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Fair Employment Tribunal Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Pedroli v Finell Group Ltd [2009] NIFET 126_08FET (09 January 2009) URL: http://www.bailii.org/nie/cases/NIFET/2009/00126.html Cite as: [2009] NIFET 126_08FET, [2009] NIFET 126_8FET |
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The unanimous decision of the Tribunal is that the first-named respondent shall pay the claimant £469.25 in respect of her claims for a breach of contract and right to paid annual leave. The claimant’s claims for discrimination on the basis of race and religious belief must fail and are dismissed.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Mr McGuire
Mr Margrain
None of the respondents appeared nor were they represented.
The claimant was assisted by an interpreter provided by the Tribunal.
REASONS
The claimant complained in her claim that she had not been paid wages for her last week of working at the second-named respondent and had not been paid for six days of holidays that she was entitled to. The claimant further contended that she had been discriminated against on the grounds of her race and her religion in the non payment of the wages and the holiday pay.
None of the respondents entered responses to any of the proceedings.
The Tribunal heard evidence from the claimant assisted by the interpreter.
Findings of fact
The claimant was employed by the first named respondent as a waitress. Her work commenced on 20 August 2007. Her salary was £5.75 per hour. Her average weekly wage was £268, with a net average weekly wage of £230.
The claimant had no written contract.
At the commencement of her employment the claimant was told she was entitled to one and a half day’s holiday for each month worked. At the beginning of January 2008 her manageress approached her and told her that she was now entitled to two days holiday per month worked.
The claimant’s holiday year commenced on 20 August 2007. She was on holiday from 1-16 January 2008. Only one week of that holiday was paid holiday. The balance of that time was agreed unpaid holiday. The claimant was still entitled to further holidays.
The claimant left the employment of the first-named respondent on 5 April 2008. She had given one week’s notice and worked that notice for the first-named respondent. She did not receive any pay for the last week she had worked. The claimant however in her evidence very fairly informed the tribunal that she had only worked for 35 hours in the final week and that was the extent of her claim.
Although the claimant felt that the main reason for her treatment by the first-named respondent was based on race she acknowledged that she was unable to provide any evidence relating to her non-payment of wages and holiday pay. The matters the claimant did refer to were not relevant to the issues in this case.
The law
Under Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 a claim may be brought for the recovery of damages or any other sum for a breach of contract. Such a claim cannot be made to the Tribunal before the termination of employment.
For the claimant to establish a direct discrimination has occurred she must show that she has been treated less favourably than another has been or would be treated in a comparable situation on the grounds of race or of religious belief. This involves a comparison of the claimant’s case with that of a person of a different race or religious belief and must be such that the relevant circumstances in the one case are the same, or not materially different, from the other. Finally the statutory formula requires that the protected ground (ie race or religion) was the ground for the less favourable treatment.
The claimant must make a prima facie case of discrimination and if she does so the burden of proof will shift to the respondent to show that the action is not tainted by discrimination. In Igen v Wong [2005] the Court of Appeal provided extensive guidance to Tribunals on shifting the burden of proof. Part of that guidance is as follows:
“(1) … It is for the claimant who complains of sex discrimination to provide 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 …
If the claimant does not prove such facts he or she will fail”.
Tribunal’s conclusion
The Tribunal is satisfied from the claimant’s undisputed evidence that the claimant is entitled to a payment of six days holiday pay in the sum of £268 and one week’s wages in the sum of £201.25 from the first named respondent.
The Tribunal was not persuaded on the evidence of the claimant that she had proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that any of the respondents had committed an act of discrimination against the claimant which was unlawful. Accordingly, the claimant’s claims for discrimination on the basis of race and religious belief must fail and are dismissed.
Chairman:
Date and place of hearing: 8 December 2008 at Belfast.
Date decision recorded in register and issued to parties:
