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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wojcik v Moy Park Limited Moy Park Limited [2013] NIIT 01289_11IT (09 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1289_11IT.html
Cite as: [2013] NIIT 01289_11IT, [2013] NIIT 1289_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2531/10
1289/11
CLAIMANT: Malgorzata Wojcik
RESPONDENT: Moy Park Limited
DECISION
The tribunal unanimously dismisses the claimant’s claims for race discrimination, sexual harassment, less favourable treatment on the ground of her part-time worker status and constructive dismissal. It allows her claim for £26.20 for holiday pay (under the Working Time Regulations or as a breach of contract or an unlawful deduction from wages).
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Mrs S Doran
Mrs T Madden
Appearances:
The claimant appeared in person.
The respondent was represented by Ms Rachael Best, of counsel, instructed by Karen Frazer, solicitor, of Moy Park Limited.
Interpreter: Mrs Paulina Wilson
Sources of Evidence
1. The tribunal heard evidence from the claimant and on her behalf from Przemyslaw Wojcik and Piotr Bajinski and on behalf of the respondent from Kate Glendinning, John Cromie, Diana Strauta, Catherine Coney, Dawn Speers and Ian Hughes. The tribunal also received 16 bundles of documents amounting to 799 pages and heard a covert recording made by the claimant of conversation with Diana Strauta, most of which was unclear and written submissions from both parties.
The Claim and Defence
2. The claimant’s claims are for race discrimination, less favourable treatment on the ground of being a part-time worker, sexual harassment, breach of contract, unlawful deduction from wages and breach of the Working Time Regulations. The respondent denied the claimant’s claims in their entirety and submitted that the claimant’s claim for unfair constructive dismissal was out of time.
The Issues
3. The precise legal and main factual issues in the case were identified at a Case Management Discussion on 27 April 2012 as follows:-
(1) The tribunal set out ten claims that the claimant was making.
(2) In relation to each claim, is the factual basis for that claim in substance true.
(3) In relation to her claims of racial discrimination the claimant has compared her treatment with the treatment which was accorded to people who are not Polish (employees from Lithuania, Portugal and East Timor).
(4) In relation to claim six there is an issue as to whether, if the factual basis of that allegation is correct, the relevant treatment amounted to unlawful harassment, contrary to Article 6 of the Sex Discrimination Order 1976.
(5) In relation to each of the claims of part-time worker’s discrimination, there will be an issue as to whether (assuming the relevant allegation to be factually correct), the relevant treatment was, or was not, objectively justified.
(6) There is an issue as to whether the claimant lodged her claim for constructive dismissal within the applicable statutory time limits.
The claims were further amended by consent between the parties and therefore the claims remaining for determination by the tribunal are as follows:-
Claim 1
The respondent discriminated against the claimant, on the ground that she is Polish, by conducting a spot-check for jewellery on the claimant on 17 July 2010.
Claim 2
The respondent is responsible for anti-Polish racial discrimination against the claimant because of the following alleged mistreatment. The claimant allegedly did not have access to her lockers from November 2010 whereas her colleagues from Lithuania and Northern Ireland had keys at their disposal, and the claimant had to ask for the key.
Claim 4
The respondent is responsible for anti-Polish racial discrimination against the claimant because of the following alleged mistreatment. According to the respondent, she was reminded by her supervisor every week in December 2010 and January 2011 that she was responsible for checking the labels on the boxes of meat and, in particular, that if the date of the kill on the label was older than the date on the computer, that the whole Department would get a warning.
Claim 5
The respondent was responsible for anti-Polish racial discrimination because of the following alleged mistreatment. According to the respondent, on 20 November 2010, her supervisor, Diana Strauta, told her that she would receive a warning about the temperature of raw skin emulsion. (Ultimately, the claimant did not receive a warning).
Claim 6
The claimant asserts that she was subjected to unlawful harassment, contrary to Article 6 of the Sex Discrimination Order 1976, because she was the subject of a spot-check for jewellery on 17 July 2010. She alleges that she was singled out in the presence of others and that she was asked to show her hands and then her neck.
Claim 7
The claimant says that she was constructively dismissed (in the sense in which the term “constructive dismissal” is usually used in the context of the unfair dismissal legislation) because of the following alleged matters. According to the claimant, there was a bad working environment, the respondent was guilty of harassment and discrimination and victimisation; the respondent did not give the claimant the amount of holiday pay properly due to her, and there was a bad atmosphere, which caused stress to the claimant.
Claim 8A
Whether the respondent has breached the Working Time Regulations by allocating the claimant 14 days holiday instead of 11.5 days. The claimant alleges that she received 11 days’ paid annual leave:
(i) by calculating holiday entitlement as accrued at the rate of 0.21 days per week;
(ii) by holiday entitlement which could not be taken until it had accrued;
(iii) by calculating holiday entitlement without fractions rounded up to the nearest half day; and
(iv) by violating the worker’s right to chose which of the days should be paid at the higher statutory rate during the statutory leave period.
Claim 8B
Whether the claimant was treated less favourably by the respondent as a part-time worker, than a full-time worker contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000:
(i) by allegedly not being paid the proper rate of annual leave;
(ii) by being paid £40 bonus as a part-time employee whereas a full-time employee allegedly is paid £100;
(iii) the claimant claims that she should have received at least half the holidays of a full-timer and half the bonus of a full-timer; and
(iv) the claimant alleges that if she worked a bank holiday it was management who chose whether or not to pay her extra for working the bank holiday or to grant another day off instead. The claimant alleges that full-time workers who worked bank holidays could chose whether to take time off or be paid extra.
Claim 9AA
This is a claim for breach of contract and or unlawful deduction of wages in respect of the respondent’s omission to pay the claimant any annual leave in respect of entitlements accrued during the period of sickness absence.
Claim 9B
This is a claim for breach of contract and or unlawful deduction of wages in respect of the respondent’s reduction of the claimant’s bonus because of sickness and or because of alleged unauthorised absences.
Claim 10
This is a claim that the respondent breached Article 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, by only paying her a £40 bonus, whereas a comparable full-time employee allegedly was paid a £100 bonus.
At the end of the hearing the respondent indicated, through its counsel, that it was not pursuing the issue that the claimant’s claim for constructive dismissal was out of time. Accordingly that is not a matter with which the tribunal will have to deal.
Findings of Fact
4. (1) The claimant is a Polish person and she is not able to speak English fluently.
(2) She worked with the respondent as a process operative from 26 March 2009 until 22 February 2011.
(3) She worked two days per week, Saturday and Sunday, doing 20.5 hours per week. Her weekly income was £138.00 gross, £131.00 net.
(4) On 17 July 2010 the claimant was selected for a spot-check, in relation to the wearing of jewellery, by Ms Spears, the weekend Quality Manager, in the company of Ms Glendinning, the Weekend Shift Manager and HR Officer.
(5) The claimant was wearing a necklace below a polo-neck jumper and a button up coat and apron.
(6) No physical contact was made by the manager during the search. The claimant conducted the search on herself. The search was carried out at the production line.
(7) Ms Spears issued instructions to the claimant in relation to the spot-check, about what she was to do, both verbally and by hand signals.
(8) The claimant says she was told to keep lowering the polo-neck jumper neck to such an extent that it exposed the top of her left breast. Ms Spears totally denied this and stated that the claimant’s neck only, as far as her collar bone, was exposed.
(9) The tribunal is not persuaded that the claimant had to or did expose the top of her left breast in demonstrating whether she was wearing a necklace or not. In so concluding the tribunal had regard to the following matters:-
(a) While the tribunal was not told about the type of polo-neck jumper worn by the claimant, normally a polo-neck jumper cannot be stretched to the extent suggested below the neck.
(b) It is not necessary to pull a polo-neck jumper as far as the claimant suggests in order to show whether a person is wearing a necklace or not.
(c) The claimant has never denied she was wearing a necklace.
(d) In her claim form she does not mention her left breast being exposed.
(e) In her grievance letter she only refers to her neck.
(f) She does not mention in her witness statement about her breast being exposed.
(g) When the claimant corresponded with Peter Smith, the Health and Safety Officer, by email of 9 February 2011 to seek his assistance she stated she was required to show her neck.
(h) In the agreed issues (Claims 1 to 10) there is no allegation that the claimant’s left breast was exposed.
(i) In her claim form the claimant advances a totally different reason for her annoyance about the search which was never mentioned thereafter.
(10) The respondent has a hygiene policy which prohibits the wearing of jewellery except a band ring or piercings which are covered by clothing.
(11) The tribunal accepts that employees were told about the jewellery policy at induction.
(12) The tribunal does not accept that the claimant was unaware of the prohibition on wearing jewellery. In so concluding the tribunal had regard to the following matters;-
(a) The claimant had signed that she had received induction training on 20 March 2009 and had indicated she received and understood such training.
(b) On 18 July 2010 the claimant acknowledged that she knew the rule about not wearing jewellery.
(c) At the disciplinary hearing on 3 October 2010 she agreed that she was wearing jewellery and knew of the prohibition.
(d) During the interview on 16 October 2010 the claimant accepted that she should be punished for wearing jewellery but disputed that she should have received a written warning.
(13) The respondent carries out spot-checks consistent with the British Retail Consortium, Global Standard for Food Safety Interpretation Guide of December 2008. Under Personal Hygiene at Section 7.3 the guide states:-
“The company’s personal hygiene standards shall be documented and adopted by all personnel, including contractors and visitors to the production facility. These standards shall be formulated with due regard to risk of product contamination.
All personnel entering raw materials handling, preparation, processing, packaging and storage areas shall adhere to the company’s personal hygiene rules, which shall be written down following an assessment of risk to product for these areas.”
At paragraph 7.3.1 the guide continues;-
“… Compliance shall be regularly checked, e.g. through incorporating checks into daily/weekly GMP audits, or challenge of personnel at regular intervals such as through microbiological hand swabbing or questioning of understanding of staff”.
In the respondent’s handbook at Section 4 under Hygiene at paragraph 4.3 General Prohibitions the handbook states,-
“4.3.1 the following must NOT be worn in food processing and packing area:-
a) Jewellery, except a plain band type ring.
b) Earrings of any kind.
c) Wrist watches.
d) Nail varnish or false nails.
e) Strong perfume, aftershave, perfumed hand-creams or talcs.
f) Piercing of any kind which are not covered by clothing (this includes tongue piercings)”.
(14) The respondent’s customers, such as Tesco, require that audits are carried out in relation to the hygiene of food. The respondent does not have a policy on how spot-checks are carried out nor, if a search is conducted, how or where it is to be carried out and by whom. Nor does it record when searches are carried out, or on whom, or by whom, or the results of such searches.
(15) The tribunal is satisfied that the respondent did carry out spot-checks in relation to the wearing of jewellery on the production line. Although the claimant denies this was the case she only worked on a Saturday and Sunday and the spot-checks were infrequent, perhaps only one at the weekend on the production line on average, and it is possible the claimant may not have observed such spot-checks being carried out.
(16) The tribunal is satisfied that at least four other people were the subject of a spot-check, viz Neill Burns, Joao Da Costa, Egido Quintus and Gemma Watt who are respectively Irish, Portuguese, Lithuanian and Irish.
The subjects of the respondent’s search were not in attendance to give evidence and some of the notes and statements from them were unsigned and did not purport to be verbatim accounts of what they had said. Ms Spears, however, gave evidence of searching them and this evidence was not challenged.
(17) The tribunal is not persuaded, in the circumstances of this claim, that the search of the claimant by asking her to lower the neck of her polo-neck jumper thereby revealing her neck in a public area was inappropriate or unreasonable. In so concluding the tribunal had regard to the following matters:-
(a) It is the tribunal’s finding of fact that the claimant was only asked to expose her neck during the search.
(b) A person’s neck whether male or female may frequently be visible because of the style of clothing worn by males and females.
(c) There was not any physical contact by third parties as part of the search. The claimant alone lowered her polo-neck jumper’s neck.
(d) The claimant did not object at the time to the form the search took on the production line nor request that it be carried out elsewhere.
(18) The evidence before the tribunal was that the product is stored in a large box which is positioned on the centre table away from the operators on the production line. From that box the product is removed by the operator and put into individual trays which are then made ready for sale to the customer. There was not any evidence before the tribunal that when the search was conducted there was product in the individual tray close to the claimant. There was not any evidence before the tribunal that the conduct of the search at that point put any product at risk.
(19) The tribunal is not persuaded that the reason for the search of the claimant was that she is Polish. In so concluding the tribunal had regard to the following matters:-
(a) The only evidence that supports the claimant’s case is, that she was searched and she is Polish.
(b) Ms Spears did not know the claimant or her nationality before she selected her for the spot-check.
(c) Evidence before the tribunal indicated that employees of the respondent who are Lithuanian, Portuguese and Irish were also searched.
(d) The respondent has at least one Polish supervisor Mr Obara who was promoted from line leader which suggests that the respondent does not harbour anti-Polish sentiment.
(e) There is a perfectly reasonable non-discriminatory reason for the search ie that it is part of the random search policy of the respondent.
(20) The claimant was disciplined for breaking the respondent’s prohibition on wearing jewellery. She was awarded a verbal warning on 3 October 2010 for minor misconduct which lasted for three months. The note of the warning refers to it as a written warning.
(21) The claimant appealed the disciplinary sanction. Her appeal was heard on 16 October 2010. At the appeal hearing, it was explained to the claimant that it was a verbal warning for minor misconduct which was recorded. The respondent’s notes of the meeting, signed by the claimant and the translator, record the claimant as agreeing with the punishment it if were verbal and it so stated. The sanction was upheld at the appeal. Confirmation was given to the claimant by letter of 18 October 2010 that the warning administered to her was a verbal warning valid for three months.
(22) Not all employees of the respondent have keys to lockers including the claimant. A locker-key is available on every shift for employees to use as needed. The tribunal is not persuaded that the possession of a locker key was related to nationality. The evidence before the tribunal was that the possession of a locker key depended on the job to be done by the individual employee with some employees at the claimant’s level and above not having keys. This explanation was not challenged by the claimant in the course of her cross-examination.
(23) In relation to the labels the claimant seems to be making two allegations; firstly that the job of checking and removing labels, where the date on the label did not correspond to the date on the computer, was too onerous in a short period of time for her to do and others were not asked to do the task; and secondly that if labels with a different date to that recorded on the computer were not removed the whole department would get a warning.
The claimant contended, during the hearing, that removing the labels was intended to ensure that non-fresh meat could go into production. The claimant stated that in December 2010 and January 2011, her supervisor Diana Strauta, reminded her every week that she was responsible for correct labels on the boxes of meat arriving in the mincing department and if the date on the labels did not correspond to that on the computer the whole department would get a warning. Diana Strauta said she could not remember asking the claimant to remove labels.
The tribunal was faced then with allegations and denials. There was no objective evidence to support one view or the other. The department never received a warning.
(24) The claimant, according to her job description, had a responsibility for product labelling. The claimant alleges that others did not do labelling. There was not any evidence before the tribunal as to whether this applied to her comparators or others in general or if others did not have that task as part of their job description or merely were not asked to do it.
The tribunal is not persuaded that requiring the claimant to do the product labelling is per se less favourable treatment. But, even if it were deemed to be less favourable treatment and even if the tribunal accepted there was a difference in the status between the claimant doing this task and those who did not do the task, the tribunal must answer the question what is the reason for this task being done by the claimant. The claimant asserts that it is because she is Polish, the respondent because it is part of her job description. If the respondent were anti-Polish it is hard to see the rationale for giving the labelling job to a Polish employee on the basis of the evidence before the tribunal.
There was not any evidence before the tribunal which would cause it to look beyond the reason given by the respondent ie that it was part of the claimant’s job description. Accordingly the tribunal does not accept that it was given to the claimant as a task because she is Polish.
(25) In relation to the dates on the labels and its correspondence with the computer records the following facts emerged;-
(a) Labels are prepared by the respondent which show the date of kill and the date of packaging.
(b) The date of kill is also recorded on the computer.
(c) The claimant alleges she was instructed to remove labels on boxes where it did not correspond to the date on the computer. She further suggests that the result of this would be non-fresh meat going into production.
(d) Other employees were not asked to remove labels on the week-end shift when the claimant was working.
(e) The respondent contends through two of its witnesses, that to remove labels, if the date of kill on the label does not correspond with the date recorded on the computer, is a breach of its rules and procedures. However the respondent failed to explain how the respondent would deal with this discrepancy or whether, in its view, it occurred or not.
(26) On the balance of probabilities the tribunal accepts that the claimant had received an instruction to remove labels where the date of kill did not correspond to the date recorded on the computer. The labels referred to by the claimant and exhibited in her documents, that she had removed, were not disputed.
However there was insufficient evidence before the tribunal to conclude that such an event had a sinister reason or motive behind it. In so concluding the tribunal took into account;-
(a) The complete lack of evidence about implications and ramifications of removing labels.
(b) The claimant never complained about the instruction, which she regarded as wrong, during the currency of her employment despite raising quite a number of other issues with management by way of a grievance.
(c) The claimant says she went to the trade union about labelling but did not tell the tribunal of what she complained. Nor did she tell the tribunal of the trade union’s reaction to her allegation or complaint. Nor did she bring along someone from the trade union to confirm her account.
(27) In relation to statutory holidays, the employee has the choice of being paid triple time for a bank holiday if he works it, or be paid double time with a day in lieu. The employee has to choose, and if he does not, the default position is that triple time for a bank holiday worked is paid.
(28) The claimant asserts that she was never offered the choice and relied on that in support of her claim. The respondent did not challenge this. The claimant is not, however, claiming a financial loss by reason of this failure by the respondent. She did not adduce any evidence of less favourable treatment as a result of this omission by the respondent as there was not any evidence before the tribunal that full-time workers were offered the choice.
(29) On 12 February 2011, the claimant submitted a written grievance. In the course of her letter of grievance, she resigned from the post of process control operator and asked to be transferred to process operative work. The respondent arranged a grievance meeting for 19 February 2011 and informed the claimant by letter of 14 February 2011.
(30) The claimant wrote to the respondent on 16 February 2011 resigning from the respondent company and giving one week’s notice. She stated her last day of work would be 22 February 2011. She also invited the respondent to let her know if they needed her help in any other way.
(31) After her letter of resignation, the claimant fell ill and did not return to work.
(32) The claimant’s grievance hearing took place on 7 March 2011. By letter of 16 March 2011, the respondent informed the claimant that her grievances had been rejected.
(33) The claimant appealed, and her appeal was heard on 5 April 2011. The claimant’s appeal was unsuccessful and she was so informed by letter of 4 May 2011.
(34) The claimant is claiming that her holiday leave, statutory holidays and bonus payment should have been calculated according to her hours, ie, her 20.5 hours as a proportion of the 39 hour week. That amounts to 0.53 per cent of a full-time entitlement which amounts to 17.35 days leave; 4.21 statutory days and £53.59 for a quarterly bonus.
(35) The respondent regarded the claimant as a part-time worker who worked two days per week out of five. That was the apportionment it used. Applying that apportionment, the claimant should receive 11.2 days holiday leave; 3.2 days statutory leave and £40.00 bonus (0.4 of £100.00).
(36) In fact the respondent decided to round down the claimant’s holiday leave to 11 days and her statutory leave to 3 days and she was paid a bonus at £40.00. The claimant lost 0.4 day’s leave which amounts to £26.20.
The Law
5. (1) It is unlawful to discriminate against another on racial grounds (Article 6 The Race Relations (Northern Ireland) Order 1997).
(2) Discrimination on the ground of race is to treat someone less favourably than another on racial grounds (Article 3(1)(a) The Race Relations (Northern Ireland) Order 1997).
(3) It is for the claimant who complains of discrimination on racial grounds to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of Article 32 or 33 of The Race Relations (Northern Ireland) Order 1997 is to be treated as having committed such an act of discrimination against the claimant (Article 52A The Race Relations (Northern Ireland) Order 1976).
(4) The Northern Ireland Court of Appeal in McDonagh and Others v Samuel John Hamilton Thom trading as The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the Annexe to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All England Reports 812.
(5) In the McDonagh case the Northern Ireland Court of Appeal recommended that tribunals adhere closely to the guidance in Igen.
(6) The guidance set out in the Annexe to Igen case is:-
“(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of section 41 or section 42 of the SDA 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 some 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 will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word ‘could’ in section 63A(2). At this stage the Tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(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 appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.
(8) Likewise, the 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 56A(10) of the SDA. 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 respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(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 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 respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was 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, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.”
(7) A person subjects a woman to harassment if he engages in unwanted conduct that is related to her sex and has the purpose or effect of violating her dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or he engages in any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
(8) Conduct shall be regarded as having the effect mentioned only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect (Article 6A Sex Discrimination (Northern Ireland) Order 1976).
(9) 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 as regards the terms of his contract or by being subjected to any other detriment by any act, or deliberate failure to act, of the employer, but the right applies only if the treatment is on the ground that the worker is a part-time worker, and the treatment is not justified on objective grounds. (The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000).
(10) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro-rata principle shall be applied unless it is inappropriate (Article 5(1)(2) and (3) The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000).
(11) An employer shall not make an unauthorised deduction from wages unless the deduction is required or authorised by statute or the employee’s contract or the worker has previously signified in writing his consent to the making of the deduction (Article 45 The Employment Rights (Northern Ireland) Order 1996).
(12) An employee may bring a claim for the recovery of damages for any sum which is due or is outstanding on the termination of the employee’s employment (Article 3 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).
(13) A breach of contract arises when the respondent breaches any term of the claimant’s contract of employment whether that term is an express term or an implied term or arises by operation of law.
(14) To establish a constructive dismissal that is unfair the employee must prove that;-
(a) there was a breach of his contract of employment;
(b) the breach went to the core of the contract;
(c) the breach was the principal reason for his resignation;
(d) he did not delay in resigning after the breach had occurred; and
(e) in all the circumstances the employer acted unreasonably.
(15) The breach of contract can be the breach of an express term of the contract or a breach of the implied term of trust and confidence or both.
(16) A breach of the implied term of trust and confidence can be a single act of the employer or a course of conduct by the employer over a period of time.
(17) Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to the breach of the implied term.
(18) The right to paid annual leave is the only right which cannot be modified or excluded by collective or workforce agreements, although the terms on which the right is exercised can be determined by such agreements or by a relevant agreement. (Harvey on Industrial Relations and Employment Law C1[125]).
(19) The entitlement to annual leave has since 1 April 2009 been set at a total of 5.6 weeks a year, or 28 working days if that is less. (Regulation 13A the Working Time Regulations (Northern Ireland) 1998 as amended).
(20) Entitlement during the first and last leave year during which a worker is employed is essentially pro-rata. (Regulation 13 and 13A the Working Time Regulations (Northern Ireland) 1998 as amended).
(21) There is no general rounding-up provision for the computation of pro-rata entitlements as Regulation 13(6) of the 1998 Regulations was removed by The Working Time (Amendment) Regulations (Northern Ireland) 2007 Regulation 2(4). Regulation 15A partially fills the gap; it provides for rounding up of entitlements that accrue (on a month by month basis) during the first year of employment to the next half day. After the first year, however, there is no rounding provision, despite the fact that the introduction of part weeks of additional leave entitlement increases the likelihood that an individual will be entitled to a fraction of a day’s leave. As this cannot be converted into pay in lieu, except under the limited and temporary dispensation in Regulation 13A, or on termination, the revocation of Regulation 13(6) raises the prospect of employer’s having to permit employees to take entitlements calculated in hours and minutes, rather than days or half days. In practice rounding up of entitlements to the next day or half day is likely to be seen as the easiest way to deal with the situation, … (Harvey on Industrial Relations and Employment Law C1[133]).
(22) The concept of a week’s leave is relatively straightforward for a worker who works a fixed number of days each week, throughout the year. It is the number of working days that the worker would normally work in a week. (Harvey on Industrial Relations and Employment Law C1[135]).
Application of the Law and Findings of Fact to the Issues
6. Race Discrimination - Claims 1, 2, 4 and 5.
Spot-checks
(1) Although the claimant asserted that the spot-check on her on 17 July 2010, to check for jewellery, was because she is Polish, the evidence before the tribunal was that others had been the subject of spot-checks who are Irish, Lithuanian and Portuguese.
(2) Given that the respondent has a number of Polish employees and has promoted at least one Polish employee, there was no evidence to suggest the respondent is anti-Polish, apart from the claimant’s allegations.
(3) Ms Spears, who selected the claimant for the spot-check, did not know the name, identity of nationality of the claimant prior to the spot-check. There was no evidence before the tribunal that she is anti-Polish or had selected the claimant because she is Polish.
(4) The use of spot-checks is a method whereby food producers ensure an audit of personal hygiene, while handling raw food, is done. It is expected by some of the major supermarket chains that this is done on the factory floor. As employees of different nationalities were also subject to random spot-checks it cannot be said that the claimant suffered less favourable treatment by being the subject of a spot-check.
However, the tribunal found it somewhat surprising that the respondent does not have a policy on searching or spot-checks or that it does not keep any record of spot-checks done on individuals or by whom they were done or the result of such spot-checks.
Lockers
(5) The evidence before the tribunal was that locker keys were given to employees on the basis of need. Some employees at the claimant’s level had keys, some had not and some employees at a level senior to the claimant did not have keys. The claimant did not challenge this or adduce contrary evidence.
(6)
Apart from the claimant’s
assertion that she was not given a key because she is Polish, there is not any
evidence to support that contention.
(7) However, the tribunal is not persuaded that the claimant has shown a difference in status between those with keys and those without, or that she suffered less favourable treatment by not being in possession of a locker key or that the ground for not having a key was her Polish nationality.
Labels
(8) Part of the duties and responsibilities of the claimant was product labelling. To require the claimant to do product labelling is thus in keeping with her duties and of itself cannot be an example of less favourable treatment.
(9) The claimant appears to make two complaints about the labelling:-
(a) That expecting her to do it was too onerous for her and others were not required to do it; and
(b) That by removing labels when there was a discrepancy between the date of kill on the label and as recorded on the computer, the result was that unfresh meat was going into production.
(10) The claimant did not explain how or why it was too onerous for her to check the labelling. Nor was the tribunal given evidence of who did the labelling or how the persons were selected as many of the claimant’s colleagues apparently had similar responsibilities in their contract of employment.
(11)
The tribunal accepts that
checking and removing labels was done as this was not challenged. However
there was not any evidence before the tribunal to say this task was only done
on Saturdays and Sundays, therefore other employees must have done it as well.
The tribunal was not given any evidence of why this was done or its
implications or ramifications.
(12) The respondent rejects the claimant’s second contention in relation to the removing of labels ie to ensure unfresh meat went into the production and states that this allegation was only raised at the tribunal hearing. It does not appear in her claim form or in her witness statement. The respondent’s assertion is correct.
(13) The respondent’s witnesses accept that removing the labels, would be against the respondent’s rules and procedures.
(14) There was not any evidence before the tribunal as to the objective of removing labels or the implications and ramifications if labels were removed or not removed. There is no reason therefore to draw an adverse inference from this or imply a sinister reason or motive on the basis of the evidence before the tribunal.
(15) Even if the tribunal were to accept that there was a difference in status between those who did the checking of labels (the claimant) and her colleagues who did not, the fact that that is a duty and responsibility within her contract of employment, means that it cannot be, without more, evidence of less favourable treatment. Nor is there any evidence before the tribunal to support the claimant’s contention that the reason she was allocated this task was because she is Polish. It could just as likely be because the claimant was the most efficient at this task that she was chosen.
Temperature of raw skin emulsion
(16) The claimant’s claim is that she had to take the temperature of the meat with a metal detector. She also alleges her colleagues, under the same contract, were not asked to do this. She further alleges that her manager, Diana Strauta, had threatened her with a warning on 20 November 2010 if there were an excessively high temperature of product in the skin emulsion line and that she had conducted an investigation with colleagues of the claimant from East Timor but excluded the claimant. The respondent and Diana Strauta deny the allegations. Again the tribunal is faced with a claim and denial with no objective evidence. The claimant has therefore not been able to demonstrate that her account is more likely than the respondent’s and therefore cannot be accepted.
(17) Even if the allegations were true, it is not clear how they can amount to less favourable treatment. Excluding the claimant from an investigation could be to exonerate her. Alternatively, had the claimant not been doing her task correctly that could be the reason for the threat of a warning. That the claimant alone did the task again might be the operational judgement by the respondent on how to organise its work tasks to best effect.
(18) As the claimant has not established the three ingredients necessary to establish a prima facie case of racial discrimination and thereby shift the burden to the respondent the claimant’s claim for racial discrimination must fail and it is dismissed.
Sexual harassment – Claim 6
(19) The claimant complained that being subjected to a search in a public place with males close by during which her left breast was exposed amounted to sexual harassment.
(20) The tribunal’s finding of fact was that she was only asked to reveal her neck during the spot-check. It was also our finding of fact that in the circumstances it was not unreasonable or inappropriate to do the spot-check on the production line. Further the claimant did not object nor seek privacy at the time.
(21)
As the carrying out of the spot-checks
by Miss Spears did not involve any physical contact with the claimant and the
conduct was in pursuit of the checking of hygiene on the production line of
products destined for the food chain, the tribunal is satisfied that the
conduct did not relate to the claimant’s sex, even if she did consider that it
violated her dignity or created an intimidating, hostile, degrading,
humiliating or offensive environment. We are also satisfied that the
spot-check, carried out in fact by the claimant, was not of a sexual nature,
even if she considered it had the effect of violating her dignity or creating
an intimidating, hostile, degrading, humiliating or offensive environment.
(22) The tribunal is not satisfied that the claimant has shown that she was the victim of sexual harassment and accordingly that claim is dismissed.
Holiday entitlement occurred during sickness absence claim 9AA
(23) The claimant described this as a claim for breach of contract and/or unlawful deduction of wages in respect of the respondent’s omission to pay her any annual leave.
(24) The claimant did not advance the claim that she had accrued entitlement to annual leave during periods of sickness. Accordingly, if there is such a separate claim here, it is dismissed.
Holiday entitlement and part-time worker’s less favourable treatment claims 8A(ii) to (iv), 8B and B10.
(25) The claimant complained that the respondent operated an accrual method of qualification for holiday leave, ie, she could only take what she had accrued by virtue of time worked. She states that she accrued the annual leave at the rate of 0.21 days per week worked.
(26) The claimant also claimed that as a part-time worker, the respondent should have used her hours worked (20.5) and apportioned that against the working week (39 hours) and her leave should have reflected that proportion of the annual leave of 33 days given by the respondent, ie, 17.35 days. Using the same apportionment she argues she should have received 4.21 statutory days.
(27) The respondent argued that the claimant worked two days per week and therefore the correct figure is 11.2 days (two days x 5.6 weeks annually). It further argues that the respondent gave 14 days leave to the claimant and therefore she has not an entitlement to claim for annual leave owed to her which was untaken. The 14 days represent 11.2 days leave and 3.2 days statutory holidays reflecting the respondent’s apportionment with both figures rounded down.
(28) The claimant also argued that quarterly bonuses paid to a part-time worker should be calculated on the same apportionment of hours worked. She calculates she should have received £53.59 as a bonus figure. The respondent argues the proper figure is £40.00 (0.4 (two days out of five per week) x 100) which the claimant received.
(29) There is no requirement to round up portions of days for annual leave calculation as this statutory provision (Regulation 13(6)) has been removed. Nor is there a right to round it down. Accordingly calculations must then be made on an actual basis.
(30) The claimant’s contract is to work two days per week. Her contract was not calculated in hours. The respondent is then at liberty to calculate her holiday leave at 11.2 days as it did. Similarly, the respondent is entitled to calculate her statutory leave entitlement as apportionment (2/5 of eight days) at 3.2 days. The tribunal is fortified in that conclusion by the respondent’s decision to award leave and a bonus to a person who is working 20 hours over four days as having a contract for four days per week. It does not appear to us to have been used to deny the claimant additional leave.
(31) The bonus received by the claimant of £40.00 reflects the appropriate proportion of £100 due to her. However, the claimant is owed annual leave of 0.4 days and that amounts to £26.20 which the respondent is ordered to pay to the claimant. This claim can be considered as a claim under the Working Time Regulations or a breach of contract or as an unlawful deduction from wages.
(32) The claimant therefore suffered a detriment in relation to underpayment for holiday leave of 0.4 days. However, this was following a misconceived idea that the removal of the rounding up provision in calculating holiday leave entitlement means that you are only entitled to completed days leave and not to the fractions of days. The tribunal is satisfied that this error had nothing to do with the claimant’s part-time worker status or her race. In calculating the holiday leave and bonus the respondent had followed the correct approach.
(33) Accordingly, the claimant’s claim for detriment by reason of her part-time working status is also dismissed.
Constructive dismissal - claim 7
(34) As the tribunal has dismissed the claimant’s claim for race discrimination, sexual harassment and detriment by reason of her part-time working status, the only matters she can seek to rely on in support of her constructive dismissal claim are the breach under the Working Time Regulations which might also be categorised as a breach of contract or unlawful deduction from wages or a breach of the implied term of trust and confidence.
(35) The tribunal has already found that calculating the claimant’s holiday leave using the accrual method is permissible in law. Nor is the respondent obliged in law to round up fractions of days owed. The respondent also operated a default position in relation to holiday leave payment at the high rate, ie, triple time without a day in lieu or at the normal rate of double time with a day in lieu. In the absence of an instruction from the employee the respondent awards triple pay for statutory holidays worked. The employee does not lose out.
(36) Even if not inviting the claimant to choose how her statutory leave is paid amounts to a breach of contract, here, it is a technical breach with no detriment to the claimant shown. Similarly, the erroneous calculation of the claimant’s annual leave entitlement by which she lost is 0.4 days, while a breach of contract, is not a breach that goes to the heart of the contract.
(37) The tribunal does not consider there is any merit in the claimant’s other criticisms that could advance her constructive dismissal claim viz:-
- the tone used by Mr Hughes at the disciplinary meeting of 18 July 2010;
- about the provision of qualified interpreters for meetings or hearings;
- the incorrect description of the claimant’s warning as a written warning when in fact it was an oral warning;
- that the claimant did not understand her induction;
- in relation to the provision of wellington boots;
- or by trying to get the claimant to train her successor at process control;
- or that events after her resignation on 16 February 2011 can be reasons for her resignation on 16 February 2011.
(38) As the claimant has not shown a breach of contract that goes to the heart of the contract, she has failed to establish an essential ingredient in her constructive dismissal claim. It is unnecessary for the tribunal to consider the other elements and therefore her claim for constructive dismissal is also dismissed.
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7, 8, 9, 10, 11, 14, 15, 16, 17 and 18 January 2013.
Date decision recorded in register and issued to parties: