Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  6938/18

 

CLAIMANT:                          Linas Augustis

 

RESPONDENTS:               1. AGR Contracting Ltd

                                                2. Anthonia Alinta

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant’s claims are dismissed in their entirety.

 

 

 

CONSTITUTION OF TRIBUNAL:

 

Employment Judge:          Employment Judge Crothers

                       

Members:                             Mr E Grant

                                                Ms E McFarline

 

 

APPEARANCES:

 

The claimant was represented by Ms Kristyne Kurlianskiene.  The claimant was assisted by Zibute Uzkurniene, interpreter.

 

The respondent was represented by Mr Quigley, Barrister-at-Law, instructed by McLaughlin & Co Solicitors.

 

 

THE CLAIM

 

1.            The claimant claimed that he had been unfairly dismissed and had been subjected to unlawful discrimination on racial grounds by the respondents.  The respondents denied his allegations in their entirety and also contended that he had not been dismissed.  The claimant also claimed that he was due the amount of £2,981.00 in respect of arrears of pay.

 

THE ISSUES

 

2.            The issues before the tribunal, as set out in a Case Management Discussion record of proceedings dated 12 November 2018 are as follows:-

 

(A)       The claimant claims race discrimination as follows:-

 

(1)          Other employees being provided with easier duties.

 

(2)          Other employees being required to wear vests and some not.

 

(3)          Failure to permit the claimant to return to work after a period of sickness/unfairly dismissing the claimant.

 

(B)         The claimant claims unfair dismissal/constructive dismissal under the Employment Rights (NI) Order 1996.

 

An issue for the tribunal is whether the claimant resigned or whether he was dismissed.

 

(C)                     The claimant claims failure to pay wages/unauthorised deduction from wages/breach of contract in respect of an alleged failure of the respondent to make pension contributions.

 

SOURCES OF EVIDENCE

 

3.            The tribunal heard evidence from the claimant, and from his wife, Mrs Auguste.  The claimant also submitted audio recordings and videos which were viewed by the tribunal with the consent of the respondent.  The tribunal heard evidence from the second respondent and from Deimante Dubiniene, supervisor employed by the first respondent.  The tribunal was presented with a bundle of documentation, together with further documentation in the course of the hearing.

 

FINDINGS OF FACT

 

4.            Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

 

(i)            Taking into account a TUPE transfer, the claimant was employed by the first-named respondent (“AGR”) from 23 February 2009 until the cessation of the claimant’s employment on 9 March 2018.  With the assistance of the Labour Relations Agency, the parties agreed a Schedule of Loss insofar as possible, subject to the tribunal’s findings.  The claimant did not make a claim for pension contributions in the course of evidence or in the agreed Schedule of Loss.

 

(ii)          The recordings and videos presented by the claimant were prepared secretly by the claimant and without the consent of others participating in the events.  The claimant is currently pursuing a civil claim in respect of an alleged injury at work on 15 August 2017.  The tribunal was shown a transcript of a recording of a meeting held on 15 November 2017 involving the claimant and the second respondent.  Prior to that date the claimant had arranged a medical appointment.  He subsequently presented General Practitioner’s certificates certifying that he was unfit for work from 15 November 2017 until 25 December 2017.  During this time he was paid SSP by AGR.  Subsequent to this the claimant claimed that he was in fact fit for work but chose not to furnish any further certificates to AGR covering the period between 25 December 2017 up to 9 March 2018.  The claimant’s case was that the employer failed to make contact with him during this period.  However, the claimant failed to let his employers know that he was allegedly fit for work.  SSP was therefore discontinued as were his wages.  AGR were not made aware of his intentions and had no obligation to pay him wages as he failed to turn up for work.

 

(iii)         The tribunal found the claimant not to be a credible witness and preferred the respondents’ evidence in areas of conflict of evidence.  This is particularly so in relation to part of the respondents’ case that the claimant contacted the second respondent in late February or early March 2018 to request his P45.  The only material correspondence from Patterson and Rock, solicitors for the claimant, was dated 5 March 2018, to include the following:-

 

                 “We are instructed by our client [that] you, his employers, refuse to communicate with him and as a result our client does not know his current employment status.  This impinges upon his ability to seek benefits as an alternate form of income in the case he is no longer employed by you.

 

                 We would ask that you urgently confirm to our client particulars of his employment status care of this office”.

 

(iv)         The claimant had been communicating with his Solicitors through Lexlitus.  This organisation appears to have provided instructions in English to his Solicitor.  The claimant also consulted the Job Centre and Citizens Advice Bureau.  He was paid Job Seeker’s Allowance from 12 March 2018 and received Employment and Support Allowance from 28 March 2018.  His employers forwarded his P45, pursuant to his request, which is dated 12 March 2018.

 

(v)          The tribunal is satisfied that the claimant resigned from his employment, having requested his P45 from AGR.  It follows that he was not dismissed with or without notice by AGR.  Furthermore, his claim for 10 weeks arrears of wages from 25 December 2017 until 9 March 2018 is without foundation.

 

(vi)         There is no satisfactory evidence before the tribunal to prove that other employees were being provided with easier duties, that some employees were required to wear vests and some not or that Africans were exempted from wearing such vests.  The tribunal is therefore satisfied that there is no substance in the claimant’s claim of unlawful discrimination on racial grounds.  Furthermore, as the tribunal finds that he was not dismissed, there cannot be a claim of unlawful discrimination on racial grounds attached to a dismissal.  For the avoidance of doubt, there is no basis for a constructive dismissal claim.

 

THE LAW

 

5.         (i)         The law on unfair dismissal is set out in Articles 126-130, and 130A of the Employment Rights (Northern Ireland) Order 1996.  Article 127 provides that an employee is dismissed by his employer if ...

 

“(a)      The contract under which he is employed is terminated by the employer (whether with or without notice),”

 

             (ii)       In relation to the claim of direct discrimination on racial grounds, Article 3(1) of the Race Relations (Northern Ireland) Order 1997 (“the Order”), provides as follows:-

 

“(1)      A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if –

 

(a)       on racial grounds he treats that other less favourably than he treats or would treat other persons; …

 

(3)       a comparison of the case of a person of a particular racial group with that of a person not of that group under Paragraph (1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

 

            (iii)       “Racial Grounds” is defined in Article 5(1) of the Order as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins;”

 

            (iv)       Article 6(2) of the Order states that it is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland, to discriminate against that employee “by dismissing him, or subjecting him to any other detriment.”

 

Burden of Proof Regulations

 

6.         (i)         Article 52A of the Order provides as follows:-

 

“52A. –         (1)           This Article applies where a complaint is presented under Article 52 and the complaint is that the respondent –

 

(a)       has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B)(a), (e) or (f), or Part IV in its application to those provisions, or

 

(b)       has committed an act of harassment.

 

(2)   Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this 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.”

 

            (ii)        In Igen Ltd (formerly Leeds Carers Guidance) and Others  v  Wong, Chamberlains Solicitors and Another  v  Emokpae; and Brunel University  v  Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination.  This guidance is now set out in the Annex to the judgment in the Igen case.  The guidance is not reproduced but has been taken fully into account.  

 

            (iii)       The tribunal also considered the following authorities, McDonagh and Others  v  Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy  v  Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing  v  Manchester City Council [2006] IRLR 748 and Mohmed  v  West Coast Trains Ltd [2006] UK EAT 0682053008.  It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment.  As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

 

“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 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 probabilities, the respondent had committed an unlawful act of discrimination.

 

“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

 

            (iv)       The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington  v  Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41.  These paragraphs are set out in full to give the full context of this part of his judgement. 

 

“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred.  The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1)       In every case the Tribunal has to determine the reason why the claimant was treated as he was.  As Lord Nicholls put it in Nagarajan  v  London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’.  He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

(2)       If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination.  It need not be the only or even the main reason.  It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen  v  Wong [2005] IRLR 258, paragraph 37.

 

(3)       As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts.  The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC).  These are set out in Igen  v  Wong.  That case sets out guidelines in considerable detail, touching on numerous peripheral issues.  Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is.  The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature.  The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

 

‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

 

                                   If the claimant proves such facts then the second stage is engaged.  At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground.  If he fails to establish that, the Tribunal must find that there is discrimination.  (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King  v  The Great Britain-China Centre [1991] IRLR 513.)

 

(4)       The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably.  That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.  So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one.  As Lord Browne-Wilkinson pointed out in Zafar  v  Glasgow City Council [1997] IRLR 229:-

           

‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

 

           Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl  v  Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn.  As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it.  But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

(5)       It is not necessary in every case for a Tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test:  see the decision of the Court of Appeal in Brown  v  Croydon LBC [2007] IRLR 259 paragraphs 28-39.  The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

(6)       It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya  v  University of Oxford [2001] IRLR 377 esp paragraph 10.”

 

            (v)        The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson  v  Newry and Mourne District Council [2009] NICA 24.  Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

“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. In Curley v Chief Constable [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”.

 

SUBMISSIONS

 

7.            Written submissions from both parties are appended to this decision.  Both representatives also made brief oral submissions for the tribunal’s consideration.

 

 

 

CONCLUSIONS

 

8.            The tribunal, having carefully considered the evidence together with the submissions from both representatives, and having applied the principles of law to the facts as found, concludes as follows:-

 

(i)            The claimant, in requesting his P45 from AGR resigned from his employment with AGR.  It follows that he was not dismissed by AGR and therefore cannot sustain a case of unfair dismissal, including constructive dismissal.

 

(ii)          The tribunal is also satisfied that the claimant has not proved facts from which the tribunal could conclude, in the absence of an adequate explanation, that unlawful racial discrimination has occurred in any of the forms referred to in the issues outlined at paragraph 2 of this decision.

 

(iii)         The tribunal, in arriving at its conclusions considered all of the evidence relevant to the discrimination complaint, including any evidence as to whether the act complained of occurred at all, any evidence as to a comparator(s) relied on by the claimant to prove less favourable treatment and any evidence as to whether the comparisons being made by the claimant were of like with like, together with any available evidence of the reasons for the differential treatment.  As stated in its factual findings, the tribunal is satisfied that the claimant’s claim of unlawful discrimination on racial grounds is without foundation and must be dismissed.

 

(iv)         Following the last material medical certificate of unfitness to work which expired on 25 December 2017, the claimant failed to present himself for work.  He did not communicate with AGR until he requested a P45 in late February or early March 2018.  In these circumstances, AGR are under no obligation to pay him arrears of wages.  This claim is also dismissed.

 

           

 

 

Employment Judge:

 

 

Date and place of hearing:          20, 21 & 22 March 2019, Belfast.

 

 

Date decision recorded in register and issued to parties: