Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1315/14

 

 

 

CLAIMANT:                      Mohamed Omar Dukali

 

 

RESPONDENTS:              1. Colin Morrow

                                        2. Servisair UK Ltd

 

                                       

                                       

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant has failed to establish facts from which the tribunal could conclude that he has suffered unlawful discrimination on grounds of his race contrary to Articles 3 and 4 of the Race Relations (Northern Ireland) Order 1997.  His claim is therefore dismissed.

 

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge McCaffrey

 

Members:                        Mr I O’Hea

                                        Mr A Crawford

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Mr Dei Harries of Weightmans LLP, Solicitors.

 

 

 

 

ISSUES

 

1.       The issue for the tribunal to consider was whether the claimant had been unlawfully discriminated against on grounds of his race and specifically whether he had suffered racial harassment during a conversation with Colin Morrow, the first-named respondent, one of the second-named respondent’s managers, in a conversation on Easter Sunday 2014.  The claimant had originally included a claim alleging racial discrimination in the way that his grievance was dealt with, but at the hearing indicated that he was only pursuing the allegations in relation to his conversation with Mr Morrow.

 

2.       At the hearing it was confirmed that the claimant’s correct employer was Servisair UK Ltd and accordingly Servisair/Swissport are dismissed from these proceedings as a respondent.

 

FACTS

 

3.       The tribunal heard evidence from the claimant, from Mr Morrow (the first-named respondent) and from two other employees of the respondent namely Anthony McCartney and Andrew Millar.  There was in fact little dispute as to the events which occurred and we therefore set them out briefly below.  We found that all of the witnesses were genuine in their evidence, particularly Mr McCartney and Mr Millar who were completely independent as regards the issues.

 

4.       The claimant is employed as an aircraft dispatcher at Belfast International Airport.  He was originally employed by Menzies and was transferred under the Transfer of Undertakings Regulations to work for the second-named respondent with effect from 1 April 2014.  There were some changes which occurred as a result of this, including changes to uniform.  He was issued with trousers and a fleece about a week after the transfer but it was agreed that the first-named respondent had given the claimant and a number of others a clip-on tie only a few days before the incident. 

 

5.       This was in the context that Jean Foster the station manager had emphatically told the claimant that he was to wear his tie at all times when on duty.  The claimant’s evidence was that in warm weather (and it was unseasonably warm at Easter 2014), the claimant had asked if he could take his tie off during breaks.  He was told that the tie could be removed in the rest room and nowhere else.  Ms Foster also stressed to the claimant the importance of a good appearance and looking smart for customers. 

 

6.       On Easter Sunday 20 April 2014 the airport was particularly busy.  Mr Millar (who was a trade union representative) was a member of the ramp staff.  He was conscious that it would be a particularly busy day and so he and a number of colleagues had brought in fruit so that they could grab something quick to eat in between flights.  His duty started around mid-day.  He confirmed that amongst the items he had brought in was a bunch of bananas.  He said, and it was confirmed by Mr McCartney, that most people brought in things to eat including fruit, crisps, etc.  Mr McCartney confirmed that around 4 o’clock, when the incident occurred, there was still fruit including some bananas sitting on a table in the rest room where staff would gather to eat lunch and relax in between flights.

 

7.       The claimant was on a break and had eaten his dinner.  He then went out to the smoking area to have a smoke before going back to work.  Mr Morrow, Anthony McCartney and Andy Millar were in the smoking area as well.  Mr Morrow then said to the claimant, “Did I not give you a tie to wear the other day?”  The claimant replied, “You did, I just took it off to eat my dinner”.  Mr Morrow replied, “What, to eat a banana?”

 

8.       There was some variation in the evidence given in relation to this particular incident.  Mr McCartney’s evidence was that Mr Morrow had started off by saying, “Omar, did I not give you a tie the other day?”  The claimant however in his grievance letter to the respondent quoted Mr Morrow as saying, “Sorry I don’t know your name, but did I not give you a tie to wear the other day?”  Mr Morrow indicated in his evidence that he was a senior manager airside and was responsible for approximately 100 ramp agents in terms of handing out their uniform.  He was not the claimant’s line manager.  Given that the claimant had recently transferred to the respondent, it would not be surprising if Mr Morrow had not known his name at this stage.  We do not wish to overstress this point, but we make the observation that the claimant speaks with a Northern Ireland accent and is not particularly dark skinned, although his evidence to the tribunal is that his father is Moroccan and an Arab.  If Mr Morrow did not know the claimant’s name at this time, it is also open to question whether he knew of the claimant’s racial background.

 

9.       When Mr Morrow said, “What, to eat a banana?”, the claimant indicated that he looked at Mr Morrow directly and that the conversation fell dead.  Neither Mr McCartney nor Mr Millar noted this in their evidence.  Indeed their evidence was that the conversation continued as normal and then they all went back to work.

 

10.     Mr Morrow’s evidence was that when he had passed through the restaurant a short time before the claimant had been sitting at a table with his back to Mr Morrow.  There was a bunch of bananas on the table and according to Mr Morrow’s evidence, the claimant had a banana in his hand.  He did not see the claimant actually eat the banana, and the claimant strenuously denied that he had eaten a banana.  His exact words were, “I have never eaten a banana in my life”.  When the matter was being investigated, Mr McCartney initially indicated that he had seen the claimant eating a banana in the rest room immediately before the incident.  He subsequently modified this comment to say that he could not be sure that he had seen Mr Dukali eating a banana due to the fact that other colleagues, and the claimant himself, asserted that he had not been eating a banana.  Mr Millar similarly said he thought the claimant had been eating a banana during the break although he had not seen him eating one.  Both Mr McCartney and Mr Millar, asserted that the rest room was “packed” on the day in question.  We accept both the claimant’s assertion that he was not eating a banana on the day in question and also Mr Morrow’s assertion that he thought he saw the claimant eating a banana.  Whether or not the claimant actually was eating a banana is not fundamental to the issue of race discrimination. 

 

11.     The claimant’s evidence was that he was hurt by the comment at the time but that it was near the end of his shift and he did not do anything about it right away.  He did not make any comment to Mr Millar or Mr McCartney nor did he respond directly to Mr Morrow at the time, according to his witness statement to the tribunal.  His evidence was that over the next week,

 

                      “I thought about what was said, how it was said and how it was said to me. The more I went through everything the clearer it became that, given all the factors involved that Mr Morrow did intend the remark as a racial one which was intended to humiliate, embarrass and cause offence to me”. 

 

          About a week after the event the claimant spoke to Mr Millar who was the union representative.  Mr Millar confirmed that he had heard the comment, having been present at the conversation.  The claimant took it from this that Mr Millar was supporting his point of view that this was a racist comment.  Mr Millar’s evidence, which we accept, was that he told the claimant at that time that he did not believe the comment to be racist, but if the claimant had been offended by it he could raise a grievance in relation to the matter and that there were procedures he could follow to do so.

 

12.     The claimant subsequently composed a grievance letter to send to the respondent.  He said that he had initially sent that letter on or about 28 April, and was disappointed that there was no response to it.  That letter includes the comment that he was going to copy the letter to the station manager, Jean Foster, at Belfast International Airport.   The claimant confirmed however that he had not done so at the time.  On or about 28 May he sent a copy of his letter to Jean Foster at Belfast International Airport and she contacted him the same day to arrange a grievance meeting.  The claimant has withdrawn any complaint in relation to the way the grievance was handled and we therefore do not consider it necessary to set out the evidence in the witness statements in relation to this issue.  We simply make the observation that the respondent was clear that they had not received the claimant’s grievance letter at the end of April and the claimant had no proof that he had sent the letter at that time, which begs the question as to whether it was indeed sent at the end of April.

 

13.     The claimant alleged that Mr Morrow’s treatment of him was on grounds of race.  His witness statement stated,

 

                      “The word banana is often associated with monkeys, and people of a different race or ethnicity, whether it be skin colour or national origin are often compared to or even called monkeys by people intending to make a derogatory and insulting remark towards the person of a different race, ethnicity or origin.  I believe that because of my ethnic origin (my father is an Arab and Moroccan) that this provided the basis for Mr Morrow to compare me to a monkey”.

 

14.     Mr Morrow denied the allegation of race discrimination.  His response was, “I made this comment, “You need to take your tie off to eat a banana?”  because Mr Dukali had been eating a banana a short time earlier.  I would have asked the same question to any employee who told me they had removed their tie on duty to eat a banana – or any other piece of fruit - irrespective of their race”.  Mr Morrow was emphatic that the claimant’s race played no part whatsoever in the reason for him making the comment.  Both Mr Millar and Mr McCartney were of the opinion that the comment was not racially motivated, but indicated they could understand how the claimant perceived it in that way.

 

THE RELEVANT LAW

 

15.     The relevant law in relation to race discrimination is to be found in the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”).  The Order provides at Article 3 as follows:-

 

          “3(1)   A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

 

(a)        on racial grounds he treats that other less favourably that he treats or would treat other persons; or

 

(b)        he applies to that other a requirement or condition that he applies or would apply equally to persons not of the same racial group as that other but –

 

(i)          is such that the proportion of persons of the same racial group as that other who could comply with it is considerably smaller than the proportion of persons not of that racial group who could comply with it;

 

(ii)        which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

 

(iii)       which is to the detriment of that other because he cannot comply with it.” 

Harassment is defined at Article 4A as follows:

 

           “4A(1) a person (“A”) subjects another (“B”) to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(1B) where, on the grounds of race or ethnic or national origins, A engages in unwanted conduct which has the purpose or effect of –

 

(a)    violating B’s dignity, or

 

(b)    creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

(1)            Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular the perception of B, it should reasonably be considered as having that effect.”

 

16.     The burden of proof in the discrimination cases is set out at Article 52A which provides as follows:

 

                    “52A – (2) Where, on 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, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not treated as having committed, that act.”

 

17.     The “burden of proof” in discrimination cases has attracted considerable judicial comment.  The guidance in Igen Ltd v Wong [2005] EWCA Civ 142 has been endorsed in a number of cases including by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Ltd [2007] NICA25.  The claimant must first show facts from which the tribunal could, in the absence of an adequate explanation from the respondent, conclude that the respondent has committed an unlawful act of discrimination.  Once the tribunal has so concluded the burden of proof then shifts to the respondent to prove he did not carry out an unlawful act of discrimination.  The burden of proof has been considered subsequently in a number of cases including Madarassy v Nomura International Plc [2007] IRLR 246.  In that case, Lord Justice Mummery said:-

 

                    “The bare facts are that the difference in status and the difference in treatment only indicate the possibility of discrimination.  They are not, without more, sufficient material from which the tribunal “could conclude” that on the balance of  probabilities the respondent had committed an unlawful act of discrimination.  “Could conclude” in Section 63A [the relevant GB equivalent in relation to race discrimination] must mean that “a reasonable tribunal could properly conclude” from all the evidence before it”.

 

18.     In Laing v Manchester City Council [2006] IRLR 748 Mr Justice Elias said:-

 

                    “The focus of the tribunal’s analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination (in that case).  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination then that is the end of the matter.  It is not improper for a tribunal to say, in effect there is a neat question as to whether or not the burden has shifted, we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it is nothing to do with race.”

 

19.     In Nelson v Newry and Mourne District Council [2009] NICA 24 Lord Justice Girvan, referring to the decision in Madarassy, added:-

 

                    “This approach makes it clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination ...  The need for the tribunal to retain such a focus is strictly important when applying the provisions of Article 64A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

20.     We are also conscious of the judgment of Elias LJ in Laing (referred to above) in which it was noted that it was not obligatory for a tribunal to go through every step set out in Igen in each case.  As was noted in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, by Lord Nicholl:-

 

                    “Sometimes the “less favourable treatment” issue can be resolved without, at the same time, deciding the “reason why” issue.”

 

21.     In this case the claimant has clearly set out why he believes Mr Morrow’s comment in relation to a banana was racially motivated.  We have set out above the claimant’s perception that the word banana is often associated with monkeys, and that people of a different racial background may be compared to or even called monkeys by way of a racist comment.  He believes that because of his own ethnic origin, this was the basis for Mr Morrow to compare him to a monkey.  We note that nothing was said by the claimant to Mr Morrow at the time, and that no one else present at the discussion, in particular Mr McCartney or Mr Millar, perceived that this was a racist comment.  We are aware that in recent times throwing bananas at people of a different racial or ethnic origin has been seen as a racist act, particularly in the context of football matches.  The issue for the tribunal however is to consider whether in the context of this case, Mr Morrow’s comment of “What, to eat a banana?” constituted racist behaviour, and hence unlawful discrimination.

 

22.     We believe that this incident must be seen in the context of the overall factual matrix, as Lord Justice Girvan described it in Nelson.  The claimant had recently transferred to work for the respondent company.  That company had a strict uniform policy, although a copy of the actual policy had not been given to the claimant at the time.  He had however been told by the station manager Jean Foster that his tie must be worn at all times.  As a concession, because of the hot weather, he was told that he could remove his tie in the rest room but not otherwise.  While it is relevant that the claimant had just been in the rest room and was on a meal break and so was not wearing his tie, it was nevertheless valid for Mr Morrow, as a manager to query why the claimant was not wearing a tie.  The claimant’s explanation was that he had taken it off while he was eating his dinner.  Mr Morrow, who was under the impression that he had seen the claimant eating a banana a short time before then said, “What, to eat a banana?”  Given that the rest room was busy at the time as both Mr McCartney and Mr Millar indicated in their evidence, it is possible that Mr Morrow was mistaken in his impression that he saw the claimant eating a banana.  It is clear however that there were bananas on the table in the rest room and that the claimant had been at the table a short time before.  While
Mr Morrow may well have been mistaken, in that the claimant was not actually eating a banana at the time, this does not mean that his comment was racist. 

23.     We are not satisfied that the claimant has proven facts from which we could reasonably conclude that he has suffered discrimination on grounds of his race.  In connection with his claim of race discrimination, he has not shown that he was less favourably treated than someone else of a different racial background and did not identify any actual or hypothetical comparator of a different racial background.  Mr Morrow’s statement confirmed that he would have made the same comment to any employee at the time and this was not contradicted in any way.  Applying the comments of Elias J in Laing, we cannot properly infer race discrimination in this case and even if the burden of proof has shifted, we are satisfied with the explanation given by the respondent in this case which in our view was free of either conscious or unconscious racism.

 

24.     In relation to the claimant’s claim of harassment, we are conscious that the claimant has focussed very much on his own perception of the comment made to him and how he felt as a result of it.  The claimant said he had felt the remark was designed to embarrass and humiliate him and to create “a hostile and degrading environment and degrading environment for me.”  We are conscious that the definition of harassment in Article 4A involves “unwanted conduct” which has the purpose or effect of violating the recipient’s dignity or creating “an intimidating, hostile, degrading, humiliating or offensive environment for B.”  We do not doubt that the claimant was upset by the comment, and it seems from his statement that as he reflected on it, so his upset grew.  We are aware however that while the claimant’s perception must be taken into account, the tribunal must also take into account whether the alleged conduct “should reasonably be considered” as having the effect complained of (Article 4A(2) of the 1997 Order).  In other words, could the comment objectively and reasonably be viewed as racist?

 

25.     In all the circumstances of this case we are not satisfied that Mr Morrow’s question to the claimant should reasonably be considered as meeting the definition of harassment.  We believe that it was a genuine and spontaneous comment, said because Mr Morrow thought he had seen the claimant eating a banana a short time before and was said in the context of enforcing the uniform policy.  We believe that the incident grew in the claimant’s mind when he reflected on it further, and it was on this basis that he brought his grievance.  The claimant is still employed by the second-named respondent.  While the first-named respondent is not his line manager, it is likely that they will be working together in the future.  It is important therefore that there should be harmonious working relationship between them.  We note that mediation was offered by the second-named respondent which in our view is a positive step.  We trust that any difficulties caused by this incident and the bringing of this claim can be overcome with goodwill on all sides. 

 

26.     In summary, the claimant has failed to adduce facts from which we could reasonably conclude, in the absence of an adequate explanation, that he had suffered race discrimination and accordingly his claim is dismissed.

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  26 and 27 January 2015, Belfast.

                   

 

Date decision recorded in register and issued to parties: