THE INDUSTRIAL TRIBUNALS

CASE REFS:	2470/01
3251/01
3271/01
3884/01

CLAIMANTS:		Antonio Miguel Alves Tomas
Paulo Sousa
Jorge Vieira
Claudenis De Cruz

RESPONDENTS:	1.	JSD Recruitment Services
2.	Jim Devlin, T/A JSD Recruitment Services
3.	Dungannon Meats PLC

DECISION

The unanimous decision of the tribunal is that each of the claimants was discriminated against by the second-named respondent on the ground of their race.  The second and fourth-named claimants are awarded £20,000 and the third named claimant is awarded £30,000 for injury to feelings.  Interest of £633 is awarded to the second-named claimant, £666 to the fourth-named claimant and £1000 to the third-named claimant.

Constitution of Tribunal:

Chairman:		Mrs M Price
Member:		Mr J Kinnear

Appearances:
The claimants were represented by Mr M O’Brien, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.
The first and second-named respondents were not allowed to take part, because there was no response entered to any of the claims.
The third-named respondent had sent in a letter and did not appear.
Interpreter for these proceedings was Mr J Bottomley.  The claimants consented to a two person tribunal.

Relevant history to these applications

1.	The four applications were lodged on 29 June 2001, 29 September 2001, 28 September 2001 and 6 December 2001.  In respect of these, responses were lodged by Mr Jim Devlin on 2 October 2003.  Those responses were substantially outside the time limit.  A pre-hearing review was held on 7 July 2005 and the decision was sent to the parties on 11 August 2005.  

2.	The tribunal found that time should not be extended for the respondents to enter responses to these claims and the Chairman of the tribunal reserved the issue of costs until this hearing.

3.	Mr Devlin appeared in person at that hearing.  He did not appeal the decision of the tribunal and so under the Industrial Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 at Rule 9 he was not entitled to take any part in the proceedings except for exceptions 9(a) to (d) in those Rules.  Mr Devlin did appear at the tribunal and was present for three days out of four.

4.	In respect of the third-named respondent, a letter was received from their solicitors, Millar Shearer & Black, dated 7 October 2005 in which they set out full reasons why they would not be attending the tribunal.  They had entered an agreement on 10 October 2003 with Jim Devlin, T/A JSD Recruitment Services, and he agreed to take over full carriage of the proceedings on behalf of the respondents and to indemnify them accordingly. 

5.	The tribunal is satisfied that the correct title for the first and second-named respondents should read ‘Jim Devlin, T/A JSD Recruitment Services’.  The tribunal considered the claims of Antonio Tomas and Claudenis De Cruz had been presented on the basis of race discrimination claims in 2001.  The claims of Paulo Sousa and Jorge Vieira had been presented, originally, as claims of unlawful deductions from wages and holiday pay.  They were lodged on the claimants behalf by the Citizens Advice Bureau in Dungannon.  Some two weeks later the CAB wrote to the tribunals and said that the claims were also of race discrimination.  This correspondence was acknowledged and copied to the respondent, Jim Devlin, and the parties were informed that this would be treated as additional information.  The tribunal is satisfied that at all times the respondents were aware that these were claims of racial discrimination and have accepted them as such.

6.	Counsel for the claimants, Sousa and Vieira, withdrew their claims of breach of contract and unlawful deduction from wages and those claims are dismissed. All four claimants applications were heard on the basis of race as the four claimants were Portuguese.

Issues

7.	The issue to be decided was that of race discrimination on the grounds of the four claimants Portuguese race.  The tribunal considered these were claims of direct discrimination under Article 3(1) 3(2) and 3(3) of the Race Relations (Northern Ireland) Order 1997, as well as Article 5 which defines a ‘racial group’ and ‘racial grounds’ and Article 6 which prohibits discrimination in the employment field.  The tribunal considered Article 16 in relation to discrimination by employment agencies.  The tribunal also considered Regulation 40 of the Race Relations Order (Amendment Regulations) (Northern Ireland) 2003 which provides a new Article 52(a) of the 1997 Order (the Burden of Proof Regulations).  

Sources of evidence

8.	The tribunal considered evidence from three of the claimants, namely Mr Sousa, Mr Vieira and Mr De Cruz.  Mr Tomas did not appear to give evidence and the tribunal was aware that he had been contacted both before and during the hearing, but did not attend.

9.	Ms Kelly White gave evidence and the tribunal considered a bundle of documents relating to the claims, including a contract of employment which was drafted in both Portuguese and English.  These contracts form an important part of the evidence in the case.

Relevant findings of fact

10.	All four claimants were employed by the second-named respondent to work at Dungannon Meats factory site.  The fourth-named claimant had been working in the Mincing Room already for another employment agency called Atlanco.  The second-named claimant had been working for six months for Atlanco.  Jim Devlin came to his house and offered him a job.  He told the second-named claimant that he did not need a contract as he was working in Dungannon Meats already.  However, the    second-named claimant agreed, in a conversation with Mr Devlin, that he would work for £4.10 per hour and overtime at around £6.00 per hour.  In reality he received £3.75 per hour after housing costs were deducted.  Mr Devlin took the second-named claimant to his house because his previous accommodation had been provided by Atlanco.  The second-named claimant thought that he would be re-housed within two to three days, but he stayed with Mr Devlin for six months.  The third-named claimant came to Northern Ireland in October 2000 with Atlanco and was told about Jim Devlin and his agency.  Atlanco had paid the third-named claimant every month, but as he wanted paid every week he went to work with Mr Devlin and he was provided with accommodation

11.	The tribunal accepted that Mr Devlin employed Portuguese workers and that he had Portuguese supervisors for these workers.  He also employed Northern Ireland workers to work at Dungannon Meats.  The tribunal accepted that the three claimants who gave evidence were employed under the terms of a contract with Mr Devlin.  The contract was both in Portuguese and English.  

12.	The tribunal also saw invoices which were presented from JSD Recruitment Services to Dungannon Meats for employees who were referred to as ‘Europeans’.  An interesting feature of these invoices is that the hourly rate which was charged on the invoice is £7.10 per hour and refers to ordinary time, Band 2 which appears to be overtime rate is charged at £8.00 per hour.  The tribunal accepted evidence from the claimants that they were paid £3.75 per hour by Mr Devlin.  They had agreed, under the contract, that they would be paid £4.00 or £4.10 per hour, but Mr Devlin charged the claimants for electricity and taxis and accommodation, leaving them with an agreed figure of £3.75 per hour.  They were also contracted not to receive any overtime payment until they had worked a 45-hour week.

13.	The tribunal saw pay-slips produced by the claimants which showed that each of them had worked considerable periods of overtime.  The tribunal accepted evidence from the third-named claimant and the second-named claimant that they were required to work on Saturdays and Sundays.  Mr Devlin’s supervisors came to their accommodation and demanded that they work on Saturdays, Sundays and Bank Holidays.  The tribunal accepted evidence from the third-named claimant that if Dungannon Meats own employees worked Saturdays, Sundays, they got double pay.  They also got Bank Holiday payments and time-off in lieu and they got a regular weekly bonus.  This evidence was also corroborated by the fact that the second-named claimant was fined in terms of a bonus because one day he arrived late into the workplace.  There was a deduction of £25.00 on his pay-slip to represent a reduction of his bonus over two weeks.  However, in reality he never received a bonus at any time and this so-called fine had never been agreed to in writing, or otherwise, by him.

14.	The tribunal heard evidence from Kelly White, who worked for Dungannon Meats in September 2000 and is still there.  She gave evidence and the tribunal accepted that she was paid time and a half for the hours she worked on Saturdays, she got double time for working on a Bank Holiday plus eight hours added on, and that there was a weekly bonus paid to everyone, apart from the Portuguese workers, of £25.00 per week, every week.  She also stated that once she worked over 40 hours she was paid overtime.  

15.	The second-named claimant lived in Jim Devlin’s house for some six months.  During that time he met a girl called Kelly, who had a sister called Leah, and they both worked for Jim Devlin at Dungannon Meats.  He saw their pay-slips which he said were very different in amount to his.  He stated that the girls were paid £4.25 per hour as a net amount, whereas he received £3.75 per hour.  The girls working for Jim Devlin received bonuses all the time and they were not required to work overtime.  The second-named claimant spoke to Jim Devlin about this when he found out the difference in wages and conditions.  Mr Devlin told him that there would be a change when more Portuguese workers came to his agency and the second-named claimant felt it was a threat that Mr Devlin did not need his services any more.  As he had a family in Brazil and outgoings, he could not afford to leave the job. 

Holiday entitlement

16.	The third-named claimant’s evidence was that he had no entitlement to any holidays.  He was frequently required to work Saturdays and Sundays.  This contrasted with Dungannon Meats direct employees who received double time if they worked on    Bank Holidays.  They did not have to work overtime; neither did Mr Jim Devlin’s Northern Ireland workers.  The tribunal accepted that Dungannon Meats and Mr Devlin used Portuguese workers to work at weekends and Bank Holidays.  We accept the evidence from the three claimants that they were forced to work on these days and were not given an option.

Entitlement to sick pay

17.	The tribunal accepted that the Portuguese workers had no entitlement to sick pay and this contrasted to a Northern Ireland worker, either for Dungannon Meats or Jim Devlin who had an entitlement to sick pay.

Clocking arrangements

18.	The tribunal accepted the third-named claimant’s evidence that if he or any of the Portuguese workers had to go to the toilet or for tea or lunch breaks they had to clock in and out.  This was not required for Dungannon Meats other employees.  The   second-named claimant stated that the supervisor would stand by the clock and make sure that the Portuguese workers clocked out when they were going for a break.

Income Tax and National Insurance contributions

19.	The third-named claimant impressed the tribunal as a witness who was very keen to make sure that all statutory deductions were being made and he had taken this matter up with Mr Jose Bell, because he was concerned.  Mr Bell told him that it was his responsibility to sort it out and get a National Insurance Card for himself.

20.	The tribunal saw a number of pay-slips which were produced by the claimants.  They were extremely difficult to understand.  The claimants received a net wage of £3.75 per hour up to 45 hour week, then they were paid at £5.60 per hour for overtime and the pay-slips showed that the gross and the net pay were the same.  There were figures for deductions for income tax and other deductions, but they did not appear to be the correct amount of deductions for the number of hours worked.  

21.	The third-named claimant’s evidence was that when he went to the Job Centre he was told that no Income Tax or National Insurance Contributions appeared to have been made for him by Mr Devlin.  Similarly, the third-named claimant was told that there was no record of him having worked for Mr Devlin when he went to claim Working Family Tax Credit and the fourth-named claimant stated that he had no entitlement to statutory sick pay.  The second-named claimant, who lived in Mr Devlin’s house, stated that he saw some tax forms completed for Mr Devlin’s Northern Ireland workers and they were not in any way similar to his.  

22.	The tribunal accepted that Mr Devlin started with five Portuguese workers in 2001 and by the time nine months of the claimants contracts had passed, the number had increased to 150.  The number of Northern Ireland workers provided by Mr Devlin reduced considerably.  The tribunal accepts that on the figures given to us it was considerably cheaper for the company, Dungannon Meats, to employ these workers by using Mr Devlin’s agency.  We have a real concern about the invoices presented by Mr Devlin to the company, showing the hourly rates as quoted above, however that is a matter between the second-named and third-named respondents and not for this tribunal.

Restrictive covenant

23.	The tribunal saw that the contract of employment drawn up by Mr Devlin and signed by the claimants, Vieira, Sousa and Tomas, which provided at Paragraph 6 that none of these claimants could work for JSD Recruitment Services client companies for a period of 18 months after they had completed their contract with Mr Devlin.  

24.	The tribunal heard evidence and accepted that no such restriction was put on any of Mr Devlin’s direct employees.  The tribunal accepted that Dungannon Meats had approached the third-named claimant about continuing to work for them and he had gone as far as filling in application forms to the company.  However, a Senior Manager, Mr Proctor, told the third-named claimant that he could not work as long as the arrangement with Jim Devlin continued and said that no Portuguese worker could work directly in the factory.  The fourth-named claimant was offered a job in Dungannon Meats by one of the managers.  This manager said that he would have to wait a week before starting to work and advised him to contact Jim Devlin to tell him that he was starting working in the factory.  The fourth-named claimant telephoned Jim Devlin, who told him to f*** off and hung up the phone.  The  fourth-named claimant started to work in the factory and worked on 8 and 9 September.  Jim Devlin and one of his supervisors came and told him that he could not work directly for Dungannon Meats.  The director of the factory said that because of an agreement between Jim Devlin and Dungannon Meats, the fourth-named claimant could not work for them.  This contrasted with JSD employees, Kelly and her sister, Lea, who both applied and got jobs with Dungannon Meats without any restrictions.

Payment of wages

25.	All three claimants described how they were paid their wages.  They were paid by Mr Devlin in the canteen.  This contrasted with his Northern Ireland employees who were paid at the gate.  The tribunal accepted the second-named claimant’s evidence that Mr Devlin came into the canteen with pay envelopes in a bag.  He would call the Portuguese workers names and then throw the pay packet across the floor towards the individual.  This contrasted with the way in which Northern Ireland employees were treated.

Conclusions from the facts found

26.	The tribunal has set out above the facts established from the evidence of the three claimants.  The first-named claimant, Mr Tomas, did not appear or give evidence.  However, we were satisfied that the three claimants who did give evidence were telling the truth and it was obvious that they were visibly upset by the recollection of events that had taken place some four years ago.

27.	In relation to their claims of direct discrimination, the tribunal considered Article 3(1)(a) of the Race Relations (Northern Ireland) Order 1997 and this provides for comparison of the treatment meted out to the three claimants as opposed to the Northern Ireland employees of Jim Devlin.

28.	We are satisfied that the three claimants can compare themselves with workers who were recruited by Mr Devlin to work at Dungannon Meats and who were of Northern Ireland origins.  

29.	We are satisfied that when the claimants first arrived in Northern Ireland, they had little knowledge of English, they were in a foreign country, and they were under the control of Mr Devlin.  He controlled the way in which they worked, their accommodation and he was the person to whom they would have looked to for support when arriving in Northern Ireland.  

30.	The distasteful fact of this case is that we find that Mr Devlin exploited these workers because of their ethnic origins and race.  He was able to negotiate a pay rate which was below that of any worker in Dungannon Meats and he was able to do this by offering accommodation and, as the claimants thought, providing employment which was compatible with domestic legislation.

31.	In this case we do not have any evidence from Mr Devlin because he chose not to enter a notice of appearance/response until two years after the claims were brought.  This was despite the fact that he had instructed two separate firms of solicitors and could not say that he did not know about the claims or that he had not had assistance in how to defend them.  He also agreed on a settlement made two years ago.

32.	We find that the actions of Mr Devlin are those of an employer who does not want to:-

(a)	admit liability; or

(b)	have his employment methods scrutinised by this tribunal or any other court.

33.	As stated earlier, there was obviously a financial advantage to him to set up an employment agency, take workers from a previous agency called Atlanco and to substantially increase the numbers from five to 150 Portuguese workers within a nine month period.  

34.	Although Dungannon Meats have chosen not to attend this hearing because of an indemnity agreement between themselves and Mr Devlin, the tribunal finds that they do not come out of this arrangement with any great credit either.  It was obviously an arrangement which was beneficial to both respondents to employ Portuguese workers on less favourable terms than those of Northern Ireland workers.

35.	We have no doubt in finding that these claimants were part of a racial group, namely Portuguese.  Portugal is a separate country from Northern Ireland albeit that it is within the European Union, but looking at an objective test for discrimination we find that the claimants would not have received the less favourable treatment than they did receive from Mr Devlin, but for their racial ethnic origin.  This brings them within the provision of Article 5(1) of the 1997 Order.

36.	We are satisfied that at all material times the second-named respondent was the claimants employer and that he was acting as an employment agency to provide workers for the third-named respondent.

37.	We are satisfied that the claimants accepted employment on the basis of a contract in Portuguese and it was not until they came to Northern Ireland and started to learn English and talk to fellow employees that they realised just how unfavourably they were being treated.

38.	This tribunal has no hesitation in finding that the second-named respondent discriminated against the four claimants on the grounds of their race and it is a sad indictment on the employment practices in Dungannon Meats that these men, along with other fellow countrymen, were subjected to less favourable treatment than Northern Ireland employees were.

Injury to feelings

39.	The three claimants gave powerful and compelling evidence in relation to how they felt when they began to realise how they were being treated compared with people who had started to befriend them and who worked in Dungannon Meats.  They were paid less, they were forced to work overtime and the overtime rates were less than any Northern Ireland employee.  They had to work Bank Holidays when Northern Ireland employees would not work and they were living in accommodation which was owned by Mr Devlin.  This in itself meant that they were under the control of Mr Devlin and his Portuguese supervisors because they could not afford to live anywhere else during the contract of employment.  

40.	Having listened to the claimants it was depressing to consider the exploitation being used by Mr Devlin in the way in which he treated these workers.  The third-named claimant was visibly upset when he was asked about how he felt during this period of employment in Northern Ireland.  He said he felt, “indignant and humiliated working for Jim Devlin.  I felt empty because the whole time I was working for him I suffered because of the housing and also the relationship between Jim Devlin and ourselves.  It was important for me to fulfil my signed contract and try to maintain my dignity as a man and a worker.  My boss could do whatever he wished, but he could not eliminate me or what I am”.  

41.	The second-named claimant, in evidence, when asked how he felt stated, “it is hard to describe how I and others felt.  We were used, abused, exploited, discriminated.  We were deemed to be people who had to do it or be sent back to Portugal and our stuff would be thrown out on the street”.  He said, “he felt like a slave, a dog, in the way Mr Devlin would throw pay packets at him and the other Portuguese workers.  It was almost the way you would throw a dog a bone”.  He also stated, “I felt trapped and couldn’t turn to outside agencies as I spoke little English”.  He also stated, “we were being used and abused and treated like rubbish”.

42.	The fourth-named claimant stated, “I was disgusted and very sad.  I was a very open person, complied with my duties.  This case made me feel humiliated, badly treated.  My ex-wife had arguments with me.  She wanted to go back (to Portugal) and never come back.  It was a bad way of treatment”.

Events occurring after the hearing – 17-21 October 2005

43.	The tribunal reserved its decision and told the parties that it would be sending out a decision in due course.  On 2 November 2005 a letter dated 28 October 2005 was sent to the Vice President in person.  It was sent by special delivery and was handwritten in Portuguese allegedly by the claimant Mr De Cruz.  When translated into English, the contents of the letter raised disquiet and concern by the Vice President.  The letter was copied to the parties and they were informed that because of the seriousness of its contents a further hearing would be required.  The hearing was held on 1 December 2005.  At this hearing counsel for the claimant stated that Mr De Cruz had given evidence orally at the previous hearing, which was not based on a witness statement and there was no constraint upon him at that time.  The letter dated 28 October 2005 contradicted many of the matters on which he gave evidence and was attacking the credibility of the other two claimants.  As counsel stated this came as “a bolt from the blue.”  Mr De Cruz left for Brazil, Mr Vieira had seen him on 5 November 2005 and he gave no indication that he was leaving.  He left no forwarding address for his instructing solicitor and it appears that he left the country very quickly.  He was not present before the tribunal to explain how he came to write the letter and why he was changing his evidence.  

44.	Mr Vieira gave evidence and he stated that on 5 November 2005 he was shopping in Dungannon and saw Mr Dr Cruz and spoke to him.  Mr De Cruz was waiting for a taxi and had his daughter with him.  He did not mention the letter or that he was going to Brazil.  He stated that he was still working in Linden Foods and at Moypark and when questioned by Mr Vieira why he was working in two jobs he stated that he had expenses and he had to work.  Later that day Mr Vieira was walking along Ballygawley Road when a car came towards him.  He stated that it slowed down and Jim Devlin was driving.  Jim Devlin made a sign to Mr Vieira which he demonstrated to us and it was like a gesture of cutting a throat.  Mr Vieira pointed to himself asking Mr Devlin, presumably, whether the gesture was intended as a threat to him.  Mr Devlin pulled the car into the side and when Mr Vieira went towards it he drove away.  Mr Vieira stated that on 18 November 2005 in Dungannon, Mr Devlin was crossing the street and coming towards him.  He said that he felt threatened as Mr Devlin looked directly at him.  In relation to the incident on 5 November 2005 the claimant was so concerned and threatened that he went to the police and the tribunal saw a copy of a police incident report.  

The tribunal considered the evidence that was given in relation to this matter.  The case was reconvened in order that the claimant, Mr De Cruz, could come to the tribunal and explain what was behind the letter he wrote to the Vice President.  We do not find that we have evidence which we can accept that Mr De Cruz wrote this letter.  There is no proof of his signature and there is no one who could give evidence in relation to his handwriting.  We have decided that we will not accept this letter as evidence.  We were satisfied at the time of the hearing that Mr De Cruz gave his evidence in a truthful manner and we see no reason to change the decision which had already been made between the panel members at the end of the previous hearing.

45.	The tribunal has been most concerned to hear the evidence of Mr Vieira which he has given in relation to the threatening behaviour occasioned to him by Mr Devlin.  For anyone to threaten another person with a cutting gesture at the throat is extremely serious and may well be considered in another Court.  However, as far as this tribunal is concerned it is a clear case of aggravating the damage caused to Mr Vieira and must be reflected in an increase in the damages for injury to his feelings.  It is for this reason that Mr Vieira is awarded the sum of £30,000 and the tribunal reflects back to the decision in Vento putting this award squarely into the upper band of awards for injury to feelings.  Mr De Cruz is awarded £20,000 for injury to his feelings.  Mr Sousa is also awarded £20,000 for injury to his feelings.

Award

46.	In considering the award that a tribunal should make in the case of discrimination the case which most guidance to the tribunal is that of Vento  v  Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102.  The Court of Appeal in that case approved the summary of the general principles on compensation for injury to feelings in HM Prison  v  Johnson [1997] IRLR 162.  The Court of Appeal in Vento identified three broad bands of compensation for injury to feelings which was distinct from compensation for psychiatric or similar personal injury.  Having considered the case of Vento and the case before this tribunal, we are satisfied that this case merits an award in the top band, ie between £15,000 and £25,000.  Vento states that sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment.  

Aggravated damages

47.	The courts have taken different views in recent years as to whether a separate award should be made for aggravated damages or whether such damages should be included in the award for injury to feelings.  We are aware of cases in England which have taken a different view to the case of McConnell  v  Police Authority for Northern Ireland [1997] IRLR 635, but the principles are the same in that aggravated damages may be awarded where the employer has behaved in a ‘highhanded, malicious, insulting or oppressive’ manner in committing the act of discrimination, as cited in Alexander  v  The Home Office [1988] IRLR 190.  Also the tribunal may consider the way in which a respondent has acted after the act of discrimination and also the way in which a respondent conducts proceedings, including conduct at the hearing, as set out in City of Bradford Council  v  Arora [1989] ICR 443 and Zaiwalli & Company  v  Walia [2002] IRLR 697.

48.	In this case the conduct of Mr Devlin all along has been highhanded and insulting and oppressive.  As can be seen from the facts in relation to these claims, Mr Devlin treated the Portuguese workers in a contemptuous fashion.  He did give accommodation to the second-named claimant in his house, but by having him in his house he was then able to make demands of him for overtime working, which he could not have done with Northern Ireland workers.  There is also the conduct of the proceedings by Mr Devlin from these claims being lodged that the tribunal considers an award of aggravated damages is going to form part of the overall award for injury to feeling.

49.	Mr Devlin ignored the claims lodged in 2001.  He did have a firm of solicitors, but no notices of appearance were entered to the claims.  He then instructed other solicitors and went as far as agreeing a settlement but then reneged on that agreement.  It has taken four years to get these cases to hearing and much of that delay has been caused by Mr Devlin.

50.	We are satisfied that at all times Mr Devlin was the employer of the claimants.  The first-named claimant did not appear and give evidence and so we have no idea of how his feelings were injured and so we do not make an award.

51.	The three claimants who have given evidence have suffered a lengthy period of racial discrimination from the time that they arrived in Northern Ireland on a contract with Mr Devlin until that contract ended.  It is conduct which is shocking in our opinion and merits a substantial award.  We are awarding £20,000.00 to two of the three claimants which includes an amount for aggravated damages.  The situation in relation to Mr Vieira is even more serious with harassment after the first hearing and the award of £30,000 is ordered.  Interest at 8% per annum is awarded from the date of discrimination:

(a)	Mr Vieira	-	 Interest from 14 September 2001 	=	£1000.00
(b)	Mr Sousa	-	Interest from 11 September 2001	=	  £663.00
(c)	Mr De Cruz	-	Interest from 6 September 2001	=	  £666.00

Costs

52.	Counsel for the claimants applied for costs for the hearing which was held on 7 July 2005.  This hearing was convened because on 10 October 2003, Mr Devlin purportedly settled the four claims which were before this tribunal.  He never signed the terms and they were never implemented, and then there was a pre-hearing review to consider his late notices of appearance after the settlement had failed.

53.	A Case Management Discussion chaired by the Vice President directed that there should be a pre-hearing review on 7 July 2005 because Mr Devlin wished to have an extension of time to lodge notices of appearance.  The hearing on 7 July 2005 rejected all of Mr Devlin’s contentions and held that the responses were outside the time limits.  That hearing lasted from 10.00 am to 5.30 pm and deferred the issue of costs to this hearing.

54.	The claimants had to pay their legal costs for that hearing, as they were not assisted by anybody.  Mr Devlin did not appeal the decision made on 7 July 2005.  This tribunal has considered the conduct of Mr Devlin and considers that, under Rule 14 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005,  it has been unreasonable conduct which has led to additional expense in the total hearing.  

55.	This tribunal is satisfied that Mr Devlin should pay the costs of the hearing on 7 July 2005 which were £2,500.00.  This sum will be apportioned between each of the four claimants.

56.	Counsel for the claimants asked the tribunal to make a declaration of racial discrimination against the third-named respondent, Dungannon Meats.  As has been stated earlier in this decision, Dungannon Meats is a relatively large company employing Portuguese and Northern Ireland workers which does not come out of this situation with any credit.  However, we are not satisfied on the evidence before us that we can make a declaration involving any named individuals or practices in Dungannon Meats.

57.	Interest paragraph

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

Vice President:

Date and place of hearing:		17 – 21 October 2005, Belfast
						1 December 2005, Belfast

Date decision recorded in register and issued to parties: