Brzezinski v Alan, Lee & Dale Edgar t/a Edg... Alan, Lee & Dale Edgar t/a Edg... [2014] NIFET 00048

FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 48/13 FET

744/13

CLAIMANT: Daniel Brzezinski

RESPONDENTS: Alan, Lee & Dale Edgar t/a Edgar Contracts

DECISION

1. The unanimous decision of the Tribunal is that the claimant suffered discrimination on grounds of race and religion in that he was harassed and dismissed unfairly.

2. The claimant did not receive written terms and conditions of employment, did not receive itemised pay statements, and suffered an unlawful deduction of wages in respect of failure to pay National Minimum Wage.

3. Total compensation is awarded in the sum of £55,237.51.

4. The claim for danger money is dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr I Acheson

Mr J Devlin

Appearances:

The claimant was represented by Mr J McDonald, Barrister-at-Law, instructed by Babington & Croasdaile Solicitors.

The respondents did not appear and were not represented.

The Claim

1. The claimant’s claim was for unfair dismissal on grounds of failure to follow the statutory dismissal procedure, on ordinary principles and as an act of discrimination on grounds of race and religion. The claimant also claimed unlawful deduction from wages in respect of underpayment of the National Minimum Wage (NMW), five weeks' holiday pay, that he did not have written terms and conditions, that he did not have itemised payslips and that he was entitled to danger money.

2. The respondent confirmed dismissal but denied discrimination and unfair dismissal.

Sources of Evidence

3. The Tribunal had regard to the documents to which it was referred together with the claim and response forms and took account of the claimant’s verbal evidence.

The Law

4. Discrimination on racial grounds is covered by the Race Relations (NI) Order 1997 as amended (referred to below as the RRO).

5. Direct discrimination is defined at Article 3(1)(a) of RRO. At Article 6(2)(c) it is stipulated to be unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment. It is for the employee to prove facts from which the tribunal could conclude that the employer’s treatment was on grounds of the claimant’s race, and that the treatment was less favourable in the way that the employer treated or would have treated someone not of the claimant’s race.

6. Victimisation is defined at Article 4 of RRO and the protected acts are listed at Article 4(2)(a) and (b).

7. Harassment is defined at Article 4A which states as follows:

“4A.—(1) A person (“A”) subjects another person (“B”) to harassment in any circumstances relevant for 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.

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

8. The burden is on the claimant to prove facts from which the Tribunal could conclude that he suffered such unwanted conduct on grounds of his race, which had the required purpose or effect. If the claimant proves such facts that burden shifts to the respondent to prove that the treatment was not related to race or that it did not have the alleged purpose or effect.

9. Racial grounds is defined at Article 5 as meaning colour, race, nationality or ethnic or national origins.

Statutory disciplinary and dismissal procedures

10. The statutory Disciplinary and Dismissal Procedures (DDP) are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations 2004 and in the Employment (NI) Order 2003. Essentially there are three steps in the minimum disciplinary and dismissal procedure. Step one involves the employer writing to the employee setting out the grounds for the proposed action and inviting the employee to a disciplinary meeting to discuss the matter. Step two involves holding a meeting and notifying the employee of the decision and the right of appeal. Step three involves inviting the employee to an appeal meeting if the employee avails of the appeal process and notifying the employee of the appeal decision.

Ongoing acts

11. The Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 CA case involved a race discrimination case where the issue for the Tribunal was whether the acts constituted a continuing act whereby the relevant three month time-limit would not begin to run until the date of the last act. The principle established by the Court of Appeal in the Hendricks case is outlined in Harvey Division L paragraph 562 which states as follows:

“In deciding whether a particular situation gives rise to an act extending over time it will also be appropriate to have regard to: (a) the nature and conduct of the discriminatory conduct of which the complaint is made, and (b) the status or position of the person responsible for it. Certain types of discriminatory insults, for example, will by their nature indicate that they have a continuing effect and are properly seen as part of a general regime of discrimination; so too discriminatory acts by a person of authority may be more likely to create a regime of discrimination than similar conduct by a person of lower authority within an organisation. Where there is evidence of numerous instances of discriminatory acts by different people over time the focus of the enquiry should not be on whether there is something that can be characterised as policy, rule, scheme, regime or practice-instead what is important is whether there is an ongoing situation or a continuing state of affairs in which the group discriminated against (be it defined by sex or race) and including the claimant was treated less favourably: Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 CA…

The claimant was held entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged instances of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.”

Victimisation

12. The case of Nagarajan v London Regional Transport [1999] IRLR 572 HL is the principal House of Lords decision on victimisation. The House of Lords held that conscious motivation was not required for victimisation just as it was not required for direct discrimination. As Lord Nicholls stated; “Discrimination may be on racial grounds even though it is not the sole ground for the decision. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

Injury to feelings

13. In the Vento case the Court of Appeal gave guidance on the assessment of damages for injury to feelings. In the decision the Court of Appeal cited with approval the summary of the general principles on compensation for non pecuniary loss which were outlined in the case of Prison Service v Johnson [1997] ICR 275 by the EAT.

14. The guidance by the Court of Appeal on valuation states as follows:

“65. Employment tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury.

(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race…Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii) The middle band between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.

(iii) Awards of between £500 and £5,000 are appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether as the risk being regarded as so low as not to be a proper recognition of injury to feelings.

66. There is of course within each band considerable flexibility allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.

67. The decision whether or not to award aggravated damages and if so what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.

68. Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for no pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each case.”

15. The Vento bands were reconsidered by the EAT in Da’Bell v National Society for the Prevention of Cruelty to Children EAT 0227/09. The current middle and upper bands are £6,000 to £18,000 and £18,000 to £30,000.

Findings of Fact and Conclusions

16. The claimant was employed as a Labourer from early March 2011 until 18 January 2013 (the EDT). We find that he worked for the respondent for 98 weeks.

17. We accept the claimant’s evidence that he worked in excess of 45 hours and find as a fact that he worked on average 60 hours per week, that his was a five-day week and he received net pay of £225.00. The claimant’s representative accepted that gross pay was £256.92 per week. The claimant was aged 31 at the EDT and he had completed one full year’s employment when he was dismissed.

18. After his dismissal the claimant took reasonable efforts to mitigate his loss by seeking other employment and was employed for four weeks during that period by another company earning £973.64 net in total. The claimant was in receipt of Jobseekers Allowance (JSA) from the date of dismissal to the date of hearing except for the four weeks that he worked for the other company. JSA of £140.00 per fortnight was paid and is deducted from the net loss as set out below.

Written terms and conditions

19. We accept the claimant’s evidence that he received no written terms and conditions and this was not disputed by the respondent in the response form. We therefore award two weeks’ gross pay as set out below.

Danger money

20. We do not accept the claimant’s case that he is entitled to ‘danger money’. The claimant candidly accepted that there was no agreement between him and his employer in relation to receiving any such danger money even if it may have been the case that in other companies in the industry workers in a similar situation would obtain that figure. We therefore reject the claim for any sum under this heading.

Holiday pay

21. We are satisfied from the evidence presented to us that the claimant took four weeks’ holidays per year but was only paid for two of them each year. He was entitled to 5.6 weeks per year and we therefore award compensation for the unpaid holidays and for the holidays that he was not granted as calculated below.

Entitlement: 11.2 weeks

Paid for 4 weeks

_________

Balance due: 7.2 weeks

_________

22. We accept the claimant’s evidence that he did not receive itemised payslips and note that the respondent did not dispute this part of the claim. We therefore make a declaration in that regard. No compensation is payable.

National Minimum Wage

23. As the claimant worked 60 hours per week over five days he was entitled to be paid at a rate of £6.19 per hour making a total of £371.40 per week gross. He actually received £256.92 gross per week making a shortfall of £114.48 per week. We calculate the net figure to be £192.69 by deducting 25% from the gross figure to allow for tax and National Insurance. These gross and net figures are used in the calculations below.

Unfair Dismissal

24. We are satisfied from the evidence that there was no procedure followed in relation to the claimant’s dismissal.

25. We find that the respondent was in breach of the statutory dismissal procedure (SDP) and the claimant’s dismissal is therefore automatically unfair. As a result the claimant is entitled to the statutory minimum basic award of four weeks’ gross pay calculated on the figure he would have received if the NMW had been paid. The calculation therefore is as follows:

Gross Pay £371.40 x 4 weeks = £1,485.60

26. We are satisfied that the dismissal was unfair on ordinary principles too. We find as a fact that the claimant was dismissed for redundancy but that he was unfairly selected for a discriminatory reason. This rendered the dismissal unfair as set out below.

Harassment

27. We accept the claimant’s evidence that he was subjected to racial and religious verbal abuse by Dale Edgar on a regular basis throughout his employment and in particular on 17 January 2013 that is the day he was told he was being dismissed with effect from the next day.

28. In particular we accept that Dale Edgar regularly referred to Catholics and the claimant in particular as “a Fenian” and made reference to the claimant as: “Polish bastard coming over here taking work off us”. We also accept that on 17 January 2013 Dale Edgar said to the claimant: “Go to fuck back to your country this is not your country”.

29. We are satisfied that the comments amount to harassment on grounds of religion and on grounds of nationality. Given the ongoing nature of the conduct we regard it as a continuing act and therefore find that there are no time limit issues given that the last act occurred the day before the claimant was dismissed. We therefore award compensation for injury to feelings in relation to that harassment as set out below.

Unfair dismissal on discriminatory grounds

30. The claimant alleged that his dismissal was motivated by the fact that he was Polish and Roman Catholic. The burden is on the claimant to prove facts from which we could conclude that such an act of discrimination occurred and if the claimant proves such facts it is for the respondent to prove that the act complained of was not tainted by unlawful discrimination.

31. The claimant compared his treatment with that given to Richard Rodgers a co-worker in his team. Mr Rodgers was employed six months before the claimant was dismissed and he worked at the same job as the claimant. He is from Northern Ireland and his perceived religious affiliation (PRA) is Protestant.

32. We accept that the claimant has proved the following facts which, taken together, could lead us to conclude that the claimant was discriminated against on grounds of race (in that he is Polish) and on grounds of his religious belief:

(1) The claimant was treated less favourably than his comparator and there was a difference in religion and nationality between them;

(2) The comparator was a relatively recent recruit whereas the claimant had worked for almost two years at the same job;

(3) As we have accepted above the background of verbal abuse by one of the owners on grounds of race and religion, we regard it as significant that on the very day the claimant was told he was being dismissed with effect from the next day, he was verbally abused again. We therefore infer from this conduct by the employer that the claimant’s nationality and his religion were key factors in the minds of the respondents at the time they were deciding who to dismiss on grounds of redundancy;

(4) Of particular weight to us is the letter which the respondents allege was sent to the claimant on 11 January 2013 which states as follows:

“11/01/2013

Dear Daniel

We are deeply saddened to inform you that your term of employment at Edgar Contracts has come to an end. Due to your recent actions towards another employee and your continuous aggressive behaviour towards other employees, we have no choice but to end your employment with us. You can work until Friday the 18^th January 2013. You will receive your pay up until this date.

We thank you for your service to Edgar Contracts and we wish it didn’t have to end this way.

Sincerely, Lee Edgar”

(5) The fact that the comparator had a forklift licence is cited in the response form as the reason he was kept on. We accept the claimant’s evidence that the issue of whether he had a forklift licence or not was never raised or was never part of the job and we accept his evidence that this was raised as a spurious reason for keeping on the comparator in favour of the claimant.

33. We accept the claimant’s evidence that he did not receive this letter as, firstly, we found him to be a truthful witness and, secondly, the text sent by Lee Edgar on
4 February 2013 is at odds with the respondent having sacked the claimant for misconduct. Thirdly we find that no disciplinary process took place in relation to any alleged misconduct. The claimant had a clear disciplinary record. In that text the respondent purports to offer the claimant work but blames him for not getting it. We accept that the letter of 11 January 2013 was an attempt to make it look as if the claimant was sacked for misconduct when in fact he had been sacked summarily and unfairly for redundancy and was unfairly selected for a discriminatory reason.

34. As we have found facts from which we could conclude that an act of discrimination on both grounds occurred, the burden moves to the respondent to provide an explanation which is untainted by discrimination. In the absence of evidence from the respondent we are not satisfied that the respondent has discharged that burden and find that the claimant was discriminated against in that he was dismissed for a discriminatory reason, namely race and religion.

Compensation

Uplift for Failure to Follow SDP

35. We have discretion to increase the compensatory award by between 10% and 50% for failure to follow the SDP. We have no evidence as to why the respondent failed to follow the minimum procedure. We regard the verbal abuse on 17 January 2012 as an aggravating factor. We therefore award 50% uplift on the compensatory award as set out below.

Injury to Feelings

36. We found the following factors relevant to the assessment of injury to feelings compensation:

(1) The harassment took place on a number of occasions (albeit approximately once a month) and essentially formed the background to the claimant’s employment;

(2) The verbal harassment was perpetrated by one of the owners and was therefore harder for the claimant to challenge;

(3) The claimant lost his job because of discrimination and had no chance to put his case to keep his job;

(4) In sacking the claimant he not only lost his job but was abusively told to return to his own country;

(5) The attempts by the respondent to ‘cover their tracks’ by producing a spurious letter which was allegedly sent to the claimant, is an aggravating factor for compensation;

(6) The contents of the text which stated:

“Text Message from Lee Edgar – 4/02/13 at 18.01

Next time you want to speak, speak when you are not drinking, You could have had a few days work this week and week but not now.”

(7) The claimant produced no medical evidence. Any depression or anxiety suffered began shortly before our hearing.

37. Taking account of the above factors we assess this case to fall within the low end of mid-Vento and award £9,000.00.

Calculation of Compensation

38. Statutory minimum basic award:

£371.40 x 4 weeks = £ 1,485.60

39. Compensatory award:

(i) Immediate loss of earnings from 18 January 2013 (EDT) to 13 January 2014:

51 weeks x £192.69 = £ 9,827.19

Deduct benefits received £70 per week x

51 weeks = £ 3,570.00

_________

Net Loss = £ 6,257.19

(ii) Future loss of earnings:

£192.69 x 52 weeks = £10,019.88

(iii) Injury to feelings: = £ 9,000.00

(iv) Loss statutory industrial rights = £ 500.00

Total = £25,777.07

(v) Uplift on compensatory award

@ 50% x £25,777.07 = £12,888.54

Total compensatory award: £38,665.61

40. Interest @ 8% per annum from 18/1/13 to 18/1/14:

(1) Injury to feelings: £9000 x 8% x 12 months = £720.00

(2) All other compensation: £31,151.21 x 8% x 6 months = £1,246.05

41. Unlawful deduction from wages/breach of contract: National Minimum Wage shortfall:

£114.48 x 98 weeks = £11,219.04

42. Holiday pay: £192.69 x 7.2 weeks = £ 1,387.37

43. Failure to provide written terms and conditions of employment:

£256.92 x 2 weeks = £ 513.84

44. Failure to provide itemised payslips: no compensation.

45. Total compensation: _________

£55,237.51

_________

46. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1995.

Chairman:

Date and place of hearing: 14 January 2014, Belfast.

Date decision recorded in register and issued to parties:

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Fair Employment Tribunal Northern Ireland Decisions