Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1150/15

 

 

 

CLAIMANT:              Lee Karl Graham

 

 

RESPONDENT:      Fyfes Vehicle and Engineering Supplies Limited    

 

 

 

DECISION

The unanimous decision of the tribunal is as follows:-

 

(1)       The claimant’s claim of unfair dismissal is dismissed for the reasons set out in paragraphs 48-54 of this decision.

 

(2)       The claimant suffered unlawful discrimination by the respondent on grounds of his race and we order the respondent to pay to the claimant the sum of £4,000.00 in respect of injury to feelings.

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge McCaffrey  

Members:                             Mr J Hughes

                                                Mr J Boyd

 

Appearances:

The claimant was represented by Mr Paul Girvan, MLA.

The respondent was represented by Ms Ursula Maguire, Human Resources Manager of the respondent company.

ISSUES

 

1.         The tribunal had to consider the following issues:-

 

            (1)       Was the claimant unfairly dismissed by the respondent when he was dismissed from his employment on 24 March 2015 for gross misconduct?

 

            (2)       Was the claimant unlawfully discriminated against on grounds of his race by the respondent in the way that he was treated by his work colleagues and in particular by Annette Irvine during his employment in the Ballyclare branch from May 2011 until March 2015?

 

Amendment of title

 

2.         At the outset of the hearing it was confirmed by the claimant that his correct Christian names are Lee Karl Graham rather than Lee Kane Graham.  Accordingly, and with the consent of the respondent we order that the name of the claimant shall be amended to read “Lee Karl Graham”.

 

BACKGROUND

 

3.         We think it appropriate at the outset to clarify that we found the presentation of this case unsatisfactory and lacking in a number of respects.  We considered that neither representative cross-examined the other side’s witnesses in any depth and as a result there were gaps in the evidence.  The witnesses on occasion gave oral evidence which should have been set out in their witness statements, rather than in cross-examination.  The tribunal needs clear evidence on which to base its findings of facts.  We note in particular that the claimant did not refer to the series of warnings he had been given in relation to his conduct towards Mrs Irvine and work performance, except for the final disciplinary meeting, when he asserted that he had been dismissed partly over a performance issue that had not previously been raised with him.  As is set out below, this was not correct and, together with some other inconsistencies in the claimant’s evidence, this leads us to treat some aspects of his evidence with caution.  We also note that Mrs Irvine completely denied some incidents occurred which we subsequently found had occurred.

 

4.         Where the parties are represented, albeit not by lawyers, we do not consider it is appropriate for the tribunal to intervene to ask questions except to clarify minor issues.  We would simply observe that in this case, had the case been better presented on both sides, the outcome may well have been different.  There was considerable material presented to us during the course of the hearing which was not in our view strictly relevant to the issues we had to decide.  We set out below only our findings of relevant facts in relation to the issues we had to consider.  In accordance with guidance in London Ambulance Service Trust v Small [2009] EWCA Civ 220, we set out below our findings of fact in relation to the claim of unfair dismissal and in relation to the claim of race discrimination separately.

 

SOURCES OF EVIDENCE

 

5.         We received witness statements and heard oral evidence from the claimant and from Daniel Fleming, Courtney Brown and from his mother Mrs Kazkowska on his behalf.  There was also a statement produced from James Hunter who did not attend to give evidence at the tribunal and accordingly we have not been able to give any weight to his unsworn evidence.  We also received witness statements and heard evidence from Ms Ursula Maguire, HR Manager for the respondent, Mrs Annette Irvine, Mr Alan Robinson, Mr Andy McKinstry and Mr Noel Craig all of whom were employed by the respondent at their Ballyclare depot.  A number of documents in relation to the history of the claimant’s employment were also opened to us.  On the basis of the evidence heard we have made the following relevant findings of fact in relation to the claimant’s claims of unfair dismissal and race discrimination.  Quite a lot of extraneous information was produced to us and we do not consider it appropriate to set all of that out in this decision.

 

FACTS

 

(i)        Unfair Dismissal

 

6.         The claimant commenced employment for the respondent in February 2011 in the Belfast branch as a counter sales assistant.  He was subsequently transferred to the Ballyclare branch in or around May 2011 and worked there initially as a counter sales person but, as this did not work out, he was then transferred to work in the warehouse.  His probationary period was extended due to poor performance.  After moving to the warehouse job, the claimant’s work performance improved markedly but then dropped off again.  It was an ongoing theme of his employment with the respondent that the claimant made errors in relation to routine matters, that there were issues in relation to his timekeeping and attendance and that the claimant could be moody.  A number of the respondent’s witnesses noted that the claimant was either in extremely good form or could be in very poor form and was inclined to be easily upset and angry.  At least two of the respondent’s witnesses said that on occasion the claimant finished personal phone calls which had clearly been argumentative and then went outside and punched the wall.  The claimant did not refute this evidence.  They also asserted that, contrary to the claimant’s evidence that Mrs Irvine shouted at him repeatedly, the claimant became angry very easily, could be extremely moody and shouted at his colleagues and Mrs Irvine.  Having had the opportunity to observe the claimant’s demeanour at the industrial tribunal, we could see that the claimant did become agitated when questioned, he spoke increasingly faster and louder and appeared to get very upset.  While he did not lose control, we accept that in a different setting his agitation could easily have spilled over into anger.

 

7.         Mrs Irvine said that the claimant’s timekeeping was an ongoing problem.  She said that even when his start time was changed from 8.30 am to 9.00 am, he arrived at work just on time and then proceeded to go and make coffee while his colleagues were preparing orders to go out to customers which led to annoyance amongst his colleagues.  Although Mrs Irvine said that she spoke to the claimant informally on a number of occasions, she said (and it was not challenged by the claimant) that his timekeeping remained a problem.

 

8.         Mrs Irvine also asserted that when the claimant went out to make deliveries to customers, he frequently took the wrong route and so a short journey took much longer than it should have done.  She also said that when he went out to do an errand (which he often asked to do), he expected then to take full breaks as well which led to ill-feeling amongst his colleagues.  The claimant asserted that Mrs Irvine regularly sent him to do personal shopping for her, which she denied.  A number of his colleagues also denied that this occurred.  They agreed that if the claimant was going to the shop he would ask them and her if they wanted anything, but there was no suggestion on their part that there had been any pressure put on the claimant to carry out these errands, or that he was being forced to do it.  There was no convincing evidence from the claimant refuting this and we accept as a matter of fact that the claimant’s time keeping and work performance were poor.

 

9.         The claimant was given a verbal warning in September 2013 in relation to unacceptable behaviour.  The disciplinary letter sets out that the claimant had been accused of taking money from the tea kitty for his private use which he denied.  His timekeeping, shouting and swearing in the warehouse so that it was audible by customers, using the company van for private use, arriving at 8.30 am (start time) and then taking a smoke break and the claimant’s inaccuracy in picking stock and making up orders were all discussed at the disciplinary meeting.  The claimant at the time was advised that the warning would remain current for six months and that he had the right of appeal.  The claimant asserted that he had never received this warning, but the disciplinary letter has the claimant’s signature at the bottom, confirming that he received it.  We accept that a verbal warning was issued at this time.

 

10.      In July 2014 there was an incident where the claimant was checking the oil in the company van because a warning light had come on.  As he was putting the oil in the van Mrs Irvine approached him and asked him what he was doing.  He explained that a light had come on the dashboard of the van and he was filling up the oil.  She was concerned because on a previous occasion the claimant had overfilled a van with oil which had caused damage to the van and resulted in a substantial bill.  She therefore asked what the light was and told the claimant to get the manual to check what the light meant.  The claimant got the manual from the van and proceeded to come towards Mrs Irvine but snatched the book away from her.  She asked him if he was “trying to make me look like a cunt” because she said that she felt he was trying to undermine her in front of the warehouse staff and make her look stupid.  Mrs Irvine then read the manual, confirmed that the warning light was for the oil and spoke to the claimant about how much oil he was to put into the van.

 

11.      Later that day, the claimant came to Mrs Irvine asking if he could have time off for a doctor’s appointment.  She told him that they were very busy and he had not given sufficient notice so he needed to rearrange the appointment.  Later that afternoon she saw the claimant sitting outside in his van on the phone and asked him to come in to put away an order.  The claimant then came to speak to Mrs Irvine in the office and started to shout at her about how she treated him differently to the others and that if one of the other drivers had asked to go to the doctor they would have been allowed to go.  The claimant agreed that there had been an incident over the oil but he felt aggrieved that Mrs Irvine had not accepted what he had told her, asserting that he was a qualified mechanic.  No independent evidence of his qualifications (such as a certificate) was produced to us.  The claimant did not in his witness statement set out any details of the previous incident where he had overfilled the vehicle.  Mrs Irvine said she “could not get through” to the claimant as he kept shouting at her at this meeting and after at least four occasions when she had tried to calm him down, she said that she would speak to him later when he had calmed down.  The next morning she spoke to Ms Maguire and it was decided to proceed with a disciplinary hearing.  The claimant was called into the office the next morning and told that there would be an investigation.

 

12.      An investigatory meeting was held on 3 July 2014 and the claimant at that stage expressed his remorse for what had occurred.  Ms Maguire indicated that the disciplinary meeting would take place three days later but the claimant asked to go ahead straightaway.  He was advised of his right to be accompanied.  The claimant was given a first written warning valid for six months.  The claimant alleged that he had never received the first written warning.  He also said that he had never seen Ursula Maguire’s notes for that meeting until they were provided in relation to this claim.  We accept he had not seen the notes of the meeting, but we accept that he was sent the first written warning.

 

13.      Following this, the decision was taken to put the claimant on a monthly performance improvement plan.  A template was drawn up by Ms Maguire and she provided it to Mrs Irvine who was to go through it with the claimant.  Although there are notes on this plan for July, August and September of 2014, the claimant alleged that he had never been called in for monthly meetings and had never seen a performance improvement plan document.  Mrs Irvine conceded on cross-examination that she had not asked the claimant to sign off on the monthly reviews but was adamant that they had taken place.  In November 2014 there was a performance review meeting with the claimant where Mrs Irvine said that he was rude and aggressive.  The claimant was asked about the correspondence regarding this meeting and again the claimant said he had not received any correspondence about a disciplinary meeting.  The claimant was advised of his right to be accompanied at the meeting and Ms Maguire was to carry out an investigatory meeting in advance.  The investigatory meeting however either did not occur and/or was not minuted.  The detail of what was alleged to have happened on that occasion was not clear, but the disciplinary letter records that the claimant acknowledged his behaviour as unacceptable and said he had some personal issues.  Ms Maguire noted that on several occasions when she met the claimant, he apologised for his behaviour and acknowledged it had occurred.  He was given a final written warning for a period of 12 months from the date of the hearing and advised that any further misconduct or no satisfactory improvement within the effective period may result in dismissal on notice.  When the claimant was asked if he recalled this incident with Annette Irvine, he said that he recalled that she had said he had an attitude problem and had told him to leave his outside issues outside the workplace.  We noted that the claimant’s evidence was inconsistent in a number of respects: he failed to mention any of these disciplinary meetings in his witness statement, but set out a list of incidents where he alleged that Mrs Irvine had picked on him and threatened him with losing his job because his standard of work was poor.  He also denied having received at least one warning letter, but we accept, on balance, that he did receive it.

 

14.      In January 2015 the claimant suffered the death of his sister and was off work for a couple of weeks.  Mrs Irvine was aware of the claimant’s loss and gave him not only three days compassionate leave but also a further period of leave.  It was her evidence, which the claimant did not dispute, that she had talked to the claimant about him going on sick leave but agreed that he could take a period of holiday because the claimant said he was unable to live on statutory sick pay.

 

15.      On 13 February Mrs Irvine had approached the claimant about working overtime the following day (Saturday) and the claimant confirmed he would be available.  However next morning the claimant contacted Mrs Irvine about ten minutes before the store was due to open to say that he would not be able to attend.  Mrs Irvine had also spoken to the claimant in the meantime about over use of his personal mobile phone while at work, poor timekeeping and poor work performance.  The claimant was then sent a further letter on 16 February 2015 inviting him to a disciplinary meeting on Thursday 19 February.  The letter set out the claimant’s failure to attend work on 14 February and also the fact that he had been absent from work due to unplanned absences on nine occasions in the last 12 months.  Taking all the issues together, the claimant was advised this was being treated as gross misconduct and may result in a final written warning.  The claimant then attended a disciplinary meeting on 19 February.  No notes of this meeting were provided and we assume that none were taken.  Ms Maguire’s evidence was that when she came down for the meeting, the claimant was apologetic and quite contrite as he had been on previous occasions.  He admitted that his timekeeping had been poor, his attendance had been poor and said that his GP had previously said he would provide a sick line so that the claimant could take some time off work.  Ms Maguire and Mrs Irvine suggested that the claimant would go and see his GP and gave him a half day’s leave to do so.  The following day the claimant back and told Mrs Irvine the GP said he was fit for work.  Following this the claimant was issued with a further final written warning on 24 February 2015.  Mrs Irvine and Ms Maguire indicated that they had been concerned about the claimant’s personal situation and of the impact of the recent death of his sister had had on him.  Accordingly they did not at this point dismiss the claimant although he already had a final written warning which was still “live” but decided to give him a further final written warning.

 

16.      On 18 March there was a further incident between the claimant and Mrs Irvine.  She had called the claimant in to talk about his work standard and timekeeping as earlier that morning the claimant had arrived just before 9 o’clock but had gone to make himself coffee rather than starting work straightaway.  Mrs Irvine’s evidence was that the claimant became very loud and aggressive and he then said to her, “If you keep pulling on a string you might find out what is on the other end”.  Mrs Irvine’s evidence was that she asked him if this was a threat and his answer was that he did not know what she meant.  Mrs Irvine said that she did not feel comfortable in his company at this point, she felt threatened by his attitude and she asked him to leave the office.  She then spoke to Ms Maguire by telephone and sought advice on how to deal with the matter.  The upshot of this was that the claimant was suspended from work on full pay until a disciplinary meeting was arranged.  The claimant claimed that he had said that he wanted a meeting with senior managers from the head office, but this was denied by both Mrs Irvine and Ms Maguire.  It was put to the claimant in cross examination that the Sales Director Leonard McCormick was in the branch every month and spoke to all the staff so the claimant could have approached him at any time.  The claimant’s answer to this was that when Mr McCormick was there he was always busy and the claimant could not approach him.  It was also asserted by Ms Maguire (although no confirmation of this was produced) that the telephone numbers of all the respondent’s senior managers were on display in the warehouse and could have been accessed by the claimant at any time. 

 

17.      The claimant was given a letter of invitation to a disciplinary meeting on 24 March.  He was advised in that letter of the previous warnings issued to him.  Mrs Irvine also set out in the letter that she felt his standard of work had declined and that he required constant supervision on basic day to day duties.  She indicated that the claimant’s behaviour was unpredictable and erratic and that he had made a verbal threat to her on the previous Wednesday.  Taking this into account and the fact that the claimant already had a final written warning, the claimant was advised this was being treated as gross misconduct and if there was a finding against him this could result in his dismissal. 

 

18.      The claimant asserted in his evidence to the tribunal that the decision had already been made before he went to the meeting and that Mrs Irvine had said when she suspended him something along the lines that she “had enough to get rid of him”.  This was not put to Mrs Irvine in cross examination, and she denied that it had occurred in her witness statement.  What is clear is that the claimant did not approach any Senior Manager either verbally or in writing in relation to this disciplinary hearing.

 

19.      At the disciplinary hearing on 24 March, both Mrs Irvine and Ms Maguire said that the claimant had been aggressive and offensive from the outset.  He denied having done anything wrong.  He accused Mrs Irvine of having an attitude with him from the outset and treating him unfairly compared to other drivers.  It was pointed out to the claimant by Ms Maguire that she had spoken to him on a number of occasions but that he had never mentioned this before.  Ms Maguire’s evidence was that she offered the claimant the opportunity to defend himself and put his side of the story on a number of occasions at the meeting but that he failed to do so.  She put it to him that he had threatened Mrs Irvine with his comment about “pulling a string.”  He agreed this had been said, but denied it was a threat.  She said he kept repeating, “Go on and tell me your decision because I have somewhere else to go after this.”  He also said at the meeting that he believed the decision had already been made.  Ms Maguire then advised the claimant that she believed every opportunity and support had been given to him on previous occasions, in particular in February taking into account his personal circumstances.  With regret, she had to terminate his employment with the respondent.  The notes indicate that the claimant said that even if they had not terminated his employment, he was not coming back to work as he had someone to meet afterwards.  Ms Maguire said that the claimant then started to shout and verbally abuse Mrs Irvine, accusing her that everything that had gone wrong with his job had been her fault.  At this point Ms Maguire stood up and asked him to leave and he then asked her if she was putting him out.  Ms Maguire told him that the meeting was over and that she would show him off the premises.  The claimant’s account of this was that he had they had both said they wanted him out of the building and that if he did not leave they would have him removed.  The claimant said that as he was leaving, he told Ms Maguire that he wanted to appeal the decision and he said that he would see them in court.  Ms Maguire agreed the claimant had said to Mrs Irvine, “I’ll see you in court”, but did not agree he had mentioned an appeal.  On this point, we accept Ms Maguire’s evidence, as it is clear that the claimant was upset, shouting at Mrs Irvine and we are not satisfied that his recollection on this point was accurate.

 

20.      The claimant asserted that he had sent an appeal letter to the respondent the following day.  He said that he had sent it to Fyfes Head Office in Ballymena and the letter started, “To Ursula in HR”.  The letter reads in its entirety:-

 

                        “Lee Graham

 

                        I am appealing against my employment termination on 24 March 2015 has (sic) I do not agree with the decision or any of the reasons.  I feel I was unfairly dismissed.  I will be awaiting your response.

 

                        Lee Graham”

 

 

21.      The respondent through Ms Maguire asserted that they had never received this letter.  She was clear that if the letter had been received it would have been given to her.  The claimant did not suggest that the letter had been sent by recorded delivery or that there was any step taken to ensure that it had been delivered.  He also confirmed that he had received a letter from the respondent confirming his dismissal.  That letter was posted on 25 March 2015 and he agreed that he would have received it on 26 or 27 March 2015.  He said however that he had not been aware that the letter included details of the right of appeal which should be lodged within seven days of the receipt of the dismissal letter.  The letter clearly set out the right to appeal and a seven day period for appeal.  Ms Maguire agreed that the claimant had spoken to her by telephone on 27 March 2015 in relation to his pay, although queries in relation to pay were usually addressed by the payroll department.  The next time that she spoke to him by phone was on 28 May 2015 when the claimant asked for copy of his disciplinary letter and further correspondence regarding disciplinary meetings and his personnel file.  Ms Maguire confirmed that she would send this to him.  It was put to her that in May the claimant had raised the question of his appeal, but she was adamant that he had not mentioned an appeal, but that he had just asked for copies of letters in relation to disciplinary hearing.  Ms Maguire was not clear as to why the claimant wanted these documents on that occasion.  The claimant subsequently wrote to Ms Maguire on 8 June 2015 asking what had happened in relation to his appeal.  The document which was produced to us appeared to be an email version of the letter sent by post to the respondent’s head office.  This email says,

 

“I have sent a letter to your Ballymena office stating that I was appealing the decision the very day after I was fired on 25 March but I have had no reply.  I also contacted Head Office by telephone requesting any correspondence or paperwork detailing my termination and the reasons for it to which I have received nothing and again I have had no reply whatsoever, could you please contact me regarding this matter?” 

 

            Ms Maguire indicated that she received this correspondence on 11 June by post.  As she had not received any appeal in the interim, and had not received the claimant’s correspondence of March 2015, she replied on 11 June refusing an appeal.  In that letter she referred to the telephone calls she had with the claimant in March and at the end of May and the fact that he had not mentioned an appeal at that point.  She said that as the appeal was not made within the specified time, they would not arrange an appeal meeting.  Her evidence to the tribunal was that if the letter for appeal had been received even a few weeks after dismissal, an appeal would have been permitted but because of the length of time which had elapsed between March and June, no appeal was heard.

 

22.      The claimant remained off work and certified as sick following his dismissal.  He advised that he had been in receipt of Employment Support Allowance and was attending a specialised counselling service to do with mental health problems.  He said that he would like to get back to work but so far had been unable to resume due to his health.

 

23.      There was a medical report amongst the papers furnished to us dated April 2015 provided by Dr Green.  The body of this report stated as follows:-

 

                        “Mr Graham has been unemployed since 17 March 2015 [this is not correct; he was in fact suspended on 18 March 2015]. Since then he has been experiencing low mood and anxiety for which he has been seeing his GP regularly.  He has also had input from the Crisis Response Home Treatment team and is currently awaiting counselling and further input from the Community Mental Health Team.

 

                        Yours sincerely”

 

24.      A further report dated 3 February 2016 from another doctor in the same practice indicated as follows:-

 

                        “Mr Graham is a registered patient of Ballyclare Group Practice.  He joined the practice on 1 April 2015.  His initial consultations were on this date and subsequent review on 27 May 2015.  On review of his medical record, his main complaint was over significant mental health symptoms including low mood, anxiety, poor sleep and appetite as well as thoughts that life was not worth living.  This appears to have been triggered by preceding difficulties and his workplace.  If you require further information please do not hesitate to contact me.”

 

25.      We were not provided with records showing any consultations which the claimant had had with his doctors while still employed by the respondent. There were no records to suggest that the claimant had suffered any ill-health or distress because of the disciplinary action or because of race discrimination.  Given that reference was also made by other witnesses (and it was not disputed by the claimant) that he had some difficulties in his personal life, the reasons for the claimant’s low mood and anxiety are not clear to us.  The respondent noted that neither report indicated that the claimant was suffering any problems prior to his suspension pending disciplinary procedure.  It is therefore difficult for us to draw any particular conclusion from these medical reports, other than that the claimant was suffering from low mood and anxiety: the exact cause is unclear. 

 

(ii)       Race Discrimination

 

26.      In relation to the claimant’s claim of race discrimination, he alleged that he had been continuously abused from July 2011 onwards on the basis of him being English.  The claimant also referred to Mrs Irvine having made comments about the claimant’s father having been from Cork and suggesting that he was a “Fenian” because he came from Cork.  One of the other drivers, Noel Craig, agreed that the word “Fenian” was used in banter between him and the claimant, not Mrs Irvine.  We note also that Mrs Irvine completely denied that this had occurred.  The claimant’s claim is purely one of race discrimination and not of discrimination on grounds of religious or political belief, and so we do not need to make any finding on this.

 

27.      The claimant alleged that he was continually being referred to and abused on the basis that he was English and said that this made him feel like “an alien” in the country when he was already a citizen.  Noel Craig, one of the respondent’s witnesses agreed that there was “banter” between him and the claimant and that he would have referred to the claimant as “an English fucker” and that the claimant would have called him “an Irish fucker” but he maintained that this was all meant as a laugh and that neither he nor the claimant took offence.  Mr Craig maintained that the claimant was involved in this banter and also maintained that Mrs Irvine had not been involved in the banter or playing pranks.  He maintained also that he never heard Mrs Irvine saying anything to the claimant which was racist.  This was confirmed by Alan Robinson who said that the claimant did not always react well to banter and that he said on occasion the claimant would lose his temper.  He also agreed that they would all in the workplace call each other “stupid” at some time or another including the claimant and it was not meant maliciously by anyone.  We accept, on the basis of evidence given by other witnesses, that the claimant was hot-tempered and did not react well to banter or pranks if they went against him.  The kind of prank referred to involved putting sellotape or string across doorways to catch people unawares.  First of all, we cannot see how this was designed to catch the claimant specifically and secondly, there was no evidence that this treatment was “on grounds of” race.

 

28.      There were three specific incidents to which the claimant referred in the course of his evidence.  The first of these he said occurred in 2012 when the claimant was on a break and Ms Irvine spoke to him because he was not due a break at that time.  The claimant said he was in the process of making a telephone call to arrange a ferry booking for his mother because she wanted to move from England to Northern Ireland.  However the claimant’s mother said that she moved to Northern Ireland about a week before the claimant started at Ballyclare in May 2011.  There was therefore inconsistency in the claimant’s statement in relation to this.  The claimant alleged that he had told Mrs Irvine that he needed to make this ferry booking and that she replied, “Lee, get back to work or you can fuck off to Larne and get a boat back to England.”  The claimant said that he went back to work rather than give Ms Irvine another reason to “get at him”.  The claimant’s mother in her witness statement said that she had heard a recording of this which the claimant had made on his telephone, but the recording was not available and had not been provided to the tribunal.  We cannot make any clear finding on this incident, given the inconsistency in relation to the claimant’s evidence, the fact that his mother’s evidence is purely hearsay, and the fact that it is denied by Mrs Irvine.

 

29.      In relation to the second incident, the claimant alleged that in or about September 2014, he had taken a telephone message for Mrs Irvine.  He wrote it down on a scrap of paper and put it near the computer which Mrs Irvine was using but in so doing, Mrs Irvine said that he slightly knocked her coffee mug and almost spilled it.  She told him that she was busy on a call and that he was “a useless English arse”.  This incident was witnessed by Daniel Fleming, a trainee mechanic at Stephen Mawhinney’s car sales, who had called to the premises to collect an order.  He said he was in the respondent’s premises regularly during the year he worked at Mawhinney’s.  Mr Fleming was clear in his evidence that he heard Mrs Irvine make this comment.  When he was challenged that no-one else had heard the comment, he said that he was not sure if anyone else would have heard it because the comment was mumbled rather than spoken or shouted.  He was clear however that he had seen and heard ongoing conversations between Mrs Irvine and the claimant where he described her as using “bullying tactics”.  He said that his impression was that the claimant was never made to feel that he was useful.  Mrs Irvine glared at the claimant and Mr Fleming did not feel that the claimant was treated well.  Mr Fleming did not report this matter himself but spoke to the claimant and offered his support and his telephone number.

 

30.      There was a further incident in March 2014 witnessed by Courtney Brown.  Ms Brown had gone to the Ballyclare branch in March 2014 to get a part for her car.  She was not a regular customer.  She said that there were other customers in the shop at the time, but she did not know them.  She said that while she was waiting to be served, she heard remarks from Annette Irvine to the claimant when she said to him, “You English fuckers are not very clever are you? Fuck sake, you’re not in England now.”  Ms Brown said that this was said in front of other people like customers and she felt it was inappropriate.  She said that she herself felt embarrassed for the claimant having to take that sort of abuse.

 

31.      As she left the shop, Ms Brown saw the claimant outside.  She went and spoke to him and suggested that he would report this matter to his manager.  He told her that Ms Irvine who had made the comments was his manager.  Ms Brown gave the claimant her telephone number and the claimant thanked her.  She said that she gave him her telephone number so that he could report it and if necessary she would support him.  Ms Brown was clear that she was not acquainted with the claimant in any way and had not known him before this incident.  Mr Fleming was clear that he knew the claimant only through coming in and out of the shop.  Ms Irvine denied vehemently that these incidents had occurred.  However, given that she used foul language on another occasion to the claimant, and notwithstanding the rather confused way in which the claimant presented some of these incidents, we are satisfied on the basis of the evidence given by two independent and unconnected witnesses, namely Mr Fleming and Ms Brown, that these incidents did occur and that Ms Irvine was guilty of using racist language to the claimant.

 

32.      These incidents however both occurred in 2014 and the claimant’s claim was not lodged until June 2015.  We are satisfied on the basis of the evidence given by the claimant, the evidence given by Noel Craig for the respondent and to a lesser extent the evidence given by Alan Robinson, Darren McNeilly and Andy McKinstry that there was ongoing racial “banter” in the workplace.  As such we are satisfied that there was an ongoing course of conduct of racial abuse towards the claimant throughout his employment with the respondent involving other staff and indeed the manager Mrs Irvine.  She was adamant that if there had been any racial abuse going on she would have stopped it.  She did not however stop the banter and on the basis of the evidence given by Mr Fleming and Ms Brown, we are satisfied that she actually participated in abusive behaviour towards the claimant, based on the fact that he is English.

 

The Relevant Law

 

Unfair Dismissal

 

33.       The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended).  In particular in this case we refer to Article 130 which provides as follows:-

 

                        “130 (1)          In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

                                                (a)       the reason (or, if more than one, the principal reason) for the dismissal and

 

                                                (b)       that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

                                 (2)          A reason falls within this paragraph if it -

 

                                                (a)       relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

 

                                                (b)       relates to the conduct of the employee;

 

                                                (ba)     is the retirement of the employee;

 

                                                (c)        is that the employee was redundant; or,

 

                                                (d)       is that the employee could not continue to work in the position which he held without contravention (either on his part of on that of his employer) of a duty or restriction imposed by or under a statutory provision..

 

                                 (4)          In any other case where the employer has fulfilled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

                                                (a)       depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

 

                                                (b)       shall be determined in accordance with equity and the substantial merits of the case.”

 

34.       The leading authority on unfair dismissal in Northern Ireland is the case of Patrick Joseph Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47.  Like the present case, that case related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.

 

35.       The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v  CityBus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery in Foley  v  Post Office and HSBC Bank plc (formerly Midland Bank plc)  v  Madden [2000] ICR 1283 and Sainsbury’s Supermarkets Ltd  v  Hitt [2003] ICR 111.

 

36.       The nub of the test which must be applied in unfair dismissal cases is stated by Arnold J in British Home Stores:-

 

                                    “First of all there must be established by the employer the fact of that                         belief (ie the belief in the misconduct); that the employer did believe it.                          Secondly, that the employer had in his mind reasonable grounds on                         which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any            rate at the final stage at which he formed that belief on those grounds,         had carried out as much investigation into the matter as was            reasonable in all the circumstances of the case.  It is the employer    who manages to discharge the onus of demonstrating those three             matters, we think, who must not be examined further.  It is not     relevant, as we think that the tribunal would themselves have shared     that view in those circumstances.  It is not relevant, as we think, for                         the tribunal to examine the quality of the material which the employer           had before them, for instance to see whether it was the sort of         material, objectively considered which would lead to a certain         conclusion on the balance of probabilities, or whether it was the sort of       material which would lead to the same conclusion only on the basis of                         being “sure” as it is now said more normally in a criminal context, or,            to use the old fashioned term such as to put the matter “beyond reasonable doubt”.  The test, and the test all the way through, is        reasonableness; and certainly, as it seems to us, the conclusion on            the balance of probabilities will in any surmisable circumstance be a                         reasonable conclusion.” 

 

37.       The Court in Rogan cited further with approval the opinion of Lord Carswell in               Re D [2008] UKHL 33 where it is noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged.  While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact (see paragraph 17 of the judgment).  This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner  v  East Midland Trains Ltd [2012] EWCA Civ 1470.  At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the “band of reasonable responses” test.  He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer.  He made two important observations about the test.  The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse.  The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case.  He referred to his judgment in A  v  B [2003] IRLR 405 where he said, 

 

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”. 

 

38.      It was also noted in Sainsbury’s Supermarkets Ltd  v  Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales that the “band of reasonable responses” test does not simply apply to whether the sanction of dismissal was permissible.  It bears on all aspects of the dismissal process, including whether the pre-dismissal investigation was fair and appropriate.

 

39.      In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.  Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

                 “I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”     

 

                 He continued at Paragraph 19:-

 

                 “It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET.  It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes difficult and borderline decisions in relation to the fairness of dismissal.”

 

40.      The matter was again considered by the Court of Appeal in England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677, where Bean LJ observed:

 

            “The band of reasonable responses” has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide.  It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss “in accordance with equity and the substantial merits of the case”.  This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal, Parliament did not intend the tribunal’s consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer”.  (para 61 of the judgment).

 

41.      The claimant’s representative specifically raised the issue of the respondent’s failure to address the claimant’s appeal and suggested that in doing so the respondent had breached the statutory minimum procedures.

 

42.      The standard procedure to be followed in cases of dismissal and disciplinary procedures is set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.  That procedure comprises three steps: first, a statement of grounds for action and invitation to meeting, secondly, a meeting at which the employee has the opportunity to present his case and thirdly, an appeal, following which the employer must advise the employee of the outcome. There are no specific time-limits for this action set out in the legislation.  If an employer fails to comply any one of these steps, any subsequent dismissal will be automatically unfair under Article 130A of the 1996 Order.  Further, the award to be made by the industrial tribunal in relation to compensation for an unfair dismissal shall be increased by 10% and may be increased by up to 50% if the employer has been at fault.  Equally, the award may be reduced if the employee has failed to comply with the procedure or to exercise a right of appeal under it.

 

43.      The Labour Relations Agency’s Code of Practice in relation to Disciplinary and Grievance procedures also addresses the question of appeals at paragraph 47 and following.  In that Code, the advice is as follows:-

 

                     “47. Employees who have had action taken against them on conduct or capability grounds should be given the opportunity to appeal.  It is useful to set a time-limit for an employee to ask for an appeal – five working days is usually enough ...

 

                     49. It should be noted that the appeal stage is part of the statutory procedure and if the employee pursues a claim to the tribunal the tribunal may reduce any award of compensation if the employee did not exercise the right of appeal.  Similarly, if the employer fails to offer the employee a right of appeal or arrange an appeal meeting and the employee pursues a tribunal claim the tribunal may increase any award of compensation ...

 

“51. The employer should contact the employee with the arrangements for the appeal meeting without unreasonable delay and inform him/her of his/her statutory right to be accompanied at the appeal meeting – see Section 3 of this Code.”

 

(2)       Race discrimination

 

44.      The relevant law is to be found in the Race Relations (Northern Ireland) Order 1997 Article 3 of which provides as follows:-

 

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

 

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

 

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

 

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

 

(ii)       which he cannot show to be justifiable irrespective of 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 ...

 

(3)          A comparison of the case of a person of a particular racial group with that of a person not of that group under paragraph (1) must ... be such that the relevant circumstances in the one case are the same, or not materially different in the other”.

 

The claimant must therefore show that he has been unfairly treated compared to a person of a different racial group, but whose circumstances are otherwise the same as his.

 

Article 5 provides as follows:-

 

          “The meaning of “racial grounds”, “racial group”, etc.

 

                        (5) (i)      Subject to paragraphs (2) and (3) in this Order –

 

“Racial grounds” means any of the following grounds namely colour, race, nationality or ethnic or national origins;

 

“racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins and references to a person’s racial group refer to any racial group into which he falls.”

 

45.      Paragraphs 2 and 3 of Article 5 relate to the Irish Traveller Community.  The question arises as to whether the claimant, who is English, is of a different nationality to people from Northern Ireland, given that all are citizens of the United Kingdom.

 

46.      We have taken account of the decision of the Inner House of the Court of Session in BBC Scotland v Souster [2000] Scot CS 308 where the Court of Session had to consider the question of whether the claimant, who was English, had been discriminated against on grounds of his English nationality when a Scot was preferred for his post.  Lord Cameron of Lochbroom, giving the leading judgment, referred to the comments of the House of Lords in Mandla (LCWA Singh) v Dowell Lee [1983] 2AC 548 where their Lordships considered these issues.

 

47.      Lord Cameron noted:-

 

            “I observe that words such as English, Scots, Welsh or Irish are used in common parlance both as nouns and as adjectives in what can only be described as a racial sense as that is to be understood for the purposes of this legislation. To take a notorious example from the early days of the legislation, it would be regarded as racial discrimination to advertise for a Scots nanny, the implication being that only a Scot would be appointed.  Thus to speak of “the Scots” or “the English” or “the Welsh” or “the Irish” is to denominate a group as having a particular historical identity in terms of their origins.” 

 

In Ealing Lord Cross observed:-

 

                            “The reason why the words “ethnic or national origins” were added to the words “racial grounds” which alone appear in the long title was, I imagine, to prevent argument over the exact meaning of the word “race.”

 

48.      Again in Mandla, Lord Templeman, with whose speech Lords Edmund-Davies, Roskill and Brandon of Oakbrook agreed, said:

 

“A racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins.  I agree with the Court of Appeal that in this context, ethnic origins have a good deal in common with the concept of race just as national origins have a good deal in common with the concept of nationality.  But the statutory definition of a racial group envisages that a group defined by reference to ethnic origin may be different from a group defined by reference to race, just as a group defined by reference to national origins may be different from a group defined by reference to nationality”.

 

            So a racial group may be defined by reference to its communal origins and tradition, which may be either “national” or “ethnic”.  I also bear in mind that the Courts in the United Kingdom have consistently adopted a broach approach to the construction of legislation”.

 

49.      Lord Marnock who agreed with Lord Cameron referred to the decision of the House of Lords in Ealing Borough Council v Race Relations Board, where it was found that there could be racial discrimination within the meaning of the 1976 Act in relation to persons coming from different parts of the United Kingdom.  On the basis of this case law, it therefore seems clear that, if the claimant can prove his claim, discrimination against him on grounds that he was English would constitute racial discrimination within the meaning of the 1997 Order.

 

50.      Article 52 of the 1997 Order provides that on the hearing of a complaint of race discrimination, the complainant must prove facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent has committed such act of discrimination or harassment against the complainant, and the complaint in that situation shall be upheld unless the respondent proves that he did not commit where as not to be treated as having committed that act.  This is generally described as “the burden of proof”.  It is for the claimant on the balance of probabilities to prove his case.  If he is able to satisfy the tribunal of facts from which the tribunal “could conclude” that he has suffered discrimination, it is then for the respondent to demonstrate that there was “an adequate explanation”, i.e. a non-discriminatory reason for him being treated in this way.

 

REASONS AND DECISION

 

(1)       Unfair dismissal

 

51.      In an unfair dismissal case where the dismissal has been conceded – as it has been in this case – it is for the employer to show that they acted reasonably in all the circumstances in dismissing the claimant.  In this case the respondent alleges that the claimant was consistently poor in terms of his work performance and that he behaved in an unacceptable manner towards his manager on a number of occasions, warranting a series of warnings including two final written warnings and ultimately dismissal on 24 March 2015.  Although the respondent did not put it in so many words, we take it that the respondent is therefore relying on Article 130(2)(a) and (b) set out at paragraph 30 above.  Effectively they say that the claimant was not capable of doing the job properly and hence had to be warned on a number of occasions in relation to his poor work performance and secondly, that his conduct was not acceptable in terms of his attendance, timekeeping and his aggressive behaviour towards Mrs Irvine as his manager.  What we need to consider is the well-established test set out in British Homestores v Burchell and set out at paragraph 33 above.  First of all, did the employer believe that the misconduct had occurred?  Secondly, were there reasonable grounds on which to sustain that belief? and thirdly, had the employer carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  The other matter which we have to consider is the question of the appeal to which we will come in due course.

 

52.      In relation to the Burchell test, there is no doubt the employer genuinely believed that the claimant had committed misconduct.  Mrs Maguire pointed out that on a number of occasions when she came down for disciplinary meetings with the claimant he was very apologetic and quite contrite, he acknowledged that he had not done his work as well as he should have done and that he had been rude to Mrs Irvine.  Indeed Mrs Maguire noted that he said that Mrs Irvine had been very good to him.  The claimant did not really dispute that the alleged misconduct had occurred.  He suggested that Mrs Irvine had “picked” on him, but it is clear from our point of view that there were deficiencies in the claimant’s work performance and that when Mrs Irvine tried to address these with him, the claimant was defensive to the point of aggression with her.  We are satisfied on the basis of the evidence of Mrs Irvine, Mr McNeilly, Mr Craig and Mr Robinson that the claimant was late for work, that he took longer breaks than he was entitled to and that he spent a disproportionate amount of time on his mobile phone.  We also note that his attendance record in general was poor.  None of these allegations put by the respondent - backed up with paperwork in relation to a performance improvement plan and a record of attendance - were seriously disputed by the claimant.  We note also that at at least three of the disciplinary meetings there is a record that the claimant was apologetic about his behaviour towards Mrs Irvine which to us indicates that he realised that he had behaved inappropriately and that his conduct was unacceptable.  Indeed, some of his other colleagues noted that on occasions the claimant could be heard shouting at Mrs Irvine when they were both in her office.  It follows from this that we accept the respondent had in its mind “reasonable grounds” on which to sustain its belief in the claimant’s misconduct.

 

53.      The third question is whether the employer had carried out as much as investigation into the matter as was reasonable in all the circumstances of the case.  There were investigatory meetings carried out by Ms Maguire on a couple of occasions.  This was not always the case however and the main reason for this seems to have been that the claimant frankly admitted that he had behaved in an inappropriate way and in the light of this no further investigation was really required.  We accept the investigation which was carried out was reasonable in all the circumstances of the case, given that the claimant made admissions that certain misconduct had occurred, on more than one occasion.

 

54.      We are conscious that the test throughout is “reasonable”.  The phrase often used in employment law is to ask whether dismissal fell “within the band of reasonable responses” to the claimant’s behaviour.  As was noted in the case of Sainsbury’s Supermarkets Ltd v Hitt (see paragraph 35 above) this test does not just apply to the question of whether dismissal was permissible or appropriate; it bears on all aspects of the dismissal process, including whether or not the pre-dismissal investigation was fair and appropriate.  It is also relevant to consider whether or not the respondent followed the appropriate three step procedure in relation to the statutory dismissal procedures.  It is clear that steps 1 and 2, the letter and disciplinary meeting took place.  It is clear from the dismissal letter sent to the claimant that he was offered the right of appeal.  The claimant’s case was that he had written a letter of appeal the day after his dismissal, on 25 March 2015 and had posted this to the respondent’s head office in Ballymena.  He did not say if he had sent it by recorded delivery and he had certainly no posting slip or evidence to show that he definitely had sent the letter.  He had just kept a copy.  The respondent maintained they had not received this letter.  They first became aware of it when the claimant wrote to the respondent in June 2015, enquiring as to progress in relation to his appeal and mentioning the letter sent at the end of March.

 

55.      Given that the claimant had spoken Ms Maguire on at least two occasions between his dismissal and the beginning of June (in relation to his pay first of all and secondly in relation to documents he was seeking) we find it surprising that there was not some discussion of the appeal during those phone calls.    We also find it surprising that if he had lodged an appeal, the claimant did not follow this up with a phone call even a week or two after he had sent the letter, to clarify what was happening.  It is best practice for an appeal to be dealt with promptly and it surprises us that the claimant did not follow up on this matter.  Given the lack of firm evidence on this matter from the claimant and indeed the lack of firm evidence from the respondent (who did not clarify its procedure in relation to receipt of post or produce for example a post book to show that the letter had definitely not been received), we have difficulty in making any firm finding of fact as to whether or not the claimant’s appeal letter of 25 March was actually sent or received.

 

56.      The main issue on which we have to make a decision is whether it was reasonable for the respondent to decide in June 2015 that it would not entertain an appeal at that stage, particularly when the claimant referred in his 8 June letter to the original letter of appeal?  In all, given that we have no firm proof that the first letter of appeal was received by the respondent, it is in our view reasonable for the employer to refuse to entertain an appeal some two months after the deadline, and in the absence of any valid reason for the appeal not having been lodged sooner.

 

57.      We have concluded, in particular in light of the claimant’s behaviour towards his manager, that the dismissal of the claimant falls within the band of reasonable responses and was not unfair.  We consider, having read the disciplinary correspondence and the performance improvement report, that the respondent in fact showed the claimant a great deal of understanding, particularly in giving him a further chance by imposing a second final written warning in February 2015.  The claimant unfortunately did not respond to this opportunity by trying to improve his work performance and his conduct, but was confrontational, rude and aggressive towards his manager on an ongoing basis.  In light of this and in light of his conduct towards her on 19 March, when he told her that if she pulled a string she would then see what was at the end of  it, we can appreciate that this would be perceived as a threat by the manager concerned.  Given the history and the fact that the claimant was already in receipt of a final written warning, we consider that it was reasonable in all the circumstances for the employer to move to dismissal.  Accordingly the claimant’s claim of unfair dismissal is dismissed.

 

(2)       Race Discrimination

 

58.      It was the case that the respondents did not deny that there were certain comments made both by other employees and by the claimant referring to each other as “English Fuckers” or “Irish Fuckers” as appropriate.  Mrs Irvine dismissed this as “banter” and said that it was light hearted; so did Noel Craig and Alan Robinson and the same comment was made by Darren McNeilly.  However one man’s banter can be another’s harassment.  There is a fine line between what is seen as light hearted banter and what can be perceived as racial abuse.  The claimant in this context referred to feeling “alienated” and this was not seriously disputed.  It is arguable whether part of his feeling of alienation stemmed from the fact that he was constantly being picked up on his poor work performance, but nevertheless the racial banter was there and the claimant found it upsetting and distressing.  Mrs Irvine maintained that she was not involved in it and would not have tolerated it had it got out of hand.  However it is our finding on the facts that not only did she not stop it, but she was actively involved in racial comments towards the claimant.  In particular, and on the basis of completely independent evidence, it is our finding that she made comments referring to the claimant as a “useless English arse” and saying, “you English fuckers are not very clever, are you?”.  We can fully appreciate that the claimant found this sort of comment demeaning.  We also appreciate and understand that these were not isolated instances.  We have accepted that there was a course of discriminatory conduct referring to the client as an “English Fucker” and “a useless English arse” through the claimant’s employment, so there is no issue about the claimant’s claim being within the time limit.  The claimant asserted that none of his colleagues received this type of racial comment from Mrs Irvine, and we accept this evidence.  We are satisfied that the reason why the claimant was treated as he was was due to his race, and not for any other reason.  The claimant’s poor work performance is not an “adequate explanation” for derogatory racial comments.  We are satisfied also that there is no evidence that Mrs Irvine used this sort of terminology towards other workers or other staff and accordingly we accept the reason why the claimant was treated in this way was on grounds of his national origins, namely that he is English.  The respondent did not provide any adequate explanation for the racial comments.

 

59.      Neither party addressed us in relation to the appropriate level of damages for injury to feelings.  We are aware that the claimant has been off work sick since the date of his dismissal, but there was no evidence to show that this was specifically linked to the racial abuse that he had received.  We have considered the guidance in the case of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 and Da’bell v NSPCC [2010] IRLR 19 and we consider that the injury to feelings to the claimant in this case, given that he initially participated in some of the banter, is at the lower level of the Vento scale.  We consider that an appropriate amount would be £4000 for injury to feelings, and we order the respondent to pay this amount to the claimant.

 

60.      This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

Employment Judge:

 

 

Date and place of hearing:          1, 2 and 3 February 2016, Belfast.

  

 

Date decision recorded in register and issued to parties: