Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2638/15

 

 

 

CLAIMANT: Paul Pop

 

 

RESPONDENTS: 1. Camden Group Limited

2. Robin Service

3. Gary Malone

4. Wolf Ehrke

5. Holly Lewis

 

 

 

DECISION

The decision of the tribunal is that the claimant's claims are dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Murray

Members: Mr R McKnight

Mr D Walls

 

Appearances:

The claimant represented himself.

The respondents (apart from Ms Lewis) were represented by Mr C Hamill, Barrister-at-Law, instructed by Ms Cochrane of Carson McDowell Solicitors.

Ms Lewis did not attend and was not represented.

Interpreter: Ms M Gavrilescu.

 

THE CLAIM

 

1.             The claimant's claim was that his dismissal was an act of discrimination and that he was subjected to race discrimination in the form of bullying and harassment by Mr Robin Service and others. The respondents' case was that the claimant was dismissed for reasons unconnected to his race and that he was not subjected to the race discrimination alleged.

 

SOURCES OF EVIDENCE

 

2.             The tribunal had written statements and oral evidence from the claimant on his own behalf and from the following witnesses for the respondent: Gary Malone the claimant's supervisor; Wolf Ehrke, Head of Technical Department who took the decision to dismiss the claimant; Robin Service, the Production Manager who dealt with the appeal against dismissal. The tribunal had regard to the documentation to which it was referred and in particular to agreed transcripts of covert recordings which were made by the claimant.

 

3.             The claimant gave oral evidence and questioned witnesses using the services of the interpreter. Mr Pop stated that he would not need the interpreter for the submissions part of the hearing as he had time to prepare his arguments in writing and his level of English was sufficient to deal with Mr Hamill's arguments.

 

THE LAW

 

4.             Race discrimination is outlawed under the Race Discrimination (NI) Order 1996. The initial burden is on the claimant to prove facts from which the tribunal could conclude that an act of discrimination and/or harassment on grounds of race took place. If the claimant proves such facts the burden shifts to the respondent to provide an explanation for any such acts which are unconnected to race. It is for the claimant to prove that he suffered detriment and that any detriment amounted to less favourable treatment by comparing himself with an actual comparator and/or a hypothetical comparator.

 

5.             The claimant did not have sufficient service in order to bring an unfair dismissal claim. His claim in relation to the dismissal is therefore that that amounted to an act of race discrimination.

 

6.             The respondent raised a time point in relation to any alleged acts which may have occurred before 25 August 2015. The claimant's claim was that bullying and harassment occurred on an ongoing basis.

 

FINDINGS OF FACT AND CONCLUSIONS

 

7.             The tribunal found the following facts and reached the following conclusions having applied the legal principles to the facts found. It is important to note that in this decision the following are the primary findings of fact and in this decision the tribunal does not seek to record all of the competing evidence.

 

8.             The claimant was employed by the respondent from 30 March 2015 until 19 October 2015 when he was sacked. The claimant's contract of employment to which we were referred was a temporary contract which expired on 26 June 2015 but it was clear that the claimant continued to be employed by the respondent until the date of his dismissal. That contract does not mention probation at all.

 

9.             The claimant worked in the Quality Control Department of the respondent's factory which manufactured doors of different types. The Quality Control Department was at the end of the production line and the purpose of that Department, and of the claimant's job, was to check that products were up to standard before being sent to customers.

 

10.          There was a bonus scheme in operation whereby an employee such as the claimant could earn a bonus of up to £20 per week if his work was of a satisfactory standard. In August 2015 the owner of the company, Mr Brian Lavery, called a meeting with workers including the claimant to explain that the bonus was liable to be deducted if any mistakes were made. The company's concern in reducing mistakes was to minimise loss in financial and reputational terms.

 

11.          Whilst in the tribunal hearing Mr Pop expressed dissatisfaction with the way the bonus scheme operated and dissatisfaction with the pressure that he and others were under to check doors, we find that the claimant was fully aware of the way the company operated its bonus scheme and of the fact that he and others were liable to have deductions made from the bonus if they made mistakes.

 

12.          We accept the respondent's evidence which was that several workers in the month before the deduction of the claimant's bonus had had their bonuses deducted in accordance with the strict policy which was notified to staff in August 2015 by Mr Lavery. Those workers comprised two workers who were Polish and a local worker and we accept the respondent's evidence that the claimant was therefore not singled out as he alleged.

 

13.          The incident which was the trigger for the sequence of events which ultimately led to the claimant's dismissal, occurred in June 2015. The claimant checked and "signed off" a door which had an obvious fault in that the handle of the door obstructed the operation of the letterbox. This came to the attention of Mr Malone the claimant's supervisor because a complaint had been made by a customer to the Customer Services Team about the door which had actually been delivered to the customer. An email from Customer Services was received by Mr Malone on 23 September 2015 and that same day Mr Lavery emailed instructions to Mr Malone to remove part of the relevant Quality Control Operator's bonus. The decision to deduct part of the bonus was therefore taken by Mr Lavery and we had no evidence that he knew that the relevant Quality Control Operator was the claimant.

 

14.          Mr Malone met Mr Pop on 23 September 2015 to explain the position and to tell him that he would have £10 removed from his bonus the following week. The claimant accepted at that point that the defective door was his mistake.

 

15.          Rather than accept the deduction of his bonus, the claimant then on several occasions spoke to managers on the shop floor to complain about the deduction to his bonus. This came to the attention of Mr Malone who had another meeting about this matter with the claimant on 8 October 2015. That meeting was recorded covertly by the claimant and we were referred in detail to the contents of the transcript. It is clear from the transcript that the claimant regarded the deduction of bonus as a punishment and demanded an official letter to explain why he had been punished in this way despite the fact that he accepted that it was his fault and he did not argue with Mr Lavery's policy.

 

16.          The claimant then raised an issue about Robin Service stating that he screamed at him on a regular basis. It is also clear from the transcript that Mr Malone told the claimant that there was a process which involved raising a grievance in writing if he had problems with another manager. It is also clear from the transcript and from Mr Malone's evidence that he expressed concern to the claimant and actively encouraged him to raise his complaint about Mr Service in the proper manner through HR by raising a grievance. The claimant did not raise a grievance.

 

17.          The claimant continued to pursue the matter of the bonus and there then was a meeting between him and Mr Ehrke who was a more senior manager than Mr Malone or Mr Service and is also a German National. Mr Ehrke met the claimant because the claimant was not accepting the explanation given to him by his boss Mr Malone. Mr Ehrke was Mr Malone's superior and he decided to meet the claimant to explain the reason for the deduction of the £10 bonus. The claimant covertly recorded that meeting and we have studied the agreed transcript carefully.

 

18.          It is clear from the transcript that Mr Ehrke explained several times the policy about the deduction of the bonus. The claimant's reaction was to request written details of the bonus scheme and a formal letter as to why the deduction had been made. The claimant also raised an issue about Mr Service screaming at him and Mr Ehrke made clear to him that this was unacceptable and that he should invoke the grievance procedure by putting his complaints in writing through HR. This was emphasised by Ms Lewis of HR who was also at that meeting. Once again the claimant failed to lodge a grievance.

 

19.          After the meeting on 13 October the claimant spoke to Mr Ehrke again on the shop floor and repeated his request for written justification for the deduction of bonus. Mr Ehrke then had serious concerns about the claimant's attitude because he continued to challenge several managers about the decision. The claimant complained that Mr Ehrke warned him at that point that he was wearing out Mr Ehrke's patience. We can understand Mr Ehrke making this clear to the claimant and we find that there was no suggestion that this warning was related to the claimant's race. It is our finding that Mr Ehrke would probably have treated anyone who behaved as the claimant did in the same way and there therefore was no less favourable treatment.

 

20.          A "probationary review" meeting was convened and took place on 16 November 2015 with Mr Ehrke in attendance accompanied by Ms Lewis of HR. This meeting was covertly recorded by the claimant and we have studied the transcript carefully. The claimant continued to ask for an explanation for the deduction of bonus, for written confirmation of this and added a further demand for written minutes of the meeting on 13 October 2015. We can understand why Mr Ehrke had serious concerns about the claimant's attitude given his continuing challenge to the decision which had been taken despite his concession that he had made a mistake, that he knew about the bonus scheme and the risk of deduction of bonus in the event of a mistake. It is clear that the claimant was effectively telling Mr Ehrke how to do his job and we can understand why Mr Ehrke had concerns about the claimant's attitude going forward.

 

21.          The claimant made the point that the "probationary review" meeting was incorrect as his probation had expired as set out in his contract. The claimant's point seemed to be that we should be suspicious of the respondent's (and in particular Mr Ehrke's) motives for convening the meeting. We do not accept the claimant's point on this.

 

22.          The date referred to in the contract was the expiry date of the temporary appointment. We find nothing untoward in the title of the meeting. It is clear that Mr Ehrke had legitimate concerns about the claimant's attitude following deduction of the bonus due to his admitted lapse in performance. We find nothing unfair in the conduct or content of that meeting. Specifically there was nothing to indicate that Mr Ehrke had an issue with the claimant because he was a foreign worker.

 

23.          The letter of dismissal was dated 16 October 2016 and stated: "The meeting had been called as a result of your performance at work and attitude at work, taking everything into account the decision was taken to terminate your employment with immediate effect". We accept that Mr Ehrke took the decision to dismiss the claimant primarily because of his attitude following the deduction of bonus.

 

24.          Mr Ehrke accepted that the claimant was entitled to ask why his bonus had been affected. The problem for Mr Ehrke was that the claimant kept challenging the decision by querying the bonus scheme, by alleging that he should have received a warning and by demanding written confirmation of the reasons for the deduction and written minutes of a meeting. It is our finding and conclusion on the evidence that the reason for Mr Ehrke's decision to dismiss the claimant was because of the claimant's attitude following the performance issue which led to the deduction of bonus. We can understand Mr Ehrke's concern and frustration at the claimant's behaviour in approaching several senior managers and insisting on a paper trail relating to a fairly minor matter despite the matter being explained exhaustively to him.

 

25.          In tribunal the claimant raised his dissatisfaction with the bonus scheme and with the pressure he and others were under to check products. Neither of these points is relevant to the issue where the claimant accepted that he had made a mistake and that he understood how the bonus scheme worked in practice. The issue which led to managers' concerns related to his insistence on a paper trail and his repeated insistence on a written explanation for the deduction which should have been obvious to him in view of his acceptance of responsibility.

 

26.          The claimant appealed against that decision and the appeal was heard by Robin Service. Mr Service confirmed the decision to dismiss. The letter setting up the appeal advised the claimant that Mr Service would be hearing the appeal, the letter was dated 26 October 2015 and stated that the appeal hearing would take place on 30 October 2015. The claimant therefore had ample time to object to Mr Service hearing the appeal if he had concerns about him being involved.

 

27.          As regards Mr Service hearing the appeal, we failed to understand why the claimant did not object to him hearing the appeal if it was the case that he had been abused for such a long time by Mr Service and was afraid of him. The claimant had been dismissed by Mr Ehrke and had then appealed and was notified that Mr Service would hear the appeal. At that stage the claimant had nothing to lose by objecting to Mr Service if it truly was the case that he felt that he would not give him a fair hearing. The claimant gave us no satisfactory explanation for failing to object to Mr Service. In these circumstances we find that this detracts from the claimant's account of being singled out by Mr Service on an ongoing basis.

 

28.          The claimant's complaint to the tribunal was that Mr Service screamed at him on a regular basis, singled him out for adverse treatment such as giving him too many composite doors to check and that when the claimant tried to raise these concerns with managers verbally, nothing was done.

 

29.          We reject the claimant's claim on this point for the following principal reasons:

 

(1)           From the transcripts it is clear that each time the claimant raised the issue of Mr Service screaming at him he did not relate this to him being "a foreigner" (as the claimant termed it) and he was told by managers to go through the proper procedure by raising a grievance in writing;

 

(2)           The claimant gave us no good explanation for failing to follow the course strongly recommended by his managers. In his evidence he stated that the reason was that he wanted to deal with matters on a "friendly" basis;

 

(3)           One of the managers the claimant approached to complain about the loss of bonus was Mr Service. This does not make any sense if it was the case that Mr Service was engaged in abusing him and singling him out in such a marked manner. In evidence to us the claimant said that he approached Mr Service because he thought that he would help him about the bonus. This does not fit in with the picture of him being afraid of Mr Service. The claimant's evidence on this led us to doubt his reliability as a witness.

 

30.          One of the allegations the claimant made against Mr Service was that he referred to him as a "ball bag". Mr Service in his witness statement agreed that he used that term on occasion, that he would use it when talking to workers about other workers but never to anyone's face and that he did not single the claimant out. At this point we wished to record that we find inherently implausible that Mr Service would use that term to workers about others in that way but that he would not say it to anyone's face. We understand that this is a pressurised environment but in our view there is no excuse for a manager to use offensive language like this about or to workers.

 

31.          However, we had no evidence whatsoever that the claimant was singled out by Mr Service as we take account of:

 

(1) The fact that 45% of the workforce were foreign nationals;

 

(2) The fact that on at least one of the occasions that the claimant alleges he was screamed at by Mr Service, Mr Service was based in a different factory and different division;

 

(3) This was a noisy working environment where workers had to wear ear defenders and we accept that some shouting would take place in order to ensure that workers were heard;

 

(4) From the transcripts it is clear there was no suggestion by the claimant that he felt singled out by Mr Service (except in relation to the smoke breaks issue - see below).

 

32.          The point made by the claimant in relation to smoke breaks was that a colleague from Northern Ireland Mr McC took too many smoke breaks and that nothing was done about this. Mr Service's evidence was that he agreed at the time with the claimant that Mr McC took too many smoke breaks, that he raised this with Mr McC's supervisor and that that supervisor spoke to him directly. Given that Mr Service was not in charge of Mr McC at the relevant time (and this was unchallenged evidence), we accept his evidence that he did what he should have done which was to speak to Mr McC's supervisor. That supervisor in question was the manager that the claimant said he had been happily working with and there was no suggestion that he at any point discriminated against the claimant. In all these circumstances we find that there was no less favourable treatment on the smoke breaks issue.

 

33.          The claimant also alleged that he was made to check more composite doors than others and that this was a heavier, more complicated job. He also said that he raised this with his supervisor Mr Malone and nothing was done. We accept the evidence of Mr Malone (whom we found to be a particularly impressive witness) that:

 

(1)           The claimant had the same target as everyone else;

 

(2)           That it was up to each of the four operatives which doors they chose from the rack to check;

 

(3)           That the claimant's speciality was composite doors given that he had worked seven years in his previous employment in that field and that might explain why he might have checked more of this type of door;

 

(4)           That there were less points to check on a composite door albeit that it is a heavier door and it was thus not necessarily a more difficult or time-consuming job.

 

34.          We therefore accept Mr Malone's evidence that if the claimant was checking more composite doors than others it was his choice to do so and that this was also not to his detriment. The claimant alleged that at one point Mr Malone issued a threat to him that if the claimant did not like his work he could leave the job. Mr Malone's evidence was: "I can imagine that I may have told Paul that he had to do his job and if he didn't want to do it he could leave". We do not regard this as a threat nor do we regard it as detrimental treatment. In these circumstances we find that there was no evidence that this amounted to less favourable treatment nor was there evidence that the claimant was singled out because he was a foreign national. We therefore find that the burden of proof does not shift to the employer and the claimant's claim on this point fails.

 

35.          We reject any suggestion that the way that the claimant was treated by Gary Malone, Wolf Ehrke and Holly Lewis in their meetings with him amounted to race discrimination. In particular we reject the claimant's suggestion that the fact that Ms Lewis was taking notes for Mr Ehrke and that she asked some questions during the meeting meant she was discriminating against him on grounds of race. From our reading of all the transcripts it is clear that Ms Lewis interjected appropriately to try to explain to the claimant the procedure for raising a grievance for example. The specific allegation against Holly Lewis was that on 13 October she questioned the claimant when she should not have because she was there as a note-taker only. We reject entirely that this suggests in any way that this was less favourable treatment on grounds that the claimant was a foreign national.

 

36.          The claimant made an allegation that he was forced to "pass" doors in Robin Service's name. We accept the evidence of the witnesses for the respondent that if a manager such as Mr Service insisted that a door was passed, he put his name on it so that if it was returned it was his responsibility. In these circumstances we fail to see where the detriment to the claimant occurred. As no detriment occurred there was no discrimination.

 

37.          We note that in the Handbook it states that disciplinary procedures do not apply in the first year of employment. We therefore reject the claimant's contention that disciplinary procedures were not followed in relation to misconduct as no contractual disciplinary procedures applied to him.

 

38.          The claimant alleged that he was issued with a "threat" on the computer instruction which accompanied the directions for the particular door in question. We do not accept the claimant's case on this. The alleged threat amounted to a written instruction reminding everybody that, as this was a job for Mr Lavery the owner of the company, any mistakes would result in the bonus being affected. We do not find this to amount to detrimental treatment nor less favourable treatment as this instruction was issued for the attention of everyone. There was no suggestion that the claimant was singled out at all, never mind because he was a foreign national.

 

39.          The claimant alleged that there was a hostile environment because of the pressure that everyone was under to work quickly. This does not amount to less favourable treatment on grounds that the claimant was a foreign national as there is no evidence whatsoever that he was singled out in this regard.

 

40.          In summary there was no evidence that the claimant was treated less favourably than an actual or hypothetical comparator. We had no evidence that any treatment was because the claimant was a foreign national.

 

SUMMARY

 

41.          We find that the claimant has not proved facts from which we could conclude that race discrimination occurred. We have no evidence that he was singled out because he was a foreigner and/or because he was Romanian.

 

42.          We find that the claimant has also not met the legal test for proving facts from which we could conclude that an act of harassment on grounds of race occurred in the way alleged.

 

43.          It was most unfortunate that the issue of a £10 deduction from bonus escalated to dismissal. We can understand managers' frustration at the claimant's refusal to accept this management decision and his insistence that a paper trail be created over such a minor matter.

 

44.          The claimant's claims are therefore dismissed in their entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 23, 24 and 25 August 2016, Belfast.

 

 

Date decision recorded in register and issued to parties