THE INDUSTRIAL TRIBUNALS

CASE REF: 01890/09

CLAIMANT:			Mohamed Djedi

RESPONDENT:		British Midland Airways Limited

DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against on grounds of race.  However the claimant was unfairly dismissed.  The tribunal awards the claimant the sum of £7623.94.  
Constitution of Tribunal:
Chairman:			Mr P Kinney
Members:			Mr J Law
				Mr P Killen
Appearances:
The claimant was represented by Mr G Daly, Solicitor of Francis Hanna & Co
The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by Carson McDowell Solicitors

1.	The issues for the tribunal to determine were:

(a)	Was the claimant unfairly dismissed by the respondent in or around 
21 November 2008 contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (ERO)?

(b)	    	If it is held that the claimant was unfairly dismissed in accordance with issue 1 above, does the claimant’s dismissal or treatment pursuant to his dismissal constitute less favourable treatment on the grounds of the claimant’s race contrary to Article 6 of the Race Relations (Northern Ireland ) Order 1997 (RRO)?

Facts

2.	The tribunal found the following facts relevant to the issues. 

3.	The claimant was employed by the respondent as a customer service agent from 25 February 2004 until 21 November 2008 when he was dismissed.  The respondent has in place a policy regarding lateness for work.   It is regarded by the respondent as a conduct issue.  If an employee is late, that can be classified as either justifiable or unjustifiable lateness by a duty manager.  On the second instance of unjustifiable lateness within a rolling twelve month period, a letter is to be sent to the staff member.  It is known as a “late 2” letter. 

4.	The claimant was late for work on 9 January 2008 and the 29 April 2008.  The claimant accepted that these were unjustifiable.  He was approximately 60 minutes late for his shift on each occasion.  On 29 April 2008 Karen Duckett, the respondent’s airport manager, sent a “late 2” letter to the claimant.   In it she reminded the claimant 

“punctuality is vital to your employment as a member of the airport service team and failure to arrive on time can have serious consequences for your colleagues and also ultimately your customers.”

5.	The claimant was told that the letter would be placed in his personal file.  He was further warned:–

“In addition, any further incidents of lateness during the next twelve months may result in disciplinary action being taken against you, up to and including dismissal.” 

The letter concludes:

“I trust that you are now fully aware of the seriousness of the situation and that you will do everything possible to ensure that this does not happen again.”

6.	On 2 June 2008 the claimant received a final written warning which was placed on his file for twelve months.  The final written warning was in relation to conduct matters but were not related to lateness.  

7.	The claimant was late on 28 August 2008.  Again he was approximately 60 minutes late and he accepted that the lateness was unjustifiable. On 5 September 2009 the claimant was due to commence his shift at 1.30pm.  He phoned his duty manager to say he might be late.  He then phoned the duty manager at approximately 1.35pm to confirm he was at his station.   The duty manager required the claimant to fill in a lateness form.  He refused as he contended that he was at his desk at 1.30 and had phoned after putting away his belongings.  The claimant was annoyed that he was being asked to complete the lateness form.  He asked to see Karen Duckett.  He saw her and explained the situation.  She also asked the claimant to complete the lateness form and he refused.  The claimant accepted that he was argumentative but did not accept he was aggressive.  He said, using his own words, that he was “sticking up for myself.”

8.	Karen Duckett sent an email to Human Resources setting out the situation and seeking advice.  In this she said 

“Should we go to an investigation, this coupled with the detail below and his lateness, he has been in to see me absolutely raging as the d/m had spoken to him and advised as he was five minutes late this would be recorded as unjustifiable lateness–what would you advise?”

9.	Karen Duckett conducted an investigatory meeting with the claimant on 11 September 2008. Also present was Karen Quinn a duty manager. On 12 September 2008 Karen Duckett sent an email to HR setting out a summary of the investigatory meeting.  It is the only record available of that meeting.  In the email Karen Duckett commented 

“I also discussed with Mo his conduct on several occasions where the d/manager had reported him to be very argumentative, this I had also observed on 5 September when Mo came in to speak to me about the above lateness on 5 September.”
	
10.	Ms Duckett accepted in evidence that the only incidents of argumentative or aggressive conduct were on 5 September 2008 with the duty manager and then with Miss Duckett herself.  There were no other reports that she was able to refer to.  

11.	The email went on to state 

“Mo was very passionate about the fact that he was of Meditterean [sic] descent and advised that they are expressive and passionate people.”  

12.	The claimant was then invited to a disciplinary meeting on 21 November 2008.  This was also conducted by Miss Duckett, this time in London.  Also present were Shona Fitzsimons from HR and Brian Hubah who was the union representative of the claimant.  There was no discussion of the aggressive or argumentative conduct of the claimant at this meeting.  Miss Duckett confirmed that she would not take the alleged lateness of the 5 September into account.  She informed the claimant that she was dismissing him with immediate effect.  Her decision was based on the “late 2” letter, the subsequent unjustifiable lateness of the 28 August 2009 and the final written warning for conduct matters on the claimant’s file.   

13.	The claimant appealed the decision to dismiss. The appeal was dealt with by Mr McKenzie, General Manager for the UK and Europe. The appeal hearing was on 15 December 2008.  Present were Mr McKenzie, Kara Perceval, from HR, the claimant and Mr Hubah.  At the appeal meeting Mr McKenzie said he would make further investigations in relation to submissions made by the claimant and Mr Hubah and the parties agreed he would deliver his findings in writing.  After the appeal meeting Miss Duckett was contacted by Kara Perceval by email with an attached “draft outcome matrix.”  This document set out the content of the appeal hearing.  Miss Duckett was asked to specifically advise if there was a formal reporting procedure for employees’ arrival to shift.  She was also asked if other staff at Belfast had been treated in the same way as the claimant relating to their lateness and disciplinary sanctions.  Miss Duckett was also asked if she had any other comments to make on the matrix.  Miss Duckett advised Miss Perceval that the lateness and disciplinary procedure was applied consistently.  Miss Duckett in her evidence accepted that this assertion was incorrect.    

14.	Two other Belfast employees had lateness records. Paula Scott had three instances of unjustifiable lateness in a 12 month period in 2005.   She did not receive a “late 2” letter and no investigative or disciplinary action was taken.  Miss Duckett was not the manager dealing directly with any of the lateness instances.  

15.	Amanda Beattie had four instances of unjustifiable lateness from August 2006 to May 2007.  A “late 2” letter was issued after the last instance.  No investigative or disciplinary action was taken.  Again Miss Duckett was not the manager dealing directly with any of the lateness instances.  

16.	The outcome of the appeal was sent to the claimant on 13 January 2009.  The decision to dismiss was upheld.  Enclosed was a matrix setting out the findings of Mr McKenzie.  The matrix records issues and outcomes. As part of the outcome on the issue of severity of sanction, Mr McKenzie recorded the various latenesses of the claimant in June 2007, January 2008 and April 2008 and the “late 2” letter.  He then went to record 

“Subsequent to this you were a further 60 minutes late on 28 August 2008 and then five minutes on the 5 September 2008, of which both occasions were unjustified. Therefore in the rolling year this meant that you had four occasions of lateness (the 2007 lateness had fallen off), all of which were unjustified.”
		
17.	   Mr McKenzie also referred to the final written warning on file, and observed that lateness and the subject of the final written warning were conduct issues.  As there was already a conduct sanction on his file it was appropriate to build on top of the current sanction.  He found the extent of the lateness (sixty minutes) to be material. 

18.	   Mr McKenzie in reaching his conclusions relied on the information provided by Miss Duckett.  He accepted in his evidence that the process could have been managed better.   He did not however believe he would have come to a different conclusion.   He did not read the email of 12 September 2008 which was the only record of the investigatory meeting.  Mr McKenzie accepted that had he read the email he would have been concerned about the decision to dismiss. 

19.	   Mr McKenzie acknowledged that the lateness of 5 September had not been taken into account by Miss Duckett in relation to her decision to dismiss.  He contended that he had not taken that lateness into account despite having recorded that lateness in his outcomes.  He told the tribunal that the reference should not be there.  However he subsequently in his matrix refers to four occasions of lateness and in his conclusions does not specifically exclude any consideration of the 5 September 2008. The tribunal finds that Mr McKenzie took the lateness of 5 September into account when reaching his decision.   

20.	   The claimant further appealed Mr McKenzie’s decision to Mr Dominic Paul who is the director of ground services of the respondent. The tribunal did not hear any direct evidence relating to this final appeal. Mr Paul did not appear.  However the tribunal did have, by agreement, the final appeal outcome letter of 27 February 2009.  It is not normal for the same manager to conduct the investigatory and disciplinary hearings.  Miss Duckett told the tribunal the reason was that the duty manager and supervisors were under threat of redundancy at the time and she did not want to increase their stress.  However Karen Quinn one of the duty managers conducted the investigatory meeting along with Miss Duckett.  Mr Paul in his letter to the claimant on 27 February 2009 gave a different reason as to why the same manager carried out both the investigatory and disciplinary meetings. He said that Belfast was a small station and had limited resources.  Miss Duckett accepted in her evidence that it would have been better that she had not conducted both the investigatory and disciplinary hearings.  She said that she conducted the disciplinary hearing because she perceived that to be her role.  

21.	   Mr Paul also refers to four incidents of lateness rather than three.  He stated that this would have led to a disciplinary meeting for any individual who had been late for work on that number of occasions.  The tribunal find that Mr Paul also took into account the lateness of 5 September 2008 and erroneously believed that there was a consistent application of the lateness policy in Belfast. 

22.	    Miss Fitzsimons, a HR representative of the respondent gave evidence relating to the lateness policy. The policy was not written: it was described as custom and practice. The implementation of the policy historically had not been consistent and guidelines were reviewed and training courses were provided to managers in early 2007. There was no evidence that anyone from Belfast had attended such training. It was also accepted that no further guidelines or memos were issued to the staff at Belfast in relation to the lateness policy.  

23.	   Miss Fitzsimons also confirmed that it was unlikely that an employee with three instances of lateness would be dismissed.   In this case however there was also a final written warning on the claimant’s file on conduct issues.  Miss Fitzsimons was at the disciplinary hearing with Miss Duckett.  She had not seen the email of 12 September 2008 relating to the investigatory meeting.  If she had, she would have advised Miss Duckett not to conduct the disciplinary meeting. Miss Fitzsimons also confirmed that an investigatory or disciplinary meeting could be conducted by a supervisor or a manager.  There were approximately 30 staff in Belfast of whom six were supervisors and six duty managers in addition to the airport manager Miss Duckett.   

24.	   The claimant’s final written warning related to conduct matters.  The hearing was conducted by the respondent’s Glasgow airport manager.  The claimant did not appeal this decision.  

The Law

Race Discrimination

25.	  Under the terms of the Race Relations (Northern Ireland) Order 1996 a person discriminates against another if on racial grounds he treats that other less favourably than he treats or would treat other persons.  Racial grounds mean colour, race, nationality or ethnic or national origins.  The claimant must show that he has been treated less favourably than the person or persons with whom he compares himself.  The comparator, actual or hypothetical, should share the characteristics of the claimant which are relevant to the case.  The claimant must also establish that any less favourable treatment was by reason of the proscribed ground.  Unreasonable treatment does not of itself give rise to an inference of unlawful discrimination.  The Court of Appeal provided guidance on how to apply the burden of proof in discrimination cases in Igen v Wong [2005] EWCA Civ 142.  The claimant must show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination.  Once the tribunal has so concluded, the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination. 

26.	The Court of Appeal in the case of Madarassy v Nomura International PLC [2007] IRLR 246 said

 “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probability 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. “

27.	In the case of Laing v Manchester City Council [2006] IRLR 748 Mr Justice Elias said:–
“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter.   It is not improper for a tribunal to say in effect ‘there is an nice 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 behaved as he did and it has nothing to do with race.”

28.	 In the recent decision of the Northern Ireland Court of Appeal in the case of Nelson v Newry and Mourne District Council [2009] NICA24 Lord Justice Girvan referred to the Court of Appeals decision in Madarassy and then said:–

“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 adequate explanation, that the respondent has committed an act of discrimination.”  

29.     In Curley v Chief Constable [2009] NICA 8 Coghlan 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.

Unfair Dismissal

30.	   Under Article 130 of the Employment Rights (Northern Ireland) Order 1996 the respondent must show that there is a potentially fair reason for the dismissal.  In this case the reason is conduct.  The tribunal should also determine whether the employer has acted reasonably in all the circumstances in dismissing the claimant.  The tribunal must not substitute its own view for that of the employer.  

31.	   Article 130 [4] provides as follows:–

“Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)–

a.	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 

b.	shall be determined in accordance with equity and the substantial merits of the case. “ 

Tribunal’s Conclusions  

Race Discrimination      

32.	   The tribunal, in transferring the burden of proof, must be satisfied that there are facts which could lead it to find that there has been unlawful race discrimination.  The claimants suggested comparators are Paula Scott and Alison Beattie. The tribunal does not consider that they are appropriate comparators.  Their cases were dealt with at an earlier time before the respondent reviewed its approach to lateness issues.   Neither of the comparators were dealt with by Karen Duckett.  Neither had a final written warning for conduct on their files.  

33.	The claimant did not clearly set out the basis of his claim.   He asserts that he was treated differently because he defended himself argumentatively and passionately. These, he says, are racial characteristics of people from Mediterranean origins.  There are considerable difficulties and dangers in using such a racial stereotype to found a claim for race discrimination. The tribunal received no credible evidence to make a finding that a particular ethnic group has such characteristics.  There was no suggestion that race played any part in the claimant’s final written warning, or indeed in the finding of unjustifiable lateness on the three occasions in January April and August 2008.  In constructing a hypothetical comparator, the tribunal considers that such a comparator will be someone of a different race, colour or national origin to the claimant, employed at Belfast City Airport, and working under the management of Karen Duckett.  The comparator would have the same lateness records as the claimant and the same final written warning on file, at a time when the respondent was operating the lateness policy in the same way, and also who had the same passionate and expressive character as the claimant.  The tribunal finds that such a person would not have been treated differently to the claimant. It may well be that Karen Duckett found the claimant’s behaviour on 5 September 2008 to be argumentative and that he was “raging” but we do not consider she felt like that because of his race. Similarly the tribunal does not draw any inference of race discrimination from Miss Duckett’s role in the dismissal process. In the circumstances we do not consider that it is appropriate to transfer the burden of proof. The claimant’s claim for race discrimination therefore fails and is dismissed. 

	Unfair Dismissal 

34.	   The claimant was dismissed for a potentially fair reason, namely misconduct. It is clear that the process was flawed.  Indeed this was expressly accepted by Mr McKenzie and by Miss Duckett in giving their evidence.  

35.	   The tribunal does not accept that it was impossible to have different managers hearing the investigatory and disciplinary meetings in this case.  The tribunal was given conflicting reasons for why the same manager required to take both.   It is clear that no adequate investigation of how other employees were dealt with for lateness was conducted at any stage. The appeal conducted by Mr McKenzie was flawed.  He did not see the only record of the investigatory meeting, namely the email of 12 September 2008.   He told the tribunal that if he had, he would have been concerned about the decision to dismiss.  He was wrongly advised of the way other employees have been treated for lateness.  He took into account the lateness of the 5 September 2008 although that had expressly been left out of account by Miss Duckett in her original decision to dismiss.   

36.	   The tribunal did not hear from Mr Paul, or anyone else for the respondent who dealt with the final appeal.  However he also took into account the lateness of the claimant on 5 September 2008 and appears unaware of the different treatment of others for lateness.  In those circumstances and for those reasons, the tribunal concludes that the process was fundamentally flawed and the employer did not act reasonably in dismissing the claimant.  The tribunal finds that the claimant was unfairly dismissed. 

Compensation

37.	   The parties have agreed the basic award of £1485.00.  They have also agreed compensatory loss to date of hearing at £6000.00.  The loss of statutory rights is agreed at £500.00.   

      Future Loss

38.	   The tribunal is satisfied that the claimant took appropriate steps to mitigate his loss in a harsh economic climate.  We consider that a further 12 months for future losses is appropriate.  From this should be deducted the benefits he has received in the Republic of Ireland, and for which there is no recoupment requirement.  This benefit is in the sum of €204.00 per week which the tribunal has calculated as £183.60 per week.  We therefore assess the future loss in the following manner.

Agreed 12 month figure					                           £15114.24
	    Less 52 × £183.60	                                                                         £9547.20        
											        £5567.04
The total compensatory loss is therefore £11567.04. 

Deductions

39.	   The tribunal considers that there should be a further adjustment in the sum on the basis of a “polkey” reduction.  The tribunal considers that the decision to dismiss may have been reached in any event had a fair and proper procedure been followed.   In reaching an appropriate percentage figure to reflect that chance, the tribunal took into account in particular the evidence of Mr McKenzie and Miss Fitzsimons.  Mr McKenzie said he would have been concerned about the decision to dismiss had he been aware of the email of 12 September 2008.  Miss Fitzsimons similarly had not seen that email, and had she seen it, she would have had concerns.  Mr Paul did not give evidence, but his conclusions appear to be based on similarly flawed information.  Notwithstanding this, the claimant had a final written warning for conduct matters and three instances of unjustifiable lateness in the preceding twelve month period.  Mr McKenzie also said that whilst he accepted the shortcomings in the process, he believed he would have arrived at the same conclusion.  In light of this, the tribunal assessed the likelihood that the claimant would have been dismissed if a proper procedure was followed, as 35%.  Accordingly, the compensatory award should be reduced by 35% to give a figure of £7518.58.

40.	   The tribunal also determines that the claimant contributed to his dismissal.   He had received warnings regarding his lateness and of the consequences of lateness.  He knew that he had a final written warning on file, again with warnings of the consequences of further conduct issues.  He accepts that his lateness on 28 August 2008 of some sixty minutes was unjustifiable and came less than three months after his final written warning.   For this reason, the tribunal determines that a further reduction in the compensatory element of the claimant’s loss of 25% is appropriate to give a figure of £5638.94.

41.	Total compensation therefore is as follows: 
	Basic award:								          £1485.00
	Compensatory award: 							          £5638.94
	Loss of statutory rights: 						            £500.00
	Total:                                                                                                        £7623.94
Interest

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

	
Chairman:

Date and place of hearing: 12–15 October 2009, Belfast		

Date decision recorded in register and issued to parties: