Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5697/18

 

CLAIMANT: Laura Elena Gudacu

 

RESPONDENT: Moy Park Limited

 

 

 

DECISION

 

The unanimous decision of the tribunal is 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 Orr

Members: Ms F Cummins

Mr I McCarroll

 

 

APPEARANCES:

 

The claimant was represented by her friend Mr Tabacaru.

 

The respondent was represented by Mr Mulqueen, Barrister-at-Law, instructed by Arthur Cox Solicitors.

 

 

BACKGROUND

 

1. The respondent is a limited company in the food processing industry.

 

2. The claimant was initially engaged by the respondent as an agency worker via Diamond Recruitment from March 2017 to August 2017. The claimant was employed directly by the respondent from 17 August 2017 as a Process Controller. On 15 September 2017 she transferred to the role of interim Factory Administrator.

 

3. The claimant issued these proceedings on 20 April 2018 and claims direct race discrimination on the grounds of her being a Romanian national.

 

PROCEDURE

 

4. The case was case managed and witness statements were exchanged as directed by the tribunal for all witnesses. All witnesses adopted their witness statements as their evidence and were cross-examined and re-examined.

 

5. The evidence was heard on 6 and 7 March 2019 and submissions were heard on 8 March 2019. Mr Mulqueen prepared a speaking note of his submissions and shared this with the claimant's representative in advance of the submissions hearing. The claimant's representative was given extra time to prepare his submissions.

 

6. The claimant's representative confirmed at a previous Case Management Discussion that the claimant's first language was not English, and that this would have no impact on her ability to give evidence or be cross-examined at the hearing. The claimant confirmed this was the position at the commencement of cross-examination; when required, the tribunal and/or Mr Mulqueen repeated or rephrased questions to facilitate the claimant to ensure her full participation.

 

ISSUES

 

7. The legal and factual issues were agreed at a previous Case Management Discussion on 26 September 2018 as follows:-

 

(i) Was the claimant discriminated against on grounds of her race and/or nationality contrary to Article 3 of the Race Relations (Northern Ireland) Order 1997 (as amended) in relation to the following:

 

(a) a failure to support the claimant in respect of her personal issues;

 

(b) a refusal of annual leave by the respondent;

 

(c) a comment by Mr Chris Quigg that it would be " better for the claimant to take her child back to Romania";

 

(d) a failure to provide training and/or support in her role as interim factory administrator;

 

(e) in her request to be permitted to return to her previous role of Process Operative.

 

(ii) Whether the treatment of the claimant amounts to an act extending over a period?

 

(iii) Whether, if, any part of the claim is out of time, is it just and equitable to extend time?

 

8. The claimant had identified Rosemary McIlroy and Patricia McKendry as comparators in her Replies to a Request for Additional Information from the respondent.

 

SOURCES OF EVIDENCE

 

9. The claimant gave evidence on her own behalf.

 

10. On behalf of the respondent the tribunal heard from Mr Chris Quigg (former Factory Manager), Ms Zuzana Mihalikova (HR Officer), Ms Rosemary McIlroy (Factory Administrator), Ms Elena Corey (Regional Industrial Engineer) and Ms Zuzana Korycarova (Operational Team Lead).

 

THE RELEVANT LAW

 

11. The Race Relations (Northern Ireland) Order 1997 (as amended) provides, so far as is relevant to these proceedings that:-

 

"Article 3(1) -

 

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

 

(a) on racial grounds he treats that other less favourably then 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)

 

"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) in the terms of employment which he affords him; or

 

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitted to afford him access to them; or

 

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

 

12. There are two elements in direct discrimination, firstly, the less favourable treatment and secondly, the reason for that treatment Glasgow City Council v Zafar 1998 IRLR 36. In the case of Shamoon v Chief Constable of the RUC 2003 UKHL 11 at paras 7 & 8 - Lord Nicholls said that " sometimes the less favourable treatment issue cannot be resolved without, at the same time deciding the reason why issue". Further, in his judgment in the case of Nagarajan v London Regional Transport 1999 IRLR 572 he observed that 'the reason why' is the crucial question.

 

Shifting burden of proof

 

Article 52A of the Race Relations (Northern Ireland) Order 1997 (as amended) provides:-

 

" ...

 

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."

 

13. The burden is on the claimant to prove facts from which the tribunal could conclude that an act of discrimination on grounds of race occurred and if he does so the burden then shifts to the respondent to show that any adverse treatment was in no sense whatsoever influenced by the claimant's race.

 

14. The approach to be taken in applying the burden of proof provisions has been fully considered in the case of Igen Limited v Wong [2005] IRLR 258 CA and subsequent cases such as M adarassy and were reviewed by the Northern Ireland Court of Appeal in the case of Nelson v Newry and Mourne District Council (2009) NICA 3 April 2009.

 

"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 Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. 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.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

15. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof:-

 

"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 furnished 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." (Sedley L J at paragraph 19).

 

16. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(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.

 

...

 

(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.

 

...

 

(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 as to why he believed or he did 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."

 

Detriment

 

17. The authorities on "detriment" were recently considered by the Northern Ireland Court of Appeal in the case of Diane Rice v Dignity Funerals Ltd (STE10804 December 2018):-

 

"[46] ... The courts have given the term "detriment" a wide meaning. However as the statutory cause of action is discrimination in the field of employment the requirement is that 'detriment' has arisen in that field. For there to have been detriment it is not necessary to establish that there has been some physical or economic consequence as a result of the discrimination. In Ministry of Defence v Jeremiah [1979] 3 All ER 833 at 841, [1980] QB 87 at Brightman LJ said that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment". As May LJ put it in De Souza's case [1986] ICR 514 at 522, the court or Tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. In Shamoon v Chief Constable of the Royal Ulster Constabulary Lord Hope, with whom Lord Hutton and Lord Rodger of Earlsferry agreed, articulated the test of detriment as being "Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?" Undermining the role and position of an employee, marginalising an employee, reducing the standing or demeaning an employee in the eyes of those over whom she was in a position of authority can amount to detriment, see Shamoon at paragraphs [35] and [37]".

 

[47] An unjustified sense of grievance cannot amount to 'detriment': Barclays Bank plc v Kapur (No 2) [1995] IRLR 87 and Shamoon at paragraph [35].

 

Time Limit/Jurisdiction

 

18. Article 65 of the Race Relations (Northern Ireland) Order 1997 (as amended) provides as follows:-

 

"(1) An Industrial Tribunal shall not consider a complaint under Article 52 unless it is presented to the tribunal before the end of -

 

(a)       The period of three months beginning when the Act complained of was done; or ...

 

..........

 

(7) A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

(8) For the purposes of this Article -

 

...

 

(b)       Any Act extending over a period shall be treated as done at the end of that period; ...".

 

19. The case of OWUSU v London Fire and Civil Defence Authority (1995) IRLR [UKEAT 334] held that a succession of specific instances could indicate the existence of a practice, which, in turn, could constitute an Act extending over a period which is a continuing Act under the legislation.

 

20. The Court of Appeal in Hendrix v Commissioner of Police of the Metropolis v Hendrix [2002] EWCA 1686 - Mummery LJ held:- (at paragraphs 51 & 52)

 

"In my judgment, the approach of both the Employment Tribunal and the Appeal Tribunal to the language of the authorities on "continuing acts" was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of this case: see Owusu v. London Fire & Civil Defence Authority [1995] IRLR 574 at paragraphs 21‑23; Rovenska v. General Medical Council [1998] ICR 85 at p.96; Cast v. Croydon College [1998] ICR 500 at p. 509. (cf the approach of the Appeal Tribunal in Derby Specialist Fabrication Ltd v. Burton [2001] ICR 833 at p. 841 where there was an "accumulation of events over a period of time" and a finding of a "climate of racial abuse" of which the employers were aware, but had done nothing. That was treated as "continuing conduct" and a "continuing failure" on the part of the employers to prevent racial abuse and discrimination, and as amounting to "other detriment" within section 4(2)(c) of the 1976 Act).

 

The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period." I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a "policy" could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."

 

 

 

RELEVANT FINDINGS OF FACT

 

21. During the course of the hearing, the tribunal considered all the evidence and documentation presented to it. The tribunal made the following findings of fact, insofar as relevant and material to the determination by the tribunal of the claimant's claims.

 

22. The respondent employs a very diverse workforce of employees and temporary staff, which are drawn from over 25 different nationalities. The respondent provided evidence to the tribunal of employing 985 hourly paid staff of which the highest proportion, (namely 377) were Romanian; 212 British and 183 Polish; with the remaining employees from various nationalities throughout the world including Slovakian, Czech, Bulgarian and Irish. This was accepted by the claimant in cross examination.

 

23. The claimant was initially engaged by the respondent as an agency worker via Diamond Recruitment in the role of Team Leader. She was not an employee, but an agency worker. She was directly employed by the respondent from 17 August 2017.

 

24. Ms Corey gave evidence that she worked closely with the claimant during the "Barbeque campaign" both as a Process Controller and Team Leader and she stated that the claimant had impressed her in terms of her accuracy and capability. Ms Corey's evidence was that in conversation with the claimant, she became aware that she was unhappy in her role in Diamond and had expressed a desire to go back to the factory floor as a Processor. She stated that she discussed with the claimant the possibility of an interim factory Administrator role and that the claimant was " enthusiastic and delighted to be afforded the opportunity to trial this role". The claimant disputes this and in cross examination stated that she did not want this role - "I accepted just to cover the holidays". The tribunal does not accept the claimant's evidence in this regard and finds that she accepted the role, signed the terms and conditions and undertook the duties of the role from 15 September 2017. The claimant was under no obligation to accept this role. Had the claimant not wished to accept this role, she could have declined it. The claimant did not do so. In any event, the claimant makes no allegations of race discrimination in relation to being offered the role or the terms and conditions offered in relation to this appointment. In any event the claimant makes no allegations of race discrimination in relation to being offered this role or its terms and conditions.

 

25. It was common case that the administrative role was a newly created 'interim' role to provide administrative support and holiday cover in the Administration Office to the existing administration staff, namely Ms McIlroy and Ms McKendry.

 

26. The claimant was provided with copies of Standard Operating Procedures by Ms Gemma Allen (Continuous Improvement Co-Ordinator) as part of her induction/training into the new role; she also received support and guidance from Ms Allen on an ongoing basis throughout her time as the interim Factory Manager. The evidence of Ms McIlroy was that both she and Ms McKendry provided help and support for the claimant throughout her time in the role as interim Factory Administrator.

 

27. In November 2017 the claimant requested parental leave of two weeks to return to Romania. She had no annual leave remaining in the current holiday year and she wished to bring her daughter to Northern Ireland from Romania. The claimant was granted this parental leave despite November and December being extremely busy months of the year for the respondent. On her return from Romania, the claimant advised Mr Quigg that she could not work weekends due to the unavailability of childcare for her daughter. The claimant's case is that from this time the behaviour of the respondent altered towards her and from this date onwards she was subject to discrimination on the grounds of race.

 

28. The claimant accepted in cross examination that on her return from Romania when she spoke to Mr Quigg to advise that she could no longer work weekends due to childcare, Mr Quigg immediately allowed her to alternate her weekends. The unchallenged evidence of Mr Quigg was that the claimant occasionally worked Saturdays and Sundays as suited her and often had to leave early as her child was unwell; furthermore he approved time off retrospectively as "holiday" to ensure the claimant did not lose salary. His evidence was " I was happy to accommodate Ms Gudaca in such circumstances even on late notice".

 

29. The claimant alleges that on 19 December 2017 she had been contacted by her daughter's nursery as her daughter was ill and was required to be taken home. The claimant was permitted to leave the workplace to collect her daughter. The claimant alleges that on a further unspecified date in December 2017 the nursery contacted her and she made a request to Mr Quigg to leave. She alleges Mr Quigg stated " it is not normal to leave work every time your daughter is sick". Mr Quigg entirely denies making this comment. The claimant makes no allegation that she was ever prevented from leaving the workplace early due to childcare issues or illness of her daughter.

 

30. The claimant did not report for work on 20 December 2017 nor did she contact her employer on that date to advise that she would not be attending work.

 

31. The claimant alleges that at a return to work interview on 21 December 2017
Mr Quigg stated to the claimant that it would be " better for the claimant to take her child back to Romania". Mr Quigg denies making this statement. The claimant alleges that she raised Mr Quigg's comment with Ms Mihalikova. However, she provided no evidence to the tribunal as to when or how this issue was raised with Ms Mihalikova. Ms Mihalikova's evidence was that the claimant had never raised any issues with her in relation to Mr Quigg and specifically the claimant had not made any complaint that Mr Quigg had said "better for the claimant to take her child back to Romania".

 

32. The claimant requested and was granted holidays for two days in January 2018 approved by Mr Quigg at short notice which ensured the claimant did not lose salary as a consequence of having to take time off.

 

33. The claimant was unable to provide the tribunal with any dates or occasions when emergency time off was requested by her and refused by the respondent. The evidence of Mr Quigg was that he was flexible with the claimant, frequently allowing time off at short notice. Ms McIlroy's evidence was that requests for absence at short notice for any staff member within the Administration Team were treated in the same way and the only factor in requesting leave was " to ensure that there was cover in the Department". The tribunal finds that on numerous occasions the claimant was permitted to leave work early due to childcare needs.

 

34. The claimant's initial complaint to the tribunal was that she had been denied annual leave, specifically at Easter 2018. However, at hearing the claimant's case was that she was being asked by Mr Quigg why she required annual leave and that her colleagues were not being asked the same questions when they requested annual leave. Mr Quigg's evidence was that he did not approve annual leave for the claimant over the Easter period because other staff were on annual leave in the department at that time. Mr Quigg's evidence was that given there were three people in the Administration department working in close proximity, annual leave was granted on a " first come first served" basis. The tribunal accepts the evidence of Mr Quigg and Ms McIlroy that annual leave requests were dealt with based on business needs. It was evident to the tribunal that the claimant made annual leave requests at short notice and that she was refused annual leave on one occasion namely Easter 2018 as a result of other staff being on annual leave in the department at that time. On no other occasion was the claimant refused annual leave.

 

35. The claimant claims she was discriminated against in relation to her request to be returned to the role of Process Controller. The claimant had been in the role of interim Factory Administrator from 15 September 2017; she was certified sick from 27 March 2018 and as part of the respondent's attendance management policy attended Occupational Health on 10 April 2018. The Occupational Health report of that date stated that the claimant " wants to return to her previous job on the factory floor as she felt confident with no stress when performing this role". The opinion and recommendation of Occupational Health was:

 

"Following today's consultation and based on the information received today I can conclude that Laura feels her job in administration is causing her to become stressed. Laura feels she could return to work in her previous QA role however does not feel confident to return to work in the administration role, even with further training and supervision. I would recommend that management meet with Laura to discuss the situation to find a solution amenable to both parties and a return to work in some capacity could be achieved in the near future".

 

Furthermore the Occupational Health report records the claimant as stating:

 

[The claimant] "says she was shown how to do some duties but did not feel confident and this resulted in her constantly worrying at home about work".

 

36. The claimant attended an absence review meeting on 25 April 2018 with Caroline Dunbar (Shift Manager). At this meeting the claimant stated that she wished to return to her role as Processor Controller. Ms Mihalikova emailed Mr Quigg and Mr McNeill on 30 April 2018 enquiring as to the possibility of the claimant returning to the role of Process Controller. The claimant returned to the role of Process Controller on 2 May 2018.

 

 

 

 

CONCLUSION

 

Time Limit/Jurisdiction

 

37. Having heard the claimant's evidence and applying the relevant legal principles set out above, the tribunal concludes that the alleged acts of discrimination set out at paragraph 4(i) (a)-(e) above amount to an act extending over a period from November 2017 until March 2018. The claimant's case is that there was a succession of specific instances over the relevant time which the tribunal concludes could indicate the existence of a practice which, in turn could constitute an Act extending over a period and/or continuing conduct on the part of the respondent. Accordingly the tribunal determines that it has jurisdiction to consider the claimant's complaint of race discrimination.

 

Failure to support the claimant in respect of her personal issues

 

38. The claimant provided no evidence that the respondent had failed to support the claimant in respect of her personal issues. The tribunal determines as per the findings of fact set out above, that when the claimant requested parental leave in November 2017, approaching the busiest period in the respondent business, this was granted. Further, when the claimant requested a change of her shifts regarding weekend working this was also granted. On every occasion that the claimant requested she leave work early to facilitate childcare responsibilities or due to her child's illness, this was granted. The tribunal unanimously finds that there is no evidence that the claimant was not supported in relation to her personal issues. The tribunal finds there was no less favourable treatment. Accordingly, the tribunal finds that the claimant has not proved facts upon which the tribunal could conclude that the respondent discriminated against the claimant on the grounds of race. There is no prima facia case of discrimination and the burden of proof does not pass.

 

Refusal of annual leave

 

39. The claimant provided evidence of a refusal of annual leave on one occasion. This was in Easter 2018. The tribunal finds that annual leave, on this occasion was refused on the grounds of business need and not for any reason tainted by race. At hearing this was the only claim being pursued by the claimant in relation to the refusal to be granted annual leave. Indeed, during cross examination the claimant's case was that she felt she was being questioned as to why she was taking annual leave rather than an allegation that the respondent was refusing the claimant's requests for annual leave. The tribunal unanimously finds that the claimant was not treated less favourably in comparison with her identified comparators in relation to the granting of annual leave. The tribunal finds that the claimant's requests for annual leave at short notice were approved by the respondent, the only reason for refusal of annual leave at Easter 2018 was due to other employees in the department availing of annual leave at this time. The tribunal finds there was no less favourable treatment. Accordingly the tribunal finds that the claimant has not proven facts which the tribunal could conclude that the respondent discriminated against the claimant on the grounds of race. The burden of proof does not pass.

 

 

 

Failure to provide training and/or support in her role as Interim Factory Administrator

 

40. As per the tribunal's findings of fact set out above, the tribunal finds that the claimant was provided with operating procedures and help and assistance from fellow administrators in her role as interim Factory Administrator. Furthermore the claimant accepted in cross examination that there was no discrimination in relation to the support provided to her in her role as interim Factory Administrator. The respondent's Occupational Health report records the claimant as stating she was shown how to do some duties. The respondent's evidence was that the claimant was provided with the operating procedures. There was no evidence that the claimant requested help and assistance or that this was refused at all or on the grounds of her race. The tribunal finds there was no less favourable treatment. Accordingly, the tribunal finds the claimant has not proved facts upon which the tribunal could conclude that the respondent discriminated against the claimant on the grounds of race. There is no prima facia case of discrimination and the burden of proof does not pass.

 

Request to be permitted to return to her previous role of Process Operative

 

41. As per the tribunal's findings of fact set out above, the first occasion the claimant requested a return to her previous role of Process Operative was to the Occupational Health Nurse on 10 April 2018. She then made this request at the absence review meeting on 25 April 2018. The claimant returned to the role of Process Operative within a matter of days, namely on 2 May 2018. The tribunal finds, without hesitation that the claimant has not proved facts upon which the tribunal could conclude that the respondent discriminated against her in relation to her request to be permitted to return to her previous role of Process Operative. There is no less favourable treatment. There is no prima facia case of race discrimination, therefore the burden of proof does not pass.

 

Comment by Mr Chris Quigg

 

42. The tribunal finds, on the balance of probabilities, that Mr Quigg did not state that it would be "better for the claimant to take her child back to Romania". Mr Quigg entirely disputes having made this comment. Ms Mihalikova was clear in her evidence that the claimant had never raised this complaint with her. The tribunal finds the claimant's evidence on this issue, was not credible. Had the claimant raised a complaint at this time in relation to an alleged discriminatory comment she would have followed this up in some way. She did not. Furthermore the claimant's witness statement made no reference to having raised the matter with Ms Mihalikova. This was first raised during cross examination. The tribunal notes the claimant raised workplace issues at an Occupational Health appointment, namely difficulties that arose from her role in administration, there was no mention of a discriminatory comment or any issue with Mr Quigg. Accordingly the tribunal finds the claimant has not proven facts which the tribunal could conclude that the respondent discriminated against the claimant on the grounds of race. The tribunal finds there was no less favourable treatment and the claimant has not discharged the burden of proof.

 

 

 

 

SUMMARY

 

43. The tribunal finds that the claimant's race discrimination case is not proven. The tribunal is satisfied there was no less favourable treatment in relation to the claimant's claims whether viewed independently or collectively. There is no evidence upon which the tribunal could reasonably infer unlawful discrimination has occurred. The burden of proof has not been discharged accordingly the claims of unlawful discrimination on the grounds of race are dismissed.

 

44. Accordingly the claimant's claims are dismissed in their entirety.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 6, 7 and 8 March 2019, Belfast.

 

 

Date decision recorded in register and issued to parties: