THE INDUSTRIAL TRIBUNALS  

CASE REF:    1709/12  

CLAIMANT:			Sergei Zurkov

RESPONDENTS:		1.	Ray McCoy
2.	HUHTAMAKI (Lurgan) Ltd

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal and of unlawful discrimination on racial grounds are dismissed.

Constitution of Tribunal:

Chairman:		Mr J V Leonard

Members:		Mrs T Kelly
			Mr W Irwin

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Ms Karen Moore of EEF Northern Ireland.

THE CLAIMS

1.	The claimant claimed unfair dismissal and unlawful discrimination on racial grounds by claim dated 4 September 2012.  Initially there were three respondents joined to the claim, these being, firstly, Ray McCoy (“Mr McCoy”), secondly, HUHTAMAKI (Lurgan) Ltd (“Huhtamaki”) and, thirdly, Premier People Recruitment Agency (“Premier”).  A response dated 10 October 2012 was made to the claimant’s claims on behalf of Mr McCoy and Huhtamaki by EEF Northern Ireland.  A response dated 19 November 2012 was made on behalf of Premier by Miss Tanya Vittorio of Premier.  A Case Management Discussion was held on 7 January 2013.  It was noted, as a material issue, that the claimant was employed by Premier and that the claimant’s services were made available to Huhtamaki under contractual arrangements made between Premier and Huhtamaki.  The parties were agreed that the claimant ceased to work at the factory (being the material place of employment) because Mr McCoy asked Premier to remove the claimant.  The claimant then contended that Mr McCoy’s request to Premier to remove him was a racist request and that Mr McCoy preferred people “from here” (in other words British or Irish people).

2.	Issues were identified therefrom: firstly, was the request on Mr McCoy’s part to Premier understandable or appropriate.  Secondly, if not, was the making of that request influenced, to any significant extent, by the fact that the claimant was not Irish or British?

3.	After the conclusion of the CMD the claimant wrote to the tribunal to inform that he had withdrawn his claims against Premier and by order made by a chairman of the tribunal dated 22 January 2013 Premier was dismissed as a respondent to the proceedings.  Accordingly, the tribunal in the matter was tasked with making a determination of the claimant’s respective claims of unfair dismissal and/or discrimination on racial grounds against the remaining respondents, Mr McCoy and Huhtamaki.

4.	At the CMD the tribunal had directed witness statements and these witness statements were provided by the claimant on his own behalf and were provided on behalf of the respondents by Mr McCoy, who was a Process Controller in the Despatch Department of Huhtamaki, Graham Morwood who was a Shift Manager in the Production Department of Huhtamaki, Maurice McShane who was a Team Leader in the Production of Huhtamaki and by Rosie Lavery, who was HR Officer with Huhtamaki.  The tribunal read the witness statements at the outset of the matter and the witnesses were subject to cross-examination and re-examination.  The tribunal received into evidence a bundle of documents submitted on behalf of the respondents, by agreement, and also the bundle of witness statements.  In the course of the oral evidence, the tribunal also sought some clarification from the various witnesses in respect of a number of issues.

THE TRIBUNAL’S FINDINGS OF FACT

5.	In consequence of the oral and documentary evidence adduced in the case, the tribunal determined upon the balance of probabilities the following material facts:-

5.1	The claimant is of Russian national origins.  He was educated at high school from 1986 to 1997 in Estonia and then he received his third level education from 1997 to 2001 at University “Lex” in Estonia, where he studied law.  According to the information available from the claimant’s curriculum vitae, the claimant’s first job in Northern Ireland was in June 2005 where he was a Store Assistant in Tesco Stores, seconded by the Adecco Agency.  That post lasted until April 2006.  From April 2006 to October 2008 the claimant was a Warehouse Operative in PRM Group Limited.  The tribunal is uncertain as to whether or not that latter was direct employment or via an agency arrangement.  From October 2008 to November 2008 the claimant was a Warehouse Operative in Tradeteam Limited.  Again, the tribunal is uncertain if an agency arrangement applied to that employment.  From December 2008 to January 2009 the claimant was a Production and Warehouse Operative (precise status and location were undefined).  From March 2010 to October 2010 the claimant was a Warehouse Operative via the agency Industrial Temps, Lisburn.  From October 2010 to July 2011 the claimant was a Warehouse Operative with Premier.  From July 2011 to October 2011 the claimant was a Warehouse Operative with Grafton Recruitment, Lisburn.  From November 2011 (end date not specified) the claimant was a Warehouse Operative with Brook Street Agency, Belfast.  From March 2012 (end date not defined) the claimant was a Distribution Operative via Diamond Recruitment Agency, Belfast.  The claimant indicated that he had attended the following courses:-

			“Food Hygiene Awareness” October 2006, 
			“Manual Handling” November 2006,
			“Level of English (ESOL – 3)” April 2008, 
			“PPT (Powered Pallet Truck) Licence” April 2008 and
			“Counterbalance and Reach Truck Licence” April 2011.

5.2	The claimant entered into what is known as a “Mobile Worker Agreement” with Premier which was signed by him and dated 19 July 2012.  The claimant was seconded by Premier to Huhtamaki, commencing on either the 22 or 23 July 2012.

5.3	Huhtamaki had prepared a job description for a job as a Despatch Operative dated June 2012, a copy of which was provided to the claimant as part of an induction process with Huhtamaki.  The induction by Huhtamaki included also the provision of an Equal Opportunities Policy, a Grievance Policy and a Harassment Policy.  All of these policies were in writing.  The claimant received on job training in the operations required to be performed by him at the outset of this engagement with Huhtamaki.  The tribunal noted and accepted as correct evidence on behalf of the respondent that a Mr Warren McClatchey on the first day provided training and induction to the claimant concerning the physical operation of the reach tuck and of other associated operations required to be performed by him.

5.4	The claimant did not deny the suggestion made by the respondents that he had made errors and mistakes in the operation of the workplace equipment.  When examining the facts of this issue, the tribunal noted the evidence from the respondents’ witnesses, including Mr McCoy, Mr Morwood and Mr McShane.  The claimant’s own evidence was that he did, without doubt, make mistakes which caused pallets of assembled goods to fall over.  However, the claimant endeavoured, variously, to suggest that this was as a result of lack of adequate training and supervision and also he maintained that these problems had only subsisted for one or two days, or in another part of the claimant’s evidence, for up to two weeks.  However the claimant resisted the suggestion that the problems subsisted further than that and indeed throughout the five weeks duration of the work assignment.  Examining the evidence of the parties which was at variance upon these issues, the tribunal preferred the evidence of the respondents’ witnesses as being more cogent and credible than the evidence of the claimant.  Consequently the tribunal’s finding is that the claimant’s conduct of his assigned work tasks and his level of skill, care and attention to the management of the equipment entrusted to him, notwithstanding his declared previous experience in forklift truck driving, was erratic and his driving and management was observed at times to be not just careless, but also dangerous, by the respondents’ witnesses.

5.5	Further to that, leaving aside the potential risk to personnel, part of the production of the working operations was on occasions damaged when the pallets fell as a result of the claimant’s negligent operation of the equipment.  Indeed, part of the production was rendered useless and had to be destroyed as a consequence.  This conduct by the claimant caused concern on the part of Mr McShane and Mr Morwood.  Mr McShane, as team leader in the Production Department, witnessed problems with the claimant’s work.  He endeavoured to assist the claimant, but saw no improvement in real terms.  He brought some of these issues to the attention of Mr McCoy.  Mr McShane had for example witnessed the claimant pushing the forks of his reach truck too far forward causing the pallet to tip backwards into what was called the “robot area”.  This incorrect operation had the knock-on affect of hitting the pallets which had not yet been wrapped and they would also fall, causing damage to the product and causing the consequence that production had to stop.  Mr McShane had also noticed the claimant using what was know as the “robot screen” to move parts forward manually, but he would then fail to take them off the production line, resulting in a build up of product which would cause the robot to stop.  Mr McShane had endeavoured to explain the correct procedure to the claimant, but the claimant had continued to make these errors.  Mr McShane declared in his evidence, which the tribunal found to be credible and not expressly controverted, that in his 18 years with the respondent company the claimant had been the poorest quality Dispatch Operative he had ever worked with.

5.6	Mr Morwood, as Shift Manager in the Production Department, who had worked with the company for 26 years, witnessed the claimant knocking over pallets of product.  He reported to Mr McCoy about the damage the claimant was causing which had resulted in scrapped product and concerning the production having to be suspended.  He also witnessed the claimant driving his reach truck too fast and he voiced his concerns about these matters to Mr McCoy.  He noted that the claimant’s quality of work did not improve despite Mr McCoy's endeavours to seek an improvement.

5.7	Mr McCoy’s largely uncontroverted evidence was of experiencing significant concerns regarding the claimant’s performance, notwithstanding endeavours to ensure proper training and induction, which concerns included the claimant driving around corners too fast causing product to fall off the forks of the truck, and knocking pallets over in the robot area and also there were other issues of concern reported to Mr McCoy.  Mr McCoy endeavoured to assist the claimant to address these issues of concern and to help him improve.  Mr McCoy found the claimant resistant to accepting responsibility and resistant to endeavouring to amend his work performance.  Eventually, after having discussed matters with Huhtamaki’s HR Department, the decision was taken by Huhtamaki to end the assignment with effect from 30 August 2012.  Mr McCoy emphatically specifically denied the allegation which had been made by the claimant that Mr McCoy had stated to him at the end of the shift on 30 August 2012, being the claimant's last day, the words, “I can’t communicate with you at all and don’t understand you”.  The claimant had ascribed a racial motivation to these words and the claimant had indicated that this was linked to the termination of the assignment, this termination being on racial grounds, so the claimant asserted.  As regards any evidence of the claimant's allegation, the tribunal noted that there was no corroboration of the claimant’s assertion that these words were spoken by Mr McCoy to him.

5.8	Huhtamaki’s HR Officer, Rosie Lavery, gave evidence, which was accepted as credible by the tribunal, that she had taken the claimant through HR induction at the commencement of the assignment, that the claimant had received a written copy of the company’s Equal Opportunities Policy, the Harassment Policy and Procedure and the Grievance Procedures.  As regards the claimant's capacity to understand any documentation, written in English, the claimant's own evidence was that he had a very good comprehension of written English and therefore no issue arises on that account.  Rosie Lavery indicated to the tribunal that Huhtamaki had never received a grievance or any other form of complaint from the claimant throughout the course of his placement with Huhtamaki.  She indicated that she had spoken with Premier who had confirmed that no complaint was lodged with them by the claimant at any stage regarding his placement with Huhtamaki.  Rosie Lavery gave an account to the tribunal in her general evidence concerning the process of termination of the assignment with Premier in connection with the claimant.

THE APPLICABLE LAW

6.	The tribunal does not intend to recite the law respect of unfair dismissal in this decision, for the reasons stated below.  The law applicable to the claimant's claim of unlawful race discrimination in this matter is set forth in the Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”).  Article 3 (1 A) of the 1997 Order provides, in respect of direct race discrimination, that a person discriminates against another if on racial grounds he treats that other less favourably than he treats or would treat other persons.  Article 3 (3) of the 1997 Order provides that a comparison of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.  Article 5 of the 1997 Order specifies that “racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins and “racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.  Thus the statutory provisions require the claimant to compare his or her circumstances with an actual (identified normally by reference to name and circumstances) or a hypothetical comparator.  In both these cases the relevant circumstances of the comparator are to be the same or not materially different to the circumstances of the claimant.

7.	Article 52A of the 1997 Order makes provision regarding the burden of proof.  That Article provides that where, on the hearing of a complaint, the complainant proves facts on which the tribunal could, apart from that Article, conclude in the absence of an adequate explanation that the respondent (a) has committed such an act of discrimination or harassment against the complainant, (b) is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment 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.  The Northern Ireland Court of Appeal in McDonagh & Others  v  Samuel John Hamilton Thom t/a The Royal Hotel Dungannon [2007] NICA 3 stated that, when considering claims of discrimination, tribunals must have regard to the burden of proof.  The correct approach to the burden of proof in all discrimination claims is that set out in the annex to the decision of the English Court of Appeal in Igen  v  Wong [2005] 3 All ER 812.  In regard to a case relating to sex discrimination, but equally applicable to the claim for unlawful racial discrimination as in this case, Igen  (in its most very basic terms) provides:-

•	It is for the claimant who complains of unlawful discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of the relevant statutory provisions (‘such facts’).

•	If the claimant does not prove such facts he or she will fail.

•	Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the prohibited ground, then the burden of proof moves to the respondent.
•	
It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated, as having committed that act.

•	To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground.

•	That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it has adequately discharged the burden of proof on the balance of probabilities and that the prohibited ground was not a ground for the treatment in question.

8.	The application of the burden of proof was considered in Madarassy  v  Nomura International PLC [2007] EWCA Civ 33.  Mummery LJ (at paragraph 56) stated:-

“The court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination.  The bare fact 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 probabilities, the respondent had committed an unlawful act of discrimination.”

“Could conclude” will include evidence in support of the allegations of unlawful discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It will also include evidence adduced by the respondent.

9.	The statutory provisions thus require the claimant to compare his or her circumstances with an actual or hypothetical comparator whose relevant circumstances are the same or are not materially different from those of the claimant.  Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator.  However it is open to the tribunal to focus on the reason for the claimant’s treatment.  As Lord Nicholls put it in Shamoon  v  Chief Constable of the RUC 2003 IRLR 285, “Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."

THE TRIBUNAL’S DECISION

10.	In this case the claimant has made claims of unfair dismissal and of unlawful discrimination on grounds of race.  The unfair dismissal claim can be dealt with simply by stating that the only employer of the claimant in this matter was Premier.  Premier as a respondent has been dismissed from the proceedings, by agreement of the claimant.  Neither the remaining respondents, Mr McCoy nor Huhtamaki, were employers of the claimant.  Accordingly there is no statutory basis for the unfair dismissal claim to succeed.  The claim of unfair dismissal is thus dismissed by the tribunal, by unanimous decision, without further order.

11.	Regarding the claim of unlawful discrimination, in the course of the hearing the tribunal sought to explain to the claimant some basic provisions in respect of the law of unlawful discrimination.  The tribunal took this course for the reason that the claimant was unrepresented and was pursuing his claims in what was to him an unfamiliar jurisdiction, notwithstanding his third level legal education in Estonia.  In respect of the issue of statutory comparators for the purposes of discrimination, the claimant explained to the tribunal that he did not seek to identify any specific named and identified comparator but, rather, that the claimant sought to rely upon a hypothetical comparison.  He did not endeavour to define and to specifically construct such a hypothetical comparator to assist the tribunal, however the tribunal will endeavour to do so, as it is required to do.  The hypothetical comparator in this matter would be a person who was not of the claimant’s race or ethnicity or country of origin, being a person from Northern Ireland or from the Republic of Ireland or from the remainder of the UK, whose situation was otherwise the same or not materially different to that of the claimant.  Such a hypothetical comparator would be a person who had been seconded from an employment agency to the respondent company, Huhtamaki, and whose conduct and management of any assigned work tasks caused similar difficulties or concerns as far as management was concerned.

12.	Examining the facts established in the matter, the tribunal’s task was to determine, as a primary issue, whether such a comparator would have been treated in the same or in a different manner, and indeed in a more favourable manner, to the treatment that was accorded to the claimant by Huhtamaki.  As mentioned above, if the claimant fails to establish facts from which the tribunal could conclude unlawful discrimination, in the absence of any explanation from the respondents, the claimant’s claim of unlawful discrimination shall fail.

13.	Looking at matters of evidence in order to establish the relevant facts in the matter, the tribunal prefers the evidence of the respondents’ witnesses and the tribunal is quite certain that full and proper training and induction was provided to the claimant, who was also provided with a copy of the company’s policies and procedures.  Having been so provided with this documentation, the tribunal is reasonably certain from the evidence of the claimant himself, who the tribunal accepts had a good command of English, that the claimant had no difficulty whatsoever in reading and in comprehending the content of these company policies.

14.	The tribunal accepts the evidence of the respondents’ witnesses as being accurate and credible (and at least to a degree uncontroverted by the claimant as far as the early period of the engagement was concerned) that the claimant’s work performance was quite inadequate.  He was responsible for conducting work tasks and driving the fork lift truck in a manner which not only caused damage to product and delayed production but which was also regarded as being at times dangerous.  Endeavours were made by the respondents’ operatives and by more senior management to train and to assist the claimant to overcome these difficulties.  However, for whatever reason the claimant failed to improve his performance and to take heed of what was being instructed.  The tribunal does not accept the claimant’s assertion that any difficulties were only at the start of the assignment period and that these did not continue beyond the second week.  From the evidence of the witnesses and assessing relative credibility the tribunal’s determination is that these difficulties continued throughout the assignment period and that these legitimate and well-founded concerns cumulated in a decision being taken, for good reason, by management to terminate the assignment.

15.	The tribunal does not accept, from the evidence, that the words as alleged to be spoken by Mr McCoy to the claimant where actually spoken.  The tribunal discerns no racial motivation whatsoever underlying any treatment accorded to the claimant.  Notwithstanding the provision of, for example, a grievance policy the tribunal notes that at no stage throughout the period of the engagement did the claimant ever attempt to raise a grievance or to request further training or assistance.  The tribunal is certain from the general evidence that a grievance would have been dealt with appropriately if it had been made by the claimant and that further training or assistance would have been forthcoming if it had been requested by the claimant.  When asked by the tribunal why he had indeed not pursued a grievance, the claimant's only response was that there would have been no point.  The company, Huhtamaki, in the tribunal’s view, had terminated the assignment for good cause, having afforded a reasonable period of five weeks for an improvement.  Looking at everything, the tribunal’s assessment of the claimant’s claim of unlawful discrimination is that the discrimination claim is entirely and completely devoid of any merit whatsoever.

16.	The claimant has not in any manner established facts from which the tribunal could conclude, in the absence of an explanation from the respondents, that there has been unlawful discrimination upon the facts of the case.  Accordingly the tribunal’s unanimous decision is that the claimant’s claim is dismissed, without further order.

Chairman:

Date and place of hearing:    15 April 2013, Belfast.

Date decision recorded in register and issued to parties: