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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Okotete v Pizza Express Limited Liam Whiteway Limited Matt Whiteway Szilveszter Kurcz [2012] NIIT 00483_11IT (13 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/483_11IT.html
Cite as: [2012] NIIT 00483_11IT, [2012] NIIT 483_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 483/11
620/11
CLAIMANT: Rita Okotete
RESPONDENTS: 1. Pizza Express Limited
2. Liam Whiteway
3. Matt Whiteway
4. Szilveszter Kurcz
DECISION
It is the unanimous decision of the tribunal that the claimant was not discriminated against on the grounds of her race. Neither was the claimant discriminated against on account of being a part-time worker.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr J Devlin
Mr M Grant
Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Mr Sean G Doherty, Barrister-at-Law, instructed by Tughans Solicitors.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf. The following persons gave evidence on behalf of the first respondent and on their own account as named parties to the proceedings:-
Liam Whiteway
Matt Whiteway
Szilveszter Kurcz
2. a. Additionally, the following people gave evidence on behalf of the first respondent:-
Emma Vettorello
Tom Charters
Kasia Kruczynski
Attila Pal
Vagia Tsaroudi
Indre Sinkunaite
b. Mr Doherty, having previously given notice that he was not going to call every witness from whom a statement had been taken, gave notice some days into the hearing that he was not calling Mr Soltsik, Mr Finlay, Mr Lindsay or Ms Bohdanowicz. The claimant was given time to consider her position, and applied on 14 November 2011 to have these persons brought before the tribunal to be cross-examined by her. Despite getting opportunities to explain what these witnesses could add to the considerable body of evidence before the tribunal, the claimant was not able to do so. Consequently, the tribunal refused her application unanimously on the basis that it could not be justified under Regulation 3(2)(b)-(d) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and would extend the hearing needlessly. The tribunal have not considered the witness statements of these persons.
3. Additionally there was a bundle of documents before the tribunal and some extra documents were introduced during the hearing. These included photographs of the premises and accounts of a trading period and staff payment details. These were provided during the hearing in accordance with the renewed request of the claimant.
Where there was a difference in the evidence the tribunal generally preferred the evidence given by or on behalf of the respondents as there was a certain amount of consistency between the witnesses. The claimant’s contention that the fact she was allegedly called “monkey” in the streets by persons unknown to her was related to her employment by the first respondent undermined her credibility. She maintained this contention despite being unable to explain how these persons would even know she worked in the restaurant.
THE CLAIM AND THE DEFENCE
4. The claimant claimed that she had been discriminated against on account of her race and also pursuant to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000. The respondents denied these claims.
THE RELEVANT LAW
5. The relevant law in relation to Race Discrimination is found in the Race Relations (Northern Ireland) Order 1997 (as amended) and the tribunal particularly considered Article 31, Article 4A, Article 6, and Article 52A.
6. The law in relation to prevention of less favourable treatment of part-time workers is found in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000.
There was some evidence in the papers
before the tribunal that the respondents intended to take time points in
respect of elements of the race claim and the
part-time worker claim. These were not addressed in the submissions of the
respondents. The tribunal has therefore deemed these points to be waived by
the respondents.
THE FACTS
7. The claimant is a person of black British nationality.
8. The first respondent operates a chain of restaurants.
The second respondent was the manager of the restaurant in the centre of Belfast where the claimant worked.
The third and fourth respondents were persons employed in that restaurant as a waiter/chef in the case of the third respondent and as a waiter in the case of the fourth respondent.
9. Initially, the claimant contacted Mr Liam Whiteway by telephone from England indicating that she was looking for work and intending to relocate to Belfast. By the time the claimant submitted her curriculum vitae to the first respondent which was in or around 24 or 25 July 2010, Mr Liam Whiteway had already recruited a number of full-time waiting staff. Mr Liam Whiteway interviewed the claimant on 26 July 2010 and discussed part-time work with her. At this stage, there was a divergence between the accounts given by Mr Liam Whiteway and the claimant. The claimant’s version of events was that she had been hired as a waitress. Mr Liam Whiteway’s version of events was that he had enough full and part-time waiting staff but was prepared to give the claimant the position of being a part-time host working 12 hours a week. Although the claimant underwent a trial shift assessment, which she completed satisfactorily, she never carried out any duties for the first respondent other than acting as a host. However, the initial contract of employment she was given to sign by Ms Tsaroudi, one of the assistant managers, gave the claimant’s job title as being a “waitress”. The reasons given why the claimant received this contract were many, various and at times conflicting. As such, the tribunal has regarded them of being of little credibility and we find that the claimant received a contract of employment which billed her as a waitress.
10. The claimant was invited to attend the restaurant on 30 August 2010, for the purposes of induction. At that time, Mr Liam Whiteway explained that she had been issued with a waitress contract in error, and as a host she should be receiving a higher hourly rate because in her job (as a host) she would not have access to tips. The claimant signed the new contract in her expectation that she would obtain a waiting position in the future. She accepted that she was to be a host although having previously worked as a host in London, she did not want to do this sort of work. She never complained formally about the failure to give her waitress training.
11. On the claimant’s first night working as a host, business was slow so the manager in charge that night, Ms Kasia Kruczynski, told the claimant to go home early. This meant that the claimant would not qualify for her free “staff food”. This also happened the next night the claimant worked. One of her colleagues, Ms Sinkunaite, told her that she did not have to go home if she did not want to. The claimant refused to go home. This caused some unease on the part of the duty manager, Ms Kruczynski.
THE LACK OF HOURS
12. The claimant had a variety of complaints under this heading:-
(1) She was not given extra hours
The reason for this was she was not trained for other roles. While Miss Okotete claimed to have made efforts on her own initiative, Mr Liam Whiteway did not regard the claimant’s work in learning the menu as a substitute for official training.
(2) She was not allowed to work double shifts
The claimant was employed as a host working Thursday, Friday and Saturday evenings and there was no need for her to work double shifts.
(3) She was not allowed to be a “food runner”
This would not have given her extra hours as food runners work the same hours as hosts.
What was clear to the tribunal from the evidence was there was no business need for the claimant to be given extra hours.
13. As a host the claimant was required to wear her own smart/casual clothes and this was allegedly a further method of discriminating against her by the respondent. The claimant’s duties were to greet, meet and seat customers in the restaurant and not to take orders or serve food. Effectively, the claimant did not carry out the full job description of a host, as measured against the Pizza Express job description for that position. When she tried to hand out balloons and party packs to children she was told not to do so.
14. Relatively early in the
claimant’s employment with the first respondent, she had difficulties in her
relationship with Ms Kasia Kruczynski. Ms Kruczynski indicated
to Mr Liam Whiteway that the claimant did not let customers know
about waiting times for their food orders, regularly left the floor to collect
balloons, and “touched the customers”. Plainly the claimant felt she was being
accused of some form of inappropriate behaviour. The tribunal finds that the
reason for specifically cautioning the claimant about touching children was the
case brought against Pizza Express elsewhere in the chain arising from the way
a child was put into a
high-chair by a member of Pizza Express’ staff. The tribunal considers this to
be in the nature of a lawful work instruction, and not discriminatory
behaviour.
15. Other members of staff had acted as the host and Mr Zielinski had acted as a host from the start of his employment.
16. On 24 September 2010, the claimant submitted a memo to Mr Liam Whiteway outlining the particular issues that she was experiencing with Ms Kruczynski. Mr Whiteway dealt with these issues by way of an informal chat and the matter appeared to be closed.
17. Nicola Miller was a waitress returning from maternity leave.
THE McCANN GRIEVANCE
18. The claimant also had difficulty with Ms Caitlin McCann, one of the waitresses. Ms McCann was abrupt by nature and when asked for assistance by the claimant when she was busy, did not immediately drop what she was doing to help the claimant. This led to an incident between them and Ms McCann took out a grievance against the claimant. Again, there was a divergence in the versions of events given by Mr Liam Whiteway and the claimant. Mr Liam Whiteway tried to deal with the matter informally and without having recourse to the disciplinary procedure. No sanction was imposed. He advised the claimant that it could lead to disciplinary action, as he considered that she was not taking the allegation seriously. The claimant however, said that he had made it plain that a recurrence of such events could lead to her being dismissed.
19. Furthermore, other members of staff also found the claimant difficult to deal with. For example, Mr Tom Charters, a waiter, characterised her behaviour as “irrational”. The claimant claimed on one occasion he had refused to give her his staff food order, and then gave it to another staff member. When she asked him for his order the claimant interpreted this as discrimination rather than him being busy at the time of asking.
20. The claimant continued to have ongoing difficulties with Ms Kruczynski. One time, when Ms Kruczynski was speaking to a customer about a booking, she alleged that the claimant had pushed her away and said she (the claimant) knew about the booking. Ms Kruczynski asked her not to do this. Generally, the claimant would not do what she was asked by Ms Kruczynski and if a problem was raised with her, the claimant would deny it. Ms Tsaroudi, the Assistant Manager, was aware of this. Mr Charters’ evidence that the claimant would not do as she was asked corroborates Ms Kruczynski’s problems with the claimant. There was no evidence before the tribunal that Ms Kruczynski had reported this matter to Mr Liam Whiteway. If Ms Kruczynski had really wished to discriminate against the claimant, she would be more likely to do so, making it a disciplinary matter. Instead it was the claimant who made the matter into one of “assault” before the tribunal.
21. At a staff meeting of 16 October 2010, Mr Liam Whiteway told the staff present that Mr Jimmy Pieri would be joining the restaurant temporarily to help out over Christmas. The claimant raised this as a concern for two reasons. First, she alleged that when Caitlin McCann heard this, she shouted “yes”. Although no one seemed to remember it happening, the claimant advanced it as a further example of discrimination towards her. Second, the claimant also saw this as a further obstacle to her being given waitressing work.
MR MATT WHITEWAY
22. The claimant also alleged that Mr Matt Whiteway had shown a wooden object to Ms Caitlin McCann indicating that she should hit her with it. Upon quite a detailed cross-examination by the claimant of the various respondent witnesses, no one had any recollection of the event or even knew what the alleged wooden object was used for in the kitchen. The claimant in her evidence retreated to the position that it looked like a wooden object. As she was keeping an eye on the door she was not 100% sure. Mr Matt Whiteway was consistent between his witness statement and his evidence to the tribunal in saying that he did not really get on with Ms Caitlin McCann, so he did not know why the claimant would accuse him of telling Ms McCann to use the “object” to hit the claimant with. Ms McCann, (who did not give oral evidence to the tribunal) also denied this incident took place as alleged by the claimant.
23. The claimant accused Mr Matt Whiteway of making monkey noises towards her. Ms Sinkunaite, who was present at the incident, and indeed various other witnesses, including Attila Pal (one of the chefs), confirmed that there was laughter in the kitchen. She discovered that it had been caused by Attila Pal stuttering over a request for two garlic bread and, finding it funny, everyone else laughed and repeated it. Although the claimant denied that Ms Sinkunaite’s version of events ever happened, Ms Sinkunaite confirmed that she was present beside the claimant and had caught a look of surprise on her face during the incident. On the balance of probabilities, and by virtue of the weight of the evidence, the tribunal accepts the version given by Ms Sinkunaite, Mr Attila Pal, and Mr Matt Whiteway. While we accept that the claimant may have in retrospect interpreted the event as having racial connotations however, she made no complaint at the time to Ms Sinkunaite and Ms Sinkunaite confirmed that she did not see anyone say or do anything constituting racial harassment. This is because the versions of events given by the claimant, Mr M Whiteway, Ms Sinkunaite and Mr Pal bore a resemblance in terms of people present and their locations in the restaurant. Admittedly Mr Matt Whiteway was inconsistent about what was said to him by Mr Liam Whiteway just before Ms Vetterello’s investigation. The tribunal does not consider this renders his accounts of the actual incident not credible. This is because it is largely corroborated by others.
The claimant asked Mr Matt Whiteway when she was cross-examining him to demonstrate the noises he allegedly made. The tribunal refused to allow this line of questioning considering that the tribunal was likely to be involved in a line of questioning that was unlikely to be of any probative value. The tribunal considers it is more likely than not on the balance of probabilities that the claimant mistook workplace banter in the kitchen for racial harassment against her.
24. Mr Matt Whiteway also works from time-to-time as a chef in the restaurant. On a particular night when he was preparing desserts in the kitchen, the claimant had commenced taking the staff food order. The kitchen staff were under the impression that the claimant wanted her staff food to be put on at once. The staff food for the claimant was put on too early and the claimant refused to accept the food. In essence the claimant had ordered some food and then changed her mind. Her supervisor that night, Ms Indre Sinkunaite, said that she would take the claimant’s order and the claimant could order something else. There was an altercation between the kitchen staff and the claimant during which she alleged that her food was thrown on the plate and the kitchen staff told Ms Sinkunaite that the claimant said she would never order staff food again. When Ms Sinkunaite went to ask the claimant if she was okay, she complained that her food was cold. However, it appeared she had eaten it. The claimant did not raise any complaint with Ms Sinkunaite about the altercation with the kitchen staff, but interpreted it to the tribunal as discrimination rather than potentially a misunderstanding.
25. After the claimant had given in her notice to Ms Vagia Tsaroudi, the claimant also complained that she had asked Mr Matt Whiteway if he was going to make monkey noises at her that night. She alleged that he said that he was not going to do so because he was happy as he had heard “someone was leaving” and the claimant took this comment to refer to herself. She regarded it as further evidence of racial discrimination against her.
MR “VESTEY”KURCZ
26. Although the claimant had named Mr Kurcz as fourth respondent in these proceedings, she accepted that she had a positive working relationship with Mr Kurcz, which she described as “good” and he described as “close”. This was characterised by Mr Kurcz introducing himself to the claimant’s attention by bumping into her in the restaurant, although he said to the tribunal that he did not intend to harm her. The claimant said thereafter that when she saw Mr Kurcz she said “ouch” to him when they continued to bump into each other in a playful manner. However, before the tribunal, the claimant also made much of the position in the restaurant at which the initial bump happened, complaining that it was a very dangerous area in which to do this. She claimed she had been left sore as a result. The claimant, in retrospect, sought to characterise this interaction as further discrimination towards her.
27. (a) Ms Okotete cited other events involving Mr Kurcz as having sinister connotations. For example at the time of the Halloween holidays the staff in the restaurant had agreed to dress up in fancy dress for the service on 30 October 2010. Mr Kurcz came in dressed as “the Terminator” and a gun was part of his costume. Mr Liam Whiteway told him that this was inappropriate and asked him to leave the gun in his car. This took place at 3.00 pm in the afternoon. Thereafter, Mr Liam Whiteway left to go to a family party and the claimant came on duty for her shift commencing at 6.00 pm. The claimant contended that Mr Kurcz pointed his toy gun at her and “shot” her while she was admiring his costume and she pretended to react. Later, she alleged that Mr Kurcz said to her that he wished that someone would shoot the claimant as his life would be a whole lot easier.
(b) Furthermore, when Mr Kurcz found out that the claimant had a new job, he said to her that he would pay her a visit in her new job. The claimant interpreted this ‘visiting her’ as a threat to make trouble for her in her new job.
(c) The tribunal considers that it is more likely than not on the balance of probabilities that Mr Kurcz did not make the comment, that he wished somebody would shoot the claimant as his life would be a whole lot easier. We found this fact for two reasons:-
1. it would not be consistent with the kind of working relationship revealed in evidence by both Mr Kurcz and the claimant; and
2. Mr Kurcz was honest enough in his evidence to the tribunal to admit that he had made an inappropriate joke with strongly racial connotations to the claimant one evening when she arrived at work wrapped up in dark clothes. For these reasons, we consider it less likely than not that this comment was made. It is the opinion of the tribunal that whereas there may have been difficulties with other colleagues, Mr Kurcz and Miss Okotete appeared to be reasonably comfortable as work colleagues. We consider the claim that Mr Kurcz would pay the claimant a visit in her new employment to be a positive reflection of that relationship, rather than the hostile meaning contended for by the claimant.
28. The only incident that the tribunal considered was racist behaviour in the events that took place throughout the claimant’s employment was that of Mr Kurcz making an inappropriate joke about the claimant. As a host, the claimant was required to wear her own clothes rather than a uniform and these clothes were to be dark. One night when the claimant was reporting for her shift, she was wrapped up in her dark clothes as usual coming in and Mr Kurcz told her that if she was stopped by the police the only way they would have been able to see her would be because of her teeth. Although Mr Kurcz said that this was the sort of joke he would have made to a white person, the tribunal did not accept that explanation. At the time in question, he apologised to the claimant and thought that that was the end of the matter. The claimant did not include this incident in her grievance letter to Emma Vettorello or in the prior telephone call she made to Ms Vettorello. That being the case, the tribunal is not able to include it in its consideration of the claimant’s case as this is a jurisdiction to which Regulation 6 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 applies.
29. The tribunal accepted from the financial information requested by the claimant before the hearing and reluctantly provided during the hearing by the first respondent that there had been a downturn in business enjoyed by the first respondent in the last quarter of 2010. The claimant disputed this indicating that the restaurant was always busy, but she did not have any objective evidence to support that contention. Furthermore, the tribunal is supported in reaching the finding that there was a drop in the first respondent’s business, because it turned out that Mr Jimmy Pieri was not employed by the first respondent over the Christmas period.
THE CLAIMANT’S GRIEVANCE
30. In or around 6 November 2010, the claimant told the first respondent that she was leaving employment to go to a waitressing job. On 11 November 2010, the claimant had a telephone conversation with Ms Emma Vettorello in which she discussed her allegations of discrimination. Ms Vettorello urged her to put her grievance in writing, which she did, on 23 November 2010. However, the claimant failed to raise the question of Mr Kurcz’s inappropriate remark to her and so Ms Vettorello was not able to investigate it. Ms Vettorello had a further conversation with the claimant on 14 December 2010 and also invited the claimant to attend a grievance meeting where she would have had an opportunity to raise any further issues. The claimant refused to do so saying that she had said everything she needed to say in her grievance letter. Generally, the claimant considered that Ms Vettorello had not taken her grievance seriously. The tribunal did not find anything in the evidence to suggest that this was the case. The tribunal considers that Ms Vettorello carried out a thorough and extensive investigation interviewing everyone who appeared to be involved, and carrying out further interviews as suggested with people described as being witnesses or involved by the claimant.
31. a. At the time of these events, the claimant was the only black person in the first respondent’s employment, but persons of a variety of nationalities were employed by the first respondent, before, during and after the claimant’s period of employment.
b. The claimant alleged that Ms Kruczynski and Ms Bohdanowicz spoke together in Polish about her. There was no objective evidence found to support this claim.
CONCLUSIONS
32. The facts found for the Race claims are the same for the Part-Time Worker discrimination claim.
33. Under Article 52A of the Race Relations (Northern Ireland) Order 1997:-
(1) This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent:-
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1b)(a), (e) or (f), or part 4 in its application to those provisions; or
(b) has committed an act of harassment.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this article, conclude in the absence of an adequate explanation that the respondent:-
(a) has committed such an act of discrimination or harassment against the complainant;
(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant;
(c) 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.
34. Was the claimant less favourably treated and was it on account of her race?
We are summarising our conclusions in respect of the various categories of complaints:-
(a) We do not accept that employing the claimant in the role of host was demeaning. Mr Liam Whiteway contended that the role was important, and that he considered the claimant was doing a good job .
(b) The claimant was not given a uniform as in her role as a host she was required to wear her own smart casual clothes. There was no evidence that this was done to set her apart, other than the claimant’s contention.
(c) The reason why the claimant was not given additional hours under the various categories of her complaint on this head, is that there was no business need to do so for the following reasons:-
(1) the downturn in sales;
(2) the recruitment of staff in early July;
(3) Nicola Miller, a waitress, was returning after maternity leave; and
(4) Mr Pieri was not hired.
(d) The claimant certainly had difficulties with her fellow staff members and Ms Kasia Kruczynski. It was only in the case of Mr Kurcz and his highly inappropriate joke for which he apologised, and about which the claimant did not raise a grievance, that there was a suggestion that the treatment of the claimant was on account of race. As the claimant has not raised a grievance, the tribunal is not able to include this incident in its consideration of the case.
(e) In the case of the alleged “monkey noises” and its follow-up the weight of the evidence is against the claimant. There was a convincing explanation put forward on behalf of the first and third respondents which bore a resemblance to the claimant’s version of events. We are unable to accept her contention that the respondent’s version of events never happened.
(f) There was a question over the claimant's complaint in respect of the wooden object. For it to be an incident upon which the claimant relied as part of a discrimination claim, it was not credible for her to be unable to closely identify the alleged object.
(g) There was no evidence to explain how the claimant considered she was discriminated against in the way the McCann grievance was dealt with by Mr Liam Whiteway, and her own grievance was dealt with by Ms Emma Vetterello. The claimant’s suggestion that by dealing with the McCann grievance against her informally, albeit with a recommendation as to future conduct Mr Whiteway was being discriminatory was not tenable.
Much of her objection to Mr Whiteway’s conduct centred round the construction of a letter issued as part of the process. We consider that this is an insufficient basis to attack Mr Liam Whiteway in this area of the case. Surely if he wished to discriminate against the claimant he would have operated a formal process with a sanction being issued? This did not happen.
Other than the fact that Ms Emma Vetterello did not find in favour of the claimant on foot of her grievance, we saw no evidence of less favourable treatment. It appeared to the tribunal that Ms Vetterello carried out a full and proper process.
(h) We have already set down our view of the claimant being spoken to by Ms Kruczynski in paragraph 14 above.
(i) The evidence about the difficulties with the kitchen staff and Mr Charters over staff food seem more likely on the balance of probabilities to be due to misunderstandings than on account of the claimant’s race.
(j) Even if the claimant was correct in her allegation that Ms Caitlin McCann did not have to perform a trial shift assessment, we do not attach any weight to this matter. There was no evidence of a widespread practice of foregoing the trial shift assessment. In the absence of such evidence it is more likely than not that Ms McCann said this to annoy the claimant, rather than the first respondent discriminating against the claimant.
35. In this case, we do not find that the claimant has proved such facts from which an inference of discrimination on the grounds of her race could be drawn. Certainly, the claimant had an uneasy relationship with many of her fellow workers in the first respondent, particularly those in immediate line management, but excepting Mr Liam Whiteway. There even seemed to be some hostility towards the claimant (as evidenced by Mr Charters calling her “irrational” in his evidence to the tribunal). Apart from Mr Kurcz’s “joke” which was not raised in the claimant’s grievance and which cannot be included in the tribunal’s consideration, the tribunal was unable to find any evidence that the claimant was denied the opportunity to be a waitress on the grounds of her colour. The case was made:-
(1) There was a downturn in trade at the restaurant.
(2) The second respondent had sufficient staff due to the recruitment before the claimant submitted her curriculum vitae to him.
(3) Nicola Miller, a worker, was returning after maternity.
The claimant was not able to produce any objective evidence to counter these points other than her subjective view that the restaurant was busy. The claimant asserted there was no merit in this contention as new staff were recruited, at the very least from the time she left. Mr Liam Whiteway was able to explain that:
(a) a person was recruited to fill the vacancy the claimant created;
(b) a person had been recruited to cover a maternity leave and;
(c) any other perceived new faces at the restaurants were more likely than not to be temporary staff on loan from other outlets. The tribunal concludes that the claimant has not undermined the respondent’s explanation.
36. The tribunal does not consider that sufficient primary facts have been proved to shift the burden of proof. Even if the tribunal had considered that the burden shifted it would have regarded points one to three as constituting a cogent explanation for the claimant failing to receive work as a waitress.
37. The claimant asserted that because there were double shifts showing in the accounting and payment information provided to her during the course of the hearing, this meant that there was work that she could have done which was taken away from her. The tribunal has no reason to disbelieve the evidence of Ms Indre Sinkunaite which was to the effect that there was less work and people were not getting the shifts they required. Furthermore, Mr Liam Whiteway confirmed that staff would have accommodated each other by changing shifts and this was why there appeared to be more double shifts available than was necessarily the case.
38. The tribunal also found that the claimant was not discriminated against on account of her status as a part-time worker.
COMPARATORS
39. The claimant named a number of comparators for the race claims all of whom seemed to be part-time waiters. As the claimant was a part-time host, this would not fulfil the Shamoon requirement of the comparators being in circumstances that were the same or not materially different. Therefore, the tribunal has constructed a hypothetical comparator who had all the characteristics of the claimant but whose skin colour was white. With the exception of the “joke” by Mr Kurcz which we have not taken into account, the tribunal is unable to extract anything from the evidence to show such a person would have been treated differently. For example, it was clear from the evidence that other employees of the first respondent also acted as “host”, a position the claimant called being “the door girl” and which she found “demeaning”. Why hire her at all if this was the motive of Mr Liam Whiteway?
40. In respect of her interactions with the staff while the claimant has established a difference in skin colour and arguably some hostility, this only raises a possibility of discrimination, and we were unable to find anything more to suggest that this was racially motivated.
41. A common complaint about the claimant was that she did not like being told what to do. This could have led to clashes of personality which while unpleasant for the claimant were not racially motivated.
42. In respect of the claimant’s most important claim - not being given waitress training, extra hours and access to tips, the economic “reason why” (though the tribunal had to push for this evidence to be discovered to the claimant) was credible.
THE PART-TIME WORKER DISCRIMINATION CLAIM
43. Regulation 5
(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker:-
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if:-
(a) the treatment is on the ground that the worker is a part-time worker; and
(b) the treatment is not justified on objective grounds.
A comparable full-time worker is one who:-
(a) is employed by the same employer under the same type of contract;
(b) does the same or broadly similar work (taking into account levels of qualification, skills and experience); and
(c) is based at the same establishment.
44. The treatment the claimant complains of is a failure to train her as a waitress, and consequently employ her as such giving her access to “tips” that she contended were “£50 a shift”.
45. The claimant aside from her
arguments about wanting waiting work as evidenced by her application form (upon
which we put little emphasis) only ever worked for the first respondent as a
part-time host. The comparison is therefore between a
full-time waitress and a part-time host.
46. These two categories of worker cannot be said to be the same or broadly similar. As the claimant had her contract altered to be a host, she cannot compare herself to a full-time waitress. Her comparator could only be a full-time host which does not exist. Thus her claim on this head fails.
47. Even if we are wrong in so concluding and the claimant was hired as a waitress, making the comparison with a full-time waiter valid, she still has to show the less favourable treatment was on account of her part-time status.
48. There was very little to no evidence adduced by the claimant to show how she was discriminated against on account of her part-time status. We do not consider her claim has any validity either on this ground as there was uncontroverted evidence from Mr Liam Whiteway that other part-time workers were trained as waiters.
49. Furthermore, the claimant also alleged that Mr Charters (a part-time worker) got more hours than she did. The claim for part-time worker discrimination fails.
50. The reason for the “treatment” of the claimant is that the first respondent had no business need for the claimant to be a waitress. This is supported by:-
(1) the downturn in sales.
(2) the recruitment of staff in early July;
(3) Nicola Miller, a waitress, was returning after maternity leave; and
(4) Mr Pieri was not actually hired.
There is an objective, non-discriminatory reason for the treatment of the claimant, in both heads of discrimination in this case. The claimant’s claims in respect of race discrimination and part-time worker discrimination both fail.
Chairman:
Date and place of hearing: 10-14, 17-20, 24, 28 + 31 October 2011, 3-4, 14 November 2011 and 28-29 February 2012, Belfast.
Date decision recorded in register and issued to parties: