptions or terms and conditions of employment. The tribunal did not accept that any employment documentation was posted up on the staff notice board. The respondent produced at hearing employment documentation and employee rules which were created by the franchisor with reference to employment law in the USA. No attempt was made by the respondent to modify these in any way to reflect employment legislation and best employment practice in Northern Ireland.

7. The claimant told the tribunal that around June 2008 he complained to Pearl that Mrs Baxter was giving more hours to Filipino workers, who then relayed this to Mrs Baxter who confronted the claimant in the office the following day. He contended that after this row, the atmosphere towards him changed, for example his breaks were cut short and he was told off for taking soup for his lunch. He did not make any complaint about these matters at the time and he said that he felt it necessary to apologise to Mrs Baxter some days afterwards to try to improve relations. Ms Guinito was unable to recollect this conversation. However, in any event, the claimant clarified that his complaint to the tribunal did not concern the hours which were allocated to him by Mrs Baxter prior to February 2009, when his visa conditions changed to permit him to work full time hours.

8. The claimant did not enjoy a good working relationship with some of his colleagues and it appears that on a number of occasions he had arguments with Suratha and Astrid. The claimant told the tribunal that he believed that Mrs Baxter made Suratha a supervisor after this row deliberately to annoy the claimant, with the express intention of undermining any complaint of racial discrimination that the claimant might have. Suratha told the tribunal that Mrs Baxter initially offered to make him a supervisor in April 2008 but he was unable to take up this position until September 2008. On 14 August 2009 there was an altercation between the claimant and Suratha in the Subway Botanic kitchen which resulted in both men making a complaint that the other had subjected him to threatening verbal abuse. Mrs Baxter investigated and dealt with this matter informally and both men agreed to put the incident behind them. The claimant sought to minimise this incident to the tribunal but Mr Meher confirmed that he was frightened and did regard it as serious.

9. In February 2009 the claimant provided Mrs Baxter with a copy of his new visa conditions and asked her to give him full time hours. The claimant clarified that by this he meant anything over 30 hours although he did not specify this to Mrs Baxter at the time. She told him that she would try to accommodate him but that she also had to balance this request with the needs of other employees on the rota. The rotas provided to the tribunal show that the claimant was allocated on average 27 hours per week until week ending 31 March 2009. However during that period there were two weeks when the claimant worked 11.5 and 8.5 hours when he is recorded as being on holiday for part of the rota. Excluding these two weeks his average weekly hours rises to 32. The rotas show that the claimant on some occasions was allocated less hours than his colleagues, including May and Marivic (Filipinos) and Suveta (Lithuanian). Mrs Baxter appointed John Paul (Filipino) as a Sandwich Artist in the rota week ending 17 February 2009. The claimant stated during the course of his cross examination of Mrs Baxter that he was not really complaining about this period as he was able to make sufficient earnings.

10. Unfortunately around February 2009 the claimant’s grandmother became ill and the claimant booked a ticket to return to India on 3 March 2009. Approximately ten days before the departure date, the claimant asked Mrs Baxter for permission to take approximately a months’ leave. Mrs Baxter said that she could not accommodate this request as he had given insufficient notice. The claimant, after consulting with his family in India, and with the agreement of Mrs Baxter changed his ticket to depart on 2 April 2009 and returned from India on 11 May 2009. Prior to leaving for India, the claimant assisted Pinay to obtain the necessary legal documentation to enable her daughter, Charmaine, to come from the Philippines to Northern Ireland. Mrs Baxter subsequently gave Charmaine a job as a Sandwich Artist in early June 2009. Mrs Baxter was on sick leave from 28 March 2009 until 15 June 2009 however the tribunal is satisfied that she continued to draw up the rotas in consultation with Pinay who was in charge of the shop in her absence.

11. When the claimant returned from India in May 2009 his average weekly hours on the rota was 21.5. In the week ending 26 May 2009 the claimant was allocated only 18 hours, but that week, among his Sandwich Artist colleagues, only Jeric, Pinay’s son, was allocated more hours. During June, July and August 2009 the hours allocated to the claimant are markedly reduced and in some rotas he is allocated only 9.5 hours (weeks ending 4 and 11 August). The claimant accepted that the Botanic Subway was quiet during the summer months when the university students have gone home and the tribunal noted that his colleagues’ hours were also generally reduced. It appears that Jeric and Charmaine were consistently allocated more hours than the claimant who suggested that this was because Mrs Baxter wished to favour them as Pinay’s children. The tribunal noted that Dustin (North American) in some weeks during the summer period, was given more hours than the claimant in a number of the rotas. The respondent’s case was that the claimant’s hours were increased in September 2009 when the student’s came back. The claimant accepted that he was allocated more hours at this point but suggested that Mrs Baxter knew that he was seeking another post and wanted to make things difficult for him by giving him more hours.

12. The claimant applied for a job in Teletech towards the end of August 2009 as he was not able to earn a sufficient living from his job in Botanic Subway. He had learned of this position through Yasser who himself had obtained employment with this firm. He gave Mrs Baxter as a referee and she provided him with a satisfactory reference. He was offered the job and he commenced this employment on 14 September 2009. The claimant texted Mrs Baxter on 19 September to ask her not to put him on the rota for the following week as he had an exam and to put him on the rota for the week after that from 11pm “as of now”. The claimant’s hours with Teletech were Monday to Friday 5 pm to 11 pm, with some weekends. The rotas show that the claimant was not allocated any hours as per his request in the week ending 29 September and that for the week ending 6 October 2009, he was put on the rota from 11 pm until close on 2 and 3 October 2009.

13. The claimant sent a text to Mrs Baxter on 2 October 2009 to request that he should be put on the dayshift on Saturdays from now onwards. Mrs Baxter told the tribunal that she was not able to accede to this request as the day time shifts had already been allocated to Astrid and Charmaine and the claimant was already allocated the nightshift for 3 and 10 October 2009. Mrs Baxter told the tribunal that she sent a text to the claimant explaining this and that she would try to accommodate him. The claimant texted back the same day: “I understood your problem. Try this for a month only and then I’ll see how to manage as I got a whole month rota for my other job.” The claimant told the tribunal that when he came into work on 3 October he saw the rota for the following week with his name on the Saturday dayshift.

14. Shortly after the claimant arrived into work for the evening shift on 2 October 2009, Mr Joey Digam, a Filipino employee asked the claimant to clean the toilets. He told the claimant that the supervisor Ms Lorena Guido had said this instruction has been phoned in by Mrs Baxter. Lorena (who is Filipino) was recruited by Mrs Baxter in September 2009 from another Subway franchise as a supervisor as the former wished to extend the opening hours of the Botanic Subway. Mrs Baxter told the tribunal that she rang Lorena and told her to make sure that the toilets were cleaned but denied that she specified that the claimant should be asked to clean the toilets. Lorena said that she could not recall whether this was the case or not, but that as she had recently started with Botanic and did not know the claimant very well, she asked Joey to instruct him to clean the toilets. The tribunal was referred to statements of Lorena and Joey and was satisfied on a balance of probabilities that Mrs Baxter did specify that an instruction be given to the claimant. The claimant refused to clean the toilets and the next day emailed Mrs Baxter asking whether she had issued the instruction and querying if this was in his job description. The claimant’s evidence, which was not disputed by Mrs Baxter, was that he had not previously been asked to clean the toilets, as part of his general cleaning responsibilities. Mrs Baxter did not respond to this email and told the tribunal that this was because she did not receive it.

15. The claimant told the tribunal that on Monday, 5 October he called into Subway Botanic and saw that his name had been removed from the rota for the following Saturday. Mrs Baxter accepted that she had removed his name but said this was because he had been allocated the nightshift for 10 October and the claimant had indicated he wanted to work the day shift which had already been allocated to his colleagues. The rotas show that the claimant was not allocated any further hours after the week ending 6 October 2009. The claimant told the tribunal that he believed that this was because he had refused to carry out Mrs Baxter’s instruction to clean the toilets.

16. The claimant sought advice from the Equality Commission for Northern Ireland and was informed that he would have to make a written grievance to the respondent. After making a number of enquiries as to whom he should address his grievance, the claimant sent an email on 30 October 2009 to Mr Bryan Flanagan setting out his grievance. He complained of less favourable treatment on racial grounds concerning the allocation of hours and the events of 2 October 2009. Mr Fitzgerald responded by email on 31 October 2009 asking the claimant to meet with him. He sent a copy of the claimant’s email to Mrs Baxter and asked her to provide a written response. Mrs Baxter sent an email to Mr Fitzgerald with her response and Mr Fitzgerald told the tribunal that he conducted further investigations over the phone with Pinay and Lorena as supervisors in the Botanic and Finaghy shops. He did not disclose that a grievance had been raised, he said to protect the privacy of the claimant and Mrs Baxter. Instead he asked a number of questions concerning staff morale and the relationship between Mrs Baxter and the sandwich artists but was told nothing untoward. The claimant initially indicated that he would be prepared to meet with Mr Fitzgerald but on 4 November 2009 emailed to say that he had set out his grievance and wanted it dealt with in written form. He enquired whether Mr Fitzgerald was representing the respondent as a legal officer.

17. Mr Fitzgerald emailed the claimant within the hour expressing regret that he would not agree to meet with him and setting out his conclusions concerning the toilet incident and the allocation of hours. He denied that there was any racial bias on the part of Mrs Baxter and he concluded his email by stating that Mrs Baxter was unable to contact the claimant since 2 October and that he was very happy with Mrs Baxter’s performance as manager of the two Belfast stores and that he had “no intention of reprimanding her”. The claimant told the tribunal that when he received this email he decided that he could not return to work for the respondent. He sent a further email to Mr Fitzgerald on 5 November acknowledging the email and requesting information concerning the payment of £139.50 into his account by the respondent. Mr Fitzgerald responded later that day to advise that this was holiday pay and that he was still on the payroll and that the onus was on him to contact Mrs Baxter if he was available and willing to work. There was no further communication between the claimant and the respondent between that date and the lodging of the originating claim with the industrial tribunal.

The Law

The Statutory Grievance Procedure

18. An Industrial Tribunal does not have jurisdiction to hear complaints of racial and sex discrimination or a complaint of unfair constructive dismissal unless the employee has complied with the statutory grievance procedure prescribed by Article 19 of the Employment (Northern Ireland) Order 2003. This provides that:

“(2) An employee shall not present a complaint to an Industrial Tribunal under a jurisdiction to which this article applies if –

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 1 applies, and

(b) the requirement has not been complied with.

(3) An employee shall not present a complaint to an industrial tribunal under a jurisdiction to which this article applies if–

(a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of schedule 1 has been complied with, and

(b) less than 28 days have passed since the day on which the requirement was complied with.”

Racial Discrimination

19. The relevant legislation is set out in Article 3 of the Race Relations (Northern Ireland) Order 1997. Under these provisions direct discrimination on the grounds of race is prohibited. The legislation provides that a person discriminates against another in any circumstances relevant for the purposes of any provisions of the legislation, if on racial grounds, he treats that other less favourably than he treats or would treat another person. Part II of the 1997 Order provides that it is unlawful for a person in relation to employment by him at an establishment in Northern Ireland to discriminate in the arrangements made for the purposes of determining who should be offered that employment or by refusing or deliberately omitting to offer (him) that employment.

The Statutory Comparator

20. The legislation requires the claimant to compare his circumstances with an actual or hypothetical comparator whose relevant circumstances are the same or are not materially different from those of the claimant. Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator. However it is open to the tribunal to focus on the reason for the claimant’s treatment; “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was. Was it on the proscribed ground which is the foundation of the application? Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.” Per Lord Nicholls at Paragraph 11 Shamoon -v- Chief Constable of the RUC 2003 IRLR 285.

Burden of Proof

21. These provisions state that where on the hearing of the complaint the claimant proves facts from which the tribunal could apart from this Article conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of the legislative provisions, 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.

22. Guidance on the application of this provision was given by the Court of Appeal in the cases of Igen Limited -v- Wong 2005 IRLR 258 in which the Court of Appeal ruled that the guidance issued by the EAT in Barton -v- Investec Henderson Crosthwaite Securities Limited should be applied and amended 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 the 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 where which by the 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 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 would therefore usually depend on what inferences it is proper to draw from the primary facts bound 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 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 where inference of secondary fact could be drawn from the facts.

(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 an appropriate case 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 Section74(2) of the 1975 Act.

(8) Likewise a 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 56(a)(1) 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 employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

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

(11) To discharge that burden it is necessary for the employer to 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.

(12) That requires a tribunal to assess not merely whether the employer has proved an explanation from the facts from such inference can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex is 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, the tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the tribunal will need to examine carefully examinations for failure to deal with the questionnaire procedure and/or Code of Practice.

The tribunal took into account the following authorities;

London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154; Igen Limited and others v Wong; Chamberlin Solicitors and Another v Emokpae; Brunel University v Webster [2005] IRLR 258; Zafar v Glasgow City Council [1997] IRLR 229; Nagarajan v London Regional Transport [1999] IRLR 172; Law Society v Bahl [2003] IRLR 640; Shamoon v the Chief Constable of the RUC [2003] UKHL11 [2003] IRLR 285 2003; Madarassy v Nomura International PLC [2007] EWCA CIV 33; Shergold v Fieldway Medical Centre [2006] IRLR 76; Canary Wharf Management Ltd v Adebi [2006] IRLR416.

Conclusions

23. The title of the proceedings is amended as the claimant’s employer was Midhill Limited trading as Subway Botanic.

24. Under the statutory dispute procedures an employee is obliged to set out the grievance in writing, send it to the employer and wait for 28 days before lodging a complaint with the Office of the Tribunals. The respondent’s case is that the claimant did not make a written grievance concerning his complaints of unfair constructive dismissal and sex discrimination and therefore the tribunal does not have jurisdiction to entertain these complaints. The claimant contended that his email of 30 October 2009 complied with these requirements.

25. In Shergold v Fieldway Medical Centre [2006] IRLR 76, Mr Justice Burton, then President of the EAT, reviewed the case law on this issue and emphasised that the purpose behind the statutory grievance procedures is to give the parties a chance to settle disputes before litigating. However the statutory requirements are “minimal” in terms of what is required. Although the grievance must be set out in writing it is not necessary for the employee to make it clear that he or she is raising a grievance or invoking a grievance procedure. Nor is there a requirement that every detail of the complaint is set out in the grievance letter. It is sufficient if the employer can “understand the general nature of the complaint being made.” There is no requirement that an employee comply with any company or contractual grievance procedure. Step1 of the standard grievance procedure simply requires the employee to “set out the grievance in writing.” However step 2 requires that prior to the meeting to discuss the grievance, the employee must notify the employer of the basis for the grievance. The modified procedure requires the basis for the grievance to be set out at step 1. The word “basis” is not defined in the Regulations but in the Canary Wharf case, Elias P explained that the basis for the grievance requires some additional information from the employee to substantiate his or her complaint.

26. In the present case the claimant’s grievance is contained in his email of 30 October 2009. Neither this nor subsequent emails mention a complaint sex discrimination. The grievance email predates the claimant’s decision on 4 November 2009 to terminate his employment relationship with the respondent. The claimant’s email to Mr Fitzgerald on 5 November 2009 does not refer to his decision to resign. Therefore the tribunal must find that the claimant has not complied with the requirements of the statutory grievance procedure concerning his complaints of sex discrimination and unfair constructive dismissal and hold that it does not have jurisdiction to deal with these complaints which are therefore dismissed.

27. This leaves the claimant’s claim of unlawful racial discrimination which is limited to the complaint that he was treated less favourably in the allocation of hours from February 2009 (after the change in his visa conditions) and that his request to work full time hours was not granted; in being requested to clean the toilets on 2 October 2009 and not giving him hours on the rota after that date. The tribunal had to consider whether the claimant had established facts from which it could conclude that he had been subjected to unlawful discrimination on grounds of his race. The tribunal was mindful that, following the reasoning of the Court of Appeal of England and Wales in the Madarassy case, the burden of proof does not shift to the respondent simply by the claimant showing a difference in status and a difference in treatment of him. The bare facts of a difference in status and a difference in treatment only indicate the possibility of discrimination and without more is insufficient material from which the tribunal can conclude or could conclude that on the balance of probabilities the respondent has committed an act of discrimination. The tribunal is required at the first stage to consider the evidence of both the claimant and the respondent.

28. The claimant’s contention was that after February 2009 Mrs Baxter deliberately allocated him fewer hours than his Filipino colleagues even though he had requested full time hours, and that she deliberately recruited Filipino staff even rather than give him more hours and this meant that he was forced to seek other employment as he was unable to earn a living wage. The claimant’s hours appear to have increased prior to him going to India and he indicated that he did really not have a complaint about the hours at this stage even though they did not exceed his own definition of full time work. The claimant’s hours did appear progressively to decrease after he returned from India and the claimant accepted that during the summer the amount of work available decreased because the students were away until the end of August. In examining the rotas the tribunal noted that during this period other employees of different nationalities, not just Filipino, were allocated more hours than the claimant. On some occasions the claimant was allocated more hours than some of his Filipino colleagues but less than other Filipino colleagues. Furthermore the tribunal considered that the claimant’s own contention that Jeric and Charmaine were allocated more hours because of their relationship with Pinay, Mrs Baxter’s friend, tended to undermine his case that he was treated less favourably on racial grounds.

29. The tribunal carefully considered the possibility that Mrs Baxter was motivated specifically against the claimant because of his Indian origin but concluded that this could not be the case, given that she had promoted Suratha and he was regularly allocated in excess of 30 hours on the weekly rota. The tribunal did not accept that this was a ploy on the part of Mrs Baxter to defeat a claim of racial discrimination by the claimant, as she had offered Suratha the supervisor’s position before the alleged argument about hours in June 2008.

30. Furthermore it was the claimant’s own case that the reason why Mrs Baxter did not put him on the rota after 3 October 2009 was because he had refused her instruction to clean the toilets. The tribunal concluded on a balance of probabilities that this was indeed the reason and was not connected with the claimant’s nationality.

31. Turning to the instruction to clean the toilets, the tribunal accepted that the claimant had not previously been asked by Mrs Baxter to clean the toilets. The claimant accepted that there was nothing intrinsically demeaning in cleaning toilets - what he objected to was that he was asked to do it, when he had not previously been asked to clean the toilet. However the tribunal did not consider that the claimant had demonstrated that he was subjected to less favourable treatment in this regard. In reaching this conclusion the tribunal took into account that Mrs Baxter regularly cleaned the toilets as did other members of staff, including Lorena and Suratha.

32. For these reasons the tribunal concludes that the claimant was not subjected to less favourable treatment on racial grounds and accordingly his claim is dismissed in its entirety.

Chairman:

Date and place of hearing: 1-5 November 2010 and 15 November 2010.

Date decision recorded in register and issued to parties: