Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 9258/17

CLAIMANT: Jason Paine

 

RESPONDENT: Brian Wilton t/a Arrow Removals

 

 

 

DECISION

 

 

The decision of the tribunal is as follows:-

 

1.     That the claimant's claim in respect of wrongful dismissal/notice pay should be dismissed following its withdrawal by the claimant in the course of the hearing.

 

2.     That the tribunal does not have jurisdiction to determine the claim of unfair dismissal as the claimant concedes that he did not have the requisite one year's period of continuous employment at the date of termination of his employment.

 

3.     That the claimant was not subjected to racial harassment by the respondent and this claim is therefore dismissed in its entirety.

 

4.     That the claimant was not directly discriminated against by the respondent on the grounds of race and this claim is therefore dismissed in its entirety

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Turkington

 

Members: Mr N Jones

Mr M Robinson

 

 

Appearances:

 

The claimant appeared and represented himself with the assistance of his wife.

The respondent appeared and was represented by Ms A Smith, instructed by Markel Law LLP.

 

 

THE CLAIMS

 

The claimant had brought the following claims before the tribunal:-

1.             A claim in respect of wrongful dismissal/notice pay. This claim was withdrawn by the claimant in the course of the hearing and it was therefore not necessary for the tribunal to make any determination in respect of this claim.

 

2.             A claim for unfair dismissal. The claimant accepted that he did not have the required period of one year's continuous employment and that the tribunal did not therefore have jurisdiction to hear this claim. Accordingly, it was not necessary for the tribunal to make a determination in respect of this claim.

 

3.             A claim for racial harassment. The tribunal was required to determine this claim.

 

4.             A claim in respect of direct discrimination on grounds of race. The tribunal was also required to determine this claim.

 

THE ISSUES

 

5.             The agreed issues to be determined by the tribunal in respect of the race discrimination claims were:-

 

Harassment on grounds of race

 

(a)        Did the respondent harass the claimant by engaging in unwanted conduct related to race?

 

(b)        The claimant relies on the following:-

 

(i)         The respondent allegedly referring to him as a "foreigner" and a "blow in".

 

(ii)        The respondent allegedly saying the claimant's "Englishness" was a cause for concern when dealing with customers.

 

(c)        When did the incidents set out at paras (a) and (b) take place?

 

(d)        Did the comments relied on have the purpose or effect of

 

(i) violating the claimant's dignity, or

 

(ii) creating an intimidating, hostile, degrading, humiliating environment for the claimant?

 

(e)        Having regard to the other circumstances of the case, including the perceptions of the claimant, was it reasonable for the conduct relied on to have had the effect complained of?

 

Direct race discrimination

 

(f)         Did the respondent treat the claimant less favourably than it would have treated an actual or hypothetical comparator who was not of the claimant's race?

 

(g)        The claimant relied on:-

 

(i)         The respondent allegedly paying another employee cash for overtime worked, while processing the claimant's through the ordinary payroll;

 

(ii)        The claimant's dismissal.

 

(h)       When did the incidents relied on take place?

 

(i)         Has the claimant proved facts from which the tribunal could fairly and properly conclude, in the absence of any explanation from the respondent that the acts relied on were because of race?

 

(j)          Can the respondent show a non-discriminatory reason for the act of potential discrimination relied on?

 

Jurisdiction

 

(k)        Are any of the acts upon which the claimant relies, and which do not form part of a continuing act, out of time?

 

(l)         If so, would it be just and equitable to extend time to allow them to proceed?

 

Remedy

 

(m)      What level of compensation is just and equitable, including consideration of injury to feelings, if appropriate?

 

CONTENTIONS OF THE PARTIES

 

6.             In his submissions, the claimant highlighted various respects in which the respondent had changed his evidence or his evidence had, the claimant contended, been inconsistent. The claimant argued that the respondent's evidence was therefore not credible. By contrast, it was submitted by the claimant that his evidence and that of his witness were consistent throughout. He pointed out that the respondent's grievance and harassment policy could not be followed as they did not reflect the structure of the respondent which leaves employees with no proper process to follow if they feel harassed, as he was. The claimant emphasised the extent to which he was taken by surprise on the day of his dismissal. He contrasted the respondent's failure to take any disciplinary action when the claimant and Clarke Beck were fined as a result of failing to take the required rest period with the dismissal of the claimant for driving through a set of red lights. The claimant contended that the appeal meeting was conducted in an unprofessional manner with the outcome having been determined in advance. In relation to the allegations of harassment, the claimant maintained that throughout his employment, the respondent had called him a "foreigner" and a "blow in". The claimant referred to the payment of overtime in cash as a "perk" which had not been made available to him as the only employee not from Northern Ireland. In relation to his dismissal, the claimant contended that, as soon as the respondent felt he had a chance, he fabricated a reason for the termination thus hiding the true reason for the dismissal, which was that the claimant was sacked for being English.

 

7.             Counsel for the respondent contended that the evidence given by the claimant and his witness was general in nature and that the tribunal ought to prefer the evidence of the respondent's witnesses which she submitted was both reliable and credible. She also relied on the partial admissions made by the claimant in his own letter of appeal. Counsel argued that there was no evidence to support the claimant's case that he had been discriminated against on the grounds of his race whereas the respondent had shown a non-discriminatory reason for his treatment of the claimant. In relation to the allegations of racial harassment, the claimant had not provided dates or details and these allegations were, it was submitted, inherently unbelievable. However, in the event that the tribunal found in favour of the claimant, counsel argued that compensation for injury to feelings should fall within the lower of the Vento bands.

 

SOURCES OF EVIDENCE

 

8.             The tribunal heard oral evidence from the claimant and Clarke Beck on his behalf and from the respondent and Ann Sherrard on his behalf. The tribunal also considered a number of documents submitted by the parties and included in the tribunal bundle.

 

FACTS OF THE CASE

 

9.             The tribunal found aspects of the evidence given by the claimant and his witness on the one hand and the respondent on the other to be unsatisfactory in a number of areas. The tribunal therefore had to carefully assess those aspects of the respective accounts which were directly contradictory to each other whilst giving appropriate weight to surrounding aspects of the evidence which were undisputed. Having considered all the evidence in the case, the tribunal found the following relevant facts to be proven on the balance of probabilities:-

 

(1)        The claimant who is English has lived in Northern Ireland for some time. He was first employed by the respondent in his removals business for approximately 2 months from August 2016 to October 2016. The respondent operates a small local removals business with a total of 5 employees. The business is run on a day to day basis by the respondent himself. The respondent's partner Ms Ann Sherrard is an investor and "silent" partner in the business. From time to time, Ms Sherrard assists in the business with some administrative duties and packing of fragile items. Mr Robert Beck is a work supervisor in the business and he takes on the running of the business when the respondent is away on holiday.

 

(2)        The claimant's letter of resignation from his first period of employment stated:-

" Please accept my resignation from Arrow Removals. My last working day will be the 14/10/2016",

 

and was concluded with;-

 

" kind regards".

 

(3)        The claimant left this employment to work in England during the working week.

 

(4)        Around January 2017, the respondent learned that the claimant had returned to Northern Ireland and the respondent contacted the claimant to offer him a job. The respondent indicated that he had recently sacked an employee, but the tribunal accepts that the primary reason why the respondent offered the claimant a job was that he was looking for a driver and the claimant had the required HGV licence. As the claimant had told the respondent that he had an offer of work elsewhere, the respondent started the claimant earlier than he might otherwise have done. The claimant returned to work for the respondent, beginning on 20 February 2017, as a porter and driver.

 

(5)        The respondent furnished the claimant with a contract of employment which was signed by the claimant on 16 March 2017. This contract contained a paragraph headed "Grievance Procedure" which indicated that if dissatisfied with some aspect of their employment, the employee should initially discuss the matter with their "line manager/supervisor". Further, if the situation was not resolved to the satisfaction of the employee, the employee should contact the next level of management. The contract of employment also contained a paragraph headed "Victimisation/Harassment" which indicated that should the employee wish to raise a grievance regarding victimisation or harassment, the employee may approach a line manager apart from his own or a member of the HR department directly.

 

(6)        Whereas the respondent's policies refer to different levels of supervisors and line management and an HR department, in reality, the respondent himself was the only manager in the business.

 

(7)        A similar issue arose with the respondent's Equal Opportunities Grievance Procedure which indicated that the complainant may initially approach their Team Leader or the HR manager. Likewise the Harassment Grievance Procedure which indicated that at the Formal Stage, the employee should report the matter to their Team Leader or if for any reason the complainant cannot report it to their Team Leader they may report it to a Team Leader or manager of their choice.

 

(8)        The claimant's evidence was that, during his employment, the respondent was rude to him and more so than anyone else. In his witness statement, the claimant alleged that the respondent excluded him from conversations, directly blamed him for someone else's mistakes and had an unpleasant attitude towards the claimant. The claimant also alleged that the respondent called him a "foreigner" and a "blow in" in front of colleagues and clients. The claimant stated that these comments were derogatory and he found them very insulting and hurtful. Mr Clarke Beck who gave evidence on behalf of the claimant said in his statement that he was witness to the claimant being verbally and racially abused on many occasions by the respondent. He also stated that the respondent referred to the claimant as "the foreigner" or "the blow in" in front of clients and colleagues in the yard.

 

(9)        The respondent in his evidence flatly denied abusing the claimant or being rude to him or using the terms "foreigner" or "blow in".

 

(10)     There was therefore a clear conflict of evidence between the parties in relation to this point. In resolving this conflict and seeking to determine which of the two accounts was more likely to be true on the balance of probabilities, the tribunal took account of the following matters:-

 

(a)        In their written witness statements and in their oral evidence to the tribunal under cross examination, neither the claimant nor Mr Beck provided any specifics in terms of details of occasions when the alleged derogatory terms were used. Neither detailed any dates, locations or particular context or circumstances when such incidents took place nor did they indicate whether any other witnesses were present.

 

(b)        The claimant had been willing to return to work for the respondent on a second occasion.

 

(c)        The respondent had invited the claimant to return to work for him and started the claimant earlier than he had originally intended in order to secure the claimant's services.

 

(d)        Neither the resignation letter of the claimant in October 2016 nor that of Clarke Beck in March 2018 raised any complaint or concern about how the claimant had been treated or otherwise.

 

(e)        The claimant accepted that at no time before the termination of his employment with the respondent did the claimant raise any complaint about the respondent's behaviour towards him nor did he ask the respondent to stop using the alleged derogatory terms. In several other respects, the claimant had shown that he was very willing to challenge and raise issues with the respondent. Neither was there any evidence that the claimant had complained to any of his colleagues about the respondent's treatment of him or specifically the alleged derogatory comments. Indeed the evidence of Clarke Beck was that the claimant had never complained but had simply got on with his work.

 

(f)         The claimant had asked for and received loans from the respondent on 2 separate occasions. During the hearing, the claimant argued that these were occasions when he felt he was harassed by the respondent. Under cross examination, the claimant gave evidence that on these occasions he felt the respondent had "talked down to him". The claimant was invited by the respondent's counsel and by a question from the tribunal panel to clarify and expand on what he meant by this. He clarified that he meant that the respondent had asked him to sign paperwork confirming details of the loan and the requirement to repay it. The claimant had also gone back to the respondent to request a second loan even though he felt the respondent had "talked down to him" on the first occasion.

 

(g)        The respondent had authorised unpaid leave for the claimant on a number of occasions.

 

(h)       When the claimant raised an issue about the respondent's failure to pay for 6 hours overtime which the claimant felt he was owed, the respondent agreed to make the payment if the "claimant had a grievance about it" and this payment was duly made to the claimant.

 

(i)         Whilst the claimant alleged that he had been left out during his employment, he had attended an all-day works day out arranged and paid for by the respondent the day after his employment ended. During this event, the claimant sat next to Ms Sherrard and chatted pleasantly with her over dinner. There were also a few photographs included in the tribunal bundle which the claimant accepted appeared to show him socialising with colleagues at a works outing and relaxing during a break from work.

 

(j)          The claimant and his witness Mr Clarke Beck were friends and it was clear that they had remained in contact after each had left the respondent's employment. After his resignation in March 2018, Clarke Beck set up his own removals business in competition with that of the respondent and the claimant had given a "5 star review" to Clarke Beck's new business on Facebook. Clarke Beck also indicated under cross examination that the claimant " would have to do something for him" in respect of his loss of earnings arising from his attendance at the tribunal hearing to give evidence on behalf of the claimant.

 

(11)     Having weighed up all of these matters and the demeanour of the various witnesses in giving their evidence, the tribunal considered that the behaviour of the claimant at the time was simply not consistent with that of someone who was being continually referred to by the respondent as "a foreigner" and a "blow in". The tribunal concluded on the balance of probabilities that the respondent did not in fact use the terms "foreigner" or "blow in" in respect of the claimant as alleged.

 

(12)     In support of his claim for racial harassment, the claimant produced in evidence a voice recording which he had made of a conversation between the claimant and the respondent on 27 August 2017. Whilst the claimant's evidence was that he had informed the respondent that he was recording their conversation, the tribunal did not find this credible and the tribunal is satisfied that in fact this recording was made covertly by the claimant.

 

(13)     The discussion between the claimant and the respondent was prompted by the claimant querying the payment to which he was entitled for a particular job (see also para 10 (h) above). The parties helpfully prepared a transcript for the tribunal of relevant portions of this recording. The claimant relied in particular on the use by the respondent of the word "Englishness". The claimant said he found this derogatory. Towards the end of the recorded discussion, which lasted approximately 45 minutes, the recording shows that the respondent said:-

 

" you do speak and it's your Englishness as well, in terms of Northern Ireland... be very, very careful of showing photographs, of your children, in front of children."

 

(14)     In his witness statement, the claimant said that he was dumbfounded by this comment. However, on the recording, following the impugned comment, the claimant can be heard confirming that he understood the respondent's further warning about not getting caught in a room alone with a child and the claimant also went on to say that he would be more annoyed if someone came in and ignored his kids. Having considered the content of the agreed transcript of the recording, the tribunal could see no evidence that the claimant was dumbfounded by what the respondent had said.

 

(15)     The tribunal believes it is clear that, whilst the term "Englishness" was used by the respondent, this was in the context of the respondent seeking to advise the claimant about how to behave around clients' children and highlighting potential differences in culture or attitudes. The tribunal also believes it is clear that from the manner in which the conversation continued thereafter that the claimant was not offended, annoyed or upset at the time by the respondent's use of this term.

 

(16)     The claimant alleged that he was treated less favourably than other employees who received cash in hand for overtime whereas he was paid through the payroll. He believed this was due to his being English. Mr Beck's evidence was that this happened on many occasions. In the claimant's letter of appeal referred to at sub-para (28) below the claimant refers to the respondent paying one member of staff "on one occasion" cash for their overtime whilst the claimant was paid through the books.

 

(17)     In his witness statement the respondent initially sought to deny any knowledge of any cash payment stating that this was "completely untrue". It was only following the production by the claimant of an annotated timesheet relating to Clarke Beck for week 23, that the respondent accepted that Clarke Beck was paid 10 hours in cash on this occasion. The tribunal believes that the respondent initially tried to conceal this cash payment and found it very unsatisfactory that the respondent only belatedly admitted that he had made such this cash payment after documentary evidence was produced by the claimant. However, the respondent maintained in his evidence that this was a one off. The respondent's explanation was that Clarke Beck had submitted this timesheet too late for the payroll run but had asked for the money to be paid immediately as he was leaving on holiday and it was too much hassle to process the additional money properly at a later date. The respondent maintained that this was the only occasion on which he had made payment in cash.

 

(18)     There was no evidence to substantiate cash payments on other occasions, save for the vague and generalised statement from Clarke Beck. Whilst the claimant was able to produce documentary evidence of the cash payment to Clarke Beck in week 23, no such evidence was produced of any other cash payments. The tribunal has concluded on the balance of probabilities that a cash payment was made to Clarke Beck on one occasion only in August 2017 as originally alleged by the claimant in his letter of appeal.

 

(19)     The claimant and Clarke Beck did a removal job from Belfast to London on 29 August 2017. A difficulty arose over a swing seat which was not loaded onto the lorry. The customer was unhappy that this item was not delivered along with the rest of the load and it had to be delivered a week later. On 5 September 2017, when the swing seat was delivered to the customer in London, the claimant and Clarke Beck were very late finishing and had to stay in the hotel for the night. The next morning, they left early for the ferry from Holyhead. On their way to Holyhead, the claimant and Mr Beck were stopped by the DVLA. Their tachograph records were checked and these demonstrated that the drivers had not had the legally required minimum rest period. Both employees were fined £300 each and were required to remain at the DVLA centre until the minimum rest period was achieved.

 

(20)     The claimant and Clarke Beck sought to pin the blame for this incident on the respondent as ferries and accommodation were normally booked by him. There was no evidence that the claimant or Mr Beck tried to avoid the breach of the law which occurred. Clearly this incident caused some difficulty for the respondent. He was required to pay additional expenses for an unplanned overnight stay and the vehicle and drivers were late back to Northern Ireland after being held up at the DVLA centre. The respondent did not reimburse either the claimant or Clarke Beck for the fines. No disciplinary action was taken against either employee following this incident as the respondent considered that the fines had been punishment enough.

 

(21)     The claimant was absent from work from 8 to 15 September 2017 due to a sore arm and muscle pain. The claimant described this as an industrial injury and was of the view that it should be entirely discounted.

 

(22)     On Friday 22 September 2017, the respondent worked on a job along with the claimant and other employees. Clarke Beck was on holiday. The claimant was driving. The respondent's evidence was that while he was sitting beside the claimant, he drove through red lights on two separate occasions. The respondent also says that when the claimant was driving back from the job down the M2, the claimant took his mobile phone out of his pocket, looked at a text and then placed it down in the cab.

 

(23)     The claimant was then off sick on Monday 25 and Tuesday 26 September 2017 due to flu.

 

(24)     On Wednesday 27 September 2017, the claimant attended for work as usual at 7.30am. On that occasion, the respondent was already in his works uniform. The respondent asked the claimant to come into the office. From this point, there were conflicting versions of the events which occurred in the office. On the one hand, the claimant's evidence was that the respondent immediately told him that he was dismissed and he was simply handed a letter confirming his dismissal. The claimant says he was stunned by what happened.

 

(25)     On the other hand, the respondent's evidence was that this was a longer meeting. The respondent says that he outlined his concerns to the claimant. His evidence was that he had prepared 2 alternative letters in advance - one was a letter confirming dismissal, but the other outlined a final written warning. He did not initially produce either of the letters. In the course of the meeting, the respondent alleges that the claimant became aggressive. The respondent says that he then decided to dismiss the claimant. In the course of the tribunal hearing, the claimant contended that the alternative "final written warning" letter was fabricated by the respondent after the event.

 

(26)     Faced with these two very different versions of events at the meeting on 27 September, on balance the tribunal found the respondent's version more convincing. Having had the opportunity to hear directly the respondent's manner of speaking on the sound recording and during the tribunal hearing, the tribunal considered it more likely that the meeting was longer than alleged by the claimant. The tribunal also accepted on balance that it was more likely that the respondent had prepared 2 alternative letters before the meeting, not least because the drafting of the alternative letter was somewhat odd. Had it been prepared after the event, the tribunal considered that it would have been more carefully drafted.

 

(27)     It was not disputed that the claimant was dismissed in the course of the meeting on 27 September 2017. He was handed a letter by the respondent dated 27 September 2017 which confirmed his dismissal. This letter referred to 4 allegations relating to driving, namely 2 instances of driving through a red light, one instance of "tailgating", one instance of preparing to overtake which it was alleged would have been dangerous and the alleged incident of handling his mobile phone and replying to a text whilst driving on the motorway. This letter also referred to issues regarding the claimant's attendance. The respondent confirmed in this letter that he regarded the claimant's driving as dangerous and illegal and that it amounted to gross misconduct which he must deal with accordingly. The claimant's employment was therefore terminated with immediate effect. The claimant was informed of his right of appeal.

 

(28)     The claimant submitted a letter of appeal dated 28 September 2017. In this letter, the claimant indicated that he disputed the respondent's 4 allegations relating to driving. He did indicate that on one occasion, he had driven through a red light, although he argued that this was carried out in a calm and collected manner. He denied any knowledge of the second red light incident. In his evidence to the tribunal, the claimant appeared to indicate that whilst he did accept driving through a red light on one occasion, this was a different incident to either of the 2 occasions referred to by the respondent. In his letter of appeal, the claimant denied "tailgating" and stated that he had not overtaken any vehicle and therefore he did not perform any dangerous actions. He accepted that on one occasion, he had removed his phone from his pocket to place it in a compartment in the cab. He said he "may" have momentarily glanced at the screen while putting his phone away, but he denied sending any texts.

 

(29)     In his appeal letter, in responding to the allegations regarding absences set out in the respondent's letter dated 27 September 2017, the claimant contended that his absence from 8 to 15 September was due to an industrial injury and he was seen by a doctor. He therefore argued this should be treated separately from standard unauthorised absence. He provided more detail in relation to the background to his absence on 25 and 26 September due to flu. The claimant objected to the respondent's reference to authorised unpaid leave because this absence had been authorised by the respondent in advance. The claimant therefore considered that such absence should not be held against him. Overall, the claimant did not accept that his attendance at work was erratic or unreliable.

 

(30)     In his letter of appeal, the claimant also says that he had felt for some time that the respondent had a personal problem or issue with him. He alleged that colleagues could also see this. The claimant also stated that " I have also been discriminated against with regards to my pay". The claimant then refers to payment in cash to one member of staff on one occasion whilst the claimant was paid through the books. Finally, the claimant went on to allege that the respondent had a more severe problem with his nationality. Specifically, the claimant alleged that the respondent had called him "A foreigner" and " a blow in" in front of colleagues and clients. Further, that the respondent had referenced the claimant's " Englishness" as a cause for concern regarding how he conducted himself around people. The claimant concluded that he was " of the opinion that you have terminated my employment not because of my performance and attendance but because of your prejudice."

 

(31)     Following receipt of the claimant's letter of appeal, an appeal meeting arranged for 1 November 2017. The claimant was accompanied by Clarke Beck as his witness, although Mr Beck did not speak during the meeting. The respondent was accompanied by Ms Sherrard who also took notes during the meeting. These notes were later typed up and included in the tribunal bundle. The claimant agreed that the content of these typed notes were an accurate record of the appeal meeting, save for one reservation raised by the claimant. This related to the allegation concerning the claimant's mobile phone where the notes record the claimant as agreeing that " he glanced at the screen" whereas the claimant maintained that at the hearing what he had actually said was that he "may have" glanced at the screen.

 

(32)     In the course of the appeal meeting and as confirmed by the agreed note, each of the 4 allegations relating to driving were discussed. The claimant outlined his case in respect of each one. At one point during the meeting, both parties were agreed, and it is recorded in the notes, that the claimant accused Ms Sherrard of shaking her head and smirking and/or sniggering. At the time, Ms Sherrard denied this saying that she had shaken her head to remove her fringe from her eyes. There was a clear conflict of evidence in relation to this matter at the hearing. Generally, the tribunal found Ms Sherrard to be a straightforward witness and it accepted her evidence that she had not behaved in anything other than a professional and appropriate manner during the appeal hearing. Following this incident, the appeal hearing moved on with the parties returning to a discussion of the various allegations.

 

(33)     Later in the appeal meeting, the respondent raised the issue of alleged discrimination. The claimant replied " I don't want to talk about that". He then went on to say " I feel you don't like my Englishness". The tribunal found it strange that the claimant, who was clearly an articulate individual who it appeared had not had any difficulty in raising various other matters with the respondent, did not want to talk about this matter which he argued was the main cause of his dismissal.

 

(34)     At the conclusion of the appeal meeting, the respondent closed the meeting and indicated that he would make a decision and write out to the claimant.

 

(35)     The respondent's appeal decision letter was issued on 2 November 2017. In this letter, the respondent said that he saw no reason to overturn the dismissal decision. The respondent saw no evidence to suggest why the claimant drove through red traffic lights on two occasions and used his mobile phone while driving. In addressing the claimant's query as to why he had not been given time between first being spoken to in relation to these points and his dismissal, the respondent stated that this was because, whilst he was interviewing the claimant in relation to these points, the claimant had become abusive. The respondent contended that these actions on their own could not be tolerated and that was why he decided to terminate the claimant's employment with immediate effect and asked him to leave the premises. The respondent stated in this letter that he had spoken to other witnesses who were in the lorry with the claimant or travelling behind who also considered that he had driven through 2 red lights and used his mobile phone while driving.

 

(36)     The claimant began work as agency worker via Diamond Recruitment approximately 2 weeks after his dismissal and this engagement was continuing at the date of the tribunal hearing. The claimant is earning more from this work than he did with the respondent.

 

 

 

 

STATEMENT OF LAW

 

Relevant legislation

 

Racial Harassment

 

10.          Article 4A(1) of the Race Relations (Northern Ireland) Order 1997 ('the 1997 Order') states as follows:-

 

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

 

(a) violating 'B's' dignity, or

 

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

 

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

 

Direct discrimination on grounds of race

 

11.          Article 3(1) of the 1997 Order states that:-

 

" A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if:-

 

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

 

Article 5(1) of the 1997 Order is as follows:-

 

"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."

 

Article 6(2) of the 1997 Order states that:-

 

"It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee:-

 

(a) ............... .

 

(b) ................; or

 

(c) by dismissing him, or subjecting him to any other detriment."

 

 

Shifting burden of proof

 

Article 52A of the 1997 Order is headed "Burden of proof" and states that:-

 

" ...

 

Where on the hearing of the complaint, the complainant proves facts upon which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed such an act of discrimination ... against the complainant;

 

(b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination ... against the complainant;

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act."

 

12.          The Northern Ireland Court of Appeal considered the issue of the shifting burden of proof in the case of Nelson v Newry & Mourne District Council [2009] NICA 3 . The court held:-

 

"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the I gen guidance."

 

13.          In the case of Madarassy v Nomura International PLC [2007] IRLR 247, the English Court of Appeal provided further clarification of the tribunal's task at the first stage of considering whether the claimant has proven facts upon which the tribunal could conclude that the respondent has committed an act of discrimination. The court stated :-

 

'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

14.          The Madarassy case makes it clear that the whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.

 

15.          In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279 , the English Court of Appeal again considered the issue of the shifting burden of proof in a discrimination case. The Court referred to the statement in the Judgment in Madarassy that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. In his judgment, Lord Justice Sedley stated:-

 

"19. We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

16.          Further clarification was provided in the EAT decision in Laing v Manchester City Council [2006] IRLR 748, where the EAT stated:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

(72)...............

 

(73) No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

(74)....................

 

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

 

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage."

 

CONCLUSIONS

 

Racial Harassment

 

17.          The claimant's case in relation to racial harassment was firstly that the respondent had repeatedly referred to him as a "foreigner" and "a blow in" and secondly that the respondent had expressed concern about his "Englishness". As regards the first issue, the tribunal found as a fact, on the balance of probabilities, that the respondent had not used the alleged derogatory terms regarding the claimant. Having made this factual finding, the tribunal therefore had no alternative but to find that this allegation by the claimant was not proven and the claimant was not racially harassed in this manner by the respondent.

 

18.          The second element of the claimant's case in respect of racial harassment related to the comment heard on the sound recording regarding the claimant's Englishness. The tribunal found as a fact that the claimant was not dumbfounded by the respondent's comment as he had alleged. He was not offended, annoyed or upset. Rather, it was clear from the recording and the transcript that the conversation had continued after the impugned comment in what appeared to be a fairly normal manner with the claimant acknowledging, at least to some extent, the point being made by the respondent.

 

19.          The tribunal also found as a fact that the context in which the comment regarding the claimant's "Englishness" was made was that of the respondent seeking to advise the claimant about how to behave around clients' children and highlighting potential differences in culture or attitudes.

 

20.          The tribunal considered carefully the statutory definition of racial harassment. In this case, the tribunal could see no evidence which indicated that the comment made by the respondent was conduct which was unwanted by the claimant. The tribunal had the benefit of listening to some of the recording of this conversation and it was able to read the full agreed transcript of the relevant part of the conversation. There was nothing in his reaction at the time to suggest that the impugned conduct was unwanted by the claimant. Considered in its context, the tribunal readily concluded that the impugned comment could not reasonably be considered to have the purpose or effect of violating the claimant's dignity . Further, the tribunal concluded that the impugned comment, in its context, could not reasonably be considered as having the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. Certainly, the claimant's reaction at the time gave no indication whatsoever that the claimant considered the comment to have had such an effect. The tribunal therefore determined that the comment made by the respondent in relation to the claimant's "Englishness" did not amount to harassment on grounds of the claimant's race.

 

21.          Accordingly, the tribunal determined that the claimant was not subject to racial harassment by the respondent.

 

Direct race discrimination

 

22.          The tribunal then considered the claim for direct discrimination on grounds of race. The claimant focused on the payment of overtime to another employee in cash where the claimant was paid through the books. The tribunal was not entirely comfortable with the claimant's characterisation of this as a "perk". However, leaving this to one side, the tribunal concluded that a cash payment was made to Clarke Beck on one occasion which is in line with the allegation set out in the claimant's letter of appeal. The tribunal accepts that Clarke Beck was looking for his money quickly as he was going on holiday and that this was the reason why the respondent paid him in cash on this occasion. Whilst there was a difference in treatment on this one occasion between the claimant and Clarke Beck, there was nothing else in the evidence which could have suggested discrimination on the basis of the claimant's race. This was a case where there was a difference in treatment, but "nothing more" as referred to in the caselaw set out above. The tribunal therefore concluded that the burden of proof did not shift to the respondent in this respect.

 

23.          The tribunal determined that the claimant was not directly discriminated against on grounds of his race as regards a cash payment for overtime.

 

24.          The claimant alleged that his dismissal was on grounds of his race. To some extent, the claimant relied on his allegations of racial harassment in support of his case that race was the true reason for his dismissal. As outlined above, the tribunal did not accept that such harassment occurred. Otherwise, the claimant did not expressly rely on an actual comparator in relation to this aspect of his claim. By implication, he relied on a hypothetical comparator and the tribunal proceeded to consider the claim on that basis.

 

25.          At the time of the claimant's dismissal, the tribunal believes that, as far as the respondent was concerned, the claimant had become something of a "problem employee" or a thorn in the respondent's side. The respondent believed that he had directly witnessed some driving issues which had caused him concern. The claimant had only been employed for just over 6 months and during that time, he had taken a fairly significant amount of time off on sick leave or unpaid leave. He had also challenged the respondent on occasion, such as over his pay in the conversation which was recorded. Together with Clarke Beck, the claimant had also been fined by the DVLA for not taking the required period of statutory rest. Having heard all of the evidence in the case, the tribunal concluded that the true reason for the claimant's dismissal was that he had become a problem for the respondent due to a combination of the reasons outlined above. The tribunal was entirely satisfied that the claimant being English had nothing to do with the respondent's dismissal of him. The tribunal had no doubt that the respondent would have dismissed an employee from Northern Ireland whose circumstances were the same as the claimant.

 

26.          The tribunal was therefore entirely satisfied that the claimant was not subjected to direct discrimination in respect of his dismissal. However, whilst it has found no discrimination in this case, the tribunal does want to make it clear that the respondent's written policies and the procedure which led up to the dismissal of the claimant both fell far short of best practice.

 

 

Employment Judge:

 

 

Date and place of hearing: 7, 8 & 9 August 2018, Belfast.

 

Date decision recorded in register and issued to parties: