THE INDUSTRIAL TRIBUNALS

CASE REFS:	491/16
1114/16

CLAIMANT:			Jonathan Etumusei

RESPONDENT:		NSL Ltd

DECISION 
The claimant’s claims of race discrimination and unlawful deduction from wages are dismissed.

Constitution of Tribunal:
Employment Judge Murray
Mrs E Gilmartin
Ms E McFarline

Appearances:

The claimant represented himself.
 
The respondent was represented by Mr Hartley, Solicitor of Weightmans LLP.

THE CLAIM

1.	The claimant’s claim was for race discrimination in the form of direct discrimination, harassment and victimisation.  He also claimed for unlawful deduction from wages in relation to payment of company sick pay.

THE ISSUES

2.	The issues before the tribunal were therefore as follows:

(1)	Was the claimant victimised on grounds of race?  The protected act was the claimant bringing a claim to the tribunal which settled on 8 June 2015.

(2)	Was the claimant directly discriminated against on grounds of his race and/or was the claimant harassed on ground of race in relation to: the disciplinary process following the Bradford Score; in that his health and safety concerns were ignored; was he harassed in an encounter on 19 September 2015 with Mr Patterson his Team Leader?;

(3)	Was the refusal to extend the period for payment of sick pay at full rate of pay an act of discrimination on grounds of race and/or an unlawful deduction from wages?

SOURCES OF EVIDENCE

3.	The tribunal had written statements from the claimant and his witness, Mr McAllister, together with their oral evidence.  The tribunal had witness statements and oral evidence from the following witnesses for the respondent: Mr Patterson, the claimant’s Team Leader; Mrs Wright, the Divisional Manager who dealt with the appeal against the outcome of the grievance; Ms Jess, the Operations Manager who dealt with the appeal against the disciplinary penalty.  The tribunal had regard to the claim and response forms and the documents to which it was referred during the hearing.

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

7.		Harassment is defined at Article 4A of RRO.

	“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-paragraph (a) or (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it could 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 related to race, which had the required purpose or effect.  If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to his race or that it did not have the alleged purpose or effect.

9.	It is not enough for a claimant to show a difference in status and a difference in treatment but he must show something more in order that the tribunal could conclude that any detrimental acts were because of her race or sex.  This is the import of the Madarassy decision and the following appellate decisions illustrate how tribunals should approach the shifting of the burden of proof in these cases.  

10.	The Court of Appeal in the case of Nelson  v  Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof.  The court stated:

“22	 The Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

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

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

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

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

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

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

“(71)	There still seems to be much confusion created by the decision in Igen  v  Wong.  What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

 (73)	No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure  v  Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.
...

 (75)	The focus of the Tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a Tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

(76)	Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling tribunals in every case to go through each stage.”

FINDINGS OF FACT AND CONCLUSIONS

13.	The tribunal found the following facts and reached the following conclusions having applied the legal principles to the facts found.  It is important to note that this decision does not record all the competing evidence, but records the primary facts found after an assessment of all of the evidence given by both sides. 

14.	The claimant is from Nigeria and has lived in Northern Ireland for some years.  The claimant claims that any alleged adverse treatment was on grounds of his colour and/or his ethnic origins.

15.	The claimant started his employment with the respondent on 20 May 2013 and continues to be employed by them as a Traffic Attendant.  His job involves patrolling in a specified district and handing out traffic tickets as required.  It is clear that this job involves an element of confrontation with members of the public on an intermittent basis but it was common case that the claimant had suffered a series of racially-motivated adverse incidents involving members of the public when he was going about his duties.  A number of those incidents resulted in police action against the perpetrators and the claimant was off work at several points with the after-effects of such racially-motivated incidents.

16.	The respondent had an absence management policy which used the Bradford Score as a guide for managers as to whether an employee triggered disciplinary action and the level of penalty which might be applied to that employee because of their level of absence.  

17.	The respondent also had a sick pay scheme which allowed for pay at the full rate of pay for the first six months of absence in a rolling four-year period.  Once an employee exhausted his six months of full pay in four years, his pay would drop to half-pay for a further six months.

18.	The claimant’s level of absence therefore resulted in consequences for him on two fronts, namely, firstly, that he triggered disciplinary action and, secondly, that his pay dropped to half pay because he had exhausted his six months’ sick pay at the full rate of pay.

Bradford Score

19.	The claimant conceded that the actual triggering of the disciplinary process because of his Bradford Score did not amount to discrimination and, further, he agreed his scores.

20.	The claimant’s level of absence was such that he triggered disciplinary action.  When his absence was assessed using the Bradford Score, managers decided in accordance with policy to mitigate (in other words to discount) any absence which resulted from the on-street racial incidents.  Even when those absences were discounted, the claimant was still in a position where he triggered disciplinary action.  The contention in this case related to 1½ days which the claimant took off work following a migraine at work on 15 September 2015.

21.	It was the claimant’s case that he had to go home with a migraine because he suffered from migraines triggered by the glare from his handheld computer.  The claimant’s case was that he went home early and therefore took half a day’s sick leave.  His claim was that his manager, Mr Patterson rang him that day to see if he would be in work the next day and when the claimant said that he probably would, the claimant stated that Mr Patterson insisted that he should take the next day off.  This meant that he had 1½ days’ sick leave instead of half a day and it was the claimant’s case that this was an adverse act by Mr Patterson against him aimed at ensuring he triggered disciplinary action.

22.	It was however common case between the parties that the absence which triggered the disciplinary action was the half day’s absence.  Whether or not the full day’s absence was discounted made no difference to the triggering of the disciplinary action.

23.	In accordance with the respondent’s procedures, the claimant was given a recorded verbal warning in relation to his level of absence.

24.	We find that the claimant has not shown that he suffered detriment at all in this regard, given that the extra day’s absence made no difference to the triggering of the disciplinary action.  If we are wrong in this and that it did amount to detrimental treatment, we find that there was no evidence of less favourable treatment.  We so find because there was no evidence that someone who was not of the claimant’s race or ethnicity would have been treated in a different way.

25.	The respondent ignored 120 days’ absence, in accordance with their policy that absence for the purposes of disciplinary action should be ignored if it results from on-street incidents.  	It appears that the reason for the policy was that there was a recognition that the job can entail confrontation with the public.

Incident – 19 September 2015

26.	It was the claimant’s case that when he received the letter inviting him to a disciplinary hearing about his Bradford Score, he went in to ask his Team Leader Mr Patterson what the letter was about.  It was the claimant’s case that Mr Patterson proceeded to shout at him, to tell him to get out of his office and that he did this because of the claimant’s race.  Following an investigation of this matter, it was ultimately found that Mr Patterson had raised his voice during this encounter and he was taken to task about this.

27.	It is for the claimant to prove facts from which we could conclude that this treatment was because of his race and we find that the claimant has failed to do so.  In reaching our conclusion, we have looked carefully at the contemporaneous documentation from the claimant, Mr Patterson and from the witness, Mr Irwin.  It is clear that there was a heated exchange between both men.  In all of that evidence, including the evidence from the claimant, there was no suggestion whatsoever that any of the comments made were connected to the claimant’s race or that the shouting was related to the claimant’s race.  The claimant has therefore failed to prove facts from which we could conclude that Mr Patterson’s having raised his voice to him during that encounter amounted to an act of less favourable treatment on grounds of his race.  Indeed, on the claimant’s own account, Mr Patterson had never previously shouted at him; this was therefore a one-off and was explicable due to this being a heated exchange.

The grievance issue

28.	When the disciplinary action commenced, the claimant raised a grievance which related essentially to the following:

	(1)	That he was unfairly treated in relation to his Bradford Score.

	(2)	That his health and safety concerns about the screen glare were not addressed.

	(3)	That Mr Patterson had raised his voice and shouted at him on 
19 September 2015.

29.	The claimant’s grievance about his handheld computer was that the glare caused him to have migraines and his issue was that managers ignored the concerns that he raised.  There was evidence from both sides in relation to possible solutions to this issue, namely: whether the claimant could wear his own sunglasses; whether the brightness on the handheld could be adjusted; whether a screen saver could be used; whether the handset should be tilted.  Mr McAlister, who is from Northern Ireland and of a different ethnicity and colour to the claimant, stated that he raised exactly the same concerns and that these were similarly ignored by managers.  The claimant claimed that the managers ignored his concerns and that this was act of discrimination, therefore fails because he has failed to prove less favourable treatment.  As a result we do not need to look at whether or not the managers acted well or badly in dealing with this issue because that is not to the point of whether or not detrimental treatment on grounds of race occurred.

30.	The respondent made the point that the claimant at no point during the internal processes mentioned that he believed that he was being treated adversely because of his race.  It was the claimant’s contention that he intended to state that his treatment amounted to race discrimination, once the signed statement from his witness Mr Irwin, had been obtained and he would then have his trade union representative mention race discrimination.  We do not believe the claimant on this point given our assessment of him as an articulate individual who was able to press his point at various stages with his employer.

31.	Whilst it is not the case that an employee needs to state that he has been racially discriminated against for any adverse treatment to amount to race discrimination, it is an element for us to weigh up in deciding whether any adverse treatment amounted to race discrimination.  In this case we do not accept that the claimant was waiting for the signed statement from Mr Irwin to be obtained before he would mention race discrimination.  Mr Irwin’s signed statement was one line long and simply stated:

	“I heard Warren raise his voice and shout at Jonathan on 19/9/15”.

32.	Mr Irwin was clearly a reluctant witness.  At investigation stage he stated he could recall nothing of the incident.  He then provided his signed statement.  He then gave the following account to Mrs Wright in the grievance appeal:

“SW	On the 19th Sept what did you hear?
	
JI	I was on my break having my tea.  Jonathan & Warren were in the office having a loud debate about Jonathan’s bradford factor as Jonathan stated you told me to take that day off.  At that point Jonathan backed out of the room & Warren raised his voice & called Jonathan several times to get Jonathan to come back into the room.  When Jonathan re-entered the room, the door was closed & I heard nothing further.
	
SW	Do you think Warren raised his voice so that Jonathan could hear him call him back.
	
JI	Yes, what else could it be.
	
SW	Do you think from what you heard that Warren was out of line?
	
JI	Voices were raised but Warren’s was raised more to get Jonathan to hear him & get back into the room”.	

33.	The claimant alleged that there was something untoward in the fact that the brief signed statement from Mr Irwin was not given to the person hearing the appeal against the grievance outcome, namely Mrs Wright.  We reject the claimant’s case on this point.  During the appeal hearing, the claimant raised the issue that Mr Irwin had provided a written statement.  Ms Wright properly made investigations after the hearing; obtained a copy of that statement; investigated why the statement hadn’t been before her; and interviewed Mr Irwin to get further detail on the incident with Mr Patterson.  The claimant made much of the fact that the interview notes of Mr Irwin’s interview were unsigned by him.  This is an indication of Mr Irwin’s unwillingness to be involved but it is not a defect in procedure nor does it point to race discrimination that Mrs Wright took account of the detail given by Mr Irwin in his interview with her.

34.	In summary we find that Mrs Wright did what she should have done in investigating the Irwin statement.  The claimant stated that she was at fault for not coming back to him and reconvening the hearing with him in order to discuss the statement and Mr Irwin’s interview.  We reject the claimant’s point on this as we accept that there was nothing else for Mrs Wright to do, once she had obtained the evidence from Mr Irwin and she already had the claimant’s account of what he said had happened in the encounter with Mr Patterson.

35.	The claimant essentially says that by not reconvening the meeting with him, Mrs Wright was ignoring him.  We reject that contention because she had the claimant’s account, she interviewed Mr Irwin and others and reached a conclusion and we find that reconvening a meeting with the claimant would have made no difference to the outcome.  The claimant did not make the case to us that he would have added anything at that hearing except to put a label of race discrimination on matters.  As set out above we reject this contention of the claimant.

36.	On Mr Irwin’s account, there were raised voices on both sides in that encounter and he states that Mr Patterson raised his voice in order to get the claimant to come back into his office.  His account is supportive of both the claimant’s and Mr Patterson’s accounts but none of the accounts give any indication of race being an element in the behaviour.  We are puzzled as to why neither side called Mr Irwin as a witness but the fact is that neither side did so and we do not fault the respondent’s manager for reaching the conclusions she did on the information before her.

37.	Part of the claimant’s case was that there was a conspiracy by managers to suppress Mr Irwin’s signed statement.  We have looked carefully at the evidence on this from the documentation and from the evidence of the managers and reject that analysis.  Our primary reason for so finding is that Mrs Wright investigated the matter and obtained the Irwin’s statement and went further by interviewing Mr Irwin.  

38.	Mr Patterson was given a formally recorded conversation for raising his voice at the claimant.  The allegation made by the claimant was therefore substantiated to some degree and led to consequences for his manager.  We therefore reject the claimant’s case that his points were ignored and that this connoted race discrimination.  Mr Irwin’s statement was taken into account and was to some extent accepted by the respondent’s managers.

39.	We reject any contention by the claimant that Mrs Wright did not deal properly with his grievance.  It is clear from her outcome letter and her investigation that she dealt with each point and made some findings which were favourable to the claimant.  She produced a fully reasoned letter and we reject the claimant’s contention that her failure to meet with him to give him the outcome amounted to discrimination as it was in breach of policy.

Disciplinary action

40.	The disciplinary action taken resulted in the claimant being given a recorded verbal warning because, even after mitigation of 120 days in his sick record, he triggered the disciplinary process.  It was common case that the claimant did actually trigger the disciplinary process and his argument on this point focused on the extra day as stated above.  This made no difference to the outcome and the claimant has therefore not shown detriment nor has he shown that he was treated less favourably than another person who does not share his colour, nationality, or ethnicity was treated or would have been treated.

Sick pay issue

41.	The claimant’s case on this was that under the sick pay scheme, the exceptional circumstances provisions should have been applied to him because so much of his absence related to on-street racial abuse incidents.

42.	The respondent’s policy was that all absence would be counted for the purposes of the operation of the sick pay scheme.  They therefore regarded absence in a different way for the pay scheme than they did for the disciplinary absence process.

43.	The relevant part of the policy states as follows:

		“OBJECTIVE

	The objective of the Sick Pay Scheme is to provide colleagues who are unable to work due to illness or injury the reassurance that they will continue to be paid as per the scheme’s procedures.

	Colleagues who are accepted into the scheme are, on becoming ill, entitled to up to 6 months at full pay and 6 months at half pay over a 4 year rolling period.  These circumstances are to include serious illnesses, accident, injury to work, unless in exceptional circumstances.”

44.	The claimant’s focus was on the words “exceptional circumstances”.  Effectively the claimant’s case to the tribunal was that under the contract he should have been regarded as having exceptional circumstances and that the period of full pay for sickness absence should have been extended as a result.

45.	The respondent made the point that their policy specifically states that sickness absence as a result of illness, accident or industrial injury are still counted for the purposes of the sick pay scheme.  The respondent’s point in tribunal was that the on-street incidents were regarded as industrial injuries and were therefore counted.

46.	The employer gave an example of when exceptional circumstances might be considered, namely when an employee suffered from terminal illness.  Ms Jess also had personal knowledge of one employee who fell within that definition and that employee had been hospitalised following a serious road traffic accident.  It was the respondent’s point that for sick pay purposes there had to be a cut-off at some point and that the policy was applied in a rational way and did not amount to race discrimination nor to breach of contract.

47.	We have to assess what is properly payable under the contract for an unlawful deduction from wages claim.  Under the contract it is clear that the employer has a discretion to extend full sick pay in exceptional circumstances.  In the context of this contract we find that the employer has not breached the claimant’s contract.  The employer’s managers explained to us two examples of when exceptional circumstances were triggered and explained that the claimant’s situation was regarded as an industrial injury situation and also explained that full sick pay could not be for an open-ended period.  In these circumstances we find that there was a rational explanation for their interpretation of the contract.  The claimant has therefore failed to prove that extended sick pay at the full rate of pay was properly payable under his contract and his claim for unlawful deduction from wages therefore fails.

48.	Insofar as there was any claim that this amounted to race discrimination, we reject that claim.  The claimant has not proved less favourable treatment nor has he proved a link between this treatment and his previous proceedings.  Whilst there was a detriment, there was no evidence that this was on grounds of race.

49.	The respondent’s managers stated that the difference between the two schemes for sick leave and sick pay was that the Bradford Score was a guide for managers in relation to possible disciplinary action whereas the sick pay scheme related to a finite pot of money for each employee which could only be extended in exceptional circumstances.

50.	The claimant made the point that he received a letter dated 23 March 2016, on 29 March 2016 when his pay was received, and that letter indicated that he had gone onto half pay at the beginning of March.  The claimant was very aggrieved at the fact that he had not been given notice of this and stated that it caused great anxiety to him and his family.  Whilst we do not find this act to amount to an act of race discrimination as there was no evidence for less favourable treatment, we do wish to record that we regard it as poor practice to inform an employee in this way after his pay has dropped to half pay.  Good practice would dictate in our view that employees are given notice of at least a few weeks so that they are prepared for any drop in pay.

51.	The claimant made the point that the employer in the internal processes at one point stated that he had been offered sunglasses in relation to the glare from the handheld.  There appeared to be no doubt however that the claimant was told that he could wear his own glasses if that helped.   We do not find this to be a point which supports any claim of race discrimination.

52.	The claimant also made the point that at no point was his handheld adjusted so that it was less bright.  Mrs Wright made the point that she had delegated this to Mr Patterson and Mr Patterson stated that he had done this.  At its height, the claimant’s point seemed to be that this was an example of the respondent ignoring his concerns.  We reject that claim.

53.	The claimant in evidence conceded that the issues he raised about the handheld were not discrimination.  His point was that it was failure to deal with his complaint that amounted to discrimination.  From the outcome letter it is clear that Mrs Wright made various suggestions and directed Mr Patterson to adjust the brightness on the handheld.  From the evidence therefore it appears that the claimant’s concerns were taken on board and steps were taken to deal with them.

54.	In submissions Mr Hartley stated that the respondent accepted that the claimant and his colleagues did a difficult job which at the best of times could involve confrontation.  The respondent also accepted that the claimant suffered specific problems because of the unpleasant and offensive racial language that he was subjected to on the streets by members of the public.  The respondent also accepted that he appeared to have been an exemplary employee and there were never any criticisms of the claimant’s work.

55.	As regards the claim of harassment on grounds of race, we find that the only allegation which might amount to harassment was the encounter with Mr Patterson.  For the reasons given above, we do not accept that the claimant has proved less favourable treatment on grounds of race nor has he proved that any adverse treatment by Mr Patterson was connected to race.  His claim for harassment therefore fails.

Summary

56.	The claimant has failed to prove facts from which we could conclude that he was treated less favourably on grounds of his race.  The claimant has also failed to prove facts from which we could conclude that an act of harassment or victimisation on grounds of race occurred.  The claims of discrimination are therefore dismissed.

57.	The claimant has failed to prove that under his contract he was entitled to additional sums under the sick pay scheme.  The claim for unlawful deduction from wages therefore fails.

Employment Judge:

Date and place of hearing:	21-23 November 2016, Belfast.

Date decision recorded in register and issued to parties: