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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Miskelly v The Restaurant Group (UK) Ltd [2012] NIIT 02195_11IT (20 July 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2195_11IT.html
Cite as: [2012] NIIT 2195_11IT, [2012] NIIT 02195_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2195/11
CLAIMANT: Jonathan Miskelly
RESPONDENT: The Restaurant Group (UK) Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of:-
(i) racial discrimination on grounds of his nationality;
(ii) breach of contract;
(iii) victimisation under the Race Relations (Northern Ireland) Order 1997; and
(iv) part VA of The Employment Rights (Northern Ireland) Order 1996, have not been upheld. His claims are dismissed in their entirety.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Mr J Devlin
Mr A Crawford
Appearances:
The claimant presented his own claims.
The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Lewis Silkin LLP, Solicitors, London.
BACKGROUND
1. The claimant’s employment by the respondent began on 1 June 2011. He was appointed to be the General Manager of the respondent’s restaurant, Frankie and Benny’s, which was to open in late August 2011. Until that time, the claimant was to take part in the respondent’s “Manager In Training” (MIT) programme. However, the claimant was dismissed (with notice) on 26 July 2011. His employment had lasted some eight weeks.
2. The originating application in this case was received by the tribunal on 21 September 2011. At section seven of the application, the claimant provided the following details of his claim:-
7.1(a) Unfair dismissal (including constructive dismissal).
7.1(c): Claiming £541.66 holiday pay and an undisclosed sum for breach of contract.
7.1(d): Discrimination on the grounds of race.
7.1(e): “Other complaints.
I have provided information to ECNI and EHRC regarding this company discriminating against Northern Ireland by failing to advertise vacancies in the country. They claim to have advertised in Republic of Ireland and Poland only.”
7.2: The discrimination is said to be ongoing.
3. In Section 7.4 ‘Details of your claim’, the claimant sets out more detail of his complaints. These include his allegations that:-
(a) he believed he was discriminated against by Chris Thynne (from Scotland) in favour of Gabrielle Caizzo (from England);
(b) at a training event in Edinburgh, Gabrielle Caizzo told the respondent’s Human Resources trainer, James Haigh, in the presence of the other participants, that the kitchen staff appointed for the proposed Bangor restaurant were Polish;
(c) he had followed the advice of a local politician and reported the above to the ECNI and EHRC for ‘further investigation’ as he believed this breached the “Equality Act”;
(d) his rota had been constantly changed without warning;
(e) his job (and others) had been advertised by the respondent on www.caterer.com;
(f) he had been suspended by Chris Thynne, Senior Area Manager, on 22 July, and dismissed by him on 26 July following a disciplinary hearing; and
(g) the respondent had discriminated against him on grounds of his nationality.
4. The day after he had lodged the originating application, the claimant submitted a letter, (wrongly dated 20 July 2011), which stated that due to the “overwhelming capacity” (sic) of this case, he had omitted to include a claim of victimisation relating to an incident in Edinburgh. He said that he had “raised a concern to James regarding the hiring of only Polish employees for the kitchen jobs and was then subjected to further victimisation by the business and believe me raising my concern to James Haigh to be one of the key reasons for my dismissal”. (James Haigh had provided training on personnel issues to the claimant and others.)
5. The letter also stated that he had received advice from the Equality Commission that morning and requested that this be considered by the tribunal in due course.
6. The tribunal later notified the claimant that his claim - at Section 7.1(a) - of unfair dismissal had not been accepted as he did not meet the service requirement of not less than one year.
7. The President, Ms McBride, held a Case Management Discussion in this claim on 13 December 2011 which, without objection by the respondent, included the victimisation issue to the claim. The respondent’s application for a Pre-hearing Review to consider striking out the claim as misconceived or for a deposit and costs warning, was not admitted, on the basis that it was premature. A hearing was however arranged to consider the claimant’s application for an extension of time to allow him to seek a review of the non-acceptance of his claim at Section 7.1(c) for breach of contract to include a claim of breach of trust. This subsequent hearing resulted in a decision dated 20 January 2012 that breach of contract in respect of the implied term of trust and confidence was to be included in the list of issues for consideration by this tribunal.
8. On 14 March 2012, the Vice-President, Mr Kelly, held another Case Management Discussion to settle the list of issues for determination and to consider the lengthy witness statement of the claimant. The Vice-President noted that the claimant had previously been given specific instructions with regard to identifying issues but that his statement covered matters which were not relevant to the claim and lengthy submissions. To avoid further and unnecessary delay, he directed that both versions of the issues were to be put before this tribunal while expressing his clear view that the ‘draft’ issues prepared by the respondent’s solicitors were “entirely correct and appropriate”. In the Vice-President’s view, “The amendments suggested by the claimant were either irrelevant and/or argumentative”. This tribunal concurred with the views of the Vice-President.
9. In his concluding paragraph, the Vice-President expressed his view that the claims were essentially simple. The claimant alleged he was ‘messed about’ by the respondent in terms of discipline, dismissal, work rotas, training, etc, because of his nationality or because he had raised issues in relation to Polish kitchen staff. Either this allegation was correct or it was incorrect. “The tribunal is not a freestanding public enquiry into the workings of the respondent company. It will focus; and focus exclusively, on the matters raised in the claim and identified in the respondent’s list of issues.”
10. Despite this clear direction from the Vice-President, the claimant wrote to the tribunal following a refusal by the respondent to include materials which he had prepared in the Hearing Bundles. This material had been collated by the claimant and related to the respondent’s recruitment strategy. The claimant believed that the respondent was suppressing relevant information. Consideration was given to a further Case Management Discussion but the Vice-President directed that this tribunal should deal with this issue. When this was done, the material was not admitted as it was not relevant to the issues in dispute between the parties.
THE ISSUES FOR DETERMINATION
11. The tribunal had a brief discussion with the parties on the morning of the first day of the hearing. In view of the above background, the claimant was advised of the nature of the evidential burden in discrimination cases. He was also advised in detail of the nature and function of the tribunal and in particular of the overriding objective. In this regard, the tribunal was following the direction by Morgan LCJ in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, that tribunals should follow the guidance given by Girvan LJ in the Peifer case:-
“Unnecessary length substantially increases the overall costs of proceedings; ties up tribunal Chairmen and members unduly; delays other cases coming on for hearing; and often requires the attendance of witnesses for undue length of time thus affecting their capacity to do their own jobs or run their own businesses....
Dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues, ensuring that the case is dealt with expeditiously and fairly and the saving of expense... Parties should be required to concentrate on relevant issues and the pursuit of irrelevant issues and questions should be strongly discouraged...
The overriding objectives... impel a tribunal to exercise its control over the litigation before it robustly but fairly.”
12. Girvan LJ went on to recognise that “while tribunals must give some latitude to personal litigants … the tribunal remains under the same duty to ensure that the overriding objectives are pursued”.
13. With
regard to the issue relating to the duties of an employer under
anti-discrimination legislation, the claimant was advised that there was no statutory
requirement on employers with regard to recruitment and selection. Codes of
Practice to assist in the promotion of equality of opportunity in recruitment
and selection have been produced in relation to each of the protected grounds.
Failure to follow best practice contained in these codes may be taken into
consideration by tribunals but is neither mandatory nor illegal.
14. Having read and considered the pleadings in the case and the 63 page statement of the claimant, the tribunal ruled that the issues for its determination would be those of the respondent and identified as “entirely correct and appropriate” by the Vice-President. These are:-
Agreed Legal Issues
(1) The claimant had identified Gabrielle Caizzo as the relevant comparator with respect to all his claim that he was subjected to less favourable treatment.
Disputed legal issues to be determined by the tribunal
(1) Was the claimant subjected to less favourable treatment with respect to the following alleged acts of the respondent:-
(a) his training as a General Manager;
(b) changes made to his rota;
(c) the advertisement of a job on 20 July 2011 on caterer.com;
(d) the disciplinary procedure which led to his dismissal; and
(e) his dismissal.
(2) Did the above alleged actions of the respondent amount to direct discrimination prohibited by the Race Relations (Northern Ireland) Order 1997 (the 1997 Order)?:-
(a) Does the claimant allege that all the above acts (1(a) - (e)) amount to continuing act, culminating in his dismissal, or individual acts of direct discrimination?
(b) If they use individual acts of discrimination, does a time bar issue arise in relation to any of them?
(3) Does the claimant claim his nationality is ‘British’ or ‘Northern Irish’ - is this a racial grouping for the purposes of the 1997 Order?
(4) Does the claimant allege that the respondent’s actions regarding his training and rota arrangements amounted to indirect discrimination on grounds prohibited by the 1997 Order? If so:-
(a) What requirement or condition was applied by the respondent with respect to these matters?
(b) Was the claimant not able to comply with it?
(c) Was a higher proportion of people of the claimant’s nationality less likely to be able to comply with it?
(d) Can the respondent objectively justify the requirement or condition?
(5) Was the claimant’s dismissal an act of victimisation due to a protected act by him under Article 4(2) of the 1997 Order by the claimant on 19 July 2011?:-
(a) Did anything said by the claimant to James Haigh on 19 July 2011 regarding the respondent’s advertising of posts for the Bangor restaurant amount to a protected act?
(b) If so, was the alleged protected act done in good faith?
(c) If so, was the claimant dismissed because of that act?
(6) Did the claimant comply with the LRA Code of Practice on Disciplinary and Grievance Procedures (the ‘Code’) with respect to his claims of race discrimination? Did the respondent comply with the Code in dealing with any matters raised by the claimant with respect to the Code?
(7) Did placing an advertisement in the caterer amount to a breach of the implied term of trust?
15. That is not quite the end of the issues question, however. On the morning of the third day of hearing, the clerk provided the tribunal with an e-mail addressed to the Chairman. As the hearing was still ongoing the letter was returned unread to the claimant and he was informed that it was inappropriate to make submissions about the case to the tribunal in the absence of the respondent’s representative. The submissions were to be provided in advance to Mr Doherty and then given to the tribunal in the hearing. As he did not have an opportunity to do so due to the unexpected finish of the hearing later that day, the claimant was advised to include this documentation with his submissions.
16. The submission submitted made reference to the above which the claimant said constituted an application for an amendment to his claim. On 1 May 2012, he had found information on a Government website: www.nidirect.gov.uk, which led him to believe that he had been misinformed earlier by the tribunal. He believed he had a right to make a claim for unfair dismissal even though he had not been employed for at least one year as he was a ‘whistleblower’.
17. The tribunal considered this application at the panel meeting to agree its determination of the issues in dispute between the parties. The tribunal accepted that the claimant had sought to make this application during the hearing but did not have an opportunity to do so. He had however provided the documentation to the tribunal and the respondent’s representative. While it is unusual, the tribunal has decided that it is the interest of justice to include this issue by way of an alternative to the victimisation claim in the letter of 20 September 2011 admitted by the President in her decision of 20 January 2012 so that the issue raised in that letter should have been “victimisation and/or whistleblowing”.
18. In doing so, the tribunal has borne in mind that Girvan LJ recognised that tribunals must give some latitude to personal litigants, while ensuring that the overriding objectives are pursued. The tribunal has determined that a failure to include whistleblowing with the victimisation claim, both of which are based on the claimant having done a protected act, would result in an injustice to the claimant and inevitably lead to further hearings and costs. The respondents have had opportunity during the hearing and in their submissions to challenge the claimant’s claim that he has done any protected act and the tribunal will not need to hear any further evidence in this regard.
SOURCES OF EVIDENCE
19. The tribunal was provided with a large bundle of documentation of at least 500 pages. In addition, the respondent provided a file of statements from five witnesses, (50 pages), Chris Thynne, Stephen Coulter, Gail Burns, James Haigh and Gavin Peace, all employees. The claimant’s additional file contained his witness statement, (53 pages), his supplementary statement (14 pages) plus submissions in relation to remedy, and Schedule of Loss. He also provided extracts from the nidirect website on whistleblowing and unfair dismissals.
20. Both parties provided submissions. Those of the respondent related to the claims and the evidence heard while that of the claimant focused more on his application for amendment to his claim.
21. The tribunal heard oral evidence from the claimant. Chris Thynne gave evidence on behalf of the respondent.
FINDINGS OF FACT
22. The claimant was interviewed on 27 April 2011 by Chris Thynne for the position of General Manager of the respondent’s proposed new restaurant due to open in Bangor in late August 2011.
23. The respondent operates several chains of branded restaurants across the United Kingdom. In total, it operates around 400 restaurants and employs over 10,000 people. It takes on 8,000 additional employees each year because of the high turnover of staff in this industry. In Northern Ireland in April 2011, the respondent had two restaurants in operation in the Victoria Centre, Belfast; Chiquito’s and Frankie and Benny’s. The respondent planned to open two additional Frankie and Benny’s restaurants in Northern Ireland, one in Bangor in late August followed by another at Sprucefield in November.
24. Even though the proposed Bangor restaurant was not due to open until late August, the recruitment process for the General Manager began in March 2011 on a website, www.caterer.com, an industry specialist site.
25. The claimant was interviewed initially by Marco Reick, the respondent’s Group Recruitment Manager and then at a second interview by Chris Thynne, Senior Area Manager, on 27 April 2011. It would have been obvious to Mr Thynne at interview that the claimant was from Northern Ireland.
26. General Manager applicants are required to have had previous restaurant management experience and skills. On appointment, they undergo a programme of Manager-in-Training (MIT) which will last from 12 to 14 weeks. The training will be carried out mainly by a senior experienced General Manager and an Area Trainer who both then report to an Area Manager. In this case, the person designated to conduct the training was Steven Coulter (Irish) who was responsible for the opening of all the Northern Ireland stores. His Line Manager, was Chris Thynne (Scottish) who was Senior Area Manager for parts of Northern England, Scotland and Northern Ireland. Gail Burns (English) was the Area Trainer for that same area which included about 25 restaurants.
27. By an e-mail dated 5 May 2011, the claimant was offered the position of General Manager at Frankie and Benny’s in Bangor at a salary of £26,000 per annum plus a bonus of up to £13,000 per annum paid quarterly. The bonus was not guaranteed but the claimant was told that most new openings saw “the majority” of that within the first year. The claimant was also told that he would receive a formal letter of offer within a few days. His start date was 1 June 2011 at the Belfast restaurant.
28. The claimant was not the only new employee starting at about that time. The previous day another new General Manager, Gabrielle Caizzo (English), who had been appointed as the future General Manager’s position at the Belfast store. His initial placement was at a Frankie and Benny’s restaurant in East Kilbride. This restaurant was often used by the respondent to provide two weeks training in its kitchen because that Restaurant was not as busy as others within the training area managed by Chris Thynne and allowed a more personal training experience.
29. In the Belfast restaurant, there were two MIT’s, Angelique Salter (British), appointed as the claimant’s Deputy Manager at Bangor and Paul Fairgrieve (Northern Irish), Deputy Manager for Belfast. Another employee, Justin Pickering (Northern Irish) was nearing the completion of his MIT programme for the position of Deputy Manager at Belfast.
30. The MIT programme had been developed by the respondent at great cost to ensure that new recruits were trained to their chain’s brand standards, policies and procedures. There are over 200 Frankie and Benny’s restaurants in the UK and all are required to be in conformity with the respondent’s corporate identity. Each recruit is provided with a MIT folder of training materials and computer based training modules to complete. They were encouraged to work through their folders when possible and were each given one day per week to concentrate on their programme materials. Stephen Coulter was in weekly contact with Chris Thynne about the progress of each trainee.
31. The claimant noted that when he first met Gabrielle Caizzo in mid-June after his Kilbride training, his folder appeared ‘a lot fuller’ than his. The tribunal noted that while the claimant’s belief that Gabrielle’s fuller MIT folder was indicative of his better training opportunities, Stephen Coulter’s perception was that Gabrielle had spent more time and effort in completing the exercises in the MIT folder than the claimant had done on his.
32. The claimant had concerns about aspects of his training and raised these with Stephen Coulter. The claimant’s belief was that Stephen’s one-to-one training concentrated on Gabrielle while the claimant’s training was provided by less senior staff. He also complained that he had not been involved in the recruitment of the kitchen staff for the Bangor site and said that his oral communications with those appointed might be difficult as they were Polish. There was also the matter of changes to the claimant’s rota at short notice, and an incident where the claimant had requested a refund of travel expenses from petty cash which was contrary to company procedures and which resulted in an angry rebuke from Stephen Coulter.
33. Chris Thynne visited the restaurant on 11 July 2011. The claimant had been working until 10.30 pm the previous night and had been back on duty to check stock at 7.00 am. Chris noted that the claimant looked tired. They discussed arrangements for the Bangor opening and the claimant raised his request for the two week training in Kilbride and his desire to be more involved in staff recruitment. He was told he would be involved in interviews for the front of house staff.
34. As Area Training Manager, Gail Burn’s role is to ensure that each trainee completes each element of the MIT programme. She is also the first point of contact for any issues they have with that training. In common with her colleagues, she places great emphasis on the need to maintain and promote brand standards. She organises regular telephone, e-mail and personal contact with trainees and is in regular contact with Chris Thynne, her Line Manager. She had met the claimant on 10 June 2011 and visited again on 14 July 2011.
35. From the outset of that meeting, Gail Burns formed the view that the claimant was very negative in his comments about the company and its brand standards, especially with regard to his training. He was critical of Stephen Coulter spending time with Gabrielle Caizzo and not with him and the fact that Gabrielle had had the opportunity to go to Kilbride and he had not. Gail explained that, as the claimant had previously been informed, the decision had been made to “fast track” Gabrielle’s training so that he could take over the General Manager’s role in Belfast to allow Stephen to move to Bangor with the claimant to give him support and finish his training during the important opening period. The claimant complained about his long hours and was critical about aspects of the respondent’s brand standards. He expressed his belief that the practices of his previous employers were better and indicated that he intended to do things his way at Bangor when he took over. This attitude caused Gail Burns such concern she decided she needed to contact her Line Manager.
36. Gail Burns telephoned Chris Thynne about the claimant and then e-mailed a short report of the meeting which concluded by saying that the claimant “did not demonstrate the ability to manage his negative emotions or lack of enthusiasm toward his colleagues or future with the company”.
37. The claimant was off on 15 July but on his return to work on 16 July, he found that his rotas had been changed. He raised the matter with Stephen Coulter who accepted that the rota was not ideal, and he made other changes. The claimant telephoned Chris Thynne who returned that call. The claimant “outlined” his concerns about changing shift patterns, kitchen recruitment for Bangor, and Stephen Coulter’s training.
38. On 19 and 20 July 2011, the respondent had organised a training event in Edinburgh conducted by James Haigh, Assistant Human Resources Manager. Topics to be covered were Employment Law (including discrimination) and Managing People, which included recruitment and immigration. While there were differences between the parties with regard to elements of this incident, it was common case that at one point Gabrielle Caizzo told Mr Haigh that the kitchen staff for the Bangor restaurant were recruited by an advertisement on a website www.polishbelfast.com. Angelique Salter voiced agreement with Gabrielle. James Haigh indicated some disapproval of the practice. No mention is made anywhere of the claimant taking any part in this discussion. However, in his letter to the tribunal (on 20 September 2011), following advice from the Equality Commission the claimant states:-
“Further to my point raised about the incident in Edinburgh involving James Haigh (HR Manager), Gabrielle Caizzo and myself, I raised a concern to James Haigh regarding the hiring of only Polish employees for the kitchen jobs and was then subjected to further victimisation by the business and believe me raising my concerns to James Haigh to be one of the key reasons for my dismissal.” (Emphasis added.)
39. The tribunal noted that this was the first occasion when the claimant stated that he had any communication at that time on this topic with James Haigh.
40. On 20 July 2011, Angelique Salter informed the claimant that she had seen his job had been advertised on www.caterer.com. When he checked the site, he saw the advertisement which said “General Manager - Northern Ireland - Belfast area - Location Bangor (BT20)”. The respondent acknowledged that this had happened but said that the vacancy in question was for the proposed new restaurant at Sprucefield and that the error regarding location had been noticed and was soon rectified. The tribunal do not find that the claimant suffered any detriment from what was a most unfortunate but minor error.
41. On 21 and 22 July 2011, the claimant along with Chris, Stephen and Gabrielle took part in interviews to select the front of house staff for the Bangor restaurant. After this was completed, Chris Thynne asked to speak to the claimant. After a short conversation, Chris Thynne handed the claimant a letter inviting him to attend a disciplinary meeting on 26 July 2011 to determine whether disciplinary action should be taken against him as a result of shortcomings in his “general performance”. The letter stated that dismissal was a possible outcome of the meeting. The claimant was told to stay at home in the meantime.
42. The decision to initiate disciplinary action was taken by Chris Thynne. He made it prior to the beginning of the interviews and had prepared the letter for the claimant himself. Later that same day, the claimant sent Chris an e-mail asking for confirmation that his suspension was with pay. He later rang Chris who confirmed that it was.
43. Chris chaired the disciplinary meeting on 26 July 2011 and Richard Corbett, Chiquito Restaurant Manager, took notes. The claimant was accompanied by Gemma Butler, a colleague.
44. Subsequently, Gemma Butler was dismissed for a disciplinary matter totally unconnected to the claimant and which pre-dated his hearing. The claimant later alleged that her dismissal was because she had accompanied him and was intended as a warning to any other employee who may have sought to assist him in her place.
45. At the hearing, Chris Thynne told the claimant that he had received reports from Gail Burns and Stephen Coulter about his performance to date with regard to his MIT programme. In addition, Chris had made his own observations when they had met and as a result had formed a view that the claimant’s performance displayed a lack of application, especially to the completion of his MIT folder, a lack of commitment with regard to his complaints about his hours of work, an intention to depart from brand standards and an apparent lack of enthusiasm for the job.
46. Mr Thynne also questioned the claimant about on-line betting during working hours. The claimant denied this and produced evidence that this allegation was not true. The allegation was not taken further.
47. In response, the claimant said that he had been told that Gabrielle was a priority. Gabrielle had been given 1:1 coaching by Stephen and had been sent for kitchen training in East Kilbride while he had been largely trained by more junior staff and not sent to East Kilbride despite several requests. The claimant also compared himself favourably to other named staff and criticised their performance and complained that he was expected to work on his own time on his folder. Rather than complaining about brand standards, the claimant said he was suggesting improvements to service procedures that he had learned in his previous employment a position in which he had been employed at a more senior level than the respondent’s General Managers.
48. The claimant asked Mr Thynne for an address to which he could submit a grievance, and also asked about expenses he was owed and requested copies of any statements relied on and details of any allegations made.
49. In a letter dated 27 July 2011, Chris Thynne informed the claimant that his contract was terminated with one week’s notice. The reason given was the claimant’s failure to maintain the required standards - “Following consideration with both your General Manager and the Area Trainer, it is my view that you have not demonstrated the required aptitude, attitude and commitment as would be consistent with the role of General Manager”.
50. The letter then referred to the possibility of termination during the MIT contained in the letter of offer of employment which the claimant says he had not received and which the respondent was unable to locate for the tribunal. The claimant was advised of his right of appeal and named James Haigh as the person to whom any appeal should be sent. Before sending his letter, Chris Thynne asked Gavin Peace, Divisional HR Manager, to check its content.
51. The claimant wrote to Chris Thynne also on 27 July 2011 to raise ‘concerns’ which included:-
(i) Failure to follow the Statutory Disciplinary Procedure giving rise to an employment tribunal claim for automatic unfair dismissal.
(ii) Not being given adequate notice of or time to prepare a defence to allegations made.
(iii) His job advertised on the internet two days before disciplinary action was taken so outcome predetermined.
(iv) His dismissal was a result of their lack of interest in training him to be able to do the job.
(v) Management acting unreasonably by changing shift patterns.
(vi) Being suspended after having worked an entire day. - He would give a statement about this to the Labour Relations Agency and also tell them that he had no involvement in the recruitment of the Bangor kitchen team.
(vii) Gabrielle and Angelique had disclosed how the kitchen jobs were only advertised in Poland and not Northern Ireland.
(viii) He had not been given the same training opportunities as Gabrielle.
The letter concluded by noting that he had no option but to pursue this through an Employment Tribunal when the need arises.
52. The tribunal noted that (vii) above made no mention of the claimant having any part in the “disclosure” relating to the kitchen jobs and that Gabrielle’s training was last in the list of concerns.
53. The following day, 28 July 2011, the above letter was also sent to James Haigh as the grounds for the claimant’s appeal against his dismissal but some amendments had been made. This time, point (vi) above read that Gabrielle and Angelique had “disclosed to you in Edinburgh”. He went on to say that he had “been advised” to request certain information so that his Solicitor could “begin” preparing his line of questioning for the tribunal hearing. The tribunal noted that he did not mention having any conversation with Mr Haigh during the Edinburgh training.
54. Gavin Peace, Divisional HR Manager, replied to that letter by inviting the claimant to an appeal hearing on 24 August 2011. Mr Peace chaired the meeting on that date. The claimant began by asking how long before he would know the outcome. He was informed about three weeks and he replied that his lawyer would then be ready for the tribunal claim.
55. During the appeal hearing, the claimant made several further references to a tribunal claim. Gavin Peace found the claimant confrontational and aggressive. The claimant apologised to Mr Peace at the end of the meeting for “barking” at him.
56. The claimant had received his payslip on 27 August and wrote to Gavin Peace on that day as he had not received any holiday pay. This was said by the claimant to be a further breach of his contract. Failure to pay by 3.00 pm on Friday, 2 September, would result in his instruction to his Solicitor to submit the claim to an Employment Tribunal. He wrote again on 7 September 2011 with regard to the Edinburgh incident. He wrote, “As mentioned previously, comments were made by both Gabrielle Ciazzo and Angelique Salter to James Haigh on 19 July 2011 regarding the company’s failure to advertise the kitchen positions for the Bangor site in Northern Ireland. It was stated by both these people that the kitchen jobs were only advertised in Poland. For clarification purposes, this was openly discussed with everyone who attended the course in Edinburgh on the date mentioned. My advisor has suggested that this is a matter yet to be brought to the attention of both the EHRC and ECNI and at this moment in time I am inclined to agree. My advisor also believes that I was dismissed because I knew too much information, fell into the minority of the management team by being Northern Irish and my dismissal was in fact nothing to do with my alleged underperformance”.
57. By letter dated 13 September 2011, Gavin Peace wrote to inform the claimant that he had not found reason to overturn Chris Thynne’s dismissal. The letter is nearly eight pages long and provided the list of matters he had investigated, the people he had interviewed and the results of that investigation which, in summary were:-
- Chris Thynne and Gail Burns firmly believed that the claimant was not the right person for the company as he was not prepared to adhere to the brand and company standards.
- Gail had found the claimant negative about the company brand and that he intended to do as he wished in Bangor.
- As a newly appointed employee, the company expected a more positive attitude from the claimant towards his role and responsibilities.
- Chris Thynne felt that the claimant had lacked “presence” and ‘gravitas’ and had been aggressive at the disciplinary meeting.
- Chris Thynne had taken the view that the claimant’s performance did not meet his expectations and he did not believe the claimant would adhere to brand standards.
- On that basis, Chris Thynne decided that the claimant should be dismissed for failing to demonstrate the level of aptitude, attitude and commitment expected from the most senior member of a restaurant management team.
58. Gavin Peace also wrote to the claimant on 19 September 2011 to respond to some of the points made in the claimant’s letter to him of 13 September (at paragraph 57 above). Mr Peace informed the claimant that the company was registered with the Equality Commission and had fulfilled their obligations in that regard. He also denied any suggestion that there was any company prejudice towards people from Northern Ireland and said that the majority of the Bangor restaurant team were Northern Irish. Mr Peace also said that the claimant needed to accept that the reason for dismissal was down to his own inability to perform to the required standards and not anything else he wished to try and fabricate in order to assist himself in creating a tribunal claim which he had threatened since they first met.
THE RELEVANT LEGAL PROVISIONS
59. The principal element of this case relates to the allegation that the claimant was treated less favourably by the respondent on grounds of his nationality. Article 3(1)(a) of the Race Relations (Northern Ireland) Order 1997 states: “A person discriminates against another... if, on racial grounds he treats that other less favourably than he treats or would treat other persons”.
Article 5 provides that ‘racial grounds’ includes nationality.
Article 4 prohibits victimisation which occurs where Person A discriminates against another Person, B, if he treats B less favourably than he treats of would treat other persons in those circumstances and he does so for the reason that B has done anything under this Order.
60. Article 52A(2) of the Order applies where, on the hearing of the complaint, the complainant proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination, the tribunal shall uphold the complaint unless the respondent proves that he did not commit it.
61. Many cases have provided guidance to tribunals in relation to the approach to take in arriving at determinations in such cases. Igen Ltd v Wong [2005] IRLR 258 is the leading authority with regard to the Burden of Proof provisions of Article 52 of the 1997 Order. For the purposes of this case, the tribunal has paid particular attention to the following extracts from that guidance:-
(1) It is for the claimant to prove on the balance of probabilities facts from which the tribunal could conclude that the respondent has committed an act of unlawful discrimination.
(2) If the claimant does not prove such facts, he will fail.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the protected ground then the Burden of Proof moves to the respondent.
(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 protected ground.
62. In Madarassy v Nomura International Plc [2007] IRLR 246, the Court of Appeal held that the bare fact of a difference in status (in this case racial grounds) is not sufficient material from which a tribunal could conclude that an act of unlawful discrimination has taken place.
63. In Northern Ireland, the Court of Appeal has given approval to the guidelines in the above cases. In addition, in Nelson v Newry and Mourne District Council [2009] NICA 24 and Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, tribunals were directed to give full consideration to the ‘factual matrix’ which resulted in the claim (Nelson) and to stand back and focus on the issue of discrimination (Curley).
64. The Employment Rights (Northern Ireland) Order 1996, at Article 126 provides that employees have the right not to be unfairly dismissed but that right is subject to Article 140 which provides that claimants are required to have not less than one years service in order to qualify.
65. The tribunal has also recognised that the claimant has alleged that he made a ‘protected disclosure’ contrary to Part VA of the Employment Rights (Northern Ireland) Order 1996 (as amended). At Article 67B, a “protected disclosure” is defined as a disclosure of information which, in the reasonable belief of the worker, tends to show one or more of the following:-
(a) that a criminal offence has been committed;
(b) that a person has failed to comply with a legal provision;
(c) that a miscarriage of justice has occurred;
(d) the health and safety of someone is likely to be endangered;
(e) that the environment is likely to be damaged;
(f) any of the above matters is being concealed.
66. Division CIII of Harvey on Employment Law, examines these provisions and advises that for an act to be considered as a protected disclosure, three conditions must be met:-
(1) there needs to be a disclosure within the meaning of the Order;
(2) the disclosure must be a qualifying disclosure; and
(3) the disclosure must have been made by the worker in a manner that accords with the scheme.
67. The legal obligation to which an employer is subject under this legislation is wide. (See Parkins v Sodexho Ltd [2002] IRLR 109). Whether the disclosure is a qualified disclosure as required under (2) above will depend on the nature of the information revealed. Claimants need to show that they have a “reasonable belief” that there has been a ‘failure’ by the employer in one or more of the categories set out in Article 67B.
68. According to Paragraph 11 of the Harvey extract, these requirements are necessary because of the “temptation for employees to claim to be a whistleblower in what would otherwise be a straightforward contractual dispute with his employer - especially where he lacks the qualifying service requirement”.
69. It is not clear whether the claimant is alleging that the respondent’s ‘failure’ in this case falls within (a) (is a criminal offence) or (b) (failure to comply with a legal provision). In any event, the tribunal’s finding is that failure to follow a Code of Practice does not impose a legal obligation on employers and is not a criminal offence. In Babula v Waltham Forest College [2007] EWCA Civ 174, Wall LJ held that where an employee believes that a criminal offence has been committed but he is wrong as the offence is not in fact criminal (nor by extension a legal obligation) - that is enough to render the claimant’s belief unreasonable so to deprive him of the statutory protection.
TRIBUNAL’S DETERMINATION
70. The tribunal applied these legal provisions to the findings of fact set out above and has determined on the balance of probabilities in relation to each of the disputed facts and issues as follows:-
(A) Was the claimant treated less favourably than Gabrielle Caizzo in respect of:-
(i) His training as a General Manager?
The tribunal has determined that there was a difference in status between the claimant and Mr Caizzo whom he identified as his comparator in that one is English and the other is Northern Irish. However that difference in status was in no way whatsoever the reason for any action of the respondent or any of its employees. The respondent provided a cogent, non discriminatory and reasonable explanation for any difference in the sequencing of the training being provided to both employees (and the others) in the respondent’s MIT programme.
(ii) The changes made to his rota.
The tribunal have noted the changes in the rota samples provided in the Hearing Bundle. When questioned in respect of those changes, Chris Thynne agreed that ideally such changes should never occur but that the reality within the industry was that such changes were far from unusual. There was no evidence before the tribunal of any member of staff who had had fewer changes than the claimant and thus treated more favourably.
(iii) The advertisement of a job on the industry website.
The tribunal find that Chris Thynne, who has been identified by the claimant as the person who discriminated against him on grounds of his nationality, had minimal involvement in this incident. He notified the relevant section of the respondent’s workforce that advertisements were to be placed for employees for the Sprucefield restaurant and had no part in anything that happened subsequently. The tribunal has also found that the claimant did not suffer any detriment as a result of the placing of this advertisement. The tribunal found that in fact this was an unfortunate but minor error. (See paragraph 40 above.)
(iv) The dismissal and the procedures which led to it.
As indicated during the hearing, there were elements of the procedures leading to the dismissal which gave the tribunal cause for concern. These were the fact that Chris Thynne was the Investigating Officer and the Disciplinary Officer; he should have provided the claimant with more detail of the reasons why he decided to take such actions; and having Gavin Peace carry out the Appeal when he had approved the content of the dismissal letter. However, this is not a claim of unfair dismissal and the tribunal find that these deficiencies were not such that they undermined the process. The period of employment to that date had been very short and the requirements of the Modified Dismissal Procedure of notice in writing of the offence, notice that dismissal was a possible outcome, a meeting to discuss and an appeal had been met. The tribunal find that there was nothing to suggest that the dismissal and the procedures used to achieve it were tainted with unlawful discrimination on the grounds of race.
(B) Did the above actions amount to direct discrimination or indirect discrimination or victimisation contrary to the Race Relations (Northern Ireland) Order 1997.
(i) There was no evidence of any requirement or condition applied to the claimant during his employment with which he could not comply to suggest indirect discrimination on grounds of nationality.
(ii) In relation to the claim of victimisation which was added to the list of issues for determination in the letter sent on 20 September 2011; the claimant wrote this letter on the day that he says he first consulted a Solicitor and then attended at and was advised by a member of staff of the Equality Commission. However, in his originating application, the claimant said he was advised by his local political representative and had informed the “ECNI and EHRC” of the failings of the respondent in their recruitment practices. He also gave evidence that the training provided by James Haigh included a session on Employment Law. While the tribunal was not informed of the content of this course, a failure to inform participants of the service requirement required to ground a claim of unfair dismissal would be most unsatisfactory and not in keeping with the detailed content of the Handbook for Employees.
In any event, even though the claimant referred to this incident as “further victimisation”, there is no mention anywhere of the claimant having done any act under the 1997 Order as required by the relevant provision, Article 4, set out above at paragraph 59.
That letter of 20 September 2011 was also the first time that the claimant had made any mention of anything that he said or did on that occasion. Even when he wrote his letter of appeal to James Haigh, to whom he says he made what he later described as a protected act, (or in the alternative, a protected disclosure), he continued to state that the concerns were raised by Gabrielle Caizzo and Angelique Salter.
The tribunal did not make any finding as to the veracity of this claim but has determined that it does not meet the statutory grounds for a finding of victimisation contrary to the 1997 Order in the absence of any previous action taken under the Order.
(iii) With regard to the alternative claim that this comment was a ‘protected disclosure’. Having considered the categories of matters in the Article 67B definition of “protected disclosure” in the ERO 1996, the tribunal has determined that the claimant did not reasonably believe that the respondent had or intended to fail to do any of those matters set out in the statute and does not have the protection claimed to ground a claim of automatic unfair discrimination. In addition, Mr Thynne’s evidence was quite clear that he had no knowledge of any disclosure of any description having been made in Edinburgh at the time when he took the decision to dismiss the claimant.
71. In the light of the above determinations, the tribunal considered that the issue relating to the Labour Relations Code of Practice were redundant. The only issue to be determined relates to the claim of breach of the implied contractual term of trust and confidence. The respondent’s list of disputed issues associates this claim with the advertisement on the industry website on 20 July 2011 which has been considered above in the context of the discrimination claim. The meaning of the term was considered by the House of Lords in the case of Eastwood v Magnox Electric Plc [2004] IRLR 733. In his judgment in that case, Lord Nicholls of Birkenhead said:-
“The trust and confidence implied term means that an employer must treat his employees fairly. In his conduct of his business and in his treatment of his employees, an employer must act responsibly and in good faith.”
One of the earliest cases dealing with this phrase was that of Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347 which directed tribunals to look at the employers conduct as a whole and determine whether it is such that its cumulative effect, judged reasonably and sensibly, is such that the employee cannot reasonably be expected to put up with it.
Looking at all the circumstances of this case, the tribunal has determined that the claimant was dismissed from his employment by Chris Thynne because in his opinion the claimant did not demonstrate the management skills that his application form and interview indicated he possessed. His attitude was very negative towards the company and colleagues but in particular, Chris Thynne had concerns that the claimant would depart from the respondent’s brand standards. As General Manager of one of their restaurants, this was not acceptable to the respondent. The tribunal find that this was the reason for the dismissal of the claimant.
The tribunal acknowledges that the claimant was deeply affected and shocked by his dismissal, and showed great determination to right what he believed to have been an injustice but the tribunal did not find that his claims were made out. All the claims are dismissed.
Chairman:
Date and place of hearing: 30 April - 2 May 2012, Belfast.
Date decision recorded in register and issued to parties: